Law 230: Criminal Law Professor Angela Harris Fall 2004 Discussion of Final Exam. General Comments

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1 Law 230: Criminal Law Professor Angela Harris Fall 2004 Discussion of Final Exam General Comments I was pleased with the overall quality of the exams this semester. This exam was more directed than the traditional law school exam, which usually involves a complicated fact pattern and simply asks you to analyze the responsibility of the parties. The more directed style allowed me to target your knowledge of particular issues better. Obviously, question 1 focused on your ability to work with the Model Penal Code; question 2 focused on your ability to work with the common law tradition. The two parts were nearly equally weighted, although question 2 was worth slightly more points than question 1. Interestingly, many of you did much better on question 1 than question 2, or vice versa. Three general problems I noticed in many exams: (1) Making up (wrong) law in order to have a definite answer, rather than just identifying questions of law that need to be resolved. Rather than inventing law for Zeb, for instance, it is better to say that you just don t know what the rule is, but given the common law tradition here are some of the possibilities. (2) Wanting to treat questions of fact for the jury as questions of law for the court to decide. Many of you in question 2, for example, tried to resolve the issue of which homicide crimes Gloria had committed, when the question asked you only whether the jury should be instructed on various crimes. Remember, as we discussed at the beginning of the class, the standard for sending an issue to the jury is only whether a rational jury could come to a particular verdict, and the standard is very deferential. (3) Not including enough detail in your answer. The difference between a P and a HH did not turn on whether you understood the basic workings of the MPC and the common law; everybody seems to have taken this basic knowledge away from the class. The main difference was to what degree you could identify and articulate subtler issues, and suggest alternative ways of resolving them. Part 1 Again, this question was mostly about (1) being able to read the MPC correctly (not a challenge for most of you) and (2) being able to apply it to a particular fact situation, which involved a lot of issue spotting and articulation. (Issues of organization were resolved for you by the form of the question.) Some of you chose to address the section 213 issues first and some the section 212 issues first. Since the two sets of issues were interdependent, either order was fine. Some of you made the assumption that all the young women were over 18; others did not. Either way was fine, as long as you noted that there was an issue as to their age and that the facts did not provide the answer. Question 1

2 I ve written out the analysis for this question in outline form to show you one useful way of mapping out doctrinal problems. Using actus reus and mens rea as the basic organizing principle, you can order your discussion of the statutory elements of the crime and discuss each one in turn. I. Section 212 crimes A. Section 212.1: kidnapping. 1. Actus reus issues a. Unlawfully (1) Since unlawfully is defined as including deception, it will be fairly easy to prove this. Also, if the girls were under 14 (unlikely, given the facts), it is also unlikely they had their parents or guardians supervision; but more research is necessary on this point. b. Did Smith remove or confine anybody? (1) Do such actions require physical force? The fact that unlawfully is defined as including force, threat, or deception suggests not. However, Smith could argue that the link between his behavior and the result was too indirect and remote. (a) Remove. Did Smith s promises of a job really remove the young women? He can argue they left the former Soviet Union of their own accord. (b) Confine. Did Smith s threat to expose them to torture by the federal government if they contacted the authorities have the effect of confining them? He can argue not; the facts suggest they were not physically confined. (c) In a place of isolation : We need more facts to determine whether this element can be met. It appears that the young women were free to come and go since they were receiving a stipend. c. Mens rea issues (1) Subsection (b). Possibly Smith had the purpose of facilitating commission of a felony, if we can make out a claim as to one or more of the felony sexual offenses, discussed below. Some of you also creatively pointed out that the Model Penal Code punishes prostitution and related offenses (section 251.2). These crimes are mostly misdemeanors, but some are third-degree felonies. (2) Subsection (c). Possibly Smith had the purpose of forcibly raping the women, which could involve pain and thus count as infliction of bodily injury. He could argue there is no evidence to support this. (3) Subsection (c). Possibly Smith had the purpose of terrorizing his victims. This term is undefined in the 2

