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Criminal Law
I. Theory Dimension
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Broader Theories Applied to Punishment
o Efficiency -> Optimal Deterrence
o Fairness -> Individual Desert
o Social Meaning -> Expressive Condemnation
Optimal Deterrence
o Central Question: What legal remedy will benefit society the most?
o The individual is considered only insofar as they bear on this broader question.
o Typical considerations:
 Individual Deterrence: will the offender be deterred in the future?
 General Deterrence: will others be deterred?
o Deterrence questions, because they are empirical, can become very complex
(substitution effects, etc.).
Individual Desert
o Central Question: What does the individual deserve?
o Disavows consideration of broader societal welfare concerns insofar as they
conflict with individual desert.
o Typical consideration:
 Proportionality: Is the punishment proportionate to the crime?
o This is a philosophical question that is difficult to determine with any precision.
Expressive Condemnation:
o Central Question: Does the defendant's act express illicit values, and if so how
can the law reassert appropriate values?
o Typical Considerations:
 Suggests that both deterrence and just deserts arguments depend on social
norms.
 Because norms are social, these evaluations are always contingent on
values that vary across the population.
 This is likely to lead to conflict in the law.
o The hardest question: How should the law handle this kind of conflict?
A. Optimal Deterrence
Bentham: Pain and pleasure are springs of human action. The value of the punishment must not
be less in any case than what is sufficient to outweigh the profit of the crime. Between 2
offenses, punishment for the greater offense must be enough to make one prefer the lesser
offence (if you get murder for everything, might as well steal and kill). Easier to err on
overpunishing. No need for punishment if it won’t be effective, it costs more than it prevents
Posner: Offers similar economic approach to deterrence as Bentham.
Meares, Katyal, and Kahan Updating the Study of Punishment: Not enough attention is paid to
how deterrence of one crime increases another (economic substitutes). In 3 strikes and you’re
out situation, might as well make the 3rd crime heinous (death penalty could serve as incentive to
crime). Punishment can breed crime by increasing taste for it and reducing price of future crime.
Imprisonment increases crime as it labels/stigmatizes individuals and they band together, and
also more people are criminals, less social shame.
Hubcap Example (p.22)
Say that $50 fine for stealing just a $25 fine and catch only 1/5000big problem
To deter hubcap theft, going to have to raise fine $250,001 but also unrealistic
So you have to go toward imprisonment, say 15yrs…but the cost of that will be high plus
marginal deterrence plus if a rapist only gets 15yrs, what does that say to the rape victim
-If the costs of preventing a crime are too high, utilitarians would say don’t enforce it
-Criminal law is usually the last and least effective way to deal with a problem…option of last
resort. At same time, crim law is the expression of our society so big temptation to use it.
B. Individual Desert
Kant: Punish only for what one did and for what he deserves, not to set an example.
Morris: Punishment about restoring equilibrium
C. Expressive Condemnation
Feinberg: Expression of community’s condemnation is an essential ingredient in legal
punishment.
Hampton: Must punish in a way to show victim’s worth, under-punishment diminishes victim’s
status in community.
People v. Du (CA 1992, p.43)
-Female store owner kills teenage girl after shoplifting dispute/fight in a very bad neighborhood
-D given leniency because she is not likely to repeat, first time offense, extenuating
circumstances of the neighborhood
State v. Chaney (AL 1970, p.47)
-Chaney convicted of rape. P recommends 7yrs for rape and 5yrs suspended sentence for
robbery, D recommends 2 yrs for rape 2 yrs suspended sentence for robbery
-The judge sentences only one year and invites very early parole
-What kind of message does this send?
Fairness, Deterrence and Expressive Concerns are all seemingly ignored by judge
Message conveyed of the relative worth of this guy and this woman
Maybe the judge didn’t believe the guy was actually guilty? He feigns belief and respect
for jury’s verdict so finds a way around it by drastically reducing the sentence (which in
Alaska cannot be lengthened)
This would also send an awful message. Certainly for general deterrence and to the
community for their expressive condemnation
-Talk is cheap, punishment/action is really giving meaning to your expressions
-For the victim in the Chaney case, what does she take away? That Alaska doesn’t care about
rape?
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-Different legal actors will approach the same outcome differently (different values). Look at the
Chaney case. If the judge doesn’t think raping a prostitute is that bad, then the judge won’t see it
fair to lock up Chaney for life. If you can change the judge’s values, you can tailor arguments to
convince that judge that the women deserves greater protection, that she has some greater value,
and he needs to send a stronger message
D. How Do We Punish? Imprisonment & Its Rivals
US v. Bergman (SDNY 1976, p.51)
-Bergman pleads guilty to defrauding Medicaid
-The defense argues that there is no utility in sending him to prison. They propose fines and
community service for Bergman (once proud member of the community)
-The prosecution objects to him doing this because he used to do the community service stuff in
his spare time plus it would be an honor to serve the community in the capacity suggested by the
defense
-From a utilitarian stand point the defense has a strong case because he is not a repeat offender,
he is been pilloried in the community, unusual for someone of his stature to commit this crime no
need for deterrence
-A Kantian may say he shouldn’t go to jail because that would use Bergman as a means to an end
by making him a deterrent to others…but then again he put himself in this position
-From an expressive point, the court can’t devalue the crimes he committed by not giving him
jail time…even the ripping in the press he’s taken can’t be considered b/c his high status is what
is making him a target in the press, the press is just bringing him down to equilibrium…A fine
could come across as just the cost of doing business…if you have money you can break the law
US. Gementera (9th Cir. 2004, p.60)
-D stole from mailboxes, sentenced to a shaming penalty (sandwich board, lecturing at HS, etc)
-Dissent finds public humiliation to not aid in rehab and to be barbaric step backward in justice
system
Shaming
-To see so many criminals and so many minorities on the street might be very distressing to the
public…what is wrong with our criminal justice system
-Is shaming only effective in small towns?
-Incarceration rates are through the roof in every state, people are seeking alternatives…in every
aspect prison is way too costly
Kahan On Shaming: Shaming is good: frees up valuable resources for prison system, shaming
penalties impose serious costs (reputation, etc), expresses community norms more openly,
shaming is no more cruel than prison, especially good where no reason to incapacitate. Need
more empirical data though.
