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CRIM LAW OUTLINE

ELEMENTS OF A CRIME 1. Actus Reus [voluntary commission of an act or an omission that is illegal] 2. Mens Rea [guilty mind blameworthiness entailed in choosing to commit a criminal wrong] 3. Concurrence of actus reus & mens rea 4. Causation and Proximate Cause --Burden of proof is on the prosecution to prove every element beyond a reasonable doubt --No absolute definition of beyond a reasonable doubt (prefer to have a false-negative than false positive) --Burden of proof is on the defense for all affirmative defenses --- MPC 1.12(2): burden of proof is on defense; burden of persuasion is on prosecution --Justification for punishment: retribution, deterrence, rehabilitation, incapacitation LEGALITY 1.02(1): to give fair warning of the nature of the conduct declared to constitute an offense [Note: no MPC Rule of Lenity] McBoyle v. US (SupCt 1931-Holmes): [D arrested for transporting stolen airplane - NG] Legality requires (1) fair warning and (2) clarity; language of statute has common understanding of meaning on land, not sea/air travel --Nulla poena sin lege: no punishment without law --Why legality? (1) Legitimacy of the CJ system, (2) efficiency, (3) controls the PD and avoids abuse of discretion, (4) deters judicial discretion [judge-made law], (5) deters crime, (6) respect for individuals Ex Post Facto Commonwealth v. Mochan (PA 1955): [D arrested for leaving vile messages on CWs machine - G] Act is indictable at CL if its nature scandalously affects the morals/health of the community (indictment upheld in this case); Dissent: lacks fair warning and violates separation of powers by giving legislative authority to courts Rogers v. TN (SupCt 2001-OConnor): If change is foreseeable, court less concerned w/ EPF/notice where it did not play into Ds actions. Bouie to be read narrowly, applies only to indefensible unexpected changes (Scalia dissented) --Ex Post Facto Clause: SC systematically hostile to EPF determinations of law; Rogers special outcome due to (1) year and a day was a CL rule and (2) not a conducttargeting rule --Conflicting ideas of role of judges: McBoyle extending criminal statutes violates separation of powers & doesnt provide fair notice VS Mochan it is the courts job to fill it gaps and correct imperfections in criminal statutes States must be clear & specific Keeler v. Superior Ct (CA 1970): No CL crimes in CA, court didnt extend meaning of statute; legislature later revised PC 187 to include feticide City of Chicago v. Morales (SupCt 1999-Stevens): Court found statute to be unconstitutionally vague; OConnor/Breyer concurrence: focus on lack of standards to assess apparent purpose; Scalia/Thomas dissent: taking discretion away from POs US v. Dauray (2nd Cir 2000): Interpretation tools: (1) Plain meaning of words, (2) Canons of construction limit interpretation to words associated with included words, (3) Statutory construction, (4) Legislative history, (5) Avoiding absurdity, (6) Rule of Lenity (last resort) --Rule of Lenity: Narrowest plausible interpretation to prevent judicial speculation; when in doubt, read in favor of D ACTUS REUS - VOLUNTARINESS 1.02(1): to safeguard conduct that is without fault from condemnation as criminal --Involuntary: done by muscles w/o control of mind; not conscious (concussion/sleepwalking) --Voluntary: doesnt remember, could not control impulse, unforeseen consequences -- cogitationis poenam nemo patitur no one is punishable solely for his thoughts Act must be voluntary Martin v. State (AL 1944): Rule is to be guilty of a crime, have to have committed that crime voluntarily. People v. Decina (1956): Importance of amount of time looked at for voluntariness epileptic voluntarily drove car on public highway, so G. People v. Cogden: [D killed her daughter while sleepwalking NG] Actions done while sleepwalking are completely involuntary People v. Newton (CA 1970): Unconsciousness is a complete defense for homicide (burden on D to prove w/ experts). NOTE: Black Panther case --Voluntary: habit, unintended consequences, some unremembered acts, uncontrollable impulses --Involuntary: hypnosis, reflex, spasm, convulsion (epilepsy), somnambulism --An involuntary act will not negate actus reus if D knowingly put himself in the position to impose the risk (Decina) Must be an act not a thought, verbal expression, or status Robinson v. CA (SupCt 1962-Stewart): Timeline impt voluntary drug use but involuntary addiction, medical condition cant be criminal Jones v. City of LA (9th Cir. 2006): [LA ordinance criminalized homelessness; cannot criminalize being; ordinance didnt target conduct. --Status VS conduct: cannot criminalize status (being a drug addict VS possessing drugs) ACTUS REUS - OMISSION & AFFIRMATIVE DUTY 2.01(3) Liability may not be based on an omission w/o action unless (1) omission is expressly sufficient in the law defining the offense, or (2) a duty to perform the omitted act is otherwise imposed by law No Duty People v. Beardsley (MI 1907): [CW took fatal overdose of morphine that D did not know she had, hides her from his wife instead of getting help NG] No special relationship, no duty to act. Jones v. US (DC Circuit 1962): Affirmative duty from special relationship, etc. necessary, does not arise from moral obligation alone Pope v. State (MD 1979): Dont want to penalize good Samaritans, statute read not to include D, direct relationship