Professional Documents
Culture Documents
WHY PUNISH?
I. Perspectives on Punishment
A. Retributionist View: punishment is justified solely because the criminals deserve it
1) the criminal law proceeds upon the principle that it is morally right to hate
criminals, and it confirms and justifies that sentiment by inflicting upon criminals
punishments which express it (104)
2) some crimes are so outrageous that society insists on adequate punishment,
because the criminal deserves it, irrespective of whether it is a deterrent or not
(105)
3) Kant - "jus talionis" (right of retaliation) originally developed as a specific list of
punishments for a specific list of crimes. People would collect "blood money."
Eventually, it evolved into a centralized system of punishing criminals much like
our present-day criminal justice system. Punishment must always be proportional
to the nature of the crime.
B. Utilitarian View: punishment is justified only because of the useful purpose that it
serves
1) prevention - punishment serves to deter and prevent criminals from committing
future crimes
(a) general deterrence: threat of punishment deters potential offenders in a
general community
(b) specific deterrence: threat of punishment deters the specific criminal from
committing future crimes
(c) moral influence: threat of punishment inculcates and maintains the habits of
law-abiding conduct in a society
i. externalized belief: when speed limit is not enforced, compliance is
decreased
ii. internalized belief: regardless of whether speed limit is enforced, people
believe that speeding is wrong and therefore comply with the law
iii. criminal law must maintain is "moral credibility" in order to maintain moral
influence over members of a society
(d) deterrence through stigma: loss of status caused by punishment can deter
future criminal activity--conversely, loss of status and the stigma associated
with it can make criminals resort to further criminal conduct--shame is the
origin of many crimes
2) rational-actor model: posits that criminals always weigh the costs and benefits
associated with their criminal conduct and make a determination based upon
such calculation whether to act
(a) violent crimes are especially spurred by "irrational" motives
(b) some criminals just "lose it" and cannot be deterred by any threat of
punishment
(c) most criminals do not have much intelligence and ability to plan
(d) sentencing structures such as "three strikes" may cause criminals to go out in
a "blaze of glory" in the their third criminal act
(e) certainty of detection tends to deter more so than severity of punishment
(f) is it reasonable to assume that criminals know the punishments available for
their criminal conduct?
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3) rehabilitation: an attempt to make the criminal safe to return to society, and also
to live a better life
(a) the general view of the public toward rehabilitation efforts is largely negative
(b) some argue that the personality of the offender and the nature of the crime
must be taken together in order to determine the best means of rehabilitation
(c) success of rehab programs depends usually on the selected subgroups that
participate, the resources available, and whether treatment is a viable option
for those who commit the crime
4) incapacitation: the physical removal of criminals from society
(a) the costs associated with incapacitation are usually high; therefore, it must be
determined if the costs of incapacitation outweigh the costs society might
incur as a result of the criminal's future illegal acts
(b) selective incapacitation: the targeting of select groups of offenders
i. it is unfair to punish people for crimes they have not yet committed
ii. predictions concerning future criminality are usually inaccurate
iii. variables surrounding prediction efforts may raise concerns (age, race,
gender, etc)
iv. efforts might target minorities disproportionately
(c) 1988-1998: prison numbers increased while major crime rates decreased
(d) alternatives to incapacitation may be more cost effective
i. preschool programs
ii. early education
C. Case Studies
1) Regina v. Dudley and Stephens (135) - held that there is no necessity to save
one's own life which constitutes a defense of the murdering of another person;
temptation is not an excuse for murder
2) United States v. Bergman (140) - held that defendant's sentence of 4 months in
prison was sufficient because it served the purpose of general deterrence and any
lesser penalty would have "depreciated the seriousness of the defendant's crime"
3) State v. Chaney (143) - held that a sentence of 1 year imprisonment for rape
running concurrently is too lenient to serve the established purposes of issuing
punishment under Alaska law; sentence dismisses the seriousness of the crime of
rape, does not promote the objective of rehabilitation and reformation, and does
not promote the goal of community condemnation of the defendant's actions and
reaffirmation of the community's norms
4) United States v. Jackson (146) - held that defendant's life sentence for armed
bank robbery on his third felony conviction was justified under a statute
establishing a minimum sentence of 15 years; dissenter argued that a lesser
sentence would have served the same purpose of preventing the defendant from
committing future crimes as a result of his age.