Massaro: Shaming may produce more deviance than deterrence. Encourage stigma immune
criminals to commit certain crimes. Not good because it rejects people from society.
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Whitman: In allowing public to condemn, government is delegating its power where it shouldn’t,
can lead to mob justice. Unpredictable response from the public, not fair to the criminal who
deserves predictable punishment.
-The problem is the social meaning these alternative sanctions convey
a) Fines seem like a sale more so than an offense
b) Community service doesn’t seem fair because it is a laudatory act
c) Shaming has distressing implications in society
-seems like mob justice, many other negatives associated with it
II. Institutional Allocation
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Central Question
o How should power be allocated across different institutions to achieve the best fit
between the law the various theories of punishment?
Courts & Legislatures
o Desuetude
 Gives courts the power to invalidate defunct statutes. (Stowell)
 Is formally available in a minority of jurisdictions, but plays an informal
role in most jurisdictions.
o Legality
 Law should be clear, strictly interpreted, and non-retrospective.
 Vagueness: Laws cannot be so vague that a reasonable person will not
know whether or not they are violating the law. (Morales)
 Lenity: Where there is uncertainty, construe statutes narrowly and err on
the side of lenity towards the offender. (Keeler, Zavrel)
 This reflects a deep concern not only about the dangers of judicial
lawmaking, but a concern about a particular type of mistake
o If a judge reads a statute too narrowly (and thereby
underpunishes a defendant), the legislature is likely to
correct the courts mistake
o But if a judge reads a statute too broadly (and thereby
overpunishes a defendant), the legislature is unlikely to do
so.
 Ex-Post Facto: No punishment for a law that wasn't in place, or in a
manner that was not established, at the time of the crime. (Rogers,
Carmell)
 Important Note: As you've no doubt noticed, courts often disregard
Legality considerations. An important part of the class will be devoted to
understanding why courts do this.
Courts & Juries
o Right to a Jury Trial
 Defendants have a constitutional right to a jury trial for "serious" offenses.
(Duncan)
 Prosecutors can refuse to consent to a defendant's waiver of jury trial in
many jurisdictions. (Moon)
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Determining where to hold a trial and whether to prefer a jury or bench
trial can be complicates. (Koon)
o Jury Nullification
 Juries have the power to nullify the law, but need not be informed of this
power (Dougherty)
Courts & Communities
o To what extent should courts defer to local democratic decision-making?
(Chicago Housing Authority, Morales)
A. What to Punish? Central Question
o How should power be allocated across different institutions to achieve the best fit
between the law the various theories of punishment?
Courts & Legislatures
o Desuetude
 Gives courts the power to invalidate defunct statutes. (Stowell)
 Is formally available in a minority of jurisdictions, but plays an informal
role in most jurisdictions.
o Legality
 Law should be clear, strictly interpreted, and non-retrospective.
 Vagueness: Laws cannot be so vague that a reasonable person will not
know whether or not they are violating the law. (Morales)
 Lenity: Where there is uncertainty, construe statutes narrowly and err on
the side of lenity towards the offender. (Keeler, Zavrel)
 This reflects a deep concern not only about the dangers of judicial
lawmaking, but a concern about a particular type of mistake
o If a judge reads a statute too narrowly (and thereby
underpunishes a defendant), the legislature is likely to
correct the courts mistake
o But if a judge reads a statute too broadly (and thereby
overpunishes a defendant), the legislature is unlikely to do
so.
 Ex-Post Facto: No punishment for a law that wasn't in place, or in a
manner that was not established, at the time of the crime. (Rogers,
Carmell)
 Important Note: As you've no doubt noticed, courts often disregard
Legality considerations. An important part of the class will be devoted to
understanding why courts do this.
Courts & Juries
o Right to a Jury Trial
 Defendants have a constitutional right to a jury trial for "serious" offenses.
(Duncan)
 Prosecutors can refuse to consent to a defendant's waiver of jury trial in
many jurisdictions. (Moon)
 Determining where to hold a trial and whether to prefer a jury or bench
trial can be complicates. (Koon)
o Jury Nullification
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Juries have the power to nullify the law, but need not be informed of this
power (Dougherty)
Courts & Communities
o To what extent should courts defer to local democratic decision-making?
(Chicago Housing Authority, Morales)
Central Question
o How should power be allocated across different institutions to achieve the best fit
between the law the various theories of punishment?
Courts & Legislatures
o Desuetude
 Gives courts the power to invalidate defunct statutes. (Stowell)
 Is formally available in a minority of jurisdictions, but plays an informal
role in most jurisdictions.
o Legality
 Law should be clear, strictly interpreted, and non-retrospective.
 Vagueness: Laws cannot be so vague that a reasonable person will not
know whether or not they are violating the law. (Morales)
 Lenity: Where there is uncertainty, construe statutes narrowly and err on
the side of lenity towards the offender. (Keeler, Zavrel)
 This reflects a deep concern not only about the dangers of judicial
lawmaking, but a concern about a particular type of mistake
o If a judge reads a statute too narrowly (and thereby
underpunishes a defendant), the legislature is likely to
correct the courts mistake
o But if a judge reads a statute too broadly (and thereby
overpunishes a defendant), the legislature is unlikely to do
so.
 Ex-Post Facto: No punishment for a law that wasn't in place, or in a
manner that was not established, at the time of the crime. (Rogers,
Carmell)
 Important Note: As you've no doubt noticed, courts often disregard
Legality considerations. An important part of the class will be devoted to
understanding why courts do this.
Courts & Juries
o Right to a Jury Trial
 Defendants have a constitutional right to a jury trial for "serious" offenses.
(Duncan)
 Prosecutors can refuse to consent to a defendant's waiver of jury trial in
many jurisdictions. (Moon)
 Determining where to hold a trial and whether to prefer a jury or bench
trial can be complicated. (Koon)
o Jury Nullification
 Juries have the power to nullify the law, but need not be informed of this
power (Dougherty)
Courts & Communities
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o
To what extent should courts defer to local democratic decision-making?
(Chicago Housing Authority, Morales)
A. What to Punish
Gusfield: Agents of government are only persons who can legitimately claim to represent the
total society. Designation of behavior as violating public norms confers status and honor on
those groups with conventional cultures and derogates those whose cultures are considered
deviant.