required --Policy reasons for NO DUTY: (1) autonomy/freedom, (2) disincentivize dangerous/ineffective rescues, (3) encourage custodial relationships w/o fear of liability, (4) litigation is waste of time --Affirmative duty scenarios: (1) statutory duty, (2) contractual duty, (3) special/status relationship [husband/wife, parent/child, shipmaster/passenger, innkeeper/guest, teachers/minor students], and (4) voluntarily assume duty and seclude victim from other rescue *(5) from Cardwell, when you create peril, affirmative duty to rescue Affirmative Duty: Status Relationships Barber v. Superior Court (CA 1983): public policy reasons for making withdrawal of heroic life support an omission, not affirmative act [Airedale v. Bland similar, Cruzan v. MO DPH said state could require patient consent] People v. Carroll (NY 1999): Stepmother/child relationship sufficiently direct to create an affirmative duty State v. Miranda (CT 2005): Boyfriends family-like relationship not sufficient for affirmative duty to act re: girlfriends baby Affirmative Duty: Assume duty & seclude from rescue Commonwealth v. Pestinikas (PA 1992): G of murder 3rd degree = Secluding from rescue. Affirmative Duty: Create the risk = duty to rescue Commonwealth v. Cardwell (PA 1986): When you create the danger (here by maintain the status quo), assume an aff. duty to act --Bystander duty: MN, RI, VT criminalize refusing to render aid to person in peril; FL, HI, WI require rescue when person is victim of a crime BUT all 6 states have it as only a misdemeanor or petty misdemeanor --Misprision (duty to report): federal law-active concealment required, failing to report not sufficient MENS REA 2.02: Apply the relevant state to each element of the crime, if no def. apply the highest included state MPC on criminal negligence: no criminal negligence unless statutorily clear (1) Purpose: conscious object w/ conduct & result; must be aware of circumstances or believe/hope they exist -Note: purpose satisfied if purpose is conditional (Holloway) (2) Knowledge: conscious awareness that results are practically certain to occur -Note: knowledge satisfied by knowledge of high probabilty (3) Recklessness: conscious disregard of a substantial and unjustifiable risk (4) Negligence: should have been aware of a substantial and unjustifiable risk Intent must match outcome Regina v. Cunningham (England 1957): Malice must be associated w/ intent and foreseeability, not mere wickedness.

CRIM LAW OUTLINE

Regina v. Faulkner (England 1877): Act committed in the midst of another criminal act requires its own intent. Holloway v. United States (SupCt 1999): Conditional intent to harm sufficient to satisfy purpose mens rea --General intent: convicted if prohibited act is intentional based on plain meaning (assault) --Specific intent: convicted if prohibited act done with further intention in mind (assault to kill) Willful ignorance = knowledge United States v. Jewell (9th Cir 1976): Ds positive knowledge or willful blindness satisfy knowledge. Policy: narrow definition of knowingly goes against laws purpose United States v. Giovannetti (7th Cir 1990): Willful ignorance not rewarded, criminal liability still possible Barnes v. US (SupCt 1973): Permitted inference that if D has recently stolen property, D knows it had been stolen --Actively seeking out truth is not necessary, but actively hiding from it is knowledge CL criminal negligence = courts split on civil standard vs. higher standard Santillanes v. NM (NM 1993): [D cut his 7 YO w/ knife while fighting NG] Court found that mental culpability necessary, civil standard for negligence not sufficient for criminal liability State v. Hazelwood (AK 1997): Civil neg standard sufficient, criminal intent not necessary; policy reason: deterrence (stigma of criminal sanctions) --Civil VS criminal negligence: civil-found liable for making someone whole, criminal-spend time in jail, pay fine; same standard, criminal liability helps w/ deterrence, civil has lower BOP CL recklessness=heightened criminal negligence (greater probability of harm + greater degree of unreasonableness) Shimmen (1986): [D trained in karate, showing friend, broke window G] D thought he eliminated the risk, guilty b/c of recklessness STRICT LIABILITY 2.02(3): Presumption of mens rea requirement 2.05: Permits SL where: the punishment is a violation [unless at least one element of the crime has a mens rea req., then it can be higher] AND statute expressly requires SL OR non-MPC crime w/ clear legis. intent to impose SL CL Rule: impose SL when regulatory area of law, public good concerned, information gap between D/CW United States v. Balint (SupCt 1922): proof that Ds knew they were selling it is not required-public good, purpose of statute considered United States v. Dotterweich (SupCt 1943): SL imposed b/c of information gap, public welfare, purpose of FDA legislation; --Courts will usually choose the least cost avoider for liability CL otherwise unwilling to impose strict liability Morissette v. United States (SupCt 1952): strict liability for taking govt property not imposed because non-regulatory and non-public welfare Voluntary delegation of control = full responsibility State v. Baker (KS 1977): If D voluntarily delegates partial control, still fully responsible Staples v. United States (SupCt 1994): SL here may cross line bc constitutionally permitted to possess legal guns but highly regulated area of law; Thomas