3 statute, although threats of torture might qualify; this might ultimately be a question of fact for the jury. d. What degree? Probably second degree; there seems to be no evidence that the women were not voluntarily released alive and in a safe place prior to trial. 2. Section 212.2: felonious restraint. a. Actus reus. (1) Section a: Did Smith restrain anyone unlawfully in circumstances exposing them to risk of serious bodily injury? (a) (b) Restrain : See discussion. Unlawfully : Does this mean the same thing here as it did in section 212.1? If so, then since Smith deceived (and/or lacked parental consent), we can assume his restraint, if any, was unlawful. (c) Risk of serious bodily injury : Serious bodily injury is defined in section 210.0(3). Several of you mentioned the threat of sexually transmitted diseases, and noted we need more research as to this point. Otherwise, even if we can establish rape or some of the other sexual offenses, it is hard to say that they inherently create a risk of serious bodily injury as defined. (2) Section b: Did Smith hold another in a condition of involuntary servitude? (a) Involuntary servitude is not defined. Many people just assumed that sex slavery, which is what this fact situation looks like, would of course be involuntary servitude. But the facts are murky; it looks like there was some sort of reluctant submission or consent for a while before the victims finally rebelled. Does this really create involuntary servitude? Another murky fact is that the young women were apparently paid; perhaps the presence of payment would make the transaction voluntary. b. Mens rea. (1) Did Smith act knowingly? He could argue he was not practically certain the women were restrained or held in involuntary servitude; he thought they were willing participants. Several of you mentioned the relevance of section 2.02(7); perhaps we can show Smith was living in denial about the effect of his threats. 3. Section 212.3: false imprisonment a. Actus reus (1) Did Smith restrain anyone? See discussion. 3

4 (2) Was the liberty of the young women substantially interfered with? This can probably be argued either way. b. Mens rea (1) Did Smith act knowingly? See discussion. 4. Section 212.4: interference with custody a. Some of you analyzed this section, noting that the young women could be under 18 and there is no indication that Smith contacted their parents, guardians, or other lawful custodians. b. Actus reus: The prosecution could certainly argue that Smith enticed the victims, though takes is unlikely. c. Mens rea: For knowing, see discussion. Smith probably can be proved to have acted recklessly, with conscious disregard of a substantial risk of the effects of his deception. d. Affirmative defenses: (1) Some of you noted that Smith could argue that he was really improving the lives of these poor young women by bringing them to the United States. Since this is a subjective standard, if Smith truly believed the young women were in danger in their home countries, this looks like a good defense. (2) Smith could also argue (depending on the age of the women) that he lacked purpose to commit a criminal defense and that the young women were not enticed. This will be a question of fact for the jury. (3) If the young women are below 18, there is a presumption that Smith knew their ages or was reckless as to their ages. It s likely this will be a rebuttable presumption that Smith can challenge. (4) Another question of fact will be whether Smith acted with knowledge or recklessness disregard that his conduct would cause serious alarm for the child s safety. The prosecution has a good case here, which means the offense will be a felony rather than a misdemeanor. e. Custody of committed persons : We have no facts to support this claim, though of course we could investigate further. 5. Section 212.5: criminal coercion a. Actus reus. (1) This sounds promising: Smith arguably threatened to (b) accuse the women of a criminal offense (being terrorists) and (d) cause an official to take action (detaining them at Guantanamo Bay). The prosecution could also argue that he (c) threatened to expose the secret that the women were (apparently) in the United States illegally, and arguably revealing this fact would expose them to hatred. b. Mens rea: (1) Purpose : The prosecution could argue Smith had the 4

