Criminal Law

Arraignment Defendant is told of charges and enters plea- if not guilty plea, bail is set
ROR: judge can release on his word- can lead to bias for jury if in jail
Bail is set based on criteria (NY): (amount of $ someone has does not determine
bail): Defendants character, Defendants place in community, Defendants
employment and financial resources, Defendants family ties and length of time
living in the jurisdiction, Defendants criminal record, Defendants record for trial
appearances, Weight of the evidence against the defendant, What sentence would
be if convicted?, Can not assess possible danger to society
Purpose of bail: to ensure returns to crt and if cannot make bail remanded to jail
to await trial
When out on bail can assist lawyer in defense, can get a better plea, and can get
involved in program to turn life around
NY State Charges
Felony carries a sentence of more than 1 year
Class A Misdemeanor 6 months to 1 year jail
Class B Misdemeanor up to 90 days in jail
Violation 15 days in jail
Grand Jury (only if felony)
Contains 23 members
Indictment returned with majority preponderance of evidence
No cross
Prosecutor brings witnesses
Not adversarial
Preliminary hearing can be used instead (but pros doesnt want this)
Voir Dire
NY Courts questioning by judge, DA, and defense counsel.
Federal courts Judge only
12 person juries for felonies
6 person for misdemeanors
can not waive jury trial in federal cases
Challenges
o For Cause jurors would be biased / prejudice, jury cannot be fair and
impartial- unlimited
o Peremptory no reason up to 20 for serious cases challenge
discriminatory nature with a baston challenge.
Federal trial both parties have to agree
State court defendant can waive
1

Prosecutor has to consent to waive jury trial

The Trial
1. Prosecutor gives opening statement
2. Defense gives opening statement
3. Prosecutor presents case
a. Prosecution calls witness (direct examiniation)
b. Defense cross examination
c. Prosecution redirect (limited to points made on cross)
d. Defense re-cross (limited to points made on redirect)
4. Prosecution rests
5. Defense motion for directed verdict (granted if prosecution has not met burden)
6. Defense presents case (defendant not put on stand)
7. Defense rests and moves for directed verdict
8. Closing arguments
a. Defense
b. Then Prosecution
(Federal case: Prosecutor, defense, prosecutor again but no new stuff)
9. Jury Instructions
10. Jury has no verdict hung jury mistrial Court can give ALLEN charge but
only twice otherwise prosecution can retry case
11. Jury returns not guilty verdict = jeopardy attached
Plea Bargaining
Agreement between p and d off the record- can be made any time before judge or
jury comes back with verdict. Saves time and $, 95% of cases plea bargained,
guarantee guilty verdict. Is a recommendation to the judge to a lesser charge,
judge will usually go along with it
Sentencing
ACOD Adjournment in contemplation of dismissal. Agree to ajoirn case and
return in 6 months
Probation (1 Year for B Mis., 3 Years for A Mis., 5 Years for felony)
Conditional discharge- discharge with conditions (like drug treatment)
Unconditional discharge- discharge w no conditions
Fine
Parole (felony)
Dismissal
Incarceration
Victim Impact Statement victim talks to judge before sentencing
Doctrine of Due Process fundamental right to due process under 14th
amendment unanimous decision beyond a reasonable doubt.
Adversarial system:

- each side do whatever ti can to strength case independent of truth. Exception prosecutor
in criminal cases has dual responsibility have side to prevail and seek justice

The Role of the Jury (p. 42-65)

Jury nullification when law is accepted as a valid law but jury feels with these facts, the
law should not be applied to these defendants in this case. OR Case in which the jury
finds that law should not be considered a crime to start with.
Duncan v. Louisiana black male charged with simple battery, under LA court was
denied trial. Appealed to Supreme Court in 1968. HOLDING: All serious offenses, those
that carry a penalty of more than 1 year (felony) of incarceration must be granted a jury
trial. (felony). SC held const. was violated when appellant demand for jury trial was
refused. Due process rights were denied (right to a trial by jury) 6th amend right in
order to protect opposition to government is public interest
Dissent: Harlan n Stewart we should not force the federal view of jury trials on the states.
Baldwin v. New York no offense is deemed petty where more than 6 months of
incarceration is possible. Need to be unanimous in NY state.- applies to all states
U.S. v. Dougherty The defendants want the judge to instruct the jury about their power
to nullification. Court also did not allow defense counsel to raise issue before jury
(motion in limini). Trial court found guilty. Appealed on grounds -> was their error on
part of judge? HOLDING: Circuit court found no error was found by not instructing
jurors of its jury nullification, it is @ the judge has discretion to charge the jurors
regarding right to nullify.
Argument against jury nullification : if tell jury have this ability, can be deemed as
encouraging the jury to use nullification to find d not guilty, and lead to anarchy

Punishment (p. 65-105)

Regina v. Dudley Four people are on a boat stranded at sea. Dudley and Stevens discuss
with Brooks briefly. Dudley and Stevens decide since the boy is not doing well under the
circumstances, they kill the boy and then consume him. As a result of this consumption,
they do not die. Soon after, they are rescued and tried. Jury finds them guilty and
originally sentences them to death. GENERAL DETERENCE not really applicable
because the frequency of crime occurring is minimal, but tell the general public they
cannot kill and eat ppl. RETRIBUTION society demands that they must be punished.
They took a life and now theirs must be taken. King lowers sentence.
Why Punish?
Retribution the act, or crime DEMANDS punishment. Ex: the murder demands that he
be punished. Just deserts for committing crime. Society has right to punish defendant for
committing a crime.

Utilitarian Theory punishment is itself an evil because it deliberately inflicts harm on a

human being, therefore we should only hurt criminals if some good is achieved by this
act. The good reason is found in various social benefits to the law-abiding -> reducing
future crimes.
General Deterrence punish violators in order to discourage similar wrongs. stop
the general public from committing a crime. Primary reason for incarceration.
Specific Deterrence / Incapacitation related to individual. Removal of
dangerous individual from society, to protect society from that person
Rehabilitation when it is felt that a person needs rehabilitation and will come
out a better person. Attempts to treat criminals and aid them in returning to
society.
NY Penal law: purposes of incarceration is rehabilitation, confinement
CA Penal Law: does not recognize rehabilitation, purpose of incarceration
is punishment
Retribution: pay for what you did, demand payment for the wrong done.
Punishment justified by moral culpability. Punish because they deserve it
U.S. v. Bergman Rabbi is convicted of crime for defrauding federal Medicaid money.
Sentenced to 120 days (4 months). Judge said will provide just sentence to act as a
deterrence to others, to prevent them from committing the same act
Defense Argument key terms: victimless crime, public humiliation, cost of imprisonment,
sexual violence
Prosecution would argue: deterrence is the big argument. While collar crime must be
deterred.
Punishment for general deterence
Rule: purpose of punishment was general deterrence

Protected Conduct (p. 121-132)