dissent would req knowledge b/c guns legal to possess in some forms CL factors for assessing SL in the absence of statutory language (1) Public welfare offenses; (2) Violation is neglect/omission, not affirmative action; (3) No injury to person/property, but the danger of such that the statute aims to prevent; (4) Penalty is small (no jail time); (5) Conviction does no grave damage to Ds reputation --Policy reasons for SL: deterrence (greater control, care, etc. taken), conviction for minor offenses (speeding), & public welfare (regulatory cases, information gaps, producers/buyers), administrative ease --Policy reasons against SL: goes against requirement of MR for criminal liability; keeping conservative businesspeople out of industry for fear of liability while inviting those overconfident in avoiding risk Vicarious Employer Liability State v. Guminga (MN 1986): Court cant convict someone w/o knowledge/active involvement; Dissent argues SL State v. Beaudry (WI 1985): Vicarious employer/employee liability; concern: Ds lack of control over the situation --Policy PROs: (1) employers have some level of knowledge, (2) may profit from employees wrong, (3) deterrence --Policy CONs: DP concerns (Guminga) balancing test between due process/personal liberty and the public interest concerns Parental Vicarious Liability State v. Akers: Court struck down a statute imposing vicarious liability on parents for actions of their children --Policy PROs: like exotic animals, children arent free/autonomous; have to take societal responsibility to guide them --Policy CONs: anti-family (discourages people from having children) and offends due process concerns CAUSATION 2.03: causation is 2-part test: factual and legal (only considered for mens rea analysis). (2) Actual result must be in contemplation of D unless a-same result, diff object/person or b-not too remote/accidental and kind contemplated (transferred intent applies). (3) For recklessness/negligence crimes: harm must be within the risk created w/ same exceptions as (2). (4) for SL, harm must be probable consequence of Ds conduct. 210.5(1): criminal homicide for causing another to commit suicide only if by force, duress, or deception State v. Montoya (NM 2002): Action does not need to be factual cause in order to be legal cause State v. Muro (NE 2005): Role of possible benefit from medical care if CW may not have survived w/ care, then D not but for cause Regina v. Blaue (1975): Religious belief preventing lifesaving care is a SUPERSEDING CAUSE NG. Foreseeability: outcome must be foreseeable consequence of Ds criminal wrong [EXCEPTION: eggshell victim] People v. Acosta (CA 1991): Highly Extraordinary Result standard (MPC) and all deaths from chase covered; Dissent: Palsgraf zone of danger test-D created risk on road, not air People v. Brady (CA 2005): More foreseeable than Acosta bc nature of risk created (start a fire, has to be tended to, air likely in this case) People v. Stamp (CA 1969): [CW robbed at gunpoint, later suffered heart attack G] D takes CW as he finds him, neednt be foreseeable (FM) State v. Lane (NC 1994): [D punched intoxicated CW in face, MD thought he was fine, CW died G] CW susceptible to injury b/c alcoholic, no mens rea but felony murder? --If the harm is a foreseeable consequence of Ds action, criminal law says D caused the injury --Eggshell victim: take your victim as you find them; courts willing to lower threshold for causation when D voluntarily assaults/attacks CW Insufficient Intervening Causes People v. Arzon (NY 1978): [D intentionally set fire in abandoned building, unrelated fire on another floor combined with that one to kill a firefighter G] Exclusive cause not necessary if expose CW to risk People v. Kibbe (NY 1974): [Ds abandoned helpless intoxicated robbery victim half clothed in winter by side of road, killed by passing truck G] Foreseeable & risk created by Ds People v. Stewart (NY 1976): [D stabbed CW who underwent surgery and subsequently died from hernia operation NG] Death had to be sufficiently related to Ds conduct Regina v. Cheshire (1991): If at the time of death, the original wound is still an operating AND substantial cause, then D criminally liable for death, even where medical intervention contributes to death --POs/Firefighter: Where there are multiple causes, courts usually find death of responding person is foreseeable if D created the risk to which they were responding unless PO grossly neg. (Kibbe, Arzon) Harm within the Risk: must prove conditions created foreseeable risk of death w/ certain trigger (conditions alone not sufficient) People v. Warner-Lambert (NY 1980): [HARM W/I RISK-D used 2 chemicals they knew to be explosive in manufacturing, explosion killed many employees NG] Harm created was of a fire, not of a deadly explosion *harm w/i the risk analysis only separating factor from Deitsch People v. Deitsch (NY 1983): [D blocked fire exits with piles of material, many employees died during factory fire G] Deaths were foreseeable; exemplify risk created by Ds conduct Commonwealth v. Welansky (MA 1944): [HARM W/I RISK-D owned club where exits were routinely locked to prevent dine/ditch, fire, 100s of patrons die G] Also vicarious liability probably at play Intervening Causes: foreseeable supervening negligence State v. Shabazz (CT 1998): [D stabbed CW, affecting liver, CW died from medical negligence in surgery G] D put CW at risk of being harmed, still liable w/o gross negligence interfering

