Criminal Law Marcus 8th ed.

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Criminal Law
Authors Paul Marcus
Linda A. Malone
Geraldine Szott Moohr
Text Image of Criminal Law, Eighth Edition
Criminal Law, Eighth Edition
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Related course(s)


Intro & Constitutional Questions[edit]

  • Can you be convicted of a greater offense and a lesser offense?
    • ○ No, lesser offense is same as greater offense, but greater offense has one additional element
  • Things the jury isn’t allowed to hear about:
    • ○ Prior crimes
      • ■ unless it’s offered as proof that person committed crime now; predisposition – entrapment
    • ○ guilt by association (jury instructed to keep it separate)
  • Burdens
    • ○ Burden on gov à bey reas doubt
    • ○ *Burden on D à clear & convincing evidence (65%)
      • ■ will only see for insanity def; makes it harder to prove (added after Reagan assassination attempt)
    • ○ Preponderance of evidence à def and gov (50%)
      • ■ Would be on D in jurisdictions where burden is on D to prove defense
      • ■ On gov for evidentiary matters
    • ○ Burden of production à on D (20%)
      • ■ If D wants to put forward a particular theory; typ need credible evidence (low stnd)
    • Remember in some situations where the MPC is the law in many states
      • ○ Some very unpopular
        • ■ Sexual assault (poorly drafted)
      • ○ Dramatic impact (know those he emphasized in class)
        • ■ 4 states of mind; most adopted word for word
        • ■ Insanity defense
        • ■ Some areas where there is more than one approach
      • Withdraw
        • ○ Gets raised a lot, almost never successful
        • ○ Withdraw is a true defense, burden of proof on D (depends on juris)
        • ○ Need:
          • ■ Giving notice to others involved
          • ■ Taking affirmative steps to undo the harm occurred--typically by calling the cops
          • ■ Did it in a timely manner
          • ■ If you do prove these things, need to prove that it was for a good motive

Misdemeanor: 1-2 years. Felonies: lengthier sentences.What is a crime and are there limits to what the legislature can criminalize?

  • 4 elements of every crime
    • Act requirement (actus reus)
    • ○ 'Mental state (mens rea) (most often litigated)'
    • Causation--act of D results in injury
    • Harm of damage sustained
  • Gov must prove D is guilty of all elements of the crime beyond a reasonable doubt
    • ○ A def acknowledges that the elements of conviction have all been met by the state YET there’s a reason why the D should not be found guilty
    • ○ o.P-> Points to evidence and reasoning that the state has failed to prove, beyond a reasonable doubt, one or more of the 4 elements of conviction
    • ○ Burden can’t be shifted onto the D to prove innocence
  • Are there limits to what the legislature can criminalize?
    • ○ Constitutional limits
      • Commonwealth v. Jones: can’t criminalize speech'
      • Jones v. City of LA: can’t criminalize a status'
      • Lawrence v. Texas: can’t criminalize what 2 consenting adults do in the context of their relationship (depriving liberty interest)'
    • ○ Void for Vagueness Doctrine: must define the laws, reas ppl should know what’s expected of them
      • ■ If a term is undefinable, is it unconstitutional?
      • ■ Gorsuch in recent US SC decision: vague laws invite “exercise of arbitrary power”
        • Basically, term must be sufficiently clear so that the avg person knows what it means
      • First Amendment: Can the government limit free speech?
        • Commonwealth v. Jones: D shouted “Nazi pig motherfucker” at police during a parade'
          • ■ Holding: Content, volume, and surroundings can be considered when determining reasonableness, but content alone cannot be
            • Void for Vagueness doctrine: what’s “unreasonable noise”?
              • ○ Court ruled that this was for the jury to decide
            • ■ Dissent (Stumbo): law intended to regulate volume, not content. Can’t conceive how yelling at a parade would be unreasonable unless content is considered
          • Fourteenth Amendment: Substantive Due Process--
            • P. v. State: challenged const of graffiti ordinance for violating due process rights of minors--imposed crim penalty for minor’s possession of common items w/o having to show criminal intent.'
              • ■ Ct. held it was constitutional bc (1) no outright ban on possession, and (2) permissible to treat minors differently than adults
              • ■ Dissent: Minors should receive additional due process protection, differences in treatment should be to protect, diminishing minors’ rights is not protection
            • Lawrence v. Texas (SC): The right of consenting adults to engage in sexual conduct in private is protected by the 14th Amdt’s Due Process Clause--liberty interest encompasses homosexual activities'''''
              • closer to Hart’s view (there are some things the state just can’t do--violates due process)
              • Dissent (Scalia/Thomas): Act not a “fundamental right” in “US tradition”
                • Lord Devlin approach to criminalization: legislature should go w/ majoritarian/moral code
              • Exclusionary law: if evidence obtained in violation of const (unlawfully), can’t use evidence
            • ■ Policy ramifications
              • State can’t invade private sexual life w/o legitimate state interest.
              • Moving away from criminalizing immoral acts even if they are not a fundamental right
              • Majority belief shouldn’t necessarily be applied by law to all of society

Substantive Due Process vs. Procedural Due ProcessHart’s view Devlin’s viewOnly criminal criminalize behavior As long as procedural processes arethat adversely affects others taken care of, legislature can do what it wants

  • Substantive due process vs. procedural due process
    • ○ Procedural: government has to properly lay out what the crime is, can’t be unduly vague (no person would know what it meant), people aren’t on notice
    • ○ Substantive: Hart vs. Devlin debate--can legislature criminalize certain behaviors?
      • ■ Debate resolved in case against same sex marriage and sodomy statutes--even if it offends the majority, legislature can’t invade those areas--leg didn’t have the power to go into that area
    • Eighth Amendment: Cruel and unusual punishment
      • Jones v. City of Los Angeles: Homeless ppl who live on streets of LA’s Skid Row were arrested for violating ordinance that prohibits sitting, lying, etc. on streets w/in city limits'''''
        • ■ Held: An ordinance that punishes an integral consequence of being homeless (an involuntary status) violates 8th Amdt’s prohibition against cruel & unusual punishment
          • Robinson v. California: Violated 8th Amdt by making it a criminal offense to be addicted to narcotics (can’t ban status of being a drug addict)
          • Powell v. Texas: Did not violate 8th Amendment by making the act of getting drunk and being intoxicated in public a crime. Not criminalizing being an alcoholic.
        • ■ Rymer’s Dissent: The statute is targeting the act of sitting, laying, or sleeping on the street which can be done by someone with or without a home.
        • ■ Policy ramification
          • Unconstitutional to punish an involuntary act or condition if it is an unavoidable consequence of one’s status of being.

The Act[edit]

The defendant consciously and voluntarily did X

  • Voluntary Act Requirement (Elements)
    • Element 1': Conscious awareness' (was the D conscious?)
      • ■ NOT insanity.
      • ■ Lost consciousness?
      • ■ State v. Hinkle: Once the issue of unconsciousness or automatism is raised by the defense, state must disprove it occurred at the time of the alleged crime beyond a reasonable doubt bc it is an element of the crime (FAILURE OF PROOF) (NOT A DEFENSE; JUST RAISING THE ISSUE)
        • Prior notice problem: If D had prior notice of a medical problem, would be an issue.
        • Facts: Involuntary manslaughter after falling unconscious and then colliding head-on with another car. An undiagnosed brain disorder caused him to lose consciousness.
      • ■ Someone made you do it?
      • ■ An act isn’t voluntary when the defendant acted under the compulsion of another
        • Cannot convict of drunkenness in a public space when D was involuntarily and forcibly carried there bc prosecution didn’t prove act requirement Martin v. State
      • ■ Asleep? Maybe…
      • ■ Unconsciousness has been recognized as a defense (not real def! Gov’t has to prove!!!) to crimes committed while accused was asleep. Fain v. Commonwealth (Ky 1879)'''''
        • BUT one can be responsible for allowing himself to go to sleep & get into a condition where the action could happen (driver fell asleep behind wheel). State v. Olsen
      • ■ Spilled something? No
      • ■ Spilling hot coffee on oneself not excuse for speeding - decision to bring hot coffee set off sequence of events. State v. Miller
    • Element 2': Obligation to act'
      • American bystander rule':' Generally don’t require ppl to help others, except:
        • You can contractually agree to help someone
          • ○ Pestinikases had a legal duty to help Kly because they’d entered into a contract with him, but this was questioned in the dissent. Commonwealth v. Pestinikas
            • ■ Victim hospitalized and diagnosed w/ throat issue. Once discharged, contracted w/ Ds for them to take care of him (food, shelter, etc.). They didn’t & he died.
          • Based on family relation (typically by statute)
          • Statutory duty (police officer, parent, etc.)
          • Once you start to help someone, have to finish bc you will deter others from helping
        • ○ May want to establish a Good Samaritan Law - if you’re trying to help someone in good faith, you’re not going to be held civilly liable.
          • ■ There’s a civil version of this law (many states have adopted), but not really a criminal version.
        • ○ Many other countries do impose duties to act, but we don’t.

Mental States[edit]

