Crimlaw Harvard Fall 2004 Steiker

8/3/2019 Crimlaw Harvard Fall 2004 Steiker

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BASICS

The party that alleges that their opponent has behaved illegally has the burden of proof

Indictments are charges that have been voted by grand juries

Informations are issued by prosecutors

Plea Bargains are the settlement agreements that usually end in a guilty plea

Legislators are primary authors of criminal law- Statutes

o **It is really mostly based on the common law- the common law is just codified into the statuteso Common law is used to teak elements and the standards of the statuteso ***Always presume the common law applies unless told otherwise***

Every time the courts interpret the laws, they are tweaking the law to change its meaning

Basic difference between Crim law and Civil lawo The State (public prosecutors) is the primary party- the victim is a witness not the partyo Criminal Defendant is the same as they are in the civil case-- different rules of ethics

INTRODUCTIONANDTHEPURPOSESOFPUNISHMENT

REGINAV. DUDLEYAND STEVENS

Facts: Four men trapped on boat at sea w/ little food. Captain Dudley and his first mate Stevens decided to killParker the cabin boy and eat him to save the rest of them. Brooks did not assent. Dudley and Stevens chargedw/ murder, but sentences to death are commuted to 6 mos.

Rule: Murder can only be excused by some excuse admitted by the law

There was no legal justification of the homicide- the prisoners act was willful murder- sentenced to death,but Queen did save them

LON FULLER, SPELUNCEAN EXPLORERS

4 people were trapped in a cave together, decided to draw sticks as to who would be sacrificed. The othermembers were indicted for murder

PEOPLEV. KELLOGGKellogg was arrested while intoxicated by a freeway in a bush- largely incoherent- Arrested for publicintoxication

Has severe alcoholism along with other mental disorders and is incapable of providing his own basicneeds

o Homelessness was not a choice but a result of his diseases

Rule: it is cruel and unusual punishment to impose criminal liability on a person merely for having thedisease of addiction

o He was not arrested because he is homeless and an alcoholic, but because of the conduct that

posed a safety hazard - there was a clear potential for harm

PURPOSESOF CRIMINAL PUNISHMENT:1) Deterrence- Economic - general or specific; from theory of utilitarianism- humans driven by

seeking pleasure and avoiding pain; also to channel human desire for revenge and prevent vigilanteactivity

a. Specific Deterrence:how much punishment will it take to get that person to stopb. General Deterrence: scare the general public into not wanting to do itc. Need equation where T


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2) Retribution- Moral- punishment is end itself; meant to carry blame andstigma, communitycondemnation;

a. people deserve punishment not only is a good reason to punish but creates duty for society topunish; not utilitarian at all; ex. of society about to disband, still have obligation to execute lastmurderer before disband

b. Degree of moral wrong ought to determine the severity of the punishment3) Rehabilitation- Psychiatric- minimum ideal says fix problem that led to crime and make person safe

for us; also rehabilitation for them to help offender flourish

a. Problem: high cost and often does not work; creates incentive to commit crime; resourcesbetter used on good citizens

b. Problem: law not objective and expresses itself differently toward diff communitiesThree justifications that matter to legislature

Avoiding Private Vengeance

o Private justice is not always fair

Regulating the hard-to-regulate misconduct of the poor

o Cannot punish by fines because they don't have the money to pay

Defining society's values and culture

o May be the most important one

o The primary reason vices are criminalized is the belief that the behavior is wrong along with the

desire to avoid having the wrong infect the culture

DEFINING CRIMINAL CONDUCTCrime: a voluntary, affirmative act that causes harm, done with culpable intent that coincides with theact and defined by a statute - any combination of conduct and intent that violates a criminal statute, asenforced by a prosecutor and interpreted by a court

Voluntary act-- Actus Reus- something was done

Culpable intent- Mens Rea- what did the D know, and when did they know it

Harm-- bad results from the acto Many crimes may not specifically require this

Causation: must have both causationso Actual cause- Cause in Fact: scientific cause, it is a matter of science, the actual causeo Proximate cause: legal causation- moral concept, social policy concept

Statutory: **not always necessary** Courts are able to "create a crime", but generally do not. Instead

they interpret the statutes

Steps in determining a criminal case

1) Identify the Lawa. Elements of the crime

2) What error was madea. Typically in the jury instructions- were they appropriate?

i. Must always motion to use your own instructions (D's side)b. Error in the Directed Verdict- as a matter of constitutional law, is there sufficient evidence presented

by the prosecution to permit a reasonable trier of fact (jury) that the state has proven beyond areasonable doubt

i. Must always make a motion for directed verdict (D's side)

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GENERAL COMMON LAW REQUIREMENTS

ACTUS REUS- act requirement shows our philosophical commitment to autonomy, freespeech, and liberty preservation; limits state interference; also shows solid proof of intentand actual harm; targets use of resources; very few crimes that involve only thoughts

**Note that both retributivism and deterrence are thwarted, if the actor did not have free choice.

1) VOLUNTARYACTSa. MARTINV. STATE - D was drunk in his own house, police then arrested him and took him to a public

place and then charged him with public drunkenness. He was involuntarily placed in publici. Rule -Each element of the act must be voluntary. Best for deterrence

b. ROBINSONV. CALIFORNIA- statute said no person can be under the influence of or addicted tonarcotics

i. A law cannot make a disease a criminal offense, such as addictionii. It would be cruel and unusual punishment to do so and violates the 8th and 14th amendments

c. POWELLV. TEXAS- alcoholic charged with public drunkenness

i. Convicted not for being an alcoholic, but for being drunk in publicii. While the illness compelled him to drink, it did not make him do so in public

2) CAUSING HARMa. The majority of criminal statutes do not require proof that the defendant caused anything, instead it

requires a particular state of mindb. Greater and Lesser Offenses- the lesser offense will be missing some element of the greater

offensei. Lesser offense will have a lesser punishment

c. INRE JOSEPH G.- Both 16 year olds had told people they were going to fly off the cliff and thatthey were going to die. The impact killed Jeff and left Joseph severely injured

i. Issue: whether the survivor, who drove the vehicle, is guilty of aiding and abetting the

suicide rather than the murder of the deceased?1. Was the role active or passive?

ii. Every person who deliberately aids or advises or encourages another to commit suicide isguilty of a felony

iii. Where a person actually performs oractively assists in performing the overt act resulting indeath is murder and it is immaterialas to whether the victim had an agreement, as in amutual suicide pact

1. This is more of a double attempted suicide- cannot punish someone for suicide and wouldonly do more to strengthen the will to be successful in suicide

2. There was identical potential consequences for both of them and it was committedsimultaneously

d. PEOPLEV. CLEAVES- Eaton (deceased) told Cleaves he had AIDS and wanted to die before it gotinto the final stages. Cleaves agreed to help him strangle himself and agreed to hold him down intothe pillow and he died

i. Issue: aiding and abetting suicide or murder? Did he err in the instruction to the jury when hedidnt include the lesser offense in the instruction

ii. Rule : a defendant is entitled to a lesser offense instruction when there is some basis onwhich the jury could find a lesser offense, when the offense is closely related to the offensecharged and shown by evidence and when the defendant is relying on a defense theoryconsistent with the lesser offense



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iii. Aiding and abetting- some participation of the events leading to the final act, such asfurnishing the means

1. These facts however shoe active assistance in the overt act of strangulationiv. Very important for jury to be instructed on the lesser offenses if there is "any evidence" for

the jury to find for the lesser offenses, so they know they have that as an option

3) STATUTORY INTERPRETATION: The goal of statutory interpretation is to determine the intent of the legislaturethat enacted the particular statute

The intent of that legislature that existed when the statute was enacted is what matters If the language is clear and unambiguous, then no further interpreting is needed

o Can interpret it broadly or with the Rules of Construction

4) THE NOT-QUITE-RULEOF LENITY

Ambiguities in the criminal statutes are to be resolved in the defendant's favoro "Rule of Lenity"

If an issue is doubtful, defendant wins, just as beyond-a-reasonable-doubt standard holds that doubts

about the facts must be resolved in the defendant's favor

5) INVOLUNTARY ACTS

a. Rule- Where not self-induced, unconsciousness is complete defense to homicide.b. MPC: defines acts that it considers involuntary (again, largely drawn from common law)

i. Includes: (1) reflex or convulsion, (2) bodily movement during unconsciousness or sleep, (3)conduct during hypnosis (or resulting from a hypnotic session), and (4) (catch-all) a bodilymovement that otherwise is not a product of the effort or determination of the actor (canargue mental defect puts act into this category; also irresponsible actor)

ii. Only punish voluntary acts b/c: (1) we feel safer punishing only people who choose; (2)punishing choice respects peoples ability to choose.