CRIM LAW OUTLINE


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United States v. Main (9 Cir 1997): [D crashed while fleeing, CW trapped in car, PO didnt move b/c neck injuries, CW died NG] Jury has to find proximate cause --MED MAL: if D injures CW and exposes them to risk of medical negligence, still liable unless gross deviation from standard of care Suicide: providing means to commit suicide is NOT murder People v. Campbell (MI 1983): [D encouraged CW to kill himself, gave him gun, shortly after he left he shot himself NG] Hope for outcome is not intent to satisfy murder; suicide supersedes Ds conduct People v. Kevorkian (MI 1994): [D built assisted suicide machines that let deceased choose how to die/kill themselves painlessly NG] Distinguish btw preparation and participation in final act Washington v. Glucksberg (SupCt 1997): Those who wish to commit suicide have no constitutional right to obtain assistance, but jurisdictions are free to permit assistance by statute (Oregan has done so) 210.5: May be convicted of criminal homicide only if purposely cause suicide by force, duress, or deception. Aiding/soliciting = manslaughter --NYPL for Assisted Suicide: 125.15 manslaughter when D intentionally causes or aids another person to commit suicide differs from MPC, less restrictive approach --Losing will to live: Garcia case, old woman lost her will to live after being raped, died from CHF; medical evidence to show this, court analogized to collapsing from CHF right after incident, G. Intervening Causes: create risk of intervening crime, if harm realized D1 may be liable People v. Cervantes (2001): [D shot gangmember, didnt kill him, 2 friends shot another gangmember that night and killed him G] his act was committed w/ mens rea for murder & retaliation foreseeable --Superseding/intervening cause distinction from tort law applies to criminal liability unless D creates risk of subsequent criminal act Trauma-Induced Death: causal link must not be too tenuous but D liable for driving CW temporarily insane/causing risky behavior Stephenson v. State (IN 1932): [D kidnapped woman and raped/assaulted her, CW secretly bought poison to kill herself, D offered to bring her to hospital, refused, dies G] Prosecution has to show that her desire to die was caused by injuries inflicted by D mentally irresponsible for herself Rex v. Valade : young girl jumped out window to escape rapist vs State v. Presler where exposure to risk was not necessary or caused by D (woman froze 200 yards from fathers home fleeing abusive husband) People v. Kern (NY 1989): [Ds chased CW beating/threatening to kill; ran across highway and hit by car/killed G] Forced dangerous escape, risk was foreseeable Assumption of Risk & Joint Enterprises Commonwealth v. Root (PA 1961): [Deceased invites D to race & recklessly crashes, died NG] Assumption of risk, decs own recklessness State v. McFadden (IO 1982): [D racing decedent, who hits 3rd party killing self and 6 YO G] Decedents own assumption of risk doesnt bar liability for D, brings criminal standard in line w/ tort standard for proximate cause *directly opposes reasoning from Root Commonwealth v. Atencio (MA 1963): [D and deceased playing Russian Roulette G] Intervening cause not present w/ encourage to join enterprise MURDER 210.2: (a) committed purposely or knowingly or (b) recklessly w/ extreme indifference to human life MODIFIED FM RULE: recklessness/indifference presumed if homicide occurs during robbery, rape, arson, burglary, kidnapping, or felony escape Commonwealth v. Carroll (PA 1963): amount of time taken to premeditate is not dispositive can be found in instant you pull trigger (erasing difference btw 1st and 2nd) Commonwealth v. Drum (PA): no time is too short for a wicked man to frame in his mind murder; vague time minimum for finding premeditation Commonwealth v. Earnest (PA): space of time is immaterial if the killing was in fact intentional, willful, deliberate, and premeditated Young v. State (AL 1982): [D grabs gun during card game, starts firing, kills 2 people G] Find premeditation in the instant it took to pull the trigger State v. Thompson (AZ 2003): proof of actual reflection is not required; heat of passion/sudden fight will not be considered premeditated State v. Guthrie (WV 1995): Some level of reflection is necessary to distinguish 1st and 2nd degree murder TOTALITY OF THE CIRCUMSTANCES Anderson Case: If no evidence that D planned the killing, no motive for killing her, looked like an explosion of violence NG of 1st deg State v. Forrest (NC 1987): D took pistol to visit his hospitalized, terminally ill father; sobbing, he shot and killed him, G of 1 st degree murder --Intended killings murder if: w/ intent (with or without premeditation) Unintended killings murder if: recklessness w/ extreme indifference to human life --Distinguishing 1st and 2nd degree murder can lead to problems IDing malice afterthought, problematic outcomes (Anderson, Forrest) premeditation given too much weight MANSLAUGHTER 210.3: (a) committed recklessly or (b) would be murder but under extreme mental/emotional disturbance for which there is a reasonable [and provable] explanation/excuse determined from viewpoint of actors situation under the circumstances as believes them to be (subjective standard) Commonwealth v. Welansky (MA 1944): [D owned nightclub where fire exists purposely blocked/locked to prevent dine/ditch