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Defenses

meet beyond reasonable doubt standard for every material element.

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GENERAL RULE OF MISTAKE: Modern approach to mistakes is that any mistake that negates the mental element required by the statute is a failure of proof that requires acquittal because prosecution has failed to

MISTAKE OF FACT
Mistake of fact is a mistake as to one of the material elements of a statute. Handout 13: Selling Alcohol to Minors What kind of mistake did the defendant make? Reckless, Negligent, Purposeful, or Knowingly? Does Ds mistake as to Vs age preclude conviction? o Reasonable mistake would be one in which V looked mature for her age, has a perfectly reasonable ID that she shows to D, then there is no negligence or recklessness. o Negligent mistake is one where he should have been aware of Vs age and his mistake was grossly unreasonable. Negligent mistake even if D genuinely believes V is 21, but it is unreasonable for him to think so. o Reckless mistake is one where D is consciously aware that V is underage, but convinces himself that she is 21 and disregards the warnings that she is not 21 (i.e. she says she left her ID home, etc). But this mistake is a genuine mistake and it is not a purposeful breaking of the law. Reckless mistake: conscious awareness of risk. Negligent Mistake: Not conscious of a risk (gross deviation) Suppose the statute was that whoever knowingly sells alcohol to a minor shall be guilty of a felony? o D wouldnt be liable since he did not know to a practical certainty that she was not 21 But if no mistake required, then strict liability. If mens rea of the D is lower than that required by statute, then that negates the mens rea requirement and acquittal is proper.

In general: Ignorance or mistake of law is no excuse. Page 227 Note 8 A person is guilt of burglary if he enters (conduct; reckless) a building or occupied structure (attending circumstances; reckless) with purpose to commit a crime therein unless the actor is privileged to enter (attending circumstance; reckless). (a) Mens rea not present since it wasnt with purpose to commit a crime

Common Law treatment of mistake of law For specific intent, any type of mistake is excusable if and only if it negates the specific intent part of the crime o D takes Vs property, thinking it belongs with him and he is charged for larceny. If D made a mistake and thought it was his, then he lacked the specific intent, thus he is not guilty of larceny, although he may be liable for a lesser crime, such as trespass. For general intent, only a reasonable mistake exculpates the defendant, not otherwise. o Rape is a general intent crime at common law. D has nonconsensual crime with V, but believes he is having consensual sex with a prostitute. If D reasonably believed she consented, then he is not guilty and is thus exculpated. But, if he unreasonably believe she consented, then he is liable. Even tort negligence would not be exculpatory.

MISTAKE OF LAW Usually not talking about a situation where there is a difference in interpretation of the law between the court and the D, but it is more a situation where there is a reasonable mistake where D was not aware of the law. General modern approach is not to divide between general and specific intent. The modern rule is reflected in MPC 2.04, any mistake acquits. o o 2.09(2): in absence of mens rea term, the default rule is that the defendants knowing of the offense is not an element. Ask if any mistake negates the mens rea requirement There is a negligence standard for mistake of law. D bears burden of proof that he was not negligent in his lack of awareness of the law A legitimate policy question.

U.S. v. Baker Ignorance of a law is no excuse People v. Bray In 1969 D plead guilty to being an accessory after the fact in Kansas. He was sentence to two years probation which he completed. Later he moved to California where he held several different jobs. On different job applications asking whether he had ever been convicted of a felony he wrote conflicting things. Basically he did not know if his probation in Kansas was considered conviction of a felony. Issue: Is ignorance or mistake of fact is a defense to the crime. Prosecutor must prove he was convicted of a felony in the past in order to prove a felon in possession of a concealable firearm. First must prove if D had knowledge of his felony status. Trial court refused to instruct the jury that D must know he is a felon to be convicted under the statute. Ct. of App. awards retrial because of trial courts error. Status of felon a mistake of fact or mistake of law? Its both. o Its a question of law because we need to know how felon is defined. o The status of a felon is an attending circumstance Lessons Learned: o Mistake of governing law (mistake about the very law he is being prosecuted under) v. mistake of non-governing law (mistake about some ancillary legal issue such as civil law, i.e. in this case how Kansas defines misdemeanor) Hopkins v. State Hopkins says he misconstrued the statute because he relied on the state attorneys claim that he would not violate any law by advertising him marriage business. Trial court not allowing the mistake as a defense Question of whether this is a good faith effort to make sure that he was not violating a statute Although he did take pre-emptive effort to go to a lawyer, evidence shows that he probably knew that he was violating the law. As a policy concern, dont want to let Ds go scotch free just because they went to a lawyer. Green v. State (1877) Commonwealth v. Twitchell

The parents of a seriously ill two and one-half year old child had a common law duty to seek medical treatment for their child, the violation of which, if their conduct was wanton or reckless, could support a conviction of involuntary manslaughter in the child's death, and the spiritual healing provisions of G. L. c. 273, Section 1, a statute concerning child support and care, and not apply to foreclose the parents' prosecution for involuntary manslaughter

273, Section 1 is only insulating you from neglect, not from reckless failure to provide medical attention Why did Twitchells nonetheless get a remand? And what differentiates this case from Hopkins? o Difference in authority relied on. Here it is an attorney general, who is designated as an authority in interpreting the law.

