Sources of Criminal Law

Sources - Statutes - Cases - Constitutions o U.S. Constitution sets limits on what penal codes can say 8th Amendment: no cruel and unusual punishment 5th and 14th Amendments void for vagueness substantive due process equal protection Double Jeopardy Clause (5th Amendment) th th - 4 , 6 Amendments: procedural amendments ii. Regulations (ethical codes) 1. ABA Ethical Guidelines for prosecution and defense functions b. Model Penal Code i. Proposals on sentencing: 1. Limit retributivism as governing philosophy, focus instead on Utilitarian goals. 2. Design to reduce racial and ethnic disparities 3. Encourage intermediate penalties 4. Promote research on sentencing policy and practices so sentencing will be evidence-based c. Common Law i. Federal law is generally common law. Justifications for punishment d. Incapacitation e. Retribution f. General Deterrence g. Specific Deterrence h. Rehabilitation i. Expressivism (for academics only) i. Punishment really a symbolic act, intended to send a message j. Alternatives to incarceration i. Fines, community service ii. Shaming punishments iii. Therapeutic jurisprudence iv. Restorative justice: ADR

Presumption of Innocence and Standards of Review k. Presumption of Innocence i. Burden of proof: beyond a reasonable doubt 1. Burden of production: always on the prosecution 2. Burden of persuasion: usually on prosecution, sometimes on defense ii. Defense Strategies 1. Alternative theory 2. Create a reasonable doubt about some element of crime 3. Affirmative defense: admit basic crime but argue for acquittal based on extenuating circumstances a. Standard: preponderance of the evidence l. Standards of Review i. directed verdict: judge directs jury to acquit ii. appeal after conviction 1. wrt to this, judge gives prosecution benefit of doubt

CURLEY v. U.S. Facts CEO denied knowledge of fraud. Found guilty by fact-finding jury bc unlikely he wouldnt have known. Rule Canons of construction o Statutory context o Avoid constitutional questions when possible o Avoid absurd results Rule of lenity o Roots in due process clause fair warning requirement o Doctrine of last resort

Role of Jury - Jury nullification: jury not obligated to follow law as described by judge o Race-based theory in favor Blacks traditionally marginalized from law-making Symbolic role of black juror Against: Blacks may be discriminated against and ejected during voir dire Pro Jury Nullification Empowers minorities to act outside the systemlocal democracy Counters moral injustice suffered by minorities in other areas Heightens awareness political crisis can lead to change Anti Jury Nullification Undermines rule of law; antidemocratic (goes against legislature) Threatens faith in impartiality Juries not informed enough to use nullification properly Perpetuation of stereotypes (if blacks always nullify) Slippery slopeeveryone will use More criminals free than otherwise

PEOPLE v. WILLIAMS Facts Rape, statutory rape case. Juror No. 10 objected to statutory rape charge and was replaced by alternate juror. App Ct held juror discharge appropriate bc jury must follow trial courts instructions, jurors should not interpret law. Rule

Statutory Interpretation - Statutes primary source of criminal law - Loose rules a. Efficiency in administration of justice b. Interpret statutes in way that avoids constitutional problems U.S. v. DAURAY Facts had child pornography clipped or copied from magazines. Statute language ambiguous. Language outlawed possession of items that contain depictions of child porn, not images themselves. Requested and received rule of lenity, acquitted. Rule Rule of lenity should be applied when statutory language is ambiguous.

Constitutional Constraints

14th Amendment Due Process: Void for Vagueness Doctrine - Due Process Clause: o Interpreted to mean legislatures must draft clear and understandable statutes o Fair notice: a person of ordinary intelligence must be able to understand a statutes meaning and thus be put on notice that her conduct may come near proscribed area - Void for vagueness o Must have notice of laws. o Cant apply arbitrarily. - Ex Post Facto o Laws cant be applied retroactively. o Cant reduce amount evidence required to convict and then apply lowered standard to acts that happened previously. - 8th Amendment: Cruel and Unusual Punishment o Grossly disproportionate o Punishment doesnt measurably further deterrence or retribution PAPACHRISTOU v. CITY OF JACKSONVILLE Facts 8 s convicted for violating municipal vagrancy ordinance (26-57). Ordinance found unconstitutional, promoted arbitrary/discriminatory enforcement of law. Rule KOLENDER v. LAWSON Facts Challenge to statute requiring ppl to provide credible and reliable IDs and to account for their presence in public when requested by cops under standards of Terry v. Ohio. Ordinance 647(e) found overbroad. District court enjoined enforcement, unconstitutionally vague, fails to clarify what is contemplated by clear and reliable identification. Rule

CITY OF CHICAGO v. MORALES Facts City Council enacted Gang Congregation Ordinance prohibiting gang members from loitering in all public places. SCOTUS found violated DPC bc unconstitutionally vague and overbroad. Rule Dissent many laws infringe upon freedom of all citizens but not considered unconstitutional (speed limits, etc.)

