CRIMINAL LAW Fall 2010 Prof.

Bill Jones Casebook: Johnson 7th THIS IS THE FINAL EXAM REVIEW FOR PROF. JONES CRIMINAL LAW COURSE, WRITTEN BY PROF. JONES HIMSELF. NOTE THAT I ALTERED ONLY ONE ASPECT OF THIS DOCUMENT, BEYOND THIS PARAGRAPH, FROM ITS ORIGINAL FORM: FOR YOUR CONVENIENCE, I CONVERTED FROM BLACK TO RED THE TEXT MOST RELEVANT TO ANSWER THE 4 SHORT ESSAY QUESTIONS ON THE FINAL. THE REST OF THE DOCUMENT MAINTAINS ITS ORIGINAL FORMAT. FINALLY, A DISCLAIMER: THIS IS NOT, NOR IS IT INTENDED TO BE, A TRADITIONAL CRIMINAL LAW OUTLINE. THIS IS RECOMMENDED ONLY IN CONJUNCTION WITH PROF. JONES CRIMINAL LAW COURSE. IN THE BEGINNING, WE LOOKED AT CERTAIN BASIC CONCEPTS: 1. 2. 3. 4. ACTUS REUS (THE GUILTY ACT). MENS REA (THE GUILTY MIND). MALUM IN SE (A THING WHICH IS INHERENTLY WRONG-A WRONG IN ITSELF-HOMICIDE, E.G.) MALUM PROHIBITUM (A THING WHICH IS WRONG BECAUSE WE HAVE SAID IT IS WRONG-SPEEDING E.G.) AS A GENERAL PROPOSITION, THE DEFINITION OF A CRIME WILL USUALLY ENCOMPASS BOTH A GUILTY ACT AND A GUILTY MIND. FOR EXAMPLE, MURDER REQUIRES PROOF THAT THE ACTOR CAUSED THE DEATH OF ANOTHER HUMAN BEING, ARSON REQUIRES PROOF THAT THE ACTOR CAUSED THE DESTRUCTION OF PROPERTY BY SETTING IT AFIRE. BUT MERELY PROVING THAT THE ACTOR DID ONE OF THESE THE DEFINITION OF THE CRIME WILL
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ACTS IS NOT USUALLY SUFFICIENT TO CONVICT THE ACTOR OF COMMITTING THE CRIME.

ALMOST ALWAYS PROVIDE FOR A CERTAIN MENTAL STATE OF THE ACTOR AT THE TIME OF DOING THE PROHIBITED ACT. THIS MENTAL THERE STATE MAY BE SPECIFICALLY STATED OR MAY BE IMPLIED.

ARE A FEW CRIME IN WHICH THE MENTAL STATE IS IRRELEVANT; THE SO-CALLED STRICT LIABILITY CRIMES, NORMALLY INVOLVING SOME ACT WHICH HAS THE POTENTIAL TO CAUSE GREAT HARM TO THE GENERAL PUBLIC AND WHICH THE GENERAL PUBLIC HAS NO ABILITY TO PROTECT ITSELF AGAINST. IN ADDITION TO THE SPECIFIC DEFINITION OF CRIME, THERE ARE CERTAIN GENERAL PRINCIPLES OF CRIMINAL LAW WHICH DO NOT APPEAR IN THE STATUTES DEFINING THE SPECIFIC CRIMES. THINGS SUCH AS INSANITY AS A DEFENSE, JUSTIFICATION BY WAY OF SUCH THINGS AS SELF-DEFENSE, LEGALLY TOO YOUNG TO BE ABLE TO FORM THE REQUISITE INTENT, ACTING PURSUANT TO PUBLIC AUTHORITY, SUCH AS A POLICEMAN CARRYING OUT LEGITIMATE LAW ENFORCEMENT FUNCTIONS. RELATED, BUT NOT OF THE SAME CATEGORY, ARE CERTAIN PRINCIPLES WHICH MAY REDUCE THE DEGREE OF THE CRIME, AS E.G., A PERSON ACTING UNDER THE STRESS OF EXTREME PROVOCATION WHICH NEGATIVES MALICE AFORETHOUGHT (INTENT), THUS PERMITTING A VERDICT OF GUILTY OF MANSLAUGHTER INSTEAD OF MURDER WHERE THE ACTOR HAS KILLED ANOTHER HUMAN BEING. ANOTHER GENERAL PRINCIPLE INVOLVES THE CRIMINAL LIABILITY OF PERSONS WHO DID NOT COMMIT THE SPECIFIC ACT, BUT WHO URGED, AIDED, OR ABETTED THE CRIMINAL ACT.
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OF COURSE, IF WE DEFINE A PROHIBITED ACT AND PROVIDE FOR A SPECIFIC KIND OF MENTAL STATE, BUT DO NOT PROVIDE A PENALTY, WE DO NOT HAVE A CRIMINAL LAW. AS A GENERAL PROPOSITION, THE PURPOSE OF THE CRIMINAL LAW IS TO PREVENT HARM TO SOCIETY. THE TERMS OF THE STATUTORY OR COMMON LAW DEFINITION OF A CRIME MAY BE COUCHED IN TERMS OF HARM TO AN INDIVIDUAL, BUT THE CRIME IS PROSECUTED IN THE NAME OF THE GOVERNMENT, BECAUSE IT IS REALLY A GENERAL SOCIETAL INTEREST THAT IS INVOLVED. THERE ARE DIFFERENT KINDS OF HARM; E.G., PERSONAL, AS BY INJURY OR DEATH OF AN INDIVIDUAL; PROPERTY, SUCH AS THE BURNING OF A BUILDING IN ARSON. SOMETIMES NO HARM RESULTS, BUT THE PURPOSE OF THE CRIMINAL LAW IS TO PREVENT CONDUCT THAT IS POTENTIALLY HARMFUL; I.E., LIKELY TO CAUSE HARM, SUCH AS RECKLESS DRIVING, OR THE INCHOATE CRIMES OF SOLICITATION, CONSPIRACY, OR ATTEMPT. OBVIOUSLY, CRIMINAL CONDUCT INVOLVES VARIOUS ELEMENTS. WE HAVE NOT SPECIFICALLY MADE AN ATTEMPT TO IDENTIFY THE ELEMENTS OF EACH AND EVERY CRIME. YET, INEVITABLY, YOU HAVE LEARNED MANY OF THESE IN THE CONTEXT OF THE VARIOUS CASES WE HAVE STUDIED, AND YOU ARE EXPECTED TO KNOW THEM. CHAPTER 1. BASIC CULPABILITY DOCTRINES PART A. LOOKED AT HOW THE LAW HAS TRADITIONALLY DEALT WITH CONCEPTS OF MENS REA. CONFUSION.
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AND YOU WILL RECALL THAT THE

CASES PRESENTED A PICTURE OF DISAGREEMENT, UNCERTAINTY, AND

MANY DIFFERENT WORDS ARE USED IN STATUTES AND IN THE COMMON LAW TO INDICATE MENS REA-THE GUILTY MIND: INTENTIONALLY WITH KNOWLEDGE THAT PURPOSELY FRAUDULENTLY WILLFULLY CORRUPTLY---AMONG OTHERS. THE MODEL PENAL CODE HAS ATTEMPTED TO SIMPLIFY THIS BY REDUCING THE MATTER TO FOUR BASIC TYPES OF CRIMES WHICH REQUIRE FAULT: 1. 2. 3. CRIMES REQUIRING INTENTION CRIMES REQUIRING KNOWLEDGE CRIMES REQUIRING RECKLESSNESS (THIS IS SUBJECTIVE FAULT IN THAT THE ACTOR MUST IN HIS OWN MIND REALIZE THE RISK WHICH HIS CONDUCT INVOLVES.) 4. CRIMES REQUIRING NEGLIGENCE (THIS IS OBJECTIVE FAULT IN CREATING AN UNREASONABLY RISK, BUT, SINCE THE ACTOR NEED NOT REALIZE THE RISK IN ORDER TO BE NEGLIGENT, NO SUBJECTIVE FAULT IS REQUIRED. A REASONABLE PERSON UNDER THE CIRCUMSTANCES ) ) ) ) ) ) ) ) ) ) ) ) ) ) )
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[MODEL PENAL CODE 2.02(2)]

WOULD HAVE REALIZED THE RISK.)

YOU WILL RECALL THAT OUR FIRST CASE, REGINA V. FAULKNER, PRESENTED DIFFERENT VIEWS ABOUT THE KIND OF MENS REA REQUIRED. THE OPINION DID NOT GIVE US ANY CLEAR ANSWER THE REGARDING THE PROPER STANDARD TO APPLY, OTHER THAN THAT THE INSTRUCTION GIVEN BY THE TRIAL JUDGE WAS WRONG. VARIOUS OPINIONS SEEM TO INDICATE THAT AT LEAST IT MUST BE SHOWN THAT THE FIRE WAS THE PROBABLE RESULT OF STEALING THE RUM, ALTHOUGH THE OPINIONS DIFFERED AS TO WHETHER THIS WOULD BE BASED UPON A SUBJECTIVE STANDARD (RECKLESSNESS) OR AN OBJECTIVE STANDARD (NEGLIGENCE). UNITED STATES V. YERMIAN, INTRODUCED THE CONCEPT OF A JURISDICTIONAL ELEMENT, AND SHOWED US THE DISAGREEMENT, WHICH CAN FREQUENTLY ARISE REGARDING STATUTORY INTERPRETATION. DID THE WORDS KNOWINGLY AND WILLFULLY RECALL THAT THE SUPREME COURT MODIFY THE JURISDICTIONAL LANGUAGE OR ONLY THE OTHER ELEMENTS OF THE CRIME? STATED THAT A STATUTE COULD, BUT DID NOT NEED, TO INCLUDE A CULPABILITY REQUIREMENT AS TO THE JURISDICTIONAL ELEMENT. WE REVISITED THIS IN UNITED STATES V. FEOLA, CHAPTER 7, P. 606. PEOPLE V. HOOD EXPLORED THE EFFECT OF INTOXICATION ON MENS REA AND INTRODUCED THE CONCEPT OF SPECIFIC INTENT AND GENERAL INTENT CRIME. THE SPECIFIC PROBLEM IN HOOD WAS A VOLUNTARY
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CONFLICT IN THE INSTRUCTIONS ON INTOXICATION, ONE OF WHICH APPLIED ONLY TO GENERAL INTENT CRIMES.

INTOXICATION COULD BE CONSIDERED BY THE JURY IN DETERMINING WHETHER THE DEFENDANT HAD THE NECESSARY SPECIFIC INTENT, BUT IT COULD NOT BE CONSIDERED BY THE JURY AS TO GENERAL INTENT. THE JURY. THE TRIAL COURT DID NOT EXPLAIN THE DIFFERENCE TO WHEN THE DEFINITION OF A CRIME CONSISTS OF ONLY

THE DESCRIPTION OF A PARTICULAR ACT, WITHOUT REFERENCE TO INTENT TO DO A FURTHER ACT OR ACHIEVE A FUTURE CONSEQUENCE, WE ASK WHETHER THE DEFENDANT INTENDED TO DO THE PROSCRIBED ACT. THIS INTENTION IS DEEMED TO BE ONE OF GENERAL INTENT. WHEN THE DEFINITION REFERS TO DEFENDANTS INTENT TO DO SOME FURTHER ACT OR ACHIEVE SOME ADDITIONAL CONSEQUENCE, THE CRIME IS DEEMED TO BE ONE OF SPECIFIC INTENT. UNFORTUNATELY, THE DEFINITION DOES NOT ALWAYS WORK. THE HOOD COURT POINTED OUT THAT ASSAULT COULD EQUALLY WELL BE CHARACTERIZED AS A CRIME OF SPECIFIC INTENT OR GENERAL INTENT. THE MODEL PENAL CODE HAS DONE AWAY WITH THE TERMINOLOGY OF GENERAL INTENT AND SPECIFIC INTENT ALTOGETHER BECAUSE THE CONCEPT OF GENERAL INTENT HAS BEEN AN ABIDING SOURCE OF CONFUSION AND AMBIGUITY IN PENAL LAW MODEL PENAL CODE 2.02, COMMENT AT 231, N.3 (1985). BY DEFINITION, A PERSON CANNOT COMMIT A SPECIFIC INTENT CRIME UNLESS HE HAD THE REQUIRED SPECIFIC INTENT. ALTHOUGH THE CASE LAW IS NOT WITHOUT ITS CONTRADICTIONS, IT FOLLOWS THAT A MISTAKE OF FACT OR LAW, WHETHER REASONABLE OR UNREASONABLE, IS A DEFENSE TO A SPECIFIC INTENT CRIME, IF BECAUSE OF MISTAKE THE ACTOR LACKED THE REQUISITE INTENT.
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THE GENERAL RULE AS TO GENERAL INTENT CRIMES IS THAT A MISTAKE OF LAW DOES NOT EXCUSE AT ALL, AND A MISTAKE OF FACT EXCUSES ONLY (1) IF IT WAS REASONABLE, AND (2) IF THE DEFENDANTS CONDUCT WOULD HAVE BEEN LAWFUL HAD THE FACTS BEEN AS HE BELIEVED THEM TO BE. THE MISTAKE DOES NOT EXCUSE IF IT WAS NOT BASED ON REASONABLE GROUNDS, OR IF THE DEFENDANT WOULD HAVE BEEN COMMITTING SOME OTHER CRIME HAD THE FACTS BEEN AS THE ACTOR THOUGHT THEM TO BE. THE GENERAL RULE IS THAT THE IGNORANCE OR MISTAKE OF FACT OR LAW DOES NOT GENERALLY CONSTITUTE A DEFENSE TO A CRIMINAL CHARGE IN THE CASE OF SEXUAL OFFENSES WHERE THE VICTIMS LACK OF CONSENT IS BASED SOLELY UPON SUCH STATUTORY DISABILITIES AS BEING LESS THAN A CERTAIN AGE, OR MENTALLY DEFECTIVE. SOME JURISDICTIONS PERMIT THE DEFENDANT TO PROVE THAT HE DID NOT KNOW OF THE FACTS LEADING TO THE VICTIMS INCAPACITY. THE MODEL PENAL CODE, IN SECTION 2.04, ALSO RECOGNIZES IGNORANCE OR MISTAKE AS TO A MATTER OF FACT OR LAW AS A DEFENSE IF (A) THE IGNORANCE OR MISTAKE NEGATIVES THE PURPOSE, KNOWLEDGE, BELIEF, RECKLESSNESS OR NEGLIGENCE REQUIRED TO ESTABLISH A MATERIAL ELEMENT OF THE OFFENSE. THIS IS A BROADER DEFENSE THAN THE TRADITIONAL RULE. GARNETT V. STATE, WAS A CASE INVOLVING STATUTORY RAPE. THIS ILLUSTRATES WHAT MIGHT BE CALLED A STRICT LIABILITY CRIME. EVEN THOUGH THE DEFENDANT HAD BEEN TOLD BY THE GIRL
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AND BY HER FRIENDS THAT SHE WAS SIXTEEN, THE TRIAL JUDGE

REFUSED TO ALLOW SUCH PROOF AT TRIAL.

THE APPELLATE COURT

DISCUSSED THE FACT THAT CRIMES NORMALLY REQUIRE THAT THE PERSON BE AWARE OF FACTORS THAT MAKE THE ACT A CRIMINAL OFFENSE. HOWEVER, PROTECTION OF PERSONS OF TENDER AGE IS A THE COURT DISCUSSED THE FACT THAT SEVENTEEN SOCIETAL INTEREST THAT JUSTIFIES A DEPARTURE FROM THIS GENERAL RULE. DOES NOT. ALTHOUGH THE MAJORITY IN THIS CASE REFERRED TO IT AS A STRICT LIABILITY CRIME, GENERALLY SPEAKING THERE IS A POLICY AGAINST STRICT LIABILITY CRIMES; I.E. OFFENSES WHICH CARRY THE POSSIBILITY OF A TERM OF IMPRISONMENT. BELL DISSENTED ON THAT BASIS. JUDGE NOTE ALSO THE MAJORITYS STATES ALLOWED THE DEFENSE OF MISTAKE OF AGE, BUT MARYLAND

QUOTE FROM LAFAVE AND SCOTT REGARDING THE CONSENSUS OPPOSING STRICT LIABILITY CRIMES; I.E. PUNISHING WITHOUT REFERENCE TO THE ACTORS STATE OF MIND. SEE, ALSO, FN 2., P. 17 OF YOUR CASEBOOK WHIT REGARD TO THE MPCS COMPROMISE IN THIS REGARD ABOUT STATUTORY RAPE. LAMBERT V. CALIFORNIA RAISES A DUE PROCESS ISSUEDOES THE REGISTRATION ACT VIOLATE DUE PROCESS WHERE IT IS APPLIED TO A PERSON WHO HAS NO ACTUAL KNOWLEDGE OF HER DUTY TO REGISTER AND WHERE NO SHOWING IS MADE OF THE PROBABILITY OF SUCH KNOWLEDGE. IT IS IMPORTANT TO NOTE THAT A LEGISLATURE CAN ENACT A LAW CREATING AN OFFENSE AND EXCLUDE ELEMENTS OF KNOWLEDGE AND DILIGENCE FROM ITS DEFINITION. THAT WOULD BE THE CASE WITH REGULATORY MEASURES WHICH ARE
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CALCULATED TO MAINTAIN CERTAIN PUBLIC POLICY.