I. Culpability
1. Actus Reus - Culpable Conduct
1) Model Penal Code §2.01: A person is not guilty of an offense unless his liability is
based on conduct which includes (1) a voluntary act or (2) the omission to
perform an act of which he is physically capable.
2) Martin v. State (173) - held that defendant's conviction under a public
drunkenness statute was void where the defendant's appearance in public was an
involuntary act required of him by the police officers
3) People v. Newton (175) - held that the trial court erred in not instructing the jury
that evidence of the unconsciousness of the defendant during the commission of
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(e) mistake
3. Concern of the criminal law is with the level of intentionality with which the
defendant acted, in other words, with what the defendant intended, knew, or
should have known when he acted (203)
4. Different crimes require different mental elements
5. MODEL PENAL CODE - § 2.02, GENERAL REQUIREMENTS OF CULPABILITY:
(a) Objective - A person is not guilty of an offense unless he acted 1purposely,
2
knowingly, 3recklessly, or 4negligently, as the law may require, with respect
to each material element of the offense. "Material element" of the offense
may involve 1nature of the forbidden conduct, 2the attendant circumstances,
or 3the result of conduct.
(b) Purpose and Knowledge - Action is not purposive with respect to the nature or
result of the actor's conduct unless it was his conscious object (1) to perform
an action of that nature or (2) to cause such as result. Some crimes, such as
treason, specifically require intent of purposiveness, as opposed to mere
knowledge.
(c) Recklessness - involves a conscious risk creation and awareness of a risk that
is 1substantial and 2unjustifiable. Resolution of these issues requires value
judgements, usually made by the finder of fact.
(d) Negligence - does not involve a state of awareness, but that a person
inadvertently creates a 1substantial and 2unjustifiable risk of which 3he ought
to be aware. This determination also involves value judgements that are
usually made by the finder of fact.
(e) Intention and Motive - Motive is usually not relevant to criminal liability, but
sometimes to sentencing. In the unusual case, motive might actually be
necessary for a defense (doctor removing life support) or as an element of the
crime (hate crime legislation).
(f) Recklessness and Awareness - Negligence is less culpable because the actor
acts only inadvertently, but with recklessness, the actor chooses to run the
risk of his actions with the knowledge of potential danger. The distinguishing
factor these two issues is the level of awareness. The Model Penal Code
seems to require that an actor, to be found to be reckless, must be aware of
three factors: 1that there is a risk, 2that the risk is substantial, and 3that the
risk is unjustifiable. Is this a correct interpretation?
(g) "Specific Intent" and "General Intent" - Sometimes crimes are classified as to
the type of intent required by them.
i. specific intent: those actions that must be done with some specified
further purpose in mind (i.e. burglary "objective of committing a
felony" being a required element of the crime)
ii. general intent: the defendant can be convicted of the crime if he did
what is classified as an intentional act (i.e. burglar can be convicted of
trespass as general intent crime)
iii. specific intent: a crime that requires the defendant to have actual
knowledge (that is, subjective awareness) of some particular fact or
circumstance (i.e. bigamy potentially is a specific intent crime if it
requires proof that defendant knew she was still married to her
husband)
6) Case Studies:
(a) Regina v. Cunningham (204): held that proof of malice is not satisfied by a
showing of "wickedness" but it must be determined (1) whether the defendant
acted with intent to do the particular harm to the victim and (2) whether the
defendant foresaw that his actions might result in consequences or harm to
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the victim but nevertheless continued to act in a reckless nature that resulted
in such harm.