  • 4 mental states according to the Model Penal Code:
    • ○ 'Intent':
      • ■ Knowledge + purpose that this result occurred; Hardest to prove; Longest sentences
      • ■ State v. Smith: can prove intent even if the method wasn’t likely to succeed (as long as the DEFENDANT believed it was likely to succeed)
        • Inmate knew he had HIV and he threatened to kill the corrections officers. One day he bit an officer’s hand causing puncture wounds on the skin during a struggle that he precipitated. Charged w/ attempted murder
        • Gov’t needed to prove: intent to kill, and that D believe method could have succeeded
        • Why prosecute? Don’t want D to try again with more effective means after he realizes this method didn’t work
      • Knowledge: (1) Aware (subjective) of own conduct/circumstances exist; (2) Aware (subjective) that the conduct is practically certain to cause such a result (3) Difference from purpose: Not necessarily D’s goal
        • ■ Fabritz v. Traurig: Mom left daughter w/ ppl, came back, daughter is ill, “Tommy hits hard”, takes her to the hospital too late, inaction leads to death
          • Held: Gov didn’t meet burden of proving D knowingly contributed to abuse of daughter; statute was silent on state of mind – court inferred/assumed “knowingly”
            • ○ D’s argument: No reasonable juror would have convicted as mother had no intent/knowledge to kill child
            • ○ Government’s case: Should not have left child w/child abuser—“he hits hard.”
          • Dissent: conviction was not devoid of evidentiary support (second-guessing the jury by overturning); gross negligence
        • ■ Statutory interpretation
        • ■ Flores-Figueroa v. US: D used fake ID w/ his name and another person’s real SSN to get a job, didn’t know about statute / realize that the SSN was real (ID before had a fake number)
          • Held: gov is required to prove beyond a reasonable doubt that the defendant was knowingly using a means of identification of another person
          • Reasoning: analysis of statute; showed that in knowingly should apply to all elements of statute, not just first two elements
        • ■ United States v. International Minerals & Chemical Corp.: Appellee shipped sulfuric acid in interstate commerce and failed to show the required classification on the shipping papers; law states that whoever “knowingly violates any such regulation” shall be fined or imprisoned; D argued he didn’t know about statute
          • Held: D guilty because they had knowledge of act occurring; did not have to have knowledge of act being in violation of the statute
          • Dissent: the law clearly states “knowingly violated;” decision will do little except hold absolute liability over those who ship hazardous materials once
        • ■ Willful Blindness: In some circumstances, little evidence or no evidence exists to show the D knew that a material fact incident to the crime even existed. D may claim she did not know the van she was driving carried drugs - D not guilty unless the gov can prove she knew drugs were in the van. Cts may instruct juries to consider whether the D was willfully blind or deliberately indifferent to fact at issue. Instruction allows jury to infer that D acted w/ knowledge of the fact
      • Reckless: conscious disregard (subjective--knew about risk) of a substantial and unjustifiable risk (objective--not a risk a reasonable person would take)
        • ■ Commonwealth v. Welansky: D owned a night club. Was in hospital, but others assumed his duties while he was away. Fire killed a lot of ppl. Bad layout/keys in office--ppl couldn’t escape & died. Charged w/ involuntary manslaughter.
          • Held: if there is a duty of care for the safety of visitors to a business, wanton or reckless conduct (aka recklessness) may consist of an intentional failure to take reasonable measures to protect those visitors from probably harmful consequences.
          • Marcus: True that standard is subjective and objective, but must prove beyond a reasonable doubt that THIS person was consciously aware, not other people. Court is wrong on difference between recklessness and negligence. Negligence has objective standard (Person should have known)--needed to prove that he did in fact know
        • ■ Commonwealth v. Huggins: D fell asleep while driving, ppl died, weren’t wearing seatbelts.
          • Held: circumstantial evidence points to recklessness; D was reasonably aware of the risks (falling asleep, kids in car, speeding); acted anyway
        • ■ Other examples of recklessness:
          • Texting while driving
            • ○ NH--Guilty of involuntary manslaughter. Reckless if aware/consciously disregards risk. Gross deviation from conduct of law abiding citizen
            • ○ VA--Judge dismisses case (same facts)
              • ■ VA law--penalty for texting while driving punishable by max fine of $20
              • ■ Judge thought behavior was reckless, but had to abide by rule of legislature
            • Poultry processing: Manager believes ppl stealing chickens. Thinks thieves are propping open doors. Nailed shut 6/8 emergency doors. Tells staff only 2 doors open now.
              • ○ Fire breaks out. people die.
              • ○ Involuntary manslaughter? Manager would say he had no idea result could occur
              • ○ Prosecutor brought in others to testify (ppl who own analogous businesses).
              • ○ Asked them if they knew nailing doors shut would lead to such a risk--Duh
              • ○ Defense objected to this line of questioning as they were testifying to their subjective awareness not his. Isn’t negligence, is recklessness. Different standard. “Reasonable people” standard doesn’t apply
              • ○ Judge overruled this objection
              • ○ Anyone in that situation would have that knowledge. To prove that manager was lying. How can he claim that he didn’t know when everyone else did?
            • Negligence: reasonable person would have understood / should have known (objective)
              • ■ Typically misdemeanors or offered in a plea bargain if prosecutor doesn’t have good evidence
            • 5 mens rea questions to ask yourself:
              • ○ What does the statue actually say with respect to mental state?
              • ○ What does that statutory language actually mean?
              • ○ What do you do if the statute is silent with respect to the mens rea? (rare)
                • ■ Answer: Infer that the legislature made a mistake
                  • How do you do that?
                    • ○ Legislative history--Not much in criminal law, don’t have many constituencies
                    • ○ Look at common law history
                    • ○ Statutes from other states
                  • ○ How do you prove the mental state (most important question)?
                    • ■ Almost never direct evidence of this. Almost always circumstantial evidence.
                  • ○ When should you use general vs specific intent? Never.

Mistake of Law / Mistake of Fact[edit]

  • Basic proposition:' ignorance of the law is no defense, but there are instances where mistake matters'
    • Mistake of law': either a true def or a FoP'
      • ■ 'FoP when the statute itself requires knowledge of the law'
        • if knowledge required, then mistake of law is a failure of proof; don’t care why she doesn’t know'
      • Affirmative defense': If D isn’t aware of the law and goes to gov and asks what the law is, that authority of interpreting the law will be binding on the gov'
        • If statute doesn’t require knowledge, no defense unless informed by a US gov. official
        • Ex. An EPA official telling you explicitly that its ok to dump chemicals = true defense
      • ■ MPC def: A belief that conduct is legal (isn’t illegal) is a defense when…
        • (1) Wrong: The statute is not known and has not been published or otherwise reasonably made available OR
          • ○ ^This is part of the MPC is generally wrong! (Except in Mancuso and other odd cases)^
        • (2) D acts with reasonable reliance upon an official statement of law given by a public officer (NOT your attorney) afterward determined to be invalid or erroneous
          • ^This part is the only defense that works all of the time if true^
        • ■ United States v. Mancuso: D convicted of violating fed narcotics laws; was supposed to fill out registration forms when returning to US. Didn’t know about forms/only a few signs at airport.
          • Held: ample notice (reasonable availability) must be given in order to convict person for breaking rule
          • Note: there is no reason for part 1 of the MPC.
            • if the statute requires knowledge of the statute (as in Mancuso) or something else and government can’t prove you knew = failure of proof
          • Mistake of Fact:
            • ■ 'FoP: if you don’t have knowledge & statute requires it à FoP'
              • California v. Russell: D thought motorbike had been abandoned, didn’t realize someone had left it out. Convicted of stealing a motor vehicle. Crime required knowledge.
                • ○ Held (WRONGLY): When D claims they didn’t know and there is convincing evidence that it was abandoned, judge should instruct on “mistake of fact” defense
                • ○ Note: Knowledge was an element of the crime. The jury convicted him, so they must have decided that he had knowledge. Would instead grant motion of acquittal bc no reas jury could believe this was proved beyond a reas doubt
                • ○ MPC’s definition is incorrect. Gov can’t prove the required mens rea element of the crime. If there’s no mens rea in the statute, then would be a true defense
              • Affirmative defense: can be used if statute doesn’t require knowledge;' arson statutes don’t require knowledge as to who’s prop it is (only knowledge that you were burning something)'
                • 'Defense: hired surveyor, thought it was on other person’s prop, that’s a true defense'

Punishment[edit]

  • What to do instead (see NYT article): recidivism rates high; prisons are not rehabilitating people, they simply don’t have the resources; lock up less people & put in more rehabilitation programs like drug courts & other treatment options so ppl aren’t incarcerated in the first place

Examples of Types of Punishment:

  • Alternative to Prison
    • ○ Payback the Community (restitution, community service)
    • ○ Rehabilitation (drug rehab, adult education classes, half-way houses)
    • ○ Incapacitation (probation, monitoring program)
  • Life imprisonment w/o Possibility of Parole
    • ○ Controversial, some states argue it shouldn’t be given bc of possibility for suicide & encouragement of good behavior

In Application (Inconsistent)

  • United States v. Bergman: Bergman, a widely-admired rabbi, pleaded guilty crimes including medicaid fraud. Sentenced to 4 months in prison.
    • ○ Reasoning: he shouldn’t go to prison to incapacitate him or deter him for future crimes, but rather to deter other possible criminals––“I gotta give him something... I guess”
    • ○ Reasons to imprison:
      • ■ Rehabilitation & individual prevention (says this doesn’t really work, should be programs, but that’s not why ppl should be sent)
      • ■ Incapacitation (“not dangerous”, doesn’t think he’ll do it again)
      • ■ General deterrence: Sending the message that our criminal justice system means business (reason given)
    • United States v. Rannazzisi: Gov meat inspector convicted of accepting bribes from dealers. Reduced from 18 mon to 1 yr
      • ○ Held: Court dropped sentence to one year to help family financially & gave D 4 days off for daughter’s wedding.
      • ○ Is this fair?
    • United States v. Jackson: 30 minutes after being released from prison, D robbed another bank. Had 4 prior armed robbery convictions (3 were bank robberies).
      • ○ Easterbrook: life in prison is justified; specific deterrence failed, so D should be incapacitated
        • ■ Selection of sentence w/in statutory range is essentially free of appellate review
      • ○ Posner: life in prison is too harsh; in 20 years he’ll be old and no longer dangerous, but understands that the law allows this.
        • ■ Robbery is a “young man’s crime”, law of econ--prob of elderly committing is small

Where We Are Today

  • 500% increase in inmates incarcerated in 30 yrs (not bc of population growth)
    • ○ War on drugs increased rate
    • ○ Violent crime rates have gone down
  • Victim Impact Statement or Testimony
    • ○ Used to not be allowed, but now it’s not only allowed, but required at many sentencing hearings
  • Posner’s Optimal Sentence For White-Collar Criminals:
    • ○ White-collar crimes should be punished only by monetary penalties – fines rather than imprisonment.
      • ■ More social revenue by not having this person in jail.
      • ■ Fines are cheaper than imprisonment.
    • ○ System does not discriminate against poor people
      • ■ If the fine can’t be paid, person should go to jail but the fine can be varied based on income.
      • ■ Adverse effects of prison go up w/ income so imprisoning white-collar criminals is more punitive
    • Policy Question: Who decides sentence?
    • Judge: allowed to consider context of case, allows judges to use experience, can compare similar cases, potential for racism/biases, but sentencing guidelines have led to mass incarceration so judges could lessen
    • Jury: binding/non-binding (w/ pre-sentencing reports), represents community, not experienced in the law, too compassionate/too harsh
    • *Legislature: mandatory minimums and grid ranges, only small range allowed, only a small amount of discretion
      • ○ Federal Sentencing Guidelines: restrict discretion w/ sentencing
    • Use a grid to determine amount of time
    • Points system that increases/decreases time
      • ○ Increases time: weapons, prior convictions, drugs, etc.
      • ○ Decreases time: first-time conviction, age, job, etc.
    • Theory is that this evens the playing field, but mandatory minimums have inc rates
      • ○ Mandatory minimums:
        • ■ Judge must sentence mandatory minimums
        • ■ Prosecutor has the power bc it decides which crimes to charge (and whether to bring charges), recognizing that some have higher minimums and others haven’t
        • ■ Has led to a lot of guilty pleas and less trials (D knows that if convicted will get at least 10 yrs (for ex)
          • Within two years of passing the mandatory minimum guidelines, the percentage of defendants who went to trial went from 15% to 3% (“Why the Sentencing Guidelines Should be Scrapped”)
        • ■ Made sentences for regular crimes what they thought was the average length, but increased punishment for white collar crimes
      • Modern trend: less legislation, but not pure discretion
        • ○ Booker (2005): made guidelines discretionary – didn’t change much bc more likely to get appealed; easier to follow guidelines; hesitant to deviate far from what is recommended
        • ○ Formerly, if sentence was within statutory limits there was essentially no review on appeal – states are considering changing this

Parties[edit]

Good Law? Classifications of Parties:''''
OLD Principal in 1st degree At scene and commits at least 1 element of the crime
OLD Principal in 2nd degree At scene, assists, but doesn’t commit elements Lookout, getaway driver
OLD Accessory before the fact Not at scene of crime but aided principal Usually “brains” of operation
GOOD Accessory after the fact Provides assistance after crime is committed.Elements: (1) knowledge of crime; (2) intent to assist; (3) provided assistance **only one that is actually a crime within itself! The rest are not crimes**Harboring known felon, rendering crim assistance, etc.
  • Old way: parties at common law
  • Today: if you help someone commit murder, you’re guilty of murder too!
    • ○ 18 USC §2: abolishes distinction b/w principals and accessories in federal system – all now principals)
      • ■ Makes accomplice liability broader and less technical
        • No such crime as aiding & abetting (accomplice) in federal system
        • To be a party to a crime isn’t a crime...it’s a theory of liability
      • ○ NOTE: when a crime is established to protect that person, that person can’t be charged as an aider & abettor (minor can’t be a party to a statutory rape charge on the theory of aid and abetting for ex)
      • ○ An accomplice can be guilty of a greater crime than the principle when the accomplice’s mens rea is more culpable (higher) than the principal
    • Standefer v. United States (SC): D charged w/ aiding & abetting public official to accept bribes; official acquitted so D moved to dismiss (can’t aid and abet/be accessory without a principal) but was convicted
      • Held:' no longer a distinction between an accessory and a principal (in federal system). Each can be tried separately on their own merits (was a distinction in common law)'
      • ○ 18 USC §2: whoever commits any act constituting an offense defined in any law of the US, or aids, abets, counsels, commands, induces or procures its commission is a principal
      • 3 ways of handling problem when you have separate trials (approaches taken by state - each around 1/3) courts split!!!
        • ■ Standefer approach (see case)
        • ■ If in 1st trial, principal found not guilty, other parties can’t be tried
        • ■ Jury gets told about earlier acquittal, but not bound by it (typically will find not guilty though)