6) OMISSIONS punished same as acta. GOOD SAMARITAN: Pope v. State :Woman took in mother and small boy, then watched as mother

beat infant to death. Ct found no duty to care for child. b/c the mother was always present. Acts ofcare, i.e. taking in mother and child cannot subject Good Samaritan to prosecution.

i. Cannot punish for failure to fulfill moral obligation.ii. Rule- Must have legal duty to act.

b. LEGAL DUTY RULE- Must have legal duty to act. Sources1. Legislative (primary source): from criminal statutes (tax evasion) orcivil legislation

(civil law that says have duty to report accident you are in; not criminal; but creates dutythat transforms innocent omission into criminal liability)

2. Contract- individually made law; necessity of fulfilling enforceable contract is legal duty3. Status relationship- either applied by law or assumed; ex) duties in marriage, teacher/

student, innkeeper/ guest, master/ apprentice

4. Voluntary assumption of care- secludes that helpless person from other people (courtsnot consistent if seclusion necessary element)

5. Creation of Perile. MPC Liability for commission of offense may not be based on omission unless: (a) statute defines

omission as sufficient OR (b) duty to perform omitted act is imposed by law.

MENS REA what did they know, and when did they know it- general (moral culpability) vs. specific(element of crime)



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1) THEHIGHERTHEPENALTYIS, THEMORELIKELYAMENSREAWILLBEREQUIREDINACRIMINALCASE

2) COMMON LAW

a. General intent: to act with extreme intentb. Specific intent: to act purposefully to bring about a consequence

i. Intent to bring about a legally forbidden resultc. Criminal Negligence- gross negligenced. Mere Negligence- not held guilty

3) MPC gives us four categories;

a. Purpose- This requires a conscious objective. I want to hurt Mrs. Wade by administeringpoison

b. Knowledge- does not require an objective, but instead requires the defendant bepractically certain

the bad consequence will transpire from her actions. If I rip the gas meter off the wall for themoney, it is practically certain I will administer poison to her. (> 90%) (also terrorist and air forceone; know will kill other, not purpose, but blow it up anyway)

c. Recklessness-grossly deviate from standard of care reasonable person would do (> than tortsstandard); risk must be unjustifiable and substantial(< than practically certain); must have

knowledge of risk. You could call this conscious risk creation. - I know there is a chance thatthis will poison Mrs. Wade

d. Negligence- The defendant is not aware of the substantial and unjustified risk, but should be. It is

also a gross deviation from the standard of care that a person would normally exercise; **Commonlaw and MPC differ on diff. b/t reckless and negligent; in common law, negligence often involveslower degree of risk; in MPC, only difference is in awareness

4) PEOPLEV. STARK: Common Law: jury convicted D of willful diversion of construction funds, D was ageneral contractor who was paid and was then supposed to pay the sub-contractors

a. D promised he would repay them-- never didb. Rule: any person who receives money for the purpose of obtaining or paying for labor and willfully

fails to apply such money for such purposes and wrongfully diverts funds to a use other thatwhich the funds were received for is guilty of a public offense

i. If the definition of a crime consists of only the description of a particular act, withoutreference to intent to do a further act, we ask whether the D intended to do the act and is a

general criminal intent. Intention to do a further act or achieve additional consequences isspecific intent

ii. Nothing in the rule requires further intent, the offense is complete upon the diversion offunds

1. Prove intent with circumstantial evidence2. Immaterial whether he intended to pay them back

5) PEOPLEV. SARGENT: Premature badly is badly injured, has shaken baby syndromea. Rule : in every crime or public offense there must exist a union or joint operation of act and intent,

or criminal negligenceb. General criminal intentrequires no further mental state beyond willing commission of the act

proscribed by lawc. Criminal negligence is- aggravated, culpable, gross or reckless with such departure from the

conduct of an ordinary prudent careful person under the same circumstances as to be incompatiblewith a proper regard for human life

d. Knowledge of the risk is determined by an objective test: if a reasonable person in D's positionwould have been aware of the risk involved, then D is presumed to have had such an awareness

i. Any reasonable person would recognize that shaking a premature baby would result in greatbodily injury

6) STATEV. SCHMINKEY: D entered Alford pleas to homicide by vehicle, and theft of a vehicle (does not admitto the acts but consents to the sentence)



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a. Alford pleas are used when D does not believe they have done it or what they have done is wrong-but there's a good chance that the jury could find them guilty so they're better off just "admitting" it

b. He had been drinking at a bar and left in someone else's truck without permission and hit anothercar and then into a fence

i. D claimed he was unable to recall any of the events due to his intoxicationc. Court may not accept a guilty plea without determining that the plea has a factual basis- even when

it is an Alford pleai. Every plea must have a factual basis, Must state the facts, that if true, show that D is in fact

guiltyd. Larceny: takes possession or control of the property of another or property in possession of another

with the intent to deprive the other thereofi. Must have the intent to deprive them permanently of the property, Without the intent it is

just operating a vehicle without he owner's consent, a lesser crimeii. No facts that D had intended to permanently deprive the owner of the vehicle

7) STATEV. MORRIS: Gonzales had started his truck, then went back in his house. Then D jumped in the truckand drove away. Police found him. He stopped the truck and got out and ran

a. Rule - must intend to permanently deprive ownerb. abandoning a vehicle and fleeing upon observing the presence of police was an act that would

ordinarily assure the truck would be returned to the owner- No intent to keep permanently

i. Inference- they may or may not infer from it, but also must be shown all elements. It is aninference of one fact among many facts that need to be shown

ii. Since the jury had convicted him of the greater offense, that means the elements of the lessehad to have been met- Judge ordered him guilty of the lesser

c. Circumstantial Evidence- facts must be inferred from other factsi. Evidence of flight- may infer they could be guilty

8) REGINAV. FAULKNER: Faulkner was sailor on ship; while trying to steal a bottle of rum, he set fire,destroyed the ship with fire and injured himself. convicted under the Malicious Damage Act. The judgehad instructed the jury that did not have to find that he intended to burn the ship. He aid if found tried tosteal rum and ship burned as stated, then guilty.

a. Rule- Reversed b/c to find malice court held that intention or least recklessness has to be

established.9) STRICT LIABILITYIN CL CRIMESAND US V. MORISSETTE : Morissette snuck on to Air Force base and took

bomb casings he claims he thought were abandoned. He then flattened them and sold them for profit. Hewas convicted of knowingly converting govt property. claimed honestly thought abandoned andappealed on grounds that trial judge erroneously instructed jury that no intent necessary.

a. Rule- Exceptions to mens rea as element of crime should not be extended to common lawcrimes such as larceny

b. Knowing conversion requires more than knowledge that D was taking the property into hispossession- must have the knowledge of the facts though not necessarily the law

i. Not apparent how D could have knowingly or intentionally converted the property that hedid not know could be converted, as would be the case if it were abandoned and unwanted

10)STRICT LIABILITYIN PUBLIC WELFARE OFFENSESAND US V. DOTTERWEICH: was president and generalmngr of pharmaceuticals co, which distributed drugs manufactured by other cos. Twice manufacturers andtherefore, cos labels were incorrect and so co. and Dotterweich charged w/ distributing misbrandedproducts. Co. acquitted. Dotterweich convicted and sentenced to fine and 60 days probation.

a. Rule- Congress meant to impose burden on those w/ at least some opportunity of informing selvesas to illicit commerce that may harm public, rather than put burden on completely on totallyhelpless public

b. it is better to punish who have the opportunity to inform themselves of the dangerous behavior, thanto leave the hazard on the innocent public who is helpless.