Bowers v. Hardwick (US SC 1986, p.88) (overruled by Lawrence v. Texas (US SC 200)
-Bowers was charged with violating GA’s sodomy laws (he was a homo), challenging
constitutionality of such a law
-Just because it was in private and is a moral issue doesn’t mean the state can’t regulate it, does
this all the time
-Dissent argue this violates individual liberty and right to be left alone
-If someone doesn’t share your same values, their perception on the same crime will likely be
very different…one sees it as dangerous and the other sees it as fine (e.g. marijuana)
Wisconsin v. Mitchell (US SC 1993, p.92)
-Issue whether you can enhance crime because it was a hate crime
-Sentenced increased b/c D selected victim based on his race
-Court contends that hate crimes are likely to provoke retaliations more unrest, reason for
punishing them more seriously, not a threat to the 1st amendment
Utility/Deterrence
-Prevent future hate crimes; the greater the desire to commit the crime, the greater the need to
deter it
Social Meaning/Expressive Condemnation
-Could argue the hate crime is even more abhorrent by saying that a certain group doesn’t count
-The hate crime statute expresses the values of Wisconsin
a) But there’s not necessarily a consensus around this issue
Devlin: A common morality is part of the bondage that keeps a society together. If majority of
society dislike something, they shouldn’t be denied right to eradicate it (he points to sodomy)
Kahan’s Secret Ambition of Deterrence: Hate crimes expresses perpetrators perceived value on
victim and his punishment will express society’s view of his crime (low crime for homo hate
crime, low value of gays)
Posner’s Emotion versus Emotionalism in Law: Posner opposed to hate crime enhancement
because varying punishment not to deter but to make a political/ideological statement; believes
this is a wrong and dangerous practice.
B. Institutional Dimension
1. Desuetude
-Desuetude holds that a prolonged failure to enforce a law in the face of widespread vilations
renders it void
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-Why not? Legislative Supremacy
This is not how we organize our government, there are no common law crimes, the
legislature reigns supreme and the courts need to understand that
-Why yes? Legislative Process Failure
-Judges do it because politicians can’t be trusted to do what the public wants them to do
all the time. In particular, repealing legislation is very hard to do by politicians (who is
going to repeal a law on adultery, how will that play in a campaign)
-The risk here might be under-punishment, but is the risk that great? Not really because
politicians will no doubt grandstand over judicial activism here; that’s why many
jurisdictions still allow for the open practice of desuetude
-Desuetude also deals with over-punishment; legislatures never override courts decisions
when they read a statute broadly and give over-punishmentNo one in the legislature is
going to cry foul and rollback punishment, would look soft on crime
Commonwealth v. Stowell (MA 1983, p.100)
-D contests MA law against adultery as being unconstitutional
-On its face, court doesn’t think it’s unconstitutional just b/c it deals with privacy
-Court rules that if the legislature wanted law void, it would act
-The court doesn’t have the power to say this is not a law, it’s just not how things work
-When courts do try enforcing something like this, it gets repealed in the legislature
-There is a message sent by these older statutes…at what time they may have showed a
community’s value, now they might just express a disregard for the law when it’s not enforced
-The laws are enforced very selectivity, which can be very dangerous (Bowers)an abuse of
authority
-In Stowell, we can’t get you on prostitution, but we’ll get you on adultery
-If a judge struck down a rule that is popular, there’d be an outcrywhat happened to legislative
supremacy??
Posner’s Sex and Reason: punishing nonmarital sex is a way of making a substitute more costly
and encouraging marriage.
2. Legality
-Legality holds that the law should be clear, strictly interpreted, and non-retrospective
-Prevents judges from making their own law or expanding the current law
-No common law crimes, need strict construction
Keeler v. Superior Court (Cal. 1970, p.108)
-Issue is whether unborn fetus is a human being. Court construes statute to hold that it is not
-D attacked ex-wife and killed her unborn baby intentionally
a) Was charged with murder for killing fetus
-Court says if liability is to be extended to fetus, it’s a matter for the legislature to decide
-No notice in criminal code to D that his actions would constitute murder
-Is there really a notice issue here? He should’ve known beating a pregnant woman was wrong
-Dissent disagrees and finds D to have committed murder b/c how was it different than if he had
stomped on a newborn, the guy knew what he was doing
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-Immediately after case, CA legislature changed statute to make killing a fetus murder
-If there’s an ambiguity in the law courts are directed to find in favor of justice
This can swing both ways. It’s unfair to read the law in a broad way, unfair to the mother
and fetus to read it narrowly though
-Reading Keeler case narrowly is going to prompt under-deterrence (that’s why the legislature
steps in immediately and amends the statue)
-The more narrowly courts read statutes the more work the legislature is going to have to do
-Judges need to have some leeway in identifying injustice and having broad interpretations of the
caseHave to follow moral intuition
-The social background of the case can’t be ignored, shadowed by the huge abortion debate
a) Courts are thinking about this…does making feticide a homicide make abortion illegal
Lenity: directs courts to construe ambiguous statutes narrowly
a) Need fair warning and legislature should establish criminal statutes/penalties
-Legislative resistance to lenity based on creating more work for the legislature
-So when legislature eschews specific prohibitions and enacts general ones, effectively
transferring law defining power to the courts
US v. Zavrel (3rd Cir. 2004, p.118)
-D faked an anthrax scare to get someone else in trouble
-D argues her actions didn’t count as a communication or threat (just envelope with cornstarch)
-Court disagrees and thinks that it shouldn’t have to follow dictionary definition and applies a
reasonable person standard for interpretation
-Dissent disagrees and says it is not right to expand meaning here to get harsher penalty
-In this case should we risk under-punishment because if we get it wrong, the legislature can get
it right?