Aiding and Abetting (not a crime, theory of liability)[edit]

  • Act': Need to provide some assistance or encouragement' (some affirmative action); mere words can be enough (LOW requirement)
    • ○ United States v. Garguilo: D charged w/ making a counterfeit bill on the theory of aiding and abetting. Was evidence to suggest he knew what was happening, but unclear whether he assisted.
      • ■ Held: Knowledge/presence at the scene isn’t enough to satisfy the act requirement; D needs to do something to forward the crime.
    • ○ Commonwealth v. Feinburg: D sold new version of Sterno. Knew ppl were consuming it and knew ppl were poisoned by it. Ppl died — never warned anyone. Involuntary manslaughter.
      • ■ Held: A lawful transaction can be criminal if the seller is advised of the illegal purpose of the transaction; reckless behavior only requires conscious disregard of risk, not knowledge that those risks will actualize
      • ■ Note: to be guilty, transaction must be necessary for crime to occur, i.e. “facilitating crime” (ex. Selling dress to prostitute is legal bc it makes no difference to her illegal activity what she wears)
    • ○ United States v. Kelly: Convinced ppl to falsify their tax forms & gave them a lot of info on how to do it. Convicted of conspiracy to defraud the gov’t as an aider & abettor
      • ■ Held: Words can be enough for the act requirement. By aiding the ppl in filling out their tax forms, that was enough. He showed intent by starting the org, passing out materials, etc.
      • Clear and present danger test: speech isn’t protected by the First Amdt if it’s advocating for immediate danger (not future advocacy)
    • Mental state': With the intent' for that the crime act to occur (high requirement –NOT knowledge or negligence)
      • ○ State v. Gladstone: Undercover agent goes to D’s house to buy marijuana. D suggests he go to Kent’s house. Cop goes to the house and seized marijuana. Arrested D for the sale (via aiding and abetting) of the drugs relating to Kent
        • ■ Held: There must be provable connection/”nexus” in order to prove intent for the accused to aid the person who committed the crime
        • ■ To prove--maybe if D had a deal w/ Kent and they were business partners
      • ○ People v. Poplar: 2 ppl broke into a rec center, one of them killed the manager; D was the lookout. Convicted of breaking & entering & w/ assault to commit murder.
        • ■ Held: Scope of responsibility: D is liable as a principal for the natural and probable consequences of his crime (reasonably foreseeable); once intent to commit the crime formed, lower state of mind is necessary to prove other related crimes during act
        • ■ Guilty of assault w/ intent to murder bc it was reasonably foreseeable that this other crime would occur
          • Proved w/ circumstantial evidence: knew about the gun and the burglary so could infer it’s reasonable that he knew they could be used
        • Exception
          • ○ Regina v. Tyrell: underaged girl convicted of aiding & abetting older man to have sex with her
            • ■ Held: an individual cannot be a party to a crime if the statute is designed to protect them

Withdrawal: some states have a withdrawal statute, but it isn’t part of the CL[edit]

  • Elements:
    • ○ Physically abandoned crime
    • ○ Communicate withdrawal to other parties
    • ○ Needs to occur before the crime has been committed
    • ○ Need to undo what your assistance did in the first place (call the cops)
    • ○ Renunciation needs to be in good faith (can’t renounce bc police are on the way)
  • State v. Formella: kid serves as lookout; decides what he’s doing is wrong & just leaves the scene.
    • ○ Held: No valid withdrawal defense
      • ■ Didn’t take steps to notify others
      • ■ Didn’t dissuade others from committing crime
      • ■ Didn’t call cops
    • ○ Charged with theft on theory of aiding & abetting

Rape / Sexual Assault (used more today)[edit]

  • Elements (Note: low state of mind/high act requirement)
    • ○ (1) sexual penetration
    • ○ (2) by force OR threat of force OR coercion/fraud OR helpless/incapacitated victim
    • ○ (3) *consent?
      • ■ Subjectively: Victim has to believe that there will be forced intercourse / that she’s not consenting
      • ■ Objectively: needs to be an objective view of whether the threat of force generally
      • ■ People v. Iniguez: D raped on her wedding night. D says she didn’t resist.
        • Held: Convicted. Reasonable (both subjective and objective) fear of force is sufficient
        • Elements of fear of immediate/unlawful bodily injury
          • ○ Subjective – did victim genuinely entertain fear sufficient to induce submission?
          • ○ Objective – was fear reasonable under the circumstance?
        • Substantial evidence of genuine fear of immediate injury
          • ○ Expert testimony: frozen in fright
          • ○ Fear was reasonable: feared being hurt further if resisted
        • ■ Commonwealth v. Caracciola: Man pretending to be a cop made victim to have sex w/ him — she did bc she feared if she didn’t he would arrest her
          • Held: force needed for rape may, depending on the circumstances, be constructive force, as well as physical force, violence, or the threat of bodily harm
          • Pretending to be a cop, having a gun, fear of arrest — was enough here

Policy Issues w/ Rape Crimes:

  • Common Law Definition of Rape:
    • ○ Intercourse (any penetration, however slight)
    • ○ By a man against a woman, not his wife (not in any statute now)
    • ○ By force or threat of force
    • ○ No consent
      • ■ Burden was on the government to prove that there was no consent
      • ■ Historically, had to prove she used enough resistance to determine that rapist put forth significant force; case turned on credibility of victim (victim put on trial)
      • ■ Not realistic: often would result in far more serious injury
    • State in Interest in MTS (NJ): outlined problems of how the crime is prosecuted:
      • ○ “Use of force”: instead of just requiring the force, had to show that the victim did in fact resist; put victim on trial
      • ○ Uncorroborated testimony not accepted — not true w/ robbery, murder, etc.
      • Consent: gov’t needs to prove lack of consent beyond a reas. doubt so there’s lots of focus on the victim & his/her actions
    • Reforms:
      • ○ Gender-neutral statutes to include men/same gender
      • ○ Elimination of the spousal exemption — still some restrictions on how long you can report the crime w/ this though. In many jurisdictions, need to prosecute w/in 30 days.
    • Other reforms:
      • ○ Reasonable person stnd
      • ○ Force — don’t have to fight to the death to prove there wasn’t consent
    • 2012 FBI definition: “the penetration, no matter how slight, of the vagina or anus with body part or object, or oral penetration by a sex organ of another person, without the consent of the victim”
      • ○ 7% reporting increase after definition change
    • MPC Draft [not yet reformed]: crime of “sexual penetration against the will if they engage in sexual penetration and know or recklessly disregard a risk that the other person has [not consented]” - will likely not be adopted
      • ○ Most controversial element w/ this is the issue of consent.
        • ■ Should you get rid of it?
        • ■ Is verbal consent the only way to prove consent?
      • Example of more modern definition **without consent**
        • ○ Forced intercourse
        • ○ On another
          • ■ **don’t need to include consent — D can raise the idea as an affirmative defense, which puts burden on the victim to prove** - law in some states
        • Most under-reported crime:
          • ○ Stigma
          • ○ Common law history (victim would need to “prove” claim)
          • ○ Victim typically knows the individual
          • ○ Difficult to prove (one vs. the other)
          • ○ Power disparities
          • ○ Maybe consented to some actions, not others
        • How to solve this problem?
          • ○ Punishment — mandatory minimums
          • ○ Actually test rape kits
          • ○ Shield statutes: limit what ?s can be asked during trial
            • ■ Generally can’t ask about sexual history (sanctionable). Unless relevant (past sexual history w D)
            • ■ Probative vs. prejudicial evidence
          • ○ Statute of limitations — typically 3-5 yrs, maybe expand to when ppl are out of the position of authority
          • ○ Manner of dress shouldn’t be considered
            • ■ Probative vs. prejudicial considerations

Homicide[edit]

  • ELEMENTS (not a crime):
    • ○ Unlawful
    • ○ Killing
    • ○ Of another human being
    • ○ By the D

When does life end?

  • State v. Fierro: Mex mafia left the victim brain dead; AZ statute didn’t define what death was
    • ○ Held: Convicted. Died at “brain death” (circulatory + respiratory or entire brain) not at last breath. Brain stem death proximately caused by bullet (not doc that pulled plug)
      • ■ Since no statute, went to the CL — didn’t work. So went to the uniform Brain Death Act
    • ○ CL definition: the cessation of life; the ceasing to exist; defined by physicians as a total stoppage of the circulation of the blood, and a cessation of the animal and vital functions consequent thereon, such as respiration, pulsation, etc.
    • ○ Uniform Brain Death Act: “for legal and medical purposes an individual who has sustained irreversible cessation of all functioning of the brain including the brain stem, is dead.”
  • Year and a Day Rule: required death occur w/in a year and a day of the causing factor
    • ○ Initially done to prove causation; but difficult w/ life-support technology
    • ○ Used to be the majority rule; now the minority rule

Assisted Suicide – both constitutional arguments rejected

  • Washington v. Goldberg: P, doctor, brought suit against state (Was.) alleging he would have assisted terminally-ill patients in ending their lives if not for Washington’s ban on assisted suicide.
    • ○ Held: Right to physician-assisted suicide is not a constitutionally-protected liberty interest under the Due Process Clause; so statute is constitutional (state can decide, but not expanding the constitution here)
    • ○ Policy: state has an interest in preserving life — protecting vulnerable groups, protecting medical profession, slippery slope argument
    • ○ Says should be for states to decide
  • Vacco v. Quill: NY permits competent person to refuse life-sustaining med treatment, doctors argue refusal of such treatment is “essentially the same” as physician-assisted suicide, so NY’s assisted suicide ban violates Equal Protection Clause
    • ○ Held: 2 are different so doesn’t violate Equal Prot Clause (intention — stopping useless treatment that allows patient to succumb to the disease vs. intending death)
  • 6 states have passed legislation allowing this in last 20 yrs

When does life begin?

  • Keeler v. Superior Court: Pregnant victim, killed fetus (96% viable); murder conviction.
    • ○ Held: Not murder. CL defines murder of a fetus only after baby is quickened (born alive); the court is bound by the law – no ex post facto just because D did something legislature didn’t plan for [can’t enlarge def. without violating due process]
    • ○ Dissent: CL presumed that baby would be born dead; medicine has advanced and so should our definition of murder; D could have foreseen this to be considered murder
    • ○ Note: Many legislations have now adopted feticide statutes, making it a separate crime (some have specific time frames); some added “or a fetus” after human being
      • ■ Roe v. wade pre-empts issue of legal abortions
      • ■ ISSUE: how far along to be considered feticide? 8 weeks?