3 Strikes Law, Enhanced Sentencing - applies when felonies considered serious or violent - Prosecution has discretion to determine whether wobbler is felony or misdemeanor EWING v. CALIFORNIA Facts Ewing stole golf clubs and sentenced to life bc of priors. Claimed 3 strikes grossly disproportionate under 8th Amendment. SCOTUS ruled 3 strikes law doesnt violate 8th amendment. Rule Test to determine if sentence is disproportionate: 1) gravity of offense and harshness of penalty; 2) sentences imposed on others in relevant jurisdiction; and 3) sentences imposed for commission of same crime in other jurisdiction. Proportionality inherently tied to concept of retribution 4th Amendment - Terry v. Ohio: race can be relevant to determine reasonable suspicion as long as not sole factor - Equal Protection Clause of 14th Amendment allows to treat people differently on basis of race if serves a compelling state interest or is narrowly tailored evaluated w/ strict scrutiny

McCleskey v. Kemp Facts Armed robbery of furniture store, cop killed. filed writ of habeas corpus stating GA capital sentencing procedure is racially discriminatory and violates 8th amendment. Used Baldus study re race disproportionality (for perpetrator and victim) in capital cases. Court ruled that presented no information specific to his case claiming discrimination. He would have to prove legislature adopted capital punishment in order to racially discriminate. Rule

Sodomy
BOWERS v. HARDWICK Facts appealed claiming GA sodomy statute violates 1st amendment right to do what he wants in his own home. SCOTUS ruled that Constitution doesnt give right to sodomy. Argued that it is historically a crime and that lots of victimless crimes are still illegal despite occurring in private. Also held sexuality is not a suspect classification, so wouldnt rule under equal protection challenge. Rule Dissent 20 year sentence for sodomy violates 8th amendment. Privacy a fundamental right. Discriminatory enforcement against gay men. LAWRENCE v. TEXAS Facts Sodomy prosecution. argued that same acts done by heterosexual couple = legal. SCOTUS overruled Hardwick, finding that sodomy statute violates Equal Protection Clause of 14 th amendment. Laws against homosexual sex acts lead to discrimination in a more general sense. People have fundamental right to express their sexuality. Rule

Basic Elements of a Crime

Actus Reus - Physical elements of crime o Prohibited conduct (e.g. speeding) Must be voluntary. o Prohibited result (e.g. homicide) o Attendant circumstance (Facts that have to be present for crime to be committed. E.g. statutory rape requires age of victim to be satisfied.) o Omissions only serve as basis for criminal liability when violate established legal duty. Imposed by statutes, contracts, relationships (parent-child, spousal), assumption of care. Situational (e.g. hit and run) o - Must intersect w/ Mens Rea. Have to occur together. - Talk about o Attendant circumstances o Voluntariness of action Mens Rea - Internal, mental element of crime. - MPC: o Purposefully: conscious object to engage in conduct thats prohibited, bring about prohibited result. o Knowingly: awareness. Awareness that engaging in conduct thats prohibited. NOT awareness that conduct is criminal. o Recklessly: Gross deviation from norm in consciously disregarding a substantial and unjustifiable risk. o Negligently: Gross deviation from the norm in failing to be aware of a substantial and unjustifiable risk. *** Difference from recklessly is awareness of risk.*** - Common law: o Negligently, recklessly = same as MPC. o Intentionally: Knowingly + purposefully. o Maliciously: Recklessly at the very least. o Willfully: Intentionally or any culpable state of mind. () Causation - For prohibited result crimes, must have causation. Conduct must have caused prohibited result. - For prohibited conduct crimes - Requirements o Actual cause: but-for cause. But for your conduct, would the prohibited result have happened? o Proximate cause: Foreseeability. Natural and probable consequence of your conduct. Intervening acts, agents. Passage of time. Bizarre coincidences. MARTIN v. STATE Facts Defendant taken from home to highway by police, charged w/ public drunkenness. AL app ct held that voluntary act presupposes public drunkenness statute, doesnt count if forcibly taken into public. Rule STATE v. DECINA Facts had seizure while driving, killed 5 young girls. Charged w/ criminal negligence in operation of vehicle. NY app ct held that was guilty of criminal negligence, should have known of likelihood that accident would happen based on his condition.

II.

Omissions a. No criminal responsibility for failure to act unless: i. Special relationship ii. Contractual relationship iii. Statutory duty to act 1. Good Samaritan acts iv. voluntarily secluded victim from receiving help v. s actions made victim vulnerable to further harm

COMMONWEALTH v. HOWARD Facts Mother charged w/ involuntary manslaughter after failed to protect daughter from repeated abuse by stepfather. Court found guilt bc of special mother-daughter relationship and knowledge of abuse, duty to protect. Rule

COMMONWEALTH v. PESTINIKAS Facts agreed to care for elderly man, abandoned, starved and dehydrated him. Found guilty bc had K to care for him. Rule

Mens Rea
b. Mens rea: the mental state provided for in the definition of the offense c. All material elements must have associated mens rea i. MPC: 2.02(3)-(5) d. Common law approach (EX: CA law) i. Common sense meanings ii. Non-standardized meanings iii. Variety of mens rea terms iv. Lumps together terms that MPC splits v. Need to resort to statutory interpretation e. MPC approach (EX: NY law) i. Elemental analysis ii. Formal definitions iii. Four basic terms iv. Default rules in code REGINA v. CUNNINGHAM Facts Man stole money from gas meter >> poisoned mother-in-law. Jury given definition of malice: wickedness. Not traditional definition. App ct found that judge gave jury the wrong definition. Rule U.S. v. YERMIAN Facts made false statements in security questionnaire. U.S. 1001 requires prosecution to prove beyond reasonable doubt that statement made w/ knowledge of its falsity and knowledge of federal agency jurisdiction. Found that knowledge of federal statute not required for conviction. Rule HOLLOWAY v. U.S. Facts Armed carjacking. Jury instructed that intent requirement would be met if possessed conditional intent. SCOTUS found that only conditional intent to kill necessary. Common sense, broader reading. Rule STATE v. FUGATE Facts Homicide in commission of armed robbery. argued that killing wasnt done purposefully, and intent is essential in 1st degree conviction. OH app ct ruled that intent to kill = knowing natural and probable consequences of action will result in death. Rule Common law more lenient than the MPC on intent. Jury can rely on circumstantial evidence to infer intent or purpose. (MPC and common law agree on this.)

