Law 1
Criminal Professor Bobis Extension *6016 I. Introduction (A) Background Information Crimes Distinguished from Civil Wrongs: [Each has a different moral content.] (1) Crime case = Guilty (2) Civil case = Responsible Crime is a SOCIAL HARM: "It is conduct which, if duly shown to have taken place, will incur a formal and solemn pronouncement of the moral condemnation of the community." A criminal conviction is a public stamp of disapproval; we make something a crime in order to convey the message "Dont do that ... Biznatch" Crime Classification: English C/L divided into 2 categories. (1) Felony: any species of crime that allowed for the forfeiture of land or goods. All C/L felonies were punishable by DEATH. [Imprisonment in State Prison.] (2) Misdemeanor: all other offenses, besides felonies, are misdemeanors. [Imprisonment in Local Jails.] Crimes hurt society in a general, thus we as a society take action: State v. Tomic (B) The Jury (1) Right to a Jury: The 6th amendment says, "in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial by an IMPARTIAL JURY" This prevents prejudice/oppression by a single judge or the government. Generally have the right to a jury over a judge when the maximum potential punishment exceeds incarceration of 6 months. Voir Dire: The examination of prospective jurors [venire persons]. He judge and lawyers ask questions. The may excuse for "cause" and are also allowed a limited number of "preemptory" challenges. (2) Jury Nullification: Occurs when the jury acquits even though the prosecutor proves "beyond a reasonable doubt" that the accused D committed the offense charged. A juror may ignore the law and vote whichever way he wants. Jurors may feel the law is wrong, immoral or unwise. Jurors may feel that the D has suffered enough. Juries do not have to explain verdicts; instead, they only have to say "guilty" or "not-guilty." A jury verdict is unreviewable. There is no ,,double jeopardy (5 th amendment). One cannot be prosecuted after a not guilty verdict. Hypo: Acquittal of Zenger for seditious libel against the British Authorities. Also, the acquittal of the California needle exchange organizers. This doctrine may be considered anti-democratic because the legislature should make the laws, not the jury.
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State v. Ragland (page 15) The D was accused of armed robbery, and as a convicted felon he could not carry a weapon. The judge instructed "If it was found that he was carrying a weapon, you MUST find him guilty of the possession charge." D lost and appealed saying that the jury command "MUST" did not inform the jury of their nullification power. The D wants: (1) If you dont find A, B, and C beyond a reasonable doubt not guilty (2) If you find A, B, and C beyond a reasonable doubt you may find guilty D argues that jury nullification is essential to a trial by jury. The Court Held: Jury nullification is not essential to a trial by jury, instead, "jury nullification is an uncomfortable but unavoidable power. It should not be advertised an to the extent constitutionally permissible, it should be limited."
(C) Burden of Proof at Trial The fact finder must be persuaded "beyond a reasonable doubt of every fact necessary to constitute the crime charged." [In re Winship, 1970] It must firmly convince you and it cannot give the benefit of the doubt. This standard is related to the presumption of innocence. To meet this standard, the fact-finder must have an abiding conviction of the truth of the charge. Jury instructions usually define what reasonable doubt is. Commonwealth v. Webster (1850) What is reasonable doubt? "Not a mere possible doubt, there can always be some possible imaginary doubt. It is that state of the case, which, after the entire comparison and consideration of all the evidence, leaves the mind of the jurors in that condition that they cannot say they feel an abiding conviction, to a moral certainty, of the truth of the charge." RD: Society believes that allowing a guilty man to go free, is better than convicting an innocent man. That is why we have the reasonable doubt standard. [We want no doubt that the man going to jail is guilty.] The prosecutor is required to prove every "element" of an offense/crime beyond a reasonable doubt. The prosecutor is not constitutionally required to disprove defenses to a crime by the defender. Difficult to define reasonable doubt; some courts use moral certainty. "Beyond a Reasonable Doubt" is a higher standard than "preponderance of the evidence" and "clear and convincing evidence." Owens v. State D was found passed out, drunk behind the wheel of a car in a driveway. D was never seen driving. There are 2 possibilities: (1) He drove to the driveway from the highway while drunk, if so guilty. (2) He got the car into the driveway and then got drunk there; if so innocent. The 1st judge found the D guilty based on the circumstantial evidence. The 2nd judge affirmed allowing the strong circumstantial evidence to prevail. In this case, circumstantial evidence was sufficient to prove "beyond a reasonable doubt." (D) Model Penal Code (AKA "MPC") Established in 1962. It influences most states.
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(1) (2) (3) (4)
Criminal Law came from the English C/L. Then in the US, it was C/L, and statute. Then in the US, federal was different from the state. Finally, the MPC created a set of offense definitions and general rules of criminal responsibility.
NY: Adopted some of the MPC Interpreting the MPC: Individual states have their own rules for interpretation of criminal statutes. The MPC has rules of interpretation; NY has them also. If a state statute is based on the MPC, then you can look at the commentaries on the MPC. Reception Statutes: If one state receives a statute from another state, then that statute receives the C/L of the giver state (only till the time of transfer). The C/L of the giver state becomes unwritten law of the receiver state. II. Theories of Punishment Punishment: An agent of the government, pursuant to authority granted to the agent by virtue of the Ds criminal conviction, intentionally inflicts pain on D or otherwise causes to suffer some consequence that is ordinarily considered to be unpleasant. Retributivist: Justifies punishment because the D deserves it. Utilitarian: Justifies punishment because of the useful purpose it serves to a society as a whole. There are 3 major questions to ask when developing criminal law: (1) Why Punish? (general justifying aims) (2) Who to Punish? (distributive principal) (3) How much to Punish? (distributive principal) (A) Utilitarian "FOR THE GOOD OF SOCIETY." Utilitarians are Forward-Looking. Justifying Aims: The rationale is deterrence. They punish because it is socially beneficial, not because it is right to do so. [Punish for the good of society as a whole.] Augmenting Happiness: The general object of all laws is to augment the total happiness of the community by excluding, as much as possible, everything that subtracts from happiness; i.e., everything that causes pain ("mischief"). Because both crime and punishment are evils, the cost of the benefit to the society must outweigh the cost of the punishment [otherwise there should not be punishment]. DETERENCE is a main goal; this socially benefits the society. "A utilitarian believes that an actor will balance expected beliefs of the proposed conduct against its risks, taking into account such factors as the likelihood of successful commission of the crime, the risk of detection and conviction, and severity of the likely punishment. The criminal will avoid criminal activity if the perceived punishment [potential pain] outweighs the expected criminal rewards [potential pleasure]." A COST-BENEFIT ANALYSIS What benefits flow from criminal punishment? [Forms of Utilitarianism]
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(A) General Deterrence: To generally deter future crime. To punish Ds as an example for others not to commit a crime. (B) Specific Deterrence: To deter the specific D from future crime. This D will learn not to do it again. (C) Incapacitation: To keep the D out of the general population; so he cant do any wrong. (D) Reform/Rehabilitation: To reform criminals so that they will not commit crimes and that they will be happier and useful to society. (B) Retributivism "FOR THE PUNISHMENT OF THE BAD GUY(S)." Retributivists are Backward-Looking. Just Deserts: The punishment of a wrongdoer is justified because it is a deserved response to the wrongdoing. "We punish because it is right to punish." Punishment should occur regardless of its effect on society. People who freely choose to violate the law deserve the punishment. Retributivists look backwards to the harm and see if it justifies the punishment. One cannot justify punishing an innocent person or a person who did not voluntarily commit the crime; there is no moral culpability. The goal of a retributivist is punishment; not deterrence. CANNOT PUNISH SOMEONE WITHOUT MORAL CULPABILITY Justifications: (1) Benefits and Burdens: The wrongdoer gets the benefit of the law, but does not accept its burdens. Punishment of the wrongdoer brings him back into moral equilibrium: he "pays his debt" to society. (2) Punishment as Defeat: The wrongdoer sends a false message to the victim, e.g., "My rights are more important than yours." Punishment symbolically shows that the wrongdoer is not better than the victim, instead, they are of equal worth. Proportional punishment defeats the offender, i.e., it brings him down to his proper place in relation to others. Retribution is premised on the view that human beings, by nature, have free will. A person does not deserve to be punished unless he freely chooses to act wrongfully. Positive Retributivist: "It is a moral imperative that the bad guy gets his just desserts." They focus on the fact that the guilty people who have done wrong deserve to be punished. They believe it is morally right to hate a criminal because they hurt society in some way. [Upon leaving an island, the positive retributivists would have to execute all the convicted murderers because they must be punished.] Negative Retributivist: "It is moral imperative that you do not punish the innocent guy." It is morally wrong to punish an innocent man even if society might benefit from the action. [A utilitarian may agree with this because negative retributivists will not punish unless it does some good.] (C) Retributivism versus Utilitarianism. (1) Framing an Innocent Person to Quiet a Mob: (a) Retributivist: Can never justify framing an innocent person, they did nothing wrong. (b) Utilitarianist: Could justify framing an innocent person as general deterrence to give society as a whole the benefit. The benefits of framing outweighs the costs. (c) Cost-Benefit Analysis: A very subjective assessment that relies on who is giving the assessment. Will the mod get even more angry after they find out it was a frame job? Will framing make the public lose belief in the law so that next time it will not work in a similar situation? So a utilitarian could possibly not justify framing, it all depends on the cost-benefit analysis.
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(2) Hypo: (page 28, note 1) A rapist asks for forgiveness. The plea is genuine, rehabilitation is successful, he is not a threat if released, and he could be quietly set free so that other inmates/criminals would not know about it. (a) positive retributivist: Would not set free, the bad guy must be punished. (b) negative retributivist: Would not set free, as long as he is not innocent he should still be punished. (c) utilitarian: Set him free, if it is good for the overall society; Let Him Out! Queen v. Dudley (page 35) Dudley, Stevens and Parker all alone on a boat. An accident occurs and they are all stranded on a dingy. Time is rough. Dudley and Stevens kill and eat Parker. They are rescued 4 days later and charged with murder. The jury was unsure if it was murder, they could only cipher the facts. The judge said it was murder, they were condemned to death. The sentence was lightened to 6 months. In this case, there was no justification for murder. Their backgrounds show that they are good people. It was an extreme circumstance. Individual deterrence & rehabilitation were probably not necessary. Think about this case in light of Retributivism v. Utilitarianism. (D) Model Penal Code MPC 102(1): (a) utilitarian deterrence (b) incapacitation and individual deterrence (c) retributivism (negative) (d) utilitarian (to deter); retributivist (so punishment is just) * Look through these sections and try to identify the basis of each of them. * Hypo: A young person did a bad crime. He has a long life to do better later. Now what? How to judges decide sentencing guidelines? The MPC helps tell us what and how to sentence. Sentencing procedures are no longer broad and discretionary; the MPC now has minimum and maximum years of sentences. Alternatives to Incarceration: fines, shaming, community service, and house arrest. Recently incarceration rates have sky-rocketed. Rockefeller Laws: 3 strikes and your out, this has increased the amount of non-violent offenders in prisons III. Proportionality of Punishment (A) General Rule "A general principle of criminal law is that punishment should be proportional to the offense committed." (MPC 1.02(2)(c)) The problem is determining what is or is not proportional. "Without the penalty [the punishment part] there can be no crime." (1) Utilitarian Meaning: In a utilitarian system of criminal justice, punishment is proportional if it inflicts no more pain than is necessary to fulfil its deterrent goal. (2) Retributive Meaning: Under retributive theory, punishment should be proportional to the harm caused on the present occasion, taking into consideration the actors degree of culpability for the conduct. (3) Constitutional Law: The 8th amendments Cruel and Unusual Punishment clause prohibits grossly disproportionate punishment. However, the Supreme Court does not enforce this rule vigorously, except in death penalty cases.