Bowers v. Hardwick Bowers is the attorney general of Georgia (argue the
constitutionality of state laws). Supreme Court grants cert because one circuit court went
one way and another court another way. DEFENSE ARGUES: Right to privacy (9th
amendment). This is derived from Roe v. Wade (abortion), Griswold v. Eisenstadt (can
not criminalize contraception), Loving v. Virginia (interracial marriage-antimiscegenation) BOWERS ARGUES: State has right to use criminal laws to uphold moral
beliefs. 1) we regard same sex sodomy as immoral and 2) it is rooted in history.
COURT UPHOLDS and affirms Georgia law. 5-4 majority
Burger wrote majority saying if homosexual sodomy is a fundamental right, it discards
millennia of moral teaching.
Blackmun dissenting becomes majority for the Lawrence v. Texas.
Powell says should have found unconstitutional and this finding is cruel and unusual.
Stevens dissents stating that this is a privacy issue, not a moral issue.
4

Lawrence v. Texas Texas statute making it a crime for two persons of the same sex to
engage in certain intimate sexual conduct was unconstitutional? Case at bar: two adult
males who engaged in consensual act of sodomy in privacy of home.
Kennedy delivers decision (6-3 opinion) Privacy issue used International decisions,
sodomy is not against human history, personal autonomy.
OConnor concurs stating it is issue of equal rights protection under 14th amendment.
Scalia, Thomas, and Rehnquist dissent stating court should not have granted writ. Scalia
read in press conference. Used stare decesis argument, however, Scalia needs to be
careful because he wants to overturn Roe v. Wade. LEGITIMATE state interest in
criminalizing sexual behaviors -> slippery slope (beastility), believe Bowers was correct.

Legality
Principles:
Clear notice of the statute
Statue must have been on the books at time of the act or the omission to act
making it illegal.
A law passed can not have retroactive effect (no ex post facto laws)
No common law crimes acts deemed criminal by the court and not established
by statute.
Legality is protected by the constitutional right of Due Process.
Omissions constitute a crime when have a duty to act:
- employment k, parent and childm duty created by owning a public facility
Keeler v. Superior Court defendant allegedly murdered an unborn but viable fetus by
kicking pregnant mother in the stomach. Defendant filed for writ of prohibition to prevent
prosecutor from bringing case. Defendant charged with murder (187) Court had to
decide if a fetus is a human being under the murder statute. To do this, they need to look
to the legislative intent of the statute. The statute was enacted in 1850 and it was
determined that they did not intend for the fetus to be considered a human being.
Prosecution argues that a 35 week fetus is capable of independent living. HOLDING: A
fetus is NOT a human being for the purposes of the statute. The court states that people
must have a fair warning -> DOCTRINE OF LEGALITY. A person can not be prosecuted
because the defendant was not aware that killing a fetus was murder. This would violate
ex post facto laws (unforeseen applications of a statute) Common law crimes are not
valid. A court can not expand on the clear meaning of a statute. A FETUS IS A HUMAN
FROM THIS POINT ON.
Defense says violates principle of legality, not foreseeable bc had no way of knowing
fetus is human
Prosecutor: says is it really a surprise that fetus is human?

Void for Vagueness

Principles:
A statute must deem what is criminal otherwise it will be considered vague and is
a violation of due process.
Vagueness means not enough notice, public is not aware of what is criminalized.
When a defendant asks a court to determine if a statute is void for vagueness, then
they are asking that the statute be declared unconstitutional.
When a statute is unclear it may give to much leeway to law enforcement and
leads to arbitrary abuses in discretion by the police and prosecutor.
City of Chicago v. Morales ISSUE: Whether the statute in question is constitutional or
not because of violation of due process rights? Is it void for vagueness? It would be
unconstitutional if it does not give citizens adequate notice or if the statute is unclear.
HOLDING: unconstitutional because it is void for vagueness. The language of the
statutes is unclear and violates the principle of legality.Stevens, Souter, Ginsburg join in
majority. Thomas, Rehnquist, and Scalia dissent saying we need to protect our streets and
this is more valuable interest.
Papachristou v. City of Jacksonville Individuals were convicted of violating ordinance
code for vagrancy. Defendant wanted the statute declared void for vagueness. Prosecutor
argued that those engaged in vagrancy were highly likely to commit other crimes.
Defendants argue that the vagrancy ordinance puts people engaged in normal activities in
a place where they can be arrested for suspicion of criminal activity. HOLDING: The
court declared the statute void for vagueness because it gave too much discretion to the
police and not enough notice of what was prohibited by the statute.

Euthanasia
Barber v. Superior Court Does the removal of life support from a vegetative, but not
brain dead person constitute murder? COURT SAYS NO. Withdrawal of treatment is not
an affirmative act. An omission does not constitute murder if: brain dead, prognosis is
there is not chance of recovery, if surrogate exists, say that they would want to die.
HOLDING: Removal of life support equipment from a comatose patient who is unlikely
to recover is not an affirmative act, but an act of omission, that if in accord with patient or
surrogates wishes, does not give rise to criminal liability. No duty to continue treatment,
once it is proved to be ineffective.
Cruzan v. Director, Missouri Dept. of Health Family of Cruzan, a 26 year old comatose
patient seeking court order to stop life support. The family contested the clear and
convincing burden seeking preponderence of evidence. State argues they have interest in
preserving life. ISSUE: Is the burden of clear and convincing evidence a violation of 14th
amendment. RULE: The patient has a right to refuse medical treatment. HOLDING: It is
constitutional for state to impose burden of proof beyond clear and convincing evidence
to determine when to take off of feeding tube/IV. I can end my life by refusing medical
care.

Washington v. Glucksberg DUAL ISSUE - ISSUE: Does the due process clause
protection of liberty include a right to commit suicide, which itself includes a right to
assistance in doing so? (criminalizing physician assisted suicide) Whether NY statute was
unconstitutional? The appellants are contending that this falls within right to privacy and
are looking for extension of Cruzan to assisted suicide. Attorney general argues legitimate
state interest in preserving life, also could cloud doctors judgment, family members could
exploit situation. District and circuit court held it unconstitutional. Supreme Court
HOLDING: Washington statute is constitutional because the state has a right to protect
and sustain life. The statute criminalizing doctor assisted suicide is constitutional. RULE
OF LAW: IF a state criminalizes physician assisted suicide, such a statute would be
constitutional. Forbearing this right is legal as was done in Oregon.
Oregon Statute: informed and capable citizen who is terminally ill and within 6 months of
death voluntarily requests prescription for medication to take her life. Determine if
terminally ill -> inform patient of diagnosis and progniss (hospice, etc.,)->ask patient to
notify next of kin->refer patient to counseling if appropriate->patient to a consulting
physician who needs to confirm diagnosis. 15 days before initial oral request. 48 drugs.
People v. Kevorkian ISSUE: Does the definition of murder encompass assisting in a
suicide? Appealed to Supreme Court of Michigan. Kevorkian was charged with murder
because physician assisted suicide was not a law then. Suicide machine which Kevorkian
sets up on patients. They actually kill themselves with this machine. HOLDING: It is
murder if the physician participates in the final overt act; a defendant can not be
convicted if they were merely involved in the event sleading up to the commission of the
final act, such as furnishing the means.
Dissenting opinion (Boyle).need to protect the at-risk population, elderly, drug addicts,
etc.,