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11) STAPLESV. US : STRICT LIABILITYIN PUBLIC WELFARE OFFENSES: punished under law where possessionof unregistered firearm punishable by up to 10 yrs. in prison; it shall be unlawful to possess.; firearmdefined as fully automatic weapon; no mens rea in statute; had filed away rifle to make it fullyautomatic; claims thought only semi-automatic sawed off shotgun; knew he possessed gun but didnt knownature of thing;

a. Rule- legislation meant to regulate circulation of firearms, therefore public welfare offense, strictliability and no mens rea needed; but then cites tradition of owning handgun in US; different fromhand grenades; wouldnt alert a person to regulation and doesnt think was legislative intent; also

says 10 yrs. too long to dispense w/ mens rea; felonies are not public welfare offenses, thereforemust prove mens rea

b. Standard for judging factual errors: a D must know the facts that make the conduct illegali. Silence as to the mens rea in the statute does not mean there isn't one

12) LIPAROTAV. UNITED STATES: Food Stamp frauda. A public welfare offense depends on no mental element but consists only of forbidden acts or

omissionsi. Conduct is criminal that a reasonable person should know is subject to stringent public

regulation and may seriously threaten communities health of safety

b. For other offenses- must prove D knewi. Need not show had knowledge of specific regulations or provide extraordinary evidence

ii. Must just show that he knew he was taking food stampsc. Negligent misunderstanding of the law is willfulness

13) CHEEK: Tax protestor - airline pilot didnt pay his taxes because he didnt believe in the taxes.a. Must prove that they are aware that he needed to pay taxesb. He had in fact written letters to Congress that he had disagreed

i. Clearly knew of the lawii. Disliking the law is not the same as a mistake or ignorance of the law

iii. Does not matter how genuine the belief is- he knew what the law was, he just didnt like it14) ARTHURANDERSENV. UNITED STATES: Court unanimously overturned accounting firm Arthur Andersen's

conviction of obstruction of justice on the basis that the jury instructions did not properly portray the lawAndersen was charged with breaking

a. During the fall of Enron, Arthur Andersen, Enron's accounting firm, instructed its employees todestroy documents relating to Enron after Andersen officials learned they would soon beinvestigated by the Securities and Exchange Commission.

b. They were charged under 18 U.S.C. 1512(b)(2)(A) and (B), which made it a crime to knowingly corruptly persuade another person with intent to cause that person to withholddocuments from, or alter documents for use in, an official proceeding.

i. Nothing wrong with destroying documents after a certain amount of time according to adocument retention policy

1. Knowing is not enough2. Must be knowingly and corruptly- must be done with the purpose to conceal, with a

corrupt motive

ii. "Only persons conscious of wrongdoing can be said to 'knowingly corruptly persuade,' " hewrote.

THEFTNo common law theft; Common law theft = larceny

There is not crime of stealing or theft in common law



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ROBBERY- theft by direct, person to person force Common Law: the taking and carrying away of property, with the intent permanently to deprive its owner

thereof, by force or threat of forceo Robbery = Theft + Assault

Assault: Engage in a act that would put a reasonable person in fear of imminent danger of

being touched

STATEV. KEETON- D went into a convenience store and when the store clerk opened the register he grabbed

the money. The store Clerk kept blocking his path to leave the store until she finally moved when he raisedhis hand.o Robbery is defined as: having the intent to commit theft, the person does any of the following

acts to assist or further the commission of the intended theft or their escape: Commit assault

upon another

Definition of assault (NOT common law): general intent crime- when without justification,

the person does any of the following:

Any act which is intended to cause injury or result in physical contact which will beinsulting or offensive

Any act which is intended to place another in fear of immediate physical contact

Intended either: the cause injury, to make insulting or offensive contact or to cause fear of

immediate painful or offensive contact Intent may be inferred from the circumstances of the transaction

An actor will ordinarily be viewed as intending the natural and probableconsequences that usually follow from his or her voluntary act

When viewed in the light most favorable to the State, there is substantial evidence to satisfy

the intent element of assault.

Looks in the favor of the non-moving party

Must be proved beyond a reasonable doubt

CARTERV. UNITED STATES: D wore a ski mask and went in a bank and opened the teller's drawers and put

the money in a bag and fled from the scene.o Lesser offenses need to be included in instruction if there has been any evidence to support it

A greater offense must include all the elements of the lesser Lesser cannot have different elements

Federal bank larceny is not a lesser included offense of Federal bank robbery- Does not use

the Common law because this is an issue about a bank

Shealy--> This was a mistake, should have looked to common law terms

PEOPLEV. LARDNER- Asportation : the carrying away of stolen propertyo Taking of goods and putting them into a place convenient for removal is sufficient

Just needs to move the goods around to constitute both taking and carrying away, do not need

to leave with it

Still need to have the intento

This is an element of larceny Taking

Carrying away

STATEV. SPEARS: guy stole computers from a storage facility, hid them behind the truck where they were

hiding outo Security officer had seen him stepping out of the truck with a box in his hand

That is enough of a movement to be taking and carrying away, even though it was just moved

off the truck



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BURGLARYCommon Law- (1) breaking and (2) entering the (3) dwelling house (4) of another (5) in the nighttime

with (6) the intent to commit a felony

Breaking- does not need to be locked, just need to "move " any property to get in the house, like open a

door, window.o Do not need to fully enter, it is enough to reach an arm insideo A form of trespass

Traditionally required proof of force- but the force is directed against a home or building, not a person

PEOPLEV. SPARKS: Penal Code- one that enters any house, room, apartment, store or other building with intentto commit larceny or any felony is guilty of burglary

o D was invited into the house, however was asked to leave and then followed the victim into her

bedroom and raped hero MPC makes it clear that the burglary statute apply only to entry of a room that constitutes a separate

unit or a separately securedo People v. Young : meaning of the word room

One who enters, with burglarious intent, a room of a house enters the house with such intent

Entry into various types of rooms can constitute burglary

o People v. McCormack : same type of entry as this case Instructed that the intent to steal the property of another need not be in the mind of the person

at the time of initial entry into the structure, if he subsequently forms the intent and enters aroom within the structure

Burglary statutes criminalize the trespass that precedes thefts from private homes

SC statute- no longer requires "breaking"

Is now "entering without consent"o Burglary first degree- must be a dwelling: where one lives and sleepso Only needs to be a building for 2nd and 3rd degree

STATEV. SINGLEY: can you break into your own property? Yes, it is not about ownership, its about possessiono If he had an equal or greater right of possession then cannot burglary

STATEV. MITCHELL: D stole tobacco from Bi-Lo, when he was stopped walking out the door he pulled out aknife and threatened the store clerk.

Armed robbery is robbery with a deadly weapono Robbery is larceny+ assault

He was in the asportation part of larceny, and the deadly weapon was then usedo The crime of the robbery is not completed all at one moment, it is still in progress while they are

getting awayo

If they are armed in the process, it is still armed robbery

LARCENYOR EMBEZZLEMENT- instances of non-violent theft Stealth rather than threatened violence

o No use of force is requiredo Do not need to prove they are guilty of any trespass

Common Law Larceny: (1) the taking (2) and carrying away of (3) the property (4) of another (5)

with the intent to deprive the owner of that property permanentlyo Larceny by trick- got possession of the property by deception and trick



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o Know at the time of the misrepresentation being made

Embezzlement: the conversion of another's property after the property was entrusted to the Do Guilty of keeping property that is not theirs rather than taking ito Did not have a bad intent when you first receive it, but form it after you have possessiono False pretenses- through deception, title is passed to you

STATEV. MOON : D was hired as director of fundraising campaign and appointed the treasurer of a fraternity.He transferred funds from the fraternity's account to his own as well as a company who he was a shareholder in

Concealed the transfer and had no authorizationo Claimed he had no intention to permanently deprive and planned on paying it back

PEOPLEV. PERRY: D was convicted of theft by deception.

Whether D was properly convicted of theft of property valued in excess of $10,000 when the property at

issue was the occupancy of a hotel roomo It is bought and sold in a free market

Did he intend to permanently deprive?o Each night that the D used the room, they had deprived the owner of making a profit for that nighto Permanently deprived them of the profit to be made off that one room

A person commits theft when he knowingly obtains by deception control over property of the owner andintends to deprive the owner permanently if the use or benefit of the property

o Prosecutor can charge whatever they want

Prosecutor has broad discretion to decide which offenses to charge D with

If it is another offense completely, the judge is limited to the indictment, which the

prosecution has control over

MISTAKEAND ABANDONMENT

UNITED STATESV. COFFMAN: Military court. Whether the appellants larceny plea was provident? No

Gear was located in an open box- did not know who it belonged to, had found it in a room that he was told

to clean out. It appeared it had been left behind for trasho He took the box- knew it did not belong to him and knew they were not the type of items that should

be discarded

Admitted to knowing it was wrongful to take it, that it was not abandoned and that he

intended to keep ito Must be a factual basis for the plea- they fully understand what they did

Judges must always explain the elements of the offense and ensure there is a factual basis for

the plea

The accused must be convinced of and able to describe all the facts necessary to establish

guilt

Abandoned property cannot be subject to larcenyo Appellants statement that he thought the gear was left behind for trash raised an issue of an honest

belief the property was abandoned, which is a complete defense

Military judge should have explained and failed to do so

Abandoned Property: owner has thrown it away and relinquishes all rights to and possession of with no intentto reclaim it

May be acquired by the first finder, who is then not considered a thiefo Specific intent



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Lost personal property: owner has involuntarily parted with bc of negligence, carelessness or non-voluntarymeans. No intent to part with ownership.