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MPC 135.50: The penalty section gives the max punishment as 4 years in prison. How do they figure this out? They must rank the seriousness of the offenses somehow. Hypo: (page 62, note3) (a) Forcible Rape v. Impulsive Killing (b) Embezzling 10 million v. armed robbery of $10 (c) International Drug Smuggling v. Child Molestation These are very tough to rank so it is difficult to impose a proportional punishment for each offense. MPC 102(2)(c): (page 906) "To safeguard offenders against excessive, disproportionate or arbitrary punishment." This all depends on your philosophy of punishment and why you are punishing. Hypo: Rodney King Case. The police were convicted of violating civil rights. The punishment depends on the philosophy. (a) General Deterrence Utilitarian: To send a message to the other cops not to do that. LOTS OF PUNISHMENT (b) Specific Deterrence Utilitarian: To just not allow these cops to do it again. Take away badges. PUNISHMENT IS LESS SEVERE (c) Retributivist: Punish the violence to the individual (Rodney). Also, punish the high social harm. Cops have a lot of power, and these guys abused it. Look back and punish the (1) breach of social trust and (2) the harm to Rodney. (B) Recidivist Statutes "habitual criminal offenders" Elwood Blues A law that punishes a repeat offender more severely than a 1 st time offender. 3 strikes laws: 25-life for stealing a slice of pizza or stealing a $20 bottle of vitamins. Utilitarianist: They support recidivist statutes cause the last punishment was obviously not enough. So we need strict rules to accomplish individual deterrence and incapacitation so that felons are prevented from committing a crime again. Riggs handout: (,,3-strikes challenge fails) A $20 bottle of vitamins gives a harsh sentence. He was hungry, poor, drug problem, and 8X loser. "D proved that he could not conform to societys rules" so the court says TOUGH LUCK Can a retributivist justify the Riggs decision? (1) Culpability Retributivist: YES, support is based on the enhanced culpability of the individual by repeated defiance. (2) Harm Retributivist: NO, not if he focuses on this harm by the offender. Moral culpability in punishment: The judge can always be more understandable in evaluating any extenuating circumstances and can adjust accordingly. (C) Constitutionality Requirement of Proportionality The 8th amendment of the U.S. prohibits "CRUEL AND UNUSUAL PUNISHMENT." "Cruel and Unusual" means punishment that is grossly disproportional to the severity of the crime or punishment, and makes no measurable contribution to acceptable goals of punishment. (1) Constitutionality of Death Penalty Cases:
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Coker v. Georgia (page 48) A plurality opinion, not a majority opinion. Georgia allows the death penalty for rape. Issue: Is the death penalty cruel and unusual punishment for rape? 2 Factors to Determine When Punishment is Cruel and Unusual (AKA Unconstitutional): (1) When it makes no measurable contribution to acceptable goals of punishment (therefore it is a purposeless and needless imposition of pain and suffering), and (2) When it is grossly out of proportion to the severity of the crime. A punishment need only fail one of these to be Unconstitutional. To aid in deciding (1) and (2), the courts look at: (1) Public attitude concerning a particular sentence (2) History and Precedent (Courts look at their own decisions) (3) Legislative Attitudes (4) Responses of Juries (reflected in their sentences) The Constitution gives the Supreme Court Justices the ultimate and final say to decide what is/is not cruel and unusual punishment. For Coker, the death penalty would serve purpose; however, even though rape is horrible, it is not as bad as murder so the death penalty is out of proportion. It is cruel and unusual. The jury found that the aggravating factors should lead to the death penalty: (a) rape by one with prior convictions (b) rape while committing another felony (assault) The court felt that these aggravating factors did not change the fact that a human life was not taken. Issue #1: Is it a per se rule that the death penalty (for rape) is an excessive punishment, or is it limited to the facts in this case? Held: YES, 6 votes said that the death penalty is always cruel and unusual punishment for the rape of an adult. Issue#2: So does this holding extend to the rape of a child? [A current controversy.]
Coker Dissent: Should there be the death penalty for rape? The 8th amendment does not prevent the state from taking an individuals "well demonstrated propensity for life endangering behavior" into account in devising punitive measures which will prevent inflicting further harm upon innocent victims. "It is not irrational nor constitutionally impermissible for a legislature to make the penalty more severe than the criminal act it punishes in hopes to deter wrongdoing." Dissent Rule:In this case the penalty can serve specific deterrence, thus it is not prohibited. "If a penalty can be justified by some penal theory [utilitarian or Retributivist], then the Constitution does not prohibit it." Hypo: (page 54, note 5) In a state that permits executions of murderers, is death a grossly disproportionate punishment for attempted murder? Utilitarian: No, it deters for the general good. Retributive: Yes, the punishment should fit the actual crime. Culpability Retributive: No, the guy is evil, only he was not good enough to finish the job. Harm Retributive: Yes, harm of attempting is severe, but it is not as bad as an actual murder.
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The Solemn Test: 3 Factors to Determine if a Punishment is Disproportionate: (1) The gravity of the offense compared to the severity of the penalty. (2) Penalties imposed in the same jurisdiction for similar crimes. (intra-jurisdiction) (3) Penalties imposed in other jurisdictions for similar crimes. (inter-jurisdiction) In non-capital cases, the Supreme Court will always defer to the state legislatures judgment. The recidivist in this case had his conviction overruled by a 5 to 4 vote. (2) Constitutionality of the Terms of Years Sentenced: Harmelin: (page 54) Is proportionality contained in the Constitution? D was convicted of possessing 672 grams of cocaine; Ds 1st offense. D got mandatory life without parole. Because there is no death penalty in MI, this is the harshest possible sentence. D claims, on appeal, that the punishment violates his 8th amendment rights because the punishment is disproportional to the crime of which he was convicted. D lost in the US Supreme Court by a 5-4 decision. Too bad, life in jail for you! (1) Kennedy (3 votes): These guys did not overrule Solemn but they narrowed it a bit. Rule: A proportionality review should always occur in capital cases. Rule: Capital offenses are always grave, so you can skip the 1 st test. 2-Factor Test to Decide if the Penalty for a Non-Capital Offense is Constitutional or Not: (1) Look to the inherent gravity of the offense. (Capital Crimes are always grave.) (a) If the offense is considered grave (a serious one), then the penalty is not disproportionate and the analysis will stop and the sentence will be approved. (b) If the offense is not considered grave then the court will go to step #2. (2) When the offense is not grave, the courts look to other factors to determine if the punishment is disproportional. (a) Inter-Jurisdictional Analysis: Sentences for a similar crime in other jurisdictions. (b) Intra-Jurisdictional Analysis: Sentences for a similar crime in the same jurisdiction. In this case, the Kennedy crew felt that the crime was a severe one, so the analysis stopped at step one. The result of this test is that the Supreme Court is rarely willing to intervene in proportionality review unless the court id willing to find gross disproportionality. Scalia (2 votes): He said the sentence did not violate the 8th. The 8th has no proportionality guarantee. Cruel and Unusual punishment was used to focus on tortious punishments, not excessive ones. He gets his information from the legislative history. Scalia also claims that the test is too subjective, jurisdictions cannot even agree on what is proportional or not. The judges cannot overrule the legislature based on their subjective intent. [They would overrule Solemn.] White (4 dissenters): These guys approved of Solemn and wanted to use the standard without variation, i.e., using all three steps in conjunction. Taking into consideration the 3 factors, the dissenters felt that the punishment was disproportionate to the crime and to similar crimes in the jurisdiction and other jurisdictions. Overall, there is weak support that the constitution provides a proportionality guarantee in for non-death penalty cases. NY Rule: Uses the 3 factors of Solemn and adds the Ds personal history as a factor in deciding proportionality of punishment. IV. Legality of Punishment
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Constitutional Law: The principle of legality is constitutionally mandated. "The legality principle overrides all other criminal law doctrines; even if it means letting a morally culpable person avoid punishment." (A) General Law No act, no matter how harmful, is criminal and punishable unless and until the legislature makes that act a crime. You cannot have a crime without a pre-existing law. Rule (MPC 1.07): No person may be prosecuted, convicted, or punished for any act that was not a crime when it occurred; no matter how horrible. "No crime without pre-existing law, no punishment without pre-existing law." Retributivist: It is morally unjust to punish a person whose conduct was lawful at the time that he acted, because he did not choose to violate the law. Utilitarian: A law cannot have its desired deterrent effect unless people are put on notice of the illegality of he specified conduct. (B) Due Process "The Law Can Not Act Retroactively" The Judiciary [the courts] are prohibited from retroactively enlarging the scope of criminal law; the D needs fair warning of what is illegal. "[I]t is clear the courts cannot go so far as to create an offense by enlarging a statute, by inserting or deleting words, or by giving the terms used false of unusual meanings." While new interpretations of the court are not prohibited, unforeseeable interpretations are prohibited. New Statutory Interpretations can only act pro-actively (not retro-actively). (C) Separation of Powers All C/L crimes have been abolished. MPC abolishes C/L crimes; a judge can no longer declare a new crime. Most states, including NY, have abolished C/L crimes. This leaves only the legislature with the power to create crimes. Ex Post Facto: Legislatures (state and federal) are prohibited from enacting laws that punish conduct that was lawful at the time of its commission, or that increases the punishment for an act committed before the law took effect. (D) Vagueness Doctrine (AKA "Fair Notice") "Criminal Statutes should be understandable to reasonable law-abiding people." A person may not be punished for an offense unless the statute is sufficiently clear that a person of ordinary intelligence can understand its meaning. Constitutionality: An unduly vague statute violates the Due Process Clause. "A person has sufficient notice as to the meaning of the statute if its wording would put an ordinary/reasonable law-abiding person on notice that his conduct comes near the proscribed area." "The statute may not be so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application. A person is denied due process of law if he is convicted and punished for violation of a statute that lacks such clarity."