Murder[edit]

Mens Rea needed for Murder (need act - killing + mens rea + causation + harm/damage)

  • 'First degree murder - no 1st deg at CL (25-life)'
    • ○ 'Intent to kill (see malice section)'
    • Premeditation & deliberation to take someone’s life (not for great bodily harm--2nd degree)
      • ■ Austin v. United States: after drinking D stabbed victim 26 times; drew tic tac toe on pelvis and dragged to river.
        • Held: Just because there was 30 minutes of time does not mean that he actually deliberated during that time. (FAILURE OF PROOF)
        • No motive for the crime; knife had other purposes.
        • Dissent: There was evidence of deliberation based on the multiple stab wounds and the fact that the killing took a while.
        • Violence can’t show premeditation alone - could have also been an impassioned and impulsive frenzy
        • Issue: can jury use circumstantial evidence above to prove premeditation?
          • ○ There’s a split in the courts on this issue.
        • How long for premeditation? Seconds? Minutes? “Appreciable time”?
      • ■ Hypo: D and his friend get into an argument in the defendant’s home, D goes downstairs, gets a gun, and kills his friend.
        • Decision: as a matter of law, it wasn’t first degree murder
      • ■ Hypo 2: D gets into a fight in a kitchen, walks 1 block home, gets gun, and goes back to kill the person. Is this first-degree murder?
        • The majority of jurisdictions would allow the defendant to be charged with first degree murder because of the time the defendant had time to plan the killing, but Leventhal ruled it was second degree murder.
      • ■ Example 3: In a bar, the defendant and victim get in a fight, D grabs his gun out of his pocket and shoots someone. The Kansas Sup. Ct. still ruled it was first-degree murder.
    • Corpus delicti: bring forth the body
      • ■ People v. Scott: D’s wife disappears, cancels her appointments, lies to friends; glasses in ashes
        • Held: circumstantial evidence proves murder when it’s the only reasonable conclusion
      • ○ Premeditation transfers! (transferred intent)
    • 2nd Degree Murder: Malice aforethought (20-25 yrs)
      • Intent to kill
        • ■ State v. Myers: D beat V told her to jump in river; she did, screamed for help and drowned while he watched; tide was high and she couldn’t swim; murder conviction
          • Held: Circumstantial evidence (prior acts) can prove intent
          • 3 kinds of acts to prove state of mind:
            • ○ Prior acts (used to show animosity toward her)
            • ○ Acts during crime
            • ○ Subsequent acts (left, didn’t try to save her)
          • ■ Transferred Intent: Intent can transfer
            • D shoots at X, accidentally kills Y.
              • ○ If intent to kill as to X, still intent as to Y.
              • ○ Would be convicted of attempted murder of X AND murder of Y
            • Intent to inflict great bodily harm
              • ■ Most “great bodily harm cases” - evidentiary problems minimal bc attack made w/ a deadly weapon such as a gun or a knife. BUT can also use:
                • Size/strength disparity
                  • ○ adults/children, younger/elderly
                • Other circumstantial evidence
              • ■ State v. Thompson: D stole from church; fought w/ priest; struck priest 2x tw after he fell; dies of blood loss.
                • Held: Punching the priest 2x when he was down was enough to prove intent to commit great bodily harm (not just fighting bc he wanted to get out of church/defense)
                • Used acts during crime / subsequent acts
              • ■ People v. Geiger: D confronts estranged wife at the bar; knocks her unconscious (only hit 2-3x) and puts her in the back of car; gets help from friend and money from boss; drives 186 miles to hospital; pronounced dead.
                • Held: Intent proved through subsequent actions (knock unconscious, fail to seek medical attention for extended period of time); injuries alone here not enough to prove intent.
                • Reasonable inference between assault and vomiting (cause of death).
              • Recklessness / Abandoned and Malignant (or Depraved) Heart
                • ■ ELEMENTS:
                  • Conscious disregard of a risk to human life
                    • ○ Subjective: needs to know
                    • ○ Objective: behavior risks human life
                    • ○ If only objective then it’s negligence
                  • That resulted in death
                • ■ People v. Knoller: 2 of Ds dogs killed victim. Received many warnings about dogs and had 30+ incidents before killing.
                  • Implied malice requires a D’s awareness (subjective) of engaging in conduct that endangers the life of another (objective)
                • ■ Commonwealth v. Bowden: D injected himself, then friend, w/ heroin. Friend died.
                  • Held: Heroin is dangerous, but under Knoller no conviction bc no subjective knowledge bc had done similar dosages before.
                  • Courts split on drug cases like this
                • ■ State v. Hemphill: D shook his baby daughter and said he thought she was choking. Court charged him with second-degree murder.
                  • Court convicted him of 2nd degree murder because implied malice does not require actual intent to kill someone.
                  • The defendant acted with gross recklessness (malignant heart) with a disregard the danger to human life - aware of tremendous risk of shaking a baby (ct saying that maybe in this case should be slightly more objective)
                • ■ If the D was drunk, swerved car and killed someone else, would also be murder - Pears v. State - aware of the dangerous nature of his driving
              • Felony murder
                • ■ Need to prove (1) that the underlying crime occurred (all elements, intent, etc.), (2) murder occurred during the course of the felony
                  • Don’t need to prove mental state - some cts have gotten rid of this
                    • ○ Marcus: Do not need felony murder. You can just get the person for murder without it. Only makes the government’s job easier to charge the D.
                      • ■ S. is the only country that continues to use this.
                    • Some legislatures define which crimes apply (sexual assault, robbery, etc.)
                    • But some don’t...or just say “inherently dangerous to human life”
                  • ■ Purpose: deter felons from killing negligently or accidentally by holding them strictly responsible for killings they commit; easier to get a conviction
                  • ■ Which underlying crimes? (first look at statute à if not defined, either abstract or specific circumstances test)
                    • People v. Howard: Officer tried to pull D over, had to chase D. Car kept going, ran red light, collided w/ another car
                      • ○ Felony of driving recklessly while fleeing a pursuing officer is not an inherently dangerous felony for the purpose of the rule.
                      • ○ w/o felony murder, could try under gross recklessness
                      • ○ The felony needs to be inherently dangerous in the abstract.
                    • Compare this approach (Cal approach) w/ Maryland approach (Fisher v. State): look specific circumstances to determine whether felony was dangerous/violent
                  • Merger doctrine (46 states):''' if felony is the kind of felony that would necessarily lead to death and ends up leading to death, can’t use felony murder rule
                    • Different felonies merge: majority merges battery and homicide
                      • ○ But keeps/protects crimes like assault from ending solely in murder
                      • ○ So could be charged w/ robbery and felony murder
                    • Without merger doctrine, FM makes murder way too easy to prosecute
                      • ○ Barnett v. State: D shot gun into crowd from car killing V; argued not independent from murder (maybe thought prosecutor wouldn’t be able to prove intent to commit underlying felony)
                        • ■ Held: no merger doctrine in OK; 2nd degree conviction upheld
                      • ■ During the Commission of a Felony
                        • People v. Johnson: D robbed men; lost control of car 30 min later while driving to airport, killed victim
                          • ○ Held: D hadn’t reached place of temporary safety (objective) so felony ongoing
                          • ○ If the robbery was over when the killing occurred, the court could not apply the felony murder rule
                        • City Park, Denver case: met to divide loot months later; said felony still ongoing
                        • Commonwealth v. Legg: shoots someone, and then decides to take the victim’s things after. Was this felony murder? No, the felony has to occur before the killing.
                        • State v. Maudlin: Defendant was a drug dealer, sold heroin to a friend, but didn’t inject him, and then left. Victim injected himself with heroin & died
                          • ○ Held: No felony murder; death didn’t occur in course of felony
                          • ○ BUT COURTS SPLIT:
                            • ■ Dealer sells drugs which cause someone to die—FM (strictest approach)
                            • ■ If the seller is still present and the victim dies—felony murder
                            • ■ Only if seller has some awareness of risk (least strict approach)
                          • ■ The Extent of Responsibility - Causation? What if the defendant wasn’t the shooter?
                            • Jackson v. State: robber takes hostages; officer doesn’t know & kills a hostage. Charged D w/ felony murder (felony: armed robbery). But officer caused death…
                              • ○ Test in Maryland to determine whether D should be found responsible for felony murder when someone else is the shooter?
                                • ■ “Actual cause, but for” test
                                • But for the antecedent conduct, result would not have occurred

More Strict Less StrictMD Tex./Cal. Pennsylvania“But for” Foreseeable (majority) only if D is shooter

  • In Maryland, he would have been convicted (but for the robbery…)
  • In Pa., he wouldn’t have been convicted (he didn’t pull the trigger)
  • In Illinois, which employs the foreseeability rule, argued that a death was foreseeable because robbing a liquor store is inherently dangerous

Manslaughter[edit]

Voluntary Manslaughter[edit]

when the act is committed with a real design and purpose to kill but through the violence of sudden passion (no cool head, but passion can rekindle), occasioned by great provocation (objective)

  • Intentional killing
    • Otherwise murder
  • Sudden
    • ○ Proxy to show you’re still under the sway of the emotion
    • ○ People v. Berry: taunted husband into jealous rage over 2-wk pd. Had a 20-hr cooling off pd
      • ■ Not exactly sudden, but ct used circumstantial evidence to prove state of mind
    • Adequately legal provocation that would cause a reasonable person to kill
      • ○ Objective (great provocation) + Subjective (genuine belief/passion)
        • ■ Would incite a reasonable person to act rashly & kill someone
      • ○ People v. Najera: victim called D a jota (faggot). Started fighting, D killed victim.
        • ■ Held: “mere words” insufficient to cause average person to lose reason under obj standard
        • ■ Didn’t allow expert witness to testify about how insulting that word was in the community
          • More you bring in, less objective - majority of cts would rule this way
        • NOT AN AFFIRMATIVE DEFENSE: SEPARATE CRIME THAT GOV HAS TO PROVE BEY REAS DOUBT
          • ○ Burden of production: Here D is required to offer some legitimate evidence to raise the issue
            • ■ Need to offer some credible evidence (not prove, but something)
          • ○ But due process requires the prosecution prove the absence of the heat of passion /sudden provocation beyond a reasonable doubt
        • BUT…
          • ○ State v. Faulkner: D got into a fight w/ 2 brothers; believed one of them was armed w/ a knife so he fired a handgun and shot the other brother twice in the chest as he tried to push his brother out of the way. Wanted imperfect self-defense instruction (subjectively good/objectively wrong)
            • ■ Held: imperfect self-defense, if allowed (which it was for this case in Maryland), can negate malice and drop charge from murder to manslaughter
            • Minority of states allow imperfect def (sub, not obj) - drops murder to vol manslaughter
            • Maj': if you have subjective, not objective, you’re going to jail for murder'
            • ■ Important for states w/ mandatory minimums
          • Critiques
            • ○ Many countries have gotten rid of this
            • ○ Encourages violence
            • ○ Tends to be men committing violent crimes against women, tends to be sexual in nature

Involuntary Manslaughter (4+ yrs)[edit]

  • Reckless or gross negligence
    • ○ Recklessness: subjective awareness of risk that an ordinary person wouldn’t take
    • ○ Commonwealth v, Welansky: Boston nightclub case
      • ■ Held: intentional (willful) failure to take care for the safety of business visitors constitutes reckless disregard of substantial risk and a gross deviation from normal behavior
    • Duty to Act
      • ○ Commonwealth v. Konz: D (wife) and guy had prayer pact with diabetic religious professor. Didn’t have to seek medical attn for spouse.
        • ■ Held: Duty to act doesn’t exist between spouses bc don’t generally suffer the same incapacity as do children w/ respect to the ability to comprehend their states of health and obtain medical assistance.
        • ■ Such a duty would also impose an obligation when the spouse chooses not to receive assistance
        • ■ Under Cal. elder abuse statute would be convicted
      • How to distinguish btwn this and 2nd deg murder (gross recklessness) How to make distinction
        • ○ Cardozo view: difference of degree, but come out similar under Cardozo view
          • ■ Involuntary manslaughter is a lesser included offense to 2nd degree murder except there’s an added element of gross recklessness, instead of recklessness
          • ■ Issue: juries don’t know about sentences when they sentence
        • ○ Distinction is important when you have mandatory minimums; not as important when judges have discretion
        • ○ Commonwealth v. Woodward: “Boston nanny” shaking baby case. Charged w/ 2nd deg murder. Jury convicted. judge reduced it to involuntary manslaughter.
          • ■ Held: okay here, but should have given correct instruction in first place
          • ■ Def didn’t want instruction bc thought she would be found not guilty under 2nd deg murder
          • ■ Opp of OJ Simpson case (tried for 2nd deg, would have been guilty of invol mansl)
        • Negligent homicide (2-3 yrs)
          • ○ Should have known it would lead to death
          • ○ Minor; In many jurisdictions it’s a misdemeanor, not a felony
          • ○ Usually in connection w/ vehicular accidents
          • ○ It’s typically prosecuted as a higher crime, allowing a party to plead down to a lesser crime