WE MAY

PRESUME KNOWLEDGE OF THE CRIMINAL PROHIBITION ONLY WHERE (1) THE ACT WAS INHERENTLY WRONG [MALUM IN SE]; OR (2) THE ACTIVITY INVOLVED SOME OBVIOUS DANGER TO THE PUBLIC WHICH PUT THE ACTOR ON NOTICE OF A LIKELIHOOD OF REGULATION; OR, (3) THE ACTOR WAS IN A POSITION OF RESPONSIBILITY SUFFICIENT TO PLACE HIM OR HER UNDER A DUTY TO INQUIRE INTO AND BE INFORMED OF ALL APPLICABLE REGULATIONS. IN A SENSE, THESE MAY BE LIMITATIONS ON IGNORANCE OF THE LAW IS NO EXCUSE. BUT, DISTINGUISH BETWEEN TWO DIFFERENT TYPES OF IGNORANCE: (1) IGNORANCE OF THE EXISTENCE OR SCOPE OF A PARTICULAR CRIMINAL PROHIBITION, WHICH IS ONLY RARELY ACCEPTED AS A DEFENSE; AND (2) IGNORANCE OR MISTAKE WHICH TENDS TO NEGATIVE THE MENS REA REQUIRED FOR THE CRIME CHARGED, WHICH FREQUENTLY IS ACCEPTED AS A DEFENSE. LAMBERT IS DISTINGUISHED FROM FREED BY JUSTICE DOUGLAS: BEING IN LOS ANGELES IS PER SE BLAMEWORTHY, WHEREAS ONE WOULD HARDLY BE SURPRISED TO LEARN THAT POSSESSION OF HAND GRENADES IS NOT AN INNOCENT ACT. PART B. REGULATORY OFFENSES AND STRICT LIABILITY MORRISETTE V. UNITED STATES EXPLORES THE QUESTION OF WHETHER THERE MUST BE A SPECIFIC REQUIREMENT OF CULPABLE SATE OF MIND IN A STATUTE IN ORDER TO PLACE THE BURDEN OF PROVING ONE ON THE PROSECUTION. THIS WAS THE BOMB CASING
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THEFT CASE.

THE COURT RULED THAT THE STATUTE DID NOT

REQUIRE AN ELEMENT OF CRIMINAL INTENT, BECAUSE NONE WAS STATED BY CONGRESS IN THE STATUTE, AND THE U.S. SUPREME COURTS DECISIONS IN BEHRMAN AND BALINT. BUT THOSE TWO CASES BELONGED TO A CATEGORY OF CRIMES REQUIRING NO MENTAL ELEMENT, BUT ONLY AN ACT, BECAUSE THEY WERE WHAT MIGHT BE CALLED PUBLIC WELFARE OFFENSES. BALINT INVOLVED DISPENSING A CONTROLLED SUBSTANCE WITHOUT A PRESCRIPTION, AND BEHRMAN INVOLVED DISPENSING A CONTROLLED SUBSTANCE TO A KNOWN ADDICT. BUT, IF THESE CASES WERE TO BE CONSIDERED AS PRECEDENT FOR ALL CRIMINAL STATUTES, IT WOULD VIRTUALLY DO AWAY WITH ANY REQUIREMENT OF A CULPABLE STATE OF MIND. WEITZENHOFF WAS ANOTHER CASE OF A PUBLIC WELFARE CRIME. THE DEFENDANTS DISCHARGED UNTREATED WASTE INTO THE OCEAN. BECAUSE PUBLIC HEALTH AND SAFETY WAS INVOLVED, THE GOVERNMENT WAS ONLY REQUIRED TO SHOW THAT THE DEFENDANTS COMMITTED THE ACT. THE GOVERNMENT DID NOT NEED TO SHOW THAT THEY DID SO KNOWING THAT THEY WERE VIOLATING THE REGULATIONS OR THE PERMIT. C. CONDUCT REQUIREMENT ALL CRIMINAL CONDUCT MUST BE BASED UPON AN ACT. PEOPLE

V. NEWTON [KILLING OF POLICE OFFICER] INSTRUCTS THAT ONE WHO IS UNCONSCIOUS IS NOT HELD RESPONSIBLE FOR HIS ACT, PEOPLE V. DECINA TELLS US THAT THE ACT WHICH CAUSES THE
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CRIMINAL LIABILITY MAY OCCUR BEFORE THE HARM IS CAUSED [EPILEPTIC DRIVING CAR]. PESTINIKAS [ISOLATING MAN AND NOT FEEDING HIM] SHOWS THAT A FAILURE TO ACT, WHERE THERE IS A LEGAL DUTY TO ACT, CAN BE THE CONDUCT REQUIRED FOR CRIMINAL LIABILITY. AND CALI [ARSON] ILLUSTRATES THAT, WHILE THERE MUST BE A CERTAIN MENS REA IN MOST CASES, THAT MENS REA DOES NOT NECESSARILY HAVE TO HAVE BEEN FORMED BEFORE THE ACT OCCURS. MODEL PENAL CODE LETS LOOK AT SOME OF THE MENS REA PROBLEMS UNDER THE CODE. FOR EXAMPLE: SUPPOSE A DEFENDANT IS CHARGED WITH THE THE FACTS ARE THAT THE DEFENDANT OFFENSE OF WILLFULLY DESTROYING GOVERNMENT PROPERTY WITHOUT LEGAL AUTHORITY. HAS BEEN ORDERED BY APPROPRIATE LEGAL AUTHORITY TO DESTROY CERTAIN PRIVATE PROPERTY, AND HE HAS CARELESSLY DESTROYED GOVERNMENT PROPERTY INSTEAD. HE KNEW HE WAS DESTROYING PROPERTY, AND HE SHOULD HAVE KNOWN, BUT DID NOT KNOW, THAT HE WAS DESTROYING GOVERNMENT PROPERTY INSTEAD OF PRIVATE PROPERTY. IS HE GUILTY OF THE OFFENSE? HOW WOULD YOU BEGIN YOUR ANALYSIS? IN THE STATUTE? WHAT DEGREE OF CULPABILITY IS STATED

THE STATUTE USES THE WORD WILLFULLY.

THE MODEL PENAL CODE, 2.02(8) SAYS A REQUIREMENT THAT AN OFFENSE BE COMMITTED WILLFULLY IS SATISFIED IF A PERSON ACTS KNOWINGLY WITH RESPECT TO THE MATERIAL ELEMENTS OF THE OFFENSE, UNLESS A PURPOSE TO IMPOSE FURTHER REQUIREMENTS
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APPEARS.

TO WHAT ELEMENTS OF THE OFFENSE DOES THIS TERM 2.02(1) PROVIDES THAT . . . A PERSON

WILLFULLY APPLY?

IS NOT GUILTY OF AN OFFENSE UNLESS HE ACTED PURPOSELY, KNOWINGLY, RECKLESSLY OR NEGLIGENTLY, AS THE LAW MAY REQUIRE, WITH RESPECT TO EACH MATERIAL ELEMENT OF THE OFFENSE. LOOKING AT 1.13(9) AND 1.13(10) WE SEE THAT THE ELEMENTS INCLUDE BOTH THE CONDUCT AND THE CIRCUMSTANCES, AND THAT SUCH ELEMENTS ARE MATERIAL IF THEY ARE RELATED TO THE EVIL SOUGHT TO BE PREVENTED. OUR EXAMPLE, THE ELEMENT OF LACK OF LEGAL AUTHORITY CONTAINED IN THE DESCRIPTION OF THE OFFENSE IS RELATED TO THE HARM SOUGHT TO BE PREVENTED, AND SO THE DEFENDANT MUST ACT KNOWINGLY AND NOT MERELY NEGLIGENTLY WITH RESPECT TO THIS ELEMENT. HOW ABOUT THE FACT THAT THE PROPERTY THE SAME IS TRUE OF THIS OUR FACTS STATE THAT HE OUGHT TO HAVE OF BELONGED TO THE GOVERNMENT? ELEMENT AS WELL. NOT. IN

KNOWN THAT HE WAS DESTROYING GOVERNMENT PROPERTY BUT DID HE MUST ACT KNOWINGLY AND NOT MERELY NEGLIGENTLY. COURSE, IT IS CONCEIVABLE THAT THE FACT THAT THIS IS GOVERNMENT PROPERTY MERELY ACTS TO ESTABLISH JURISDICTION IN A PARTICULAR COURT RATHER THAN TO DEFINE THE EVIL SOUGHT TO BE PREVENTED. ANOTHER EXAMPLE. SUPPOSE THAT THE DEFENDANT IS CHARGED WITH THE FELONY OF CAUSING INJURY TO A POLICE OFFICER, AND HE WISHES TO DEFEND ON THE GROUND THAT HE WAS TOO DRUNK TO REALIZE THAT THE PERSON WHOM HE WAS STRIKING WAS A
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POLICE OFFICER?

HERE, NO CULPABILITY IS EXPRESSED.

DOES

THIS MEAN THAT THE STATUTE PRESCRIBES STRICT LIABILITY? THE MODEL PENAL CODE, 2.02(3) PROVIDES, WHEN THE CULPABILITY SUFFICIENT TO ESTABLISH A MATERIAL ELEMENT OF AN OFFENSE IS NOT PRESCRIBED BY LAW, SUCH ELEMENT IS ESTABLISHED IF A PERSON ACTS PURPOSELY, KNOWINGLY, OR RECKLESSLY WITH RESPECT THERETO. ELEMENTS OF THIS OFFENSE? POLICE OFFICER. WHAT ARE THE MATERIAL (1) CAUSING INJURY; (2) TO A

WE ARE NOT CONCERNED WITH THE FIRST, HE IS

CAUSING INJURY, BECAUSE OUR DEFENDANT IS NOT DEFENDING ON THE BASIS THAT HE DID NOT INJURE THE POLICE OFFICER. PERSON WAS A POLICE OFFICER. LEFT ONLY WITH RECKLESSLY. OFFICER. DEFENDING ON THE BASIS THAT HE WAS TOO DRUNK TO REALIZE THE IF HE IS AS DRUNK AS HE SAYS THUS, WE ARE THUS, THERE MUST BE HE CANNOT HAVE ACTED KNOWINGLY OR PURPOSELY.

RECKLESSNESS WITH REGARD TO THE VICTIMS STATUS AS A POLICE UNDER 2.08(2) WHEN RECKLESSNESS ESTABLISHES AN ELEMENT OF THE OFFENSE, IF THE ACTOR, DUE TO SELF-INDUCED INTOXICATION, IS UNAWARE OF A RISK OF WHICH HE WOULD HAVE BEEN AWARE HAD HE BEEN SOBER, SUCH UNAWARENESS IS IMMATERIAL. SO OUR DEFENDANT WOULD NOT BE ABLE TO USE THE DEFENSE OF VOLUNTARY INTOXICATION UNLESS THERE WAS SOME REASON WHY HE WOULD NOT HAVE KNOWN THE VICTIM WAS A POLICE OFFICER IF HE HAD BEEN SOBER. MISTAKE OF LAW
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EXAMPLE: SUPPOSE OUR DEFENDANT IS CHARGED WITH THE CRIME OF BIGAMY: KNOWINGLY MARRYING ANOTHER PERSON WHILE HE OR SHE HAS A LIVING SPOUSE. SPOUSE. OUR DEFENDANT MARRIES HIS SECOND SPOUSE AFTER OBTAINING A MEXICAN DIVORCE FROM HIS FIRST HE GENUINELY BELIEVES THAT THIS DIVORCE IS IN OTHER RECOGNIZED AS VALID IN THE STATE OF PROSECUTION. MISTAKE OF LAW. WHAT WOULD BE THE RESULT UNDER THE COMMON LAW RULE ON MISTAKE, WHICH WE HAVE STUDIED? EXCUSE. IGNORANCE OF THE LAW IS NO SOME COURTS WOULD STILL APPLY THE COMMON-LAW RULE

WORDS, HE BELIEVES THAT HE WAS FREE TO REMARRY BECAUSE OF A

AND CONVICT THE DEFENDANT OF BIGAMY. HOW IS MISTAKE TREATED UNDER THE MODEL PENAL CODE? IGNORANCE OR MISTAKE IS COVERED UNDER 2.04. 2.04(1) PROVIDES THAT (1) IGNORANCE OR MISTAKE AS TO A MATTER OF FACT OR LAW IS A DEFENSE IF (A) THE IGNORANCE OR MISTAKE NEGATIVES THE PURPOSE, KNOWLEDGE, BELIEF, RECKLESSNESS OR NEGLIGENCE REQUIRED TO ESTABLISH A MATERIAL ELEMENT OF THE OFFENSE: . . . WHAT RESULT UNDER 2.04(1)? THE STATUTE STATES KNOWINGLY AS THE DEGREE OF CULPABILITY REQUIRED. IF IGNORANCE OR MISTAKE NEGATIVES KNOWLEDGE AND THE MISTAKE HERE AS TO THE VALIDITY OF THE MEXICAN DIVORCE DOES JUST THAT, THE MISTAKE WILL NEGATIVE AN ELEMENT OF THE CRIME; ERGO, NO CONVICTION.
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BE SURE YOU UNDERSTAND THE DISTINCTION? IGNORANCE OF THE FACT THAT HIS MEXICAN DIVORCE IS NOT VALID IN THE STATE OF PROSECUTION WOULD BE A MISTAKE THAT WOULD EXCUSE HIS CRIMINAL LIABILITY FOR HAVING REMARRIED. [HE DOES NOT KNOW THAT HE HAD A LIVING SPOUSE WHEN HE REMARRIED.] IGNORANCE OF THE FACT THAT THE LAW PROHIBITED HIS HAVING TWO SPOUSES AT THE SAME TIME WOULD BE A SITUATION IN WHICH IGNORANCE OF THE LAW WOULD NOT EXCUSE. WILLFUL BLINDNESS IS ANOTHER AREA WHERE IT IS USEFUL TO LOOK TO THE MODEL PENAL CODE. 2.02(7) STATES: WHEN KNOWLEDGE OF THE EXISTENCE OF A PARTICULAR FACT IS AN ELEMENT OF AN OFFENSE, SUCH KNOWLEDGE IS ESTABLISHED IF A PERSON IS AWARE OF A HIGH PROBABILITY OF ITS EXISTENCE, UNLESS HE ACTUALLY BELIEVED THAT IT DOES NOT EXIST. THE COMMENTARY TO 2.02(7) STATES: THE TEXTUAL JUSTIFICATION IS THAT IN COMMON UNDERSTANDING ONE KNOWS FACTS OF WHICH HE IS LESS THAN ABSOLUTELY CERTAIN. TO ACT KNOWINGLY, THEREFORE, IS NOT NECESSARILY TO ACT ONLY WITH POSITIVE KNOWLEDGE, BUT ALSO TO ACT WITH AN AWARENESS OF A HIGH PROBABILITY OF THE EXISTENCE OF THE FACT IN QUESTION. SUCH AWARENESS IS PRESENT, POSITIVE KNOWLEDGE IS NOT REQUIRED. CHAPTER 3. CRIMINAL HOMICIDE WHEN

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A.

MURDER: THE MEANING OF MALICE AFORETHOUGHT MALICE AFORETHOUGHT IS A LEGAL TERM OF ART IN WHICH THE THE TERM HAS

WORDS ARE NOT USED IN THEIR ORDINARY SENSE. BOTH POSITIVE AND NEGATIVE ELEMENTS.

