knowledge, extreme reck. Murder, but EED

Transcription

1 Complicity Murder Manslaughter Neg. Hom. Purpose (Dual) Purpose, knowledge, extreme reck. Recklessly or, Murder, but EED Negligently Solicits, aids or agrees or attempts to aid; or fails to prevent + duty Causes death Causes death Causes death

2 EED 1. Was Defendant under EED? (Subjective) 2.Was there a reasonable explanation or excuse for EED? (Objective and subjective) Necessity: 1. Belief that conduct is necessary to avoid a greater harm (Subjective) 2. Weighing of evils - Harm or evil avoided is greater than that sought to be prevented. 3. Legislature has not precluded defense. 4. Multi-tiered approach to blame issue. (Could support finding of negligent homicide)

3 + Facts & Inferences (Pros) Began to plan on 18 th day, 2 days in advance (purposeful, planned act) Brooks dissented (necessity?) Dudley committed the act of killing Prayers offered (again shows purposeful, planned act) + Facts & Inferences (Defense) Extreme conditions/for both EED & Necessity (Had no supply of water & no supply of food in rescue boat, Subsisted for 3 days on 1 lb of turnips, Caught a turtle on 4 th day, up to 20 th day) Plan made on 18 th day, when had gone 7 days w/o food & 5 w/o water.

4 (Pros) Stephens & Dudley went to Parker & told him that time had come Parker did not consent; did not threaten others Did not draw lots Dudley kept knife & no remorse Death was probable - not certain Lifeboats not adequately stocked (negligent/reckless?) (Defense) 1000 mi. from land Parker most likely to die & men would have died soon w/o eating No rescue in sight Fortuity of rescue (mermaids) Parker s family has forgiven men Public sympathy 3 lives saved w/ 1 death Honest belief shown by conduct

5 Negotiation Results Man. Man. Minimum Sentence 5 yrs: Will serve one yr, with 4 yrs suspended (possibility of having sentence commuted) 5 Yrs. Deferred. No Settlement

6 Negotiation Results Man. 5 Yrs probation Man. 5 yr. Suspended Sentence No Settlement

7 Negotiation Results Man. 7 Yr. Suspended Sentence Neg. Hom. 6 months in jail with intensive psych. Counseling, 6 months probation with monthly psych evaluations.

8 Clear & Imminent Danger (examine alternatives) Reasonable belief actions will abate danger Maj: Judge weighs evils Legislature has not precluded defense Without blame Common Law Maj: Not for homicide Maj: Forces of Nature MPC Honest Belief? Same Reck. = Reck. MR Neg. = Neg. MR All crimes

9 Justification v. Excuse Justification: Society deems that the defendant made the right choice and did the right thing under the circumstances of the case. Excuse: Society does not condone the defendant s conduct, but rather excuses it on the basis that he or she can not be held responsible for the conduct.

10 Toscano (p. 845) Use or threat of harm to you or another Present, imminent & pending Induce a well-grounded apprehension of death or serious bodily harm (used to be just death) to a man of ordinary fortitude and courage Not Reckless

11 Duress Defense Whether the standard of reasonableness is subjective or objective. Source of the threat. Whether the threat should be imminent. Whether the defense should be excluded for certain types of crimes (e.g. homicide). Whether particular types of threats are required. Whether the defendant should be free from fault.

12 Duress Defense Whether the standard of reasonableness is subjective or objective. Common Law: Reasonable fortitude MPC: Reasonable firmness

13 Duress Defense Source of the threat. Most jurisdictions require that the source of the threat be another person.

14 Duress Defense Whether the threat should be imminent. Common Law: Present, imminent & Pending MPC:

15 Duress Defense Whether the defense should be excluded for certain types of crimes. Common Law: Homicide (including felony murder?) MPC:

16 Duress Defense Whether particular types of threats are required. Common Law: Death or serious bodily harm. MPC: Unlawful force.

17 Duress Defense Whether the defendant should be free from fault. Common Law: Yes MPC: Sort of. Reckless: Defense is barred. Negligence: Negligence Mens Rea

18 Definitions Competency: Person, as a result of a mental disease or defect lacks capacity to understand the proceedings against him/her or to assist in defense. Execution: Ford v. Wainwright (1986): bar on execution of insane. Atkins v. Virginia (2002): bar on execution of the mentally retarded.

19 M Naghten (p. 879) Defect of reason or defect of mind; and Did not know the nature of the act, or Knowing the nature of the act, did not know that it was wrong. Problems with test: Complete impairment Restriction to impairment of cognition Artificial restriction on expert testimony