Elements of Criminal Acts

Actus Reus act
s Rea guilty mind required for all except strict liability offenses
Crimes of omission

Legal duty relationships income tax, lifeguard, police officer, fire exits in bar
Pope v. State if defendant is not in class of people indicated by statute, can not
be held.
Good Samaritan laws

Mens Rea
1. INTENT
Assault 3rd degree intent to cause physical injury to another person and
causes such injury to such person or to a third party
Assault 2nd degree intent to cause serious physical injury to another and
causes such injury to such person or to a third party
7

Assault 1st degree intent to cause serious physical injury to another person
and causes serious physical injury with a deadly weapon or instrument.
**If you
General intent a crime requiring merely that defendant desired to commit the
act which served as the actus reus.
Specific intent in addition to bringing about the actus reus, must have
desired to do something further.
Doctrine of presumed intent person is presumed to intend the natural and
probable consequences of their act.
2. KNOWLEDGE
Common in drugs and stolen property cases must know what you are
possessing is in fact drugs/stolen.
Drugs or guns in car presumed that everyone has knowledge
Drugs or guns in room presumed that everyone has knowledge
3. RECKLESS
When someone knows harm can result, they do the act anyways
A person acts recklessly if he disregards a substantial and unjustifiable risk.
The idea is defendant behaved in a way representative of gross deviation from
what a law-abiding citizen would do.
4. NEGLIGENCE
When person should have known that harm could result from actions but there
was no intention to harm that person (reasonable person standard)

NY assault:
Assault in 1st degree: intent to cause serious physical injury (mens rea) and causes such
injury by means of deadly weapon or dangerous instrument (actus reas), he causes death
of such person - felony
Assault in 2nd: guilty if intent to cause serious physical injury to another (mens rea) by
use of deadly weapons, and causes such physical injury causes (act reas)- D felony
Assault in 3rd: intent to cause physical injury to another(mens rea), such injury caused(act
reas)- A misdemeanor

Defenses

Affirmative defense defendant must prove the defense by a preponderance

of evidence.
Ordinary defense prosecutor has burden to prove defense does not exist
beyond a reasonable doubt.

Mistake of Fact defendant did not do something knowingly. Example: possessing

drugs.- no mens rea not a defense in SL crimes bc d does not need knowledge ot
commit act. d wants jury trial bc of jury nullification
8

Mistake of Law not a defense (I didnt know it was illegal to do..) unless
defendant relies on an official who should know the law, and they tell him its not against
the law. ENTRAPMENT BY ESTOPPEL RELIANCE DEFENSE MUST BE AN
OFFICIAL WHO UPHOLDS THE LAW NOT A LAWYER.
Cultural defense crime is not a crime where defendant is from.

Just Punishment Proportionality

Principles:

Appropriate punishment should be proportionate to the harm that the defendant

caused. It should fit the crime.

Ewing v. California California 3 strike rule: If the defendant has one prior serious or
violent felony conviction, he must be sentenced to twice the term otherwise provided as
punishment for the current felony conviction. If the defendant has two or more prior
serious or violent felony convictions, he must receive an indeterminate term of life
imprisonment. Defendants sentenced to life under the 3 strike rule become eligible for
parole on a date calculated by reference to a minimum term which is never less than 25
years. Ewing who is on parole steals 3 golf clubs valued at $399 each. Sentenced to 25 to
life. Purpose is specific deterrence and incapacitation. HOLDING: Does not constitute
cruel and unusual punishment. It does serve a legitimate state interest. Scalia(majority)
says public safety interest.
Solem v. Helm Defendant is accused of writing a check from an account that does not
exist. Check for $100. Defendant is sentenced to life without parole on this charge. This
was done because of prior felony conviction. South Dakota law says if you are convicted
of multiple felonies, the sentence is increased. Defendant claims that this is a violation of
cruel and unusual punishment. Appealed up the state system and got writ of habeas
corpus to get in front of Supreme Court. HOLDING: The conviction must be overturned
because the sentence is disproportionate. RULE OF LAW: excessive sentences violate the
8th amendment and are unconstitutional. 3 prong test for excessive teste. Clarence
Thomas says 8th amendment protects form of punishment not length. Scalia says only
applies to death penalty cases. Court establishes 3 PRONG TEST:
1. Gravity of offense writing bad check versus life w/o parole
2. Put sentence at hand in the context of states other criminal codes = same sentence
applies only to murder. This is harshest sentence.
3. How other states punish for this crime (in this case Nevada, however, Governor
commutes sentence)

RAPE

NY and NJ- no resistance required and reasonable person standard- prosecutor. absence
of what a reasonable person would believe to be freely given permission
130.35 Rape in the first degree. DA must prove victim did not consent
A person is guilty of rape in the first degree when he or she engages in sexual intercourse
with another person:
1. By forcible compulsion; or
2. Who is incapable of consent by reason of being physically helpless; or
3. Who is less than eleven years old; or
4. Who is less than thirteen years old and the actor is eighteen years old or more.
Rape in the first degree is a class B felony.
"Forcible compulsion" means to compel by either:
a. use of physical force; or
b. a threat, express or implied, which places a person in fear of immediate
death or physical injury to himself, herself or another person, or in fear that
he, she or another person will immediately be kidnapped.
130.30 Rape in the second degree. DA only needs to prove actually have sex
A person is guilty of rape in the second degree when:
1. being eighteen years old or more, he or she engages in sexual intercourse
with another person less than fifteen years old; or
2. he or she engages in sexual intercourse with another person who is incapable
of consent by reason of being mentally disabled or mentally incapacitated.
It shall be an affirmative defense to the crime of rape in the second degree as
defined in subdivision one of this section that the defendant was less than four
years older than the victim at the time of the act.
Rape in the second degree is a class D felony.
130.40 Criminal sexual act in the third degree.
A person is guilty of criminal sexual act in the third degree when:
1. He or she engages in oral sexual conduct or anal sexual conduct with a person
who is incapable of consent by reason of some factor other than being less than
seventeen years old;
2. Being twenty-one years old or more, he or she engages in oral sexual conduct
or anal sexual conduct with a person less than seventeen years old; or
3. He or she engages in oral sexual conduct or anal sexual conduct with another
person without such person's consent where such lack of consent is by reason of
some factor other than incapacity to consent.
10

Criminal sexual act in the third degree is a class E felony.

Statutory Rape
1.
2.
3.
4.
5.