5 purpose to restrict their freedom of action to their detriment. Smith could argue he had no such purpose, but given his threats this will be a better argument for the prosecution than the defense. (2) Unlawfully : Does this word mean the same thing as in section 212.1? Or does it simply mean without privilege, i.e. Smith is not a police officer? c. Affirmative defense: (1) Smith s beliefs: (a) Could Smith argue that he believed the accusation that the women were terrorists to be true (unlikely)? (b) Could he argue that the secret was true? More (c) promising. Could he believe that the proposed official action was justified (if the official action includes torture, unlikely)? (2) Smith s purpose: In any case, the defense also needs to prove that Smith s purpose was limited to compelling the other to behave in a way reasonably related to the circumstances which were the subject of the accusation... This does not seem to be met on the facts; Smith s purpose included getting the women to be concubines for him and his friends. d. Grading: Was Smith s purpose felonious? This may depend on the resolution of the section 213 issues. If the answer is yes, this will be a felony rather than a misdemeanor. I. Section 213 A. Section 213.1: rape and related offenses 1. Rape a. Actus reus: (1) Sexual intercourse : the facts do not say exactly what sexual interactions took place between the young women and their captors/hosts. As someone pointed out, perhaps Smith and his friends just liked to be spanked, tickled, or rubbed against. We need more factual investigation here, but should assume for purposes of analysis that there was sexual intercourse. (2) Female not his wife : Some of you raised the possibility that Smith and Petra and the others could be understood to be married, under the standard of section 213.6(2). Since this arrangement apparently lasted for quite a while, perhaps the young women and Smith and/or his friends could be said to be living as man and wife, since this definition does not require legalization of their status. We need to see if there s any precedent on what living as man 5

6 and wife means. (3) Section (a) (a) Compels... to submit : Did Smith really compel their participation in sexual acts through his threats? Or were his threats directed toward exposure of his little scheme? Moreover, as several of you pointed out, the MPC is a pre-schulhofer code and violence, not coercion of the will, is the paradigm for violation of this section. It is likely that compulsion refers to some kind of direct violence, rather than the kind of mind games Smith apparently played. (b) By threat of imminent death... The prosecution could argue that Smith did threaten the women with torture in Guantanamo Bay. Presumably this would involve serious bodily injury or extreme pain. However, there is a question about imminent. Does the word modify only death, or does it also modify serious bodily injury, extreme pain or kidnapping? If so, Smith s threats were not imminent but rather quite remote. (c) Kidnapping : Some of you suggested a kind of bootstrapping operation by which we could argue that Smith secured the women s participation in sexual acts through his violation of section This is creative, but not likely to get past a judge, since the kidnapping charge in turn relies on the felony sex offense charges. (4) Section (b) (a) Substantially impaired [their] power to control their conduct : The prosecution could argue this was met (b) By employing...other means for the purpose of preventing resistance. The prosecution could argue that his threats and isolation of the young women were other means. But considering the statutory context, perhaps this section is only directed toward physical means such as drugs and intoxicants. b. Mens rea: (1) Since there is no mens rea language in this statute, we must prove at least recklessness under section 2.02(2)(c). Smith, of course, will disclaim any knowledge of what was going on; see discussion of knowledge under Further, the prosecution may be able to prove recklessness on these facts. It is probably easy to prove that Smith had the purpose to engage in the physical acts he did; the difficulty 6

7 will be in proving recklessness as to the attendant circumstances. c. Grading: We have no proof of serious bodily injury on anyone. However, the prosecution may be able to prove that Petra and the others were not voluntary social companions and had not previously permitted Smith sexual liberties, in which case this will be a first-degree felony. 2. Section 213.1: gross sexual imposition a. Actus reus: (1) Sexual intercourse : See rape discussion. (2) Not his wife : See rape discussion. (3) Compels... to submit : See rape discussion. (4) Any threat that would prevent resistance by a woman of ordinary resolution. Would this be the ordinary American woman, or the ordinary illegal immigrant who may not know much English and may be terrified at reports about torture at Guantanamo Bay? The MPC, as we know, is a bit fuzzy on just what kind of information the jury may consider as part of the actor s circumstances, but its tendency is to subjectivize, so it s likely that the jury will be able to take into account the victims actual circumstances when deciding what a woman of ordinary resolution would do. b. Mens rea: See rape discussion. 3. Section 213.2: deviate sexual intercourse a. Section (1), by force or its equivalent (1) Actus reus: (a) Deviate sexual intercourse See rape discussion. (b) There is no marital exclusion in this section, which might come in handy: see rape discussion. (c) Causes another to engage... As several of you pointed out, this language might also come in handy, since Smith apparently procured these young women for his friends, not just himself. (d) Section (a) i) Compels... to participate : see rape (e) discussion. Section (b) i) Substantially impaired... by... other means : See rape discussion. (2) Mens rea: See rape discussion. b. Section (2), by other imposition (1) Actus reus (a) Deviate sexual intercourse : See rape discussion. (b) Causes another to engage : see section (1) discussion. 7