(b) Holloway v. United States (218): held that a defendant may not negate a
proscribed intent contained within a statute by requiring the victim to comply
with a condition the defendant has not right to impose (i.e. carjacking)
(c) United States v. Jewell (220): held that when an element of a crime is
knowledge, it must be proven that if the defendant was not actually aware, his
ignorance in that regard was solely and entirely a result of a conscious
purpose to avoid learning the truth (bad decision by the court--element in
statute should have been "recklessness")
(d) Santillanes v. New Mexico (211): held that when negligence is the required
element of an offense, the criminal standard of negligence rather than the
civil standard of negligence should be applied
7) Mistake of Fact
(a) Regina v. Prince (226): held that mens rea is not necessary to convict when
the wrongful act committed was mala in se (or wrongful in itself)---a mistake
of fact, on reasonable grounds, to the extent that if the facts as believed were
true, the person would not be guilty of a crime, is an excuse to every criminal
charge
(b) White v. State (227): held that a husband leaving his pregnant wife, in
violation of a civil duty, is guilty regardless of the fact that he was unaware
that his wife was pregnant (mala in se case)
(c) People v. Olsen (230): held that where the intent of the legislature was to
provide extra protection for minors under the age of 14, and the express
intent was not to provide for a mistake of fact defense under the statute, a
mistake of fact as to the victim's age does not constitute a defense----allowing
the defense would somewhat undermine the purpose and effectiveness of the
law (strict liability in cases involving sexual offenses against minors)
8) Strict Liability
(a) Strict Liability: no mens reas is required to convict; usually involved in cases
of "public welfare offenses, regulatory offenses, and public health cases"
(b) United States v. Balint (236): held that strict liability is necessary under a
narcotics statute because the purpose of the act would be obstructed if mens
rea was required to be proven
(c) Vicarious Liability: no mens rea OR actus reas is required to convict; this
theory is largely criticized for being a violation of due process of law under the
Constitution
(d) United States v. Dotterweich (236): held that CEO could be held criminally
liable for the actions of his employees in shipping misbranded drugs
9) Mistake of Law
(a) Common Law rule: mistake of law is no defense unless the mistake negates
an "express and necessary" element of the crime (i.e. kidnapping if the
criminal believes he has authority under the law---negates the element
requiring intent without authority of law to confine or imprison another)
(b) MODEL PENAL CODE §2.04: a belief that conduct does not legally constitute an
offense is a defense to a prosecution for that offense based upon such
conduct when…(b) he acts in reasonable reliance upon an official statement of
the law, afterward determined to be invalid or erroneous, contained in (I) a
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D. Legality
1. Case Studies
(a) Shaw v. Director of Public Prosecutions (290): held that defendant was justly
convicted under statute prohibiting conspiracy to corrupt public morals
because the court reserves the power to create common law crimes and the
statute was not so vague as to prejudice defendant---defendant's conduct was
"mala in se" and therefore application of new common law crime against
defendant does not constitute ex post facto application
(b) Keeler v. Superior Court (290): held that §187 of the California penal code
does not restrict the killing of fetuses---the court cannot hold a defendant
liable under an interpretation of a statute that was not reasonably foreseeable
by the defendant (cannot construe "human being" to include fetuses, thereby
creating common law crime and holding defendant liable)
(c) City of Chicago v. Morales (300): held that application of Gang Congregation
Ordinance constitutes a violation of due process rights because of the
vagueness of the statute and the unlimited discretion allowed to police
officers under the statute----dissent argues that weighing the costs of
enforcing the ordinance (intrusion on civil liberties) is substantially less than
not enforcing the ordinance (disruption of lifestyle of numerous citizens in the
neighborhood)
(d) Papachristou v. City of Jacksonville (307): held that vagrancy law was void for
vagueness and because it permits and even encourages arbitrary
enforcement by police officers----distinguished from the Morales case because
it defines categories of people rather than categories of offenses, it
criminalizes habitual behavior and lifestyles, and it essentially criminalizes
"social status"
i. Vagrancy is a "status" offense and can lead to a perpetual cycle of
incarceration, given that defendant is permanently guilty
ii. People arrested under a vagrancy statute are not likely to have
lawyers on call
2. Common Law Crimes: courts often create common law crimes, and this can raise
issues of fairness and due process. There are certain problems inherent with the
court creating common law crimes:
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(a) Vagueness - common law crimes are often vague (i.e. vagrancy or gang
crimes) so that a reasonable person is not put on notice that he is violating
the law
(b) Incorrect Role for the Court - courts often justify their creation of common law
crimes by stating that they can address the problem before the legislature
will----the court's primary role, however, should be to interpret the law and not
create it.