Mislaid Personal Property: owner voluntarily and intentionally lays down in a place where he can again resortto it, but then forgets

It is still in the constructive possession of the owner

Individual who finds it has no right to isnt initial possession and may be guilty of larceny

SIMMSV. DISTRICTOF COLUMBIA: D was found guilty of tampering with a stolen vehicle This is a general intent crime

Police saw D tampering with a stolen vehicleo Claimed he thought it was abandoned

Essentially a mistake of fact defense: must prove to the satisfaction of the fact finder that the mistake

was both 1. honest and 2. Reasonableo General intent crime

Abandonment must be shown by clear, unequivocal and decisive evidenceo Turns on the D's reasonable belief and not on the lawful owners actual intention to abandon the

property

INCHOATE CRIMESAND ACCOMPLICE LIABILITY

INCHOATE CRIMES: committed somewhere along the way toward the commission of another crime that maynever in fact be completed

Solicitation --> Conspiracy --> Attempt

o Solicitation: persuading or convincing of someone to commit a crimeo Conspiracy: an agreement by 2 or more persons to do an unlawful act or a lawful act in an unlawful

manner Must be an agreement, a meeting of the minds

Does not require an overt act

ATTEMPT

Completed attempts - do everything to commit act but fail; bullet misses; actus reus is present here

Uncompleted attempts- taking out gun to shoot but police stop before raise it or pull trigger; buy cake mixbut not poison yet; in some states an attempt;

STATEV. MCELROY: may the D be charged with attempted possession of a dangerous drug when it isimpossible for him to complete that crime- bc the drugs were not in fact dangerous?

o Facts: police gave a ride to 2 hitchhikers, found some white pills on them. They claimed it was

speed, after being tested it was not any type of dangerous drug.o Charged with attempt to possess dangerous drugs

Legal impossibility: where the act, if completed would still not be a criminal act, it is legally

impossible and is a valid defense to a charge of attempt

The reason the crime could not be completed lies in the law not the facts

Factual impossibility: crime is impossible to complete bc of some physical or factual

condition unknown to D, the impossibility is factual and is not a valid defense

They had the intent to commit the actual crime



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D had the ability to complete the crime and the attempt, was just ignorant of a fact

COMMON LAW- Specific Intent Requirement: the D who tries to commit a crime but fails, either bc he failsto complete his conduct, or bc he completes the conduct but fails to get the intended result

Mens rea- satisfies mens rea element if he intends to commit the crime

Conduct- a D has committed an attempt if he comes "dangerously close" to completing the crime andactually causing the intended harm

Preparation vs. perpetration- must be very near or dangerously near committing the crime

PEOPLEV. ACOSTA: A person, who, with intent to possess cocaine, orders from a supplier, admits a courierinto their home, examines the drugs and ultimately rejects it bc of defects, has attempted to possesscocaine

Sufficiency of the Evidence: must be viewed in the light most favorable to the people to determine

whether there is a valid line of reasoning and permissible inferences from which a rational jury couldhave found the elements of the crime proved beyond a reasonable doubt

Rejection as abandonment: an affirmative defense to an attempt charge is a voluntary and

complete renunciation of the criminal purposeo The abandonment must be permanent, not temporary or contingent, not simply a decision to

postpone the activity until another time Not really a true affirmative defense

Something prosecution needs to prove you didnt do, not something the D needs to

prove

KOHLMEIERV. STATE: sufficient evidence for conviction for criminal attempt to manufacturemethamphetamine

"a person commits the offense of criminal attempt when, with intent to commit a specific crime, he

performs any act which constitutes asubstantial step toward the commission of the crime"o A "substantial step" is one that is in pursuance of the intent directly tending to the

commission of the crime. Must be inexplicable as a lawful act and must be more than mere

preparation

MPC ATTEMPT: is guilty of attempt to commit crime when w/ culpability otherwise reqd for commissionof the crime if he:

1. Conduct crimes-purposely engages in conduct which would constitute crime ifcircumstances as hebelieves them to be

2. Results- when result element, does or omits to do anything w/purpose or beliefthat will cause conductw/o any further action

3. Actus reus-Purposely does or omits anything that under circumstances as he believes them to be,would constitutesubstantial step toward commission

o A "substantial step" is one that is in pursuance of the intent directly tending to the commission ofthe crime. Must be inexplicable as a lawful act and must be more than mere preparation.

o . will be sufficient as a substantial step

Lying in wait, searching for or following the contemplated victim

Enticing or seeking to entice the contemplated victim to go to the place contemplated for its

commission

Reconnoitering the place contemplated for the commission fo the crime



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Possession of materials to be employed in the commission of the crime, that are specially

designed for such unlawful use or that can serve no lawful purpose of the actor under thecircumstances

Possession, collection or fabrication of materials to be employed in the commission of the

crime at or near the place contemplated for tis commission, if such possession, collection orfabrication serves no lawful purpose of the actor under the circumstances

Soliciting an innocent agent to engage in conduct constituting the crime

Prosecution must prove 2 things:o That his conduct would constitute an offense if the attendant circumstances were as he believed

them to beo That he acted "intentionally"

Renuncification:o Must abandon effort or prevent it voluntarily in way to show change of heart; dont have to stop

consequences of crime; cannot be b/c threat of discovery;o Even works if have already crossed threshold to act, but cannot have already completed attempt

(must still be something more you could do to complete attempt); must change mens rea before youget caught

o May not repent even if crime not yet discovered, e.g. by returning stolen goods; b/c have already

done last acto Reflects discomfort w/ crime of attempt

CONSPIRACY- an agreement between 2 or more persons to do an unlawful act or a lawful act in anunlawful manner;

Elements: Has actus reus (expression of assent) and mens rea (intent); but no causation reqt;

Purposes of conspiracy liability : useful tool in prosecuting organized crime, organized groups are far morelikely to plan well; they learn from each other and allocate resources well;

If the crime is completed, can still be charged with conspiracy. It a stand alone separate crime.o It is a way of also making other people guilty of a crime someone else committed

X can be liable for Y's completed crime

o Usually punished less than the completed crime

No overt act is needed in common law -o In pleading, there must be an indictment and an overt act must be plead

Each and every element must be plead

Conspiracy is a specific intent crime, always. Must have the intent to make the agreement and the intent to go out and do the crime

PINKERTONV. UNITED STATES: Each and every coconspirator is liable for the criminal acts of the othercoconspirators as long as they were committed in the furtherance and in the scope of the coconspirator

Do not have to know the other conspirators as long as you are in agreement and are aware of the general

enterprise

Wheel Conspiracies: characterized by a central figure or group

It all centers around one main group or person and has separate groups that branch off

Chain Conspiracies: ordinarily involves a criminal enterprise that cannot thrive unless each link successfullyperforms

Each link must be successful

If the chain breaks, it will result in separate conspiracies



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STATEV. ROMERO-GARCIA : affirmed conviction of aiding and abetting trafficking in cocaine and aiding andabetting the failure to affix illegal drug tax stamps

Confidential Informant had arranged for a controlled cocaine purchase through D. the CI met up with Dthen then D went and got the drugs for him.