That said, in this case, the remedy may be worse. In the 9/11 climate, the legislature may
go nuts and overreact
Judges do worry about the legislative landscape and the effect their decision could have
C. Common Law Crimes
Commonwealth v. Keller (PA 1964, 123)
-D had miscarriages and disposed of the bodies in gruesome ways
-Invokes McHale doctrine, which asserts that people should conform behavior to societal norms
-CL that whatever openly outrages decency and is injurious to public morals is punishable at law
-But what about the principle of legality, no common law crimes
-Certainly no federal common law crimes
-Common law rules are not absolute; they’re rules of thumb from a moral grounding
D. Ex Post Facto
Rogers v. TN (US SC 2001, p.126)
-Majority finds that the rule and day law, which only existed under TN CL, does not apply to this
case. D can be charged with murder even though under CL it would just be manslaughter. The
law was repealed after D’s crime but it was nowhere in TN statutes and had tenuous foothold in
the state
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-Strong dissent that D had no warning that TN Court would retroactively eliminate one of the
elements of murder
Carmell v. Texas (US SC 2000, p.131)
-Government needs to abide by its own rules and can alter them to advantage the state
E. The Defendant’s Right-----and the State’s
Duncan v. Louisiana (US SC 1968, p.136)
-Duncan convicted of simple battery, but was denied jury trial
-Court holds that 14th amendment guarantees a right of jury trial in all criminal cases (in federal
court 6th amendment would guarantee that right)
-The Bill of Rights is incorporated against the states, so the 6th Amendment is considered to
apply (that is if the crime is greater than 6 months, if it less than that it is a petty crime)
-Why else, besides protecting against abuse of power do you need a jury?
1) As a group the jury can draw on commonality with D and use common sense
2) Jury gives a greater appearance of fairness (had a jury convicted Duncan it would look
more fair than just the judge)
-But jury’s everywhere are unrepresentative
Kalven and Zeisel’s American Jury: Jury provides important civic experience, guarantor of
integrity, buffer for the judge and legal process (they can be the lightning rod). On the flip side,
jury is expensive, social costs on those who serve, disenchants citizens. Can go both ways on
competence (juries aren’t that bright but 12 heads better than 1). Jury produces government by
man rather than by rule of law.
US v. Moon (2d Cir. 1983, p.139)
-Rev. Moon ran a cult religion and prosecuted for tax evasion
-How can it be that forcing someone into a jury trial is violating their 6th amendment right?
-Also, since it’s a complex trial, a jury’s misunderstanding may force them to rely on their own
biased opinions (D argument)
-D only has right to jury trial not to bench trial
-No reversible error, conviction upheld
-Can a prosecutor be trusted by a D? He certainly has motives to be more concerned with
convictions than with letting innocent people go free
-If you can never get fair or unbiased citizens, then you don’t have a trial…if you’re the D
counsel, you should demand a jury trial when you can’t get impartial jurors because then you can
never have a trial
-The standard is so high to find that no good jury can be found that it never happens
-Jury can serve to defend individual liberty of innocent against malicious prosecutor judge
-Jury also serves societal purpose, as it reflects community morals with its actions
-In Rodney King a prosecutor might want a jury trial for the appearance of fairness, while the D
counsel would want a bench trial because of biased jurors
-But how do you determine excessive force? Not an easy question, a lot of balancing has to take
place in this situation
a) A legislator can’t come up with a hard and fast rule for excessive force
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b) Seems like the duty falls to the jury. But what about legality? Should they be the ones
resolving this?
c) The police need some better determination for excessive force because they need to
know for their daily activities what it is, it can’t just be on a sliding scale
-No strict formula for changing venues
US v. Booker (US SC 2005, p.143)
-Question is whether federal sentencing guidelines violate 6th amendment
-Judge allowed to sentence within guideline range but cannot sentence beyond guidelines by
finding facts beyond those found by the jury (in this case that Booker possessed more crack ina
duffel bag)
F. Nullification
US v. Dougherty (1972, p.151)
-Case over break-in to DOW chemical labs during Vietnam protests
-7 people convicted and appeal because judge refused to instruct the jury of its right to acquit
appellants without regard to the law and evidence (nullification)
-Jury knows its power and does need formal instructions because that could lead to excessive
you and anarchy
a) Not to mention it would be an extreme burden on the D
-Tremendous burden on jury, they’re creating the law when they nullify
-In this case challenging the legislature, in Duncan they’re challenging an overzealous
prosecutor/judge
-According to Horowitz article, counsel instructions carry more weight than jury instructions
-As a defense counsel you would certainly want the nullification principal to be known by the
jury
-Is there a community interest in having laws executed and adjudicated in a predictable way?
Butler Debate on Race and Acquittal
-People don’t want to send another young black male to jail, even if he did it
-Butler contends that it is moral responsibility of black jurors to emancipate some guilty black
outlaws
a) Only if accused is nonviolent
-Counter is that blacks then will be removed from the jury process and is a racially divisive way
to think, to take care of “your own”
-Cost of incarceration greater than that of certain crimes
-Black community has been betrayed by American legal system
-If you’re going to have nullification, should you be explicit about with every jury? Would it be
unfair not to have it told to some and not other juries?
-Zenger trial is most famous instance of nullification, during revolutionary times the guy printed
bad stuff about Royal Governor of NY
-Around Civil War time, jury nullification rampant in both North and South (based on divisive
issue of slavery)
US v. Navarro-Vargas (2005, p.164)
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-Ds convicted of drug crimes, appeal because grand jury instruction prejudiced it against them
(“Should vote to indict if probable cause exists” and “could not judge the wisdom of criminal
laws enacted by Congress”)
-Historically, grand jury independence has been for both good and bad
-Jury was improperly instructed, certainly can judge the wisdom of laws
US v. Cox (5th Cir. 1965, 170)
-Jurors misled by instructions telling them their powers were restricted to probable cause
-A full disclosure to grand jury of their power would not subvert law, doing otherwise gives
prosecutors too much discretion and consequently power
E. Community
Pratt v. Chicago Housing Authority (NDILL 1994, p.173)
-Housing authority’s sweeps deemed unconstitutional despite popular support
a) Would search apartments without necessary warrants
-ACLU clients feel taxed by this search policy…just 4 people going against the whole
community
-Classic collective action problem, everyone else signs up you opt out and maintain your privacy
but everyone else doesn’t
a) And are the people who are opting out likely criminals? Maybe
-You need everyone on board or this isn’t worthwhile at all
-The ACLU is worried about our rights to liberty and privacy
-But don’t we sacrifice our privacy/liberty at certain instances? (e.g. going through metal
detectors for a plane or in a school, DUI checkpoints, etc)
-Don’t residents of the CHA have rights to not be shot
a) Classic balancing test between social order and liberty/autonomy
-Other ways to reduce crimes besides warrantless searchesSecurity guards in the lobby
-You could beef up number of police
-This is a cost-benefit analysis
It’s often easy for a majority to place a burden on a minority (e.g. Megan’s Law)
a) But with the CHA, they’re all in the same boat, who is the minority? This is more like
the metal detector stuff
-Is it a judge or a community who gets to make this decision? Who is best situated here to make
a decision (like the case with the jury)?