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(E) Nondiscriminatory Enforcement "Criminal Statutes should be crafted to avoid delegating policy matters to non-legislators." A criminal statute should not be so broadly worded that it is susceptible to discriminatory enforcement by law enforcement officers. In other words, dont delegate basic policy matters to policemen, judges and juries for resolution on a subjective basis. "A statute that lacks clarity ... is susceptible to enforcement in an arbitrary or discriminatory manner." (One example is vagrancy statutes making it a crime to be a "vagrant.") (F) Rule of Lenity "Criminal Statute is to be strictly construed against the government." This Doctrine can only be invoked if the statute is ambiguous. Rule: "When a criminal statute is subject to conflicting reasonable interpretations, the statute should be interpreted strictly against the government. [This prevents] a court from inadvertently enlarging the scope of a criminal statute through its interpretive powers." Judicial interpretation of ambiguous statutes should "be biased in favor of the accused." The problem with this is that many statutes are open to interpretation that can lead to strict construction, which may be contrary to the legislative intent. Courts are hesitant to enlarge statutes, that is the job of a legislature. (G) MPC and NYPC: Do not recognize the lenity principle. They both require: (1) That "criminal statutes be construed according to their "fair import," and (2) That ambiguities be resolved in a manner that "furthers the general purposes [of the code] and the special purposes of the particular provision involved." So the statute should be interpreted not to frustrate, but to further the legislative policies behind the specific law in question. Some jurisdiction still invoke the lenity principle, but they often only use it as a tie-breaker, after all other possible methods of interpretation are considered. Justification: [e.g. Self-Defense] A justification does shape conduct in advance. The conduct is wrong and the person is morally blameworthy, only it is excusable. Excuse: [e.g. Insanity] An excuse does not shape conduct in advance. The conduct is still wrong, but the person is not held to be morally blameworthy. V. Actus Reus Definition: The "actus reus" of an offense is the physical, or external, component of the crime, as distinguished from the mental, or internal, component of the crime, which is called the mens rea. In all Crimes, there are 2 elements: (1) Actus Reus The act. (2) Mens Rea The state of mind. The term "actus reus" includes 3 ingredients of a crime:
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(1) a voluntary act; or an omission to perform an act, under which the D had a lawful duty to act; (2) that causes; [We will not go into a full discussion on this.] (3) social harm.
A retributivist idea because it requires the will of the actor, a utilitarian might punish w/o a voluntary act as long as it augments the overall happiness of society. Rule: A person is not guilty of a criminal offense unless his conduct includes a voluntary act. (There are a few limited exceptions.) Definition: A "voluntary act" is a willed muscular contraction or bodily movement by the actor. It is important to remember that to be guilty of an offense, it is sufficient that the persons conduct included a voluntary act. It is not necessary that all aspects of his conduct be voluntary. Constitutionally: The Supreme Court has never held that punishment of an involuntary actor is unconstitutional. However, it has invalidated some statutes that prohibit a "status" or "condition" rather than conduct. E.g.: The Supreme Court has said it was unconstitutional to make it a crime to be a drug addict (Robinson v. California) or a vagrant. (A retributivist could not convict a vagrant; whereas a utilitarian could.) We can divide "voluntary act" into 2 components: (1) ,,act and (2) ,,voluntary:
(A) Voluntary Act
For the purposes of actus reus, an act is a bodily movement or a muscular contraction. (It includes nothing of the internal mental processes.) An involuntary act is in reality no act at all, it is merely a physical event.
(B) "Act"
(C) "Voluntary"
This requirement is implied into most statutes even if not stated explicitly. There are two ways to define voluntary: (1) Broad Meaning: "In the Context of Defenses" That the D possessed sufficient free will to be blamed for his conduct. A person who acts under duress or as the result of a mental disorder did not act voluntarily. (2) Narrow Meaning: "In the Context of Actus Reus" A movement of the body that follows our volition. A willed contraction of a muscle. Involuntary Acts include: Reflexive actions, spasms, epileptic seizures and bodily movement while the actor is unconscious or asleep. Be careful, do not assume that an act is involuntary just because the actor is unaware that he or she is doing it. (smoking, driving the same route every day are voluntary acts) "I raised my arm" A voluntary act. "My arm raised up"An involuntary act. (1) The Edges of "Voluntariness":
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(A) Hypnotism: If X hypnotizes D to kill V, was Ds act voluntary? The courts would probably say yes because there is a strong case that acts done under hypnosis are voluntary. There is not enough info as to how/why hypnotism works on the mind. (B) Multiple Personality Disorder: If a persons secondary personality commits the crime should they be held to have acted voluntarily? Yes, "we will not begin to parcel criminal accountability out among the various inhabitants of the mind." Rational for the involuntary act requirement: (Based on Retributivism.) Based on retributivist theory; one cannot punish the actors if they did not have a choice in the commission. An involuntary actor should escape punishment because the law cannot deter involuntary acts/movements. However, punishment in this case can motivate changing behavior like a guy who gets seizures would not drive when he knows he can be held responsible if anything happens. In actuality there is no reason to exclude liability for involuntary actions. (2) Time-Framing: A person cannot be found guilty of an offense absent a voluntary act. To prove a person guilty, the prosecution need not show that every act, or even the Ds last act, was voluntary in order to establish criminal liability. How do we determine the time frame in which one of the acts must be voluntary? Generally, the courts will narrow or expand the time frame in order to allow for a desired outcome. If they feel a D is culpable they can expand the time frame, and if they feel a D is not culpable, they can narrow the time frame. "A person is not guilty of an offense unless her conduct, which must include a voluntary act, and which must be accompanied by [the mens rea of the offense], is the actual and proximate cause of the social harm, as proscribed by the offense." People v. Decina: D was an epileptic who killed 4 kids in a car accident. At the instant when her car struck the kids, she was not acted voluntarily (she was having a seizure). However, the court expanded the time frame to say that it was voluntary to enter the car, turn the key and drive when you knew you could have a seizure. Martin v. State: Here, the D became voluntarily drunk at home. The police came, took him from his home, and brought him onto a public highway. The statute said "cant be intoxicated in a public place ... and manifests a drunken condition by boisterous or indecent conduct." A broad time frame would find the D guilty; however, by narrowing the time frame the court found the D not guilty. The D did not voluntarily appear on the public highway, the cops took him there. (Voluntary requirement implied in the statute.) (3) Possession as a Voluntary Act: Definition of "Possession": Exercising dominion and control over the object On the face of a possession statute, there is no requirement for the D to act, he must only possess the article in question. The real purpose of these crimes is to allow the police to arrest someone who they suspect will commit a later crime. A possession crime does not dispense with the voluntary act requirement, because in order to convict, the state must prove:
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(1) That the D "knowingly procured or received the property possessed (thus, a voluntary act must be proven), or (2) That he failed to dispossess himself of the object after he became aware if its presence (this being similar to an omission)." One is not guilty if contraband is planted on him and he does not have enough time to dispossess from it after he has become aware of its presence. The actus reus is satisfied by taking possession of the thing, the actor need not know what the thing is. Possession can be an omission when a person fails to dispossess himself of the object after he as become aware of it. Hypo: Walking down Union Tpke, see a brown bag with a plastic bag filled with white powder, you do not know what it is (turns out to be smack). If you pick it up, was it possession even though you did not know the exact nature/characteristics of the smack? Yes, the actus reus is satisfied because you do not have to know exactly what it is for your possession to be a voluntary act. Hypo: If smack was planted on you, you have the actus reus, but you would not have the mens reus because you did not procure it knowingly. If you never discovered the planted smack, and the fuzz napped you for another crime and found it, you may be guilty if you had sufficient time to have had found the smack and get rid of it. (4) MPC ad NYPC Definition of the "Voluntary Act" Requirement: (A) MPC: No person can be convicted of a crime in the absence of conduct that "includes a voluntary act or the omission to perform an act of which he is physically capable." The factfinder must persuade the court beyond a reasonable doubt of te existence of the voluntary act. MPC definition of act: "[A] bodily movement whether voluntary or involuntary." MPC says involuntary acts include: reflexes, convulsions, conduct during unconsciousness, sleep or due to hypnosis, and any conduct that "is not a product of the effort or determination of the actor, either conscious or habitual." The MPC says that "possession" is an "act" if the possessor either: (1) Knowingly obtained the object possessed, or (2) Knew he was in control of it "for a sufficient period to have been able to terminate ... possession." MPC 2.05: The actus reus is needed for felonies and misdemeanors, but it is not needed for violations. For a violation, it is not necessary that there be an actus reus element, it is more of a strict liability deal. (B) NYPL: NYPL 15.00:Definition of voluntary: "A bodily movement performed consciously as a result of effort or determination." The NYPL, Code, and C/L are all in agreement as to what is a "voluntary act." (D) Omissions as a "Voluntary Act" Ordinarily, a person is not guilty of a crime for failure to act, even if the failure permitted harm to occur to another, and even if the person could have acted at no risk to his own personal safety.
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"[T]he law should see to it that we do not do harm, but not see to it that, in the absence of a specific statutory duty, we do things to prevent harm." "We should punish people for making the world a worse place, not for failing to make it a better place." 4 Requirements to Prove a Legal Omission: [People v. Beardsley page 90] (1) You must have a Legal Duty. A Legal Duty can be Imposed by: [With no legal duty, dont even have to look at the other requirements.] (a) A statute that creates a duty. (b) A status relationship that creates a duty. [A relationship where there is a dependant or interdependant relationship b/w parties; such as parent/child or spouses.] (c) A contract that creates a duty. [Babysitter has implied duty to protect kid.] (d) One who voluntarily assumes care for another or Secludes one from others; these both create a duty. [One who voluntarily assumes the care of another must continue to assist if a subsequent omission by the helper would place the victim in a worse position than if he not assumed care at all.] (e) One who creates the harm or the peril; this creates a duty. [One who creates a risk of harm to another must act to prevent the ensuing harm.] (2) You must have Knowledge of the Facts that Give Rise to the Legal Duty. (3) You must be Physically Capable of Performing the Duty. (4) The Omission Must Have Resulted In or Caused the Harm. Courts will hold a person liable for a criminal omission even if they were unaware of the situation or the duty to act. Unless, the statute imposes a specific state of mind accompanied with the omission. A court may not impose liability if the duty to act would put others in danger. Barber (page 93 in UCL) The doctors were charged with murder and conspiracy to commit murder, of Herbert. Herbert was in a deep coma and recovery was unlikely. The family permitted the doctors to turn off the life saving equiptment, but Herbert continued to live. The doctors then removed the tubes that provided sustenance. Herbert eventually died from lack of fluids and nourishment. The court decided that the doctors actions were an omission rather than an affirmative act. They reasoned that each intravenous drop was comparable to an injection or administration of medicine. Therefore, the disconnection of the tube was tantamount to w/holding medical treatment. [The courts do not want to convict the Dr.s.] Normally one would think that the taking out of a tube is a voluntary act. Issue: "Whether the proposed treatment [was] proportionate ... in terms of the benefits to be gained versus the burdens caused." The court decided that even minimally painful or intrusive treatment "is apt to constitute disproportionate treatment when the patient has no meaningful chance of medical improvement." If the patient is unable to decide for themselves a surrogate can be appointed. Did the Dr.s let Herbert die or did they kill him? This is the big important distinction. Should it matter if it is an Omission or an Act? The problem is that you can construe anything to be an omission. If I shoot you in the head; it is an omission from refraining to shoot you in the head. (E) Social Harm
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Utilitarianist: Harm does not have to be a prerequisite to criminal liability, as long as the actors conduct threatens to cause injury. Dangerous conduct should be deterred and dangerous people should be detained. Retributivist: Punishment of an actor is unjustified in the absence of social harm. It is not right to punish unless the actor has taken something from society. General Rule: A person is not guilty of an offense unless his voluntary act (or omission if a legal duty exists) causes the social harm. A "social harm" is: The destruction of, injury to, or endangerment of, some socially valuable interest. A "social harm" is: The "negation, endangering, or destruction of an individual, group or state interest which was deemed socially valuable." As a general matter, crimes consist of 4 elements (building blocks): (1) Acts/Omissions (conduct or nature of conduct) (2) Mental State (mental culpability, mens rea; there can be more than 1 mental state) (3) Results or Circumstances (4) Results and Circumstances Disregarding the Mental State, There are 3 Basic Crimes ("dividing social harm into sub-elements") : (1) Conduct Crimes: The specific conduct is the crime (social harm), no harmful result is required. No person or property need be hurt. [Driving While Intoxicated] (2) Result Crimes: A crime that prohibits specific results. Defined in the terms of a prohibited result, the social harm is the actual result. The nature of the Ds conduct is irrelevant, i.e., it does not matter how the result occurs, just that it does. The actual result is the crime. [Murder] (3) Attendant Circumstances Crimes: Certain circumstances must be present at the time the actor (1) performs the prohibited conduct and/or (2) the time the prohibited result occurred that constituted the social harm of the offense. If the circumstances do not exist at the time of the conduct, then the elements of the crime/degree of crime are not satisfied. [Breaking and entering into a dwelling at night.] These distinctions are important because the mens rea terms are defined in the terms of these different elements. E.g. knowingly means different stuff for conduct crimes than it does for attendant circumstances crimes. (F) Actus Reus BreakDowns: Once you figure out the "mens rea" element of a statute, all else is the Actus Reus. (1) "causes the death of another human being" "causes" is the conduct element "the death" is the result element "of another human being" is an attendant circumstances element (2) "breaking and entering a dwelling of another at night with the intent to commit a felony" "intent to commit a felony" Mens Rea "breaking and entering" the conduct element "dwelling of another" an attendant circumstance element "at night" an attendant circumstance element There is no result element. This crime is complete once both the actus reus and the mens rea are satisfied.