An individual who participates in or assists the commission of an offense is guilty of aiding and abettingthe crime

o Mental state required is generally the same as that is required for the underlying offense- must

share the criminal intent of the principal and there must be a community of purpose in the

unlawful undertaking.o Intent does not mean an intent to commit the crime, but merely the intent to knowingly perform

the interdicted act or by criminal negligence fail to perform the required act

Mental state required is that D knowingly participated in or assisted the drug dealer in thepossession or distribution of the cocaine

UNITED STATESV. COLON: D was convicted of possessing cocaine with intent to sell, conspiring to possesscocaine with intent to sell, and aiding and abetting the conspiracy

The relationship between him and the drug dealer was standardized only in a sense that they had aregular pattern of dealing with each other- length of this relationship is unclear

o The crime of conspiracy cannot be equated with repeated transactions

Aiding and Abetting: one who knowingly assists an illegal activity, wanting it to succeedo Buyer-seller relationship alone is not enough, a routine transaction is not enough

o Must have some type of "stake" in the deal- be getting some benefit

o If they are benefitting- very difficult to prove they didnt know about the conspiracy

Innocent overt acts can still be in furtherance of the crime

Statute on Drug Conspiracies- Any person who attempts or conspires to commit any offense defined inthis title

MPC Renuncification defense to Conspiracy is very stricto The person must actively prevent the others from committing the intended crime

o Must do whatever it takes to thwart the success of the conspiracy

Common law: can get out of a conspiracy, abandon ito Will not be liable of crimes after the abandonment

o Shown by indicating to other conspirators that you are no longer involved

Can no longer benefit from it

Can also be shown by turning in the rest of the conspirators

Will negotiate with the government to get a lesser sentence

Cannot stay a "double agent" and still be on the inside

Do not have to tell other conspirators of abandoning it

Traditionally Conspiracy has 2 elements

Criminal agreement

An overt act in furtherance of the agreemento The act may be committed by any of the conspirators

o Conspiracies to distribute drugs are complete at the moment the agreement is reached

o Common law- no overt act

Statute- will tell u overt or not

Overt acts themselves do not need to be illegal

Conspiracy- always the conspiracy to do something not just charged with "conspiracy", but "conspiracy todo.."http://outlines.ilrg.com 14


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What is the illegal agreement to do- what is the substantive offense

Mens Rea forConspiracy is Specific Intent: Must prove that D knowingly joined the relevant agreement andthat D had the purpose to commit the crime

Intent can be divided into 2 elementso Intent to agree or conspireo Intent to commit the offense which is the object of the conspiracy

Prosecution must show not only that the conspirators intended to agree but also that they intended to

commit the elements of the offenseo Can be shown through inference, but must conclusively show a conspiracy

Conspirators cannot agree to accomplish a result recklessly when that result is an element of the crimeo Can be an accomplice or an accessory when the substantive crime is recklessness

When a D solicits, encourages or assists another to engage in conduct and does so with the intent to

promite or facilitate that conduct, the D becomes accountable for that conduct.o If that conduct leads to unintended injury or death, D can be convicted of assault or criminal

homicide if gov additionally proves D acted with culpable mental state

UNITES STATESV. PARTIDA: Confidential Informant was used to videotape a police officer who agreed to escort a

car full of drugs across the town in return for money and then actually did it. The officer also invited anotherofficer to join and participate the next time

Solicitation--> Conspiracy--> Attempt

A Defendant charged with conspiracy must knowingly enter into the agreement, in addition, the D must havejoined in the illegal agreement with the intent of helping it succeed in its criminal purpose

HOMICIDE

COMMON

LAW

Modern law defines homicide as the killing of a human being by anotherhuman being.o Suicide, therefore, is no longer a form of homicide in most statutes.

o Homicide is divided into two crimes murder and manslaughter.

Human Being The common law and majority approaches define the beginning of life as birth forpurposes of interpreting the criminal homicide law. A minority of states now treat a viable or, at times,even nonviable fetus as a human being under the homicide statute.o Regarding the end of human life, a majority of states, either by statute or judicial decision, have

incorporated brain death in their definition of death.

MURDER: the killing of a human being by another human being with malice aforethought either expressed or

implied Malice - General Intent. Includes:

o Intent to kill- kills with purpose

Deliberate and Premeditated Typically, a murder involving the specific intent to killis first-degree murder in jurisdictions that grade the offense by degrees if the homicidewas also deliberate and premeditated.

Wilful, Deliberate, Premeditated Nearly all states that grade murder by degreesprovide that a wilful, deliberate, premeditated killing is murder in the first degree.

o Intent to cause Great Bodily Harm; what to get them close to death or fear they will die



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Malice aforethought is implied if a person intends to cause grievous bodily injury toanother, but death results. In states that grade murder by degree, this form of malicenearly always constitutes second-degree murder.

o Depraved Heart- reckless indifference to value of human life; If knows act are likely to cause

death or GBH, even if theres no intent to either kill or cause GBH; take such an enormous risk thathave depraved heart or malignant heart; dont care enough about welfare of others; assumed tointend the natural and probable consequences of actions

Malice aforethought is implied if a persons conduct manifests an extreme indifference to

the value of human life. In states that separate murder into degrees, this type of murderalmost always constitutes second-degree murder

o Felony murder; intent to commit another felony

At common law, a person is guilty of murder if he kills another person during thecommission or attempted commission of any felony. Nearly every state retains thefelony-murder rule

Under most modern murder statutes, a death that results from the commission of anenumerated felony (usually a dangerous felony, such as arson, rape, robbery, or burglary)constitutes first-degree murder for which the maximum penalty is death or lifeimprisonment. If a death results from the commission of an unspecified felony, it issecond-degree murder. The felony-murder rule authorizes strict liability for a death thatresults from commission of a felony

Must have malice when the fatal blow is strucko Does not need malice ahead of time

o No premeditation needed to be shown

MANSLAUGHTER: an unlawful killing of a human being by another human being withoutmalice aforethought.

Voluntary manslaughter : Under common law principles, an intentional homicide committed insudden heat of passion as the result of adequate provocation mitigates the offense to voluntarymanslaughter

o The common law defense contains four elements:

The defendant must have acted in heat of passion at the moment of the homicide. Passion has been interpreted to include any violent or intense emotion such as fear,

jealousy, and desperation.

The passion must have been the result of adequate provocation.

Juries in such cases are typically instructed to apply an objective reasonable-personstandard.

Cannot just be verbal and must be done by the victim

The defendant must not have had a reasonable opportunity to cool off.

There must be a causal link between the provocation, the passion, and the homicide

Involuntary manslaughter is death that is result of negligence

o Not done with malice or depravityo Punished the least- although it is closer to murder

o An accidental homicide that occurs during the commission of an unlawful act not amounting to a

felony (or, at least, not amounting to felony that would trigger the felony-murder rule) constitutesinvoluntary manslaughter.

This may be termed misdemeanor-manslaughter or unlawful-act manslaughter.

MPC Negligent Homicide: Reckless and Criminally Negligent Homicide A person who killsanother recklessly is guilty of manslaughter.

o MPC precludes liability for manslaughter based on criminal negligence.http://outlines.ilrg.com 16


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o A criminally negligent homicide involuntary manslaughter at common law constitutes the lesser

offense of negligent homicide under the Code.

KUNTZV. THIRTEENTH JUDICIAL: alleged that K negligently cause the death of Becker by stabbing himand failing to call for medical assistance.o K and B were in the process of ending a stormy relationship, got into an argument in which B

allegedly physically attacked hero K was charged with negligent homicide

She admitted to stabbing him but entered a plea of not guilty based on the defense of

justifiable useo For criminal liability to be based upon a failure to act there must be a duty imposed by the law to act

and the person must be physically capable of performing the act

"American Bystander Rule- rule imposes no legal duty on a person to rescue or summon

aid for another who is at risk of danger

There are 7 common law exception to the rule on omissions

Duty based on a personal relationship, such as parent child or husband wifeo Beardsley : not extended to non-family or temporary relationship

Duty based on statute

Duty based on contract Duty based on voluntary assumption of care

Duty based on creation of perilo When a person places another in a position of danger and fails to safeguard or

rescue that person and the person subsequently dies as a result of thisomission, such omission may be sufficient to support liability

o When in self-defense, and someone's the initial aggressor and deadly force is

used to repel the aggressor, the first duty is to protect yourself first, then oncesafe, has a duty to call for help for the aggressor

Duty to control the conduct of others

Duty based on being a landowner

Do not need to come to anyone's aid if there's any threat to your safety or a third personssafety

There is a duty to call for help when in a safe place

PEOPLEV. CABRERA: 17 year old with a junior license was driving a car around a hilly windy road with4 passengers under the age of 18, none wearing seatbelts.