Intent
Negligence o Should be aware of unjustifiable risk Specific vs. general intent o Common law-based codes only o Legal fiction invented to serve particular purpose that subsequently migrated to other areas o Distinguishing the 2 kinds of mens rea 1. Intent to commit act vs intent to cause resulting harm 2. Vague or no mens rea language vs. language describing what was in the s mind Transferred intent

Common law: MPC 2.02(2) and (3) MPC same as CL: a person purposely or knowingly causes a result if the result differs only in the respect that a different person orproperty is injured or affected. [2.03(2)(a)]. o When used other than as substitution = culpability issue Willful blindness o MPC 2.02(7) o Must distinguish from negligence o Must locate culpability o o o

U.S. v. JEWELL Facts transported marijuana into US from Mexico. Deliberately contrived to lack positive knowledge, but evidence existed that knew something was going on. Held that was guilty, must prevent use of denial of knowledge as an affirmative defense. Rule Willful ignorance = criminal liability.

REGINA v. PEMBILTON Facts meant to throw rock at man, hit window by accident. Court decided shouldnt be tried for maliciously breaking window bc lacked intent. Rule No intent to create unlawful result = no liability. PEOPLE v. SCOTT Facts shot automatic weapon into crowd w/ intent to kill A, killed B by accident. App. Court ruled jury was properly instructed to apply transferred intent theory of liability and find for 1 st degree murder. Rule Transferred intent:

PEOPLE v. ATKINS Facts set fire to field while intoxicated. Charged w/ arson, which has a general intent requirement. Court ruled that evidence of intoxication not dispositive, didnt negate arsons mens rea requirement. Rule Voluntary intoxication is not a defense to general intent crimes.

Mistake of Law, Ignorance of the Law, Strict Liability

Strict Liability Crimes
Strict liability: govt doesnt need to prove a mental state Morrison: public welfare offenses (minor offenses that damage social order) require greater description of intent.

MORISETTE v. U.S. Facts Deer hunter trespassed on govt land and took casings. No attempt to conceal actions. Had no intent to steal, thought property was abandoned. Convicted of theft (conversion). SCOTUS ruled omission of criminal intent from statute shouldnt be construed as meaning there is no intent requirement. Held there is a fundamental relationship between crime and intent >> idea of intent so inherent it requires no statutory assertion. Rule

Mistake and Ignorance

Usually prima facie defenses Mistake is the flip side of mens rea Common law vs. MPC o Common law distinguishes mistakes of fact from mistakes of law o MPC doesnt distinguish between mistakes of fact and mistakes of law

Mistakes of Fact - Specific intent offense o Honest mistake negates the specific intent require for commission of a crime o Doesnt have to be reasonable mistake - General intent offense o Mistake of fact that negates an element of the crime must be honest and reasonable to exculpate PEOPLE v. NAVARRO Facts charged w/ grand theft after stealing 4 beams from construction site, believing they had been abandoned. Court found jury wasnt properly instructed to find a guilty verdict if there was doubt that didnt have intent to steal. Found prosecution didnt prove crimes specific intent requirement, and that mistake of fact must be based on reasonable grounds. Rule BELL v. STATE Facts convicted of engaging 2 minors in prostitution, one under age 16 and uoen under threat of force. argues didnt know girl was underage. Court found shouldnt have been allowed to make a reasonable mistake of fact (age) defense, bc still had specific intent to get girls involved in prostitution, conduct still would have been illegal had the facts he believed been true. Rule Official Interpretation of the Law (Entrapment by Estoppel) - Affirmative defense for s who commit crimes upon reliance of official statements of the law, whether set forth in judicial rulings or in oral or written statements by officials - If coerced by govt entity, shouldnt be punished - Estoppel doesnt apply w/ strict liability crimes - Apparent vs. actual authority. Courts split on this issue.

PEOPLE v. NAVARRO Facts Correctional officer convicted of criminal possession of firearm, believed he could carry it based on statute, as a peace officer. Court found s misreading of statute didnt excuse his criminal conduct. Rule Ignorance of the law is not an excuse. Shouldnt incentivize ignorance, or encourage false claims. U.S. v. CLEGG Facts convicted of arms smuggling. Had relationship w/ military in Pakistan, claims was told by lieutenant colonel to sell weapons to Afghan rebels, received help from and bought ammunition from American military officials to get to rebels. Court ruled that could use mistake of law and estoppel by entrapment as a defense. Rule DISSENT: No proof that officials misled into thinking what he was doing was lawful. was gun running before he had contact w/ officials. STATE v. FRIDLEY Facts convicted of driving w/ revoked license. Was told by DMV representative that he could drive w/ a work permit. Court ruled jury properly instructed to not consider mistake of law argument. Held no reasonable reliance on official statement or interpretation of law. Also, offense a strict liability crime. Rule Mistake of Law - Sometimes knowledge of the law is an element of the offense o If so, mistake, ignorance or misunderstanding of law that negates mens rea is a defense (prima facie case defense) CHEEK v. U.S. Facts charged w/ tax evasion. Believed 16th amendment and federal taxation was unconstitutional. Believed wages not taxable. Jury instructed that govt must prove no mistake, ignorance or negligence. SCOTUS held that a good faith belief or misunderstanding of the law doesnt have to be objectively reasonable to negate willfulness. Held knowledge and belief were questions for fact-finding jury. Held that constitutionality belief distinct from this requirement >> knew the law but willfully disobeyed it. In this context, willfully = violation of known legal duty, so any good faith error about the law is a defense. Rule BRYAN v. U.S. Facts Statute requires knowingly violated federal licensing requirement. No evidence that aware of licensing requirement. Court held that didnt have to have knowledge of specific law broken. Held knew he wasnt acting lawfully and this was enough. Rule Dissent Rule of lenity should apply. Fair Notice and Due Process The Lambert Exception - Restrict when a person can be convicted of a crime that is a crime of omission or strict liability LAMBERT v. CALIFORNIA Facts failed to comply w/ Los Angeles statute by registering as a felon w/in certain amount of time of entering city. SCOTUS held that law was unconstitutional, violation of due process clause of 14th amendment. Notice requirement engrained in Due Process requirement, had no awareness of registration requirement and was given no change to remedy situation once became aware of requirement. Rule

