Traditional Concepts Deterrence Rehabilitation Retribution Public safety Hood Mens rea lessens it to the highest possible general intent crime.

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1 I. BASIC CULPABILITY DOCTRINES A. Traditional Concepts 1. Reasons we punish: a. Deterrence not very effective b. Rehabilitation not effective at all c. Retribution fairly effective d. Public safety effective 2. Always remember the balancing test (individual/personal autonomy); ignorance of the law is rarely an excuse; we punish the conduct that is voluntary (goes to mens rea) 3. Mens Rea the mental state required for the crime; conduct corroborates the mens rea (Morissette v. U.S.) a. Purpose, knowledge, recklessness, negligence, or SL b. Specific Intent (actual subjective intent thinking, planning, or hoping at the time of the offense) usually proven by circumstantial evidence (1) Elements (a) General Intent (b) Purpose c. General Intent 4. Intoxication as a defense a. Actus Reus (People v. Hood) (1) Evidence of extreme intoxication is admissible to show that did not physically perform the required conduct in a specific intent crime require the basically to be comatose (2) Evidence of voluntary intoxication is not admissible to show that? did not engage in voluntary act in a general intent crime b. Mens rea (1) Admissible only to show that D lacked the capacity to form the required specific intent. Lack of intent is a mitigating defense lessens it to the highest possible general intent crime. (2) Inadmissible for negating general intent c. Involuntary intoxication is a defense II. B. Regulatory Offenses & Strict Liability C. Conduct Requirement D. Model Penal Code Reform DISCRETION & RULE OF LAW A. Vaguensee, Strict Construction, Principle of Legality B. Law, Morality, & Judicial Authority C. Sentencing Discretion

2 III. D. Capital Punishment CRIMINAL HOMICIDE A. Malice 1. Definition a. Murder: Murder is causing the death of another with malice aforethought b. Malice aforethought can be express or implied and is required by the common law (1) Intent to kill (Express malice) (a) presumed if used of deadly weapon) (b) Knew death will result (c) Transferred intent (2) Intent to inflict serious bodily injury (3) Felony murder (4) nd Depraved mind murder - 2 degree (a) Actual awareness of risk (b) Extreme indifference to value of human life i) Maligned heart ii) Antisocial behavior B. Degrees 1. MPC does not grade murder a. But allow defense of Extreme Emotional Disturbance b. MPC: 3 grades: murder (murder or reckless depraved mind homicide), manslaughter (reckless homicide or murder with EED), negligent homicide 2. CL Murders: a. Murder 1 (1) Actus Rea: Unlawful taking of a life (2) Mens rea: willful (a) Malice i) probable ii) malice aforethought (b) Specific intent: Premeditation and deliberation i) timing ii) capacity (3) imputation of malice: Felony murder listed by statute b. Murder 2 (1) Malice but no premeditation (2) imputation of malice: killing during felony involving non listed felonies

3 (3) Reckless homicide and depraved mind muder c. Murder 3 - only in certain state (Pa) (a) reckless killing (b) malice 3. Mitigation evidence a. Self defense b. Provocation c. Insanity C. Murder 1: Premeditation 1. Premeditation & Deliberation a. Mental process: deliberate formation of and reflexion upon the intent to take a life. b. Way to prove (1) plan: buy weapon,... (2) Motive (3) Manner of killing 2. Defense against premeditation (Caruso) a. One same act (no separation of actions) - no deliberation b. Mistaken Belief: an honest and reasonable mistaken belief can negate required element, lowering charge from murder one to murder two. (People v. Caruso) c. No planning for attack: if the attack was not planned, neither was the killing. (State v. Bingham, State v. Ollens) d. Diminished capacity (1) circumstance: sex, rape,...(bingham) e. Intoxication f. Provocation (1) Manslaughter (a) actual action (b) provoke reasonable person (2) Murder 2 (a) Perceived provacation (b) Mistake of fact i) CL: reasonable or unreasonable provocation ii) MPC: Reasonable D. Murder 2/Manslaughter: Unintentional Killing & Implied Malice 1. CL Implied Malice