THE POSITIVE ELEMENT

OF MALICE AFORETHOUGHT REQUIRES A CERTAIN STATE OF MIND, SUCH AS INTENT TO KILL, INTENT TO COMMIT SERIOUS OR GRIEVOUS BODILY HARM, OR WANTON AND RECKLESS DISREGARD OF A VERY GREAT RISK OF CAUSING DEATH OR SERIOUS BODILY INJURY. OF ART. TO REPEAT, MALICE AFORETHOUGHT IS A LEGAL TERM A KILLING NEED NOT BE MALICIOUS IN THE USUAL SENSE

OF THAT WORD, NOR THOUGHT OF BEFOREHAND (AS IN PREMEDITATION), TO BE A KILLING WITH MALICE AFORETHOUGHT AND THEREFORE MURDER. IN ADDITION TO THE THREE KINDS OF STATE OF MIND WHICH WOULD COME WITHIN THE TERM (INTENT TO KILL, INTENT TO CAUSE SERIOUS OR GRIEVOUS BODILY HARM, WANTON AND RECKLESS DISREGARD OF A VERY GREAT RISK OF CAUSING DEATH OR SERIOUS BODILY INJURY), THERE IS A FOURTH WHICH IS RECOGNIZED WIDELY, AND THAT IS A KILLING ARISING OUT OF THE COMMISSION OF CERTAIN FELONIES (THE FELONY MURDER DOCTRINE). THE NEGATIVE ELEMENT OF MALICE AFORETHOUGHT IS THE ABSENCE OF ANY CIRCUMSTANCES WHICH WOULD MITIGATE THE HOMICIDE-REDUCE IT FROM MURDER TO MANSLAUGHTER; E.G. ACTING UNDER THE STRESS OF EXTREME EMOTIONAL DISTURBANCE FOR WHICH THERE IS REASONABLE EXCUSE. SOME EXAMPLES MAY SERVE TO CLARIFY THE SITUATION: SHOOTS AT B INTENDING TO KILL HIM, BUT MISSES AND THE
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IF A

BULLET STRIKES C AND KILLS HER, A ALSO COMMITS AN INTENTIONAL KILLING OF C UNDER THE DOCTRINE OF TRANSFERRED INTENT. EVEN IF AS INTENT IS NOT TO KILL, BUT TO CAUSE AND EVEN IF THERE IS NO THIS IS THE GRIEVOUS BODILY HARM TO B, BUT DEATH RESULTS, A IS GUILTY OF AN INTENTIONAL KILLING. SPECIFIC INTENT TO KILL A PARTICULAR PERSON, BUT DEATH RESULTS, WE MAY HAVE MALICE AFORETHOUGHT. SERIOUS BODILY HARM. RECKLESS DISREGARD OF A VERY GREAT RISK OF CAUSING DEATH OR AND IF A IS COMMITTING AN ARMED ROBBERY AND HIS ACCOMPLICE ACCIDENTALLY KILLS A BY-STANDER, UNDER THE FELONY MURDER DOCTRINE, MALICE AFORETHOUGHT IS IMPUTED TO THE CO-FELONS UNDER THE AGENCY THEORY. NOTE THAT MALICE AFORETHOUGHT REQUIRES THE ABSENCE OF ANY CIRCUMSTANCES, WHICH WOULD MITIGATE THE HOMICIDE. IF THE DEFENDANT IS ACTING UNDER THE HEAT OF PASSION CAUSED BY LEGALLY SUFFICIENT PROVOCATION, THIS WOULD MITIGATE THE DEGREE OF THE OFFENSE. THE RULE OF PROVOCATION SET OUT IN THE HOLMES CASE WAS (1) THAT A REASONABLE PERSON, AS A RESULT OF PROVOCATION RECEIVED, MIGHT BE SO RENDERED SUBJECT TO PASSION OR LOSS OF SELF-CONTROL AS TO BE LED TO USE VIOLENCE WITH FATAL RESULTS; AND (2) THAT THE PERSON WAS IN FACT ACTING UNDER THE STRESS OF SUCH PROVOCATION. SUBSIDIARY INQUIRY IS WHETHER THERE HAS BEEN A COOLING OFF PERIOD, SO THAT THE PERSON MAY NOT BE ACTING UNDER WHAT OTHERWISE WOULD HAVE BEEN ADEQUATE PROVOCATION. THIS DOES
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NOT MEAN, HOWEVER, THAT THERE MUST HAVE BEEN A TRIGGERING

EVENT JUST PRIOR TO THE VIOLENCE, WHICH RESULTED IN THE KILLING. WHAT IS ADEQUATE PROVOCATION? THE HOLMES COURT STATED THE THAT MERE WORDS WOULD NEVER BE SUFFICIENT. SUFFICIENT.

CALIFORNIA COURT SUGGESTED THAT VERBAL PROVOCATION MAY BE THE ILLINOIS COURT SAID MERE WORDS WERE NOT THE ENOUGH EVEN IF THEY WERE A CONFESSION OF ADULTERY.

MODEL PENAL CODE, 2.10.3(1)(b) STATES, CRIMINAL HOMICIDE CONSTITUTES MANSLAUGHTER WHEN . . . A HOMICIDE WHICH WOULD OTHERWISE BE MURDER IS COMMITTED UNDER THE INFLUENCE OF EXTREME MENTAL OR EMOTIONAL DISTURBANCE FOR WHICH THERE IS A REASONABLE EXPLANATION OR EXCUSE. THE REASONABLENESS OR EXCUSE SHALL BE DETERMINED FROM THE VIEWPOINT OF A PERSON IN THE ACTORS SITUATION UNDER THE CIRCUMSTANCES AS HE BELIEVES THEM TO BE. THAT SEEMS TO LEAVE THE QUESTION OF WHETHER MERE WORDS ARE SUFFICIENT UP TO THE JURY UNDER A SPLIT OBJECTIVE-SUBJECTIVE STANDARD. B.
C.

PREMEDITATION

WE VIEWED PREMEDITATION FROM THE PERSPECTIVE OF A THERE NEED BE NO APPRECIABLE SPACE OF TIME BETWEEN THEY MAY BE

NUMBER OF DIFFERENT JUDICIAL STATEMENTS OF JUST WHAT IT MEANT: THE INTENTION TO KILL AND THE ACT OF KILLING.

AS INSTANTANEOUS AS SUCCESSIVE THOUGHTS OF THE MIND. ANOTHER COURT SPECIFICALLY REJECTED SUCH A STATEMENT: WE
18

HAVE REPEATEDLY POINTED OUT THAT THE LEGISLATIVE CLASSIFICATION OF MURDER IN TWO DEGREES WOULD BE MEANINGLESS IF DELIBERATION AND PREMEDITATION WERE CONSTRUED AS REQUIRING NO MORE REFLECTION THAN MAY BE INVOLVED IN THE MERE FORMATION OF A SPECIFIC INTENT TO KILL. THE SAME COURT HELD THAT IF THE EVIDENCE SHOWED NO MORE THAN THE INFLICTION OF MULTIPLE ACTS OF VIOLENCE ON THE VICTIM, IT WOULD NOT BE SUFFICIENT TO SHOW THAT THE KILLING WAS THE RESULT OF CAREFUL THOUGHT AND WEIGHING OF CONSIDERATIONS. PERHAPS THE DIFFERENCE BETWEEN THE TWO VIEWS IS CONTROLLED BY WHETHER THE STATE RECOGNIZES TWO DEGREES OF MURDER, RATHER THAN A HOMICIDE STATUTE SUCH AS THAT CONTAINED IN THE MODEL PENAL CODE WHERE THERE IS ONLY ONE DEGREE OF MURDER, WHICH MAY BE SUPPORTED BY DIFFERENT CULPABLE MENTAL STATES. PREMEDITATION. C. LIABILITY FOR UNINTENTIONAL KILLINGS WE LOOKED AT VARIOUS UNINTENTIONAL KILLINGS: RUSSIAN ROULETTE. MALICE WAS FOUND UNDER THE DEPRAVED HEART KIND OF MURDER; AN ACT OF GROSS RECKLESSNESS FOR WHICH HE MUST REASONABLY ANTICIPATE THAT DEATH TO ANOTHER IS LIKELY TO RESULT(depraved heart murder). THE MODEL PENAL CODE ALSO
19

CERTAINLY, A LOT OF FINE LINE

DRAWING TAKES PLACE IN TRYING TO DETERMINING THIS MATTER OF

MAKES PROVISION FOR EXTREME INDIFFERENCE TO THE VALUE OF

HUMAN LIFE IN ITS HOMICIDE STATUTE.

210.2 PROVIDES (1)

EXCEPT AS PROVIDED IN SECTION 210.3(1)(b) [EXTREME EMOTION DISTURBANCE] CRIMINAL HOMICIDE CONSTITUTES MURDER WHEN (b) IT IS COMMITTED RECKLESSLY UNDER CIRCUMSTANCES MANIFESTING EXTREME INDIFFERENCE TO THE VALUE OF HUMAN LIFE. SUCH RECKLESSNESS AND INDIFFERENCE ARE PRESUMED IF THE ACTOR IS ENGAGED * * * IN THE COMMISSION OF * * * ROBBERY, RAPE OR DEVIATE SEXUAL INTERCOURSE BY FORCE OR THREAT OF FORCE, ARSON, BURGLARY, KIDNAPPING OR FELONIOUS ESCAPE. THAN AN INSTRUCTION ON INTOXICATION WOULD NOT BE APPROPRIATE IN A CASE WHERE THERE IS DEPRAVED HEART KIND OF HOMICIDE. FOR EXAMPLE, THE MODEL PENAL CODE, 2.08 PROVIDES WHEN RECKLESSNESS ESTABLISHES AN ELEMENT OF THE OFFENSE, IF THE ACTOR, DUE TO SELF-INDUCED INTOXICATION, IS UNAWARE OF A RISK OF WHICH HE WOULD HAVE BEEN AWARE HAD HE BEEN SOBER, SUCH UNAWARENESS IS IMMATERIAL. IN ADDITION TO THE RUSSIAN ROULETTE CASE, IN WELANSKY, WE EXPLORED THE COCONUT GROVE FIRE IN WHICH THE OWNER WAS CONVICTED OF MANSLAUGHTER BECAUSE OF SAFETY VIOLATIONS IN THE NIGHTCLUB. THERE, THE COURT HELD THAT HIS CONDUCT IN NOT CORRECTING VARIOUS DEFICIENCIES, SUCH AS EXITS, CONSTITUTED WANTON AND RECKLESS CONDUCT. WE ALSO SAW A CASE OF NEGLIGENT HOMICIDE, WHERE THE PARENTS HAD NOT SOUGHT MEDICAL ATTENTION SOON ENOUGH FOR THEIR INFANT CHILD.
20

NOTE

ALL OF THESE CASES ILLUSTRATE THEORIES OF HOMICIDE WHICH DO NOT REQUIRE AN INTENT TO KILL. D. THE FELONY MURDER RULE THE FELONY MURDER RULE PERMITS A CONVICTION IF A DEATH RESULTS DURING AND AS A RESULT OF A FELONY COMMITTED BY THE DEFENDANT. THE RULE ALSO MAKES ANY ACCOMPLICE IN THE THIS WOULD COMMISSION OF THE FELONY GUILTY OF MURDER. ACTUALLY BE UNDER COMPLICITY PRINCIPLES. THE RULE IS VIRTUALLY NEVER IMPLEMENTED IN ITS BROADEST FORM. AT ITS BROADEST, THE RULE MEANS THAT A PERSON WHO HAS THE CULPABILITY NECESSARY FOR CONVICTION OF ANY FELONY WILL BE CONVICTED OF MURDER IF, DURING THE COURSE OF THE FELONY ANOTHER PERSON IS KILLED. MURDER RULE. OF COURSE, IF THE VICTIM IS INTENTIONALLY KILLED, THERE IS NO NEED FOR THE FELONY THUS, THE FELONY MURDER DOCTRINE IS NECESSARY ITS EFFECT IS TO ELEVATE TO ONLY IN THOSE CASES WHERE CULPABILITY FOR MURDER CANNOT BE INDEPENDENTLY ESTABLISHED. MURDER A HOMICIDE THAT OTHERWISE WOULD BE MANSLAUGHTER OR THAT PERHAPS, BECAUSE IT WAS ACCIDENTAL, WOULD NOT BE CRIMINAL AT ALL. OBVIOUSLY, THERE IS NOT NECESSARILY A CONCURRENCE BETWEEN THE CULPABILITY REQUIRED FOR THE COMMISSION OF THE UNDERLYING FELONY AND THAT REQUIRED FOR CONVICTION OF MURDER. THE FELONY MURDER RULE MIGHT MAKE MORE SENSE IF
21

THERE WAS SUCH CONCURRENCE. TAX FRAUD CASE.

OBVIOUSLY, THE FELONY MURDER

RULE MAKES MORE SENSE IN AN ARMED ROBBERY CASE THAN IN A OF COURSE, THE FELONY MURDER RULE IS LESS LIKELY TO BE NEEDED IN AN ARMED ROBBERY CASE BECAUSE IT IS MORE LIKELY THAT THE CULPABILITY NEEDED FOR MURDER-EXTREME RECKLESSNESS MANIFESTING DISREGARD FOR THE VALUE OF HUMAN LIFE-CAN BE INDEPENDENTLY PROVEN. THERE HAVE BEEN A NUMBER OF LIMITATIONS DEVELOPED WITH REGARD TO THE FELONY MURDER RULE. INHERENTLY DANGEROUS FELONIES. THE MOST IMPORTANT OF BASICALLY, THIS MEANS THE LIST ALMOST THESE IS THAT IT IS LIMITED TO WHAT MIGHT BE TERMED FELONIES THAT ARE DANGEROUS TO LIFE.

ALWAYS INCLUDES ARSON, RAPE, ROBBERY, AND BURGLARY. OTHER LIMITATIONS ARE THE PROXIMATE CAUSE LIMITATION, I.E. THAT THE COMMISSION OF THE UNDERLYING FELONY MUST BE THE PROXIMATE CAUSE OF THE DEATH. THIS WOULD LIMIT THE EFFECT BASED UPON WHETHER THE KILLING WAS REASONABLY FORESEEABLE FROM THE MANNER IN WHICH THE FELONY WAS COMMITTED; THE INDEPENDENT FELONY LIMITATION, I.E. THAT THE FELONY MUST BE INDEPENDENT OF ANY ACTS WHICH WERE A NECESSARY PART OF THE HOMICIDE (A LESSER INCLUDED OFFENSE SUCH AS MANSLAUGHTER OR ASSAULT COULD THUS NOT TRIGGER THE FELONY MURDER RULE. THIS IS LIKE THE MERGER RULE FROM PEOPLE V. SMITH, THE CALIFORNIA CASE WHERE THE COURT HELD THAT FELONY CHILD ABUSE WAS NOT SUCH AN INDEPENDENT FELONY AND THUS MERGED WITH THE HOMICIDE); WHEN THE FELONY BEGINS
22

AND ENDS AS A LIMITATION, I.E. A KILLING WHICH OCCURS PRIOR THE BEGINNING OF THE UNDERLYING FELONY OR AFTER THE END OF THE UNDERLYING FELONY CANNOT SUPPORT A FELONY MURDER CONVICTION. (THERE ARE VARIOUS VIEWS ON WHEN THE FELONY BEGINS OR ENDS AND NO CATEGORICAL ANSWER CAN BE GIVEN); KILLING COMMITTED BY THE FELON LIMITATION-I.E. THAT THE FELON ACTUALLY KILLED THE DECEDENT(UNDER THIS THEORY, IF THE KILLING WAS DONE BY A BYSTANDER OR THE VICTIM OR A POLICE OFFICER REACTING TO THE COMMISSION OF THE UNDERLYING FELONY, THE FELONY MURDER RULE WOULD NOT APPLY (IF THE PROXIMATE CAUSE APPROACH IS USED IT HAS BEEN HELD THAT THE SURVIVING FELON IS GUILTY OF FELONY MURDER. IS NOT GUILTY OF FELONY MURDER. IF THE AGENCY THEORY IS USED, IT HAS BEEN HELD THAT THE SURVIVING FELON THE RECENT TREND SEEMS TO FAVOR THE AGENCY APPROACH, WHICH IS CONSONANT WITH THE GENERAL APPROACH OF LIMITING THE SCOPE OF THE FELONY MURDER DOCTRINE.) IN JURISDICTIONS WHICH HAVE TWO DEGREES OF MURDER, THE FIRST DEGREE CATEGORY WILL USUALLY INCLUDE A LIST OF DANGEROUS FELONIES THAT WILL SUPPORT A FIRST DEGREE MURDER CONVICTION UNDER THE FELONY MURDER THEORY. IF THE FELONY MURDER THEORY IS NOT CONSTRAINED, HOWEVER, SINCE THE STATUTE USUALLY PROVIDES THAT ALL OTHER FELONY MURDERS ARE SECOND DEGREE MURDER, THE DOCTRINE WILL CONVERT ALL OTHER HOMICIDES OCCURRING DURING THE COMMISSION OF ALL OTHER UNDERLYING FELONIES INTO SECOND DEGREE MURDER.
23

IN ENGLAND, AND AT LEAST THREE STATES (HAWAII, KENTUCKY, AND MICHIGAN) THE FELONY MURDER DOCTRINE HAS BEEN ABOLISHED ALTOGETHER. THE MODEL PENAL CODE STATES THAT A PERSON IS GUILTY OF CRIMINAL HOMICIDE IF HE PURPOSELY, KNOWINGLY, RECKLESSLY OR NEGLIGENTLY CAUSES THE DEATH OF ANOTHER HUMAN BEING. SECTION 210.2(1)(b) PROVIDES THAT CRIMINAL HOMICIDE IS MURDER WHEN IT IS COMMITTED UNDER CIRCUMSTANCES MANIFESTING EXTREME INDIFFERENCE TO HUMAN LIFE. SUCH RECKLESSNESS AND INDIFFERENCE IS PRESUMED IF THE ACTOR IS ENGAGED OR IS AN ACCOMPLICE IN THE COMMISSION OF, OR AN ATTEMPT TO COMMIT, OR FLIGHT AFTER COMMITTING OR ATTEMPTING TO COMMIT ROBBERY, RAPE, OR DEVIATE SEXUAL INTERCOURSE BY FORCE OF THREAT OF FORCE, ARSON, BURGLARY, KIDNAPPING, OR FELONIOUS ESCAPE. THERE IS A SUBTLE DISTINCTION BETWEEN BASICALLY, THIS THIS AND A REGULAR FELONY MURDER RULE.