Went around a curve going about 70 mph and went off the road, killing 3 of the passengers and

critically injured the othero A person is guilty of criminally negligent homicide when, with criminal negligence, he

causes the death of another person

A person acts with criminal negligence with respect to a result when he fails toperceive a substantial and unjustifiable risk that such result will occur or that suchcircumstances exists

The risk must be of such nature and degree that the failure to perceive it constitutes a

gross deviation from the standard of care that a reasonable person would observe inthe situations

The carelessness required for criminal negligence is appreciably more serious than

that for ordinary civil negligence

Must be of such seriousness would be apparent to anyone who shares the

community's general sense of right and wrong



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Requires a defendant to have engaged in some blameworthy conduct creating

or contributing to a substantial and unjustifiable risk of a proscribed result

Non-perception of a risk, even if the result occurs, is not enough

Takes some additional affirmative act that exhibits serious blameworthy

conduct

Engages in some other risk-creating behavioro Speed alone is not enough to be criminally negligent homicide

o Objective standard- criminal negligent- community's sense of right and wrong

2 LEVELSOF CAUSATION: must have both

But For: Cause in Fact, or Actual Causeo This is scientific or empiricalo This is what an expert is used for

Proximate cause: this presupposes cause in facto Social, policy and moral concerns, a normative matter

Who is it fair to blame and hold culpable

What is just and fair

o Not scientific

COMMONWEALTHV. CARLSON: Carol Suprenant was hospitalized as a result of an accident caused by the D'snegligent operation of an automobile and died of respiratory failure four days later after she requested she beremoved from her ventilator

Conviction affirmed- Death by vehicle:o Proximate cause case: The victim's car was hit in an intersection by D's car who had failed to

stop at a stop sign and blinking light and was thus negligent

The Victim had suffered for several years prior from a heart problem that made it

difficult for her to breathe and required the use of an oxygen tank

The accident made her condition worse as to where she was no longer able to oxygenate

her blood by normal breathing

Requested to be taken off the ventilatoro Conduct is a proximate cause of death if the conduct by the natural and continuous sequence of

events, causes the death and without which the death would not have occurred

D's failure to stop set in motion a sequence of events which resulted in victim's death

But for the negligence of D, the victim would not have had to make the decisiono The general rule is that the intervening conduct of a third party will relieve D of culpability for

negligence only if such an intervening response was not reasonably foreseeable

Usually criminal acts by third parties will break the chaino As a matter of policy: Reasonable medical treatment or medical decisions will not break the

causal chain

ROBERTSONV. COMMONWEALTH: Partin was a police officer who was chasing down D who was running awayfrom another cop. D jumped over a gap on the bridge that was concealed by a wall to get to the walkway on abridge. When Partin went to jump over the gap, he fell through and dropped to his death.

His death resulted from his own volitional act and not from any force from the appellant

Wantonness is the awareness of and conscious disregard of a risk that a reasonable person in the same

situation would not have disregardedo Extreme reckless conduct



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Recklessness is the failure to perceive a risk that a reasonable person in the same situation would have

perceivedo Generally wanton and reckless are the same- here they drew a difference--> not the norm!

The fact that Partin vaulted over the concrete barrier of his own volition does not exonerate Appellant if

Partin's act was eitherforeseen or foreseeable as a probable result from the appellants unlawful act ofresisting arrest and fleeing

o He knew the police intended to follow him and that in doing so would be forced to jump over the

gap thereby risking falling through it to their deatho If still in "hot pursuit", the crime is still on-going. If in the process of crime, will be responsible if

someone gets hurt

Looks to reasonable foreseeability and the natural consequences of their actions

Once an act is determined to be a "cause in fact", but for, or actual causation; and a

substantial factor in bringing about the result, it is recognized that the proximatecause

Conscious choice of another actor is not enough to break the chain of causation, but

intentional criminal conduct is.

PHILLIPSV. COMMONWEALTH: reasonably foreseeable that shots fired to a vehicle would cause shot to be fired

back, putting people in the 1st shooters car are then put in danger If youre the aggressor and someone gets shot, you can be held guilty of murder

o Reasonably foreseeable someone would get hurto Engaged in wanton and reckless conduct

PEOPLEV. CERVANTES: Provocative act doctrine

Gang members are involved in a shoot out at a party, which then lead to a "war" between the gangs. One

member, days later, went and tried to shoot the other side and killed an innocent persono This is not a provocative act

Happened days later, no evidence that the shooter was responding to the provocative act

Separate incident

Statute of Limitations: no SOL for murder- state may prosecute at any time up to D's death

Double Jeopardy: no person shall be subject from the same offense to be twice put in jeopardy of life or

limbo In criminal cases, which are appealed and some error is found, there can be a new trial.

Law permits retrials after appellate reversals as long as the evidence introduced in the first

trial was legally sufficient for a reasonable jury to convict

Cannot have a retrial to get another shot at finding new evidence- evidence must have been

sufficient in first trial

If P did not give sufficient evidence, D will be acquitted if they prevail on appealo Must be a decision on the merits, not on a technicalityo If charged with murder, and the judge finds evidence of lesser degrees. Jury come back with a

verdict, the D has a choice to appeal or not

A conviction of a lesser offense is an acquittal of the greater offenses. First charged with 1,

but get verdict for 2. If appealed, cannot get tried for 1 again.

DEGREE/STATUTORY HOMICIDE First Degree Murder: includes premeditated killings and most felon murders

o Premeditation means the killer made a rational decision to kill



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Established by proving some degree of advance planningo Felony Murder Rule: homicide committed during the course of a qualifying felony

The necessary intent attaches to the felony, not the killingSTATEV. CLARK: Clark was found guilty of conspiracy to commit first degree premeditated murder andof aiding and abetting first degree premeditated murder for the shooting of a police officer

o A fake emergency phone call was made to 911 to lure a police officer to a house, where he was shot

and died

Aiding and abetting : liable if he intentionally aids, advises, hires, counsels or conspires

with or otherwise procures the others to commit the crime

State has to prove that D had knowledge of the crime and intended his presence or

actions to furtherance the commission of the crime

Conspiracy: person is guilty of conspiracy if he conspires with another to commit a crime

and in furtherance of the conspiracy one or more of the parties does some overt act infurtherance of such conspiracy

State must objectively indicate an agreement between the D and another person to

commit a crime

Cannot base evidence on accomplice testimony- accomplice has motive to lie

No criminal D may be convicted on accomplice testimony alone

Testimony must be corroborated by other evidence or it should receive no weight Accomplices have an incentive to shift blame from themselves to their partners in

crime, making their testimony inherently suspect

When accomplices testify a judge must give a cautionary instruction to the jury ,

telling them that accomplices have a good reason to lie, and that they should considerthat when deliberating

This crime requires premeditation: requires more than "malice of aforethought" , it must

have been in D's head before the final blow and had some sort of plan

Common law: dont need to show premeditation

Second Degree Murder: homicides committed with one of various mental states that fall short of

premeditated intent to killo Intent to kill, not premeditated

o Intent to cause serious bodily injury

o Extreme recklessness

o Some felony Murder

.

JUSTIFICATIONANDEXCUSES

JUSTIFICATIONA justification defense deems conduct that is otherwise criminal to be socially acceptable and non-punishableunder the specific circumstances of the case. Justification focuses on the nature of the conduct under thecircumstances.Examples include:

Self-defense

Defense of others

Defense of property and habitation



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Use of lawful force

Necessity

Affirmative defense- D has the burden of proof

Must prove it by a preponderance of the evidenceo If this is proven- it outweighs the P's argument- doesnt matter if the government has proven the

elements of the crime if the affirmative defense is proven

They "negate" the crime

Before you can convict anyone of a crime, the government or state must prove each and every element of

the crime beyond a reasonable doubto Became a constitutionalized standardo If the affirmative defense must disprove one of the crime elements- D must unconstitutionally

disprove the element of the crime and would then have the burden of proof

The burden of proof if this "unconstitutional" shift of the burden happens...

Burden of production- Do If you want to use an affirmative defense, must produce some evidence of the defense

Can be done in cross exam, direct examo Must show some evidence that the affirmative defense is true and that some facts support it

Must seriously raise the issue of the defenseo Once the issue is raised, the burden of persuasion shifts to the prosecution ot prove it beyond a

reasonable doubt

Burden of persuasion : P will have the burden beyond a reasonable doubt once the D has raised the issue of

an affirmative defense

SELF-DEFENSERule- Must 1) honestly believe, 2) reasonably believe that use of force is 3) necessary to repel 4) imminent andunlawful force.