Example from Handout 14: Whoever knowingly destroys (conduct; knowingly) the property of another (AC; knowingly travels forward because no break in the sentence) without consent (AC; again knowingly travels forward) shall be guilty of a felony Suppose your roommates out of town, and you deliberately take both caps to school, intending to return your roommate's cap later, without him ever knowing that youd borrowed it, but then you had that frustrating criminal law class, and you destroy both caps suppose further, however, that you were unaware that its a crime to destroy inexpensive property belonging to another person o What kind of mistake is this? fact or law? can you be convicted? Mistake of governing law. In this case, there is no mistake that would negate any of the elements, because she knowingly did each of the elements. now suppose that you originally received both of the caps as gifts, but being a generous soul, and not really needing two identical caps, you hand one to your roommate, remarking, here, you can have it. Unfortunately, based on your mistaken understanding of property and contract law, you think that you still legally own the cap because you gave it to your roommate for no consideration and without written transfer of title; in fact, under Michigan law, your conduct and words effectively made your roommate the owner of the cap o What kind of mistake is this? fact or law? can you be convicted? Cheek v. United States: D attended classes on why taxes are unconstitutional and charged for willful tax evasion. He didnt believe that wages were part of income tax and moreover, thought income taxation was unconstitutional. Does Cheeks actual beliefs that wages were not part of taxes and that income taxation is unconstitutional. Willfulness means D knew of a legal duty and chose to voluntarily and intentionally disregard it. Jury should be allowed to consider evidence showing he made credible efforts to study and understand before reaching mistaken conclusion of law. Good faith misunderstanding negates willfulness. Mistake of law as to element 2 (property of another). Mistake as to non-governing law. MPC 2.08(2): not an element of the statute to know the law

But, he had been involved in civil cases challenging the constitutionality of taxation and never won, and thus he was willful. So the defendant's unconstitutional argument is not an innocent mistake and can not be used as a defense. But the court did hold that the defendant's belief that wages are not income can be introduced as defense and it is up to the jury to decide whether these beliefs are honest. The IRS code is complex enough that it cannot be taken that everyone understands the terms. The court remanded the case for further proceedings consistent with the decision of this court.

TAKE AWAY: If the statute is defined in such a way that the defendant has to know of the law, then any mistake that negates the mens rea absolves the defendant of liability.

VOLUNTARY INTOXICATION See Handout #15 MPC 2.08 If D can show that he was intoxicated (even voluntarily), then negates any purpose or knowing mens rea, and thus an acquittal is proper. But, not if the statute requires recklessness or negligence MPC 2.08(2): When recklessness establishes an element of the offense, if the actor, due to self-induced intoxication, is unaware of a risk of which he would have been aware had he been sober, such unawareness is immaterial. Hypothetical Imagine you have defendant drunk at a bar playing darts, and in his intoxicated state, doesnt realize he doesnt have aim and throws a dart and it hits the artery of a bystander, killing him. To charge defendant, must show that he recklessly caused death of another. He was criminally negligent. But, his unawareness because of intoxication makes him reckless, and thus, he is guilty. Now imagine, a sober defendant who knows he has bad aim and disregards the risk that he will hit someone and throws a dart and again, it kills a bystander. Policy question raised by voluntary intoxication: Do we want to equate these two scenarios? o In the drunk case, there is not conscious awareness. Thinking of it from a retributive standpoint, then someone who isnt aware of the risk shouldnt be as culpable as someone who is consciously aware of the risk. State v. Cameron S.C. says that under the circumstances, that there was no need to submit voluntary intoxication evidence to the jury Voluntary intoxication can somehow a defendant from forming a purpose or knowing a fact and if so, negates mens rea, and thus, there is no element that can be proved beyond a reasonable doubt. But what level of intoxication need there be for a court to submit evidence of voluntary intoxication to the jury. S.C. in this case looks at objective evidence and finds that her faculties were not so obscured by the wine that she couldnt form any purpose. Is court usurping the role of the factfinder here? o Court is worried that a jury would misinterpret voluntary intoxication in its legal nature Viewing the evidence in a light most favorable to the defendant because there was not enough evidence for a jury to find that she was sufficiently intoxicated to negate mens rea.

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Factual Causation But For Causation Arise only in cases where you have two or more actors who simultaneously or subsequently cause a prohibited result and difficult to say who should be held liable. If something would have happened regardless of defendants actions, then the defendant is not a factual cause of the harm. Facts: Defendants girlfriend physically abused his child and that resulted in a serious abdominal injury to the child. Then the defendant came home from work and physically beat up the child. The child stomach got swollen and soon the child died in the hospital. The defendant was charged and convicted for manslaughter. Now the defendant appeals and argues that the childs death was the result of his girlfriends actions and his actions did not cause the death of the child. Defendant claims that he should be acquitted because the state could not prove beyond a reasonable doubt that his abuse caused the death of his son or accelerated the death of his son He may have aggravated the injuries, but he did not accelerate the actual death. States experts could not give conclusive testimony that Defendant accelerated his sons death. Acceleration Test for Liability: But for Defendants conduct, would the victim have died when he died? X intentionally stabs V in the chest. V will died from loss of blood in 15 minutes. Simultaneously, D intentionally shoots V in the leg. V would not died from this wound by itself. V dies in ten minutes. o X is factual causation. D also liable for accelerating death. Same as above, except that V dies in 15 minutes. o X is factual causation. D did not because X did not accelerate death. X stabs V. Simultaneously, D stabs V. Neither would by itself would kill V. V dies from loss of blood from the two wounds. o Both substantial factors. X shoots V in the heart. Simultaneously, D shoots V in the head. V would died instantly from either wound. V dies instantly. o o o Concurrent sufficient causes. Neither is but for cause. Theres a way of dealing with such situations while modifying the but for test. Substantial factor test not good enough? Proximate Causation A person can be a factual cause and not be a proximate cause at all. Not a matter of applying consistent principles to the facts; rather, its a policy or normative judgment. Very fact intensive. An event has to be a factual cause for it to be a legal cause. Analysis should always begin with is there a but for cause. Second factor: An event is a factual cause if and only if but for defendants conduct would the proscribed social harm that the statute sought to prevent happened when it did? For proximate causation, an event that possibly breaks the chain of events is called a superseding, intervening cause. A responsive intervening cause does not break the chain of events unless it was unforeseeable and abnormal. A coincidental cause is one that would have happened anyways. A coincidental cause breaks the chain of events unless it is foreseeable. Sloane says its a legal fiction, that seems logically incoherent. But, in reality less of an issue that what it is made out to be sometimes.