STATE v. BRYANT Facts Sex offender was notified that had to register w/ S.Carolina authorities by prison personnel. Moved to N. Carolina, didnt register. Guilty bc court held that sex offender registration required so commonly throughout all 50 states, reasonable to expect that had knowledge of requirement. Rule

Causation part of actus reus requirement.

Common law: more discretion to judges o But-for causation (actual causation) + proximate causation = responsibility o but-for serves only to eliminate candidates for responsibility, doesnt resolve ultimate causal responsibility o Proximate: reasonably-foreseeable by person in s situation Resolves ultimate causal responsibility o Ask: if a different persons independent behavior contribute so substantially to outcome that holding responsible seems unjust? MPC: More discretion to fact-finder o But-for causation [2.04(1)(a)] o No proximate cause analysis, instead depends on what mens rea is required. Good enough fit between s expectations and actual outcome. Time limits? o Year and a day rule: can only be convicted of murder if victim dies w/in a year and day of act. o CA: 3-years and a day rule

COMMONWEALTH v. REMENTER (1991) Facts Woman fleeing assault hit by car. argues death unforeseeable. Rule Direct and substantial causation between s action and homicide = criminal responsibility. s actions operative cause of death. STATE v. GONYAN (1987) Facts shot gf in back, she became paraplegic, died of pneumonia. Rule GSW was what cause paraplegia. Intervening event was not a coincidence. HENDERSON v. KIBBE (1977) Facts kidnapped, robbed man. Left him w/o glasses and undressed on snowy road. Victim hit by car. s argued drivers negligence responsible. Rule s = intentional wrongdoers.

Homicide
Murder; Common law: - Actus reus: unlawful killing of another human being - Mens Rea: Malice aforethought. o Intent to kill; o Intent to inflict serious bodily injury; o Gross recklessness in risking human life (depraved heart murder); o Felony Murder. - 1st degree: o Mens rea: premeditated and deliberate; mercy killings. o Felony-murder, enumerated felonies. - 2nd degree: o Any other murder. Depraved heart murder Intent to inflict serious bodily injury Felony-murder, felony not enumerated. Murder; MPC - No degrees. -

Criminal Homicide (supp)

I. MURDER a. Killing (actus reus) w/ b. (Mens rea) Malice aforethought, premeditation and deliberation. (express malice, intent to kill) i. Common law for malice aforethought: 1. Intent to kill (express malice) 1st degree 2. Intent to commit serious bodily injury (jury to infer malice) 2nd degree 3. Abandoned and malignant or depraved heart (implied malice) 2nd degree 4. Felony murder rule (jury to infer malice) 1st or 2nd degree c. Categories i. First-Degree: 1. Murder involved premeditation (no particular amt of time required) and deliberation (quality of s thought processes). ii. Second Degree 1. Intentional killing w/o premeditation and deliberation. 2. Can be aggravated to 1st-degree murder. d. Discretionary issues i. Either side can request jury receive instruction. How will jury respond to stark choices v. range of options? e. Common law:

STATE v. BROWN (1992) hot-blood v. cold-blood Facts 4 y/o boy killed by stepfather, long history of abuse. argues no premeditation. Rule Deliberation component requires time to reflect, cool off. Cannot be formed instantly, as premeditation can. Test: Reasonable to know that actions could have resulted in death of child? STATE v. BINGHAM (1986) Facts strangled victim to death while raping her. Prosecution argues 3-5 min it took for her to die = premed, delib. Rule Statute provides premeditation requires more than just a moment of time. Premeditation must take place before commencement of the act that results in death. GILBERT v. STATE (1986) Facts Old man kills wife w/ Alzheimers and osteoporosis. Mercy killing. Rule Good faith not a legal defense to murder. Statutory minimum sentences dont contemplate mitigating circumstances. Exceptions should be

determined by legislature, not corts. II. MANSLAUGHTER a. Killing w/o malice aforethought b. Voluntary Manslaughter i. Intentional killing reduced through application of a partial defense. 1. Provocation mitigates culpability a. Early common law test (categorical approach) 1. Adequate provocation is a question of law. 2. Mitigated by: aggravated assault or battery, observation of serious crime against close relative, illegal arrest, mutual combat, catching wife in act of adultery. b. Modern reasonable man test << common law test. 1. Adequate provocation is a question of fact. 2. Rules such as cooling time and mere words can be relaxed or amended. 3. Creates a compromise between subjective and objective approaches. a. Subjective inquiry: was the genuinely in the heat of passion? b. Objective inquiry: Did the become overwrought for reasons the jury to decide on a case-by-case basis as to what provocation in adequate. 4. Can change over time, a way to introduce social/cultural norms into the law. 5. Reasonableness standard: can only instruct jury on demographics. 6. Test: a. acted in heat of passion b. Heat of passion provoked by an act or even that would also have provoked a reasonable person c. didnt have time to cool off between provocation and the killing d. a reasonable person in s shoes wouldnt have had sufficient time to cool off e. There is a causal connection between provocation, passion, and killing >> person killed must be provoker or someone acting in concert w/ provoker. c. MPCs extreme mental or emotional disturbance test i. Require jurors to consider the s pov. This require jury to find if explanation of the s mental or emotional disturbance is a reasonable one. ii. 210.3(b): Murder becomes manslaughter when committed under influence of extreme mental or emotional disturbance for which there is a reasonable explanation and excuse. 1. Reasonableness determined from viewpoint of a person in the actors position under the circumstances as he believed them to be. 2. More subjective than the common laws approach. d. Depraved Heart Murder (CA penal code) 1. Malice can be implied when acts w/ gross recklessness and extreme indifference to human life.