DISTINCTION IS WHAT THE AARON CASE FROM MICHIGAN IS ALL ABOUT, IN WHICH THE MICHIGAN COURT ABOLISHED FELONY MURDER IN MICHIGAN. UNDER THE COMMON LAW FELONY MURDER DOCTRINE, IN EFFECT, THE MENS REA REQUIRED FOR MURDER IS ESTABLISHED BY THE MERE FACT OF COMMISSION OF THE UNDERLYING FELONY. STRICT LIABILITY OFFENSE. IS NOT THE CASE. THE HOMICIDE, AS DISTINCT FROM THE UNDERLYING FELONY, WAS A UNDER THE MODEL PENAL CODE, THAT SECTION 210(1)(b)CREATES A PRESUMPTION

THAT THE REQUISITE MENS REA HAS BEEN ESTABLISHED WHERE THE KILLING HAS BEEN COMMITTED IN THE PERPETRATION OF CERTAIN
24

ENUMERATED FELONIES. NO MORE.

IT IS JUST THAT, A PRESUMPTION, AND

THE JURY MAY, HOWEVER, REGARD THE FACTS GIVING

RISE TO THE PRESUMPTION (E.G. THAT A KILLING IN CONNECTION WITH ROBBERY IS RECKLESS CONDUCT UNDER CIRCUMSTANCES MANIFESTING EXTREME INDIFFERENCE TO HUMAN LIFE) UNLESS THE COURT DETERMINES THAT THE EVIDENCE AS A WHOLE CLEARLY NEGATIVES ANY SUCH CONCLUSION. IF THE COURT MAKES SUCH A DETERMINATION, THE UNDER SECTION 1.12(5) THE ISSUE OF THE EXISTENCE OF THE PRESUMPTION WILL NOT BE SUBMITTED TO THE JURY. WHEN THE ISSUE IS SUBMITTED TO THE JURY, THE COURT SHALL CHARGE THAT WHILE THE PRESUMED FACT MUST, ON ALL THE EVIDENCE, BE PROVED BEYOND A REASONABLE DOUBT, THE LAW DECLARES THAT THE JURY MAY REGARD THE FACTS GIVING RISE TO THE PRESUMPTION (KILLING AND ARMED ROBBERY, E.G.), IF SO PROVEN BEYOND A REASONABLE DOUBT, AS SUFFICIENT EVIDENCE OF THE PRESUMED FACT. THE PRESUMPTION MAY BE REBUTTED, OR SIMPLY NOT FOLLOWED BY THE JURY. (THIS PRESUMPTION APPROACH HAS NOT PROVEN TO BE ESPECIALLY POPULAR AMONG THOSE STATES WHICH HAVE MADE COMPREHENSIVE REVISIONS OF THEIR PENAL CODE.) E. THE ACT OF HOMICIDE-CAUSING THE DEATH OF ANOTHER HUMAN BEING 1. WHEN DOES LIFE BEGIN AND END?

25

AT COMMON LAW, THE KILLING OF A FETUS OR UNBORN CHILD IN THE WOMB WAS NOT HOMICIDE UNLESS THE CHILD WAS BORN ALIVE AND THEN DIED SUBSEQUENTLY AS A RESULT OF INJURIES WHILE IT WAS IN THE WOMB. BORN ALIVE RULE. THERE ARE A NUMBER OF STATES WHICH HAVE ADOPTED STATUTES ABROGATING THIS COMMON LAW THE MAJORITY OF STATES WHICH HAVE THUS, CODIFIED THE CRIME OF MURDER OF AN UNBORN, HAVE CREATED LIABILITY ONLY IF THE FETUS WAS VIABLE OR QUICK. WE WOULD SEEM TO HAVE THREE SEPARATE APPROACHES TO THE KILLING OF A FETUS: (1) THE COMMON LAW BORN ALIVE RULE; (2) KILLING OF THE FETUS WOULD CONSTITUTE HOMICIDE IN ALL CASES; (3) KILLING OF THE FETUS WOULD BE HOMICIDE ONLY IF THE FETUS WAS VIABLE OR QUICK. OBVIOUSLY, ONE CANNOT BE GUILTY OF CAUSING THE DEATH OF ANOTHER HUMAN BEING IF THAT PERSON IS ALREADY DEAD. HISTORICALLY, THAT HAS BEEN DEFINED IN TERMS OF CESSATION OF HEART AND RESPIRATORY FUNCTION. BRAIN FUNCTION. IN SOME STATES, IT IS ALSO DEFINED IN TERMS OF IRREVERSIBLE CESSATION OF ALL THIS ASPECT OF WHETHER THERE HAS BEEN A HOMICIDE MAY OCCUR IN DIFFERENT SITUATIONS. REMOVAL OF ARTIFICIAL RESPIRATION, REMOVAL OF INTRAVENOUS FEEDING AND HYDRATION, E.G. THE UNITED STATES SUPREME COURT HAS HELD THAT REMOVAL OF INTRAVENOUS TUBES WHICH PROVIDE HYDRATION AND NOURISHMENT CANNOT BE REMOVED FROM A COMATOSE PATIENT, EVEN ONE WHO IS IN A PERMANENT VEGETATIVE STATE ABSENT CLEAR AND CONVINCING PROOF THAT
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THE PATIENT WOULD WANT TO DIE. CONSTITUTE HOMICIDE.

ABSENT THIS CLEAR AND

CONVINCING PROOF, REMOVING SUCH INTRAVENOUS TUBES WOULD ERGO, THE IMPORTANCE OF LIVING WILLS AND HEALTH CARE DIRECTIVES. ANOTHER SITUATION IS WHERE THERE HAS BEEN MORE THAN ONE ACTOR. AN EXAMPLE FROM LAFAVE AND SCOTT: IF THE DEFENDANT HAS INFLICTED A WOUND WHICH WOULD PROVE FATAL AND A THIRD PARTY COMES ALONG WHILE THE VICTIM HAS BUT HOURS TO LIVE AND KILLS HIM INSTANTLY, THE THIRD-PARTYS ACT SUBSTANTIALLY HASTENING DEATH CONSTITUTES THE CAUSE OF DEATH AND THE DEFENDANT CANNOT BE CONVICTED OF HOMICIDE. BUT, AS IS POINTED OUT, WHEN THE CULPABLE ACT PRODUCES THE INTERVENING CAUSE THE DEFENDANT REMAINS LIABLE FOR ALL FORESEEABLE CONSEQUENCES. MEDICAL TREATMENT FOR A WOUND IS BUT RESPONSIBILITY AN INTERVENING CAUSE OF THIS SORT BECAUSE ACTS OF ORDINARY MEDICAL MALPRACTICE ARE FORESEEABLE. DOES NOT EXTEND TO ALL INTERVENING ACTS TO WHICH THE VICTIM WOULD NOT HAVE BEEN EXPOSED BUT FOR THE DEFENDANTS ACTS. THE DEFENDANT IS NOT LIABLE FOR GROSS NEGLIGENCE OR INTENTIONAL MALPRACTICE. HE IS LIKEWISE NOT LIABLE FOR COINCIDENCES AS, FOR EXAMPLE, THE VICTIM IS INJURED IN AN AMBULANCE ACCIDENT ON THE WAY TO THE HOSPITAL AND DIES. THE TRAFFIC ACCIDENT IS TOO REMOTE. BUT REMEMBER THE CASE THE OF LEAVING THE DRUNK IN THE MIDDLE OF THE ROAD.

SUBSEQUENT KILLING OF THE DRUNK BY THE DRIVER OF THE TRUCK

27

DOES NOT GET THE ACTORS OFF THE HOOK.

IT WAS FORSEEABLE

THAT THE ACCIDENTAL KILLING WOULD OCCUR. 2. SUICIDE AS HOMICIDE THIS IS A RATHER VAGUE TOPIC. RELATING TO SUICIDE AS HOMICIDE. STEPHENSON REPRESENTS A MS. OBERHOLTZER TOOK

PRETTY FAR OUT APPLICATION OF THE THEORY OF CAUSATION BICHLORIDE OF MERCURY TABLETS IN AN ATTEMPT TO KILL HERSELF BECAUSE OF THE PERVERTED SEXUAL ACTS PERFORMED UPON HER AGAINST HER WILL BY STEPHENSON. COMPLICATIONS. SHE EVENTUALLY DIED FROM WHILE THE OTHER ATENCIO EXTENDED CRIMINAL LIABILITY FOR

SUICIDE IN A GAME OF RUSSIAN ROULETTE.

PARTICIPANTS HAD NO OBLIGATION TO STOP HIM, THEY HAD AN OBLIGATION NOT TO ENCOURAGE THE CONDUCT BY THEIR PARTICIPATION. IN RE JOSEPH G. THE APPELLATE COURT REVERSED THE CONVICTION OF THE SURVIVOR OF THE TWO YOUTHS. ALTHOUGH ATTEMPTED SUICIDE IS GENERALLY NO LONGER A CRIME, AIDING AND ABETTING A SUICIDE IS IN MANY JURISDICTIONS. THE CASE DISCUSSES THREE DIFFERENT POSSIBILITIES IN CASES INVOLVING MUTUAL SUICIDE PACTS: (1) THE SURVIVOR ACTIVELY PARTICIPATED IN KILLING THE OTHER MEMBER OF THE PACT. THAT CASE IT WOULD BE MURDER. IN (2) ONE PARTY PROVIDES THE

MEANS (E.G. SUPPLYING THE POISON OR THE WEAPON), BUT EACH INDIVIDUAL IS TO KILL HIMSELF PURSUANT TO THE AGREEMENT. (3) THE CIRCUMSTANCES ENVISION BOTH PARTIES KILLING
28

THEMSELVES SIMULTANEOUSLY WITH A SINGLE INSTRUMENTALITY (THE IN RE JOSEPH G. CASE.) IN EACH OF THE LATTER TWO CASES, THE PROPER CHARGE, IF ONE SURVIVES, IS AIDING AND ABETTING SUICIDE, RATHER THAN MURDER. THE CASE OF DR. KEVORKIAN. 3. UNEXPECTED CONSEQUENCES WE HAD TWO CASES IN THIS SECTION. IN WARNER-LAMBERT AND THEN, WE HAVE

THE COURT HELD THAT THE DEFENDANTS WERE NOT GUILTY OF CRIMINAL LIABILITY IN THE DEATH OF EMPLOYEES WHO DIED IN THE EXPLOSION, WHERE THE TRIGGERING CAUSE THEREOF WAS NEITHER FORESEEN OR FORESEEABLE. THE COURT POINTED OUT THAT THE ESSENCE OF MANSLAUGHTER IN THE SECOND DEGREE IS AWARENESS ACCOMPANIED BY DISREGARD FOR THE RISK; FOR CRIMINALLY NEGLIGENT HOMICIDE THE ESSENCE IS FAILURE TO PERCEIVE THE RISK. WE CAN ARGUE WITH THE FACTS, BUT THE STATEMENT OF THE LAW IS CORRECT. HENDERSON V. KIBBE IS THE CASE OF THE VICTIM WHO WAS LEFT IN THE HIGHWAY AT NIGHT WHILE INTOXICATED SANS CLOTHING AND WHO WAS KILLED WHEN STRUCK BY A TRUCK. THE LIKELIHOOD OF SUCH HAPPENING WAS FORESEEABLE.

29

CHAPTER 4. THE ROLE OF MENTAL ILLNESS A. CAPACITY TO STAND TRIAL

I LECTURED VERY BRIEFLY ON FORD V. WAINWRIGHT (AN INSANE PERSON MAY NOT BE EXECUTED. IT IS UNCLEAR JUST WHAT INSNE MEANS IN THIS CONTEXT.), AND PATE V. ROBINSON, NOT IN YOUR CASEBOOK. TRIAL. PATE ESTABLISHED THE PRINCIPLE THAT AN ACCUSED MAY NOT BE TRIED IF HE IS NOT COMPETENT TO STAND THE STANDARD OF COMPETENCY WAS SET OUT BY THE UNITED STATES SUPREME COURT IN THE CASE OF DUSKY V. UNITED STATES: WHETHER THE ACCUSED HAS SUFFICIENT PRESENT ABILITY TO CONSULT WITH HIS LAWYER WITH A REASONABLE DEGREE OF RATIONAL UNDERSTANDING-AND WHETHER HE HAS A RATIONAL AS WELL AS FACTUAL UNDERSTANDING OF THE PROCEEDINGS AGAINST HIM. DISTINGUISH BETWEEN COMPETENCY TO STAND TRIAL AND INSANITY AS A DEFENSE. ONE MAY BE INSANE, YET BE COMPETENT IT IS IMPORTANT TO
30

TO STAND TRIAL AND VICE VERSA.

UNDERSTAND THAT THE RELEVANT TIME FOR EACH SITUATION IS

DIFFERENT. THE RELEVANT TIME FOR EXECUTION DOES NOT RELATE TO TIME OF TRIAL, BUT IS RATHER AT THE TIME THE DEATH SENTENCE IS TO BE CARRIED OUT. THE RELEVANT TIME FOR INSANITY AS A DEFENSE IS THE TIME THE CRIMINAL ACT WAS COMMITTED. THE RELEVANT TIME FOR COMPETENCY TO STAND TRIAL IT IS POSSIBLE FOR ONE TO HAVE BEEN IS AT TIME OF TRIAL.

INSANE] AT THE TIME OF THE COMMISSION OF THE CRIMINAL ACT, OR THE TIME SET FOR EXECUTION, YET TO BE SANE AT THE TIME OF TRIAL. THE ONLY RELEVANT TIME FOR THE DEFENSE OF IT INSANITY IS AT THE TIME THE CRIMINAL ACT WAS COMMITTED.

IS ALSO POSSIBLE THAT ONE MAY BE COMPETENT TO STAND TRIAL WHEN THE TRIAL COMMENCES, BUT TO BECOME INCOMPETENT BEFORE THE TRIAL IS OVER. THE DEFENDANT MUST BE COMPETENT BECOMING INCOMPETENT DURING IF THE THROUGHOUT THE PROCEEDINGS.

TRAIL WOULD REQUIRE THE DECLARATION OF A MISTRIAL.

DEFENDANT LATER BECAME COMPETENT, HE COULD BE RETRIED. INSANITY AT THE TIME OF THE CRIMINAL ACT IS RELEVANT TO THE ISSUE OF RESPONSIBILITY FOR THE CRIMINAL ACT. INCOMPETENCE IS RELEVANT TO THE ISSUE OF WHETHER THE DEFENDANT HAS THE CAPACITY TO ASSIST IN HER DEFENSE SO THAT SHE CAN RECEIVE A FAIR TRIAL. COMPETENCY TO STAND TRIAL IS DETERMINED BEFORE TRIAL BY THE TRIAL JUDGE AS A MATTER OF LAW. INSANITY AS A DEFENSE IF IT IS DETERMINED BY THE TRIER OF FACT [JUDGE OR JURY].

IS THE JURY, THE JURY WILL BE INSTRUCTED BY THE COURT AS TO THE RELEVANT STANDARD TO BE APPLIED IN THE JURISDICTION.
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B.

THE INSANITY DEFENSE.