(c) Enforcement of Morality - when courts create common law crimes that enforce
a moral code, they are giving people the incentive of obeying the law to avoid
punishment; whereas, without the people already had an incentive to obey
the law because doing so is moral, and people want to avoid a bad reputation
as an immoral person. Thus, the new law is an externalized rather than
internalized.
I. Homicide
A. Generally: an unlawful taking of the life of another falls into the category of
"homicide" and the two principle categories of homicide are murder and
manslaughter.
1. Degrees of Murder - murder is usually divided into first- and second-degree
murder. First-degree murder is killing that is "premeditated and deliberate" and
sometimes during the course of certain felonies. All other murder is second-
degree.
2. Two types of Manslaughter - manslaughter is also divided into (1) voluntary
manslaughter, usually a killing occurring in the "heat of passion" and (2)
involuntary manslaughter, usually an unintentional killing committed recklessly,
grossly negligently, or during the commission of an unlawful act.
3. Other statutory forms of homicide: some jurisdictions have passed other
statutory forms of homicide, such as vehicular homicide and negligent homicide
(MPC)
II. Murder--Generally
A. Definition: although there is no specific definition, murder is generally the unlawful
killing of another person
B. Four Types:
1. Intentional murder
2. Intent to commit grievous bodily injury murder
3. Depraved heart murder (i.e. reckless indifference to human life)
4. Felony murder
5. Negligent homicide
C. Elements of Murder:
1. Actus reus
2. Corpus delecti - there must be shown the death of another person
3. Mens rea - the required mental state is usually referred to as "malice
aforethought," but many jurisdictions use other terms. In most jurisdictions, any
of the following four intents will suffice:
(a) intent to kill
(b) intent to commit grievous bodily harm
(c) reckless indifference to the value of human life
(d) an intent to commit a dangerous felony
4. Proximate Cause - there must be a causal relationship between D's act and V's
death.
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B. Provocation - based on the idea that people who have been provoked to violence are
less culpable for murder than those who have been engaged in premeditation. The
provocation is not an excuse to using deadly force, since the defendant's life was
never in danger, but it is used to reduce the charge from first-degree murder to
second-degree murder.
1. Girouard v. State (405): held that where the defendant's defense to murder is
provocation based upon "fighting words," the provocation will not be sufficient to
mitigate murder to manslaughter. The standard shall be a reasonable man and
shall not take into account the "frailties of mind" of the individual defendant.
Some arguments against the court's decision:
(a) words alone could make a person irrational
(b) if people can be provoked by words alone, they could be tricked and provoked
by a LIE, which might lead to the killing of another
(c) regardless of how the defendant was provoked, if he is provoked by mere
words alone, he should get the defense
(d) if a person is truly provoked, he is not deterrable
(e) categorical lists attempting to name every situation where a provocation
defense will not exist are not effective
D. Cooling Time: where there is a long lapse of time between the provocation and the
killing, the jury could reasonably conclude that the defendant had enough time to
"cool off" and therefore the defense will not apply------sometimes events can actually
"rekindle" the original provocation
E. Sexual Infidelity as Provocation: most courts will hold that the sudden discovery of
one's spouse's sexual infidelity is sufficient to provoke any defendant
F. Defendants that elicit the provocation: many courts will not allow the defendant a
defense of provocation where he was the one that caused the provocative conduct
G. What if an innocent bystander is killed?: some courts will not allow a defense of
provocation to the killing of an innocent bystander, even thought the defendant was
obviously provoked.