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(3) NYPL 165.40 "knowingly" "intent to benefit himself" Mens Rea "possess stolen property" the whole actus reus "possess property" a conduct element (that it is a voluntary act is implicit) "stolen" an attendant circumstance This is a conduct crime. There is no result element. The social harm being protected is the protection of property rights. VI. Mens Rea Mens Rea is the RULE, Rather than the Exception. (A) Mens Rea in General Broad Meaning: A person has acted with "mens rea" if she committed the actus reus of an offense with a "viscous will," "evil mind," "morally blameworthy," or "culpable" state of mind. (AKA Blameworthy State of Mind) Narrow Meaning: "Mens Rea" exists if a person commits the actus reus of an offense with the particular mental state set out in the definition of that offense. (Even id D is culpable, he may not have the specific mens rea needed.) Utilitarianist: A person who commits the actus reus of an offense w/o a mens rea is not dangerous, could not have been deterred, and is not in need of reform. Retributivist: A person who commits the actus reus of an offense in a morally innocent manner, i.e., accidentally, does not deserve to be punished, as he did not choose to act unlawfully.
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The Mens Rea Table: Conduct Conscious objective is to engage in conduct of that nature. Aware the conduct is of the nature set forth in the statute. Result Conscious objective is to cause such a result. Aware that it is practically certain that conduct will cause the result. [NYPL, result crime are not defined in terms of knowledge.] Consciously disregarding a substantial and unjustifiable risk that the result will occur. The disregard must be a gross deviation from the norm. Failure to realize a substantial and unjustifiable risk that a result will occur. Circumstance Aware of the circumstances or hopes or believes the exist. Is aware of a high probability of the circumstances existence, unless he actually believes they dont exist. [NYPL, has no such willful blindness provision.] Aware of a substantial and unjustifiable risk created by the circumstances but you go ahead anyway.
Purposely
Knowingly
Recklessly
Conscious disregard of a substantial and unjustifiable risk (by engaging in such conduct).
Negligently
Failure to recognize a substantial and unjustifiable risk that a circumstance exists. (B) MPC 2.02: Listing of Mens Rea Terms From Most Culpable to Least Culpable: (1) Intentionally/Purposely: (a) C/L: A person commits the social harm of the offense "intentionally" if: (1) it was his conscious object to cause the result; or (2) if he knew that it was virtually certain to occur as a result of his conduct. (b) MPC: The MPC subdivides "intent" into its two alternative components; (1) "intent/purposely" and (2) "knowingly." (1) MPC Purposely: "A person causes a result purposely if it his conscious objective to cause the result, to engage in conduct of that nature, or he is aware of the existence of the attendant circumstances or hopes they exist" MPC 2.02(2)(a)(1) (2) MPC Knowingly: "A person knowingly causes a result if he is consciously aware that the result is practically certain to be caused by his conduct." MPC 2.02(2)(b)(ii) (c) NYPL: A person acts intentionally with respect to the conduct or result described in the statute, when his conscious objective is to cause such result or engage in such conduct. [NYPL 15.05]
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Failure to recognize a substantial and unjustifiable risk that he is engaging in such conduct.
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It is a violation of the due process clause to presume that a person intends the ordinary consequences of his voluntary acts; this would shift the burden of proof giving the D the burden to disprove. A judge instructing a jury may must tell them that "they may, but are not required, to presume." NYPL 165.55 allows the jury to presume. The legislature enacted this for the benefit of the prosecution because these states of mind are very difficult to prove. (2) Knowledge or Knowingly: (a) C/L: A person acts "knowingly" regarding a particular fact is he: (1) is aware of the fact; or (2) correctly believes that the fact exists; or (3) suspects that the fact exists and purposely avoids learning if his suspicion is correct. [(3) is called "willful blindness."] (b) MPC: A person acts "knowingly" as to an attendant circumstance (material element) if he is "aware" that the circumstance exists [MPC 2.02(2)(b)(i)], or if he is aware "of a high probability of its [the attendant circumstance] existence, unless he actually believes that it does not exist [MPC 2.02(7)]." (c) NYPL: A person acts knowingly with respect to conduct or a circumstance described by a statute defining the offense when he is aware that his conduct is of such a nature set forth in the statute or that such circumstances exist. The NYPL does not have a willful blindness provision. (3) Negligently (AKA Criminal Negligence): (a) C/L: A person acts in a criminally negligent manner if he should be aware that his conduct creates a substantial and unjustifiable risk of social harm. [AKA "gross negligence" or "culpable negligence."] Unjustifiable Risk: A risk is unjustified if the gravity if harm that might foreseeably result from the conduct multiplied by the probability of its occurrence outweighs the foreseeable benefit from the conduct. [US v. Carroll Towing] (A social utility test.) Degree of Risk: It must be substantial. Criminal negligence will not occur unless the benefits are greatly outweighed by the foreseeable risks; because the punishment is severe and results in loss of liberty and stigmatization of the bad guy so we must make sure he is culpable. Negligence as Objective Fault (Reasonable Person Standard): Negligence is judged objectively. The negligent actor is not blamed because he possessed a wrongful state of mind, but because he failed to live up to the objective standard of a reasonable person. The actors education, economic status, mental disabilities are not taken into consideration; blindness will make it just a blind persons standard. (b) MPC: Basically the same as the C/L; a person acts in a criminally negligent manner if he should be aware that his conduct creates a substantial and unjustifiable risk of social harm (material element). MPC substantial and unjustifiable risk: Is one that constitutes "a gross deviation from the standard of care that a reasonable person would observe in the actors situation." [MPC2.02(2)(d)] Actors Situation: This allows the court to interject more subjectivity into this objective standard (more-so than at C/L). The MPC leaves this intentionally ambiguous so that the court can determine what characteristics of the D should be incorporated into the reasonable person standard.
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Pro-Negligence: Negligence can be deterred so punishment for negligent conduct serves a useful purpose. Also, those who act negligently behave indifferently to the rights of others and, therefore, morally deserve punishment. Anti-Negligence: Those who act negligently do not choose to cause the harm, so they should not be punished. It is one thing to make them pay fines, but it is another to stigmatize and punish them because of their failure to live up to an objective standard (perhaps one they lack the capacity to satisfy). (4) Recklessness: (a) C/L: There are 2 different C/L definitions: (1) Holmess View [Minority C/L]: A person acts recklessly if he should be aware that he is taking a very substantial and unjustifiable risk. This is basically a heightened version of "criminal negligence." [Negligence = substantial and unjustifiable risk taking; Recklessness = very substantial and unjustifiable risk taking] Because recklessness involves objective fault, it is subject to the same "pro" and "anti" arguments as for negligence. See above. (2) Modern Definition [Majority C/L]: Most courts now provide that a person acts recklessly if he consciously disregards a substantial and unjustifiable risk that his conduct will cause the social harm of the offense. This definition requires that the actor subjectively be aware of the unjustifiable risk. (b) MPC: MPC [2.02(2)(c)]: "A person acts recklessly if he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct." The risk must be of such a degree as to be a gross deviation of the standard of conduct that a law-abiding person would observe. (5) Malice (in C/L only, not in MPC): (a) C/L: A person acts with malice if he intentionally or recklessly causes the social harm of an offense; the latter MR terms are defined above. Hypo: D threw a stone at V. The stone missed V but broke a window. D is charged with malicious damage to property. To prove D guilty the prosecutor can prove D (1) intended to damage the property or (2) recklessly damaged the property. The MPC only uses 4 MR terms: purposely, knowingly, recklessly and negligently. (6) Willfully: There is no standard definition of willful, it has been given many meanings. There can be an extreme difference between meaning depending on how the cases have interpreted the term. (a) C/L: Defined and intentionally or knowingly or can mean that the act was intentionally done in bad faith with bad motive or the intentional violation of a known legal duty. (b) MPC: MPC 2.02(8): An offense is committed willfully if a person acts "knowingly with respect to the material elements of an offense," UNLESS a purpose to impose further requirements appears. (C) Specific Intent versus General Intent The MPC abolishes the distinction between Specific and General intent.
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The MPC uses an elemental approach, i.e., you must prove that the D performed every element of the offense with the requisite Mens Rea. General Intent only requires the actor to commit the acts reus with a culpable or blameworthy state of mind. No particular mental state is required. Specific Intent offense requires proof of a particular state of mind, as set out in the definition of the offense. 1st try Specific Intent, if it is not a Specific Intent Crime then it is either a (a) General Intent or (b) Strict Liability Crime. (D) General Intent Any offense that requires merely proof of any culpable mental state, but which is not a specific-intent offense, falls under the umbrella of "general intent." It requires only a blameworthy state of mind. It can allow conviction for on the basis of a less culpable mental state (i.e. recklessness) It can designate any mental state (express or implied) to the acts of the offense. It does require proof of a mental state (not strict liability), but it does not fit into any of the specific intent categories listed below. Hypo: C/L Battery: "unlawful application of force to the person of another" Unlawful means "wrongfully," thus the MR is such that the offense must be committed in a morally blameworthy manner; this is a general intent offense Today Battery "intentional unlawful application of force to the person of another": This is still a general intent crime because the mens rea term does not fit any of the three types of "specific intent" noted below. (D) Specific Intent: Specific intent requires more than just moral blameworthiness, there must be a culpable mental state above and beyond a general intent offense. The MPC requires that the D committed very element of the offense with the particular state of mind required in the offense. In most cases, a "specific intent" offense is one that contains one of the following mens rea elements in its definition: (1) The intent to commit some future act that is not part of the actus reus of the offense; (2) A special motive for committing actus the reus of the offense; or (3) Awareness of a particular attendant circumstance.