THERE ARE THREE PRIMARY INSANITY STANDARDS WHICH HAVE BEEN WIDELY RECOGNIZED; THE MNAGHTEN RULE, THE DURHAM RULE, AND THE ALI MODEL PENAL CODE RULE. UNDER ITS TRADITIONAL FORMULATION, THE MNAGHTEN RULE PERMITS ACQUITTAL ONLY WHEN IT IS PROVED THAT, AT THE TIME OF THE COMMITTING OF THE ACT, THE PARTY ACCUSED WAS LABORING UNDER SUCH A DEFECT OF REASON, FROM DISEASE OF THE MIND, AS NOT TO KNOW THE NATURE AND QUALITY OF THE ACT HE WAS DOING, OR IF HE DID KNOW IT, THAT HE DID NOT KNOW HE WAS DOING WHAT WAS WRONG. SOMETIMES THE TERM IRRESISTIBLE IMPULSE WAS ADDED TO THIS TEST. THE DURHAM RULE: A DEFENDANT IS NOT CRIMINALLY RESPONSIBLE IF HIS UNLAWFUL ACT WAS THE PRODUCT OF MENTAL DISEASE OR DEFECT. THE ALI MODEL PENAL CODE RULE: A PERSON IS NOT RESPONSIBLE FOR CRIMINAL CONDUCT IF AT THE TIME OF SUCH CONDUCT AS A RESULT OF MENTAL DISEASE OR DEFECT HE LACKS SUBSTANTIAL CAPACITY EITHER TO APPRECIATE THE WRONGFULNESS OF HIS CONDUCT OR TO CONFORM HIS CONDUCT TO THE REQUIREMENTS OF THE LAW. THE PRINCIPAL OBJECTIONS TO THE MNAGHTEN RULE ARE SET OUT IN YOUR CASEBOOK. IN THE INTEREST OF CONSERVING TIME I THE DURHAM RULE RAISED PROBLEMS WILL NOT REITERATE THEM.

OF CAUSATION AND FAILED TO GIVE THE FACT-FINDER ANY STANDARD BY WHICH TO MEASURE THE COMPETENCY OF THE ACCUSED
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AT THE TIME OF THE CRIMINAL ACT.

IN THEORY, THE ALI MODEL

PENAL CODE FORMULATION RELAXED THE TIGHT SHACKLES OF MNAGHTEN BY USING LACKED SUBSTANTIAL CAPACITY EITHER TO APPRECIATE THE WRONGFULNESS OF HIS CONDUCT OR TO CONFORM HIS CONDUCT TO THE REQUIREMENTS OF THE LAW. ONE OF THE CRITICISMS OF THE MNAGHTEN RULE WAS THAT IT DID NOT PERMIT THE JURY TO IDENTIFY THOSE WHO CAN DISTINGUISH BETWEEN GOOD AND EVIL, BUT WHO COULD NOT CONTROL THEIR BEHAVIOR. RULE, BUT NOTE THAT IT IS NOW COMING UNDER ATTACK. THE THE VOLITIONAL ASPECT IS INCLUDED IN THE ALI MODEL PENAL CODE UNITED STATES SUPREME COURT ABANDONED THE VOLITIONAL ASPECT OF THE MODEL PENAL CODE TEST IN UNITED STATES V. LYONS, AND THE FEDERAL STATUTE HAS SINCE BEEN AMENDED TO EXCLUDE THE VOLITIONAL ASPECT. JONES V. UNITED STATES, CITED IN STATE V. FOUCHA, INVOLVED A CLAIM THAT ONE WHO HAD BEEN FOUND NOT GUILTY BY REASON OF INSANITY COULD NOT BE INCARCERATED IN A MENTAL INSTITUTION WITHOUT A COMMITTAL HEARING, NOR BE INCARCERATED BEYOND THE TERM OF IMPRISONMENT TO WHICH HE COULD HAVE BEEN SENTENCED IF FOUND GUILTY. THE COURT LOOKED AT THE RISK OF ERROR IN A CASE WHERE THE STATE INVOLUNTARILY COMMITS A PERSON IN A CIVIL COMMITMENT AND WHICH THEREFORE REQUIRED A COMMITTAL HEARING AT WHICH THE STATE MUST PROVE BY CLEAR AND CONVINCING EVIDENCE [ADDINGTON V. TEXAS] THAT THE PERSON SHOULD BE CONFINED, AND THE RISK OF ERROR IN A CASE WHERE IN A CASE WHERE THE
33

ACQUITTEE HIMSELF ADVANCES INSANITY AS A DEFENSE. IN THE LATTER CASE, THERE IS A DIMINISHED CONCERN AS TO RISK OF ERROR. AS TO THE LENGTH OF INCARCERATION, THE PURPOSE OF COMMITMENT FOLLOWING AN ACQUITTAL IS LIKE THAT IN A CIVIL COMMITMENT; TO TREAT THE INDIVIDUALS MENTAL ILLNESS AND PROTECT HIM AND SOCIETY FROM HIS POTENTIAL DANGEROUSNESS. HE IS ENTITLED TO BE RELEASED WHEN HE IS CURED. FOUCHA, APPLYING JONES V. UNITED STATES, SEEMS TO SAY THAT A PERSON CAN BE CONTINUED IN CONFINEMENT AFTER AN INSANITY ACQUITTAL SO LONG AS HE IS BOTH MENTALLY ILL AND REPRESENTS A DANGER TO HIMSELF OR OTHERS, BUT MAY NOT BE SO CONTINUED IN CONFINEMENT IF ONE OF THOSE CONDITIONS [INSANE AND DANGEROUS] DOES NOT EXIST. STATE V. JONES EXPLORES THE QUESTION OF IF AND WHEN A TRIAL COURT MAY IMPOSE A PLEA OF NOT GUILTY BY REASON OF INSANITY OVER A DEFENDANTS OBJECTIONS. THERE IS NO CLEAR CUT ANSWER, ALTHOUGH THE WASHINGTON COURT DECIDED THAT THE DECISION BELONGED TO THE DEFENDANT, SO LONG AS THE DEFENDANT WAS COMPETENT TO MAKE SUCH A DECISION. C. MENTAL ILLNESS AND CAPACITY IN POWELL V. TEXAS, THE UNITED STATES SUPREME COURT FOUND THAT A PUBLIC INTOXICATION STATUTE WAS NOT UNCONSTITUTIONAL AND DISALLOWED A DEFENSE BASED UPON INTOXICATION. IT REFUSED TO VIEW THIS AS A CASE COMING WITHIN THE ROBINSON V. CALIFORNIA PROHIBITION OF MAKING A PERSONS STATUS A CRIME-IN THAT CASE IT WAS THE STATUS OF
34

BEING A DRUG ADDICT.

HERE THERE WAS AN ACT WHICH WAS BEING

PROHIBITED, NOT A STATUS. I AM NOT GOING TO REVIEW THE CASES FROM CALIFORNIA ON DIMINISHED CAPACITY. WHILE I BELIEVE THAT THERE IS VALUE IN CONSIDERING THEM IN A WELL-ROUNDED COURSE ON CRIMINAL LAW, THE DIMINISHED CAPACITY DEFENSE IS USED IN ONLY A VERY FEW JURISDICTIONS AND I DO NOT CHOOSE TO EXAMINE STUDENTS ON IT TO ANY EXTENT. CALIFORNIA, FROM WHENCE MOST OF THE IT IS ALSO NOT CASES CAME, HAS ABOLISHED THE DEFENSE. RECOGNIZED IN THE FEDERAL SYSTEM. CHAPTER 5. JUSTIFICATION AND EXCUSE A. DURESS AND THE GENERAL PRINCIPLE OF JUSTIFICATION JUSTIFICATION AND EXCUSE THERE WERE MANY EXCULPATORY DOCTRINES RECOGNIZED AT THE COMMON LAW UNDER THE GENERAL HEADING OF JUSTIFICATION AND EXCUSE. THESE DEFENSES WERE COLLATERAL TO THE DEFINITION OF THE VARIOUS CRIMES; I.E., THEY WERE DEFINED SEPARATELY FROM THE ACT AND THE MENTAL STATE REQUIRED FOR ONE TO BE FOUND GUILTY OF HAVING COMMITTED A PARTICULAR CRIME. IT WA ALWAYS UP TO THE DEFENDANT TO RAISE ONE OF THESE DEFENSES. THE DEFENDANT BORE THE INITIAL BURDEN OF PRODUCING SOME EVIDENCE OF THE DEFENSE BEFORE THE BURDEN SHIFTED TO THE PROSECUTION TO DISPROVE THE DEFENSE. THE DEFENDANT. IN MANY CASES, THE TOTAL BURDEN OF PERSUASION OR RISK OF NON-PERSUASION WAS ON THE DESCRIPTIVE WORDS JUSTIFICATION AND
35

EXCUSE DO NOT NOW HAVE ANY LEGAL SIGNIFICANCE. INDICATE THE MORAL BASIS FOR THE VARIOUS DEFENSES.

PERHAPS

IT CAN BE SAID THAT THEY ARE THEORETICAL CATEGORIES, WHICH THIS GENERAL CATEGORY OF DEFENSES INCLUDES SELF DEFENSE, CONSENT, NECESSITY, INFANCY, INSANITY, INVOLUNTARY INTOXICATION, DURESS, AND ENTRAPMENT. NECESSITY AND DURESS THESE TWO HAVE NEARLY LOST THEIR DISTINCT IDENTITY. NECESSITY, OFTEN CALLED CHOICE OF EVILS, APPEARS TO GENERALIZE THE FUNDAMENTAL SOCIAL POLICY UNDERLYING ALL JUSTIFICATION DEFENSES; SHOULD THE PROHIBITIONS OF THE LAW BE REMOVED WHEN A PERSON COMMITS WHAT OTHERWISE WOULD BE A CRIME BUT COMMISSION OF THE CRIME WOULD BE A LESSER EVIL THAN THAT WHICH WOULD OCCUR IF THE PERSON DID NOTHING. RED LIGHT TO RUSH A SERIOUSLY INJURED PERSON TO THE HOSPITAL. IT IS CONSIDERABLY HARDER TO JUSTIFY THE DEFENSE THE (1) THE WHEN THE DEFENDANT KILLS ONE PERSON TO SAVE TWO. ELEMENTS OF THE DEFENSE ARE RELATIVELY SIMPLE: THE ANSWER IS EASY WHERE THE CRIME IS MINOR, SUCH AS RUNNING A

DEFENDANT MUST BE PRESENTED WITH AN EMERGENCY THREATENING THE IMMINENT OCCURRENCE OF A HARM WITH NO OPPORTUNITY TO AVOID THE HARM WITHOUT COMMITTING A CRIME; (2) THE DEFENDANT MUST NOT BE AT FAULT IN BRINGING ABOUT THE SITUATION THAT MAKES THE CRIMINAL ACT NECESSARY; (3) THE HARM TO BE AVOIDED MUST BE GREATER THAN THE HARM CAUSED BY THE CRIME. IN GENERAL, THE FIRST ELEMENT PRESENTS A
36

QUESTION TO BE RESOLVED BY THE JURY ABOUT THE DEFENDANTS REASONABLE BELIEF THAT AN EMERGENCY EXISTED UNDER THE CIRCUMSTANCES. A QUESTION OF LAW IS PRESENTED AS TO THE THE LEGISLATURE MAY HAVE, IN A THIRD ELEMENT OF THE RELATIVE HARMS, AND THAT IS TO BE RESOLVED BY THE COURT. MAY BE A GUIDE. GIVEN SITUATION, ALREADY RESOLVED THE ISSUE, OR CASE LAW OTHERWISE THE JUDGE MUST MAKE A DETERMINATION BASED UPON OTHER FACTORS. DURESS MAY OR MAY NOT BE CLOSELY RELATED TO THE DEFENSE OF NECESSITY OR CHOICE OF EVILS. THE DURESS DEFENSE IS THE ELEMENTS ARE AVAILABLE WHEN THE DEFENDANT MUST CHOOSE BETWEEN COMMITTING A CRIME OR SUFFERING SOME HARM HIMSELF. GENERALLY STATED TO BE: (1) THE DEFENDANT IS COERCED BY ANOTHER PERSON; (2) THE COERCION MUST BE A THREAT OF IMMINENT DEATH OR SERIOUS BODILY HARM TO THE DEFENDANT OR TO ANOTHER PERSON; (3) THE COERCION MUST BE SUCH THAT A REASONABLE PERSON IN THE DEFENDANTS SITUATION WOULD HAVE BEEN UNABLE TO RESIST COMMITTING THE CRIME; (4) THE DEFENDANT MUST NOT HAVE WILLINGLY PARTICIPATED IN CREATING THE SITUATION WHERE DURESS IS LIKELY. ANOTHER PERSON. DURESS IS NOT GENERALLY RECOGNIZED AS A DEFENSE WHERE THE DEFENDANT KILLS HOWEVER, THE MODEL PENAL CODE IS DRAFTED MODEL PENAL CODE BROADLY ENOUGH TO COVER SUCH A SITUATION.

2.09 MAKES DURESS AN AFFIRMATIVE DEFENSE WHENEVER THE DEFENDANT WAS COERCED TO (COMMIT ANY CRIME) BY THE USE OF, OR A THREAT TO USE, UNLAWFUL FORCE AGAINST HIS PERSON OR
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THE PERSON OF ANOTHER, WHICH A PERSON OF REASONABLE FIRMNESS IN HIS SITUATION WOULD HAVE BEEN UNABLE TO RESIST. NECESSITY IS SAID TO DIFFER FROM DURESS IN THAT THE DEFENDANTS CONDUCT IS USUALLY PRECIPITATED BY NATURAL RATHER THAN HUMAN FORCES. HOWEVER, THAT DISTINCTION SEEMS MODERN CODIFICATIONS, TO HAVE BEEN LARGELY ABANDONED.

INCLUDING THE MODEL PENAL CODE, DO NOT LIMIT THE CHOICE OF EVILS DOCTRINE TO ANY PARTICULAR SOURCE OF DANGER. IT IS SAID THAT IN ANY EVENT, THE PRESSURE MUST OPERATE UPON THE MIND OF THE DEFENDANT RATHER THAN UPON HIS BODY. SPECIFIC EXAMPLE OF NECESSITY OR CHOICE OF EVILS. SOME OTHERS WRITERS ARGUE THAT DURESS IS A SPECIES OF JUSTIFICATION, A ARGUE THAT THE NECESSITY DEFENSE CAN INDEED TAKE CARE OF ALL CHOICE OF EVILS SITUATIONS, INCLUDING THE USUAL DURESS SITUATION. STORMS AND PRIVATIONS ARE THE USUAL SOURCE OF FORCES OF NATURE THAT THE COURTS POINT TO IN NECESSITY CASES. RECOGNIZED. YET, THERE ARE VIRTUALLY NO CASES IN WHICH THE DEFENSE HAS BEEN WHEN A IS STARVING TO DEATH AND TAKES BS FOOD IT HAS ALSO BEEN SUGGESTED AND EATS IT TO SAVE HIS OWN LIFE, THAT IS SAID TO BE AN EXAMPLE OF FORCES OF NATURE. THAT A IN AN EMERGENCY INTENTIONALLY KILLS B TO SAVE C AND D THAT THE DEFENSE OF NECESSITY SHOULD APPLY, BECAUSE IT IS BETTER THAT TWO LIVES BE SAVED AND ONE LOST THAN THAT ONE BE SAVED AND TWO LOST.
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SELF DEFENSE A GENERAL STATEMENT OF THIS DEFENSE IS IF A PERSON HAS AND ACTUAL AND REASONABLE BELIEF THAT FORCE IS NECESSARY TO PROTECT HERSELF AGAINST THE DANGER OF IMMINENT UNLAWFUL HARM, HER CONDUCT IS JUSTIFIED. IF ONE USES DEADLY FORCE IN THE BELIEF THAT SUCH FORCE IS NECESSARY TO PROTECT HERSELF AGAINST THE DANGER OF IMMINENT UNLAWFUL HARM, BUT THE BELIEF IS UNREASONABLE, SHE WILL NOT BE GUILTY OF MURDER, BUT WILL BE GUILTY OF THAT DEGREE OF HOMICIDE WHICH THE JURISDICTION IN WHICH THE ACT TOOK PLACE ASSESSES FOR RECKLESS OR NEGLIGENT HOMICIDE. THE THING WHICH MUST BE RECKLESS OR NEGLIGENT IS THE BELIEF THAT DEADLY FORCE IS NECESSARY. DEPENDING UPON THE JURISDICTION. REASONABLE AND PRUDENT PERSON UNDER THE CIRCUMSTANCES IN THE FORMULATION OF THE OBJECTIVE STANDARD DOES NOT TAKE INTO CONSIDERATION THE UNIQUE PHYSICAL AND PSYCHOLOGICAL CHARACTERISTICS OF THE ACCUSED. BEING REPELLED. UNDER THE SUBJECTIVE STANDARD, INSTEAD OF A REASONABLE AND PRUDENT PERSON, WE CONSIDER A PERSON WITH THE UNIQUE PHYSICAL AND PSYCHOLOGICAL CHARACTERISTICS OF THE ACCUSED. THIS COULD INCLUDE ONE WHO HAS BEEN BATTERED. THE
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THIS MAY BE ASSESSED ON