PEOPLE v. AMBRO (1987) traditional common law (categorical) approach Facts stabbed wife to death after repeated fights. She was having affair, said his children werent his, etc. Rule Culmination of a series of events. Goaded him to kill her is turning. PEOPLE v. BERRY (1976) modern reasonable person approach Facts killed wife after she told him she was leaving him for someone else. 2 weeks of provocation. Psych expert testimony >> victim had subconscious suicidal impulse that acted out through provocation. Rule Jury should determine if adequate provocation.

Cumulative provocation > cooling time objection. COMMONWEALTH v. CARR (1990) assessment of reasonable person ordinary man Facts killed 2 women he found making love in woods. wanted his psychosexual history admitted as a defense. Rule Accused cannot recall some highly individualized past injury or insult to establish a manslaughter conviction. STATE v. DUMLAO (1990) MPCs emotional disturbance test Facts w/ paranoid personality disorder shot mother-in-law after thinking she was conspiring against him. Rule Should give instruction if any evidence is presented to support a finding that at the time of the offense the suffered an extreme mental or emotional disturbance that had a reasonable explanation. MPC doesnt require provocation to emanate from the victim. COMMONWEALTH v. MALONE (1946) depraved heart Facts 2 boys playing a game like Russian roulette, one shoots the other in the abdomen. Rule Malice includes extreme reckless and indifference to human life. Test: wicked disposition PEOPLE v. KNOLLER (2007) depraved heart Facts owned 2 fighting dogs in an apartment building. Didnt make any effort to control them, despite numerous instances where dogs threatened or attacked other tenants. Rule Test: Implied malice requires the acted with a conscious disregard for human life. Awareness of serious risk of bodily injury < depraved heart murder < awareness of high probability of death Involuntary Manslaughter - Brought about the death of someone through criminal negligence - Some common law states recognize vehicular manslaughter (CA) - 2 ways to secure an involuntary manslaughter conviction: o Prove had the requisite mens rea for involuntary manslaughter conviction Gross negligence or recklessness o Misdemeanor manslaughter rule. MPC [ 210.3] - Doesnt recognize degrees of murder - Murder: killings that are: ( 210.2) o Purposeful o Knowing o Reckless + extreme indifference to human life Different than felony-murder. (depraved heart murder) o Manslaughter ( 210.3) o Negligent Homicide ( 210.4) Killings that are the result of s negligent conduct PEOPLE v. WELANSKY (1944 - MA) Facts Nightclub owner failed to take fire safety precautions. There was a fire. Tons of people died. Rule Deaths resulted from wanton and reckless disregard of safety of patrons. Had duty to care for safety of people hed invited to location that he controls for business purposes. can be considered reckless even if thinks hes being careful. STATE v. WILLIAMS (1971) Facts Parents failed to take sick baby to doctor. Claimed ignorance of illness and fear that baby would be PCd. Rule Reasonable person would have known to seek medical attention.

s violated their natural and legal duty to care for their child. Felony Murder - Strict liability crime - Common law o Statutory felony murder Predicate felonies listed in statute itself. o Common law felony murder Predicate felonies not listed in statute. - MPC 210.2(1)(b) o Predicate felonies are examples of extreme indifference to human life Rebuttable presumption, allowing for case-by-case assessment Folded into reckless murder - Policy concerns: o Inconsistent w/ rest of homicide law (intent requirement not tied to actual homicide) o Inconsistent w/ common sense intuitions of culpability o Doesnt deter. - Inherently dangerous rule o Applies to non-statutory felony murder only o Different formulations in different jxs. - Res gestae rule o One continuous relationship o Proximate cause relationship - Merger rule o No felony murder rule when underlying felony is an integral part of the homicide and is included in fact in the killing. - Agency rule o To serve as the basis of a felony-murder charge, the act of killing must be physically committed by one of the felons or someone acting in concert with them. EX: robber in stand-off w/ cops uses victim as a human shield. Restricts f-m application where possible Retributive function: People are only deserving of punishment based on their own actions, not the actions of adversaries. Causation: independent intervening cause. - Misdemeanor Manslaughter o Like felony murder, but usually combined w/ gross negligence theory in jury instructions. o Limitations: Res gestae No strict liability crimes as predicate misdemeanors Inherently dangerous to life or safety PEOPLE v. STAMP (1969) Facts s robbed a store. Robbery victim later died of a heart attack. Rule Felony-murder doctrine not limited to deaths that are foreseeable. PEOPLE v. JAMES (1998) inherently dangerous rule Facts was cooking meth when exploded, 3 children died in ensuing fire. Rule If felony cant be perpetrated without creating substantial risk that someone will be killed, then inherently dangerous rule applies. HINES v. STATE (2003) inherently dangerous rule Facts accidentally shot friend while hunting turkey. had a felony-prior, so illegal (statutory) to be handling firearm. Rule Enumerated felony >> felony murder rule. PEOPLE v. BODELY (1995) Res gestae requirement Facts stole money from cash register, employees pursued him to parking lot. hit employee with car while trying to flee, killed employee. Rule The escape rule is consistent w/ the one continuous transaction rule.