a) Do the people really know what they’re giving up with these searches
-You could set a dangerous precedent with the CHA’s case
a) But if the case was never brought, you wouldn’t have that problem
- Judge is an expert, and would take a more objective longer viewed approach
-But these people need drastic actions to save their lives
Chicago v. Morales (US SC 1999, p.180)
-Don’t want to have a law where no one will know if they can be subjected to it, far too vague
-The people proposing this are the ones that would be hurt by it
-Issue is over city ordinance to cut down on gang problems that prevents a group of people from
loitering
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a) So a cop, under certain rules, can break up a group hanging out in public
-Found to be unconstitutional because ordinance is far too vague and is therefore an arbitrary
restriction on personal liberties
a) No Notice and arbitrary and discriminatory enforcement
GENERAL PRINCIPLES
 Actus Reus: the prosecution must always prove the act (taking another person’s property;
sexual intercourse)
 Attendant Circumstances: The Prosecution sometimes must also prove that some other facts
are true (e.g., the stolen property was worth more than $100; the sexual partner was under the
age of consent).
 Mens Rea: The prosecution usually must also prove a particular state of mind with respect to
the act and sometimes with respect to the attendant circumstances.
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The requisite mens rea for the act and the attendant circumstances may be different (more
on that in a minute)
III. ACTUS REA
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Voluntary Act
o What isn’t voluntary?
 External - physical compulsion
 Internal – reflexive, unconscious, asleep, etc. (Newton, Jarret)
 Courts often deny request for involuntary act instructions where
they view the defendant as author of their own impulses (Baird,
Jacobs)
o Who decides if voluntary?
 Where there’s doubt, a jury will usually decide.
Causation
o Common Law
 But for cause of the result
 Result was foreseeable (Arzon, Warner Lambert) or Posnerian “enhanced
risk” (Bracket)
o Model Penal Code
 But for cause of the result
 Result not too remote or accidental to have a just bearing on the criminal
liability of the defendant
Intervening Acts
o No MPC doctrine on intervening acts, just revert to “not to remote or accidental to
have a just bearing…”)
o Common Law
 The prototypical case for intervening act doctrine is one in which a
homicide victim’s own actions make some necessary contribution to her
death. Did the defendant render the victim “irresponsible” for act that was
necessary to death? (Stephenson, Hendrickson)
13

Omissions count as acts in two instances
o When the statute defining the offense expressly requires that she perform a
particular act
o When defendant has a legal duty arising from some source independent of the
criminal statute in question (See accomplice liability cases dealing with
omissions: Nosfinger, Hunter)
o Where these don’t exist, an omission is not a criminal act (Beardsly, Pope, Jones)
-Actus Rea: three areas, voluntary act, causation, omissions
-Model Penal Code developed in 1960s with the hope that you could have a consistent code
derived from the common law
MPC §2.01 Voluntary Act
(1) A person is not guilty of an offense unless his liability is based on conduct which includes a voluntary act or the
omission to perform an act of which he is physically capable.
(2) The following are not voluntary acts within the meaning of this Section:
(a) a reflex or convulsion;
(b) a bodily movement during unconsciousness or sleep;
(c) conduct during hypnosis or resulting from hypnotic suggestion;
(d) a bodily movement that otherwise is not a product of the effort or determination of the actor, either
conscious or habitual.
(3) Liability for the commission of an offense may not be based on an omission unaccompanied by action unless:
(a) the omission is expressly made sufficient by the law defining the offense; or
(b) a duty to perform the omitted act is otherwise imposed by law.
(4) Possession is an act, within the meaning of this Section, if the possessor knowingly procured or received the
thing possessed or was aware of his control thereof for a sufficient period to have been able to terminate his
possession.
People v. Newton (Cal. 1970, p.206)
-D taken out of car by police, struck in the face then the rest becomes hazy, goes unconscious
until he gets to the hospital
a) D had been shot and cop was shot
-Unconsciousness is a complete defense to criminal homicide, need to redo with proper jury
instructions
-If Newton was unconscious, finding him guilty wouldn’t do much for deterrence, he couldn’t
control himself so it won’t serve to stop in the future
-On the other hand, you don’t want guilty people faking this to get away with murder
-There is also no volition here on Newton’s part
-On expressive grounds, at least Newton is provoked, a self defense story (at least potentially
morally justified)
State v. Jerrett (NC 1983, p.208)
-D robs house, kills husband then kidnaps wife in car
-D had history of blackouts from his service in Vietnam (Agent Orange)
-Unconsciousness would again be defense and it was an error not to instruct on it
-Similar deterrence issue to Newton
a) But shouldn’t Jerrett have tried to seek help for this problem since this wasn’t the first
time it happened
-Harder to figure out on expressive grounds. He developed his condition from serving the
country, a much more complicated story
14
Baird v. State (Ind. 1992, p.213)
-D killed parents in-law and wife
-Strangled wife then parents wanted to check on her, stabbed them
-D contends he was acting under a “sudden heat”
-In testimony, Baird was described as OCD, psychotic, insane, impulsive
-The experts described him as volitionally impaired
-Motivated by humiliation of ability to close on a new farmNot a good moral reason
-Court affirms convictions
Jacobs v. Commonwealth (Pa. 1888, p.216)
-Jacob (I think) stabbed a man
-Jacobs appealed the fact that his expert testimony was denied by commonwealth’s objections
a) The testimony was meant to show that Jacobs has a hot temper and can’t think straight
when excited
-If you allow Jacobs to get off for his temper, you will subvert the normal order of things
Martin v. State (Ala. 1944, p.219)
-Guy drunk at home, police put him on the street, and then arrest him for public drunkenness
-Under the plain meaning of the statute, the court presupposes that the person has to appear
voluntarily