a nature that a jury is warranted in inferring that the defendant was aware of
a serious risk of death or serious bodily injury" is enough to prove malice and
hold him liable for second-degree murder. There are some problems with this
decision:
i. the defendant was drunk, so how can he recklessly and wantonly have
a disregard for human life?
ii. Is the defendant anymore culpable than any other reckless driver, just
because he had was the unfortunate cause of the death of another?
iii. There is no effective deterrence in this type of case, because the
action is only punished when a death occurs
iv. The court imputes a mens rea upon the defendant in this case, thereby
criminalizing the defendant's actions as murder when it really was an
unfortunate accident
3. The Inherently Dangerous Felony Limitation: a way for courts to narrow the
doctrine
(a) People v. Phillips (459): held that the felony-murder rule will only be applied
in those cases where a felony is (1) inherently dangerous to human life, when
(2) viewed in the abstract instead of in light of the facts of the defendant's
particular case. This gives the felon notice of which felonies the doctrine will
apply to (i.e. armed robbery as opposed to fraud)
(b) People v. Satchell (462): held that felony possession of a concealable weapon
by an ex-felon was not a "felony inherently dangerous to human life." In
doing so, the court narrowed the doctrine and looked at the felony in the
abstract.
(c) People v. Stewart (464): held that the felony-murder rule will only be applied
in cases where a felony is (1) inherently dangerous to human life, when (2)
viewed in light of the facts of the defendant's particular case. The court
rejected the "abstract" approach of California.
(d) Proximate Cause Theory: the felony-murder rule would apply to any death
proximately resulting from the unlawful activity--even the death of a co-felon--
notwithstanding the killing was by one resisting the crime.
(b) People v. Arzon (521): held that where an individual's criminal conduct was a
sufficiently direct cause of the death, and the ultimate harm is something that
should have been foreseen as being reasonably related to his acts, he shall be
held criminally liable. So long as the defendant's actions were a direct cause,
it does not matter that there may have been other direct or intervening
causes.
i. Foreseeability + Sufficiently Direct Cause = Murder --------the Kibbe
case rule
ii. It is not necessary that the ultimate harm be intended by the actor, so
long as he acts with depraved indifference to human life. The ultimate
harm must only be reasonably foreseeable.
iii. Actus reus + Mens rea + Causal Connection = Criminal Liability
(b) People v. Kevorkian (531): where a defendant merely provides the means of
suicide to another, but does not participate in the final overt act of the killing,
he will not be held for murder. Only where it can be shown that the death
occurred as a "direct and natural result" (proximate cause) of the defendant's
act can there be grounds for a murder charge.
i. Novus actus interveniens - where a later action by another person
displaces the relevance of prior conduct by others and provides for a
new foundation for causal responsibility
(c) Stephenson v. State (537): held that where a suicide follows an injury to a
third party, whether physical or mental, inflicted by the defendant, by which
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injury the deceased was rendered "mentally irresponsible," and such mental
irresponsibility was the natural and probable result of his act, the defendant is
guilty of homicide. (i.e. in this case, the deceased was raped and sexually
assaulted by the defendant, and she later committed suicide as a result of her
injury)
(b) People v. Kern (547): held that a defendant attacker was liable for the death
of his victim when the victim was struck by a car as he attempted to run
across a highway to escape from the defendant----the court found that the
defendant's actions were a sufficiently direct cause of the victim's death.