8 (c) (d) compels... to participate : see rape discussion. threat... person of ordinary resolution : see gross sexual imposition discussion. Is a person of ordinary resolution any different than a woman of ordinary resolution? Probably not. (2) Mens rea: See rape discussion. 4. Section 213.3, corruption of minors a. Actus reus (1) Sexual intercourse : see rape discussion. (2) Not his wife : see rape discussion (3) Deviate sexual intercourse : see rape discussion (4) Causes another to engage : see deviate sexual intercourse discussion. (5) Do we have any evidence to support the subsections here? (a) Subsection (a) is a possibility, though unlikely; need more facts. b. Mens rea: See rape discussion. c. Affirmative defenses: Note that promiscuity is a defense: section 213.6(3). We need more investigation on this point. 5. Section 213.4: sexual assault a. Actus reus (1) Sexual contact : This is defined as any touching of the sexual or other intimate parts of the person for the purpose of arousing or gratifying sexual desire. Therefore, even activities like spanking and tickling are arguably sexual contact. (2) Not his spouse : See rape discussion. (3) Causes another : See deviate sexual intercourse discussion. (4) Substantially impaired... by other means : See rape discussion for how subsection (5) could arguably be brought into play. b. Mens rea: (1) Subsection (1) Smith may argue the contact was consensual. However, the facts indicate that the young women participated under protest. This is promising for making out a case for willful blindness. 6. Section 213.5: indecent exposure. a. Like sexual assault, this is only a misdemeanor, but it might be useful as a fallback. b. Actus reus: We need more factual investigation as to what actually happened. c. Mens rea: (1) What was Smith s purpose? (2) Did he know his conduct was likely to cause affront or alarm? See rape discussion. 8

9 7. Section a. As many of you noted, there are a number of procedural hoops that have to be jumped through in order to bring a successful prosecution under section 213. We need to be sure these procedural requirements have been satisfied. (1) Subsection (4): Did Petra and the others complain within three months? Or, in the unlikely event that the women were under 16 or otherwise incompetent, did a parent, guardian, or other competent person complain within three months of learning about the offense? (2) Subsection (5): Is there corroboration? Will testimony of the other young women in the case suffice for corroboration? We are told that corroboration may be circumstantial, so at least there is no requirement of a confession or physical evidence of bruises. Question 2 As most of you noticed, the question asks about mail fraud, but wire fraud is the right choice. Nevertheless, the analysis is the same. The jurisdictional requirement is satisfied by use of the internet. Some of you noted that we could also look for evidence of use of the mails. The scheme to defraud element seems to be satisfied by Smith s lies about the job. As most of you noted, the intangible rights theory has been restored by statute, so what the victims lost doesn t have to be money or physical property. Nevertheless, there s a problem here in identifying what, exactly, the victims were defrauded of. Could it be an intangible right to sexual autonomy? That seems a stretch. Could it be that Smith was acting as an employment scout or head-hunter, so the young women were deprived of his honest services? Also a stretch, though possible. Were they deprived of the nanny job they were promised? Several of you also remembered the case I talked about in class in which the Southern District of New York rejected a mail fraud prosecution of an American businessman regarding his corrupt activities in Kazakhstan, and wondered whether the fact that the young women were not American citizens could pose a similar problem here. This problem would probably not be as serious because the fraudulent activities all occurred in the United States, but this was creative thinking. Is this prosecution a good idea? The basic points were (1) whether the rights theory here would stretch mail fraud beyond all recognition; (2) whether it was nevertheless worth it, given the seriousness of the crime and Smith s potential ability to escape prosecution under sections 212 and 213 (especially if the court finds he was married to one or more of these women!); and (3) whether the punishment would fit the crime. Several of you had eighth amendment worries about the punishment for mail fraud as applied to this case (Congress recently increased the penalty). 9