KING v. COMMONWEALTH (1988) res gestae requirement Facts Drug-smuggler co-felon died during plane crash. Rule Cant apply F-M rule if death was not caused by an act of felons in furtherance of the felony. F-M rule should have limited application. PEOPLE v. SMITH (1984) Merger Doctrine - CA Facts Child-abuse murder. Rule If the felony is integral part of the killing, and is included w/in the homicide, the felony is merged into homicide and felony-murder rule doesnt apply. PEOPLE v. CANOLA (1977) 3rd-party killings: The Agency Rule Facts Victim of the robbery shot one of the co-felons in an effort to resist. Rule F-M rule cant be applied where the killing, even if growing out of commission of a felony, is directly attributable to the act of the one other than the or his cohort.

Theft
Concept of theft evolved as concept of property evolved >> deeply intertwined w/ economics and technology. Larceny - Most ancient of theft crimes - Definition: 1. Taking and carrying away (asportation) of personal property a. Perpetrator has no right to use property. b. Breaking bulk: legal fiction, if you open package to remove goods, thats a trespass and you can be said to have committed larceny. 2. From possession of another (trespass) a. Must significantly interfere with owners possession. b. Trespass: Must violate possession of owner. Must dispossess owner of the property w/o consent. 3. w/ intent to permanently deprive the owner of the property. a. Mens rea: specific intent crime b. Must be concurrence between mens rea and actus reus (taking and intent must occur at same time) - Constructive possession: individual retains possession of property when entrusting it to employee or agent, employee/agent only takes custody of property. (usually limited to employer/employee relationships) o Distinction between custody and possession Custody: Physical control over property but right to use it is restricted by person in constructive possession of property. Possession: has sufficient control over property to use in a reasonably unrestricted manner. Common law doesnt cover theft of immovable goods like land, tree. MPC does (bc of no asportation aspect). MPC: NO asportation element.

Embezzlement - Definition: 1) Intentional conversion of 2) Property of another 3) By someone who is already in lawful possession of it (or by someone to whom it has been entrusted) - conversion: act that seriously interferes w/ owners ability to use property o asportation not enough to constitute conversion. False Pretenses - Taking title by deceit. o Mens rea: Must have intent to defraud. To determine which theft crime: 1) Did the victim intend to give title? Or only possession? a. Former: False pretenses. b. Latter: Larceny or embezzlement. 2) Did the come into the property lawfully (usually by consent)? a. If YES: Embezzlement.

Consolidated Theft Statutes:

Burglary
Common law: o Unauthorized intrusion into a space (CA: entering) o Intent to commit a felony therein MPC: ( 222.1) o Entering o With purpose to commit a crime therein Note: o Distinct social harm: violation of privacy, security distinct from intended crime o Juries often willing to infer intent

Robbery
Traditional common law elements o Taking and carrying away o Personal property of another o Use of force / threat of force o From victim or in victims immediate presence o Intent to permanently deprive the victim. CA: broader conception of crime (Miller) o Taking need not happen in victims presence o The need not use force to take the property, as long as force is used in the escape MPC (221.1): o Commission of theft o Serious bodily injury, threat of same, or commission / threat of serious felony o Extends crime to include flight after attempt or commission of theft

CROCKER v. STATE (1973) MI: Robbery Facts took money from friends wallet while it was not on his person. Rule Not robber bc act included no force or fear, and not taking or carrying away from presence of person. MILLER v. SUPERIOR COURT (2004) CA: Robbery Facts took money from wallet while it was in locker room @ swimming pool. Victim happened upon him, tried to use force to push past victim and escape. Rule Robbery even if used force only in flight. Victims immediate presence in asportation of property is also sufficient. No immediate presence or use of force or fear when got control of property, but immediate presence and force used in asportation.

Affirmative Defenses MAKE A CHECKLIST FOR EXAM

Justification Defenses: acted correctly so there is no crime - MPC Article 3 - Defensive force - Necessity Excuse Defenses: acted incorrectly but for reasons of human frailty so there is no punishment - MPC Articles 2 and 4 - Duress - Insanity - Intoxication Justification v. Excuse - Justifications are generalized. Excuses are individualized. - Excuses can only be invoked by individual who suffers from excusing condition. Justifications can be used to apply to 3rd-party conduct. -

Defensive Force
Doctrines o Self-defense was threatened w/ imminent threat of unlawful force force used was necessary to repel threat, and proportional to the threat. Battered Womans Syndrome: Limited opportunity to escape Cycle of violence Battery victims have detailed knowledge of when violence is likely to occur and what level of violence will be Batterers more likely to kill when partner tries or threatens to leave relationship, situation. o Defense of others uses force to defend another person he believes in imminent danger of attack. act-at-peril rule: permits use of force in defense of 3rd-party only if correct about 3rd-partys ability to use privilege of force in self-defense. o Defense of habitation Can use force if occupant reasonably believes such force is necessary to prevent imminent unlawful entry and intruder intends to commit a felony or cause injury to occupant or to another occupant. MPC: [ 198.5] 4 elements: Unlawful and forcible entry into residence; Entry must be by someone who isnt a member of the family or household; The residential occupant must have used deadly force against victim w/in the residence; The resident must have had knowledge of the unlawful and forcible entry. o Defense of property Common law: Deadly force unreasonable as a matter of law to simply protect property Non-deadly force may be justified in protection of property in certain circumstances. MPC: 3.06 o Defense of public peace Felony prevention Common law: o Non-deadly force OK to prevent any felony. o If deadly force used, felony must be forcible and atrocious Some felonies are forcible and atrocious as a matter of law (rape, murder, etc.)