(c) State v. McFadden (548): held that the defendant was vicariously liable for
the death of a fellow drag-racer, and also that the standard for finding
proximate cause shall be the same test of "foreseeability" as used in civil
trials, and refuses to apply the "direct causal connection" doctrine.
(d) Commonwealth v. Attencio (550): held that where the defendants and
deceased are involved in a dangerous act, and the facts show "mutual
encouragement in a joint enterprise," then the defendants are liable for any
death resulting therefrom. In this case, the defendant was guilty of
manslaughter after participating in a game of Russian roulette in which the
another participant was killed.
B. Attempt
1. Theory of Punishment for Attempt - Why Punish a failed Attempt?
(a) H.L.A. Hart's view
i. no punishment for a failed attempt will completely fail in deterring
future attempts, some of which would be successful.
ii. If the criminal succeeds in the attempt, it is likely that he will escape
being caught. Usually criminals are caught when their attempts fail;
therefore, they should be punished.
(b) Another reason for punishing attempt with a lesser punishment than a
successful crime is that it is desirable to give an attempting criminal an
incentive to stop prior to commission of the crime. That is why punishment
for attempt is lesser, even though the attempting criminal has the same
culpable mental state.
(c) The actions of the attempted criminal are just as blameworthy, independent
of whether any injury occurs
(d) If you are attempting a crime, obviously deterrence has already failed---
however, if attempts were punished, that might serve to further deter
criminals from taking the risk of attempting a crime
(e) Argument in favor of applying similar punishments for attempts and
completed crimes is that anti-social and dangerous behavior should be
deterred, and attempts are certainly dangerous and anti-social. The MPC is in
favor of having similar punishments for attempts and the actual crime.
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2. Mens Rea
(a) Smallwood v. State (556): held that an attempt requires a purpose or
"specific intent" to produce the proscribed result, even when recklessness or
some lesser mens rea would suffice for conviction of the completed offense.
For example, an attempted murder requires that the defendant actually
intended to kill or acted with the purpose of killing the intended victim.
(b) Why is specific intent required?
i. to attempt something is to try to accomplish it, and one cannot be said
to try if one does not "intend" to succeed
ii. one who intends to commit a criminal harm does a greater moral
wrong than one who does so recklessly or negligently
iii. utilitarian argument - the requirement of specific intent isolates those
cases in which there is a high likelihood of harm
iv. with attempt, the actus reus fails, and everything relies upon mens
rea. Specific intent insures that you punish only those people who
have criminal conduct on their minds
(b) The Test of Unequivocality -- A state may punish persons who commit and
otherwise innocent act because of an unlawful intent in so acting (i.e.
defendant that lights a match near a haystack might be attempting arson or
merely lighting his pipe)
i. McQuirter v. State (569): held that the jury must be sure beyond a
reasonable doubt that the defendant intended to have sexual
intercourse with the prosecutrix against her will, by force or either
putting her in fear, before he can be guilty of an attempt to commit an
assault with intent to rape.
ii. "It is that quality of being equivocal that must be lacking before the act
becomes one which may be said to be a commencement of the
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iii. Juries have no way of knowing how a reasonable person would react in
the situation
iv. Insists that the jury stereotype by placing the reasonable man in the
defendant's situation (i.e. white businessman subway passenger)
v. Defendant cannot know the rule that will be applied, and thus, it is not
sensible to punish because there is no effective deterrence
vi. The test assumes that a "reasonable" person would not resort to self-
defense in order to protect his or her own life
(c) Arguments for the reasonable man test:
i. establishes an artificial standard to hold the defendant to as a matter
of public policy---it is a goal toward which society should move
ii. it protects against unusually fearful people from being able to kill other
people when such action is unreasonable (although it could be argued
that juries could "weed out" those type of defendants)
iii. the jury will more than likely use a type of reasonable man standard
anyway
2. An initial aggressor may not claim self-defense if he does not first withdraw from
using force
(a) United States v. Peterson (792): held that a defendant, whose actions
constitute a provocation or aggression on his part, cannot claim self-defense,
unless he communicates to his adversary his intent to withdraw, and acts with
good faith to attempt to do so.