G] Willful modifies the action, not the outcome (blocking exists not people dying); NOTE: no criminal negligence in MA, gross negligence nec. Rex v. Bateman (1925): facts must show such disregard for the life and safety of others as to amount to a crime and conduct deserving punishment State v. Barnett (SC 1951): degree of negligence necessary for criminal liability varies court to court People v. Hall (CO 2000): 4 questions to ask: (1) Did Ds conduct create a substantial and unjustifiable risk of death? (2) Would RP conclude that Ds creation of that risk of death was unjustified? (3) Did Ds conduct constitute a gross deviation from standard of care a reasonable person would observe in the circumstances? (4) Could RP entertain belief that D consciously disregarded the risk? State v. Williams (WA 1971): Negligent only when RP would realize infant needed care and didnt provide it; Court didnt apply subjective standard People v. Burden: D let child starve bc he didnt care negligence/omission where an affirmative duty = active participation, 2nd degree murder State v. Everhart (NC 1977): [SUBJECTIVE] D with very low IQ gave birth to baby in her bedroom, thought it was dead, wrapped it in a blanket, smothered to death could not find culpable negligence Edgmon v. State (AK 1985): [OBJECTIVE] individualities considered for recklessness NOT negligence Walker v. Superior Court (CA 1988): [D elected to treat daughter w/ prayer not medicine, dies G] Religious beliefs not considered on a subjective basis, still as would RP perceive the risks to the child? Commonwealth v. Malone (PA 1946): [Older D convinces younger CW to play Russian Roulettekid dies G] Where a person commits an act of gross negligence & can anticipate risk of death, that act establishes malice. Indifference to human life elevates the crime (MPC) People v. Roe: Another child Russian roulette case: where conduct creates a substantial risk of death, it will override the subjective standard of intent --Intended killings manslaughter if: w/ intent but in heat of passion/emotional disturbance Unintended manslaughter if: reckless, criminal negligence, vehicular homicide --Gross negligence: willfully blind, driven to ignore an immediate/obvious danger --Wanton: arrogance/indifference to risk to human life FELONY MURDER 210.2(1)(b): recklessness/indifference presumed if victim murdered during the commission of: robbery, rape, deviate sexual intercourse by force/threat of force, arson, burglary, kidnapping, felonious escape Regina v. Serne (1887): [D took insurance policies out on house & son, fires set in the house, son murdered NG] People v. Stamp (CA 1969): FM not limited to deaths which are foreseeable eggshell victim rule, direct causal result of felony = FM King v. Commonwealth (VA 1988): Not a foreseeable or causal result of the felony (would be different if crashed b/c low to avoid POs) Commonwealth v. Williams (PA 1938): Act that is a felony must be the proximate cause of the death People v. Phillips (CA 1966): Cannot eliminate the intention of malice from FM People v. Henderson (CA 1977): CA applies an abstract test to see if felony in question is inherently dangerous NOTE that if you apply this standard, some not inherently dangerous felonies that are dangerous as committed will go unpunished for felony murder (Henderson) People v. Stewart (RI 1995): Felony must be considered as committedquestion of fact for the jury if it is inherently dangerous in the particular case Hines v. State (GA 2003): Standard: dangerous as committed if it creates a foreseeable risk of death; Dissent would require a highly probable risk of death to separate criminal liability from civil liability People v. Burton (CA 1971): [INDEPENDENT PURPOSE TEST] Felony must have purpose independent of homicide (armed rob is to get property) Ireland: FM instruction not permitted because it bootstraps mens rea for lesser offense and lets prosecution skip on proving mens rea of 1st deg

CRIM LAW OUTLINE

Wilson: D committing burglary w/ intent to commit assault w/ deadly weapon, same case as Ireland; FM instruction not permitted People v. Mattison (CA 1971): [IND. PURPOSE] Independent purpose and FM would have deterrent effect on drug sales so permitted People v. Hansen (CA 1995): Highlights problem w/ independent purpose test: person who intended to kill may get off more easily People v. Robertson (CA 2004): again shows problem of having independent purpose no mens rea defense available People v. Gillis (MI 2006): [KILLING POST-FELONY-D attempted to burglarize home, while fleeing POs, killed 2 people G] Still fleeing = FM State v. Amaro (FL 1983): [KILLING POST-FELONY] Deaths caused in commission of arrest for felony = FM US v. Heinlein (DC Cir. 1973): Co-felons actions unanticipated (a frolic of his own) = NO FM; applies to killings not in furtherance of the crime People v. Cabaltero (CA 1939): Murder committed in perpetration of crime qualifies for FM State v. Canola (NJ 1977): [MURDER BY NONFELON NG] Murder of by victim co-felon went against the crime, doesnt qualify for FM United States v. Martinez (7th Cir 1994): Death of co-felon qualifies for FM for the other co-felon if in commission of crime (transporting bombs) --FM comes close to SL: sets up the rebuttable presumption that D is guilty of murder & possessed an indifference to human life --In the abstract/CA Standard: Is the crime dangerous in the abstract? (Henderson) Can you imagine