-Court here reads the statute with common law and model penal code in mind; the statute itself
says nothing about voluntary. Legislatures don’t specify voluntary because they know courts will
read that in
-In this case, being involuntarily taken by the police to the highway did not suffice to fulfill the
actus reus of appearing in a public place b/c it wasn’t voluntary
O’Sullivan v. Fisher (South Australia 1954, p.222)
-Police ask guy to leave his house, he walks 10 yards and is arrested for public drunkenness
-Needs to be determined if guy voluntarily left the house or if police lied to get him outside
-All of this is to say that the voluntary act requirement is indeterminate, courts look to contextual
clues to see if an act is voluntary
-When there’s a question of voluntariness, the judge hands the fact finding decision to the jury
-Why didn’t the judge allow testimony in Baird or Jacobs? The reason was the impulse they
acted on was considered illegitimate by the judge to be considered involuntaryHe was the
author of that impulse
a) Concern about what it would say about the law if you could act involuntarily on an impulse of
rage, etc
A. Causation
-But for/necessary for the result
-The cause/act be the proximate cause for the result
a) Under classical law, proximity is described as foreseeability
b) Posner says foreseeability is too vague, need to look at enhanced risk
c) MPC says it cannot be too remote as to have a just bearing on criminal liability
15
People v. Arzon (NY 1978, p.225)
-D starts a fire on 5 floor of building. Firemen go to pout it out and then an independent fire
starts on 2nd floor of building, and a fireman died
-Court finds Ds action was an indispensable link in the chain of actions causing death
-The court applies the foreseeability test
-Was it but/for Arzon’s fire that the firemen died
-You start a fire, it’s foreseeable that somebody might die
a) But how foreseeable was it that another fire started
-No fear of over deterrence here
th
People v. Warner-Lambert Co. (NY, 1980, p.226)
-Ds were aware there was a risk of explosion from ambient magnesium state dust arising from
manufacturing process
-Explosion killed 6 employees
-Ds had been told a month before explosion of the dust problem and were working toward a
solution by replacing equipment
-Actual cause of explosion is only speculative, believe it was oxygen liquefaction process, and
that was unforeseeable to Ds
-Court finds but for test here to be inappropriate
-Not foreseeable because the chain of events, not sure where/how the initial explosion happened,
can only speculate on the actual chain of events
-What would happen if you punished this capitalist who was employing workers? v. Punishing a
squatter (Arzon)
a) Could be over deterring
b) Lambert could still face a significant civil liability
Brackett v. Peters (7th Cir. 1993, p.230)
-Ds assault made Winslow’s death more likely, but for the assault, she wouldn’t have died as
soon as she did
-Though she died a month later, death was the last link in a continuous series of events started by
assault
-Posner introduces the idea of enhanced risk
-In this case there was an intervening act that the D would argue broke the chain of causation
-Very narrow approach to risk in this case, not something D would want
a) D’s beating of her enhance risk that this women die when a nurse used a feeding tube
-Foreseeable and enhance risk are subjective and very open to interpretation
Alicke on Causation: Example of kid rushing home to hide drugs vs. hiding anniversary gift and
gets into a car accidentproduces different interpretations of causation and culpability
MPC § 2.03: Causal relationship
1) Conduct is the cause of the result when
(a) it is an antecedent but for which the result in question would not have occurred; and
(b) the relationship between the conduct and result satisfies any additional causal requirements imposed by the
Code or by the law defining the offense.
(2) When purposely or knowingly causing a particular result is an element of an offense, the element is not
established if the actual result is not within the purpose or the contemplation of the actor unless:
16
(a) the actual result differs from the designed or contemplated, as the case may be, only in the respect that a
different person or different property is injured or affected or that the injury or harm designed or contemplated
would have been more serious or more extensive than that caused; or
(b) the actual result involves the same kind of injury or harm as that designed or contemplated and is not too
remote or accidental in its occurrence to have [just] bearing on the actor's liability or on the gravity of his offense.
(3) When recklessly or negligently causing a particular result is an element of an offense, the element is not
established if the actual result is not within the risk of which the actor is aware or, in the case of negligence, of
which he should be aware unless:
(a) the actual result differs from the probable result only in the respect that a different person or different property
is injured or affected or that the probable injury or harm would have been more serious or more extensive than that
caused; or
(b) the actual result involves the same kind of injury or harm as the probable result and is not too remote or
accidental in its occurrence to have a [just] bearing on the actor's liability or on the gravity of his offense.
(4) When causing a particular result is a material element of an offense for which absolute liability is imposed by
law, the element is not established unless the actual result is a probable consequence of the actor's conduct.
Stephenson v. State (Ind. 1932, p.238)
-Was a KKK leader
-Reasonable person might have tried to kill themselves to if they were forced to live with a KKK
leader who violently raped them
-Not in fear for her life but in fear of her honor, willing to risk her life for it (e.g. women jumping
out windows)
-She wasn’t crazy, she acted rationally, which makes Stephenson even more morally culpable
-Found guilty because he contributed to the end result
Hendrickson v. Commonwealth (Ky. 1887, p.244)
-Was convicted at trial court level
-Wife attacked him, got into fight, she left the house in the freezing cold and died in the elements
-The wife had a pretty brutal personality and was certainly not submissive to her husband
-Different situation than in Stephenson, the intervening acts she makes severes the chain of
causation here
Regina v. Blaue (UK 1975, p.246)
-What if it was a KKK member and not a Jehovah’s Witness?