No Mens Rea
Strict liability
Usually by parents
No knowledge is required. NO MISTAKE OF FACT.
Legitimate State Interests:
a. Protect children
b. Bright line rule, removes subjective decisions of defendant.

MTS no affirmative consent is rape

1. Facts: In the middle of the night, M.T.S. entered C.G. bedroom. C.G. Alleges that
M.T.S. raped her.
2. RULE OF LAW: Any act of sexual penetration engaged in by the defendant
without the affirmative and freely given permission of the victim in the specific
act of penetration constitutes the offense of sexual assault. Doctrine of
affirmative consent: no affirmative action that she wanted to have intercourse
a. Doctrine of Affirmative Consent burden on defendant to prove by
preponderance of evidence that the other party DID actually consent.
b. Penetration becomes the ACTUAL FORCE.
c. Rape is now STRICT LIABILITY crime in NJ.
d. Wisconsin has similar statute.
e. Resistance not required- so dont have to say anything for sexual
penetration to be unlawful
Commonwealth v Lopez: rape requires no culpable state of mind- state of mind of
irrelevant
State v. Rusk
1. Facts: Guy took girl home from bar. Took her to apartment where she was
unfamiliar with surroundings and took her keys.
2. RULE OF LAW: Reasonable fear of death or injury will preclude the need to
show force.
a. Maryland case.
b. Jeopardy did NOT attach because their was never a NOT GUILTY verdict.
c. Dissent: Force is an ESSENTIAL element to prove.
DECEPTION
People v. Evans

11

1. FACTS: Man picked girl up at JFK airport claiming to be a psychologist. Girl had
no knowledge of NYC. Claimed that he was doing an experiment. Said, you
could be killed or raped.
2. RULE OF LAW: Deception to INDUCE someone to have sex is valid consent.
a. False Seduction by itself is not criminal.
b. Waived jury trial and had bench trial.
c. Mens rea could NOT be proved beyond a reasonable doubt bc only look at
mens rea of , not that thought his intent was to use force
d. Does NOT matter how victim interpreted words if INTENT is lacking.
e. NY CASE
f. Prosecutor: was sexual intercourse and there was a threat of physical force
when d said I could rape u, etc. D argues, just words of precaution
g. Found not guilty: no forcible compulsion nor threat beyond a reasonable
doubt
h. Jury would have probably convicted him bc jury nullification
Boro v. Superior Court
1. FACTS: Doctor told patient, the only way to cure the disease is to have sex with
me.
2. RULE OF LAW: Inducement is a VALID way to get CONSENT.
a. California case
MENS REA
Commonwealth v. Fischer
1. FACTS: Had sex with victim earlier in the day and then second time was accused
of rape.
2. RULE OF LAW: No mistake of fact.
a. Mistake of fact is departure from current law.
b. Therefore, ineffective counsel claim is not valid.
c. Pennsylvania case.
Commonwealth v. Sherry 1. FACTS: Victim was raped by 3 doctors after leaving a party.
2. RULE OF LAW: Victim is NOT required to use physical force to resist.
Resistance is enough when it is demonstrated that her lack of consent is honest
and real.
a. Massachusetts case.
CORROBORATION
U.S. v. Wiley

12

1. RULE OF LAW: Some corroboration was required to support a rape conviction.

a. Legitimate state interest:
i. Didnt trust women
ii. False charges
iii. Need to explain pregnancy
iv. Blackmail
v. Fantasizing about being raped
vi. Easiest to accuse and hardest to defend
b. U.S. v. Sheppard NO MORE CORROBORATION.
i. Why?
1. Usually done in private places.
MARITAL EXEMPTION
People v. Liberta
1. FACTS: Husband and wife are married, however, by order of family court, they
are to live separated. Under marital exemption, they are NOT considered married.
Defendant took wife to motel and raped her in front of kid.
2. RULE OF LAW: There is no rational basis for a distinction between the married
man and the unmarried man.
a. Equal Protection Claim I am in a group of people (unmarried men) that
will be criminals if I do something (rape) that another group of people
(married men) will not be criminals for doing. 14th Amendment.
b. Defendant claims that statute is unconstitutional because it violates equal
protection clause and is NOT gender neutral.
c. States says Legitimate Interest as why men treated more favorably,
rational basis for exemption- distinction makes sense (arguments):
1. State is protecting marital privacy infringing on marriage
2. Doctrine of Implied consent if married, understanding
that it is implied consent of marriage K
3. Reasons not to trust wife, like motivation to lie bc of
divorce court said this why we have juries.
4. Difficult to prove
5. Not as serious of offense court said more serious
(violation of trust)
6. Historical women is chattel
3. HOLDING: Statute is unconstitutional and therefore marital exemption should be
struck and statute is now gender neutral.
i. Had the entire statute be struck, anyone convicted would be set
free.
4. Model Penal Code HAS marital exemption.
RAPE SHIELD
State v. DeLawder

13

1. FACTS: DeLawder was found guilty of having sex with a girl under the age of 15.
a. Defense wanted to ask victim whether she had sex with someone other
than the defendant and became pregnant as a result of this. The allegation
against DeLawder was a lie made up to justify being pregnant to mother.
2. FRE 412 Questions of prior sexual relations are not allowed.
3. RULE OF LAW: If the purpose of cross-examination (to ask about prior sexual
relations) is to establish a motive on behalf of the complaining witness (victim) to
lie, then those questions CAN be asked.
4. HOLDING: Questions of prior sexual activity can come out since this testimony
is not regarding consent (statutory rape) but rather validity of the claim itself.
5. 6th Amendment right to confront your accuser through cross-examination.
6. KOBE BRYANT CASE dismissed after questioning regarding sexual activities
within 24 hours of supposed rape.
a. Dismiss with prejudice ruling on the merits, once and for all
b. Dismiss w/o prejudice can refile charges
Commonwealth v. Harris defendant accused of rape after refusing to pay for services of
prostitute. Defendant wanted to offer evidence of prior prostitution conviction.
1. HELD: Prior convictions were allowed in to impeach witness.
Neeley v. Commonwealth complaining witness says victim climbs through window and
rapes her. Prosecutions evidence includes an African American hair found on cervix.
Neeley was African American. Defense wants to introduce evidence that complaining
witnesses boyfriend is African American and she had sex with him hours before supposed
incident.
1. HELD: Not allowed because did NOT fall into category of semen,
pregnancy, disease, or physical injury.
U.S. Virgin Islands v. Sciutto
1. FACTS:
a. Victim: claims defendant held knife to her throat and she complied
to ward off harm. Says she kissed him on forehead as part of
prayer.
b. Defendant: driven her home numerous times, she offered to smoke
pot with him, he came on to her first and she finally consented
after he sweet talked her.
c. 1st trial was mistrial because prosecution referenced defendants
prior rape conviction.
d. 2nd trial defendant wants psyciatric evaluation to get out facts about
credibility such as promiscuous dress habits and illicit drug use.
AN ATTEMPT TO SIDE STEP RAPE SHIELD.
i. Expert testimony requires:
1. Inform jury of something they cannot ordinarily do.
2. Field of testimony must be regonized field.
3. Expert must be scholar in field.