it being committed in a non-dangerous way? --As committed/RI Standard: Is crime dangerous as committed? (Stewart) Was risk of death foreseeable? (Hines) Was there a high probability of death? (Hines dissent) --Murder has to be causally related to the accompanying felony to qualify for FM --Merger Doctrine: Combines lesser felony w/ homicide to make them one crime assault as part of facts of a burglary or possessing a weapon as part of armed robbery --Note there are no mens rea defenses for FM because of merger rule, only when D aims to kill (irony of an accidental homicide, better off claiming an intent to kill?) --Independent felonious purpose rule: FM should apply when death arises in the commission of a felony not intended to cause the death (cannot be premised on the felony itself - ex: assault w/ a deadly weapon) --NY FM rule: commit a felony and someone dies, charged w/ murder; Affirmative defense: thought you were committing the felony w/ no reason to think there was harm to human life (unarmed) --Foreseeability promises accomplice liability, but is it necessary for it? --Police reason for FM: deterrence may discourage the felony itself/committing it recklessly --Misdemeanor manslaughter: MISD resulting in death can result in involuntary manslaughter conviction w/o proof of recklessness or negligence (unlawful act doctrine) need only show act caused death --Human Shield Cases: when Ds thrust innocent CW in front of them as a shield and they are killed, FM RAPE Sexual intercourse: Forcibly or under threat of physical injury: (1) must be physical force or under threat of physical force NOT non-physical threats: NO rape conviction for principle who threatened to withhold graduation of his student (Thompson); NO rape conviction for foster parent who threatened to send 14yo girl back to juvie (Milnarish); Jur may accept rape conviction for coercive sex IF its part of the statute (Lovey PA store owner coerced employee to continuing sexual relationship); Taking someones keys = force (State v. Rusk controversial) (2) Implicit threat of force: People v. Warren ct reversed conviction; State v. Alston ct reversed conviction. (3) Deception Force: People v. Evans nave college girl picked up at airport by a charlatan, who brought her back to his apt. When she tried to leave he said look where you are. Youre in the apt of a strange man, how do you know that Im really who I say I am I could kill you. I could rape you Ct reversed conviction; Boro Dr. told patient that she had a terminal illness and the only cure was sex. Conviction rev. (4) NO FORCE: Some courts have removed the force requirement altogether (NJ, WI) Against the will of the victim: Traditionally cts required woman to resist to the utmost. Today the trend is moving away from this requirement (State v. Rusk woman laid passively even undressed herself) Women freeze; Women who do physically resist are more likely to escape, but also more likely to be injured. W/O consent: People v. Warren woman stopped by D in an isolated area he carried her to the woods saying this will only take a minute; my gf doesnt meet my needs. She never protested ct reversed conviction. Is it about notice? If I do what you want, will you let me go without killing me? was enough for non-consent (State v. Rusk controversial) State v. Alston victims ex followed her to school, then threatened to fix her face unless she followed him to a house nearby. She complied. She told him she didnt want to have sex, but otherwise was passive. Ct overturned conviction bc no evidence that victim resisted. NJ + WI have an opt-in policy (State of the Interest of MTS 15 yo girl slept while her 17yo cohab crept into her room and had sex w/her. No affirmative consent = rape) PROVOCATION (EXCUSE) (IMPERFECT DEFENSE) MPC doesnt require provocation, just extreme emotional disturbance Girouard v. State (MD 1991): [D and wife terrible relationship, she taunted him endlessly until he killed her w/ knife hidden behind pillow G] Doesnt fit classic scenario and words are not enough Maher v. People (MI 1862): [D had evidence of adultery btw CW and wife w/i hour of assault NG] Jury question: evidence the kind that would inflame reasonable man? Dennis v. State VS State v. Turner: Dennis found wife in sexual embrance, shot/killed man, provocation defense accepted; Turner found partner cheating, killed him, but since not legally married no prov. def. MORE ABOUT OWNERSHIP THAN EMOTION Commonwealth v. Pierce (MA 1994): [D killed man in response to unwanted but nonviolent homosexual advance NG] Highlights connection of morality and law not the most common outcome United States v. Bordeaux (8th Cir. 1992): [D found out CW raped his mother many years ago, contemplated all day and then killed him G] COOLING TIME he had it State v. Gounagias (WA 1915): [CW committed act of sodomy against D then bragged about it; cumulative effect of taunting caused D to kill CW G] Generally doesnt apply to rekindling provocation Commonwealth v. LeClair (MA 1999): [D had known for weeks his wife was cheating, then killed her in rage G] COOLING TIME he had it. People v. Berry (CA 1976): [Provoked D waited in CWs apartment for 20 hours before killing her NG] Not cooling time but stewing time, contributed to heat of passion State v. Mauricio (NJ 1990): [NONPROVOKING CW-Bouncer ejected D from bar, throwing him downstairs and injuring him; D waited and shot CW he thought was bouncer NG] Provocation did