Oxendine v. State

Questions on page 216 (Dressler)

Proximate cause is a normative, policy judgment; cannot be resolved always with black letter rules. Question is whether the risk was foreseeable. Given all the circumstances, is it just to hold the defendant liable or is the result so remote.

Kibbe v. Henderson Intervening but for causes: Victim wandering out to the middle of the road (a responsive intervening cause). Is it but for that action he would not have been run over; Blake running him over while speeding (coincidental cause). What is the effect of these events on Kibbes liability? Responsive intervening acts do not break the chain of causation unless they are highly unforeseeable and highly abnormal. Coincidental causes: would have happened whether or not the initial cause happened and will break the chain of causation unless they are foreseeable. LaFarve Test: The controlling question for such intervening causes are whether the ultimate result was foreseeable to the original actor and whether the victim failed to do something easily within his grasp that would have extricated him from danger. Isnt it irrational to walk in the middle of the road in the middle of the night? So is that a defense for Kibbe. Good case for indicating why causation matters. Depending on what we determine the level of causation is determines how many years they will be sentenced. Page 221, question 5. o X and V steal property from Ds riverfront home. The thieves flee in a boat. D fires two shots at the boat, seeking to kill or scare the miscreants. X, fearful of another shot, dives into the water (responsive cause), caused the boat to capsize (responsive cause). V drowns. o Can an omission ever function as a superseding intervening, cause so as to relieve an earlier wrongdoer of criminal responsibility? Omissions: no matter how unforeseeable an omission may be, it will not cut off liability of an earlier positive act. Intended Consequence Doctrine Any intended consequence of an act is proximate. Any intended consequence of an act is proximate. If an intentional wrongdoer gets what the result they wanted in the general way they wanted, they should not escape criminal responsibility even if an unforeseeable event intervened. Regina v. Michael. Even though there are two intervening causes, why not bad to hold mother liable. In general why do we disfavor proximate cause when there is attenuated circumstances. With proximate cause we are trying to pinpoint liability. With attenuated circumstances, it is difficult to pinpoint the person liable. Apparent Safety Doctrine: When a person reaches a position of safety, original wrongdoer no longer responsible for any ensuing harm. When the victim could have removed herself from harms way and doesnt the chain of causation is broken. Free, Deliberate and Informed Human Intervention Doctrine: Criminal law does not hold person responsible for resulting harm if there is an intervening cause that springs from free, deliberate and informed human intervention

MPC Approach 2.03(2) deals with crimes defined by purpose or knowledge o Proximate causation exists if actual result is within the purpose or contemplation of the defendant when he or she acted, unless Minor Differences Exception: The actual result differs only in that the identity of person is different; or identify or property is different. Catch-all Exception: The extent or seriousness of damage is different than the defendant contemplated or intended. 2.03(3) deals with crimes defined by recklessness or negligence. o Element of a crime is not established if the actual result is not among the risks that defendant was aware of (reckless) or should have been aware of (negligent), unless Velasquez v. State: Idiotic drag race, but Victim decides of his own accord to turn around after race and begin to race and kills himself. May driver of car in reckless and illegal drag race be convicted of vehicular homicide for death of other driver, when sole basis for imposing liability is D's participation in race? Defendant a but for cause? Yes, victim would not have died when he did because there would not have been a race. Apparent safety? Yes, they reached apparent safety once race ended. Chain broken. Free, deliberate & informed human intervention? Yes, victim made decision on own to continue reckless driving. Responsive ? Yes; Foreseeable? Yes?; Highly abnormal? No. Held: If reckless conduct is agreed on knowingly and voluntarily, D is not proximate cause of V's death for manslaughter if he has nothing to do with it otherwise. V killed himself by his own reckless driving. It would be unjust to hold D criminally responsible for his death. Issue is responsibility, not causation. Court: Victim killed himself. Should not impose liability for just being a participant Issue isnt really causation, talking more about normatively, about policy, who is the one who should be held culpable for the harm done. The actual result differs only in that the identity of person is different; or identify or property is different. The extent or seriousness of damage is different than the defendant contemplated or intended.

Homicide
Intro

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Homicide itself is not criminal. Homicide may include killing in self-defense, execution, murder. All forms of homicide have the same actus reus (a killing of one human being by another). Changing the levels of homicide depends on mens rea. Murder (post 1972) o 1st degree: Death penalty eligible (not automatic because unconstitutional). After conviction, another tribunal decides whether to impose death penalty. o 2nd degree: life term

Voluntary manslaughter killing after adequate provocation or upon sudden heat of passion or based on honest but unreasonable belief of need to use self-defense. Involuntarily manslaughter Reckless or negligent manslaughter. Malice Afterthought at Common Law: o Purposefully or knowingly causing death (Express Malice) o o o Purposefully or knowingly causing grave bodily harm (Implied Malice) Depraved Heart Murder (Implied Malice) Felony Murder (Implied Malice)

MPC: Manslaughter is reckless killing.