10 Question 3 This one was easy. There really isn t any extortion case here. First, mens rea seems to be lacking: the timeline of what happened when is all wrong to construct a story about Petra making threats for the purpose of obtaining property of another. Second, what property did she actually acquire? Her room and board and stipend? There isn t any evidence of other property that changed hands, and she didn t obtain these through threats. Question 4 The first question is whether Petra and Smith (assuming Smith s free-love version of the facts is true) could be prosecuted for fornication. One initial issue here is whether Petra and Smith could be considered spouses under the Model Penal Code, since the sex offenses section counts people living as man and wife as spouses. If they re married, they haven t been fornicating. With respect to the actus reus, we need to confirm, but it seems pretty clear under Smith s version of the facts that sexual intercourse occurred. The mens rea analysis was a bit trickier. As most of you recognized, there isn t any mens rea for this crime. Does this mean it s strict liability? Many of you assumed it did, but that s leaping to conclusions. The default for common law crimes lacking a mens rea element is actually general intent. In this case, it seems easy to simply interpret this statute as incorporating the intent to commit the act that constitutes the crime (here, sexual intercourse). Since it s difficult for people to have intercourse without intending to, most likely there isn t any mens rea problem. Even if this were technically a strict liability crime, since on these facts (and most facts I can imagine) the participants will actually have had the purpose to commit the act, there isn t any mens rea problem. With respect to the constitutional claims, there are at least three plausible ones. First, Smith and Petra could argue that this statute is void for vagueness within the meaning of the due process clause of the fourteenth amendment. This would be an overbreadth argument; this isn t the sort of case where the language of the statute itself is unclear or imprecise in its application. At least some courts have questioned whether overbreadth by itself can support a due process claim (that was the Schwartz case we discussed in class), but the Supreme Court jurisprudence suggests that it can. The argument is that in this day and age such a statute applies to so many people that it functionally gives police and prosecutors the power to persecute anyone they want to. Therefore, although the fair notice prong of the statute is probably satisfied (some of you said there was no fair notice because the statute had not been used in so long, but recall the National Anthem medley statute we discussed in class, which would likely be upheld), the fettered discretion prong would not be satisfied. Second, Petra and Smith could make a strong facial argument against the statute based on Lawrence v. Texas. Lawrence arguably stands for the principles that (1) mere moral disapproval of behavior is not a legitimate state interest for the purpose of criminalizing conduct and (2) there is a constitutionally protected right of liberty and privacy for sexual behavior between two consenting adults. A statute punishing sexual intercourse outside marriage seems to fall afoul of both of these. Some of you tried to anticipate what the state could say in response: perhaps the fornication statute really protects public health? 10

11 Third, Petra and Smith could make an eighth amendment cruel and unusual punishment argument against the statute (perhaps both facially and as applied). The test here seems to be the one employed in Ewing: a version of the three-part Solem v. Helm test, modified by extra deference to legislative choices. Because of this deference, this is a harder claim to make. The state would be able to defend itself on federalism grounds. Part II This part of the exam, obviously, tested your knowledge of the common law system. More particularly, this part of the exam tested several different things: (1) your knowledge of majority and minority rules in jurisdictions that follow the common law; (2) your facility at working with the distinction between questions of law for the court to resolve and questions of fact for the jury to resolve and (3) your ability to apply general rules of law to a specific fact situation. As some of you astutely noted, in a real case some of these issues would have been resolved well before jury instructions were being given. But this is only substantive criminal law, not criminal procedure! Question 1 Deny. The first problem is the inherently dangerous rule. More research needs to be done to know whether burglary could serve as an underlying felony for this purpose: some jurisdictions employ an inherently dangerous in the abstract test, under which burglary would certainly not qualify since it could be committed in a non-dangerous way. Other jurisdictions look at how the felony was in fact committed, which could lead to a decision that the burglary in this case was inherently dangerous to human life. Aggravated assault is probably inherently dangerous to life under either test. The second problem is the merger rule. Aggravated assault is a classic felony that may not serve as the basis for felony murder because of the bootstrapping problem. Burglary, on these facts, is the same. Here, Gloria is being charged with breaking and entering a dwelling house with the intent to commit a felony therein. What is the felony? Probably some variety of assault, aggravated assault, or possibly murder. Therefore, burglary may not serve as the underlying felony either. Some of you creatively suggested that the prosecution could find an independent felonious purpose if Gloria entered the structure with the purpose to assault Ben, since the person who got killed was Mary Lou. I hadn t thought about that. Kudos! Finally, there s a buried issue about whether Gloria is guilty of burglary in the first place, since it is not clear that she broke in order to get into the structure. Although modern burglary statutes replace the idea of a physical breaking with unauthorized entry, since this was her childhood home there might be a question of fact about whether Gloria s entry was truly unauthorized. This issue doesn t really affect the question of whether this instruction should be given, since the instruction only reads if you find the defendant guilty of burglary. But it might be a good heads-up point as you re discussing the instructions with the judge. 11