1. Belief that must use force to repel unlawful force must be GENUINE (if not afraid, even if reasonable

person would be, no defense) and2. REASONABLE- do not necessarily have to be right; just must be reasonable, subjective and objective

tests must be passed3. NECESSITY- must be necessary to use deadly force; can use deadly force to repel threat to life, serious

bodily harm, rape, and in some states robbery; response must be proportionate to initial force; eg-Harvard student convicted of voluntary manslaughter b/c force was not proportional to non-deadly forceof being punched

4. force used against you must be UNLAWFUL- cant kill arresting officer and cannot kill one who isabout to kill you in self-defense; does not have to be criminal, e.g. child or insane person who hascomplete defense can be killed in self-defense; legality of force is issue; and IMMINENT- equivalent tocooling off in provocation

Use of Non-deadly force A non-aggressoris justified in using force upon another if he reasonably believesthat such force is necessary to protect himself from imminentuse ofunlawful force by the other person.

However, the use of force must not be excessive in relation to the harm threatened .

One is never permitted to use deadly force to repel a non-deadly attacker

Use of Deadly force- Deadlyforce is only justified in self-protection if the defendant reasonably believes thatits use is necessary to prevent imminent and unlawful use of deadlyforce by the aggressor.

Deadly force may not be used to combat an imminent deadly assault if a non -deadly response willapparently suffice.



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Retreat Rule If a person can safely retreat and, therefore, avoid killing the aggressor, deadly force isunnecessary.

A slim majority of jurisdictions permit a non-aggressorto use deadly force to repel an unlawful deadlyattack, even if he is aware of a place to which he can retreat in complete safety.

Many jurisdictions, however, provide that a non-aggressor who is threatened by deadly force must retreat

rather than use deadly force,if he is aware that he can do so in complete safety. A universally recognized exception to the rule of retreatis that a non-aggressor need not ordinarily retreat

if he is attacked in his own dwelling place or within its curtilage [the immediately surrounding landassociated with the dwelling], even though he could do so in complete safety.

Reasonable Belief- The privilege of self-defense is based on reasonable appearances, rather than onobjective reality.

a person is justified in using force to protect himself if he subjectively believes that such force is necessaryto repel an imminent unlawful attack, even if appearances prove to be false.

Courts are increasingly applying a standard of the reasonable person in the defendants situation in lieu ofthe reasonable person standard. Factors that may be relevant to the defendants situation or circumstancesinclude:

o (1) the physical movements of the potential assailant

o (2) any relevant knowledge the defendant has about that person;

o (3) the physical attributes of all persons involved, including the defendant;

o (4) any prior experiences which could provide a reasonable basis for the belief that the use of deadly

force was necessary under the circumstances.

Imperfect Self-Defense Claims - The traditional common law rule is that if any element necessary to proveself-defense is lacking, the defense is wholly unavailable to a defendant. Some states now recognize a so-calledimperfect or incomplete defense of self-defense to murder, which results in conviction for the lesser offense

of either voluntary or involuntary manslaughter. For example, a defendant who fails to satisfy the reasonableness component, although his belief was

genuine, might be able to assert an imperfect or incomplete claim of self-defense, mitigating his crimeto manslaughter.

Battered Woman Syndrome- A special type of self-defense is the battered woman syndrome defense. Casesin which this defense arise may occur under three scenarios:

1. Confrontational homicides, i.e., cases in which the battered woman kills her partner during abattering incident. In such cases, an instruction on self-defense is almost always given. It is nowroutine for a court to permit a battered woman to introduce evidence of the decedents prior abusivetreatment of her, in support of her claim of self-defense.

2. Non-confrontational homicide,wherethe battered woman kills her abuser while he is asleeporduring a significant lull in the violence.Courts are divided on whether self-defense may be claimedif there is no evidence of threatening conduct by the abuser at the time of the homicide, although themajority position is that homicide under such circumstances is unjustified.

3. Third-party hired-killer cases, in which the battered woman hiresor importunes another to kill herhusband, and then pleads self-defense. Courts have unanimously refused to permit instructions inthird-party hired-killer cases.



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Risk to Innocent Bystanders Courts apply a transferred-justification doctrine, similar to the transferred-intentrule: a defendants right of self-defense transfers (just as intent to kill does) from the intended to the actualvictim.

While the defense is absolute in some jurisdictions, other courts do not treat this rule as absolute.

If the defendant, acting justifiably in self-defense against an aggressor, fires a weapon wildly orcarelessly,thereby jeopardizing the safety of known bystanders, some courts hold the defendant guilty ofmanslaughter (or of reckless endangerment if no bystander is killed), but not of intentional homicide.

B. Necessity and Duress

Justification columnNet Gain

Excuse ColumnEven or Net Loss

Victim is threat Person threatens 5 people.You kill person. Have defenseof necessity or self defense

5 People threaten to kill you.You have defense of selfdefense

Nature is threat Flood is coming which willflood town but diverting it willkill inhabitants of farmhouse.Have defense of necessity

Flood will kill your farmhouseunless you divert it so it killstown. You have no defense

Third person is threat Person has gun to your headand says Save town or Illkill you. You have defenseof necessity or defense ofduress.

Person with gun says savefarmhouse and kill town. Youhave defense of duress ifavailable for homicide..

1) Necessity- requires balancing to det if society is better off, i.e. has net gain, b/c of what you dida. Can claim almost anytime evil resulting less than evil that would result;b. Ex) Destroy one house to create fire break to save rest of city; smash window of car to get

fire extinguisher to put out fire in orphanage with 400 sleeping orphans inside; when kill onethreatener to save 100, just plain self-defense defense

c. Retributivism, utilitarianism and expressivism prefer this complete defense to alt methodslike clemency, no sentence, prosecutorial discretion and jury nullification

d. People v. Unger(1977, r809)i. Facts- walked away from prison after being threatened with sexual assault by other

inmates. He had not reported the threats to officials, and had made no effort to notifyofficials at the time of his capture (though he claimed that that was his intention).

ii. Rule- Court says below case guide to credibility of claim, not absolutely necessaryconditions for necessity defense.

iii. Lovercamp Rule-(1) faced w/ specific threat of harm, sexual attack or death, (2) notime for complaint to authorities or history of futile complaints, (3) no time oropportunity to resort to courts, (4) no evidence of violence toward personnel orinnocents in escape and (5) prisoner reports self once danger gone.

e. Public Comm. Against Torture v. State of Israel(Israel, 1999, r827)i. Israeli S.Ct. refuses to excuse torture ahead of time, but says in ticking time bomb

cases accused agents will be able to raise necessity defense. Fear that will encouragetorture in give pre-clearance.

ii. Flip side of utilitarian argument about giving clear warrant to commit certain bad actsiii. NJ has same policy

f. United States v. Schoon (1992, r820)



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i. Facts- splashed fake blood and disrupted govt building, claiming necessity defenseb/c their acts of protest were necessary to avoid further bloodshed in El Salvador.

ii. Rule-4 criterion must be met: (1) there was choice of evils and lesser was chosen, (2)acted to prevent imminent harm, (3) reasonably anticipated direct causal rel b/tconduct and harm to be averted, and (4) no legal alternatives to violating law.Indirect civ disobedience will always fail 2 and 4.

g. People v. Bordowitcz(1991, Supp, optional reading) where the courts felt that an organizedneedle exchange was too speculative to qualify. It also stepped on the toes of the

legislature.h. MPC 3.02 Choice of Evils

i. Conduct that actor believes to be necessary to avoid harm to other or to self isjustifiable,

1. So long as harm sought be avoid is actually greater than that sought to beprevented by law defining offense charged

2. AND no code, law or legislative intent creates exceptions;3. May not have acted recklessly or negligently to cause threat

i. Variationsi. NY Law: requires that it be an emergency (imminence limit like in self-defense);

requires no prior fault of (no defense at all); good seeking must clearly outweigh

harm that would be caused; eg) debates on medical marijuana usually come to drawand so in NY would not have defense

ii. Most take homicide off table; must hope not to be prosecutediii. MA Law: must have had no alternative to what he did (takes out all pol protest cases)