-JW was stabbed by D but could have been saved but refused blood transfusion based on religion
-Pretty clear here that they intended the victim to die
B. Omissions
MPC §2.01
(1) A person is not guilty of an offense unless his liability is based on conduct which includes a voluntary act or the
omission to perform an act of which he is physically capable
(3) Liability for the commission of an offense may not be based on an omission unaccompanied by action unless:
(a) the omission is expressly made sufficient by the law defining the offense
-You are liable if don’t follow a statutory duty (e.g. paying your taxes)
-Non-statutory legal duty apply a lot to doctors and parents
Pope v. State (Md. 1979, p.251)
-Does she have a non statutory legal duty as she has been taken share of the child?
a) It wasn’t her child, though, she was just being nice
-Law not indignation covers, Pope was not responsible for child, acquitted
17
-So the child abuse is thrown out, what about the misprision of felony (concealment of a felony)?
a) It’s a common law crime that no one is ever tried for
(Similar issues in Beardsley and Jones, no legal duty but a moral one but that doesn’t matter in
court)
-Court doesn’t want to deter acts of kindness
a) If the legislature wants this to be a crime, then they should pass a law
-In VT, a fine and a misdemeanor for omission (Good Samaritan Law)
a) Changes the moral quality of assistance
IV. MENS REA
 MPC
o
o
o
o
o
o
o
Purpose
 Conscious objective to engage in conduct or cause result; Aware of attendant
circumstances or hope/believe they exist
 Meant to do it. (If, say, Pamela Anders wants to run Kid Rock down with her
Hummer and does.)
Knowledge
 Aware of nature of conduct; that material element exists or that it is practically
certain conduct will cause result
 Practically certain it would happen, but may not have desired or intended it to
happen. (If, say, running over Kid Rock with the Hummer wasn't her intent, but
she was in a hurry to meet Borat at the Viper Room. Running over Kid Rock isn't
her purpose, it just happens to be something incidental to driving to meet Borat.)
Recklessness
 A conscious disregard for a substantial and unjustifiable risk that the material
element exists or will result from conduct. This disregard involves a gross
deviation from a law-abiding person's standard of conduct.
 Conscious of the risk, but did it anyway. (If, say, Pamela Anderson knows that
Kid Rock sometimes sleeps in the garage in front of the Hummer and knows that
he might be there as she drives off, but doesn't bother checking because she is in a
hurry to meet Borat).
Negligence
 Not exercising the standard of care a reasonable person would - a gross deviation
from that of a law-abiding person.
 Even if defendent didn't know, she really, really should have known not to do this
(higher than tort standard). (If, say, Pamela Anderson knows that Kid Rock
usually sleeps in the garage in front of the Hummer, but it doesn't cross her mind
on this occasion because she is in a hurry to meet Borat).
Strict Liability
 No mens rea required. This must be explicitly stated by the legislature.
If mens rea is stated for the act, but not the attendant circumstances, read the mens rea as
applying to both.
If no mens rea is stated, read in recklessness as the mens rea for both the act and
attendant circumstances.
18
 Common Law
o
o
o
o
o
Intentionally = MPC Purposefully?
Willfully = MPC Knowingly?
Maliciously = MPC Recklessly?
Negligently = MPC Negligently/
who knows?
 Common Law: Mistake of Fact
o
o
o
o
When standard is knowledge, an honest mistake of fact (even an unreasonable one) is a
defense.
When standard is negligence, a reasonable mistake of fact is a defense.
When standard is strict liability, no mistake of fact defense.
When silent, boundary-line fact analysis.
 Would the act, if the facts were as the defendant imagined them to be, be a bad
act?
 If so, read in strict liability (Prince, Stiffler, Jadowski, Feola).
 If not, read in knowledge standard (Morissette).
 Obviously this test is value laden (Prince, X-Citement Video).
 Mistake of Law
o
o
Presumption of strict liability with respect to mistake of law.
But there are a few exceptions
o Where statutes themselves allow for a mistake of law (Cheek)
o Where one is relying on an official empowered to interpret the law (usually a
court, Albertini, but sometimes others, Cox)
o Where mistakes are made with respect to laws that are "collateral" (or sufficiently
distant from) the criminal law being enforced.
o How do we figure out whether the law is "collateral" enough?
o Malum in se – no mistake of law defense (Marrero, King)
o Malum prohibitum – mistake of law defense might be allowed
(Long, Cheek, Liparotta)
o But note that dividing line between "malum in se" and "malum
prohibitum" can be contentious
-The § on Mens Rea is the most widely adopted part of the MPC
-Wherever the legislature is silent about which element of Mens Rea to apply, the MPC says to
read in recklessness. If it is unclear if the Mens Rea applies to one or all elements of a crime,
MPC says read in recklessness. Wherever there is uncertainty, MPC says read in recklessness
-Legislatures have to articulate strict liability under the MPC, you can never read in strict
liability
-The Common Law is different, especially in regard to strict liability
a) Sometimes strict liability is read in and sometimes not
19
MPC §2.02 General Requirements of Culpability
(1) Minimum Requirements of Culpability. Except as provided in Section 2.05, a person is not guilty of an offense
unless he acted purposely, knowingly, recklessly or negligently, as the law may require, with respect to each
material element of the offense.
(2) Kinds of Culpability Defined (see above)
(3) Culpability Required Unless Otherwise Provided. When the culpability sufficient to establish a material element
of an offense is not prescribed by law, such element is established if a person acts purposely, knowingly or
recklessly with respect thereto.
(4) Prescribed Culpability Requirement Applies to All Material Elements. When the law defining an offense
prescribes the kind of culpability that is sufficient for the commission of an offense, without distinguishing among
the material elements thereof, such provision shall apply to all the material elements of the offense, unless a contrary
purpose plainly appears.
(5) Substitutes for Negligence, Recklessness and Knowledge. When the law provides that negligence suffices to
establish an element of an offense, such element also is established if a person acts purposely, knowingly or
recklessly. When recklessness suffices to establish an element, such element also is established if a person acts
purposely or knowingly. When acting knowingly suffices to establish an element, such element also is established if
a person acts purposely.
(6) Requirement of Purpose Satisfied if Purpose Is Conditional. When a particular purpose is an element of an
offense, the element is established although such purpose is conditional, unless the condition negatives the harm or
evil sought to be prevented by the law defining the offense.
(7) Requirement of Knowledge Satisfied by Knowledge of High Probability. When knowledge of the existence of a
particular fact is an element of an offense, such knowledge is established if a person is aware of a high probability of
its existence, unless he actually believes that it does not exist.
(8) Requirement of Wilfulness Satisfied by Acting Knowingly. A requirement that an offense be committed wilfully
is satisfied if a person acts knowingly with respect to the material elements of the offense, unless a purpose to
impose further requirements appears.