14

2. HOLDING: Psychiatric evaluation is inadmissible because behaviors

could be brought up on direct examination if they are relevant. If not
relevant, cannot be brought up at all.
3. Federal Rule of Evidence 412 no prior sexual relations, clothing, etc.,
RAPE SHIELD LAWS
1. Defense attorney CANNOT bring up or question complaintant about prior
sexual history. FRE 412
i. Prejudicial
ii. Focus shift to victim being on trial rather than defendant
iii. Not deter victims from coming forward
iv. She asked for it based on promiscuosness.
v. Witnesses cannot testify to past sexual history either.
vi. Court does not trust jurors to separate past from present.
vii. Defendants argument is the 6th amendment right to face accuser.
b. EXCEPTIONS TO RAPE SHIELD:
i. Prostitutes with a criminal record
ii. prior relations with the defendant
iii. Lying about sexual relations altogether. (must indicate why this
line of questioning), rebutting prosecutions claims of chastity, etc.,
RAPE TRAUMA SYNDROME
2. Prosecution calls an expert to testify that woman was so distraught by the
rape that she never reported it to the police, told family members, or went
to the hospital. Just because she did NOT say anything, does NOT mean
that it did not happen.
NEW DEVELOPMENTS
3. Name and identity of victim is withheld to public.
i. Done to protect from embarrassment HOWEVER
1. Prejudicial because if you are protecting someone, then
they MUST have really been raped.
4. FRE 413 defendants prior commissions of sexual assault is admissible.
Independent of whether defendant actually takes the stand.
HOMICIDE
125.10 Criminally Negligent Homicide
Actus Reus: act which caused death to another person.
Mens Rea: Defendant acted negligently when causing death. Due care is not used
when an infant is left in the car and serious harm results.
125.15 Manslaughter 2nd Degree
1. Recklessly cause the death of another person
Actus Reus: act which caused death to another person.
15

Mens Rea: Defendant acted recklessly when causing death. Reckless is

more serious then negligent because it is when a person knows that death
will result and simply does not care.
3. Intentially causes or aids another person to commit suicide.
Supreme Court in companion with Glucksberg made this statute
constitutional.
Driver of a car that brought someone to a bridge and upon arrival the
person jumped off to kill himself. This is a stretch since victim did the act
him/herself.
Rollins daughter got medication for mother to end life. Never prosecuted
probably because no jury would ever convict.
125.20 Manslaughter 1st Degree
1. Intent is to cause only serious physical injury but causes death of person or 3rd
person.
Actus Reus: act which caused death to another person.
Mens Rea: Intent to cause serious physical injury.
2. Intends to cause the death, but done while defendant is extremely emotionally
disturbed.
Actus Reus: causes the death
Mens Rea: intent to cause the death
The actor is under extreme emotional disturbance (other states call
it heat of passion). Provocation in some states.
Emotional distress: reasonableness of this defense is determined by
the viewpoint of a person in the defendants situation under the
circumstances as the defendant believed them to be.
Defendant has to show by a preponderance of evidence that, when
he took the life of the victim, he did so when he was extremely
emotionally disturbed.
Reasonable person in the defendants position HYBRID TEST

125.25 Murder 2nd Degree

1. Intent to cause the death of another person, and causes the death of such person,
except if affirmative defense below:
a. defendant acted under the influence of extreme emotional disturbance
for which their was a reasonable (objective) explanation or excuse
determined by looking at defendants viewpoint (subjective). This reduces
to Manslaughter 1st.
2. Depraved indifference no intention to take life of another person, but the
reckless conduct is so extreme that it becomes evil. Defendant was aware that
death can result.
16

Ex. Starts shooting in a crowded area does not matter. Extreme drunk
driving causing the death of another. This is really tightened up and few
cases where there is actually a conviction here (at least in NY).
3. Felony Murder enumerated felonies only:
robbery,
burglary,
kidnapping,
arson,
rape 1st,
criminal sexual act 1st,
sexual abuse 1st,
aggraved sexual abuse,
escape 1st,
escape 2nd and
in the furtherance of any of these are while acting alone or in concert
causes death of another person, other than one of participants. no
intention of causing death
Exception: proc cause- not responsible for death of co felon done by
someone else
Affirmative defense:
A. did not commit homicidal act or solicit , request, command, or aid the
commission thereof; and
B. was not armed with a deadly weapon; and
C. had no reasonable ground to believe that any other participant was
armed with such a weapon that could cause death; and
D. Had no reasonable ground to believe that any other participant intended
to engage in conduct likely to result in death or serious physical injury.
Mandatory Maximum Life 15min & 25max on the front. Defendant goes before
board at minimum time served and then can re-appy two years later.
125.27 Murder 1st Degree
1. Intent to cause the death of another person, he causes the death of such person
and:
a. Either: (aggravating circumstances)
(i) intended victim was a police officer in the course of performing
his official duties, and the defendant knew or reasonably should
have known that the intended victim was a police officer.
(ii) peace officer including parole, court officer
(iii) state correctional officer
(iv) if confined in a state correctional facility at the time of murder
(v) a testifying witness
(vi) the paying of someone to kill another and the person who has
taken the money.
(vii) the victim is killed in the course of committing or attempting
to commit robbery, burglary,
17

(viii) more than one victim

(ix) prior conviction of murder
(x) especially cruel and wanton matter (vague)
(xi) intentionally killing 2 or more people within the state in
separate criminal transactions within a 24 month period.
(xii) judge
Used to be punishable by death. The NY law required was that after the
jurors found the defendant guilty, the judge was to charge the jury
regarding sentencing:
You can return a verdict in this case of death. Like all verdicts, this
must be unanimous, you can also return life without parole which
also must be unanimous. If however, you cannot reach a
unanimous verdict (hung) for either, than I was the judge must
sentence the defendant to 25 to life.
Found unconstitutional because it coerced jurors who didnt want
the defendant on the street to agree with the majority so there is no
option of parole.
2. Affirmative defense if:
a. acting under influence of extreme emotional disturbance reduces to
Manslaughter 1st.