(b) The general rule is that a claim of self-defense may not arise from a self-
generated necessity to defend.
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(c) The MPC allows that if the original defender uses excessive force to respond,
the original aggressor may defend against the excessive force with whatever
force reasonable necessary, including deadly force, unless his initial
aggression was intended to provoke a necessity to kill in self-defense.
2. State v. Toscano (845): held that duress shall be a defense to a crime other than
murder if the defendant engaged in conduct because he was coerced to do so by
the use of, or threat to use, unlawful force against his person or the person of
another, which a person of reasonable firmness in his situation would have been
unable to resist. The threat does not have to be imminent, aimed at the accused,
or that the crime committed be a non-capital offense. (chiropractor fraudulently
completed medical forms)
(a) The MPC allows consideration of a reasonable man's reaction to a threat, but
also takes into consideration the age, sex, etc. of defendant except for his
temperament.
4. United States v. Fleming (855): held that prisoner of war that was threatened
during interrogation did not have a duress defense because he did not show a
danger of harm that was immediate---the accused's resistance had not brought
him to the last ditch.
6. Regina v. Ruzic (856): the court overlooked a Canadian statute that required the
threat to be immediate, to be made against the defendant, and must be made by
a person present when the offense was committed, and held that the threat left
defendant no realistic choice and her actions were morally involuntary---
therefore, it would be a violation of the fundamental principles of justice to hold
her liable.
2. Roberts v. People (864): the court held that it is a question of fact for the jury to
resolve as to whether the defendant's mental faculties were so obscured by his
intoxication as to render it impossible for him to entertain the culpable mental
intent, but if they find in fact he did entertain the intent, his intoxication is no
longer relevant as to his guilt.
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(a) Defendant's intoxication could not excuse him from the general attempt
crime of assault, where the intent is inferred from the act itself. However, it
could excuse assault "with intent to kill" because that is a specific intent
crime that requires a showing of the mens rea.
(b) This case shows that it is generally accepted that alcohol intoxication renders
the defendant unable to conceive plans and work toward goals of crimes (i.e.
as in attempted murder)
3. People v. Hood (865): the crimes of assault with a deadly weapon and simple
assault, both being general intent crimes, do not permit evidence of intoxication
as a defense. Other specific intent crimes, such as assault with intent to murder,
will permit evidence of intoxication to negative the mens rea.
(a) The problem with drunk defendants has resulted in courts having to
distinguish between specific and general intent crimes.
(b) General criminal intent is that intention to do a proscribed act. Specific
criminal intent is the intent to do some further act or achieve some additional
consequence. A drunk defendant is usually able to form the intent to strike
someone else, to commit an assualt; however, he would be unlikely to be able
to formulate an intent to commit a battery for the purpose of killing.
5. The general view concerning alcohol intoxication defenses is that a person who
intentionally commits an act is more culpable than one who engages in the same
conduct but without the intent, because he or she is intoxicated.
6. Recklessness Crimes: a majority of jurisdictions have followed the MPC and held
that intoxication evidence is inadmissible to negate the mens rea of
recklessness---although a minority of jurisdictions do allow it.
7. Intoxication defense is almost irrelevant today because many defendants who are
prosecuted for crimes are intoxicated, and most jurisdictions do not want to give
the defense. Remember, an intoxicated defendant, although possibly not as
culpable, is still a risk to the public that must be protected against.
(a) Many jurisdictions only allow intoxication defense when the defendant is so
drunk that he is in a "stupor" condition or unconscious.
(b) Intoxicated defendants are perhaps liable to a certain extent because they
make a free will choice to engage in getting themselves intoxicated. They
must, therefore, face up to the harm that results from their actions while
intoxicated.
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