Francis v. Franklin Prisoner visits dentist for checkup, looks for car and points guns at people in the way, reaches someone's house and demands car. Man slams door and the gun goes off and victim gets shot and dies. D did not mean to shoot V, therefore no intent. o Evidence that there was no intent: Every other person encountered during escape indicates lack of disposition to use force. Jury has said there is sufficient evidence that there was intent to kill, notwithstanding that evidence. So, why is the court looking at this case on appeal? o There is a presumption that someone of sound mind intends the harm they caused, but that presumption is rebuttable. Thats problematic because that presumption may confuse the jury because unconstitutionally shifts the burden to the defendant which goes against the Due Process Clause which requires the State to prove elements beyond a reasonable doubt. o But could reasonable have found all elements beyond reasonable doubt, in light most favorable to prosecution? Look to prior knowledge of guns, motive to kill, fact that he already faces life in prison for previous crimes. U.S. v. Watson Premeditation: o To prove premeditation, must show that D gave thought before acting to the idea of taking a human life and reached a definite decision to kill. Deliberation is proved by demonstrating that the accused acted with consideration and reflection upon the preconceived design to kill; turning it over in the mind, giving it second thought o o There has to be some interval between thought and act; What is really essential is that Defendant reflects and contemplates the effects of their actions. But, where do we draw the line in sufficient time as a matter of law. Officer here said twice that killing the cop wasnt worth it. Was that sufficient time to deliberate? To what extent should defendants panic matter? A contingency plan is still a plan.

Factors to consider if premeditation happened: o Evidence of prior threats of hostility between the accused and the victim; o o o o Evidence of a motive, which suggested a purposeful or reasoned killing; The manner and circumstances of the killing, for example, an interruption and subsequent continuation of the killing; Evidence of the defendants behavior before the killing The origin of the murder weapon.

Impulsive killing? Man thinks wife is having affair, she becomes distraught and stabs husband. Why punish more for premeditated killings? o More blameworthy. Is premeditated defendant more dangerous to society? Premeditator selects effective means and premeditates in such a way that he is likely to succeed. o o Premeditated murders harder to catch. Higher penalties deter. What about mercy killing? Less blameworthy.

Cardozo on Premeditation pg. 337 A few seconds is all that case law requires, but the difference between premeditation and mere intent is a matter of life or death. Legality principle problem. If premeditation is so under-defined, what possibility is there that a layperson will be able to differentiate. Are we comfortable with leaving the decision to the jury to distinguish between premeditation and mere intent. Murder MPC 210.2 (b): Takes last two categories of common law murder and folding them into one. Says its also murder when reckless killing with extreme indifference to human life. Extreme indifference is presumed, but may be rebutted. Voluntary Manslaughter: Manslaughter: Homicide constitutes manslaughter when: o It is committed recklessly Homicide which would otherwise be murder, but committed under influence of extreme mental or emotional disturbance for which there is reasonable explanation or excuse. Provocation in Common Law: Person must in fact be provoked and the ordinary person in that situation would have been provoked and not have cooled off? Adequate Provocation: Better term: 'Mitigated murder: D does have mens rea required for murder (purpose/knowledge) but D has been provoked in some mitigating manner. Categories of Adequate Provocation: o Provocation must arise from act of V or D must so believe. o o o o o o Physical attack (unless V entitled to use self-defense) Mutual combat Threat of extreme physical attack Unlawful arrest Witnessing adultery Violent sexual assault on close relative

Issues: What constitutes provocation? And how immediate does the killing have to be after the provocation to make it manslaughter rather than murder. How much cooling time is too much? Should there be categorical rules or flexible standards? o If we do use standards, how flexible ought they to be? Should it take into account cultural, age, etc?

Is manslaughter adequate partial justification or partial excuse?

People v. Walker Facts: V provokes D into a knife fight, cuts him. D subdues V, then cuts him with his own knife. Killing is manslaughter if killing occurs during course of a fight and killer's blood has had no time to cool. o Serious provocation turns murder into manslaughter. o o o o Partial Justification Under the doctrine of partial justification penalty is being reduced because the law thinks that his actions were not as wrong as they would have been if there was no provocation. At common law, the defendant is only going to receive partial justification instructions to the jury if the following two elements are met: o o Actual provocation (subjective) Reasonable person in the situation would have been provoked. (objective) No self-defense argument because the victim was already unconscious. All we know is that Walker was provoked and acted in the heat of passion. Partial justification just overreaction. Really what is meant here in terms of the reasonable standard is what an ordinary man would do. If provocation turns ordinary man to kill because of irresistible passion.

Subjective v. Objective Provocation for Partial Justification: o Objective: Provocation must be adequate from reasonable person standard. Causes reasonable person to lose self-control. o Subjective Provocation: Must consider whether characteristics of individual actor would make them more or less likely to react to provocation.

Rules for common law partial justification: o Must come from Victim o o o Words themselves not adequate provocation Victim's defensive force against D's initiating force not provocation D must have strong evidence that wrong he avenges really occurred

Partial Excuse Must act immediately after provocation Victim need not have been the cause of provocation Victim's defensive force against D's initiating force can be a provocation.

Killer may be wholly, though understandably, mistaken in ascribing bad conduct to V. Cooling Time Ex Parte Fraley Facts: V kills D's son. 10 months later, D kills V. Held: There was a cooling off period of 10 months between so no manslaughter, but murder.

If reasonable person would have cooled off before killing occurred, passion is held to have subsided even if person is actually enraged. Reprovocation Should there be a doctrine of reprovocation Why dont we recognize the idea of slow burn.