Causation[edit]

Need cause in fact and proximate cause

  • Actual Cause / Cause-in-fact': but for D’s act, would have been no death'
  • Proximate Cause': as a matter of policy, should we hold person responsible? (cut-off point)'
    • ○ Foreseeability (are events close enough?)
    • ○ Ex: As someone’s walking to car, D shoves her. Then she gets up and a branch falls on her.
      • ■ But for the shove…
      • ■ But not foreseeable, so no prox cause, no crim responsibility for death
    • ○ Commonwealth v. Root: D & V racing on highway. D leading, road narrowed. Victim tried to pass, hit by oncoming truck. Was D’s involvement prox cause of death?
      • ■ Held: Victim’s subsequent act superseded the original conduct of the D because he assumed the risk of drag racing.
    • ○ BUT THE COURTS ARE SPLIT (50-50)
      • ■ When 2 ppl engaged in crim behavior and one of them dies as a result of crim behavior
      • ■ Many states would disagree w/ Root and would have convicted D
    • ○ Commonwealth v. Atencio: Russian roulette
      • ■ Manslaughter conviction affirmed here.
      • ■ Also' split in Russian Roulette cases - ½ would prosecute on invol mansl, ½ wouldn’t (like Root)'
    • ○ Commonwealth v. Hicks: D attacked the deceased, not inflicting serious harm. Turned out that the deceased suffered from a serious, pre-existing heart disease—had acute cardiac failure and died.
      • ■ Eggshell rule in criminal law
      • ■ Would also be murder/manslaughter in crim law bc caused death
    • ○ Brackett v. Peters: D raped & beat 85 yo widow. She became depressed, not eating. Couldn’t insert feeding tube, dies choking.
      • ■ But for...test satisfied
      • ■ Prox cause: the event made the act more likely (attack caused issue w/ trachea)
      • ■ Would be different if a fire in the nursing home caused death - then not guilty
    • 1 dead 2 killer rule
      • ■ A hates boss. She tells one of her friends she’s going to kill boss. Gets poison, puts poison in lunch. But then friend decides to shoot him before he eats lunch.
        • Even when not acting jointly, can get convictions for both of them on murder

Capital Punishment[edit]

Constitutionality

  • Unconstitutional when applied arbitrarily
    • ○ Furman v. Georgia: Struck down GA DP statute bc it lacked procedural safeguards
      • Unconstitutional when applied arbitrarily
      • Jury was given free will to determine life imprisonment / capital punishment
      • Ct says need to do more than that → leads to arbitrary decisions
    • ■ Court does not address general constitutionality argument here.
  • Not unconstitutional under all circumstances
    • ○ Gregg v. Georgia – SC upheld revised GA statute; death penalty not unconstitutional
      • ■ Standards of public decency; has been around a long time; jury as link between punishment and community values.
      • ■ Reserved for “most heinous” crimes
      • ■ Procedural safeguards added:
        • 'Aggravating factors: have to be unanimous in finding one of these (w/ a felony, etc.)'
          • ○ Jury gets this
        • 'Mitigating factors: can consider any raised: age, proof of racial prejudice, mental capacity, etc.'
      • Handful of cases where it is categorically unconstitutional:
        • ○ No DP if no one is killed
          • ■ No death penalty for rape of a woman, rape of a child
        • ○ Nature of the defendant: insane, under 18, intellectually disabled (Atkins v. Virginia)
          • Coker v. Georgia (1977): unconstitutional given nature of crime (rape of an adult woman)'
          • Emmund v. Florida (1982): death sentence unconstitutional for co-defendant in felony murder case absent showing D’s culpable mental state'
          • Kennedy v. Louisiana (2008): unconstitutional to execute for rape of a child'
          • Ford v. Wainwright (1986): unconstitutional to execute an insane person'
          • Thompson v. Oklahoma (1988): unconstitutional to execute individual under 16 yrs old'
          • Atkins v. Virginia (2002): unconstitutional to execute an intellectually disabled person'
        • ○ Roper v. Simmons: 17-year-old breaks into house, kidnaps woman, and throws her over a bridge
          • No DP for juveniles – consider mental/cognitive development, no other country does
          • Dissent – shouldn’t have hard line rule (arbitrary), rather case by case basis.
        • Arguments for / against
          • ○ 8th Amendment: “cruel and unusual punishment”
            • ■ Amendment must draw its meaning from evolving standards of decency that mark the process of a maturing society
            • ■ Majority of ppl support it so therefore not cruel and unusual
              • Right now 50-50 on death penalty, but majority choose life imprisonment w/o parole over death penalty by large %
            • When considering death penalty at sentencing stage can consider…
              • ○ Prior history, character testimony, victim impact statement (very powerful against D)
            • Capital Punishment Policy
              • ○ Unclear whether it actually deters
              • ○ Death-eligible jurists
                • ■ Can’t have someone on jury who would never give death penalty or someone who would always give death penalty
                • ■ Given that actual pop is 50-50, pop here more likely to impose death penalty
              • ○ Can take a long time to execute
                • ■ 8-10 yr avg
                • ■ Appeals process, stays of execution, habeas corpus
                • ■ Clemency request
              • ○ In many cases, serious ?s of mental capacity
              • ○ Equal Protection problems
                • ■ If victim is white (female) → more likely to be convicted than if victim is of another race
                  • SC rejected this argument bc no purpose of discrimination
                • ■ Geographic equal protection. Not applied evenly across country.
                  • Much more likely in certain spots (more in 1 county in Tx than rest of Tx)
                • ■ More expensive than imprisonment…
              • Recommendations for Reform
                • ○ More discovery
                • ○ Post-conviction forensic testing
                • ○ Regulate forensic labs
                • ○ Eyewitness identification training
                • ○ Deal with racial discrimination
                • ○ No DP in FM cases
                • ○ LWOP instead of DP
                • ○ Ensure effective counsel
                • ○ Better standards for intellectual disabilities

Inchoate Offenses--Solicitation[edit]

  • 3 inchoate crimes: Solicitation, attempt, conspiracy
  • Each of 3 requires intent - highest state of mind
  • If crime is committed, guilty of the crime under the theory of aiding and abetting
  • No crime committed so require a high state of mind

Solicitation: many involve undercover officers

  • Intent
    • ○ People v. Latsis: about constitutionality of statute; “what quantum of evidence is sufficient to demonstrate criminal intent” [vagueness]
      • ■ Held: “And under circumstances strongly corroborative of that intent” relates to the burden upon the prosecution to present enough evidence to demonstrate that the accused acted w/ intent to promote or facilitate the commission of a crime
      • ■ Protects ppl who may have been innocently motivated or done in jest (up to jury to decide)
      • ■ Many jurisdictions got rid of this lang from MPC
    • ○ People v. Rubin: Jewish leader protected speech case over Blues Brothers nazi gathering threat (not protected 1st amendment speech)
      • ■ Held: was enough to find intent (said he was serious, offered money, on TV); should go to jury
      • ■ NOTE: First Amdt doesn’t apply according to Brandenburg Test
        • Doesn’t apply if lawless action is (1) imminent (proximity), (2) likely (degree)
      • ○ United States v. White: calls for assassination of a juror on a white supremacist cite. Argues wasn’t really serious/protected speech
        • ■ Held: was solicitation; did have intent
        • ■ Forum made more likely; Brandenburg test - clear and present danger bc that audience more likely to carry it out
      • encourages/urge/requests crime
      • Crime complete once the solicitation is committed; crime doesn’t need to be committed
        • ○ People v. Gordon: wanted to frame political opponent w/ cocaine. Confirms there will be payment, but then she backs out. D says she withdrew.
          • ■ Held: The offense of solicitation is complete when it’s made, and it’s immaterial that the object of the solicitation is never consummated, or that no steps are taken toward its consummation
          • ■ Saying the crime wasn’t successfully committed is no defense.
          • ■ See withdrawal exception
        • Withdrawal: 'No CL withdrawal defense bc crime is complete, but some states however, do allow for successful withdrawal from the solicitation, following the lead of the Model Penal Code:'
          • ■ Affirmative defense (some states say D has to prove, some say gov has to prove) – see elements!
          • ■ Only works if after soliciting other person to commit a crime, persuaded him not to do so or otherwise prevented the commission of the crime, see other elements
        • If you encourage someone in state X to commit crime in state Y, can still be prosecuted in state X
        • Merger:
          • ○ If you’re the government may want to allege both
          • ○ But if trier of fact finds greater offense, the lesser offense goes away and gets “consumed” by the greater crime--it simply goes away bc the elements of attempt to rob are only less than actual robbery
          • ○ If you solicit someone to commit crime and person commits crime, you’re party of robbery, solicitation is subsumed

Attempt[edit]

ELEMENTS

  • INTENT (higher)
    • ○ Ex: can’t have attempted murder for throwing wood out window where ppl passing bc no intent (would be gross recklessness)
    • ○ To prove intent, can use circumstantial evidence:
      • ■ Knows person, fought w/ person? Surroundings
    • ○ Thacker v. Commonwealth: drunk, shooting into tent in the middle of night trying to hit a light
      • ■ If someone died would be 2nd deg murder - gross recklessness, but no one died so no attempt
    • ○ State v. Casey: Domestic; misfire, shot at feet, pointed gun, V jumped out of car, D shot again
      • ■ Held: MAJORITY RULE: must have intent for attempted murder conviction (judge instructed “knowingly” but should have instructed “intentionally”);
      • ■ MINORITY RULE: MPC and some states allow “knowingly”
    • 'Act (lower): Overt act toward the commission of that crime which falls short of completing the underlying crime'
  • Slight Acts Test
    • ■ Cal test
    • ■ Buying weapon would be enough (if clear intent); not enough under substantial step test
  • Substantial Step: look at what has been done, not about what is left to do (clearly illus in Mahboubian)
    • ■ Sometimes cts can have trouble applying this
      • United States v. Joyce: reverse sting, gov tries to sell to someone else, agree to a price, comes to get it, has 20k in case, but he backs out before sale’s complete
        • ○ Said he wasn’t guilty of attempt; was supposed to use the substantial step test, but seemed to have used the dangerous proximity test
      • People v. Brown: pop bottle thieves in back alley
        • ○ Held: Mere presence at an inappropriate place isn’t sufficient to prove an attempt even if it is established that D had criminal intent
        • ○ Said acts didn’t put him in “dangerous prox” even though used sub step test
      • ■ United States v. Lee: creepy pedo talking w/ “mother” online about young daughters; arrested after receiving sexually explicit photos
        • Looked at totality of circumstances to show he did take a substantial step toward crime
      • Dangerous Proximity
        • ■ People v. Mahboubian: Case involving staged theft of Persian antiquities, w/ objective of recovering $18.5M in insurance proceeds. Stole goods, arrested. Hadn’t yet done anything w/ the insurance part. Charge for the grand larceny? (burglary is clear) (“dangerously close”)
          • Held: the act need not be the final one; the necessity of further steps for completion of the crime & possibility of withdrawal are factors to be considered in evaluating whether conduct has come “dangerously close” to success, but not dispositive
          • Dissent: majority focuses on what has been done; we should focus on what remains (statute just says “conduct which tends to affect the condition of the crime”)
          • Problem: the court interpreted the statute both in dissent and majority in way different than written
        • *some jurisdictions: goal crime wasn’t completed (CL - not an issue now)
          • ○ Lightfoot v. State: 2 guys hold up a laundry mat and take $90; charged with attempted robbery
            • ■ Held: failure to consummate the crime is not an indispensable element of attempt; when D is charged of the greater offense & attempt but acquitted of the greater offense, attempt conviction may stand
            • ■ Ct dropped 3rd element bc don’t want to people to get off because they were successful in their crime.
          • 'Attempted involuntary manslaughter? No, invol mansl is “unintentional” by def'
          • Attempted voluntary manslaughter?
            • ○ CL says no, most jurisdictions say yes
            • ○ Would be 2nd deg murder except for heat of passion
            • ○ Can intentionally commit voluntary manslaughter: person doesn’t die
          • Attempted felony murder?
            • ○ Courts are split
              • ■ No intent in felony murder
              • ■ If intent to commit felony, should count as intent for felony murder
            • When can solicitation be attempt?
              • ○ Not an iron clad rule that solicitation can never be attempt
              • ○ Solicitation can be attempt when the person does everything needed on his end for other person to commit crime
              • ○ Ex: A only solicits B; B tells cops: A only guilty of solicitation
              • ○ Ex2: A solicits B; B shoots C; C is injured, doesn’t die: A & B guilty of attempted murder (B under aiding and abetting), and conspiracy
                • ■ Wouldn’t charge B w/ solicitation; just as a party