The 3 types of Specific Intent Crimes Based on their MR Elements: (1) Intention by the actor to commit some future act, separate from the Actus Reus of the offense. Burglary: The AR is "breaking and entering the dwelling house of another at night." The MR is "intent to commit a felony therein." Is the mental state pertaining to an act (commission of a felony) that is not part of the AR of the offense? The crime is complete whether D actually commits the felony or not, but it is incomplete unless D has this "specific intent." (2) Proof of a special motive or purpose for committing the Actus Reus (this overlaps with (1)). Larceny: The MR is "the intent to permanently deprive the owner of the property" The AR is "trespassory taking and carrying away the personal property of another."
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This is a specific intent crime because the AR must occur with a specific motive; not simply to dispossess the other of property, but to permanently deprive him of it. Offensive contact with another with intent to cause them humiliation. (3) The actor must be aware of some attendant circumstances. "Receiving stolen property with knowledge it is stolen.": This is specific intent because the actor must be aware (have knowledge) of the attendant circumstances, i.e., that the property was stolen. (E) Transferred Intent Doctrine When the MR is directed at one person, but the AR goes to another person. (a) C/L: A person acts intentionally (see above) if the result of his conduct differs from that which he desired only in respect to the identity of the victim. (b-1) MPC 2.03(2)(a): Provides that the intent of "purposely" or "knowingly" causing a different result than the one originally planed transfers if the new result differs in only: (1) "...that a different person or ... property was injured [instead]," or (2) "That the injury originally intended would have been more serious than that actual injury caused." (b-2) MPC 2.03(3)(a): Provides that a person "negligently" or "recklessly" causes a result if (1) The "actual result differs from the probably result only in the respect that a different person or ...property is injured or affected, or (2) That the probable injury or harm would have been more serious or more extensive than that caused." (c) NYPL: Eliminates the need for the transferred intent doctrine. E.g.: NYPL 125.23 "...causes the death of such a person or a 3rd person." This language resolves all problems or unintended victims or bad aim. Hypo: D intends to assault P by throwing a rock at P. D misses and hits a window. Ds intent to assault P (a person endangering state of mind) cannot be transferred to an intent to hit the window (a property endangering state of mind). No transferred intent here. However, may be able to get D on being reckless toward hitting the window. (d) Policy of the Transferred Intent Doctrine: "Transferred Intent is used to assure that one is not punished too leniently" (F) Strict Liability [It does not require a bad state of mind.] Definition: An offense is "strict liability" in nature if commission of the actus reus of the offense, w/o proof of a mens rea, is sufficient to convict the actor. Often if a crime comes from the C/L, we presume it is not a strict liability offense. Malum Prohibitum: Conduct that is wrongful only because it is prohibited by law. Malum In Se: Conduct that is inherently wrongful. [Like the 15...oops 10 Commandments.] Generally strict liability offenses apply in public welfare offenses, but sometimes non-public welfare offenses are also strict liability.
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Public Welfare Offenses: Involve malum prohibitum offenses. Usually a minor penalty, fine or short jail time. A single violation of this social welfare usually violates the safety of many people. One example includes the transportation of explosives on a public highway. Non-Public Welfare Offenses: Only a few of these are considered strict liability. One example is statutory rape, in most jurisdiction one can be convicted even if he lacks the culpable state of mind, i.e., guilty even if you thought that she was of age. Constitutionality of Strict Liability: Strict liability offenses are not unconstitutional per se, but there is a presumption against it. "[T]he state may in the maintenance of a public policy provide ,,that he who shall do [acts] shall do them at his peril." Presumption Against Strict Liability: With statutes that are derived from the C/L, the court assumes there is a mens rea requirement even if it is not explicit. There is a presumption against strict liability. MPC 2.05: The code abolished strict liability except for "violations" for which imprisonment is never permitted. MPC Rule: If a criminal offense does not include a mens rea term, the prosecutor must still prove that the D acted either (1) purposely, (2) knowingly or (3) recklessly in regard to each actus reus element of the offense. US v. Gypsum: "[O]ffenses that do not contain a mens rea element have a generally disfavored status [and with crimes] having their origin in common law, an interpretative presumption exists that mens rea is required." Factors that Overcome the Presumption Against Strict Liability: Holdridge v. US (1) The statutory crime is not derived from the C/L. (2) There is an evident legislative policy that would be undermined by a mens rea requirement. (3) The standard imposed by the statute is reasonable and adherence is properly expected of a person. (4) The penalty is small. (5) The conviction does not gravely besmirch the defendant. VII. Statutory Interpretation/Construction of Mens Rea Terms That there is a Mens Rea is the Rule rather than the exception.
Questions of Interpretation arise when there is ambiguity in the required Mens Rea terms of the elements that make up the crime. If a statute is clear, the court may not go beyond the plain meaning. When the MR term was only moral blameworthiness, there was no problem because all that was required was a blameworthy state of mind. The main question is: Which Actus Reus Elements are Modified by Which Mens Rea Terms? (1) Legislative Intent: If the statute is not ambiguous, the courts are likely to go with the plain meaning (and may be unwilling to look at the legislative history). If the statute is ambiguous, the courts will look to the legislative history to determine the intention of the drafters. [It is more likely that there will be legislative history at the federal level then at the state level.]
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(A) Common Law:
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If the legislative doesnt give and answer, the courts may look to the purpose. They can interpret the statute to further its purpose. Often the legislative history is vague or non-existent, so the courts must look elsewhere. (2) Grammatical Approach: (a) Placement of Mens Rea Term in the Statute: Courts will look at the placement of the mens rea term in the statute. If the term is in front, then it can run all the way through the statute, to all the terms. (i) AR1, MR, AR2, AR3 The Mens Rea probably runs to AR2 and AR3. (ii) MR, AR1, AR2, AR3 The Mens Rea probably runs to AR1, AR2, and AR3. (b) The MR terms usually only modify conduct and result elements, not circumstance elements; especially when the MR term is at the beginning of the statute. (c) Punctuation: "With some statutes, punctuation is relied upon to indicate that a phrase set off by commas is independent of the language that precedes or follows it." (d) Parts of Speech: Mens Rea terms are adverbs; adverbs modify verbs. One can argue that the adverb modifies all the verbs. [Bobis dont like this one!] (3) Grading Elements: (C/L only, not is MPC or NYPL) Often, attendant circumstances serve as grading elements of a crime; defining the degree of the crime. One can argue that the mens rea should not modify this term because without it the action would still be a crime; just a lesser crime. Frequently, courts assume that, absent evidence to the contrary, Mens Rea terms in the definitions of the offenses do not apply to "attendant circumstances" elements of the crime; only the result and conduct elements. This grading element approach is the flip side of the legal wrong doctrine. (B) Model Penal Code: The MPC "abolishes strict criminal liability except for violations, for which imprisonment is never permitted." (1) MPC 2.02(3): *Default to recklessness; because its the easiest burden of proof.* When a criminal offense does not have a mens rea term in its definition, the prosecutor must nonetheless prove the D acted (1) purposely, (2) knowingly or (3) recklessly in regard to each actus reus of the offense. (2) Material Element (MPC 1.13): A material element is an element that does not relate exclusively to the statute of limitations, jurisdiction, venue or any other matter similarly unconnected with: (1) The harm or evil, incident to the conduct, sought to be prevented by the law defining the offense, or (2) The existence of a justification or excuse for such conduct. (3) MPC 2.02(4): A single MR term in the statute modifies every Material Element, unless a contrary purpose plainly appears. If a contrary purpose does appear: (1) When the element is material, then default to recklessness. (2) When the element is not material, it mya be strict liability. A contrary purpose can be found in the way a statute is written (grammar argument).
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The MPC dont care about the C/Ls not applying the MR to attendant circumstances. (4) Pathway Under the MPC: (1) Decide if it a violation. If yes, then no MR, it is strict liability. If no, go on to #2. (2) Then decide if it is a material element or not. (a) If NO: When there is no MR in the statute, it may be strict liability. (b) YES: Then there must be a MR term assigned to it. When the answer to #2 is YES, then we must decide what MR term to attach to it. (A) MPC 2.02(4): A single MR term modifies all material elements, unless contrary purpose plainly appears. (B) MPC 2.02(3): If no culpability, and it is a material element, then default to recklessness. (C) If it is a specific intent statute and (A) and (B) clash, then use (B) and default to recklessness. (C) New York Penal Law Approach: NYPL 15.15: (1) Sometimes there will be elements that do not require a mens rea. (This is dissimilar from the MPCs assault that requires a mens rea term for each element.) (2) When a mens rea term appears, it will run to each element, unless the intent to limit its application clearly appears. (Does not matter if element is material, like in MPC) (3) Presumption is against strict liability; mental culpability is required absent a clear intent by the legislature to impose strict liability. There is no mention of material elements because the NYPL allows strict liability. The D will always argue against strict liability: (1) When the punishment is severe. (2) When the statute is derived from the C/L. (3) When the punishment will gravely besmirch the D. The P will always argue for strict liability: (1) To require MR for every element is too high a burden and will actually defeat the purpose of the statute. (weak cause of NYPL presumption against strict liability) As a result, the legislature has made many elements strict liability, such as the weight of drugs. It takes a lot for the legislature to create a strict liability, thus if the dont do all this stuff, we assume they did not intend strict liability. VIII. Mistake of Fact (A) Common Law Mistake of Fact
Rule: "A D is not guilty of a crime if his mistake of fact negates the mens rea of the offense charged." Thus, a mistake-of-fact is not really a defense, but is used to negate the Mens Rea. A Failure-of-Proof Defense. Be careful, this mistake of fact can be used to negate both: (1) The broad meaning of mens rea (see general intent offenses), and (2) The narrow meaning of mens rea (see specific intent offenses). (1) Specific Intent Offenses [C/L]: A defendant is not guilty of a specific-intent crime if his honest mistake of fact negates the specific-intent element of the offense. The mistake need only be honest (does not have to be reasonable).
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If the mistake of fact does not negate the specific intent element of the offense, the crime is to be looked at as a General Intent crime for the purposes of the mistake doctrine. (2) General Intent Offenses [C/L]: A defendant is not guilty of a general intent offense if, as the result of his honest and reasonable mistake of fact, he committed the actus reus of the offense without a morally culpable state of mind, i.e., if he acted without a mens rea. The mistake must be reasonable and honest. RD: If the mistake of fact was unreasonable, then the D still acted with a culpable state of mind (mens rea) and that is sufficient to find one guilty for a general intent crime. Rule: A defendant is not guilty of a general intent offense if his mistake of fact was honest and reasonable. In contrast, a reasonable mistake of fact is usually a defense. [If the Ds mistake of fact was unreasonable then he acted with a culpable state of mind. If it was reasonable, then he did not act with mens rea.] This is a big difference between specific intent and general intent. Hint: If D says mistake is reasonable, it is a general intent crime. Hint: Usually used in sex crimes or crimes against family interests. (3) Exceptions: The Judge may decide to disregard the Mistake of Fact, if either the Moral Wrong Doctrine or the Legal Wrong Doctrine apply. (3-A) Moral Wrong Doctrine: In some instances, a court may convict a D of an offense even if his mistake of fact was reasonable; if that Ds conduct violates the moral wrong doctrine. [Judge decides this.] Rule: "There should be no exculpation for a mistake where, if the facts had been as the actor believed them to be, her conduct would still be immoral." Bell v. State 2 Requirements Necessary to Apply the Moral Wrong Doctrine: (1) The Facts: We look at the facts from the mistaken actors perspective, i.e., we assume the facts were as the D reasonably believed them to be. (Subjective) (2) The Moral Judgment: We look to see if the actors conduct was morally wrong (assuming the facts were as he believed them to be). Dont look at whether the actor believes his conduct to be morally wrong, but whether society would believe his conduct was morally wrong. (Objective) RD: If the actor commits a morally wrong act, that actor assumes the risk that the facts are not as he believed them to be, i.e., that his actions are not just morally wrong, but also legally wrong. The problem with the moral wrong doctrine is that the court is imposing morality on people. Separation of Powers gives only the legislature the power to impose morality. --Also, with this doctrine, the D gets no fair notice (3-B) Legal Wrong Doctrine: Less extreme than the Moral Wrong Doctrine. It is an exception to the reasonable mistake of fact for a general intent crime. Sometimes, a court will convict a D of an offense, even though his mistake of fact was reasonable, if the conduct violates the legal wrong doctrine. [This rule is the same as the moral wrong doctrine only we use the word "legal wrong."] Rule: "A person is guilty of a greater criminal offense "X," despite a reasonable mistake of fact, if he would be guilty of a different, albeit lesser, crime "Y," of the situation were as he supposed it to be." There must be grading elements (in order to have a lesser crime) We say that D assumed the risk that he was committing a greater crime than he was if he knew the attendant circumstances made him guilty of a lesser crime.