Case humiliated victim by sodomy when the defendant was unconscious ugangy? (find in book note case I think) He brags about his exploits and people start taunting defendant in the course of two weeks Provocative act could it not be the immediate provocative act but the whole course of two weeks slow burn theory could say he killed only after the insult that was made was the one that finally broke the camels back At common law this slow burn theory wasnt allowed should we allow this theory ? given what we know how people actually act people do let anger just build up inside and then the policy consideration old traditional rule seems to reward those that fly into range immediately rather than protect those they try to restrain themselves and just cant make sense psychologically Remember categorical approach the judge has more power and decides whether provocation by matter of law compared with a more flexible approach let the jury sympathizes with defendant allow slow burn Courts worried that slow burn would be a proxy for revenge killings thats why not a category at common law that is allowed is this a worry? slow burn to be said to be reprovocation rather than revenge Isnt revenge if it happened immediately? are we saying provoked action is equal to revenge what is the distinction revenge killing more of designed, premeditated revenge this is what the legislature is trying to protect against. But couldnt all revenge be in fit the category of the straw that broke the back wont defendants always make that argument that this was just slow burn and not revenge? but juries arent stupid good at assessing credibility according to professor Rowland v State 1904 CL Becky is wife and lives with fried Husband arrives to see wife hears Thorns voice Hears thorn say make haste Backroom they are in the act of adultery very clear trying to do something Doctrinal holding simply the court says adultery is a classic category of provocation that would led to voluntary manslaughter at common law and goes further by making his shooting mistake of hitting his wife doesnt matter can shoot either or the wife or husband Question transferred intent if it wasnt allowed to voluntary shoot wife and he did this mistakenly do you transfer intent is this murder or involuntary manslaughter Doctrine here should it be accepted? that this is a categorical rule? we would think that ppl would react if they saw their wife or husband do that especially at this time they say its only right that husband should do this does this send a troubling normative message that its alright to kill? Texas it was actually completely justified thats a problem

Victoria Norris often times these killings are due to separation cases thats why the killing occurs because their love ones leave and therefore the sentencing goes down Is the problem with doctrine deeply sexist doctrine that assumes roles for men and women or deeper problem? is it no longer limited to legal spouse but someone who you had been a long term partner with even homosexual relationship we believe that there is partial excuse - should it be? Jenns q would it be better to say its a single crime homicide and then grade it constitutional reasons and procedural reasons If they have different penalty scheme then it has to be different crimes But what we are talking here is just whether it takes sentence down questioning if the length of relationship the strength of the relationship should lessen sentence. Should we allow long term non-martial relationships under this rule? question of norms Issue changing view from hurting someones property to just talking about relationships the law cant separate from the social norms from society so if we do proceed with this rule then we are making statements about marriage and if we repeal it also says something Thats why people get worked up about gay marriage says something if the state puts the stamp on it something about our views.
p. 358 Traditional categories limited categories we talked about yesterday and remember words could never be provocation Note 9 potential new categories thinking of it as a partial excuse ppl are so worked up that they dont have the ordinarily amount of reason that they would normally have Sandy defrauds lee and then lee shoots him dead voluntary manslaughter? it is provocation what message are we trying to send? trying to say its reasonable to do this lessen your sentence when someone just wrongs you in this way is this the right message Sandy racists and doesnt promote lee because black very wrong but we have the law to redress this other ways to do this legal rules legal avenues Either of these could be worse or better. But we dont allow this by allowing adultery does this say this is different? Is there something about adultery? Make argument that relationship wrongs evoke more passionate responses then money crimes or racial wrongs? Nick thinks a better way is not categorically have rules but look at the circumstances leave it up to the jury up to the circumstances very close to the MPC People v. Berry modern approach Many states adapt the MPC to different categories to the common law Very disturbing interesting case Israeli women are fucking crazy thats what we learn from this case She married man and then three days went to Israel Came back and told defendant about relationship with Yako (Paiges dreamboy) Fighting with him, taunting him with yako, says she might be pregnant by yako Then later went to movie and heavy petting Went home, promised sex and then refused saying she was saving herself for yako Led him to choke her

She went to hospital Really the slow burn scenario slowly irritating defendant to a certain point that he strangles her p. 360 Cali standard what is the inquiry for the jury in cali provocation law here? opposite to the CL does the evidence generate the heat of passion that would naturally be aroused in the mind of the ordinarily reasonable person this is the standard what was the defendants reason at the time of the act 2 weeks after the first taunting - was his reason so obscured by passion not revenge so disturbed that it would render ordinarily reasonable man to act from passion rather than judgment Rule approach to a standard approach right here Some limits of the jury ex. Passion cannot be revenge but it can be anger, fear or another violent, intense emotion and it can be WORDS contrary to CL It can happen over a long period of time cooling period is not so important here it only goes to whether it is reasonable for the person to still be provoked Overall, is this standard based on partial justification or partial excuse is the idea that Rachel partially justified her strangulation or given what she did it is a little understandable for what defendant did and therefore we are sympathetic believe that an ordinary person could act that way Court is certainly saying partial excuse Rule for someone just leaving you categorically not allowed for provocation psychological being left by a loved one could arise this passion however Whats the doctors role in this case he says Rachel was suicidal- using this taunting in the secret hope that he would kill her How does he know that he never met her If thats true then why did she go to the police after he first choked her Is this appropriate the footnote he isnt very credible So is the story plausible? If we arent sure is the doctors role relevant or should be excluded as a matter of law? What did he tell us about defendant were looking at his state- the problem with this type of testimony any time to bring expert on the stand the jury gives the expert more authority then he sometimes merits. Is the cali rule better or worse then the CL rule we were looking at? Is it too broad? any passion can be considered potential provocation One of the major issues too much discretion to the jury then potentially uneven precedent based on the jury you get different decisions little notice Maybe opened ended category racist kills black man kills him because he is provoked angry that he is black worry under such a broad standard this could bring murder down to manslaughter opened the door and say anything can be provocative or traditionally should we say there are certain things as a society that we just dont want to let in. Policy and social norms Pro abolition of rules Jury control Flexibility Categories are arbitrary allow evolving sentiment of social norms to make culpability determinations jury decisions