4 a. Definition (Malone) (1) act of gross recklessness: reasonably anticipate that death to another is likely to result, exhibit: (2) Wantonly, recklessly, and in disregard of consequences, or (3) Wicknedness of disposition, hardness of heart, cruelty, recklessness of consequences and a mind regardless of social duty (4) Proved that the was the state or frame of mind termed malice b. Elements (Berry & Watson) (1) Intentional act (objective) (2) abandonned and malignat heart (a) appreciation of the high degree of risk (subjective) (b) that is objectively present (Watson) (c) high probability that act done will result in death (d) Subjective awareness of that risk (Berry) (e) must be done with intent i) a base antisocial motive (not illegal per se) ii) and with wanton disregard for life. a) Illegality of underlying conduct not an element but may be relevant to issue of subjective intent. (3) Model Penal Code (a) 210.1: define criminal homicide: i) st murder (210.2) - felony 1 degree a) purposely or knowingly, or b) Depraved mind murder: 1) recklessly (know risk + conscious disregart) 2) under circumstance manifesting extreme indifference to human life ii) nd manslaughter (210.3) - felony 2 degree a) recklessly, or b) under influence of extreme mental disturbance), iii) negligent homicide (210.4) - felony 3 rd degree a) negligently (b) Implied malice in i) circumstances manifesting extreme indifference to value of human life ii) Presumed (impled) if engaged in commission, attempt, or flight after

5 (c) committing or attempting to commit a) robbery b) rape c) deviated sexual intercourse by force or threat of force d) arson e) burglary f) kidnapping g) or felonious escape Interpretation i) Distinction between reckless manslaughter and reckless or depraved mind murder: a) Register holding: no diffence with with reckless murder 1) depraved indifference for human life not an element of the crime 2) objective circumstance relating to a factual setting 3) No defense of intoxication in that case (NB: intoxication not defense against recklesness) b) Dissent: Mental element 1) more than reckless: such gross indifference to substantial risk is akin to intentional murder. 2. Manslaughter: Unitentional but reckless killing without malice bc of mitigating circumstance a. No malice (1) extenuating evidence b. Intoxication defense (a) Murder is specific intent (b) Intoxication defense against all specific intent i) Negate element of malice ii) critical: when malice was formed? a) Whitfield: malice formed prior intoxication (drive and keep drinking)- no defense c. Provocation (negates intent) (1) Heat of passion

6 (a) (b) (c) Must be caused by adequate provocation (legally) i) Mere words are not enough, you need something more ii) assault, battery, mutual fights, catching spouse in act of adultery. (Holmes, Chevalier). Provoked by a triggering event Reasonable Man Standard:? s reaction from their subjective state of mind must have been reasonable as measured by objective standard of someone in their same mental state d. Mistake of fact (1) If honestly/reasonably but mistakenly reaches a conclusion, murder can be reduced to manslaughter 3. Involuntary manslaughter through wanton or reckless conduct (Welanski) (1) Wanton or reckless conduct: (a) affirmative action (b) intentional failure to take care in disregard of probable harmful consequences when duty of care exist. (2) More than negligence i) Voluntary taking the risk a) Danger grave and apparent b) know the risk (obj), or c) reasonable man would have realized under circumstances (subj) d) consciously run the risk ii) risk higher (b) Defense: Reliance on official statement i) CL: no defense ii) MPC 2.04(3)(b): reasonable reliance on official statement (Marreno) (3) Breach of Duty (Williams) (a) Duty - affirmative duty i) parental ii) common law duty (b) Breach of duty: objective standard i) No adjustment to indiv. Capacity (c) Proximate cause i) timing: reasonable notice? ii) would have reasonable actions saved life (d) Damages: death