12 Question 2 Deny the defense s motion to give the instruction; grant the prosecution s motion on grounds of misstated law, but not insufficient evidence. The instruction is defective because it is lacking in many of the elements necessary to make out a good self defense claim. Under the common law the belief must be of an imminent threat of death or great bodily harm; the belief in the threat must be reasonable as well as honest; and the use of force must be necessary and proportional to the threat. The instruction makes no mention of the issue of aggressors, even though Gloria could lose the privilege of self defense altogether if the jury decides she was the aggressor and she failed to withdraw from the confrontation. Finally, we need to do a little research to see if there is a duty to retreat in Zeb; if so, the jury must rule on this too. Ordinarily, the defense has the right to argue self-defense as long as there is any evidence supporting a claim. Could a rational jury find self-defense here? On these facts, it is a jury question whether Gloria should be counted as the aggressor since she came to the house, or whether Ben should because he walked toward her with the belt in the second confrontation. There is also an issue of whether the deadly force Gloria used was necessary, given that Ben was apparently unarmed except for the belt and Gloria had a knife. But it s hard to conclude on these facts alone that the question should be removed from the jury. Normally juries get to consider information about the relative size and strength of the parties. Perhaps Gloria is five feet tall and very petite, and Ben is 6 foot 7 and very strong. Whether any reasonable person in her situation could possibly believe herself in danger of death or great bodily harm is certainly a close question, but the better move is to let the jury decide on all the evidence. Finally, there is an unusual problem: Gloria killed the wrong person. She might have a good self-defense claim as against Ben, but can she claim self-defense when she killed an innocent? There are several ways this problem could be resolved. First, defense could argue that if Gloria acted reasonably in believing Ben posed a threat of deadly force, her actions were justified and therefore the killing of Mary Lou is a sad accident but not criminal. (The facts are ambiguous as to whether Mary Lou just got in the way or was deliberately stabbed.) Doctrinally, this is a kind of transferred justification argument: the intent that Gloria held toward her intended victim transfers to the third party. The prosecution could respond (1) that she has no self defense claim and (2) even if she did, there is no transferred justification doctrine; the killing of innocent bystanders should not go unpunished. Second, there is the possibility of a compromise position: Perhaps the killing of Mary Lou should be treated as voluntary manslaughter on an imperfect self defense theory. Gloria did subjectively believe her life was in danger, but she was negligent in coming to that belief, and negligent in the way she implemented her judgment (stabbing Mary Lou as well as Ben). In any case, however, the defense motion as it stands should be denied. The prosecution is correct that the defense motion misstates the law, but the motion to bar a self-defense claim 12