2) Duress

a. Must come from third personb. Not all jurisdictions recognize duress as a defense to homicidec. Reason for duress defense is retributive, i.e. w/ third person you lack choice in the matter;

can make deterrent argument as well no deterrent for a person w/ a gun to his headd. Not even MPC covers threat from nature

i. If flood and just one person in car and two people in street and would have to run

over cliff to save self; no defense even under MPC; circumstances must be created bythird person

ii. In case of nature cannot transfer mens rea onto third person and punish him; noopportunity for revenge w/ nature; punish person even though feel they are morallyblameless; raises real question about why it is we punish

e. Rationales relate to:i. Involuntary acts- duress like someone else acting thru , when someone has gun to

his head; psychological analogii. Rape- asks what kinds of threats ought someone to submit to vs. what kinds of threats

ought a person to resist; although talking about perpetrator not victimiii. Self-defense- what can one do to save self when harms innocent rather than aggressor

f. MPC 2.09- broadest b/c allows as defense to homicidei. It is affirmative defense if engaged in conduct b/c coerced to do so by use or threat

to use unlawful force against his person or another person, which a person ofreasonable firmness in his situation would not be able to resist

1. Cannot have recklessly or negligently put self in situation2. Not reasonable person- no reasonable wimp stnd3. Unlike CL, no imminence requirement

ii. Powerful defense b/c can be coerced to do grtr harmiii. State v. Toscano- NJ- where s family threatened if did not commit fraud, ct throws

out immediate and pending requirement of CL for MPC; rationale- Believed CL



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standard not consistent w/ justice when person committed small crime. Should notrequire heroism of people

g. Imminence and Duress: United States v. Contento-Pachoni. Fact- Drug mule case, where claims did not abandon mission b/c afraid for his

family and corrupt govt.ii. Rule- Jury could find that satisfied CL duress requirement that threat be immediate

and inescapable.iii. CL Formulation- threat present, imminent, pending and inescapable; man of

ordinarily fortitude might yield; reasonable believe death or GBH will be inflictedh. Imminence and Duress: United States v. Fleming

i. Facts- charged w/ helping Koreans do propaganda; he claims duress b/c had beenthreatened that eh would be forced to sleep in caves and walk thru cold, probably todeath.

ii. Rule- Danger of death or GBH not immediate. Resistance must have brought you tolast ditch. Ex) started walking thru snow and realized would die soon.

i. Ruzic (Canada)i. Facts- another drug mule case

Rule- Law requiring imminence unconstitutional. If threat was believed, then threat gave her no choice even ifnot immediate threat and person was not present. Says her acts were morally involuntary.; US fears overuse

of defense

Excuse- Excuse defenses focus on the defendants moral culpability or his ability to possess the requisitemens rea. An excuse defense recognizes that the defendant has caused some social harm but that he should notbe blamed or punished for such harm.

Examples include: Duress Insanity Diminished capacity

Intoxication (in very limited circumstances) Mistake of fact Mistake of law (in very limited circumstances)Insanity and Duress;

o Society does not like this behavior but understands and excuses it

o Example: run over police officers when bank robber says hell kill you if you dont duress

o Test: If peculiar to , probably an excuse

o Sometimes two categories merge

ii.

C. Insanity: An Excuse-1) Nature and Consequencesa. Like duress, an excuse not a justification; also like duress, analogous to involuntary acts

doctrine; unlike duress not due to external pressure; by definition, an insane person notreasonable; internal forces take away choice; only place that law addresses unreasonableperson; as a result, leads to special verdict

b. NGI immediate institutionalization until no longer insane and no longer danger; thereforeinstitutionalization often exceeds max sentence for crime; so many s do not raise insanitydefense; courts often turn blind eye to it; only really litigated in capital cases or homicidecases when consequences so severe



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3) Historical Timeline

a. Early Eng law- men as wild beastsb. Cognitive Standard andMNaghten in 1843

i. Facts: killed PMs assistant while trying to kill PM and got off on insanity defenseii. Rule: To est defense of insanity must prove at time act committedperson under effect

ofdefect of reason or disease of mindas to not know quality of actorit was wrong.Charge jury to det if person knew right from wrong at time act committed, notwhether generally know the difference.

iii. Some courts had prob w/ rule b/c cases that did not fall under rule but were insaneand seemed unable to stop themselves from doing act; ex) kleptomaniacs and otherpeople w/ obsessive disorders are often unable to stop themselves; so minority ofcourts came up with idea of irresistible impulse

c. Durham in DC circuit in 1954- wrote that rule ought to be productivity rule whether scrime was product of mental disease or defect;

i. Must show causal rel b/t mental illness and crime; doctors say if mental illnesscaused behavior or if had indpndt cause;

ii. Problem was war of experts; reached peak of prob in Weekend flip-flop casechanged book of diseases included as mental illnesses over weekend and changed inmiddle of case; doctors who testified yes on Fri were recalled on Mon

d. MPC 4.01 in 1962i. Not responsible for criminal conduct if: at time of conductas a result ofmental

disease or defect1. lacks substantial capacity to appreciate criminality/ wrongfulness of conduct

OR2. to conform his conduct to requirements of law

ii. First rule not to treat insanity as on/off; dont have to be totally sane or totally insane;

substantial capacity partially impairediii. MNaghten rule + irresistible impulses doctrine (ex- kleptos who know it is wrong

but cannot help it)e. Blake

i. Facts- w/ history of mental disease commits bank robbery then goes to court.ii. Rule- Court believes he knew what he was doing but something wrong with him so

does not deserve full punishment; so court adopts MPCiii. Similar to Green, where (schizophrenic who murdered officer) contacted FBI agent

and heard voices. Ct says could not have conformed behavior to law.f. US v. Lyons (5th Circuit, 1984)

i. Facts- began to suffer from painful ailments years ago and to take drugs to lessenpain. He claims he became addicted and experts testified that addiction affected hisbrain so he lacked substantial capacity to conform his conduct to requirements oflaw. Trial court excluded this evidence.

ii. Rule- Ct affirms and drops volitional prong back to MNaghten. Nationwide

response after Hinckley gets NGI verdict.g. 1984 Congress passed federal statute superceding in all circuits the MPC standard; must have

severe mental disease or defect and must be unable to appreciate wrongfulness ofconduct; shifts burden of proof to and raises standard to by clear and convincingevidence; Statute basically codified MNaghten rule but shift burden of proof to



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VII. Sentencing

A. Types of sentencing regimes:

1) Discretionary Indeterminate - still in about states use; judge can sentence w/in role andparole board decides when a person is actually eligible of release; usually a range of 1/3;

attacked in last 20-30 yrs so federal govt and states have determinate regime; no appeal ofsentence

2) Determinate regime- no parole and small, if any range; include Sentencing Guidelines

(reproduces substantive law for sentencing) criminal history and offense level; judge maydepart from guidelines for reasons ordinarily not relevant only if give written opinion why doingit and appellate judge can rvw; if w/in range, no appeal possible

B. Purposes of Punishment: US v. Bergman (SDNY, 1976, r140)

1) Facts- Convicted of defrauding US govt thru nursing home business; could have gotten 5yr and$10K fine and 3 yr and $5K for two counts; gave him 4 mos in prison

2) Rule-Judge cites letters to ct and his philanthropic work in sentencing; attys say should not

punish b/c no need for specific deterrence and should be allowed to deflect his abilities to morecharity; he was old and sick prison far worse; no need to rehabilitate him; retributiveargument that he should only be punished for what he deserved; must deter other people; raisesquestion of what should be considered at sentencing..

C. 8th Amendment:Harmelin v. Michigan (US SC 1991, r283)

1) Pre-Harmelin Timeline: (Should cts rvw sentencing?)

a. Rummel(1980) three bad checks passed led to life imprisonment b/c three strikes yourout law; ct said not cruel and unusual punishment over dissent by Powell that had 3factor test

b. Hutto v. Davis (1982)

40 yrs and $20K fine for selling 9 oz of marijuana; not cruel andunusual punishment

c. Salem v. Helm- 7 prior non-violent crimes life imprisonment; adopted Powells testfrom dissent inRummel (extreme and grossly disproportional, inter-jurisdictionalcomparison and intra-jurisdictional comparison)

2) Facts- sentenced to life w/o parole for selling cocaine. challenges sentencethe highestavailable in the stateon grounds that it is cruel or unusual.

3) Rule- Ct is very divided on this; although some room for rvw, courts will be very deferential tolegislatures on subjects of what deserves most punishment

4) Scalia & Rehnquist- no proportionately requirement in Constitution; cruel and unusual onlyapplies to mode of punishment (but this is not a majority opinion; not even plurality)

5) OConners plurality- say it does include proportionately but that it is narrow; defer tolegislature on dangers of drugs; cites importance of states right to decide punishment endowedby federalism; must be based on objective factors: punishment on face must be extreme andgrossly disproportionate

6) Dissent- Wrong to abandon Powells test

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