CASES:
Commmonwealth v. Carroll NY- no time element, just intent at time of act
a. FACTS: Husband shot wife in head while she was sleeping after a heated
argument.
b. RULE OF LAW: Do NOT need to show any length of time for
premediation [or intent].
i. NY NO premeditation, same as intent.
ii. If there is INTENT at time of act, that is sufficient.
iii. Whether the intention to kill and the killing, that is, the
premeditation and the fatal act, were within a brief space of time or
along space of time is immaterial if the killing was in fact
intentional, willful, deliberate and premeditated.
Maher v. People didnt have to witness provocation
FACTS: Husband hears from someone else that someone is cheating her. Follows
her to the woods and then him to a bar to confront. He shoots this man in the ear.
RULE OF LAW: It does not matter, in a defense of emotional distress, whether
the defendant saw the actual act nor does it matter how long a time has passed.
DISSENT: The provocation must be happen in the presence of the defendant.
18

Affirmative defense NY: EED, d has BOF preponderance of evidence to reduce to

manslaughter 1st degree
FELONY MURDER- purpose- general deterrence, maybe even retribution (but look how
much harm caused and how evil of a person)
Two types of felony murder
1.One in furtherance of a felony
Robbing a convenience store and owner has a heart attack.
No intention to cause the death. (People v. Stamp, p. 438) but for the robbery
the, victim would still be living.
2.One with multiple defendants
Example 1: when you have several individuals committing a felony and one of the
defendants kills someone, everyone involved is guilty of the murder. Even the
look out man a block away.
The shooter is guilty of murder 1st degree but the other defendants are
guilty of murder 2nd.
Example 2: A, B, C and are committing a robbery of D. A kills D when he sees
him reaching for the phone.
A gets murder 1st degree because while committing a felony, intentionally
kills someone.
B, C get murder 2nd degree (felony murder)
NY: Proximate cause state except that agency theory applies in regards to the death of a
co-felon.
Multiple defendants: AGENCY THEORY
Furtherance of enumerated felonies: PROXIMATE CAUSE THEORY
Proximate Cause: The death that occurred must be foreseeable when the defendant
decided to commit the felony.
CASES:
State v. Cannola
FACTS: Canola and three accomplices were robbing a store. A victim of the robbery in
an effort to stop the crime, shot and killed one of the co-felons.
Agency theory No person can be held guilty of homicide unless the act is either
actually or constructively his, and it can not be his act in either sense unless
committed by his own hand or by someone acting in concert with him or in
furtherance of a common object or purpose.
EXAMPLE: Someone is responsible for a death that occurs during the
commission of a felony if that death was caused by someone acting on his
behalf (co-felon). Shooter was acting as an agent for all felons. Limits
felony murder to this type of scenario.
Proximate cause theory does not matter who does the killing, if the killing was
done in furtherance of the felony, then the felons who were committing the
robbery are responsible for the death.

19

HOLDING: felony murder doctrine not extended to the lethal acts of third persons (store
owner) not in furtherance of the felonious scheme. One co felon cannot be held liable for
the death of his co felon if killed by third party. NJ reject prox cause, and accepts
AGENCY THEORY STATE. Whereby would be liable if killing was done by one of
the co felons, since co felons act as agents of one another in furtherance of crime COURT
TO STRIKE CONVICTION AND SENTENCE OF DEFENDANT FOR COFELON
MURDER. Identity of killer central issue. Only if act done by co-felon or acting in
concert with the felony, so not applicable is done by officer, victim, bystander
RULE OF LAW: One felon cannot be responsible for the death of one of his co-felons.
DA argues: under prox cause, d should be held liable bc death of co-felon is a reasonable
consequence
People v. Hernandez Proximate Cause
FACTS: drug deal gone bad. Hernandezs behavior with gun caused the death of a
police officer at the hands of another police officer. Santana was in handcuffs at
time of shooting.
HOLDING: Hernandez guilty of murder 2 because NY follows the proximate
cause theory and but for Hernandez and Santanas commission of a robbery, the
police officer would NOT have been killed. It is foreseeable that shooting a gun at
a crowd of cops would result in the death of someone. held liable bc it was
highly foreseeable that their actions would result in a death and it was foreseeable
that police would attempt to top the crime
RULE OF LAW: NY is a proximate cause state.
argued: should not be convicted bc did not fire fatal shot, and police officers are
trained and its foreseeable that they would shoot another copPeople v. Matos
FACTS: Matos is committing robbery of McDonalds, police enter in. Matos tries
to escape via rooftop. Cop pursues and dies as a result of falling down an airshaft.
RULE OF LAW: NY is proximate cause state
HOLDING: Matos is guilty of murder 2nd because it is foreseeable that escaping
via roof would cause police to follow and therefore a grievous death as a result of
the unsafe conditions of being on a roof. but for test. had he not committed
robbery and attempted to escape, officer would not have pursued him and then
fell. ds conduct was a direct cause to police death bc ultimate harm should have
been reasonably foreseen
Policy argument: ant police officers to know that if die in furtherance of pursuing
felony someone will be charged
could have argued it isnt foreseeable that officer would have fallen down
airshaft and died
Doctrine of Presumed Intent based on nature of the crime, someone assumes the
natural and probable consequences of the crime.
Possession alone of a gun, knife, etc., is NOT enough to show intent to kill under
Murder 2nd but intent enough to show serious injury (manslaughter 1st).

20

The location of the wounds, comments made prior to the stabbing, and number of
wounds can indicate intent to murder 2 vs. manslaughter 1.
At what time do we look to determine the mens rea: anytime before the act. Does not
matter what the plan was, but the intent at the TIME of ACT. Premeditation is NOT a
concept in NEW YORK.
Only thing that counts: Was their intent at the time of the attack?
Hate Crimes - some crimes such as assault are made more serious if the motivation of
the accused were to act out of racial hatred. Challenged constitutionally all over the place
on the ground of 1st amendment right to free speech. Almost all courts have not accepted
that argument but that there is a legitimate state interest in preventing crimes that are
motivated by racism or hatred.
DEATH PENALTY- no death penalty in NY
Arguments for unconstitutionality of DP: equal protection (more blacks were getting it,
greatly impacted blacks), arbitrary ( de process rights were being violated), cruel and
unusual punishment
Furman v. Georgia
HOLDING: Death penalty unconstitutional under 8th amendment, cruel and
unusual punishment. Arbitrary application and discriminatory towards minorities.
Greggs v. Georgia
ISSUE: Does new Georgia statute comport with Furman.
RULE OF LAW:
o Aggravating factors / mitigating factors are in place to deal with the
arbitrary nature of the death penalty. Also an attempt to rectify the equal
protection clause claim.
o A bifurcated trial innocence guilt phase / sentencing phase
o Automatic right of appeal
DISSENT: Evidence out of Furman show that capital punishment is not necessary
as a deterrent to crime in our society.
One of 2 cases Justice Powell said he regretted. This and Bowers v. Hardwick.
Aggravating factors
Victim is a peace officer
Court officers, probation officers
Correction facility officers
In prison when committed the murder
If victim was going to testify against defendant
Contract killing (for the hitman and the contractor)

21

committing a felony and as part of crime or fleeing, he kills a person (actual act of
killing)
SAME AS CIRCUMSTANCES OF MURDER 1st.

Mitigating factors
No priors
Extreme emotional disturbance
Euthanasia or assisted suicide
Moral, or mental incompetence
Partner is a minor
Duress or domination by another
Age of defendant
(Scott Peterson trial : used mother as mitigating factor)
Anything the defense wants to introduce
*if agrivating factors outweigh mitigating, hen jus can determine to impose DP
Death qualified jury in birfurcated trial

If someone can impose the death penalty.