Abandonment[edit]

  • ○ Check whether there’s enough to get on attempt
  • ○ Check jurisdiction - not all states have a def of abandonment/withdrawal
  • ○ Then check test see withdrawal elements
  • ○ See who has burden of proving it
    • ■ ½ say burden on D; other ½ says D has burden of prod and gov has to prove negative
  • ○ Was test satisfied
  • People v. Staples: D rented office space above bank, drilled hole into floor. Didn’t do much else.
    • ○ Held: Once the acts of the perpetrator have reached such a stage of advancement that they can be classified as attempt, there’s no abandonment
  • BUT some states do have withdrawal statutes / follow MPC
    • ○ Minnesota statute: it’s a defense to a charge of attempt that the crime wasn’t committed bc the D desisted voluntarily and in good faith and abandoned the intention to commit the crime
      • ■ Doesn’t count if scared by law enforcement, for example

Impossibility[edit]

  • Can make a good argument either way
  • Several approaches to consider:
    • ○ Look at how dangerous the person is
    • ○ Think of a statutory fix
  • Lady Eldon lace case: tried to smuggle Fr lace into Eng. Was actually Eng. lace.
    • ○ Factual: only failed bc of something unknown to her
    • ○ Legal: took step but what she did wasn’t a real crime so should go free
  • Factual impossibility: is not a defense to an attempt crime; “conduct where the objective is proscribed by the criminal law but a circumstance unknown to the actor prevents him from bringing it about.” - Ex. pick pocket picks an empty pocket.
  • Legal impossibility: occurs where intended acts would not amount to a crime even if completed; is a defense to an attempt crime; abandoned by MPC
    • ○ People v. Dlugash: D shot victim after he was dead; convicted of attempted murder
      • ■ Held: a person can be convicted of attempting to commit a crime even though, if effected, it would not actually constitute a criminal offense
    • MPC: ...if he purposefully engages in conduct which would constitute a crime if the attendant circumstances were as he believed them to be
      • ○ Marcus doesn’t think they got rid of legal/factual impossibility issue
      • ○ Legislative fix: Whoever buys stolen goods is guilty of the crime, and if goods aren’t stolen, still guilty if he believes they were stolen
        • ■ Many jurisdictions adopting this
      • 3 types of cases – also consider entrapment!!
        • ○ Undercover white collar case. Fake docs given to person. Attempt?
        • ○ Drug dealing cases
          • ■ Drug stings - in many cases use fake drugs now
          • ■ Commonwealth v. Henley: Jewelry store owner accepted he believed were stolen goods.
            • Held: impossibility (factual/legal) is no defense if the completed offense could have occurred had the circumstances been as the accused believed them to be
          • ■ S. v. Oveido: D distributing “heroin”/procaine Hchl (legal); “trying to rip off agent”
            • Held: to be guilty of attempt the objective acts performed (without considering intent) must be criminal in nature. The acts should be unique, not legal/commonplace, to protect the otherwise innocent
            • Note: WRONG; should have been convicted; legal impossibility & factual problem (only failed because wasn’t actually heroin) could be fixed with this jury instruction: (1) Intent (2) Substantial steps (3) Belief of a substance by either buyer/seller to be illicit drugs
          • ○ Undercover ops on internet. Usual sex/drug crimes.
            • ■ People v. Thousand: D met someone he thought to be a teenage girl. Sent her nude photos and invited her to have sex. At meeting place was arrested.
              • Mich SC upheld conviction for attempted distribution of obscene materials to a minor.
              • Held that statute didn’t allow for an impossibility defense.

Policy things:

  • Which act requirement to implement?
    • ○ Some states have a lower act requirement bc want to be able to stop crime as soon as possible
    • ○ Some use dang prox stnd (smaller #) bc want to make sure ppl really are committed to the crime before they’re convicted
    • ○ Most are in between
  • Sentencing for attempt
    • ○ MPC: will be sentenced as if the crime was completed, unless very likely to have occurred
      • ■ Most states don’t follow this
    • ○ As you get further from crime, harder to justify sentence
    • ○ A lot of states do 50% of whatever the completed crime is

Merger: attempt merges into the greater offense

Conspiracy[edit]

Conspiracy: an agreement between 2+ persons to commit a crime (+most states have an overt act requirement!)

  • 2 states of mind
    • ○ Intent to agree
    • ○ Intent to commit at least one crime
  • The mental state (intent to agree, intent to commit a particular crime)
    • ○ Agreement can be formed in an instant
    • ○ Agreement can be tacit if jury could find that it was enough
      • ■ Circumstantial evid important (relationships, conduct before/after)
      • ■ Agreement can be near instant
    • ○ People v. McChristian: Police stopped & searched a leader of gang & 4 others who were in his car. Drove to area, revved engine. Ppl including D came out saying “Ds!” D and others shot at gang leader’s car
      • ■ Held: Not enough evidence to prove that Ds had an intent to form an agreement; just ill will. Evidence that they were in a rival gang and spoke to each other; not enough to prove conspiracy even though the agreement can be tacit
      • ■ Marcus: should have only charged w/ attempt
    • ○ Some courts allow membership in a gang to confirm that they must have agreed...controversial
      • ■ United States v. Garcia: a general agreement to support one another in gang fights doesn’t provide substantial proof of the specific agreement required for conspiracy to commit assault
    • The agreement
      • ○ Doesn’t have to be formal, can be tacit
      • ○ Things that may help prove an agreement:
        • ■ Conduct, did the 2 of them know each other, prior communications that hint at joint activity
      • ○ Direct Sales: Wholesaler sold huge amnts of morphine to a drugman. Warned several times by gov not to sell so much / so cheap
        • ■ Held: Established chain conspiracy. The fact that they never met is immaterial. Shown through the overt act of sales, which but for their volume, frequency, and prolonged repetition coupled w/ seller’s unlawful intent to further the buyer’s project would be lawful transactions
        • ■ Showed knowledge; intent to agree, intent to commit the crime
      • ○ S. v. Bufalino: huge mafia bust gone terribly wrong; all acquitted of perjury even though all (58) gave different explanations; couldn’t prove anything
      • ○ 'Unilateral vs. Bilateral Approach (states split; fed = bilateral)'
        • ■ Unilateral: only one party needs to believe that the agreement will be completed [makes solicitation to officer legal as conspiracy]; easier to get ppl
          • State v. St. Christopher: D asked cousin to help kill mom; cousin pretended to agree; helped cops
            • ○ Held: “it makes no difference in logic or public policy that the person with whom D conspires is not himself subject to prosecution” (D’s culpability is not decreased by cousin faking agreement and instead turning him in)
            • ○ Note: is it conspiracy? Or should it be solicitation/attempt only w/ attempt to conspire taken into consideration during sentencing? Is conspiracy conviction really necessary?
          • Minn rule (sim to MPC): Whoever conspires w/ another to commit a crime and in furtherance of the conspiracy one or more of the parties does some overt act in furtherance of such conspiracy may be sentenced as follows.
        • ■ Bilateral: jurisdictions that require both parties to have the intent (includes federal)
          • Rule of consistency: if one is convicted they both should be
          • Marcus’s fave!
          • When it’s not 2 ppl, not as dangerous...that’s the whole point
          • Rule w/ this would say 2+ persons
        • Object of Agreement
          • ○ Commonwealth v. Donoghue: loan sharks. Charged conspiracy to loan small amnts to poor at excessive interest rates...but in Kt, here wasn’t a crime of charging ppl w/ high interest rates…
            • ■ Held: NOT GOOD LAW, doesn’t matter...basically said it was okay to charge w/ conspiracy even though object crime wasn’t a crime
            • ■ Dissent: (adopted as law); Yeah, loan sharking is bad but:
              • Should be regulated by legislature
              • Need notice of what is a crime → procedural due process
            • ○ Musser v. Utah: D charged w/ having conspired to commit acts injurious to public morals (polygamous marriage)
              • ■ Can’t do this bc don’t know what state will consider injurious to public morals: PROCEDURAL DP
            • Overt Act Requirement' (not req, SC said agreement is sufficient)'
              • ○ Any act is sufficient so not hard to satisfy; care bc:
                • ■ Statute of limitations restarts every time there’s an overt act; estab venue
              • Chain Conspiracy: can join together a lot of ppl in chain. Have to agree to commit a particular crime. BUT once they agree to commit the conspiracy, can be charged for crimes others commit if reasonably foreseeable
                • ○ think a drug chain (exporter → importer → distributor)
                  • ■ BUT mere buyer for personal use prob not sufficient unless it’s a lot/other crimes/actions
                  • ■ Has to be in furtherance of the crime
                • ○ United States v. Bruno: Bruno + 86 other Ds indicted for conspiracy to import, sell, & possess narcotics. Ds want to split it up into at least 3 separate conspiracies (exporters/importers, importers/dist 1, importer/dist 2)
                  • ■ Held: Can agree despite not knowing about each other; don’t need express agreement/know people above, so long as gov’t can show interdependence (where did you think the drugs were going…), you know they’re coming from somewhere so going to
                  • ■ no one cares about implicating the mastermind for others’ crimes; gets tricky when you implicate the person at the bottom for crimes going up the chain
                • Wheel Conspiracy: hub attached to the spokes. Only concerned w/ their part. Can be charged together, but difficult to prove.