13 altogether should be denied. Question 3 Deny. This raises the same problem as question 2, only with a twist. Can Gloria use felony apprehension as a justification for her use of deadly force? The answer is no. First, the crimes for which Gloria would be arresting Ben rape, assault and battery, child molestation happened so long ago that they may be subject to statute of limitations problems. In any case, felony apprehension only creates a privilege to use force when the defendant is in hot pursuit of the felon. Second, it is questionable whether these are forcible and atrocious crimes justifying the use of deadly force. To be forcible and atrocious, the crimes must threaten death or great bodily harm. Sadly, although these crimes are serious, it is unlikely that they threaten death or great bodily harm as a matter of law (although there is a question about whether this is decided as a matter of law or a matter of fact based on what actually happened see Ceballos -- it appears that this is an issue for the court). Third, even if these crimes were forcible and atrocious and the statute of limitations has not run, the general approach to felony apprehension these days is to bar the privilege unless the person arrested is actually the person who committed the crimes that is, there is an assumption of risk doctrine built in. This suggests a bar to the attempt to argue transferred felony apprehension. Fourth, many jurisdictions impose additional requirements such as the requirement that the defendant attempt to warn the victim before using deadly force. There are so many problems with this instruction that it should be rejected. Question 4 Deny. There are three problems here. First, the proffered instruction misstates the law with respect to the basic elements of heat of passion. A heat of passion claim requires not only proof that the defendant be actually in the heat of passion; it also requires that the heat of passion have occurred pursuant to adequate provocation, that a reasonable person with the demographic but not temperamental characteristics of the defendant would have also been in the heat of passion, that there be no adequate cooling time, and that the victim be either the provoker or someone acting in concert with the provoker. The instruction here is defective because it fails to include these other elements of the defense. There is also a sufficiency of the evidence issue. First, jurisdictions differ as to whether the court rules on the adequate provocation question, or whether in most cases the claim goes to the jury. We need to know which kind of jurisdiction we are in. If we are in a jurisdiction that follows the traditional rule, the heat of passion claim might be barred from going to the jury on at least two points: the mere words doctrine and the cooling time doctrine. We need to research whether Zeb observes the mere words doctrine, and whether Zeb has adopted the cumulative provocation theory represented in our readings by the Berry case. Further, since the victim was not Ben but Mary Lou, heat of passion could only work if the jury could conclude Mary Lou and Ben were acting in concert. There is no evidence that Mary Lou also committed the past acts of abuse that seem to provide the basis for the provocation argument. On this point, however, it might be appropriate to instruct the jury on the proper law and let it decide on all the evidence, if the case otherwise should go to the jury. 13

14 The third problem with the instruction as worded is the defendant s suggested definition of reasonableness. It is uncontroversial to have the jury consider the defendant s sex and previous experiences with the defendant in deciding what is reasonable. But the suggestion that the jury could use as its standard the reasonable person with PTSD is probably wrong. There are some things about PTSD that are relevant to the ordinary self defense claim: perhaps it would go to prove that Gloria honestly believed she was in danger of death or great bodily harm (thus countering the prosecution s premeditation argument). But simply to tell the jury to consider it without some limiting instruction would raise the danger of overly subjectivizing the reasonable person. PTSD can affect one s perception of danger and the need for force, in effect causing one to be more jumpy, irritable, and easily frightened and/or hostile than the ordinary person. These features should not be built into the reasonable person standard. As many of you noted, the analogy here is to battered women s syndrome. Although such evidence is commonly admitted, there is debate over whether and to what extent the elements of battered women s syndrome should create a new subjectivized standard of the reasonable battered woman. Most courts have declined to create such a new standard. Question 5 Probably deny, but more research necessary. Are there grounds for admitting evidence of the defendant s voluntary intoxication? First, there is an unresolved question of law. Are we in a jurisdiction that has generally barred evidence of voluntary intoxication in mitigation? This kind of rule is constitutional, as Montana v. Egelhoff held, but we do not know whether our jurisdiction has adopted such a rule. If it has, of course the jury should not hear about Gloria s intoxication (except, perhaps, if the prosecution requests it as a way of proving her culpability). Second, assuming that there is no such statutory limiting rule on the admission of voluntary intoxication evidence, can the defense have it admitted in mitigation? Voluntary intoxication is not an affirmative defense under the common law tradition; it can only be admitted to poke holes in the state s case-in-chief. Unless the first issue is resolved against the defendant, the defense is entitled to have the jury consider evidence of Gloria s voluntary intoxication to disprove specific intent, but not general intent. We know that premeditated murder and burglary, at the very least, involve proof of specific intent (whether assault with a deadly weapon is a specific intent or general intent crime needs further investigation, and second degree murder is usually treated as a general intent crime), so the defense is entitled to have this evidence admitted. Third, even if we are in an Egelhoff-type jurisdiction, perhaps the defense should be entitled to introduce evidence of Gloria s intoxication as part of a settled insanity defense. This is really an insanity claim, not an intoxication claim, so it is not addressed by the policy arguments against voluntary intoxication as a case-in-chief defense. The jury will have to be instructed on the elements of insanity (in jurisdictions that follow the common law, the M Naghten rule). Question 6 This, too, is an easy question: Grant the prosecution s motion and reject the defense s 14