Con abolition of traditional rules Traditional control not to leave it up to the arbitrary nature of the jury different decisions based the decisions of a wrong jury Have uniformity and consistency Have notice these things will deemed adequate provocation Legislature could add and subtract based on social norms MPC 1065 approach Homicide voluntary manslaughter if committed under the influence of extreme mental or emotion disturbance where there is a reasonable excuse same as cl there has to be some provocation (well mental disturbance) problem objectivity is render ambiguous by How is reasonable defined MPC standard is subjective: From the viewpoint in the actors situation (what does that encompass) under the circumstance as he believes them to be (not reasonably believes them to be) Drafters say its supposed to be ambiguous, but it is a mercy or sympathy approach. Ordinary person MPC a lot more subjectivity explanation that makes his actions somewhat excusable given the facts as he believed them to do very subjective standard is a sympathy standard rather than measuring against reasonable person in idealized setting you are measure what the defendant thought at that time Here it has to be ordinary or less its extreme mental or emotional by definition someone who is mental disturbed arent reasonable Question What sorts of individualized facts about defendant matter Actors situation Gravity of the provocative situation how provoking to the defendant Or level of self control of the defendant given the provocation Or both Normally we only look at the (MPC only looks to the ) gravity but not to evaluate the extent of self- control of defendant Appropriate for sex, height, weight, religion, culture to be looked at anything affects reasonableness if you make a racial joke then it goes into standard if a black guy gets provoked Also considers Defendants history to see if there is something that would make it more hottempered But dont take level of self- control Think of level of control if he is hot-tempered do we judge me to the standard of a reasonable hot tempered person? start taking these things into account you might lose this standard all together. In terms of alcohol reasonable drunk person standard? part of the actors situation? Age take into account that kids have less self-control even though self-control isnt taken into account in the mpc generally? Might be appropriate with children Question of what the situation involves the actors situation What kind of circumstances can invoke loss of self- control

Spectrum of rule vs standards Question can they react to a slow burn or just a case of defendant has to react to the provocation when it happened Should we abolish voluntary manslaughter? Should there be a mitigated standard for other crimes besides homicide? If someone is deeply upset and provoked and commits a crime other than homicide, should the penalty be mitigated just as it would be in homicide? Why only limit it to the severest of crimes? People v. Strong: D, 57 years old, born in Arabia and moved to Westchester and belongs to the Sudan Muslim sect. One of the three central beliefs of this religion is "mind over matter". In one particular type of ceremony, defendant, purportedly exercising his powers of "mind over matter", claimed he could stop a follower's heartbeat and breathing and plunge knives into his chest without any injury to the person. There was testimony that he had successfully performed this ceremony on previous occasions. When defendant performed this ceremony on decedent, the wounds from the hatchet and three knives which defendant had inserted into him caused his death. There is a reasonable basis upon which the jury could have found that the defendant failed to perceive the risk inherent in his actions. The defendant's conduct and claimed lack of perception, together with the belief of the victim and defendant's followers, if accepted by the jury, would justify a verdict of guilty of criminally negligent homicide.
Involuntary Manslaughter: Hypothetical: o Imagine driver driving 40 mph in 30 mph zone. Looks down at his radio and runs into a bike rider. That would constitute negligent homicide. o Dont want to punish so severely conduct that reasonable persons in society do (i.e. driving above the speed limit, looking at the radio.. Commonwealth v. Welanksy Not mere simple negligence, but also not gross negligence because he was there most nights and he wouldnt put himself in such grave danger. However ineptly, maybe the court is trying to find a balance between these two extremes. Court is sort of applying the Hand Formula: probability of harm x gravity harm social benefit, but what about mens rea? Should this be strict liability? Did he assume the risk of something like this happening since he did block the fire doors intentionally. Welansky willfully and negligently failed to appreciate the risk. It suffices that an ordinary normal man under the same circumstances would have realized the gravity or danger. Simple tort negligence usually never suffices in most jurisdictions today. Remember that the MPC that there is no involuntary or voluntary manslaughter under the MPC. Manslaughter means one of two things: reckless killing or a killing committed under extreme distress to which the killing was a reasonably reaction.

State v. Williams

Defendants (husband and wife) were poorly educated and young couple. Their young child had a tooth infection and the defendants failed to provide medical attention to the child and within 2 weeks, the child died. The defendants testified that they were scared to take the child to the doctor because they did not want to lose the child to the welfare office. Furthermore, the defendants stated that they thought that the child was suffering from a simple tooth infection and they gave aspirin to the child to lower his pain.

The defendants were charged and convicted with manslaughter for negligently failing to supply their 17 month old child with necessary medical attention. The conduct of the defendants was tested from a reasonable man standard. But who is the reasonable person? Is it an Indian person? Is it a reasonable person with only 6th grade education? Should it matter that they didnt have health insurance? Or does the reasonable standard make no allowances for Defendants characteristics?

A good case to illustrate that we should ask whether criminal law is the right method to achieving the intended social goal? Think about causation. Would the death had occurred when it did even if the parents brought the child to the doctor? Remember causation and mens rea are distinct elements.

Depraved Heart Common law phrases that show up in cases like these, such as malignant heart, dont tell us much about what a jury should be looking for. It is more of a normative judgment. It is more like criminal homicide that shows such a grave disregard for human life that we are justified in treating it as murder. Ways of interpreting depraved heart o Objective risk creative o o o Subjective awareness of the risk Pointlessness of risk Especially blameworthy motives

Depraved heart malice Mayes v. People: Defendant should have been aware of the risk. Commonwealth v. Malone What puts this in the same category as Mayes? Does it matter what the probability of death would be

Felony Murder Final category of implied malice based on the crime itself. Almost all states have abolished the felony murder standard The original idea was transferred intent (D wants to commit crime X, but actually commits crime Y (murder) and courts transfer mens rea from X to Y) Felony murder viewed as strict liability crime. But is it really strict liability? These crimes are such that the defendant should reasonably anticipate the harm and failure to recognize that harm is negligence. Will having a rule of felony murder deter the commission of the felony? o Statistics on Page 424 4 jurisdictions Hawaii, Michigan, Kentucky still have felony murder. Non-inclusive presumption of extreme indifference to human life

Want to deter felons from committing crimes in dangerous ways; want them to commit their crimes with reduced risk of harm Retributive aspect: those who kill during felonies are more blameworthy. Doctrine effectively correlates felony murders with 1st degree murderers Only applies to inherently dangerous felonies, but what is inherently dangerous. If you look at the crime and see if there is a non-dangerous way of committing the crime, if there is, then not an inherently dangerous crime. Perverse if you have someone who commits larceny and the victim dies during that larceny, then subject to felony murder, but if you have someone coming in to commit the killing, no felony murder.