Same jury for guilt innocence phase as sentencing phase
If juror is against the death penalty, they cannot sit at all in a capital case.
Whats wrong with the death qualified jury?
o Minority groups and women are more likely in favor of death penalty.
o Not a jury of peers because you are knocking off peers by death qualified
jury.

New Yorks Death Penalty

The NY law required that after the jurors found the defendant guilty, the judge was to
charge the jury regarding sentencing: You can return a verdict in this case of death. Like
all verdicts, this must be unanimous, you can also return life without parole which also
must be unanimous. If however, you cannot reach a unanimous verdict (hung) for either,
than I as the judge must sentence the defendant to 25 to life. Found unconstitutional
because it coerced jurors who didnt want the defendant on the street to agree with the
majority so there is no option of parole.

Atkins v. VA
RULE OF LAW: Unconstitutional to sentence a person to the death penalty if they are
mentally retarded. Usually IQ of 70 is mentally retarded.
22

Why?

Mentally ill do not understand their actions

Bad witnesses
Inability to assist counsel

McCleskey v. Kemp
ISSUE: Claims that the death penalty impacted on blacks more than whites and therefore
a violation of equal protection clause.
Baldus statistician if a black person kills a white person = death penalty
If white person kills black person = no death penalty
5-4 decision Would have to show in a particular case that race is a factor in a
particular decision.
Powell retired and then spoke about the two greatest mistakes he made. Both were 5/4
decisions and he was in the majority.
Death penalty should be unconstitutional
Bowers v. Hardwick same sex sodomy was constitutional.
Recent case ISSUE: Cruel and unusual punishment lethal injection is not cruel and unusual
punishment.
1st drug put defendant out of it like anesthesia
2nd drug paralyzes
3rd drug causes the massive heart attack death
Claim was that drug number 1 was not working @ time drug 3 was given and therefore
great pain was suffered
Amicus brief someone not a party to the case that submitted a brief.
Vetinarians dont use the 2nd drug how can we use on humans?
HOLDING: S.C. says NOT cruel and unusual punishment.

23

DEFENSES:
SELF DEFENSE
Must be disproved by the prosecutor beyond a reasonable doubt
Elements of Self Defense
o Threat must be immenint
o Threat of force must be force to cause serious bodily injury or death
o Defendants response must be no greater than required
o Defendant must belive himself to be in danger of death or serious bodiy
harm
o Like John White case.
Limitations to Self-Defense:
1. NY: Doctrine of Retreat the defendant may not use force for self-defense if he knows
that he can with complete safety avoid the necessity of using physical force by retreating.
Execption: no obligation to retreat if one is within ones home. Your home is your
castle. You can hold your ground.
Applied to Goetz case if subway doors were open, could he have left in
complete safety.
Question of fact: complete safety? For the jurors
2. Initial aggressor if the defendant started it all. The first person to have threatened the
use of force. First person to threaten physical force cannot claim they acted in self
defense:
Exception: If initial aggressor communicates to the other person that he has
withdrawn the threatened use of force, then he can used self-defense.
EXAMPLE: if a threatens b with a chair and then b pulls a knife
out, then a cannot claim self-defense because he was the initial
aggressor.
Were a to withdraw the threat AND clearly communicate the
withdrawal of the threat (lets forget about also does not have to
be verbal. Putting chair down and leaving) to b, and b still comes
at a, then a can use gun or force to protect himself. (self-defense
works)
NY: self defense is appropriate except if the actor was the initial aggressor, however, even
if the actor was the initial aggressor his use of physical force in self-defense is justifiable
if he has withdrawn from the encounter and effectively communicated such withdrawal to
the other person but the other person persists in threatening the imminent use of physical
force.
Does not need to show serious physical threat, just physical threat.

24

Self-defense is called justification defense. We understand why he did what he did.

Geotz Case:
Bernie Geotz case, gunned down 4 black youths who he thought were going to
rob him, belived self defense was required and a defense to the charges.
The problem in the case was that he was no longer in immenint danger when he
shot the last victim
Self Defense in NYS CPL 75.15 a hybrid theory, a reasonable person in the
defendants potisition and having defendants history.
Acquitted him and bought the self defense argument
In determining the imminent deadly force use reasonable person in
defendants shoes. This is hybrid test.
State v. Abbot:
Facts: A man who wounded his neighbor with a hatchet during a brawl is charged
with assault for not avoiding the confrontation.
The use of force is only justified if the defendant could not have retreated safely
Obligation to retreat is only if deadly force is to be used by the person claiming
self-defense
No obligation to retreat in your own home
U.S. v. Peterson:
Facts: A man who dared another to enter his house, then shot him dead is charged
with murder, but claims self defense.
Held: The aggressor in a conflict culminating in death cannot invoke the
protection of self defense unless he (1) attempted to withdraw from the violent
altercation in good faith and (2) communicated his intent to his adversary by word
or deed.
Initial Aggressor the first person to threaten the use of force, then that person
cannot claim self defense
If the initial aggressor communicates his intent to withdraw then he is not longer
the initial aggressor.
Self Defense = justification- NY Hybrid objective- reasonable person standard
allowing the introduction of what the d perceived the situation to be
Justification in NYS is an ordinary defense, the prosecutor has to prove beyond
a reasonable doubt that the defense did not exist.
Battered Womans Syndrome
State v. Kelly: NJ
One of the ways to raise self-defense, by having an expert witness prosecutor does
not want the witness to testify. Expert testimony relevant to Ds defense bc could
have helped jury understanding whether a reasonable person would have acted the
same way as the d did under the given circumstances expert testimony admissible
25

to prove whether SHE reasonably faced imminent risk of injury, but inadmissible
to prove that their belief was objectively reasoable
When an expert can testify:
o Beyond common knowledge of jurors
o Testimony is scientifically reliable
o Witness must be deemed an expert

Abuse cycle:
Tension building ( minor beatings and verbal abuse) acute battering incident (more
serious in this stage when women can no longer tolerate anger-> contrition (loving
behavior asking for forgiveness)
What is Battered Womens syndrome?
Afraid to tell police because husband will become angry and get worse beating.
Cyclical nature of beating contrition phase
Financial resources
Shame and humiliation
Guilt from failing marriages

Prosecutors objection to calling an expert witness:

o Putting the victim on trial, leading to jury nullification
Not a valid objection because jurors have a right to nullify, not
prosecutorial grounds for an objection
o Evidence cannot pander to the emotions of the jurors and may prejudice
the jury
o Experts can confuse the issue
o Not relevant to all these other woman who this expert has worked with
Could confuse because they wouldnt focus on this particular
woman, rather battered women as a whole
The question of whether she was battered is for the jury.