THE BASIS OF EITHER AN OBJECTIVE OR A SUBJECTIVE STANDARD,

THE CIRCUMSTANCES REFERRED

TO IN THE CASE OF SELF-DEFENSE IS THE AGGRESSION THAT IS

CIRCUMSTANCES ARE STILL THE SAME; THE AGGRESSION THAT IS BEING REPELLED. DUTY TO RETREAT-THE MAJORITY OF AMERICAN JURISDICTIONS HOLD THAT THE DEFENDANT (WHO WAS NOT THE ORIGINAL AGGRESSOR) NEED NOT RETREAT, EVEN THOUGH HE CAN DO SO SAFELY, BEFORE USING DEADLY FORCE UPON AN ASSAILANT WHOM HE REASONABLY BELIEVES WILL KILL HIM OR DO HIM SERIOUS BODILY HARM. THE MODEL PENAL CODE DOES NOT ALLOW THE DEFENSE WHERE THE ACTOR KNOWS THAT HE CAN AVOID THE NECESSITY OF USING SUCH FORCE WITH COMPLETE SAFETY BY RETREATING OR SURRENDERING POSSESSION OF A THING TO A PERSON ASSERTING A CLAIM OF RIGHT THERETO OR BY COMPLYING WITH A DEMAND THAT HE ABSTAIN FROM ANY ACTION THAT HE HAS NO DUTY TO TAKE . . . THE TRADITIONAL COMMON LAW RULE REQUIRED THAT BEFORE THE RIGHT TO KILL IN SELF-DEFENSE MAY BE CLAIMED, THE PERSON ASSAULTED MUST HAVE RETREATED TO THE WALL IF NECESSARY BEFORE TAKING THE LIFE OF HIS ASSAILANT. THE ASSAULT TOOK PLACE IN ONES HOME. PERHAPS A STATEMENT BY THE UNITED STATES SUPREME COURT IN BROWN V. UNITED STATES, 255 U.S. 335, BEST CLARIFIES THE SITUATION: RATIONALLY, THE FAILURE TO RETREAT IS A CIRCUMSTANCE TO BE CONSIDERED WITH ALL OTHERS IN ORDER TO DETERMINE WHETHER THE DEFENDANT WENT FARTHER THAN HE WAS JUSTIFIED IN DOING, NOT A CATEGORICAL PROOF OF GUILT.
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NOTABLE EXCEPTION WAS THAT THERE WAS NO DUTY TO RETREAT IF

PRIOR CONDUCT OF THE ASSAILANT MAY COME IN FOR THE JURYS USE IN ASSESSING THE REASONABLENESS OF THE DEFENDANTS BELIEF THAT SHE IS IN IMMINENT DANGER OF DEATH OR SERIOUS BODILY HARM FROM THE VICTIM AND THAT HER ACTIONS WERE NECESSARY TO PREVENT THE HARM. DEADLY FORCE IS NEVER PERMITTED IN MEETING NON-DEADLY FORCE. DEFENSE OF PROPERTY AND PREVENTION OF CRIME AT COMMON LAW, DEADLY FORCE COULD NOT BE USED SOLELY TO PROTECT PROPERTY. MANY OF THE CASES INVOLVING USE OF DEADLY FORCE TO PROTECT PROPERTY ALSO RAISE THE ISSUE OF WHETHER THERE WAS A REASONABLE FEAR THAT THE VICTIM REPRESENTED A THREAT OF DEATH OR SERIOUS BODILY HARM TO THE DEFENDANT. IN THAT REGARD, USE OF DEADLY TRAP GUNS AND THE LIKE IS NOT JUSTIFIED UNDER DEFENSE OF PROPERTY. UNDER TENNESSEE V. GARNER, THE UNITED STATES SUPREME COURT HELD THAT BEFORE TAKING THE DRASTIC MEASURE OF USING DEADLY FORCE AS A LAST RESORT AGAINST A FLEEING SUSPECT, OFFICERS SHOULD HAVE PROBABLE CAUSE TO BELIEVE . . . THAT THE SUSPECT HAS COMMITTED SOME FELONY [AND] PROBABLE CAUSE TO BELIEVE THAT THE SUSPECT POSES A THREAT TO THE SAFETY OF THE OFFICERS OR A DANGER TO THE COMMUNITY IF LEFT AT LARGE. THE OFFICERS MAY BE JUSTIFIED IN USING DEADLY FORCE IF THE SUSPECT HAS COMMITTED A VIOLENT CRIME OR IF THEY HAVE PROBABLE CAUSE TO BELIEVE THAT HE IS ARMED OR THAT HE WILL ENDANGER THE PHYSICAL SAFETY OF OTHERS IF HE IS NOT
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CAPTURED. THE MICHIGAN COURT OF APPEALS, IN PEOPLE V. COUCH, RESTRICTED THE RIGHT OF A PRIVATE CITIZEN MAKING AN ARREST TO THESE SAME GENERAL PRINCIPLES.common law allowed THE MODEL PENAL CODE MAKES IT CLEAR THAT A PRIVATE CITIZEN MAY NEVER USE DEADLY FORCE IN MAKING AN ARREST. DEFENSE OF OTHERS AND IMPERFECT SELF-DEFENSE COMMON LAW RULE-LIMITED THE RIGHT TO USE FORCE IN DEFENSE OF OTHERS TO SITUATIONS WHERE THE DEFENDANT WAS CLOSELY RELATED IN SOME FASHION TO THE PERSON ATTACKED. THIS IS CONSIDERED TO BE LARGELY OBSOLETE. ALTER EGO RULE-LIMITED THE INTERVENOR TO USE ONLY SO MUCH FORCE AS THE PERSON BEING RESCUED WAS ENTITLED TO USE IN HIS OR HER OWN DEFENSE. IF THE INTERVENOR MISJUDGED THE CIRCUMSTANCE, HOWEVER INNOCENTLY, AND USED FORCE TO DEFEND A PARTY WITH NO RIGHT TO SELF-DEFENSE, THE INTERVENOR WAS STRICTLY LIABLE FOR WHATEVER CRIME THE FORCED USED WOULD SUPPORT. MODEL PENAL CODE-3.04, 3.05 AND 3.09 SET OUT THE POSITION OF THE CODE ON SELF-DEFENSE AND DEFENSE OF OTHERS. BASICALLY, THE CODE PROVIDES THE SAME RIGHT TO USE FORCE TO PROTECT A THIRD PERSON AS THE ACTOR WOULD BE JUSTIFIED IN USING TO PROTECT HIMSELF, UNDER THE CIRCUMSTANCES AS THE ACTOR BELIEVES THEM TO BE. EGO RULE. THIS DOES AWAY WITH THE ALTER ALSO, THE ACTOR MAY VERY WELL HAVE A LOWER DUTY

TO RETREAT IN DEFENDING ANOTHER PERSON THAN IN DEFENDING HIMSELF, GIVEN THE LIMITATION ON THE NEED TO RETREAT THAT
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THE ACTOR DOES NOT NEED TO RETREAT UNLESS HE CAN INSURE THE SAFETY OF THE THIRD PERSON. IMPERFECT SELF-DEFENSE IMPERFECT SELF-DEFENSE MERELY MEANS THAT ONE OF THE CIRCUMSTANCES NECESSARY TO ESTABLISH SELF-DEFENSE IS NOT PRESENT. IF THE DEFENDANT INITIATED THE DIFFICULTY, HE IS IF THE DEFENDANT DID NOT NOT ENTITLED TO SELF-DEFENSE.

INITIATE THE DIFFICULTY, YET HONESTLY BUT UNREASONABLY BELIEVES EITHER THAT HE IS IN DANGER OF SERIOUS BODILY HARM OR THAT KILLING IS THE ONLY WAY TO PREVENT SERIOUS BODILY HARM, THE DEFENDANT MAY NOT DEFEND ON THE BASIS OF SELFDEFENSE. IN BOTH SITUATIONS, IT IS IMPERFECT. IN A VERY FEW JURISDICTIONS, HOWEVER, IT MAY REDUCE THE DEGREE OF THE HOMICIDE FROM MURDER TO MANSLAUGHTER. CONSENT REMEMBER THAT CONSENT INVOLVES THE VOLUNTARY RELINQUISHMENT OF A KNOWN RIGHT OR PRIVILEGE. CONSENT, THEN THE CONSENT IS INVALID. THE CAPACITY TO GIVE A VALID CONSENT. IF THE PERSON IS UNDER THE STATUTORY AGE FOR A PARTICULAR KIND OF SHE DOES NOT HAVE THERE IS ALSO

CONSIDERABLE DOUBT ABOUT THE VALIDITY OF A CONSENT TO HAVING SOMEONE INFLICT SERIOUS BODILY HARM UPON THE CONSENTING PERSON. OBVIOUSLY, THERE ARE SITUATIONS IN WHICH CONSENT TO NON-SERIOUS BODILY HARM IS RECOGNIZED, AS E.G., BOXING, FOOTBALL, ETC. ACTUALLY, THE INJURY IS SOMETIMES
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VERY SERIOUS, YET THERE IS UNLIKELY TO BE ANY EFFORT TO

PROSECUTE THE OFFENDING PARTY UNLESS THERE IS SOMETHING ABOUT THE CIRCUMSTANCE THAT WOULD INDICATE THERE WAS AN INTENT TO INFLICT SERIOUS BODILY HARM. CHAPTER 7. ATTEMPT, CONSPIRACY AND COMPLICITY A. PREPARATORY CONDUCT YOU WILL RECALL THAT THERE ARE VARIOUS VIEWS ABOUT MUCH PREPARATORY CONDUCT IS ENOUGH TO CAUSE THE ACTOR TO BE GUILTY OF AN ATTEMPT TO COMMIT A CRIME. COURTS FREQUENTLY SPEAK OF THE LINE WHICH MUST BE DRAWN BETWEEN THOSE ACTS WHICH ARE REMOTE AND THOSE WHICH ARE PROXIMATE OR NEAR TO CONSUMMATION. IN OUR DISCUSSION WE LOOKED AT THE REQUIREMENTS OF PARAGRAPH 2 OF SECTION 5.01 OF THE MODEL PENAL CODE, WHICH PROVIDES THAT [C]ONDUCT SHALL NOT BE HELD TO CONSTITUTE A SUBSTANTIAL STEP UNDER SUB-SECTION (1) (c)OF THIS SECTION UNLESS IT IS STRONGLY CORROBORATIVE OF THE ACTORS PURPOSE. THE MODEL PENAL CODE PROVIDES FURTHER, UNDER CONDUCT WHICH MAY BE HELD TO BE A SUBSTANTIAL STEP UNDER SUBSECTION (1)(c), THAT, IF STRONGLY CORROBORATIVE OF THE ACTORS CRIMINAL PURPOSE, THE FOLLOWING BE HELD INSUFFICIENT AS A MATTER OF LAW: (a) LYING IN WAIT, SEARCHING FOR OR FOLLOWING THE CONTEMPLATED VICTIM OF THE CRIME. LATRAVERSE PRESENTED A FAIRLY STRONG CASE AS FAR AS PROOF OF ATTEMPT IS CONCERNED. HE HAD RECONNOITERED LOMBARDIS HOUSE LATE AT NIGHT, WHEN HE WAS STOPPED HE HAD MATERIALS FOR MAKING AN INCENDIARY DEVICE IN HIS CAR AND
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THERE WAS A CRYPTIC NOTE WHICH INDICATED HIS INTENT.

THE

COURT LOOKED AT THE LAWS OF VERMONT AND MASSACHUSETTS AND REJECTED THEM, STATING THAT THEY DID NOT WISH TO CONTRIBUTE ONE WHIT TO THE PREPARATION-ATTEMPT QUAGMIRE. BOTH VERMONT AND MASSACHUSETTS WOULD REQUIRE THAT THE PREPARATION COME SO CLOSE TO COMPLETION AS TO MAKE THE COMPLETION OF THE CRIME PROBABLE-MORE OR LESS THE LAST ACT DOCTRINE; I.E., THERE IS AN ATTEMPT ONLY IF THE PREPARATORY CONDUCT HAD PROCEEDED SO FAR THAT ONLY THE LAST ACT NEEDED FOR COMPLETION IS LEFT UNDONE. THE COURT CONTRASTED THIS WITH THE MODEL PENAL CODE FORMULATION AND STATED THAT THE MODEL PENAL CODE SHIFTED THE EMPHASIS FROM WHAT REMAINED TO BE DONE TO WHAT HAD ALREADY BEEN DONE. IF WHAT HAS ALREADY BEEN DONE IS A SUBSTANTIAL STEP WHICH IS STRONGLY CORROBORATIVE OF THE ACTORS PURPOSE, THEN THE ACTOR IS GUILTY OF ATTEMPT. [THE MODEL PENAL CODE WOULD REQUIRE PROOF (1) THAT THE ACTOR HAVE BEEN ACTING WITH THE KIND OF CULPABILITY OTHERWISE REQUIRED FOR THE COMMISSION OF THE CRIME HE IS CHARGED WITH ATTEMPTING AND (2) THAT HE MUST HAVE BEEN ENGAGED IN CONDUCT WHICH CONSTITUTED A SUBSTANTIAL STEP TOWARD THE COMMISSION OF THE CRIME.] LATRAVERSE ALSO RAISED THE ISSUE OF ABANDONMENT. THE TRIAL COURT OBSERVED THAT A VOLUNTARY ABANDONMENT OF A CRIMINAL ATTEMPT THAT HAD PROCEEDED BEYOND MERE PREPARATION INTO AN OVERT ACT OR ACTS IN FURTHERANCE OF THE ATTEMPT DOES NOT SERVE AS A DEFENSE BECAUSE THE CRIME HAS ALREADY BEEN
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COMMITTED.

BUT, AS THE APPELLATE COURT STATED, THE MODEL

PENAL CODE EXPRESSES A DIFFERENT POINT OF VIEW AND RECOGNIZES AS A DEFENSE TO AN ATTEMPTED CRIME, THE ABANDONMENT OF THE EFFORTS TO COMMIT THE CRIME WHEN CIRCUMSTANCES MANIFEST A COMPLETE AND VOLUNTARY RENUNCIATION OF CRIMINAL PURPOSE. CIRCUMSTANCES WHICH WILL SHOW THAT THE ABANDONMENT IS NOT COMPLETE AND VOLUNTARY ARE THAT DEFENDANT HAS NOT COMPLETED THE ATTEMPTED CRIME BECAUSE OF UNANTICIPATED DIFFICULTIES, UNEXPECTED RESISTANCE, OR CIRCUMSTANCES THAT INCREASE THE PROBABILITY OF DETECTION OR APPREHENSION; OR THE DEFENDANT HAS NOT CONSUMMATED THE ATTEMPTED OFFENSE AFTER DECIDING TO POSTPONE HIS ENDEAVORS UNTIL ANOTHER TIME OR TO SUBSTITUTE ANOTHER VICTIM OR ANOTHER BUT SIMILAR OBJECTIVE. ABANDONMENT IS AN AFFIRMATIVE DEFENSE, AND AS SUCH MUST BE PLEADED AND PROVED BY A PREPONDERANCE OF THE EVIDENCE. HARPER SHOWS HOW OPINION CAN VARY WIDELY ON THE QUESTION OF WHETHER THE ACTOR HAS TAKEN A SUBSTANTIAL STEP TOWARD COMPLETION OF THE CRIME. B. ATTEMPT: INTENT AND IMPOSSIBILITY HARRIS RAISES THE ISSUE OF WHETHER ONE CAN BE CONVICTED OF AN ATTEMPT TO MURDER UNDER AN INSTRUCTION WHICH GIVES ALL OF THE DEFINITIONS CONSTITUTING MURDER, EVEN THOSE WHICH DO NOT REQUIRE A SPECIFIC INTENT TO CAUSE THE DEATH OF ANOTHER HUMAN BEING. OBVIOUSLY, THE JURY MUST KNOW THE
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ELEMENTS OF THE UNDERLYING CRIME FOR WHICH A PERSON IS

CHARGED WITH ATTEMPTING.

UNDER THE FACTS OF HARRIS, FIRING

A GUN AT THE RETREATING CAR, IF DEATH HAD OCCURRED HARRIS WOULD HAVE BEEN GUILTY OF MURDER UNDER THE WANTON AND RECKLESS CONDUCT EVINCING A MANIFEST DISREGARD FOR THE VALUE OF HUMAN LIFE. BUT THIS IS NOT A TYPE OF HOMICIDE, WHICH REQUIRES A SPECIFIC INTENT TO KILL ANOTHER PERSON. THE MURDER STATUTE PERMITTED CONVICTION FOR MURDER IF ONE HAD THE INTENT TO KILL, BUT IT ALSO PERMITTED A CONVICTION FOR MURDER IF ONE HAD THE INTENT TO DO GREAT BODILY HARM, OR IF HE KNEW THAT HIS ACTS CREATED A STRONG PROBABILITY OF DEATH OR GREAT BODILY HARM. ATTEMPT CONNOTES INTENT. BUT, ONE CANNOT ATTEMPT TO DO IN OTHER WORDS, SOMETHING WITHOUT INTENDING TO DO IT.