Others have to be assessed on a case-by-case basis Issues: Some states have a hot pursuit rule must witness felony being committed Some states require a warning before using deadly force Some states employ an at peril rule: no justification available if you injure someone who wasnt actually a felon (objective standard)

Structure: 1. Some triggering condition. 2. Response that is both necessary and proportional to the triggering condition. 3. All are judged by a reasonable person standard. Imperfect Self-Defense o Some states mitigate crimes from murder to voluntary manslaughter o Response not necessary or proportional even though actor thought it was.

Felony apprehension Force w/ felonies that are forcible and atrocious. (matter of law or fact?) o Rape and Murder o Forcible and atrocious: threaten serious injury or bodily harm Hot pursuit rule?

MPC [ 2.04-3.08, 3.09] o Jury decides if use of force necessary, proportional. o No reasonableness language, issue is what the actor subjectively believes o 3.4(2)(b)(ii): duty to retreat, castle includes ones workplace o 3.05: actor can use force to protect someone else no duty to retreat if protectee has duty to retreat, actor must try to induce him to retreat. o 3.09: Creates a doctrine equivalent to common laws imperfect self-defense Permits conviction on (lesser-included) recklessness/negligence crimes if jury believes was reckless or negligent in 1) assessing necessity of force, and 2) acquiring or failing to acquire relevant knowledge or beliefs (objective)

PEOPLE v. GOETZ (1986-NY) Self-Defense Facts shot kids on subway. Had previously been mugged several times. Rule Subjective circumstances should be considered even w/ objective standard. STATE v. SIMON (1982 - KS) Self-Defense & the Reasonable Person Standard Facts fired at Asian neighbor, other neighbors and police officers. Had irrational racist fear of neighbor. suffered from anxiety condition that caused him to misjudge reality and consider himself under attack. Rule Reasonable belief: belief + existence of facts that would persuade a reasonable person to that belief. STATE v. STEWART (1988 - KS) Self-Defense & Battered Woman Syndrome Facts shot abusive husband in his sleep. Horrendous long term abuse against her, daughter. Threatened to kill her. suffering from PTSD. Rule Traditional conception: one-time conflict between ppl of equal size and strength. Traditional concept doesnt work when weaker than abuser. Evidence of long-time cruelty and violence admissible in determining self-defense. JENKINS v. STATE (2006 - FL) Self-Defense, Defense of Habitation Facts stabbed victim defensively after victim threatened , his home and his family w/ bodily harm Rule Usually, has duty to retreat when attacked, but different standard applies when attacked in his own home. (Castle Doctrine). Limitation on duty to retreat: has to know that he can retreat to (complete) safety. Majority rule in US: no retreat is necessary wrt defense of habitation before using deadly force. **An initial aggressor may regain privilege of self-defense if withdraws from conflict and makes withdrawal plain to others involved.

PEOPLE v. YOUNG (1962, NY) Defense of Others Facts attacked plain clothes cop he believed was assaulting another person. Was actually lawfully arresting other party. Rule Right of a person to defend another shouldnt be greater than such a persons right to defend himself. PEOPLE v. BROWN (1992, CA) Defense of Habitation Facts shot a contractor he was arguing with in the leg, on his front porch. Rule Safety-based reasonable expectation test. PEOPLE v. CEBALLOS (1974, CA) Defense of Property Facts set trap w/ gun, shot kid entering garage in face. Rule Traps bad bc machines cant use discretion that a person would. Present actor would have realized force was unnecessary. Burglary cant be considered a violent crime in all circumstances. Common law: deadly force cant in general be used solely for protection of property. PEOPLE v. QUESADA (1980, CA) Defense of Property Facts shot and killed burglar 2 days after crime occurred. Set sting up to catch burglar selling stolen goods. Rule Can only use deadly force when burglar threatens death or bodily harm.

Necessity (Residual Justification Defense defense of last resort)

((lesser evil or choice of evils defense)) Lawmakers would have authorized conduct if had considered mater in advance. - Common law: o Requirements Actor faced w/ imminent danger. Direct causal relationship between action and harm to be averted >> << must expect, as a reasonable person, that action will be effective in abating danger he seeks to avoid Must be no effective legal alternative to avert the harm Harm will cause by violating law is less serious than harm seeks to avoid. (BALANCE IS KEY) Lawmakers cannot have previously anticipated the choice of evils and determine the balance to be struck in a manner in conflict w/ s choices. (No legislative preclusion). not at fault for creating emergency. o Limitations Never a defense to homicide. (can never constitute greater good to kill an innocent person). Some jxs limit to emergencies created by natural forces. Some jxs limit to protection of persons and property. o Civil Disobedience Direct Protest law by breaking or preventing execution of that law in a specific instance. Necessity defense rarely arises in such circumstances. Indirect Violation of a law thats not the object of protest. App Cts usually reject necessity defense here. MPC:

Broader than common law. Rejects common law imminency requirement. doesnt automatically lose defense bc he was at fault in creating the necessitous situation. Generally applicable: can employ necessity defense in homicide prosecution. o Requirements: believes action was necessary (subjective); Action satisfies an objective balance of harms test; No other more specific MPC defense applies; and Legislature hasnt already addressed the choice the has made. o Imperfect necessity [ 3.02(2)] Lose negligence or recklessness defenses If creates the situation in which must use necessity. ***Cases w/ public policy implications tend to be screened out by courts. o