7 E. Felony Murder Rule 1. Definition: a. Killing of a human being (any killing, even accidental) committed in perpetation or attempt to perpetrate any felony. b. Michigan (Aaron) (1) absence of (a) intent to kill (b) premeditation (c) deliberation (d) implied malice (2) killed victim in the commission or attempt commission of felony 2. Policy: Influence behavior of felons: a. careful felons and avoid accidental or reckless homicides. 3. Key elements: a. Substitute for actual malice: automatic imputation of malice b. st Graded as murder 1 degree 4. Evolution: a. Victim can be innocent or co-felons (Hoang) b. Agency rule (Canola) (1) Liability limited to death caused by person acting in concert (2) Exception: when D forced deceased to occupy a place of danger in order to carry out crime (3) Limit rule but does not comply with policy c. Alternative: Proximate rule (a) (b) responsibility for any death Not adopted by court i) extend felony murder instead of limit ii) No relation to blameworthiness d. Modern rule = Limitation on felony murder / policy goal (1) Death of co-felon not felony murder (2) Otherwise: proximate rule 5. CL limitations summarized by MPC (Aaron) (1) Felonious act must be dangerous to life (a) Case of 2 degree murder felony based (Patterson) nd i) Murder 1: Specific list of felony (risk + knowledge)

8 ii) iii) iv) Murder 2: No specific list but inherently dangerous felony Test: high probability to result in death Probability in the abstract: a) not based on facts of case b) depends on the nature of the felony c) Should be determine by trial court v) Dissent: a) no drug high probability of death in the abstract b) Child molestation no high probability of death in the abstract (2) homicide must be a natural and probable consequence of felonious act (act done in furtherance of felony & not coincidental to the perpetration of felony) (3) death must be proximately caused (variatin based on id of victim and person causing death) (4) felony must be malum in se (5) Act must be a common law felony (6) Period during which felony is in the process of commission shall be narrowly construed (7) Underlying felony must be independent of the homicide (a) Ireland rule in People v. Smith (case of child nd abuse and homicide, reversed 2 degree felony- murder conviction for direct assault that resulted in death): Test: whether felony has a independent felonious purpose (Smith) i) Felony murder rule inapplicable to felonies that are an integral part of an act included in fact within the homicide. (Wilson: commit burglary and kill a man before killing his wife - his target) ii) Most homicides include felony. If felony murder admitted, preclude any defense to murder, including provocation. iii) Felony murder does not deter from intentional assault homicide (not the goal). iv) Felony murder not substitute to transferred intent (Sears: killed daughter instead of wife)

9 6. Critics of felony murder: a. No need for imputation of malice if the death is forceable due to the nature of the felony (1) Premeditation to use force (a) i.e. use of weapon = implied intent to use it to harm 7. Model Penal Code 210.2(b): rebutable presumption of reckless murder a. MPC: no grading b. Reckless murder presumed if actor engaged in felony 8. Unlawful Act - Manslaughter Rule a. Requirement (1) Malum in se offense (if not, no agreement) (2) Causation (a) Some causation required to support blameworthiness: F. Assisted Suicide as Homicide G. Suicide as homicide i) threat ii) 1. Dying declaration: acceptable if a. You are dying or told you are b. Make a statement accurately recorded c. You actually die violent offense: violent act that encompass direct, foreseeable risk of physical harm that would support manslaughter. 2. Murder suicide: Involuntary manslaughter (Atencio) a. Involuntary Manslaughter: Predicated upon wanton or reckless conduct. Reckless or wanton: (1) intentional conduct (2) by way of action or omission where there is a duty to act (3) conduct involves high degree of likelihood that a substantial harm will result. b. Issue of duty. Found that conduct of participants encouraging other to play Russian roulette amounted to involuntary manslaughter because risk not a factor of skill but factor of the nature of the game itself. Duty not to cooperate or join with him in the game. 3. Murder suicide: Murder & strict liability doctrine

10 a. Acts rendered the deceased distracted and mentally irresponsible. b. Physical and psychological trauma c. Result of felonious attack (Stephenson: rape + pervert mutilation) 4. Definition: Person by criminal acts can foreseeably make a person irresponsible: strict liability for resulting acts of the victim 5. Issue of causation a. Defense: try to break causation chain b. Standard: (1) But for theory: act = foreseeable proximate cause (2) Once victim rendered mentally irresponsible, no more defense. D liable to every actions (3) Even if number of other instrumentality contribute to death, can be held responsible as if alone if (a) magnitude of act (b) so near result (c) fair to indict c. MPC 2.03 (1) In case of strict liability: element not established unless actual result is a probable consequence of the actor s conduct. 6. Felony murder: a. transfer of intent b. Form of felony murder IV. RAPE A. Common Law rule: Basic concept 1. Elements a. General intent crime. Need only to prove: (1) Intercourse took place (2) W/o consent (a) Forcibly (b) Against victime will 2. Mens rea = w/o consent a. Mens rea = intentionally engaging in intercourse w/o victime consent b. General intent: do not have to prove that D knewor should have known no consent. c. Prove lack of consent = resistance. 3. Test for lack of consent = Resistance = physical fight a. Test: resistance of the pride female