State v. Martin D sets a small fire, but a larger fire occurs killing a guest at a party. That death was not the conscious object of his actions. NJ doctrine excludes accomplices from felony murder liability; but, isnt it that where there are more than one participants, it is a joint venture. Foreseeability requirement as a better standard?

Rape
Introduction: Apart from homicide, it is one of the most deplorable crimes. Raises some key questions. o How mens rea and actus rea interact? o

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Is the law vehicle to shape social norms? Should it be? Or is that an improper role of the law?

In rape, the main issue is the actus rea. MPC 213

MPC 213.1 default mens rea is recklessness Traditional common law elements of rape: Sexual intercourse Without Vs consent By force or threat of force Thats met with Vs resistance

Provided V is not Ds wife. What is mans mens rea in regards to the womans consent? To what degree does the D need to be aware, reckless, or negligent to the womans consent? What is right balance to be struck? Given the complexities of sexual communications, is it possible to describe what the D did (actus rea) and with what state of mind, without a constant focus on what the victim did and with what state of mind? Brown v. State Requirement of Utmost Resistance

People v. Dorsey Reasonable or Earnest Resistance What is a reasonable standard? Whose reasonableness? Objective standard What if the facts are: a man who comes into the elevator, says he finds the victim very sexually attractive and says will you take off your clothes? She does even though she doesnt want to. Not reasonable or earnest resistance because she didnt even say no one time. People v. Barnes Resistance sufficient, but not necessary Resistance could be dangerous to the woman because it could exacerbate harm Disputed facts. D denies any threatening gestures towards her. Resistance is now evidence of non-consent, not dispositive anymore. Maybe woman freezes up and cant react Should resistance be required? o Victim has an obligation of self-help if we require duty to resist

Lack of Affirmative Expression of Consent In the Interest of M.T.S. Scary too lower the standard too far because the punishment for rape is so severe.

Rape by Extortion

Elements: o Sexual intercourse o o Non-spousal forcible compulsion

Do we want to punish rape by extortion the same as rape by force Commonwealth v. Mlinarich How can age be irrelevant? What sort of non-physical coercion would have satisfied the courts majority.

Rape by Fraud Boro v. People Not that the victim is unaware that she is having sex. Fake doctor tricks woman into having sex with him Rape is sex where person is unconscious of the nature of the act, and this is known to the accused. What is nature of the act? She knew she was having sex, but she knew what she was doing. Fraud in factum Victim not aware of the nature of the act, consents to something else (doc says he's inserting metal object, instead inserts penis) Fraud in the inducement Victim aware of nature of the act, but consents by fraud/trick

Mens Rea for Rape Regina v. Morgan Husband meets 3 guys at a bar. Tells guys wife enjoys rape fantasies. Everyone has sex with wife. Wife struggles, screams, etc. Prosecutes for rape. D's admit they were mistaken about consent perhaps even unreasonably. But if rape requires intent, if mistaken about consent, even if unreasonable, not guilty. o Mistake of fact negates mens rea, and thus no conviction o If purpose or knowledge is requirement, ANY mistake even reckless/unreasonable will acquit because negates required mens rea. But House of Lords says they had to know because no reasonable jury would find that any reasonable person would believe Morgans story.

Commonwealth v. Fischer Guy has sexual relations with female earlier in day. Later, guy has sex again is very rough, physically holds her down. But when he truly believes she says no, he stops. Woman immediately seeks treatment, tells friends. Many competing stories about the second sexual encounter. There is forensic evidence because there was sperm on her sweater. Testimony from her friends that victim was very tense and anxious after the incident. Issue in the case: (Ineffective assistance of counsel (1) lawyer has to act like there's no counsel, even sleeping through trial won't necessarily hurt, (2) but for counsel's ineffectiveness, D would've won; reasonable lawyer never expected to say what the law will be) Standard of review for ineffective counsel: o An underlying issue of arguable merit o o The absence of a reasonable strategy on the part of counsel in acting or failing to act Prejudice as a result of counsels action or inaction.

Argument: D made mistake of fact. If mens rea is recklessness consciously disregard a substantial and unjustifiable risk. Reckless as to her consent. Therefore, negligent mistake and reasonable mistake are OK. Court: Consent vitiated by force, in any case. PA rule must forcibly resist in some way, even if she says no. Forcible compulsion- compulsion by use of physical, intellectual, moral, emotional or psychological force, either express or implied. 'Moral' / 'emotional' / 'psychological' compulsion could result in cases where boyfriend pressures girl into sex. More predominant in non-stranger rape cases. o Such compulsions bring in mens rea elements and allow for mistake of fact defenses Conviction upheld though because of the procedural mistake of defendants attorney On the merits of the case though: o Still a situation of force being used, and as stated in Williams, where force is used, consent is irrelevant If consent is to be shown by actions or words, then in effect, arent we making the mens rea requirement for the D at least negligent. Placing burden on D not to be negligent, on the issue of consent. Mans mental state primary concern? If it is, you have to get evidence from the victim. Maybe the right solution is as stated in Barnes. We insist on something that requires something much less than earnest resistance. Focus should mainly be on whether man had mens re vis a vis womans consent.