Withdrawal: no withdrawal at CL[edit]

  • 5 feat w/ conspiracy law
    • ○ If person withdrawals before consp formed, case closed (if they agree but don’t do anything → FoP)
    • True defense (some jur have – SEE ELEMENTS): withdrawal after overt act, before crime
    • If D withdrawals after overt act & no withdrawal defense, doesn’t get rid of conspiracy charge, but limits liability for future crimes (substantive crime; things other conspirators do later)
    • ○ Statute of limitations stops when you withdrawal (doesn’t keep ticking like it usually would)
    • ○ Being in jail doesn’t necessarily mean you withdrew. Need to affirmatively try to get out of it. Can still be held liable for future crimes if you don’t cooperate

Liability for other Crimes[edit]

  • Albernaz: if D violates 2 statutes D can be sentenced twice for the same agreement; it doesn’t violate double jeopardy (in this case (1) importation statute and (2) distribution statute under 1 agreement)
    • ○ Can be charged for multiple conspiracy charges for one agreement if the agreement violates 2 conspiracy statutes (consp to import; consp to export)
  • Pinkerton v. U.S.: VERY IMPORTANT CASE but not binding on states; 2 D’s – 1 did everything, other just conspired
    • ○ Establishes:
      • Complicity doctrine: as conspirator, you are liable for (1) conspiracy (2) crime that is object of agreement but also (3) all crimes in furtherance of conspiracy by any co-conspirators that are reasonably foreseeable
        • Ex: agree to commit crime x, other person commits crime y; can still be charged w/ crime y as long as reasonably foreseeable
        • Once in conspiracy, will be held for all crimes which are foreseeable
      • No-merger doctrine': conspiracy charge doesn’t merge into substantive crime'
        • w/ attempt, can’t be charged w/ attempt to rob and robbery
        • w/ conspiracy, can be convicted of both
          • ○ bc conspiracy is itself so dangerous
        • Good number of states do not follow this doctrine but less reject the complicity doctrine
        • Why: the courts consistently say the joining together of multiple people is more dangerous than individuals committing the same crime
      • ○ MPC rejects Pinkerton as too broad
    • Ex w/ drug chain:
      • ○ Conspiracy charges (consp to import, consp to dist, consp to possess)
      • ○ All substantive crimes rel to conspiracy (import, dist, possess)
      • ○ AND any other crimes ppl in the chain commit (but not conspiracy for these charges)
        • ■ As long as “foreseeable” (low bar)
        • ■ Ex: someone up the chain commits arson; you get that too (but not conspiracy for arson)
      • In most jurisdictions can be convicted of both the conspiracy and the ultimate crime (ex: robbery)
        • ○ If you had the issue on the exam, DEAL WITH BOTH, JURISDICTIONS THAT MERGE & DON’T MERGE ''''

Advantages of Conspiracy:

  • Venue in any dist in which any party committed any act
  • Statute of lim: clock restarts when anyone else in the consp does any act in furtherance of consp
  • Punishment: responsible for substantive offenses as long as reasonably foreseeable
  • Hearsay rule: out of ct stmts typically inadmissible, but allow for conspiracy
    • ○ AND any incrim statements from one party can be used against another

Can’t be charged w/ conspiracy to attemptPolicy things:

  • Conspiracy in the US is broader and punished more heavily than other crimes
  • 2 purposes:
    • ○ Prevent crimes at early stages
    • ○ Joint participation more dangerous/more complicated/more likely to succeed
      • ■ & more likely that other crimes will occur
    • Govt has more leniency in methods of investigation
    • More conspiracies in FCs than a lot of crimes
      • ○ More likely to cross state lines; need more experts; many natl white collar crimes

Defenses[edit]

  • WATCH OUT! Failure of proof vs. true def

Watch out for burden of proof!

  • In ~½ jurisdictions, burden of proving the def is on the gov (fed standard)
    • ○ D has burden of prod, gov has to prove beyond reas doubt
    • ○ Theory: should be innocent until proven guilty
  • Other ~½: D has burden of proving def by a preponderance of the evidence
    • ○ Exception: insanity def
    • ○ Theory: D has evidence so should prove it

Self Defense[edit]

  • If in home and someone comes in…could claim…
    • o Self def
    • o Def of others
    • o Def of habitation: used to be couldn’t use deadly force w/ this (CL)
      • Hypo: person going down the stairs leaving the house
      • UNLESS you were using deadly force to protect a human being
    • o Modern statutes: may use deadly force on ppl just in the house bc presence itself enough to justify deadly force

ELEMENTS

  • D believed force necessary (subjective)
  • Reas person would have believed force necessary (obj)
  • D believed degree/amount of force necessary (sub)
  • Reasonable person would have believed that amnt of force was necessary as well (obj)

Imperfect self defense / Manslaughter

  • Some jurisdictions drop obj stnd(s) (2 & 4) and drop charge from murder to manslaughter
  • 45/50 jurisdictions: she goes to jail. But in some, they drop it to manslaughter (see case)
  • Courts SPLIT about whether to allow self def in a prison setting
    • Rowe v. DeBruyn': held shouldn’t recognize self-def in prison setting'
      • ■ Prisons have problems of violence — would encourage inmates to engage in more violence
      • ■ Dissent: state shouldn’t deprive person of liberty and then punish that person for trying to stay alive & the state isn’t able to stop the violence aimed at said person
    • Subjective vs. objective
      • ○ People v. Goetz: subway vigilante ultimately acquitted; tells us that what to let in for evidence to determine subjective/objective reasonableness is unresolved (judge disc.)
        • ■ Held: Says it’s an objective standard, but then notes that reasonableness must be based on the circumstances facing a D or his situation
        • ■ Issue: how to apply? How much to let in before it’s not objective anymore?
        • ■ He wanted to bring in lots of info: his own mental state, his phys size, crime rate, etc.
          • Different perspectives: admit everything (leave to the jury); reject almost everything (abstract reasonable person)
          • The law really is up to the judges in this respect
        • ○ State v. Rupp: evidence of history of D and victim fighting allowed to determine if obj. reasonable
          • ■ Held: D has right to “stand his ground” without taking alternative action when in immediate fear of injury/death at V’s hands
          • ■ Now don’t need an alt course of action unless it appears it’s reas necessary/ the alternative entails a risk to one’s safety
        • 'Battered Victim Syndrome: greater sense of danger; Cyclical pattern of violence (tension building, explosion, loving contrition)'
          • ○ Bechtel v. State: Man abusive; 23 incidents of abuse. He beat & raped her. Then passed out; then made a weird face; then she shot him. Gave self-def inst, but didn’t allow battered woman synd into evidence
            • ■ Held: Should have allowed expert testimony on Battered Woman Syndrome in order to determine whether her belief was reasonable and whether the danger was imminent
            • ■ Argument for expert testimony: very powerful; can give jury info that most jurors wouldn’t have
            • ■ Issue: can explain how syndrome affected her reasoning/imminence
              • Prevailing view: testimony just provides info about what a reas person would do in her circumstances; doesn’t change stnd for reasonableness
              • Note: the same conclusion could be reached through BWS defense/self-defense. unresolved if BWS changes self-defense or just allows additional factors to consider
            • ■ Issue: how many times qualify for BWS? Must generally be cycles of abuse, not first time
          • ○ Criticisms: perpetuates negative stereotypes of women; passive instead of in control of their lives
        • Can’t use self-def when…
          • Aggressor?
            • ■ State v. Pride – defendant robs woman; she shoots at him; he shoots back. D claims he was finished robbery when he was shot.
              • Held Not entitled to defense bc he was the original aggressor; did not withdrawal in good faith; shooting was so close in time to robbery - still considered to be happening
            • ■ If someone provokes fight can’t use self def
              • Unless someone really ups the ante
            • ■ Have to show true abandonment; BURDEN ALWAYS ON D TO PROVE HE WITHDREW
          • Resisting Arrest?
            • ■ People v. Cherry: Can you use force to resist an unlawful arrest & claim self-def?
              • Held: Yes; Biting a police officer to resist an unlawful arrest is not using more force than necessary
            • ■ CL: if arrest is unlawful, can use necessary force, not excessive force (usually guns) to resist it
            • ■ Current majority rule – only right to resist excessive force; not arrest
              • Society has interest in orderly dispute resolution; bring civil suit
              • Escalation of violence has consequences to parties and bystanders
              • More procedural safeguards (prisons less dangerous, Meranda rights)
            • ■ Common law/Cherry view – right to resist in reasonable way
              • Protect from assault on person
              • Racial minorities
                • ○ Stop & frisk: only 11% white in 2015; over 80% innocent
              • Can affect how police act
SYG and Castle Doctrine[edit]
  • CL rule: duty to retreat if it can be done reasonably safely, even in own home (MINORITY) See Shaffer
  • SYG: no duty at all to retreat, even if perfectly safe (MAJORITY)
    • ○ Historically no duty to retreat from home even if reasonably safe
    • ○ States vary on if this applies in homes or on street
    • ○ Amended by stand your ground statutes: now deadly force is allowed on property if there is reasonable fear they’ll commit a crime
  • Deadly force justified to prevent felony (no duty of retreat); some courts require it to be from external threat only (no cohabitants)
  • Retreat to the wall (min)
    • ○ CL: forbade deadly force if an avenue of retreat was open (don’t need to endanger yourself)
    • ○ Pros: less chance for death; Cons: more dangerous for that person
    • ○ Commonwealth v. Shaffer: Hus and wife fighting. She went downstairs; shot him when he was at the top of the steps. Several minutes btwn fight and when he came back. Was a door in the basement. Tried to claim self-def.
      • ■ Held: Retreat to the wall rule applies in your home. Value human life. No deadly force if an avenue of retreat was open.
    • ○ Marcus thinks this takes away jury’s determination of what force is necessary
    • ○ Con: could harm ppl living in situations of domestic violence; could force an abused spouse to choose between breaking law or abandoning children
  • Castle Doctrine (maj)
    • ○ Traditional view – Duty to retreat before using deadly force if can retreat safely.
    • ○ 3 conflicting policy considerations come up:
      • ■ Desire to protect the sanctity of life
      • ■ Belief that sanctity of one’s home must be recognized, even in the face of loss of life
      • ■ How important it should be if both parties share property rights
    • ○ statute classifies burglary as a forceful felony - so can even shoot someone as they’re leaving your home (not part of old rule; would need to fear danger)
      • ■ Generally laws give individuals the right to protect their homes/vehicles w/ deadly force against any unlawful intrusion even if they don’t fear their/others safety
      • ■ Law abolishes any obligation to retreat from a public place
      • ■ Got a lot of scrutiny after the Trayvon Martin shooting
    • ○ Over 30 states have passed some part of the SYG statute
    • ○ Marcus things these statutes are taking away decisions from the jury (what’s reasonable)
    • Policy issues:
      • ■ Racial bias: if white victims, acquitted less than if there are black victims
        • Statute neutral, but allows ppl to act on implicit bias more
      • ■ Encourages vigilante justice rather than retreating to the wall
        • A lot of ppl think that’s the law in all states now…
      • ■ ABA study: SYG laws inc # homicides and have no deterrent effect on violent crimes
    • Public duty to retreat
      • ○ Modern SYG -- Extends castle doctrine to wherever you have the right to be
        • ■ Broad interpretation of “reasonable belief” by courts
      • ○ Law enforcement doesn’t like these statutes (allows citizens to take law into their own hands).
      • ○ g. Trayvon Martin case
    • Defense of Property
      • ○ People v. Ceballos: spring gun in front of garage. Shot victim. D says he would have been able to use if he was present...probs not.
        • ■ Held: not privileged to do indirectly that which he is privileged to do directly; unlawful to shoot burglars w/ trap guns; have to be present to decide if reasonable to use force
      • ○ If only personal prop, deadly force not accepted, need to exhaust all other options
        • ■ Exception by statute: Arson (NY) - can also be a threat to lives though
        • ■ Can be exceptions w/ castle doctrine….

Defense of Others[edit]

  • 2 theories
    • ○ 'Alter ego (min): defending them as if you were them; whatever def she would have, you would have'
    • Objective standard (maj):
      • ■ D really bel force necessary to protect others (sub)
      • ■ Reasonable person would believe… (obj)
      • ■ D genuinely believes this degree of force was nec to protect others (sub)
      • ■ Reasonable person would believe… (obj
    • ○ Only time there’s a difference is w/ the mistake case: obj would be exonerated, not alter ego
      • ■ Ex: tries to save other person & hurts person beating him up
        • But...turns out that person was the aggressor
      • ■ Don’t want to deter them from saving ppl
    • State v. Fair – weird house drunk house fight; guy jumps in on woman’s behalf after guy tries to cut her w/ knife.
      • ○ Reverse to give jury instruction on defense of others
      • ○ Reasonably believed victim was in peril and force was necessary.