11 (1) resistance to the outmost (2) throughout all event (3) up until last breath 4. Issue a. Very low mens rea but very high standard for resistance. b. Resistance not realistic B. Common law: Modern development 1. less resistance a. Resistance enough to create situation where no ambiguity as for consent. b. Coercion by force (1) Some state: no more resistance requirement: coercion (a) w or w/o resistance, coerce with use of force by expressed or implied threat... c. Broaden definition of force (1) Includes (a) Restraint (b) imminent threat (c) physical pain 2. Mens rea: no more strict liability a. Balancing test: (1) lessening resistance requirement = good for victim (2) Balancing test to protect accused = increased mens rea requirement b. Specific intent (1) New standard (a) have to know (b) Reckless or negligence 3. Defense i) knowingly ran the risk ii) (2) No knowingly = too high. should have known given circumstance (reasonable person would have) a. Mistake of fact (1) Negligence standard: Unreasonable mistake not acceptable (calif) (2) Reckless standard: unreasonable mistake ok as long as D believed in mistake

12 b. Absence of resistance (1) absence of resistnace should not be the result of reasonable fear from victim (2) if fear unreasonable but D knowingly took advantage of fear to accomplish intercourse, absence of resistance not a defense (Barnes, note 20) (3) Absence of resistance may be submission # consent 4. Barnes Test a. Requirement of reasonable resistance b. When testimony suspect, need resistance per se (1) Corroborative medical testimony of forced entry (2) Psychiatric evaluation of the victim c. Elements (1) Bare assertion of uncommunicated resistance not enough (2) specific threat of physical harm to overcome will (3) explicit protestation or measurable resistance (4) Proof of protestation or passive resistance d. Weakness of test: downplay priaml terror of violent reaction C. Marital rape 1. MPC + Common law: no rape between spouse 2. Exceptions: a. Consent revocable (based for divorce) (1) Proof: start divorce proceeding b. Defense of violation of equal protection & no compelling state interest to oppose. D. Rape and incapacity 1. Statutory rape = strict liability a. Age limit 2. Mental disability a. Defense: (1) mistake of fact: (a) did not know (b) did not take advantage b. Can be strict liability or reckless standard E. Fraudulent obtention of consent 1. False promise = no rape 2. Fraud in the factum 3. Fraud in the essence: not know the nature of the act: i.e rape under pretense of medical exploration 4. Pretending to be someone else

13 V. INSANITY DEFENSE A. Policy issue Criminal law is an expression of the moral sense of the community. Society has recognized that certain wrongdoers are improper for punishment. When truly irresponsible, who lack substantial capacity to control their actions, are punished, none of the three purposes of criminal law: 1. rehabilitation (none, make them more dangerous to society bc will recidive), 2. deterrence (none, because not deterrable crime), and 3. retribution (not sadistic vengeance, not civilized) is satisfied (Freeman) B. Model Penal Code 4.01 (Freeman Holding) 1. Not perfect, but best available 2. Not an affirmative defense - burden on the plaintiff 3. Elements: a. A person is not responsible for criminal conduct if (a) at the time of such conduct (b) as a result of mental disease or defect (c) he lacks substantial capacity (d) either to appreciate the wrongfulness of his conduct or (e) to conform his conduct to the requirement of law. C. Disfavored theories: b. The terms mental disease or defect do not include abnormality manifested only by repeated criminal or otherwise antisocial conduct. 1. M NAGTHEN (right/worng) test a. Not test of state of mind b. Control expert testimony (endorse a discarded concept) c. Bypass jury & direct verdict 2. IRRESISTIBLE IMPULSE test a. Supplement M Naghten