15 claim of insufficient evidence. Even though some of the arguments for Gloria s guilt are strained, this is the sort of question best handled by the jury hearing all the evidence; there s no need for the court to step in and take the issue away from the jury. Intent to kill murder. Since the victim was not Ben but Mary Lou, we must first resolve the question of transferred intent, since using this theory would give the prosecution its strongest case for intent to kill murder. This is not the classic paradigm of transferred intent in which A shoots at B, misses B entirely, and shoots C instead. This is the variation in which A manages to harm both B and C, but in different ways. Most courts, however, (as in the case we read on transferred intent) will apply the doctrine in this situation, even though it results in a kind of expansion rather than simple transfer of Gloria s intent. Therefore, we need to decide whether a rational jury could believe Gloria intended to kill Ben. There is sufficient evidence on which a rational jury could find Gloria guilty of intent to kill murder against Ben. The evidence suggesting that Gloria has been brooding for a long time on the wrongs done to her; her decision to confront her uncle about the abuse; the fact that she was carrying a knife; and her statement I ll kill you for what you did! can all support a verdict of intent to kill, indeed premeditated and deliberate murder. Therefore, there is sufficient evidence on which a jury could find Gloria guilty of intent to kill murder even though she does not seem to have any particular beef with Mary Lou. Even if for some reason the court decides not to allow a transferred intent theory, however, the jury should be instructed on intent to kill murder. There is no evidence in the case that we know of to suggest any preexisting relationship between Gloria and Mary Lou. We are told only that Mary Lou is Ben s girlfriend and that they exchanged angry words. But, most common law jurisdictions have adopted the rule that premeditation and deliberation -- a species of intent -- can be formed in the wink of an eye. If premeditation and deliberation can be found in a bar-fight killing, a rational jury could find it here as well. Finally, most jurisdictions that follow the common law have adopted the deadly weapon rule, permitting a jury to infer intent to kill from the use of a deadly weapon. Gloria s knife probably (question of fact here?) qualifies as a deadly weapon. There is a question whether evidence of Gloria s intoxication and PTSD could negate specific intent to kill. Gloria did imbibe quite a lot and perhaps she was no longer acting intentionally, particularly since there is evidence that she might have been experiencing a flashback. But this is a question for the jury to resolve after hearing all the evidence; there is no good reason to take the decision away from the jury. Intent to seriously injure murder: The jury should be instructed on this as well. A rational jury on these facts could infer that Gloria, enraged at Mary Lou s getting in the way of her attempt to hurt Ben, intended to seriously injure her. Or, the prosecution could prove that Gloria intended to seriously injure Ben, and then apply the doctrine of transferred intent to encompass Mary Lou s death. See above discussion of intent to kill. 15

16 Depraved heart murder: The jury should be instructed on this as well. Depraved heart murder is essentially reckless murder: the defendant was aware of a significant and unjustified risk of death or great bodily harm that might result from her actions, and chose to take the action anyway. There is sufficient evidence to make this case based either on a transferred intent theory or independently. (See discussion of intent to kill murder, above.) Gloria s voluntary intoxication will not be admissible to negate her recklessness; moreoever, most common law courts are willing to open the time frame so that even if Gloria was not acting with conscious awareness at the moment of the killing, she will be held responsible for her decision to drink in the first place, and perhaps this increases her culpability. Some of you argued that the facts are lacking in an extreme indifference to human life element. Gloria s actions, though regrettable, don t seem to demonstrate extreme indifference to the value of human life. She comes off as a sympathetic if misguided character, not a psychopath. Moreover, the fact pattern doesn t fit the traditional paradigm of depraved heart murder, like playing Russian roulette, keeping vicious dogs, or firing randomly into a crowded subway car. Nevertheless, even though this is a weak case, the better policy is to let the jury make the call. 16