Prevention of Crime[edit]

  • Tennessee v. Garner: kid shot; probable cause to believe he committed felony/would otherwise escape (jumping over fence). No sign of a weapon; not scared for self or others
    • ○ Held: Now 4 steps for officer to be allowed to use deadly force under 4th amendment (unreasonable search and seizure):
      • ■ Probable cause to believe person committed crime
      • ■ Probable cause he would otherwise escape
      • Probable cause suspect poses a great harm to others
      • Warning, if feasible
      • ■ ^last 2 added by SC; applies to all states**binding bc const
    • Under CL; allowed officers to shoot to kill for felonies; now: only violent crimes
    • Does this apply to ordinary ppl or just police officers?
      • ○ ****Castle Doctrine & SYG laws replace this when applicable****

Duress & Necessity[edit]

  • Typically just referred to as necessity
  • 'CL def of duress: excuses crim conduct where actor was under an unlawful threat of imminent death or serious bodily injury, which caused the actor to engage break the law - traditionally covered coercion of other ppl'
  • CL def of necessity:' covered physical forces beyond actor’s control'
  • 'More modern def (MPC): reasonably believed that criminal action necessary to avoid harm more serious than that sought to be prevented by statute'
  • Both Subjective and Objective
    • ■ Subjective: person believes this was best option
    • ■ Objective: reasonable person would believe this was best option
  • Against whom?
    • ■ State v. Metcalf: D gave drugs to an undercover agent for fear that harm would come to his cousin and family because of a big guy with the agent. The threat was not to D himself.
      • Held: defense of duress may be invoked not only where D fears for his safety, but where he fears for the safety of others, particularly his own family
      • **now can use def for everyone
    • ■ Can’t use necessity when ppl in gangs
  • What’s imminent?
    • ■ Semi-immediate -- basically can’t have if far away; should call the cops
  • When to raise: '
    • ■ As a matter of law, DEADLY FORCE NOT PERMITTED (should raise self-def or def of others)'
    • ■ Felony murder: if someone coerced you into participating in a felony & murder occurs, not guilty

4 fact patterns

  • Witness intimidation cases
    • ○ Refuses to testify; judge can hold person in contempt
    • ○ Scared gang/D will kill her if she talks
    • ○ Witness would raise necessity def - up to judge
  • Prisons + prison violence
    • ○ D makes shank to protect himself; charged w/ carrying weapon
    • ○ Prisoner claims necessity
    • ○ As a matter of policy, typically overruled
    • ○ S. v. Bailey: Bad prison conditions. Escape. Caught 1-3 mos later. Claim duress. (SC; only applies to FCs)
      • ■ Held: Once D got out (danger no longer immediate), should have turned self in
      • ■ Dissent: plea for prison reform
        • Looking at sub/obj stnd, D may have believed if he returned, he would go straight back and that thus danger still imminent
      • ○ 3 views of when prison escape would be appropriate (courts split on which pos to take)
        • ■ Policy rationale: every pris would use this as a def
        • ■ If immediate threat of harm, allowed to do so
        • ■ Can escape out of necessity & not return until:
          • You think it’s safe to return
        • ■ Reas person would find it necessary to return
      • Fire-starter case
        • ○ Stranded woman lit signal fire. Turned into massive wildfire.
        • ○ S. Atty decided not to file suit
      • Nuclear powerplant cases/protest cases
        • ○ State v. Warshow: Vermont Yankee Pwr Plant. Ppl protesting against use of nuc pwr
        • ○ Held: danger w/ nuc pwr not imminent enough, not talking about long-term risks; legislative decision
          • ■ Reasons: no immediate danger; must seek other alternatives; not something for the cts – for the legislature

Entrapment[edit]

  • Inducement by government officials to commit a crime
    • ○ Some states have statutes, no fed, no CL – did judiciary create a defense? yes
  • 3 tests: subjective (predisposition test) & objective test
    • If you see entrapment, talk about all 3 and apply
    • ○ Dominant view: subjective test (fed gov & maj of states)
    • ○ Min view (bigger states + MPC): objective test
    • ○ **Hybrid test (only a few states) (Marcus prefers this view):
      • ■ Pretrial hearing: look at objective test--if overreaching, case is dismissed by judge, done
      • ■ If not overreaching, subjective test goes to jury
  • What do other countries do?
    • ○ Eng: take into acct when sentencing; Aus: discipline officers; Can: can allow for sting ops, but require authorization, stnd for what to allow
  • Due Process violation
    • ○ What if D is clearly predisposed BUT gov clearly overreached & state has the subjective test…
      • ■ DP violation on gov; outrageous violation of person’s rights; judge might be able to toss
    • Does D need to admit to all elements of the crime to raise entrapment def?
      • ○ No, can say, I committed the act, but didn’t have intent...but if you do find X, was entrapped
    • Sherman v. United States: Met gov officer while being treated of narcotics addiction
      • ○ Held: subjective standard; entrapment occurs only when crim conduct was product of creative law enforcement activity; looks at evidence of D’s predisposition (none); judge question (question of law)
      • ○ Dissent: objective standard; block off areas of impermissible police conduct instead of looking at D to figure out if he might otherwise have committed crime; jury question (question of fact)
    • U.S. v. Russell: meth manufacturing; agent provided chemical for drug
      • ○ Held: subjective standard; looking at predisposition. law enforcement provision of something necessary to facilitate commission of crime ≠ entrapment.
      • ○ Dissent (2 camps): (1) providing chemical made US active participant/induced commission (2) objective: must be exclusive focus on conduct of gov agents rather than predisposition of D
    • Jacobson v. U.S.: homosexual mags. Ordered 2 w/ naked male children. Gov started targeting him over 26 mos. Actually tried to order 2x.
      • ○ Held: Gov’t must prove beyond a reasonable doubt that D was predisposed to commit the crime prior to first being approached by gov’t agents (not just before right before crime)
      • ○ Marcus: maj more focused on obj reasons (even though they said subjective)
      • ○ Class presentations…
        • ■ Obj: gov went too far; didn’t just provide opportunity, encouraged crime through its mailings
        • ■ Obj 2: not entrapment; didn’t cont requests in face of hesitancy, D responded willingly, no force/threats
        • ■ Predisposition should be decided by jury, but agrees that need to look at predisposition before contact
        • ■ Predisposition should be looked at before crime
      • Can you bring in expert testimony saying how easily manipulated person is?
        • ○ Courts split (obj vs. sub)

Intoxication[edit]

  • Many cts call intoxication a defense, but it’s not, it’s a failure of proof. (then analyze it as a FoP)
  • MPC Intoxication: Intoxication will be a defense whenever it negates an element of a def
    • Only applies to purpose (intent) and knowledge
    • ○ Doesn’t apply to recklessness/negligence (it’s reckless to get that drunk)
  • Intoxication IS NOT a true defense, it’s a failure of proof; we don’t want to encourage that so it’s not a defense
    • ○ If gov’t can’t prove mens rea beyond a reasonable doubt, then they haven’t proved the crime (see dissent in Stasio)
      • ■ State v. Stasio: assault w/ intent to rob and assault while armed.
        • Ct here wrong bc it’s never a defense!!!
        • Majority: shouldn’t allow instruction bc only relevant for 1st degree murder & drunken stupor so no crime
          • ○ Get rid of general (intent to act) and specific (intent for consequence to occur) intent → leads to weird rulings
            • ■ Robbery (specific intent), murder (gen)
            • ■ Any inchoate offense (attempt) - specific; even if crime itself is gen
            • ■ So would be able to use it for attempted rape, not rape - inconsistent
          • Dissent (somewhat right): intoxication not a defense, it’s failure of proof
        • ■ Heideman v. US - robbery case (force/threat of force w/ intent to take someone else’s prop)
          • MARCUS: no instruction for intoxication bc lack of mens rea is a failure of proof - lawyer should have argued that in the case - Marcus says both maj and min got it wrong
          • Maj: no instruction bc it’s so clear he intended to do what he did (usually would go to jury…clear was drunk but judge said actions were very rational, calculated)
          • Min: enough evidence that it should go to jury bc unclear
        • SPLIT IN COURTS - state gen intoxication info and then say it depends on state and list all 3
          • ○ ⅓: ban all mention of voluntary intoxication as related to mental state
            • ■ Can’t bring up evidence in court
          • ○ ⅓: allow evidence of intoxication as related to mental state and leave it to the jury
          • ○ ⅓: only allow evidence of intoxication as related to mental state for use in certain crimes
            • ■ Ex: 1st degree murder - can work against element of premeditation and deliberation & drop it to 2nd degree murder
            • ■ Or something like MPC or only for certain designated crimes
          • Split in cts bc of Egelhoff (SC case): Montana banned evidence rel to voluntary intoxication. Challenged govt on 6th amdt (constitutional issue - should be allowed to be brought up)
            • ○ Ruling: 4 (should be allowed to do away w/ it; 4 (leg can’t do away w/ it); 1 (ok in this case bc of how Montana defines its murder statute)
          • 2 intoxication issues
            • ○ Voluntary intoxication - usually what comes up
            • ○ Involuntary prosecution - prosecutors usually don’t prosecute
          • Juries hate claim of voluntary intoxication

Insanity[edit]

  • The only affirmative defense that can also be a failure of proof (negate mens rea)
    • o True defense: enough to meet mental requirement, but passes test for insanity
    • o FoP: If D’s mental state precluded gov from proving intent element
  • Step 1: Is D competent to stand trial?
    • o Burden on gov to prove:
      • D is competent (low): basic understanding of what’s happening & can communicate w/ lawyer
      • At time of trial
    • o Competency allows D to stand trial, enter plea deal, represent yourself…
  • Judge can order mental health exam over objections of def counsel
    • o BUT judge can’t raise insanity def over objection of defense (if D competent)
  • Tests for Insanity
    • o M’Naghten Test: deals w/ cognition
      • At time of the crime
      • Suffering from mental illness / disease
      • Which caused
      • Inability to understand dif btwn right & wrong (or didn’t know the nature/quality of act)
    • Criticism: boils down insanity to one aspect of the mind
  • o Irrestible Impulse Test: created bc of criticism to M’Naghten; deals w/ volition
    • Complete destruction of governing pwr of the mind
    • Elements:
      • At time of the crime
      • Suffered from mental disease/illness
      • That caused
      • D to be unable to control his/her actions
    • o MPC Test: combined the two; Substantial Capacity Test
      • Not responsible if at the time of the conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate criminality [wrongfulness] of his conduct or to conform his conduct to the requirements of the law
      • See elements above except except can have element 4 of M’Naghten or element 4 of Impulse
      • Was quickly adopted bc it combined both tests
        • See Johnson; adopted an insanity def similar to MPC
      • o BUT after attempted Reagan assassination, Cong passed…' 'Insanity Defense Reform Act (18 USC 17):
        • 'D will be successful if there’s a showing that he was unable to appreciate the nature and quality or the wrongfulness of his act at the time of the crime (M’Naghten test)'
        • Burden of proof on issue shifted from gov to D
          • Even though fed stnd for other defenses is opposite (gov has to prove)
        • Standard shifted from a preponderance of evidence à clear and convincing evidence
        • Experts can’t testify to the ultimate issue of D’s insanity
      • If found not guilty by reason of insanity…don’t walk free…
        • o Approach 1: automatically goes to mental health dept/special dept of jail
        • o Approach 2: hearing à if danger to self/others à mental inst /special dept of jail (usually happens)
        • o Approach 3: Atty Gen has to petition state to put in mental inst /special dept of jail
        • o Approach 4: family petitions gov …” …”
      • To be be let out…has to be found not dangerous to self/others – judge has to sign off
      • Mental Health courts (video). Treatment plans. Incarceration w/o treatment not the goal (may not be getting services/medication). Probation more involved. Smaller case load.
      • SC Issue right now…
        • o If convicted & facing death penalty, may raise again
          • Constitution forbids execution of the insane (Ford v. Wainwright)
        • o Argument for: Don’t typically hold very insane people morally accountable for actions
          • Less culpable for their actions
          • Due process argument: violate due process?
        • o Argument to get rid of it:
          • Raise it on the mens rea element as a FoP
          • BUT what happens when they do have the intent but are insane? (don’t understand difference btwn right and wrong)