14 b. Overly restrictive 3. DURAHM test a. Close to MPC but problem of causation ( product of mental disease ) VI. PREPARATORY CONDUCT, ATTEMPT, & CONSPIRACY A. Common element: Grading, Mitigation, Multiple Convictions 1. Grading a. MPC 5.05: (1) Attempt, solicitation, & conspiracy - same grade as most serious offense. nd st (2) Exception: 2 degree when offense is 1 degree (or capital crime). 2. Mitigation: unlikely outcome a. MPC 5.05 (1) if puropse so unlikely to result or culminate in commission of crime + actor(s) & acts represent no public danger, court amy (a) reduce to lower grade, or (b) dismiss the prosecution. 3. Multiple convictions a. MPC 5.05 (1) only one conviction (attempt OR sollicitation OR conspiracy) for conduct designed to culminate in commission of the same crime. B. Attempt 1. CL Definition a. Definition (1) Intent to commit a crime (2) Execution of overt act in furtherance of the intention (3) Failure to consummate the crime b. Issue: when consumption start? In general, neither Intent, nor mere preparation = attempt But some preparation may amount to attempt!? When attempt such point to justify intervention?

15 2. Preparation - Perpretation Quadmire (Latraverse) a. CL attemts to locate dividing line between attempt and preparation: (1) Act mut reach far enough towards the accomplishment of the desired result to amount to the commencement of the consummation. (2) Act must come pretty near to accomplishing the result to be criminal. (3) Degree of prep + intent: preparation advanced to such degree that the intent to complete the act renders the crime so probable that the act will be a misdemeanor. (4) Project carried forward within dangerous proximity b. MPC 5.01 (Latraverse holding) (1) Attempt: Criminal act without result (a) Belief that no further conduct require to achieve st result (1 category attempt define in Staples). (2) Preparation: (a) Substantial step: strongly corroborative of the actor s criminal purpose. (b) Focus on overt acts that convincingly demonstrate a firm purpose to commit a crime. (3) Key element of MPC test: (a) Shift focus to what has been already done (enought to corroborate mens rea) to what s left to be done to complete crime. 3. Attempt COMMON LAW MPC 5.01 Elements Elements (1) Intent to commit a crime (2) Execution of overt act in furtherance of (1) Mens rea required for the commission of the intention crime (3) Failure to consummate the crime (2) Actus reus: a) Purposefully engage in the conduct wich would constitute the crime OR b) causes result that is part of the crime or

16 believes that no further conduct required to cause such result OR c) purposely do what he thought was, under the cicumstances, a substantial step in a course of conduct planned to culminate in commission of such crime. See below Test for Substantial Step: Conduct strongly corroborative of the actor s criminal purpose, such as: (1) waiting, searching for, following target (2) trying to entice or entice target to move to planned location for crime (3) breaking in to place (car, house..) where crime contemplated (4) possession of instrument, either unlawful or without lawful purpose under circ (Staples) (5) Soliciting agent to perform element of crime Aiding: Same as committing crime itself Defense of withdrawal: voluntary abandonment NO POINT OF NO RETURN (# Staples / CL)) Withdrawal can be done anytime. Once overt act committed (no more in preparation), need complete and voluntary renunciation. Not voluntary if 1. Stopped due to unanticipated difficulties / probability to be caught. 2. Postpone final act or change target Affirmative defense: defendant has the burden

17 of establishing by preponderance of the evidence CL test for attempt (Staples) a. Categories of attempts st (1) 1 category: in Staples, Buffum test limited to first category of attempt - when actor had done all required acts to commit offense but attempt unsuccessful due to extraneous element (miss his target, tools broke,...) nd (2) 2 category: Staples attempt not completed, stopped during preparatory act. Issue: what level of actur reus required? st b. Common Law: Buffum Test (1 category of attempt) (1) Elements: (a) Preparation alone not enough to convict of an attempt (b) Need i) fragment of crime committed ii) such progress that, unless interrupted by circumstance beyond actor s control, crime will be committed (2) Defense: Voluntary abandonment (a) Voluntary (b) not result of outside intervention nd c. Statutes: Proximate act & Locus Poenitentiae (2 category of attempt) (1) 2 doctrines (a) (b) Last proximate act: no need of the last proximate or ultimate act of substantive crime. Locus Poenitentiae - Point of non-retour