U.S. v. SCHOON (1991- FED) Necessity Facts s invaded IRS office in protest. Civil disobedience necessity defense. Rule Test: 1. Faced w/ choice of evils and chose lesser evil; 2. Acted to prevent imminent harm; 3. Reasonably anticipated a direct causal relationship between conduct and harm to be averted; and 4. Had no legal alternatives to violating law. Cant use necessity defense when dealing w/ harms that can be mitigated by congressional action because one can always petition Congress >> even if extremely unlikely, a legal alternative exists. COMMONWEALTH v. HUTCHINS (1991, FED) Necessity Facts growing/using marijuana for debilitating medical condition. State legislature had passed law outlawing medical marijuana. Rule Court must weigh harms to public and harm to individual if court were to sanction violation of law in certain circumstances. IN RE EICHORN (1998, CA) Necessity, Homelessness Facts Homeless charged w/ violating municipal law by sleeping in public places. No beds available @ shelter that night, couldnt turn to family. Rule Whether necessity exists is a matter of fact.

Duress (Excuse Defense)

Affirmative defense: claims threatened by another person w/ physical force unless committed specific crime Elements o (Imminence requirement) acted in response to an imminent threat of death or serious bodily injury; o had a well-grounded (reasonable) fear that the threat would be carried out unless she committed a specific crime; and o (Escapability requirement) had no reasonable opportunity to escape the threatened harm. o NOTE: Necessity has no imminence requirement. o Test: a person of reasonable firmness in his situation would have been unable to resist. NOTE: different from necessity bc another person is forcing you to commit the crime, necessity involves a dire situation Common law

o o MPC: o o o Some

Duress can be defense to homicide, even if victim was innocent. Trigger: unlawful physical force Broader definition of threat than common law: reasonable person standard. 2.09(2): excuse completely lost if is reckless in getting into situation. states (e.g. NJ) employ a hybrid approach.

U.S. v. CONTENTO-PACHON (1984, FED) Duress, drug smuggling Facts was mule, forced by Columbian dealer who threatened to kill his family. Didnt believe could go to police bc of corruption. Rule Must use duress defense bc necessity involves pressure from physical forces, etc. NOT other people. STATE v. HUNTER (1987) Facts was hitchhiker. Ppl who picked him up went on crime spree. Force to kill/kidnap ppl. Rule Not guilty if has reasonable belief that death or bodily harm will be inflicted upon him. Defense not available to someone who willfully or wantonly put themselves in situation where probably that will be susceptible to compulsion or threat. Compulsion must be continuous and can have had NO reasonable opportunity to escape.

Insanity (Excuse defense)

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s mental competency can be an issue at three states of criminal proceeding:

Before trial Incompetent to stand trial, AKA incapable of understanding proceedings and assisting in his own defense. o During trial Not guilty for reason of insanity; Examine mental capacity at time crime was committed. MPC 4.01: lacks capacity to appreciate criminality. (test designed to encourage full analysis of all psychiatric data o After trial Mental capacity of death-row inmate. MNaughten test (almost all states use some variation on this rule) o Stricter than MPC approach. o Requires complete inability to know. o MPC requires substantial, appreciate. Insanity v. competency: o Insanity considers s capacity @ time of crime; competency considers s capacities at time of trial. o Insanity considers moral capacity to be responsible for ones acts, competency considers pragmatic capacity to understand proceedings and consult ones attorney. Insanity v. automatism o Insanity requires some kind of persistent medical disorder, automatism can be temporary, idiosyncratic, and situational o Insanity requires supervision as part of remedy; automatism may not (affirmative defense v. prima facie defense) CA has a fairly restrictive view of insanity defense o must prove that had no understanding of quality and nature of acts at time of offense. o

4 tests: - MNaughten Test (most jxs use some variation of this) o Cognitive based. o Test:

Moral or legal wrong? What does know mean? Nature and quality of act is exceedingly narrow. Doesnt recognize degrees of incapacity. Focused only on cognitive disorders, not those that relate to volition. If knows what doing is wrong, but cant stop oneself = undeterrable, so punishment is inefficacious. Too restrictive for testifying psych experts. Irresistible Impulse Test broader than MN test (3 states) o MN + cases where mental illness produced an irresistible impulse to act. Adds severe volitional impairment to insanity test. Difficult to satisfy. o Test: 1) Acted from irresistible and uncontrollable impulse; 2) Lost power to choose between right and wrong, and to avoid doing the act in question, as that free agency was destroyed; OR 3) s will has been otherwise than voluntarily so completely destroyed that her actions are beyond her control. o Product Test (Durham Test) way too broad o Test: Excused if unlawful act was product of a mental disease or defect. Then jury determines whether was suffering from a mental disease or defect at time of the offense. If so, did the disease cause the conduct in a but-for sense? MPC Test (14 states) o Test: Lacks substantial capacity to appreciate the criminality of her conduct; Lacks substantial capacity to conform her conduct tot eh requirements of the law.

Issues

1) Didnt know nature and quality of act that she was doing; OR 2) If she did know it, didnt know that what she was doing was wrong.

U.S. v. FREEMAN (1966) Insanity Facts had severe brain damage caused by extend use of heroin charged w/ selling narcotics to undercover officers. Defense argued that lacked capacity and will to be held responsible for criminality. Rule MNaughton is a very narrow inquiry, too restrictive. - Only looks at cognitive aspects of personality. - Doesnt recognize degrees of incapacity. - Imposed unrealistically tight shackles in testifying psych experts. - Deprived judge and jury (ultimate deciders) of info vital to their final judgment. Repeated criminality cant be sole ground for finding mental disorder.