THUS, UNDER THE INSTRUCTIONS IN

HARRIS, THE JURY MIGHT HAVE BELIEVED THAT HARRIS ONLY INTENDED TO DO GREAT BODILY HARM, OR THAT HE WAS ACTING IN SUCH A WAY AS TO CREATE A STRONG PROBABILITY OF DEATH OR GREAT BODILY HARM, BECAUSE ANY OF THESE OTHER MENTAL STATES WOULD HAVE BEEN SUFFICIENT TO CONVICT OF MURDER IF DEATH HAD RESULTED, BUT THEY MAY NOT HAVE BELIEVED THAT HE INTENDED TO KILL BAKER. SINCE DEATH DID NOT ENSUE, IN ONLY THAT WILL SUFFICE FOR SINCE THE
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ORDER TO CONVICT OF ATTEMPTED MURDER, IT MUST BE SHOWN THAT HARRIS INTENDED TO KILL BAKER. ATTEMPTED MURDER. EVERETT RAISES THE ISSUE OF LEGAL IMPOSSIBILITY. THE SUBSTANCE TURNED OUT NOT TO BE P-2-P, HE ARGUED THAT HE COULD NOT BE GUILTY OF ATTEMPTING TO DISTRIBUTE P-2-P.

COURT OPINED, HOWEVER, THAT IN ENACTING THIS CRIMINAL STATUTE CONGRESS INTENDED TO DO AWAY WITH THE DOCTRINE OF IMPOSSIBILITY. THE DOCTRINE OF IMPOSSIBILITY IS STILL AROUND, HOWEVER, SOME JURISDICTIONS HAVE SOLVED THE KIND OF PROBLEM PRESENTED BY THIS CASE BY IMPOSING CRIMINAL PENALTIES ON ANY PERSON WHO CONSENTS TO SELL ANY UNLAWFUL DRUG AND THEN DELIVERS SOME OTHER SUBSTANCE IN LIEU OF THAT DRUG. CALIFORNIA, AS WELL AS INDIANA HAS DONE SO. HENLEY DISTINGUISHES BETWEEN TWO KINDS OF IMPOSSIBILITY: FACTUAL IMPOSSIBILITY AND LEGAL IMPOSSIBILITY. FACTUAL IMPOSSIBILITY DENOTES CONDUCT WHERE THE OBJECTIVE IS PROSCRIBED BY THE CRIMINAL LAW, BUT A CIRCUMSTANCE UNKNOWN TO THE ACTOR PREVENTS HIM FROM BRINGING IT ABOUT. THE EXAMPLE GIVEN IS THE THIEF WHO [THE PENNSYLVANIA COURT NOTED THAT PICKS AN EMPTY POCKET. AMERICAN COURT] COMPLETED.

FACTUAL IMPOSSIBILITY HAD NEVER BEEN RECOGNIZED BY ANY LEGAL IMPOSSIBILITY IS SAID TO OCCUR WHERE THE INTENDED ACT WOULD NOT AMOUNT TO A CRIME EVEN IF THE EXAMPLE GIVEN IS WHERE AN ELEMENT OF THE THE HOWEVER, COMPLETED CRIME REQUIRED THE GOODS TO BE STOLEN, THE FACT THAT THE GOODS WERE NOT STOLEN WOULD BE A DEFENSE. HENLEY FACTS FIT THE SECOND-LEGAL IMPOSSIBILITY. MODEL PENAL CODE, WHICH ABOLISHED THE DEFENSE OF IMPOSSIBILITY. NOTE THE MODEL PENAL CODE LANGUAGE:
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PENNSYLVANIAS REVISED ATTEMPT STATUTE WAS BASED UPON THE

5.01(1)(a) READS PURPOSELY ENGAGES IN CONDUCT WHICH WOULD CONSTITUTE THE CRIME IF THE ATTENDANT CIRCUMSTANCES WERE AS HE BELIEVES THEM TO BE; . . . BUYING STOLEN NECKLACES. C. THE ELEMENTS OF CONSPIRACY THE COURT OF UNITED STATES V. FEOLA REVISITS THE JURISDICTIONAL ELEMENT PROBLEM IN THE CONTEXT OF CONSPIRACY. APPEALS HAD REVERSED THE CONSPIRACY CONVICTION BECAUSE OF A LINE OF CASES, BEGINNING WITH UNITED STATES V. CRIMMINS, WHICH HELD THAT WHILE KNOWLEDGE OF A FACTUAL ELEMENT WHICH CONFERS JURISDICTION IS UNNECESSARY FOR CONVICTION OF THE SUBSTANTIVE OFFENSE, IT IS REQUIRED FOR CONVICTION OF CONSPIRACY TO COMMIT THE OFFENSE. THE COURT LOOKED AT THE SUBSTANTIVE OFFENSE TO SEE IF KNOWLEDGE THAT THE OFFICERS WERE FEDERAL OFFICERS WAS NECESSARY FOR CONVICTION OF THAT SUBSTANTIVE OFFENSE. OFFICERS OR NOT. THEY CONCLUDED THAT IT WAS NOT. THE ASSAULT WAS AN ASSAULT, WHETHER THE PERSONS WERE FEDERAL THE PURPOSE OF THE JURISDICTION REQUIREMENT WAS MERELY TO INSURE THAT SUCH ASSAULTS WOULD BE TRIED IN FEDERAL, RATHER THAN STATE COURT, WHERE THE VICTIMS WERE FEDERAL OFFICERS. THE COURT ALSO DISPOSED OF THE ARGUMENT THAT THE ESSENCE OF CONSPIRACY IS AGREEMENT AND THAT PERSONS COULD NOT BE PUNISHED FOR ACTS BEYOND THE SCOPE OF THE AGREEMENT. THE COURT HELD THAT ONE CAN BE THEY FOUND
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HENLEY THOUGHT HE WAS

FOUND GUILTY AS A CONSPIRATOR FOR ACTS THE DETAILS OF WHICH ONE DOES NOT KNOW AT THE TIME OF THE AGREEMENT.

ALSO THAT THE FACT THAT THE VICTIMS WERE FEDERAL OFFICERS WAS NO MORE GERMANE TO THE NATURE OF THOSE ACTS THAN THE COLOR OF THE VICTIMS HAIR. THE ILLINOIS CASE OF FOSTER ILLUSTRATES THAT THE MODEL PENAL CODE, IN A SENSE, DID THE SAME JOB TWICE WHEN THEY ADOPTED THE UNILATERAL THEORY OF CONSPIRACY WHILE AT THE SAME TIME PROVIDING FOR SOLICITATION AS A CRIME. THEN THE CRIME IS SOLICITATION. CONSPIRACY. IF THE SOLICITATION IS REJECTED, OR IF THE ACCEPTANCE IS FEIGNED, UNDER THE UNILATERAL THEORY OF CONSPIRACY, FEIGNED ACCEPTANCE ALSO CREATES A ONE CANNOT BE FOUND GUILTY OF BOTH THE SOLICITATION AND THE CONSPIRACY, HOWEVER, AS SOLICITATION MERGES WITH THE CONSPIRACY. THE GEBARDI CASE SHOWS THAT THE RESULT CAN BE DIFFERENT UNDER THE BILATERAL THEORY OF CONSPIRACY. UNDER THE BILATERAL THEORY, THERE MUST BE AT LEAST TWO CONSPIRATORS. THUS, IN A SITUATION SUCH AS GEBARDI, INVOLVING THE MANN ACT, IF ONE OF ONLY TWO ALLEGED CONSPIRATORS CANNOT BE CONVICTED UNDER THE STATUTE, YOU CANNOT GET TO THAT PERSON THROUGH THE DEVICE OF CONSPIRACY IN A BILATERAL JURISDICTION. CONGRESS DID NOT CONTEMPLATE THE WOMAN, WHO WAS DEEMED TO BE THE VICTIM, BEING PROSECUTABLE UNDER THE MANN ACT. IF SHE WAS NOT TO COME WITHIN THE AMBIT OF THE ACT, SHE COULD NOT BE PROSECUTED UNDER A CONSPIRACY TO VIOLATE THE ACT. THIS IS PERHAPS A VERY NARROW
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INTERPRETATION AND NOT BROADLY APPLICABLE.

***IT SHOULD BE NOTED THAT IT IS POSSIBLE FOR ONE TO BE GUILTY OF A CONSPIRACY EVEN THOUGH ITS PURPOSE IS TO DO WHAT SOME OF THE CONSPIRATORS MAY BE FREE TO DO ALONE**. THE EXAMPLE GIVEN WAS CONSPIRING WITH A BANKRUPT TO CONCEAL HIS ASSETS FROM HIS TRUSTEE, ALTHOUGH ONLY THE BANKRUPT CAN BE GUILTY OF THE SUBSTANTIVE OFFENSE OF CONCEALING HIS ASSETS FROM THE TRUSTEE. A SHORT REFERENCE TO THE WHARTON RULE: WHERE IT IS IMPOSSIBLE UNDER ANY CIRCUMSTANCES TO COMMIT THE SUBSTANTIVE OFFENSE WITHOUT COOPERATIVE ACTION, THE PRELIMINARY AGREEMENT BETWEEN THE SAME PARTIES TO COMMIT THE OFFENSE IS NOT AN INDICTABLE CONSPIRACY EITHER AT COMMON LAW. KRULEWITCH V. UNITED STATES EXPLORES THE QUESTION OF WHEN THE CONSPIRACY ENDS FOR THE PURPOSE OF DETERMINING THE APPLICABILITY OF F.R.E. 801(d)(2)(E). THE GOVERNMENT ARGUED THAT THERE WAS AN IMPLIED CONSPIRACY TO CONCEAL THE CONSPIRACY; I.E., CONSPIRATORS ALWAYS EXPRESSLY OR IMPLICITLY AGREE TO COLLABORATE WITH EACH OTHER TO CONCEAL FACTS IN ORDER TO PREVENT DETECTION, CONVICTION AND PUNISHMENT. THUS, EVEN AFTER THE CENTRAL OBJECTIVES OF THE IN EFFECT, THIS THEORY WOULD CONSPIRACY HAVE SUCCEEDED OR FAILED, AN IMPLICIT SUBSIDIARY CONSPIRACY ALWAYS SURVIVES. MEAN THAT THE CONSPIRACY WOULD CONTINUE AS LONG AS PROSECUTION WAS A POSSIBILITY, AND EACH OF THE CONSPIRATORS WOULD BE RESPONSIBLE FOR ALL MANNER OF THINGS DONE BY THE
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OTHER CONSPIRATORS.

THE CONSPIRACY WOULD LAST UNTIL ALL OF THE UNITED

THE CONSPIRATORS HAD BEEN CONVICTED OR DIED. SUBSIDIARY CONSPIRACY TO CONCEAL THEORY. CONSPIRACY END?

STATES SUPREME COURT DECLINED TO ADOPT THIS IMPLICIT WHEN DOES THE THE 8TH CIRCUIT FORMULATED A RULE FOR WHEN

THE CONSPIRACY WOULD END: WHENEVER THE UNLAWFUL OBJECT OF THE CONSPIRACY HAS REACHED THAT STAGE OF CONSUMMATION, WHEREAT THE SEVERAL CONSPIRATORS HAVE TAKEN IN SPENDABLE FORM THEIR SEVERAL AGREED PARTS OF THE SPOILS, MAY GO THEIR SEVERAL WAYS, WITHOUT THE NECESSITY OF FURTHER ACTS OR CONSULTATION ABOUT THE CONSPIRACY, WITH EACH OTHER OR AMONG THEMSELVES, THE CONSPIRACY HAS ENDED. THE MODEL PENAL CODE WOULD SEEM TO REACH THAT SAME RESULT. SEVERAL PRINCIPLES REGARDING CONSPIRACY: (1) A PERSON CAN BE CONVICTED BOTH OF THE CONSPIRACY AND OF THE SUBSTANTIVE OFFENSE WHICH IS THE OBJECT OF THE CONSPIRACY IF IT IS CONSUMMATED; [SEE E.G.PINKERTON NOTED AT P.663.] (2) A PERSON WHO KNOWINGLY ENTERS INTO A CONSPIRACY AFTER ITS FORMATION, BUT BEFORE IT IS ENDED IS EQUALLY AS GUILTY AS THOSE WHO WERE IN IT FROM THE BEGINNING; (3) A CRIMINAL CONSPIRACY ONCE FORMED CONTINUES UNTIL THE OBJECT OF IT HAS BEEN ACCOMPLISHED UNLESS IT IS ABANDONED SHORT OF THE OVERT ACT, OR BROKEN UP BY ARREST TO THE PARTICIPANTS. NOTE THAT THE MODEL PENAL CODE WOULD REQUIRE AN OVERT ACT IN ALL EXCEPT A CONSPIRACY TO COMMIT A FELONY OF THE
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FIRST OR SECOND DEGREE. REQUIRED. D.

FOR THOSE, NO OVERT ACT IS

COMPLICITY AND CONSPIRACY IT IS MERELY A

REMEMBER THAT COMPLICITY, UNLIKE SOLICITATION, CONSPIRACY, AND ATTEMPT IS NOT A CRIME. FOR THE CRIMINAL ACT OF ANOTHER. DOCTRINE WHICH DETERMINES WHEN ONE PERSON WILL BE LIABLE STATE V. PARKER AND STATE V. WILLAQUETTE [not a principal case in our casebook, but discussed at some length in State v. Rundle, @p.689] ATTEMPT TO DEFINE THE ACT OF COMPLICITY. ROBBERY AND BEATING, BUT WAS MERELY THERE. CHARACTERISTIC OF AN AIDER AND ABETTOR. AS A LOOKOUT AS AN EXAMPLE. IN PARKER, THE MINNESOTA DEFENDANT CLAIMED THAT HE HAD NOT PARTICIPATED IN THE COURT STATED THAT INACTION IS OFTEN THE DISTINGUISHING THEY GIVE ACTING AS THE COURT STATED, IF THE

PROOF SHOWS THAT A PERSON IS PRESENT AT THE COMMISSION OF A CRIME WITHOUT DISAPPROVING OR OPPOSING IT, IT IS COMPETENT FOR THE JURY TO CONSIDER THIS CONDUCT IN CONNECTION WITH OTHER CIRCUMSTANCES AND THEREBY FIND THAT HE ASSENTED OR LENT HIS APPROVAL AND WAS THEREBY AIDING AND ABETTING ITS COMMISSION. WILLAQUETTE WAS CHARGED ON TWO COUNTS OF SHE DEFENDED ON THE BASIS THAT SHE HAD FELONY CHILD ABUSE.