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Introduction: 1) Why punish attempts if no harm materialized? Deterrence. But by hypothesis, if someone is already attempting, then they werent deterred. Why might police want rule of attempt? So they could intervene before harm is done. Prevention by a rule of attempt. Incapacitation prevents them from trying the crime again.

Retribution 2) Assume we do punish attempts, why punish them less severely than the actual materialized crime. Incentive to desist Appeasement of victims/society less of a problem b/c victims not harmed.

Pervasiveness of moral luck Attempt causes a sense of insecurity among communities. From utilitarian: because we want to intervene before crime happens. Dont want police to be paralyzed until the crime occurs. Hypothetical: what happens if man recklessly fires machine gun into crowded house but no one dies? Bomber intends to set off a bomb to scare people, but not to destroy building or cause death. o Mens rea issues Defendant caught as he was loading gun, or setting up bomb. o Actus reas problem: Has he gone far enough to perpetrate an event To be guilty of attempt, defendant must intend to commit a crime of negligence or recklessness. But, that doesnt make sense because how can you intend to be negligent or reckless? People engage in reckless activity all the time.

Mens Rea for Attempt

Actus Reus of Attempt: When is there enough attempt to convict? Do we punish attempts or not? Less AR desire / \ only State v. Lyerla Teens in car lay with man by not letting his car pass. Man fires gun at car, not intended to kill. Bullets kill driver, other kids injured in crash. Convicted of 1st degree murder under deprave heart murder and attempted 2nd degree murder for the two injured kids. preparation / \ / \ more conduct Preperation v. Attempt initial attempt / \ all conduct except final act More AR complete attempt crime / \ complete crime

_________________________________________________________________________ thought some conduct

Why do we not punish mere thoughts? No evidence that the crime will go through. We dont have evidence that there are fixed intentions or mere day dreams. If we could be punished for mere thoughts the scope of punishment for attempt crimes would be huge.

People v. Murray Steps D taken: eloped; declarations; requested witness to get a magistrate

Impossibility
Booth Court trying to apply common law rule as an impossibility defense An attempt is legally impossible if had the defendants actions been carried out it would not have amounted to a crime. Factual impossibility not a defense Distinction between factual and hybrid legal impossibility is really facetious

People v. Thousand: D saying that they are trying to charge him for distribution to a minor, but there is no minor. The supposed minor is a cop. Thus, he is trying to use legal impossibility. But, could easily rephrase this as factual impossibility. Trend among most jurisdictions is now that impossibility is not a defense, because easy to rephrase legal impossibilities as factual impossibilities.

Hybrid v. Pure Legal Impossibility: Modern rule is that impossibility is just not a defense to attempts, but there are two exceptions. 1. Pure or True Legal Impossibility Fictional crimes. Activity is not proscribed by the criminal law at all or it may be prescribed, but the defendant is mistaken about the scope of the law. i.e. someone smuggles foreign currency into the U.S. thinking its a crime, but it isnt. Or, someone who thinks its illegal to sell to beer to someone under 21, but the law is really under 18 and he sells it to someone who is 20. This is a defense because what are you charging them with? Actus reus is missing. Application of the principle of legality. 2. Inherently Impossible Attempts Two brothers who attempt to slay a judge who convicted one of them by putting pins in a voodoo doll. MPC: Trial judge can mitigate sentence, let it go forward, or say there is no case. How are these different from situations where try to bribe a juror who isnt a juror? o Means theyve chosen are manifestly harmless for the crime.

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State v. Ochoa The evidence of aiding and abetting may be as broad and varies as are the means of communicating thought from one individual to another; by acts, conduct, words ,s gins, or by any means sufficient to incite, encourage or instigate commission of the offense or calculated to make known that the commission of an offense already undertaken has the aiders support or approval. At common law, aiding and abetting can entail very little action (nodding of approval), but the punishment is the same as the principal actor. Community of purpose. Complicity not a crime within itself, just a way of committing a crime

Wilson v. People Actus Reus: Aid and Abetting Mens rea is up for debate because some say purpose others say knowledge. Accomplice has to share the same mens rea with the principal. Do we want to have someone who is not pre-authorized help be an accomplice for persons he wants to turn in? o What about justifications?

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Self-Defense Conceived of as a justification. In the circumstances at the time, the person seeking self-defense justification chose the lesser evil. Requirements for self-defense: o Proportionality: Eye for an eye? o Deadly forced threatened? Defendant must believe he is in imminent harm Revenge or retaliation is not self-defense

Right of self-defense for an innocent person is preferred Rule v. Act utilitarianism Self defense has to be necessary: imminent use of force on the defendant Imminent threat has three components: o Person has to accept the law of self-defense as it is in his jurisdiction. o o Must accept legislatures decision, cant question it. Policy-wise, this means that this is a question of law. Someone acting in self-defense must believe subjectively that necessary to avoid lethal force. An honest, but unreasonable belief would under common law not be held as a valid defense, today some common law jurisdictions provide that it is a partial defense

MPC 3.04 Absence of the requirement of imminent as in common law. What does he believe, not what does he reasonably believe? Imperfect self-defense. (Minority common law distinctions). o Can self-defender retreat?

MPC 3.11: Substantial threat. People v. Goetz Looks a lot more like anger than self-defense Why did appellate division quash the indictment. Problems with subject test: Do we account for Defendants idiosyncratic beliefs Analysis here, how does it differ from MPC In MPC and minority common law jurisdictions more subtle scheme for analyzing mistakes in thes contexts How individualized do we want to be? Can jury consider the race of the individuals? What is the relevance of racial statistics?