not have to be given by individual killed in this case Rex v. Scriva: [D saw driver hit and seriously injure his daughter, killed bystander trying to stop him G] No provocation defense for non-provoking CWs People v. Spurlin (CA 1984): [D killed wife after intense argument over cheating, still in rage killed his son G] No provocation defense for non-provoking CWs Regina v. Johnson (1989): [ELICITING PROVOCATION-D made threats to Roberts and friend who then threw beer on him and punched him; stabbed Roberts G] cannot use provocation you elicit yourself People v. Casassa (NY 1980): [DIMINISHED CAPACITY-CW told D she was not falling in love w/ him and he couldnt handle it; broke into her apt, brought her gift she refused; killed her G] 2 part analysis for parital excuse under NY law-subjective and objective; subjective picks up on individual characteristics (age, relationship handicap), objective looks for reasonable explanation for passion; TEST: TOTALITY OF THE CIRCUMSTANCES: can fact-finder understand how reason was overcome State v. Klimas: After months of conflict, D shot/killed wife; asked for depressed man standard-rejected. People v. Steele: D was war veteran with severe PTSD; heard helicopter and snapped, killed someone; PTSD not considered (wrong probably) --CL elements of provocation: (1) Provocation that would inflame the reasonable man, (2) Actual anger/heat of passion, (3) Cooling time-not enough for reasonable man to be acting from reason rather than passion --Classic applications of provocation: (1) extreme assault/battery, (2) mutual combat, (3) illegal arrest, (4) injury/serious abuse of close relative, (5) sudden discovery of spouses adultery (CONTROVERSIAL) --CL requires visual evidence of provocation (affair) (WORDS ALONE ARE NOT ENOUGH) --Remember: provocation on its own terms is incoherent: a reasonable man would (theoretically) never kill MISTAKE OF FACT (EXCUSE) (FAILURE TO PROVE) 2.04 Mistake of fact / law Negates mens rea, or Negates material element of offense (statute says its a defense) Not a defense where s act would cause to be liable for another crime but may reduce grade of crime. Regina v. Prince (1875): Ds mistake of fact was not a defense because the act was wrong in itself State v. Benniefield: Prosecution only HAd to prove he knew he possessed drugs, did not have to prove he knew he was in school zone People v. Olsen (CA 1984): [STATUTORY RAPE

CRIM LAW OUTLINE

Garnett v. State (MD 1993): [STATUTORY RAPE-D was 20 w/ intelligence of 11/12 yo; CW was 13; they had sex and she gave birth to his baby G] did not allow D to proffer evidence that he believed she was 16 based on what she and friends told him, even given his mental state Commonwealth v. Sherry (MA 1982): [RAPE-3 MDs take RN cw to house, all have sex with her G] Court uses this to debunk old theory that CW has to fight to her utmost to make lack of consent clear; Q is whether she consented, NOT whether they THOUGHT she consented (M.O.F. is if they had intercourse) --Mistake of fact will always qualify as a defense to the extent that it negates a requisite mental element of the crime (ex: kills X, doesnt know X is PO, no defense unless statute reqs knowingly killing PO) --If mistake is to gravity of the crime, mistake in mental element will not bar liability for any crime, but it will erase the mental element required for the higher crime (ex: steal $$$ watch thinking its $-petty larc) --Statutory Rape: consent falls out of equation because law deems person incapable of giving it; solicitation doesnt count as consent; strict liability in these cases comes from policy aims: protect kids --Courts can deny mistake of fact defense by saying: (1) mistaking the law (not knowing action is illegal) will not be considered a mens rea eliminating mistake, or (2) mistake D made is not the mistake court is looking for (ex: mistake of consent vs. mistake of having sex) Moral Wrong Doctrine If believe doing x but in fact doing y, if x is immoral, then it is okay to hold liable for y. Legal Wrong Doctrine If believe doing x but in fact doing y, if x is illegal, then okay to hold liable for y. MISTAKE OF LAW (EXCUSE) (FAILURE TO PROVE) 2.04 s belief that his conduct is not illegal is a defense where: unpublished or no reasonable notice, or Acts in reasonable reliance on official statement of law (statute, judicial decision, administrative order or grant of permission). If uses (3), must be proved by preponderance of evidence. Mistake (or Ignorance) of Law: usually not a defense. Where Mistake of Law is allowed: Negates mens rea of element of crime; Reliance of official statement (Reasonable notice; Judicial Opinion) SELF DEFENSE (JUSTIFICATION) (AFFIRMATIVE) 3.04 , if not the aggressor, is justified in using force if: (1) honestly believes such force is immediately necessary to protect s person , (2) harm is unlawful, (3) Deadly force is justified if one faces a threat of death, GBH, forcible rape, or kidnapping. A threat without that purpose is not deadly force, even if a weapon backs up the threat. If know/realizes he can be completely safe by retreating must; If unlawfully starts a non-lethal conflict, he does not lose his privilege of self-defense if V escalates it into a lethal assault; has no duty to retreat from home, even from a co-dweller (unless initial aggressor). Retreat: retreat is generally required unless is at his home, is otherwise unable to find safe retreat Evidence: characteristics about aggressor may be admissible if they go towards determining reasonableness of s response to the perceived threat (objective standard) Mistake: Under CL, can be mistaken in his belief that harm is imminent as long as the mistake is reasonable (unreasonable -> imperfect self-defense that knocks down charge but is not complete defense) Self defense, generally (objective standard reasonable person would think): (1) threat of unlawful force, (2) and immediate, (3) and the reasonably believed that the response was necessary to protect self, (4) Proportionate, (5) Non-aggressor, (6) Possibly if a retreat is available, then self-defense not available. NECESSITY (JUSTIFICATION) (AFFIRMATIVE) CL Necessity sometimes permitted: prison break CL Necessity usually not permitted: economic need (stealing food), prevention of possible future harm, homicide, medical marijuana, --ELEMENTS (varies based on jury): Greater harm; No legal alternative (Schoon); Imminence (Leno); Reasonable belief that Ds actions will avert harm; Situation not cause by the D; Nature of the harm (not required to be serious, may even be property damage) --Underlying Judge/jury considerations: Utilitarianism function least cost to society (Schoon); Drafters intent; What seems morally right INTOXICATION (EXCUSE) (FAILURE TO PROVE) 2.08 Intoxication Voluntary: Can be an affirmative defense if a pathological reaction and you are rendered temporarily insane (see insanity). May negate mens rea of purpose and knowledge but not recklessness 2.08 (2) Involuntary intoxication Complete defense if rendered insane as defined by jurisdictional insanity test. To be in a state of involuntary intoxication, you must: Not know substance ingested was intoxicating, or Knew the substance ingested was intoxicating but did so under direct and immediate duress. People v. Hood (CA 1969): battery is included in specific & general intent interpretations; intoxication not considered when determining Ds guilt. State v. Stasio (NJ 1979) Specific intent crime (some additional or future intent require) can introduce intoxication as a defense against mens rea General Intent crimes Not relevant. Cannot use voluntary intoxication as a defense. If causes permanent condition (i.e. brain damage), then it is akin to insanity DIMINISHED CAPACITY (EXCUSE) (FAILURE TO PROVE) 4.02 Basically, there is not specific diminished capacity defense, it is merely a failure of proof defense. United States v. Brawner (DC Cir 1972): Distinguishes insanity (not knowing act is wrong/not being able to control yourself) from diminished capacity (not able to form mens rea to intentionally commit crime); mental health evidence permitted to negate mental element required for crime Clark v. Arizona (SupCt 2006-Souter): 3 reasons for limiting mental health evidence to insanity defenses: (1) controversial nature of some categories of mental disease, (2) potential of mental health evidence to mislead jury, (3) risk of according greater certainty to the evidence than field purports to have; Kennedy dissent: contested evidence is routinely evaluated for its value by jury, this shouldnt be different; not seeking acquittal but lesser charge; LEAVES TO STATES TO DECIDE STATUTORILY McCarthy: Diminished capacity evidence only in specific intent crimes if there is a general intent crime D can be charged with --Different from insanity/incompetent to stand trial: in this case, its whether you were capable of forming mens rea, not whether you had it AND reduces sentence, doesnt eliminate it --Ban on capacity evidence: permit mental health evidence to establish if had the mental state required but ban capacity to form mental state evidence --Allow evidence to negate mens rea for reasons other than lack of capacity only for specific intent crimes (reason is specific intent is aggravating factor in otherwise general offense so want to find lesser sentence) --People v. Wetmore: anticipate practical problem from Clark: statutorily require commitment hearings for diminished capacity defenses --Different from diminished responsibility: there, prosecution proves all elements & D gets lesser sentence; here, mens rea element cannot be proven --Voluntary intoxication does not qualify for diminished capacity INSANITY (EXCUSE) (AFFIRMATIVE) 4.01 Must have severe mental disease or defect (MDD) (Usually NOT recognized are battered spouse syndrome, alcoholism, drug addiction, Post Partum Depression, PTSD, Multiple personality) Cannot manifest itself only by repeated criminal or otherwise anti-social behavior. MPC Test: 1. Lacks substantial capacity to appreciate the criminality (wrongfulness) of conduct, or 2. Conform conduct to the requirements of law. MNaughten Rule (Cognitive Test): has an insanity defenses if, at time of crime, as result of mental impairment: 1. didnt know nature or quality of act (e.g. that holding a flame to a building will cause it to burn), OR 2. didnt know that act was wrong (i.e. impairment caused him to believe that his action was legally permissible). Davis Approach (Volitional Prong Test): (MNaughten Rule plus Volitional Prong) has an insanity defenses if, at time of crime, as result of mental impairment: 1. didnt know nature or quality of act 2. didnt know that act was wrong, OR 3. was unable to control his own actions Look for statutory language distinguishing between wrongfulness and criminality.

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