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MPC 2.04: Reduces the crime to the one the D thought he was committing. (4) Strict Liability Offenses: A mistake of law (reasonable or unreasonable) is never a defense to a strict liability offense. [MOL is irrelevant here.] RD: A SL offense requires no MR, therefore there is no element of MR to negate. (5) The MPC Approach: [There is no difference between specific and general intent.] MPC 2.04(1)(a): General Rule: A mistake of fact is a defense to a crime if the mistake negates the (MR) mental state element required in definition of the offense. Hypo: If the MR is recklessness, and the MR is negated by a mistake of fact (reasonable or unreasonable) that negates the Ds awareness that he is consciously disregarding a substantial and unjustifiable risk of harm to another; then the D gets off. Exception: This defense is inapplicable if the D would be guilty of a lesser offense had the facts been as he believed them to be. This is similar to the C/L legal wrong doctrine, however, in this case, the D will be punished at the level of the lesser offense (5) The NY Approach: [Same as the MPC.] NYPL 15.20: Mistake of fact will be an offense when it negates the culpable mental state required for the commission of an offense. IX. Mistake of Law (A) General Rule Subject to only a few exceptions, "Ignorance of the law is not an excuse." The law uses the words "mistake of law" interchangeably with "ignorance of the law." Rule: "In general, a mistake of law does not relieve an actor of liability for the commission of a criminal offense." [People v. Marrero; MPC 2.02(9).] There are 2 types of mistake of law: (1) Same Law Mistakes (2) Different Law Mistakes The legislature can make Mistake of Law a defense by writing it into the statutes. (B) Justifications of the Mistake of Law Doctrine
(1) Certainty of the Law: Because the law is definite, any mistake of law is inherently unreasonable.
Counter-Argument: This may have been true at C/L where most offenses were malum in se but not many criminal statutes involve malum prohibitum conduct or can be very complex; therefore, it can be reasonable that one would be unaware or confused by some laws. (2) Concern About Fraud: If mistake/ignorance of law were recognized as a defense, every D would assert ignorance or mistake and it would be very difficult to disprove the claim. Counter-Argument: The possibility of fraud exists in many places in the criminal law. Mens rea and insanity are easily subject to abuse, but these claims are still permitted because we trust that juries will be able to determine which claims are fraudulent.
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(3) Promoting Education of the Law: Holmes said, "[J]ustice to the individual is rightly outweighed by the larger interests on the other side of the scales." AKA, we want people to learn the law; to deter ignorance the law must apply strict liability principles as to knowledge of the law. Counter-Argument: Retributivists would say unless one chooses to do wrong they cannot be punished. If a person does not knowingly commit a wrong (or at least act unreasonably in learning the law) society has no basis for exacting retribution. (C) Exceptions to the Mistake of Law Doctrine: "Mistakes of Law that Negate the Mens Rea": Sometimes a Ds mistake of law negates an element of mens rea required in the definition of the offense. In this exception, the Ds mistake of law will usually relate to a law different from the one that he is being charged with. [e.g. Charged with bigamy, and mistaken as to the law of marriage.] (1) General Rule [MPC]: A D is not guilty of a specific-intent offense if his mistake of law, whether reasonable or unreasonable, negates the specific intent element of the crime charged. [MPC 2.04(1)(a)] This usually occurs when the statute requires some knowledge of some crime out of the criminal law. If knowledge that your conduct is illegal is not required as an element, you are left with the Authorized Reliance Doctrine. Rule: A different law mistake (reasonable or unreasonable) is never a defense to (1) a General-Intent or (2) a Strict Liability Crime. (2) Authorized Reliance Doctrine [MPC]: A person is not guilty of a criminal offense if, at the time of the offense, he reasonably relied on an official statement of the law, later determined to be erroneous, obtained from a person or public body with the responsibility for the interpretation, administration, or enforcement of the law defining the offense. (3) Due Process Clause: In rare circumstances, it offends due process to punish a person for a crime of which he is unaware at the time of his conduct. Lambert: D, an ex-felon convicted in LA, lived in LA. She did not know of the ordinance that required exfelons in LA to register with the police. She did not register and was prosecuted. RD of Lambert Court: The general ordinary ignorance-of-the-law-is-no-excuse rule is deep in our law, but the Due Process Clause limits its application. In Lambert, the court found that violated Due Process to convict the D in the absence of "actual knowledge of the duty to register or proof of the probability of such knowledge." Scope of Lambert: The due process clause is probably not violated unless 3 factors exist: (1) Omission: The "unknown" offense prohibits an omission. [The failure to register.] (2) Status: The duty to act must be based on a status condition rather than an activity. [Here, the presence in LA.] (3) Nature of the Offense: The offense is malum prohibitum in nature. This is not saying that ignorance of the law is an excuse. If she said, "I knew I had to register, but I didnt know it was a crime not to" then it would not be an excuse. (D) MPC MPC 2.02(9): The MPC does not generally recognize the Mistake of Law defense unless the definition of the crime spells out that the defense is recognized. "Neither knowledge, nor recklessness, nor negligence as to whether conduct constitutes an offense" Exceptions to the Rule: (The burden of proof for these exceptions is on the D.) (1) A Mistake of Law is a defense if: (a) It negates a material element of the offense, or
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(b) If the statute expressly provides for a Mistake of Law defense. (Not the norm!) These usually apply to different law mistakes. (2) A Mistake of Law is a defense if: (a) The statute is not known to the D and has not been published, or (b) The D reasonably relies upon an official statement of the law. The official statement can be a statute, judicial decision, or official interpretation. (E) New York Penal Law NYPL 15.20: (Basically Codifies the C/L) "A person is not relieved of criminal liability for conduct because he engages in such conduct under a mistaken belief that it does not, as a matter of law, constitute an offense, unless such a mistaken belief is founded upon an official statement of law." To Use this Official Statement of Law Exception: (1) The conduct must be allowed by the statute and the statute is later found to be erroneous. Mistake by the legislature, not the D. Statue must be found unconstitutional or to have typographical errors. (2) It does not matter if Ds mistake is reasonable or not. (3) Person must be authorized to give an official statement of the law and there must be some degree of formality to the statement. (letterhead, signature, etc...) X. Causation (Totally Different from MR, must be dealt with Separately) Only needed for "Result Crimes," Therefore only needed in the C/L; no causation is needed in MPC. [Very few statute deal with causation.] Based on Retributivist Theory. In result crimes, causation is either explicit or implicit: (a) Implicit: "unlawful killing of a human" Implicit in "killing" is that the actus reus must cause the social harm. (b) Explicit: "thereby causes the death of another person" This is explicit. For our purposes, Causation will only be an issue for Homicides and PI cases. Causation is divisible into 2 elements: (1) Actual Cause (Factual Cause), and (2) Proximate Cause (Legal Cause).
A person is not guilty of an offense unless he is an actual cause of the ensuing harm. (1) The But-For Test: Both the C/L and MPC say that the conduct is the actual cause of the prohibited result if the result would not have occurred but-for the actors conduct. 2 Steps in determining the "Actual Cause": (1) Identify the Relevant Conduct: Determine what is (are) the relevant voluntary act(s) committed by the D. If the case is based on an omission, determine what the omission is, and substitute that for the "voluntary act" in step #2. (2) Frame the Question Properly: Ask the question: "But for the Ds voluntary act(s), would the social harm have occurred when it did?" If YES: If the social harm would have occurred when it did even if D had not acted, D is not the actual cause of the social harm and, therefore, is not guilty of the offense. If NO: If the social harm would not have occurred when it did but-for the Ds voluntary act(s), D is the actual cause of the social harm, in which case you must decide whether there was also Proximate Cause.
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(2) Multiple Causes: There can be multiple actual causes of a result. (a) When 2 Ds acting independently caused the death, and the 2nd injury accelerated the death. Then both Ds pass the but-for test and both are the cause of the social harm. (b) When 2 Ds acting independently caused the death, and the 2nd injury did not accelerate the death. Then the but-for test is not passed by D2 who caused the 2nd injury. Thus, D2 is did not cause the social harm here. "But-for D2s action, the victim still would have died when he did." (c) If 2 Ds independently injure the victim (2 non-lethal injuries), and the combination of the 2 injuries is lethal. Then the but-for test shows that both Ds caused the injury. (d) If 2 Ds are acting in concert to cause the social harm, both Ds are the but-for cause of the social harm. (e) Concurrent Sufficient Causes: In rare circumstances, the "but-for" test may fail to reach a morally sensible result. This occurs when 2 acts, both of which (alone) were sufficient to cause the resulting harm to occur when it did, occurred concurrently. The only time we dont use the but-for test in Criminal Law. Substantial Factor Test: "Was Ds conduct a substantial factor in the resulting harm?" If so, then it was the actual cause of the harm. (B) Proximate Cause Only in C/L: MPC does away with it. Often, proximate cause is not even and issue. It is only an issue when something occurs between the act and the social harm. Rule: A person who is the actual cause of a resulting harm is not legally responsible for it unless he is also the proximate cause of the harm. Actual Cause determines potential candidates and proximate cause sorts them out and decides who among them ought to be held causally accountable for the harm. Proximate Cause is not empirical like actual cause, instead, it is a way to decide whether it is morally just to hold a person causally responsible for the harm. Direct Cause: Look to see if there were any actual causes of the result that occurred after the Ds voluntary act. If not, D is the "direct cause" of the social harm. Ds Act----->----->----->----->----->------>----->----->----->-----Social Harm (anything intervening here?) (any other actual causes?) (1) Intervening Causes: An "intervening cause" is an actual cause of social harm that arises after the Ds causal contribution to the result. They Can Include: (1) Acts of God or (2) Acts of Intervening 3rd Parties. (A) Role of Intervening Causes: An intervening cause does not necessarily relieve a D of causal responsibility for the resulting harm. At C/L many factors are taken into consideration. These factors include: (1) Nature of the Intervening Cause: We determine whether the intervening cause was "dependant" or "independent" of the Ds act. (B) Dependent Intervening Act: [Responsive] A dependant intervening act, is an act that occurs in response to the Ds earlier action. Generally, the dependant intervening cause would not have occurred without the Ds act. This does not cut-off liability for the D (AKA D is still responsible), unless: (a) The dependant intervening act was no only unforeseeable, but freakish. [e.g. Helicopter landing on ones head.] (C) Independent Intervening Act: [Coincidental] An independent intervening act, is an act that would have come into play in the absence of the Ds conduct.