NOT PARTICIPATED IN THE ACTS, THUS HAD NOT DIRECTLY COMMITT0ED THE ABUSE. HOWEVER, THE COURT HELD THAT THE COMMON MEANING OF SUBJECTS IS BROADER THAN DIRECTLY INFLICTING ABUSE ON THE CHILDREN. SHE HAD A LEGAL DUTY TO
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PROTECT THE CHILDREN FROM A HAZARDOUS SITUATION. JUSTICE BABLITCH DISAGREED THAT SHE COULD BE PROSECUTED AS A DIRECT ACTOR (IN OTHER WORDS AS A PRINCIPAL), HOWEVER, HE CONCEDED THAT SHE COULD BE PROSECUTED AS AN AIDER AND ABETTOR. LAURIA EXPLORES THE QUESTION OF CRIMINAL RESPONSIBILITY OF ONE WHO SUPPLIES GOODS OR SERVICES AND WHO KNOWS THAT HIS PRODUCT IS BEING USED TO ASSIST THE OPERATION OF AN ILLEGAL BUSINESS. THE COURT DISTINGUISHED BETWEEN TWO SITUATIONS: THE SUSCEPTIBILITY OF THE GOODS TO ILLEGAL USE WAS THE PRIMARY DISTINGUISHING FACTOR; SUGAR, YEAST, AND CANS BEING ARTICLES OF FREE COMMERCE; DRUGS, ON THE OTHER HAND, BEING RESTRICTED GOODS AND MORE SUSCEPTIBLE TO HARMFUL OR ILLEGAL USE. THE COURT SET OUT TWO ELEMENTS NECESSARY TO PROVE THE SUPPLIER IS A PARTICIPANT IN THE ILLEGAL ENTERPRISE: (1) KNOWLEDGE OF THE ILLEGAL USE; (2) INTENT TO FURTHER THAT USE. THE COURT POINTED OUT CERTAIN PATTERNS WHICH WOULD ESTABLISH CIRCUMSTANTIALLY THIS INTENT AND KNOWLEDGE: (1) THE PURVEYOR ACQUIRES A STAKE IN THE ENTERPRISE; (2) THERE IS NO LEGITIMATE USE FOR THE GOODS OR SERVICES; (3) THE VOLUME OF BUSINESS WITH THE BUYER IS GROSSLY DISPROPORTIONATE TO ANY LEGITIMATE DEMAND, OR WHEN THE SALE FOR ILLEGAL USE AMOUNTS TO A HIGH PROPORTION OF THE SELLERS TOTAL BUSINESS. OBVIOUSLY, JUST AS THERE ARE DISAGREEMENTS ABOUT WHETHER CERTAIN FACTS ESTABLISH A SUBSTANTIAL STEP IN ATTEMPT, THERE IS DISAGREEMENT ABOUT WHETHER THE ACTS
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PERFORMED BY AN INDIVIDUAL CONSTITUTE AIDING AND ABETTING. IN MERRILL, THE DENIAL OF THE WRIT OF CERTIORARI POINTED OUT THE TWO RULES ADOPTED BY THE 6TH AND 10TH CIRCUITS ON THE ISSUE OF WHETHER THE ACTS PERFORMED CONSTITUTED AIDING AND ABETTING A GAMBLING OPERATION. THE SIXTH CIRCUIT THE TENTH CIRCUIT . . STANDARD WAS ANY ACT, DUTY OR FUNCTION WHICH IS NECESSARY OR HELPFUL IN OPERATING THE ENTERPRISE. STANDARD WAS WHETHER THE ACCUSED PERFORMED A FUNCTION NECESSARY TO THE ILLEGAL GAMBLING BUSINESS. REMEMBER, COMPLICITY IS MERELY A DOCTRINE WHICH DETERMINES WHEN ONE PERSON WILL BE LIABLE FOR THE CRIMINAL ACT OF ANOTHER. THAT INEVITABLY LEADS TO PROBLEMS OF IN DETERMINING WHEN AND FOR WHAT CRIMES COMMITTED BY A COFELON ONE MAY BE HELD LIABLE ON COMPLICITY PRINCIPLES. THE KESSLER CASE, THE INTERPRETATION WAS SOMEWHAT DRACONIAN IN HOLDING THE GETAWAY CAR DRIVER, WHO WAS MERELY SITTING IN THE GETAWAY CAR, GUILTY OF ATTEMPTED MURDER. THE CONTEMPLATED CRIME WAS BURGLARY, HIS COMPANIONS ENTERED WITHOUT WEAPONS, THEY FOUND A WEAPON DURING THE BURGLARY, THEY WERE SURPRISED BY THE PROPRIETOR, AND THEY FIRE SHOTS AS THEY WERE FLEEING. THE DRIVER NEITHER CONTEMPLATED ANY SHOOTING, NOR PARTICIPATED IN IT, YET THE ILLINOIS COURT HELD THAT HE WAS GUILTY OF ATTEMPTED MURDER ON COMPLICITY PRINCIPLES. IT, YET THE ILLINOIS COURT HELD THAT HE WAS GUILTY OF ATTEMPTED MURDER ON COMPLICITY PRINCIPLES.
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PINKERTON V. UNITED STATES [CITED P. 663] ESTABLISHED A RULE FOR UNITED STATES COURTS THAT WHERE AN OVERT ACT IS NECESSARY TO SUSTAIN A CONSPIRACY, THE COMMISSION OF THE OVERT ACT BY ONE IS ATTRIBUTABLE TO ALL IN THE PARTNERSHIP. THUS, PERSONS WHO FORM A CONSPIRACY ARE LIABLE FOR THE FORESEEABLE SUBSTANTIVE OFFENSES COMMITTED BY ANY ONE OF THEM IN FURTHERANCE OF THE CONSPIRACY. MANY STATES, CONSISTENT WITH THE MODEL PENAL CODE, DO NOT FOLLOW THE PINKERTON DOCTRINE AND DO NOT USE CONSPIRACY TO ESTABLISH ACCOUNTABILITY FOR THE CRIMINAL ACTS OF ANOTHER PERSON. MANY DO, HOWEVER. CHAPTER 8 THEFT AND WHITE COLLAR CRIME A. THE CATEGORIES OF THEFT IF THE ACTOR TAKES THE NOTE THE DISTINCTION THAT IS DRAWN UNDER THE COMMONLAW BETWEEN LARCENY AND EMBEZZLEMENT. HIS OWN USE, THAT IS LARCENY. MONEY FROM THE POSSESSION OF THE OWNER AND CONVERTS IT TO HOWEVER, IF HE APPROPRIATES LARCENY IS THE MONEY TO HIS OWN USE BEFORE IT HAS COME INTO THE POSSESSION OF THE OWNER, THAT IS EMBEZZLEMENT. THE FELONIOUS TAKING AND CARRYING AWAY OF PROPERTY OF ANOTHER WITH THE INTENT TO PERMANENTLY DEPRIVE THE OWNER OF THE USE THEREOF. THUS, FOR LARCENY, THERE MUST BE A THE TAKING MUST BE AN INVASION OF THE IN EMBEZZLEMENT, THE PERSON THUS,
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TRESPASSORY TAKING.

OWNERS RIGHT TO POSSESSION.

WHO APPROPRIATES THE PROPERTY TO HIS OWN USE HAS THE RIGHT TO POSSESSION OF IT, ALTHOUGH HE DOES NOT OWN IT.

THERE IS NO TRESPASS IN HIS APPROPRIATING IT TO HIS OWN USE. CAN A PARTNER BE CHARGED WITH THEFT (I.E., LARCENY OR EMBEZZLEMENT) OF PARTNERSHIP PROPERTY? THE ANSWER IS NO. TAKING OF PROPERTY OF VALUE OF ANOTHER. UNDER THE COMMONLAW SINCE PARTNERS THIS IS BECAUSE THEFT IS THE UNLAWFUL

HAVE COMMON OWNERSHIP OF PARTNERSHIP PROPERTY IT IS NOT PROPERTY OF ANOTHER WHICH THE PARTNER HAS TAKEN. WHAT ABOUT UNDER THE MODEL PENAL CODE? THE MODEL PENAL CODE DEFINES PROPERTY OF ANOTHER TO INCLUDE PROPERTY IN WHICH ANY PERSON OTHER THAN THE ACTOR HAS AN INTEREST WHICH THE ACTOR IS NOT PRIVILEGED TO INFRINGE, REGARDLESS OF THE FACT THAT THE ACTOR ALSO HAS AN INTEREST IN THE PROPERTY. THUS, UNDER THE MPC, A PARTNER COULD BE GUILTY OF THEFT IN TAKING PARTNERSHIP PROPERTY WITHOUT CONSENT OF THE OTHER PARTNERS. TWO OTHER THEFT CRIMES ARE LARCENY BY TRICK AND DEVICE AND LARCENY BY FALSE PRETENSES. OCCURRED. ONE WHO OBTAINS ONLY POSSESSION OF PROPERTY BY LIES AND THEN CONVERTS THE PROPERTY TO HIS OWN USE IS GUILTY OF LARCENY BY TRICK. ONE WHO OBTAINS BOTH POSSESSION AND TITLE OF PROPERTY BY LIES AND THEN CONVERTS THE PROPERTY TO HIS OWN USE IS GUILTY OF LARCENY BY FALSE PRETENSES. B. ROBBERY AND EXTORTION
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THE TWO ARE VERY CLOSELY

RELATED AND IT IS OFTEN DIFFICULT TO DETERMINE WHICH HAS

REID IS TWO CASES, REID AND RIDDLES. WAS PRESENTED. CLAIMED THAT SHE OWED IT TO HIM.

ONLY RIDDLES CASE HE

RIDDLES TOOK MONEY FROM BELLAMY.

BUT, BECAUSE HE USED CLAIM OF

FORCE TO OBTAIN IT, HE WAS GUILTY OF ROBBERY.

RIGHT IS NOT A DEFENSE TO ROBBERY WHICH IS THE FORCIBLE TAKING OF PROPERTY FROM THE OWNER THEREOF WITH THE INTENT TO DEPRIVE THE OWNER OF ITS USE. LARCENY AND EMBEZZLEMENT. STATE V. SEIN EXPLORED THE DEGREE OF FORCE NEEDED TO ELEVATE THEFT TO ROBBERY. FROM UNDER HER ARM. THE VICTIMS PURSE WAS SLIPPED IF SHE HAD THE APPELLATE COURT REVERSED THE A MERE TRESPASSORY TAKING MAY ALLOW A CLAIM OF RIGHT DEFENSE TO BOTH TRESPASSORY

ROBBERY CONVICTION BECAUSE FORCE WAS NOT USED. HAVE BEEN ENOUGH FORCE? INTENT.

BEEN PRESSING HER ARM HARD AGAINST THE PURSE, WOULD THAT THE COURT APPARENTLYREQUIRED MUCH MORE FORCE, BASE UPON THEIR OPINION AS TO LEGISLATIVE PERHAPS THE STATEMENT FROM LAFAVE AND SCOTT, QUOTED ON P. 800 IF YOUR CASEBOOK, BEST DESCRIBES THE KIND OF FORCE GENERALLY REQUIRED, AND IS IDENTIFIED AS THE MAJORITY RULE BY THE AUTHORS. A SIMPLE SNATCHING OR SUDDEN TAKING OF PROPERTY FROM THE PERSON OF ANOTHER DOES NOT OF ITSELF INVOLVE SUFFICIENT FORCE TO CONSTITUTE ROBBERY, THOUGH THE ACT MAY BE ROBBERY WHERE A STRUGGLE ENSUES, THE VICTIM IS INJURED IN THE TAKING, OR THE PROPERTY IS SO ATTACHED TO THE VICTIMS PERSON OR CLOTHING AS TO CREATE RESISTANCE TO THE TAKING.
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BURNS INVOLVED THREATS OF CRIMINAL PROSECUTION IF HE DID NOT REPAY MONEY CLAIMED TO HAVE BEEN EMBEZZLED BY THE PERSON THREATENED. IF THE VICTIM DID EMBEZZLE MONEY, THEN IF THE THE METHOD USED TO COLLECT IT WAS NOT EXTORTION. EXTORTION.

VICTIM DID NOT EMBEZZLE MONEY, THEN BURNS WAS GUILTY OF ALSO, IF THE VICTIM DID EMBEZZLE MONEY, BUT THE AMOUNT WAS LESS THAN BURNS ATTEMPTED TO EXTRACT FROM HIM, THEN BURNS WOULD ALSO BE GUILTY OF EXTORTION. GENERALLY, A BONAFIDE BELIEF, EVEN THOUGH MISTAKENLY HELD, THAT ONE HAS A RIGHT OR CLAIM TO PROPERTY NEGATES THE FELONIOUS INTENT. A BELIEF THAT THE PROPERTY TAKEN BELONGS TO THE TAKER,OR THAT HE HAD A RIGHT TO RETAKE GOODS SOLD, IS SUFFICIENT TO PRECLUDE FELONIOUS INTENT. SINCE ROBBERY IS THEFT BY FORCE OR THREATS OF FORCE,IF THERE IS NO THEFT, THERE CANNOT BE A ROBBERY. THUS, IT IS ARGUED, THE CLAIM OF RIGHT DEFENSE SHOULD BE ALLOWED TO NEGATE A CHARGE OF ROBBERY IN A CASE WHERE THE ACTOR BELIEVES HE IS RETAKING HIS OWN PROPERTY, OR PROPERTY TO WHICH HE HAS A SUPERIOR RIGHT TO POSSESSION. THE CLAIM OF RIGHT DEFENSE HAS APPARENTLY BEEN LIMITED TO RECOVERY OF SPECIFIC PEOPERTY. TO THE ACTOR. IT IS NOT GENERALLY RECOGNIZED TO COLLECT OR SATISFY A DEBT OWED BY THE VICTIM THERE IS A PUBLIC POLICY OF DISCOURAGING THE USE OF FORCIBLE SELF-HELP. CLAIM OF RIGHT IS GENERALLY NOT A DEFENSE TO AN EXTORTION CHARGE. HOWEVER, IN THE MPC VIEW, A GOOD FAITH
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CLAIM OF RIGHT NEGATES THE INTENT TO STEAL, THEREBY PRECLUDING CONVICTION OF ANY FORM OF THEFT, INCLUDING BY EXTORTION. ACCEPTANCE. C. FALSE PRETENSES AND FRAUD ASHLEY FLIM FLAMMED TWO ELDERLY LADIES INTO LENDING HIM THEIR LIFE SAVINGS. THEM WERE FALSE. THE REPRESENTATIONS WHICH HE MADE TO HE CLAIMS THAT A HE WAS PROSECUTED UNDER A STATUTE, WHICH THE CASE WAS SUBMITTED ON THE THIS FORMULATION HAS FAILED TO GAIN BROAD

COMBINES THE VARIOUS FORMS OF THEFT. GENERAL VERDICT IS UNLAWFUL.

INSTRUCTIONS RELATING TO THE ELEMENTS OF LARCENY BY TRICK AND DEVICE AND OBTAINING MONEY BY FALSE PRETENSES. COURT HAD STATED THAT THE REVISED PENAL CODE HAD NOT CHANGED THE ELEMENTS OF THESE OFFENSES. BUT THE PURPOSE OF THE CONSOLIDATION OF THEFT OFFENSES WAS TO REMOVE THE TECHNICALITIES THAT HAD EXISTED IN THE PLEADING AND PROOF OF THEFT CRIMES AT THE COMMON LAW. IF THE JURY FINDS THAT THERE HAS BEEN AN UNLAWFUL TAKING, THEY CAN RETURN A GENERAL VERDICT OF GUILTY. OF COURSE, THE STATE MUST PRESENT EVIDENCE TO PROVE THE ELEMENTS OF AT LEAST ONE FORM OF THEFT. THE ELEMENTS OF THESE TWO CRIMES ARE: FALSE PRETENSES-THAT THE DEFENDANT MADE A FALSE PRETENSE OR REPRESENTATION WITH INTENT TO DEFRAUD THE OWNER OF HIS PROPERTY AND THAT THE OWNER WAS IN FACT DEFRAUDED. THE FALSE PRETENSE NEED NOT BE THE SOLE INDUCING CAUSE, BUT IT MUST HAVE MATERIALLY INFLUENCED THE OWNER TO PART WITH HIS
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PROPERTY.

BOTH TITLE AND POSSESSION MUST BE OBTAINED FOR LARCENY BY TRICK AND DEVICE IS THE

FALSE PRETENSES.

APPROPRIATION OF PROPERTY, THE POSSESSION ONLY OF WHICH WAS FRAUDULENTLY ACQUIRED. THERE MUST BE NON-PERFORMANCE OF A PROMISE TO SUPPORT A CONVICTION FOR FALSE PRETENSES. COULD FIT UNDER THIS CRIME. HOWEVER, THAT IS NOT ALL THAT MUST BE PROVEN, OTHERWISE EVERY BREACH OF CONTRACT THERE MUST ALSO BE PROOF OF AN INTENT NOT TO PERFORM AT THE TIME THE PROMISE WAS MADE. THE TRADITIONAL RULE WAS THAT THE FALSE REPRESENTATION MUST RELATE TO A PRESENT OR PAST FACT; AS TO A FUTURE FACT WILL NOT DO. A FALSE REPRESENTATION THE MODEL PENAL CODE, IN A

223.3, PROVIDES, PERSON IS GUILTY OF THEFT IF HE PURPOSELY OBTAINS PROPERTY OF ANOTHER BY DECEPTION. PERSON DECEIVES IF HE PURPOSELY: (1) CREATES OR REINFORCES A FALSE IMPRESSION, INCLUDING FALSE IMPRESSIONS AS TO LAW, VALUE, INTENTION OR OTHER STATE OF MIND; BUT DECEPTION AS TO A PERSONS INTENTION TO PERFORM A PROMISE SHALL NOT BE INFERRED FROM THE FACT ALONE THAT HE DID NOT SUBSEQUENTLY PERFORM THE PROMISE. REMEMBER THE MODEL PENAL CODE HAS BOTH FALSE ADOPTED A COMBINED FORM OF THEFT STATUTE. DECEPTION.

PRETENSES AND LARCENY BY TRICK ARE COVERED UNDER THEFT BY

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EXAM INFO [ADDED BY UPLOADER] THE FINAL EXAM CONSISTS OF 50 TRUE/FALSE AND 4 SHORT ESSAY QUESTIONS. A COPY OF THE MODEL PENAL CODE WILL BE PROVIDED YOU WILL BRING YOU WILL USE THE TO YOU A FEW WEEKS BEFORE THE FINAL EXAM. THAT COPY WITH YOU TO USE ON THE EXAM.

MODEL PENAL CODE TO ANSWER THE TRUE/FALSE, AND USE BOTH COMMON LAW AND THE MODEL PENAL CODE TO ANSWER THE ESSAYS.

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