18 i) Staples Test: a) relevant factors to determine whether acts of perpetrator have reached such stage of advancement that the can be classified as an attempt. b) not one specific test (no such test achievable? Staples) i) Preparation = arranging the means, attempt = direct movement. 2) Mens rea: Attempt start when intent to commit the substantive offense is clearly established Act not enough. c) The stronger the mens rea, the least actus reus required. (c) Defense i) Once the line is crossed (even if attempt not completed), no exculpatory abandonment. ii) Specific intent crime: defense of intoxication decrease degree (burglary to trespass) C. Conspiracy 1. Definition a. Requirements: (1) No real actus reus requirement (2) Actus reus = agreement (3) Mens rea = intention to follow up on agreement (4) Proof of Agreement? 2. Policy a. More dangerous (5 reasons) (1) threat of combination of multiple mind (2) mutual support (3) more likely to result in pattern of crime 3. Elements Elements COMMON LAW MPC 5.03 Elements Person guilty of conspiracy to commit crime, if

19 1. Agreement between 2 triable person to commit crime 2. One of co-conspirator has taken an affirmative step (overt step) of furtherance in conspiracy with the purpose of promoting or facilitating its prommotion, he: 1. Agrees with other person(s) that one or more will a. commit the crime b. attempt to commit c. solicit to commit OR 2. Agree to aid in the planning or commission or... AND 3. Overt act: Requirement of an overt act done by any co-conspirator(s) in pursuance of conspiracy st nd a. not required for 1 & 2 degree felony b. act may be legal (buy knife) Difference with CL 1. Unilateral agreement between at least two people (capacity not required - MPC 5.04) 2. Overt act - but no collaborative act required nd rd for 2 and 3 degree crimes. Procedural Advantages Procedural Advantages 1. Each co-conspirator punished of all and every crime committed by the group. 2. Conspiracy to do misdemeanor = felony 3. Separate counts for consp. & crime 4. Can retain statement of co-conspirator against others. 5. Fed. Rule: can charge in any Fed. District where an act was performed

20 Restrictions 1. Bilateral agreement between 2 triable persons (no incapacity, enfant, not acquitted of the crime..) Defense of Withdrawal Defense of Withdrawal 1. Communicate 2. To co-conspirator(s) 3. Before any harm done (otherwise punishable for harm done prior withdrawal) No communication but action requirement Burden of proof by preponderance of the evidence 1. Complete & Voluntarily 2. Thward crime: take action demonstrating opposition to conspiracy Defense of incapacity MPC 5.04 Punishment 1. For all foreseeable acts committed in furtherance of crime Punishment 1. Punish the mens rea of individual 2. Can not cumulate conspiracy + crime 2. Can cumulate count for Conspiracy w/ count for the crime itself Comment Felony murder not required 4. Aiding & Abetting a. Key point: (1) No need of physical action (2) No need for explicit agreement (implied) b. Elements (1) Actus reus: mere presence + not stopping (2) Mens rea: Based on circumstantial evidence (Parker) (a) friends, relationship (b) shared benefit (c) conduct such as fleeing together = shared

21 c. Punishment (1) All co-conspirators as principals D. Solicitation MPC Definition: a. With purpose of promoting or facilitating commission of crime b. Commands, encourages, requests another person to engage in specific conduct which would (1) constitute such crime or attempt, or (2) establish complicity 2. Communication a. Solicitation does not have to be explicit 3. Defense of renunciation: a. Affirmative defense b. Affirmative act to persuade person not to act or prevent the commission of the crime c. Complete and voluntary 4. Defense of incapacity, irresponsibility, or immunity MPC 5.04 E. Defense of incapacity, irresponsibility, or immunity MPC Defense for sollicitation or conspiracy 2. Valid defense if it is a defense against the crime 3. Otherwise, immaterial to the liability of a person: a. Does not accupy a particular position b. has a particular characteristic which is an element of crime, or c. Other person(s) is irresponsible or has immunity to prosecution