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This does not cut-off liability for D (AKA D is still responsible), unless: (a) The independent intervening act itself was foreseeable to a reasonable person in the Ds position. (D) A De Minimus Contribution: The law will not deal with trivialities in proximate cause. [The law will only treat a substantial intervening cause as a proximate cause.] If a wrongdoers contribution is too minor, it does not justify criminal punishment. Only when the Ds act made more than a De Minimus contribution, can the state argue that the D was a contributory cause. (2) Intended Consequences Doctrine: [The Ds Mens Rea.] Rule: In general, a defendant is the proximate cause of the result, even if there is an intervening cause, if the result was intended by the D. RD: We are willing to find causation if the D intended the result to occur. "The D got what he wanted in the manner he wanted, only not exactly as D planned it." There is much less willingness to find causation in non-intentional crimes (fairness). Sometimes, unforeseeable coincidences may cut off causation even if the D intended to cause the harm. But, unforeseeable coincidences will not cut off causation where the D intended the harm, and then got it in the same way he intended. [Kid giving poison, not nurse.] (3) Apparent Safety Doctrine: When the forces that have been set in motion by the D have come to rest, then causation has been cut off. (4) Free, Deliberate, and Informed Human Intervention: In general, a D is not the proximate cause of a result if a free, deliberate, and informed act of another human being intervenes. RD: This doctrine is base on the retributivist theory that free will is a critical factor in the determination of moral responsibility for social harm. When a person acts of his own free will, he should accept full responsibility for the results of his actions. [This may excuse an original actor of causal responsibility, because the latter party must accept full responsibility for his free, deliberate, and informed actions. (5) Victims Preexisting Weakness: The D may have to take the victim as he finds him if there is a preexisting physical condition. (5) MPC No Proximate Cause in the MPC. MPC 2.03(3)(b): This eliminates Proximate Cause. It permits the conviction of a D who is an actual cause of the result, if the prosecutor proves that the "actual result is not too remote or accidental in its occurrence to have a just bearing on the actors liability." Here, the jury gets to decide whether or not it is fair to cut off causation: (a) They can look at what occurred b/w the act and the harm. (b) They can decide via culpability. Most states, including NY, still use the C/L. XI. Concurrence of Elements (A) General Rule:
(1) Rule: A person is not guilty of an offense unless the prosecutor proves beyond a reasonable doubt not only that the D committed the actus reus with the required mens rea, but that the actus reus and mens rea "concurred," i.e., to be guilty, the D must possess the mens rea of the crime when he committed the actus reus. This "concurrence principle" is rarely codified, and if it is it is not referred to as concurrence.
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(2) MPC 1.13(5): Defines conduct as an act or omission and its accompanying state of mind." (3) Application of the Rule: There is no concurrence if the D had the mens rea of the offense before, but not during, the commission of the act. (AKA the D must have the MR during the act.) (4) Act v. Social Harm in concurrence analysis: The critical issue is whether the Ds act (or omission) concurs with the MR, and not whether the social harm concurs with the MR. (5) Actus Reus Preceding the MR: The requisite of concurrence is lacking if the actus reus precedes the MR. (B) Multiple Voluntary Acts: Special Problem of "Concurrence" A problem arises when a person commits 2 voluntary acts, divisible in time, and there is no reason to believe that he possessed the MR at the time of commission of one, but not both, of the acts. If it turns out that only one of the acts caused the social harm, the prosecutor must prove that the MR concurred w/ the particular act that caused the social harm. XII. Criminal Homicide (1) C/L Homicide: The English C/L defined "homicide" as "The killing of a human being by a human being." In American C/L, it is "the killing of a human being by another human being." Thus, the English Rule treats suicide as a form of homicide (the American C/L does not). The term homicide is a legally neutral term. [It can be justifiable, excusable, or criminal.] What is a Human Being at C/L? (A) Life Begins: A fetus is not a human being until it is born alive. [Thus, not guilty of a criminal homicide if you cause a fetus to be stillborn.] NYPL and MPC has kept this born-alive requirement. (B) Life Ends: A person is legally dead [therefore ceases to be human being] when there is a total stoppage of the circulation of the blood and a permanent cessation of the functions of respiration and heart pulsation. Brain Death: The C/L definition is unrealistic in modern times. Life support machines can artificially maintain heart and lung activities for those who have lost the spontaneous capacity to perform these functions. Thus, many states have modified the C/L definition to include, "that a person is legally dead when a person experiences an irreversible cessation of breathing and heartbeat (C/L definition), or when the person suffers from "brain death syndrome," which occurs when the whole brain loses capacity to function. (C) Year and a Day Rule: At C/L, a homicide prosecution may only be brought if the victim dies w/in one year and a day of the injury inflicted by the accused. RD: Back then, courts were concerned that if the death occurred too long after the initial attack, there was too great a possibility that it was the result of natural, rather than criminal, causes. Therefore, it was unfair to hold the D responsible for the death. Modern Approach: Today, a persons cause of death is much more easily ascertainable than it was a century ago. Also life support machinery can keep someone alive for much more than a year and a day; this could frustrate criminal prosecutions. Thus, many states have abolished this rule.
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(2) C/L Criminal Homicide: Definition of Criminal Homicide: A criminal homicide is a homicide committed w/o justification or excuse. In early English history, criminal homicide was a single offense, punishable by death. Later, the offense was divided into (1) murder and (2) manslaughter. In England, manslaughter was a statutory non-capital offense. [In US, it is a C/L offense.] (A) Murder: C/L murder is "the unlawful killing of a human being by another human being with malice aforethought" (1) Aforethought: Originally the term meant that the actor thought about the killing beforehand, i.e., that he premeditated it. However, over time the term has lost its importance except as a reminder of the obvious: "The malicious mental state must occur before or at the time of the homicide, rather than after the killing." (2) Malice: A person acts with malice aforethought if he unjustifiably, inexcusably, and in the absence of any mitigating circumstances, kills a person with any one of the 4 mental states: (1) The intention to kill a human being, or (2) The intention to inflict grievous bodily injury on another, or (3) An extreme reckless disregard for the value of human life (AKA depraved heart murder), or (4) The intention to commit a felony during the commission or attempted commission of which a death accidentally occurs ("felony murder rule"). (B) Manslaughter: At C/L, manslaughter is "an unlawful killing of a human being by another human being without malice aforethought. Manslaughter can be divided into 2 categories (1) voluntary and (2) involuntary. They used to be punished alike, but today voluntary manslaughter is a much more serious offense. (1) Voluntary Manslaughter: It is an intentional killing, but one in which the actor takes a life in "sudden heat of passion," as the result of "adequate provocation." (2) Involuntary Manslaughter: An unintentional killing constitutes a involuntary manslaughter if the homicide occurs in one of two ways: (a) Criminal Negligence: If the result of a lawful act performed "in an unlawful manner, and without due caution and circumspection." This means that the killing occurred in a criminally negligent (AKA reckless) manner. (b) Unlawful-Act Doctrine: A homicide is manslaughter if it is the result of the commission of an unlawful act. (AKA "misdemeanor-manslaughter rule") (C) Murder v. Manslaughter: (1) Key Difference: Murder involves killing w/ malice aforethought, whereas manslaughter does not have malice aforethought. Thus nearly all litigation in criminal homicide prosecutions pertain to the actors Mens Rea. (2) Intentional Killings: An intentional killing can constitute either murder or manslaughter. It is murder unless the killing occurs in "the sudden heat of passion," in which case it is manslaughter. (3) Unintentional Killings: An unintentional killing can constitute either murder or manslaughter. 3 or the 4 categories of "malice" (see above) involve unintentional killings. (a) recklessness v. negligence: Generally, a reckless killing is murder, whereas a criminally negligent killing is manslaughter
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(b) accidental killings: An accidental killing does not constitute criminal homicide unless it occurs during the commission of a wrongful act. If the death occurs during a felony it is murder, if the death occurs during a misdemeanor it is manslaughter. (3) 4 Types of C/L Murder (Under C/L Criminal Homicide) (1) Murder: Intent to Kill: (A) General Rule: At C/L, an intentional killing that is unjustifiable (not committed in self-defense), inexcusable (not committed by an insane person) and unmitigated (not in a sudden heat of passion) is murder. (B) Proving Intent: (1) Natural and Probable Consequences: Until recently, the jury was often instructed that "the law presumes that a person intends the natural an probable consequences of his voluntary acts." (a) This violates due process because it shifts the burden of proof of intent from the prosecutor to the D. (2) Deadly Weapon Rule: A corollary to the natural and probable consequences inference. It says that the jury may infer an intent to kill of the D intentionally uses a deadly weapon directed as a vital part of the human anatomy. (jury may "infer" not "presume") (C) "Willful, Deliberate and Premeditated" Formula: The homicide statutes divide murder into degrees. Generally: (1) First-degree murder involves "a willful, deliberate, premeditated killing" whereas, (2) A second-degree murder involves an intentional killing that is not "willful, deliberate, or premeditated." (a) Willful: In murder statutes it means "intentional." (b) Premeditated: To think about beforehand. (c) Deliberate: To measure or evaluate the major facets of a choice or a problem. To satisfy deliberation, one would have to premeditate for longer than an instant. (C-1) Premeditation and Deliberation: (a) Twinkling of an Eye Jurisdiction: Here, no distinction is made between Premeditation and Deliberation. A D need only think about a killing an instant before the killing in order to premeditate. "A D needs no more than a brief moment of thought" "The time required to establish premeditation may be of the shortest possible duration and may be so short that it is instantaneous." Any intentional killing is therefore potentially premeditated. This allow she jury the privilege of finding Murder II if they want to. This view undermines the intent of the degree structure of murder, which shows that a premeditated murder is worse than a spur of the moment murder. (b) 2nd Look Jurisdiction: The other end of the spectrum from a ,,twinkling jurisdiction In this jurisdiction Premeditation and Deliberation are given independent significance. Premeditation: Involves the quantity of time. Deals with the quantity of time taken to think about the killing beforehand. You can premeditate without deliberating, e.g., when your thought process is disturbed (incapable of cool calm reflection). Deliberation: Involves the quality of the thought process. Measuring and evaluating the major facets of what you are going to do. Not just thinking about the killing (premeditation), but also weighing options and going ahead with it irregardless.