Women are trapped its learned hopelessness and if they grew up in a violent
household can perceive the cycle as normal
State v. Norman
Woman killed her husband while he was asleep
Imminent inevitable
Defense argument
o attacks were frequent and increasingat any second he could wake up
and attack then
o tries to make inevitable synonymous with imminent
Court rules that there is no confrontation since he was sleeping, therefore selfdefense cannot be used
Dissent
26

o question is not whether the threat was in fact imminent but whether the
defendants belief in the impending nature of the threat, given the
circumstances as she saw them was reasonable in the mind of a person of
ordinary firmness
o evidence presented in the case sub judice revealed no letup of tension or
dear, no moment in which the defendant felt released from impending
serious harm, even when the defendant slept

IMMINENT is key word.

Dissenting judge: if there is no escape, then the next attack could be fatal and is
therefore imminent. This could happen when he awakes. Throw away reasonable
person and replace with reasonable battered person. Therefore, it is reasonable
imminent fear to be present at any second.

Extreme emotional disturbance.is the backup in this situation if self-defense and jury
nullfication fails. If it doesnt get her off altogher it at least will serve to reduce
Manslaughter 1st
Statutes that criminalize someones status:
NY: public intoxication staute was decriminalized bc cops wer arresting peple right
before their time was up so they could get overtime
Robinson v CA:
criminalized being addicted to drugs. USSC held you cann0t criminalize addiction bc
no actus reus, cant criminalize someones status (merely being addict or prostitute is not a
crime). Need an act, like holding heroin in hand
- defense argues: addiction is a disease, 1 day in jail cruel and unusual punishment
- possession fo heroin can be criminalized, even though symptom of disease
Powel v Texas: charged in state of intoxication in public lace, alcoholic.
- actus reus here, crime of being drunk while intoxicated
US v Moore:
Conviction for possession of heroin, d said improper bc an addict. Argument not brought
bc is found in possession of drugs (actus reus) as opposed to merely criminalizing
status which was done in robinson.
- If court were to say that addicts could be found in possession, more ppl would
become addict and it would violate equal protection clause
- Affirms conviction bc lack of control is not a defense, cant use rationale of
robinson

27

Duress:excusedefensewhenDcommitsacrimewhensomeoneisthreatening
greaterharmwhereifDisfoundtohavevalidduressdefense,Disnotguiltyof
crimeatallcompleteandtotaldefensetocrimewithwhichDwascharged
AffirmativedefensewhereDhasburdenofpleadingby
preponderanceoftheevidence
Holdingguntotaxicabdriverandforcinghimtoactas
getawaydriverinrobbery;taxicabdriverhasvalidduress
defense
NECESSITY
Necessity Defense - the defendant chooses to break the law in order to avoid a
greater evil.
Necessity is a defense if breaking the law is the lesser of the evil than the greater
would have occurred if the person would not have broken the law.
The greater evil must be reocognized by society as a greater evil.
The judge must make a determination when the necessity defense is raised that it
is an evil.
There must not be no other opition to avoid the greater evil than breaking the law
to succed with a necessity defense.
Necessity is also justification defense. The defendant was justified breaking the law in the
name of necessity.
lessor of two evils defense clearly broken the law but the reason they broke the
law was to avoid a greater evil which would have occurred had they not broken
the law.
Ex: driving down the street and kid falls in front of the car, the driver swerves to
avoid the kid and drives into some property of the stores but he did so to avoid the
greater evil of hitting the kid.
ex: regina v. Dudley kill one person which is lessor evil than if they didnt all
four would have died.
The great evil cannot be something that is in fact legal.
Cannot burn down the abortion clinic at 2am when no one is their is a lessor evil
than what that clinic does all of the time which is the killing of fetus. THIS DOES
NOT WORK. Cannot claim the necessity defense here because what he is
claiming is evil is legal.
The judge must find that the great evil the defendant is claiming is one which society
recognizes to be an evil. Only then can the defendant proceed to use the necessity
defense.
28

Self defense is sort of a form of necessity. It is always predicated on necessity.

Self-defense is not necessity though because it is not the weighing of evils as necessity is.
People v. Unger:
Facts: An escaped prisoner claims his escape was justified to escape inmates
death threats and sexual assulats
Held: Prison escapees may claim the defense of necessity and duress.
Defense of necessity could be used in this case of escape due to forced
homosexual sodomy.
There are five conditions for escape that go to the weight and credibility of
defendants testimony. These five conditions are:
1) Prisoner is faced with specific threat of death, forcible sexual act, or substantial
bodily injury in the immediate future;
2) There is no time to complain to authorities or complaints have been futile;
3) There is no time or opportunity to resort to courts;
4) There is no evidence of force or violence used towards prison personnel or
innocent persons during the escape;
5) The prisoner immediately reports to the proper authorities when he has attained
a position of safety from the immediate threat.
Duress

Duress is determined by a reasonable person standard

Duress is a complete defense
Duress being forced to do something
o Legally a person is threatening another to break the law for that persons
own good
o Excuse it is understandable

State v. Toscano:
Facts: A chiropractor, accused of insurance fraud, claimed the common law
duress defense, claiming a co-conspirator forced him to cooperate through threats.
Held: Under NJ law and the MPC, duress is a defense to any crime, other than
murder, if the defendant committed the crime because he was coerced by the
use/threat of unlawful force against himself/another, which a reasonable person in
the situation would be unable to resist.

Duress and necessity can be hard to distinguish. Duress is when someone commits the
crime but the claim is that someone was threatening them with serious physical injury if
they did not go ahead and break the law.

29

Taxi cab example: robbery with taxicab driver.

If their was a gun to cab drivers head, he can raise duress.
physical force was threatened against him had he not broken the law.
Necessity or duress to save a 3rd person is appropriate also.
Does not need to be a family member.
Public Committee Against Torture v. State of Israeli
Who brought claim: a number of people claiming they were tortured by Israel in ways
that is illegal.
Issue: is the torture and assault against someone the lessor evil compared to a bomb going
off somewhere causing injury to hundreds of people? Further, does the necessity defense
apply?
S.C. holds that Rule of law has to be followed: suspects have not been convicted of
anything. Torture violates the rule of law.
order prohibiting torture has been made absolute.
Decision however, does not negate possibility of an individual security official engage in
torture and then that person could use the necessity defense.
Dissent: feels that ticking time bomb should be allowed
This decision is looked to and cited as precedent to prohibit torture
necessity is a complete defense it exonerates them all together
self-defense is also a complete defense
duress complete defense
FOR duress, necessity, self-defesne if their is some way out, they MUST chose that
option.
Husband sitting on couch, wife shoots and kills:
What would your choice of verdicts be as a matter of law if you were to conclude that the
threat was not in fact an imminent threat. SELF-DEFENSE FAILS. NO JURY
NULLIFICATION.
Choice of verdicts:
manslaughter 1st emotional distubance
defendant proved by preponderance of evidence burden exists
battered woman expert was so disturbed, bad shape,
DEFENDANT MUST RAISE THIS DEFENSE
Or murder 2nd

30