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Does not matter how mush time you spent, only the quality of the thought process. You cannot deliberate w/o premeditating. You cannot deliberate instantly (like twinkling), it takes sufficient time to deliberate. In some states, diminished capacity can play a role in deliberation. It may negate the ability to deliberate because the D is unable to maturely and meaningfully contemplate the gravity of the act. In a 2nd look jurisdiction, the D must have time to (1) form intent and (2) turn the matter over in his mind and give the matter at least a 2nd thought. (C-2) Proving Premeditation and Deliberation: The following factors can be used to prove premeditation and deliberation based on inferences and circumstances. (1) Whether there was provocation by the deceased. (2) The conduct and statement of the D before the killing. (3) Threats and declarations of the D before and during he killing. (4) Ill-will and previous problems between the parties. (5) The dealing of lethal blows after the deceased fell and was helpless. (6) Evidence that the killing was done in a brutal manner. (7) The nature and number of the victims wounds. BOBIS: This distinction b/w premeditated and not premeditated, is not such a good one and does not always lead to just results. The guy who mercy killed his dad and the child beater killer. Who was really more culpable? (2) Murder: Intent to Inflict Grievous Bodily Injury: (A) Rule: The malice aforethought is implied if a person intends to cause/inflict grievous bodily injury to another, but death results. (In states that grade murder, this is almost always 2nd degree murder.) (B) Grievous Bodily Injury: ("great bodily harm" or "serious bodily injury") An injury that must be grave, not trivial, but need not be one which may normally result in death. It is an injury that gives rise to the apprehension of danger to life, health, or limb. "An injury that imperils life" or "an injury that is likely to be attended with dangerous or fatal consequences." Examples Include: (1) loss of consciousness (2) concussion (3) bone fracture (4) loss or impairment of any organ (5) wound requiring extensive suturing (6) serious disfigurement A person who unjustifiably and inexcusably intends to cause these injuries is guilty of murder if the victim dies as a result of these injuries. This is usually an easy to case to prove because if a D uses a deadly weapon then express malice is easy to find. If no express malice, the wounds directed at non-vital parts of the body, then the D has still acted with extreme recklessness (another version of implied malice); and under Extreme Recklessness/Depraved Heart Murder the D would still be found guilty of murder. (3) Murder: Extreme Recklessness (Depraved Heart) Murder: In states that separate murder into degrees this type of murder is usually 2 nd degree murder.
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(A) Rule: A person whose conduct manifests an extremely high degree of indifference to the value of human life (acts in an extremely reckless fashion, or with a "depraved heart") acts with malice aforethought. It may be said that the D ,,as good as intended to kill the victim. Examples: (1) Intentionally shoots a firearm in a crowded bar (Register, 1983) (2) Speed in bad weather while voluntarily intoxicated. (3) Playing Russian Roulette. (4) An Omission: A parent not feeding her kid for 2 weeks. (B) Rule of Extreme Recklessness: "A person is reckless is he "is aware of yet consciously disregards a substantial and unjustifiable foreseeable risk of harm to human life (risk of death)." If the risk of death is great, there is no justification, and the D proceeds anyway, then the D is guilt y of murder. (The C/L in these circumstances implies malice.) [Some courts may allow mitigation to manslaughter if the D was not aware that his conduct was unjustifiably risky. This is because the callousness needed to connote implied malice is missing.] (4) Murder-Felony: (4) 3 Types of C/L Manslaughter (Under C/L Criminal Homicide) (1) Voluntary Manslaughter: Provocation ("Sudden Heat of Passion"): (A) Rule: An intentional, unjustified, inexcusable killing, which is ordinarily murder, can be mitigated to [voluntary] manslaughter if it is committed in the "Sudden Heat of Passion" as the result of "Adequate Provocation." (Mitigation of the offense to manslaughter.) This is a partial defense, the D is still guilty of manslaughter and does not get to go to Disney Land. [On rare occasions this defense can also mitigate other forms of malice aforethought where the D is provoked to inflict grievous bodily harm upon another or to act in an extremely reckless manner; in which death unintentionally results.] (B) 4 Requirements for this Defense of Provocation "Sudden Heat of Passion": (1) The D must have acted in the heat of passion. (State of Passion) (2) The Passion must have been the result of (adequate provocation.) (3) The D must not have had a reasonable time to cool off. (Suddenness) (4) There must be a causal link between (1) the provocation, (2) the passion and (3) the homicide. (Causal Connection)
(1) The Heat of Passion: The D must kill while in the "heat of passion." Anger is the usual emotion, but the term includes many different emotions such as fear, jealousy and wild desperation. The term passion is in no way limited and is open to wide interpretation. "Any intense vehement emotion." (2) Passion Must Have Resulted from Adequate Provocation: (A) Rule: One cannot claim this defense simply because they were provoked. The provocation must be such that it might "inflame the passion of a reasonable man and tend to cause him to act for the moment from passion rather than reason."
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AKA It might cause an "ordinary man, of fair average disposition, liable to act rashly or without due deliberation or reflection, and from passion, rather than judgment." The C/L used rigid guidelines and a fixed list of categories to meet this standard. Modern law has done away with these strict guidelines and the courts have generally held that what constitutes adequate provocation should be left to the jury to decide. (B) Ordinary Person Standard: Jurors are instructed that provocation is sufficient to mitigate to manslaughter if it "would render any ordinary prudent person for the time being incapable of that cool reflection that otherwise makes it murder." Or if it would: "Render ordinary men, of fair average disposition, liable to act rashly or w/o due deliberation or reflection, and from passion, rather than judgment." (C) General Trend: The trend is to incorporate many of the Ds characteristics, but not ones that relate to any of the Ds subjective characteristics that relate to reduced self-control. (D) Words Alone Rule: One C/L category that has remained is that words alone are insufficient to constitute adequate provocation. It does not matter if they are (1) informational words ("I slept with your wife.") or (2) defamatory words (You are a dirty whore.") they are still insufficient to constitute adequate provocation. The courts are slowly changing n this stance because they realize that sometimes insulting words can be more inflammatory than aggressive actions. MPC: The words alone rule is not recognized in the MPC. (E) Reasonable provocation is measured as against a "Reasonable Person.": In most cases the court prefer the term Ordinary Person, not reasonable person. Generally, we mean of person of average disposition, i.e., not exceptionally belligerent, sober, and of normal mental capacity. On some occasions, the jury is instructed to take into consideration the Ds subjective characteristics. For example, does one possess the degree of self-control as would a normal person of the Ds Sex and Age? The problem with this allowance is how far the subjectivity should be allowed to go. This is a risky situation because the court does not want to send the message that you can get way with killing if you have a diverse background or other extenuating circumstance. (F) Dead Mans Rule: AKA Mis-Directed Retaliation. The one who is killed, must be the one who caused the provocation. The dead person cannot be an innocent bystander who id nothing wrong.
(3) Cooling Off Time: The provocation defense includes the "sudden heat of passion."
(A) Rule: This defense is unavailable if a RP would have cooled off between the time of the provocation and the time of the murder. This element is left for the jury to decide. This defense is not allowed for someone who was subjected to minor acts of provocation that caused him to boil over. Nor to someone who had time to after the provocation, but used that time to brood the anger and become even angrier. (B) The trend in the modern courts: Has been more sympathy to those who were provoked and take into account more than just time that has elapsed. Thus brooding may be allowed as a defense. (4) There must be a Causal Link between the (1) provocation, (2) passion and (3) homicide. If D calmly plans to kill V. and at the time of the planned murder, D finds V in bed with Ds wife and angrily decides to kill V. Then D is still guilty of murder (not manslaughter) because even though the
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observation of adultery is sufficient provocation along with the Ds high emotion at the time. The court feels that the preconceived design to kill, not the provocation, was the impetus for the homicide. Rationale of the "Heat of Passion" Doctrine: ,,Justification versus Excuse: (1) Provocation as Justification: Focuses of the act. "That the victim did me such injury, I was entitled to retaliate." "The provoker-victim partially deserved to die." When man sees adultery with wife, he is protecting his property. At time when men were honourable, they were expected to respond by inflicting proportional retaliation on the perpetrator o injustice. [So provokers deserved to be harmed, but homicide was too much; thus it was only a partial justification.] Dead Mans Rule: The victim must be the cause of the provocation.
(2) Provocation as Excuse: Focuses on the actor. "The provoker is partially responsible because he roused
a violent impulse or passion in me such that it wasnt truly or merely me "acting of my own accord." "The provoker-victim did not deserve to die, but the culpability of the actor is reduced because of the provocation which understandably undermined the actors ability to control his conduct." Remember: One can be justified in becoming angry, but this has no effect whatsoever on the justification of a homicidal act arising from this anger resulting from the provocation. Courts realize that one who kills in the sudden heat of passion is less morally blameworthy than one who kills in the absence of such influence. The bad act is not caused by a deficiency in the Ds character but by the extraordinary character of the situation. AKA Voluntariness: A person influenced by heat of passion, does not act as voluntarily as some one who does not act from provocation. The provoked actor may lack sufficient free choice to be held fully accountable for his actions. Burden of Proof: Provocation is a Failure-of-Proof defense. That is, it negates the "malice aforethought" element of murder. Thus the D need only satisfy his burden in raising the issue and then it is up to the prosecution to prove beyond a reasonable doubt that it was not a sudden heat of passion homicide. (2) Involuntary Manslaughter: Criminal Negligence (A) General Rule: A person who kills another person in a criminally negligent manner is guilty of involuntary manslaughter. This offense often blurs into the "depraved indifference reckless murder." (3) Manslaughter: Unlawful Act (Misdemeanor-Manslaughter) (A) General Rule: In an analogue to the felony-murder rule, a person is guilty of involuntary manslaughter if he kills another person during the commission or attempted commission of an unlawful act that does not otherwise trigger the felony-murder rule. Not all jurisdictions recognize this rule. (B) Broad Use: Some state apply the doctrine to all misdemeanors., and any felony excluded from the felony-murder rule. [Some jurisdiction even allow this for acts that are immoral even if not illegal.] (C) Limitations: Some jurisdictions limit this rule to mala in se misdemeanors (such as petty theft), or to dangerous misdemeanors (i.e. offenses entailing "a reasonably foreseeable risk of appreciable physical injury.") (5) Criminal Homicide (The MPC): (A) Criminal Homicide: The code provides that a person is guilty of criminal homicide is he takes the life of another human being purposely, knowingly, recklessly, or negligently. The Code Divides Homicide into 3 Categories: (1) Murder:
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The code does not divide murder into degrees, does not use "malice aforethought" A criminal homicide is murder if the killing is committed: (1) Purposely or Knowingly (Like C/L intent to kill.) (2) Recklessly under circumstances manifesting extreme indifference to the value of human life (Like C/L Depraved Indifference Murder.) (3) The Code abandons the felony-murder rule, however, it provides that reckless indifference to human life can be presumed if the person causes a death during a felony, thus (2) encompasses the C/L felony-murder rule. (2)Manslaughter: Criminal Homicide constitutes manslaughter in 2 circumstances. (1) Recklessness: A homicide is manslaughter if it is committed recklessly but under circumstances not manifesting extreme indifference to human life. [Thus, in code must be aware to be convicted, at C/L need not be aware.] (2) Extreme Mental or Emotional Disturbance: A person is entitled to raise the affirmative defense of "extreme mental or emotional disturbance" which will reduce the offense to manslaughter if there is a "reasonable explanation of excuse" for the disturbance that led to the killing. This applies even if no provocation at all (no less adequate provocation). This is a subjective standard. The reasonableness of the explanation or excuse should be determined from the vantage point of a person in the Ds situation "under the circumstances as he believes them to be." Negligent Homicide: A criminally negligent killing (C/L Manslaughter) is the lesser offense of "negligent homicide" (from the C/L) under the code.
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