(9) Culpability as to Illegality of Conduct. Neither knowledge nor recklessness or negligence as to whether conduct
constitutes an offense or as to the existence, meaning or application of the law determining the elements of an
offense is an element of such offense, unless the definition of the offense or the Code so provides.
(10) Culpability as Determinant of Grade of Offense. When the grade or degree of an offense depends on whether
the offense is committed purposely, knowingly, recklessly or negligently, its grade or degree shall be the lowest for
which the determinative kind of culpability is established
with respect to any material element of the offense
MPC §2.04 Ignorance or Mistake.
(1) Ignorance or mistake as to a matter of fact or law is a defense if:
(a) the ignorance or mistake negatives the purpose, knowledge, belief, recklessness or negligence required to
establish a material element of the offense; or
(b) the law provides that the state of mind established by such ignorance or mistake constitutes a defense
A. Mistake of Fact
Morissette v. US (US SC 1952, p.269)
-D claims he didn’t know it was government property
-This is a common law case
-Federal jurisdiction is common law, no adoption of the MPC
-Actus Rea (AR): Actor converts
-Mens Rea (MR): knowingly converts
-Attendant Circumstances (AC): Government property
-Statutes horribly unclear (does knowingly apply to gov’t property or just conversion?)
-Mistake of fact defense
a) The defense argues that D had to KNOW he was taking government property
b) Should mistake of fact be exculpatory?
-If this was the MPC, you apply knowingly where it was clear or else apply recklessly
20
-From a deterrence aspect, you want people who are unsure if property is abandoned or not to
find out first before they just take
a) Cost of over deterrence would be deterring entrepreneurial spirit?
-No real just dessert or expressive condemnation issue here
-Judgment against D reversed
Regina v. Prince ( UK 1875, p.275)
-Girl seems of age, so they go off and get married w/o asking for permission (turns out she’s 14)
a) Permission was important because children were used as bargaining chips in the 19th C
-AR: Taking away the daughter
-MR: Silent here
-AC (attendant circumstances): That she be unmarried, be under 16, and there be lack of consent
-Under MPC, the court would look at recklessness, and Prince would be fine
-The court says that if Prince thought he had consent that would be fine; even if she was 17 and
he took her without consent it would be wrong in and of itselfso court reads in strict liability
for silence here
a) So he should’ve been mistaken about the lack of consent, then he’d be ok
-Problem not with age, with failing to obtain consent
Compare to Morissette
-If Morissette was right there was no illegal act, but the court in Regina maintains that even if
Prince was right about the girl’s age he would still have taken the girl illegally because of no
consent
-In Morisette, we were concerned about the chilling effect. No worry of deterrence in Regina, the
chilling effect is good here, the court maintains
a) After the Regina case, the parliament amended the statute to allow reasonable mistake
of fact
-The moral question at hand is in fact critical to the MR applied
a) Courts then delve deep into interpretation depending on the situation
b) Should courts be doing the moral balancing?
-There’s a reason legislatures and courts like the MPC
-MPC’s two interpretative rules
1) “One for all rule”: where mens rea is applied once but not again, you then read it
across for all material elements of the crime
2) Silence: read in something less than or equal to recklessness
a) These rules shift the burden of the moral boundary line that courts go through
US v. X-citement Video (US SC 1994, p.280)
-MR: knowingly
-AR: transports or ships
-AC: child pornography
-Court finds this is not strict liability
a) Pretty broad statute. The mailman could be transporting child porn but how could he
know
-Under moral boundary analysis here both the sides are not good
21
Statutory Rape
-Considered to be strict liability laws
-Different age requirements across jurisdictions
State v. Stiffler (ID 1990, p.283)
-Claims reasonable mistake (a negligence standard) of the girl’s age
-MR: silence
-AR: Sex
-AC: Underage female
-Even though consensual, guy is guilty here (though punishment is only probation)
-Most states have a strict liability approach to this issue because you want to deter the significant
type of harm that can occur hereMessage here is stay away; if you’re in any doubt at all still
stay away
State v. Jadowski (WI 2004, p.287)
-Victim use false ID so she was actually too young for sex
-Still convicted because strict liability law and legislature’s refusal to allow a mistake of age
defense
US v. Feola (US SC 1975, p.297)
-Didn’t know victim was a federal officer
-Court finds that mental state to do criminal acts is enough, do not need to know the victim is
federal officer
B. Mistake of Law
-Generally no defense, but…
1) Collateral law
2) Reliance
3) In the statute
-Public Welfare OffensesStrict Liability
-Courts will often hedge by applying a negligence standard instead of a strict liability one. This
will often leave it to a jury to decide if a mistake was defensible
-Determining a public welfare offense is a social contest, determines whose values are becoming
law
a) Why some issues are so hotly contested and divisive
-Mistake of law gives criminals an easy way out if it is always a defense
-Most jurisdictions have strict liability approach to mistake of law defense, though some will use
negligence
Long v. State (DE 1949, p.321)
-D thought he divorced his wife when he remarried but technically hadn’t
-Long went to AK based on his attorney’s instructions
-Generally reliance on attorney’s wrong information will not be a defense
Collateral/Penal
Divorce / Bigamy
22
-Long is not confused about Bigamy/penal law he is confused about the collateral law regarding
the effectuation of his divorce
-CL treats a reasonable mistake of collateral law a defense, which was the case here
People v. Marrero (NY 1987, p.327)
-Corrections officer carries loaded gun because he thought the statute saying peace officers
carrying guns applied to him
-Morrero lives in NY but is not a peace officer in NY
-He did look up the law and tried to investigate if he would be allowed to have the gun, plus
other correctional officers and some judges agreed with his interpretation
-Is this guy just a loopholer just trying to get a weapon or did he just make a collateral law
mistake?
a) He knew the penal law required him to register a gun, so he looked up the law, and
misunderstood what a peace officer was defined as
-D found guilty but more to it, he brandished his gun at a nightclub, so he wasn’t acting
appropriately
State v. King (MN 1977, p.332)
-D caught with a drug that was not in state books but in federal register as being a controlled
substance
-Found guilty because D should have attempted to ascertain status of the drug
Cheek v. US (US SC 1991, p.336)
-Cheek thought it was a good faith misunderstanding that he didn’t pay taxes
-Statute says willfully because it doesn’t want to punish people who innocently make a mistake
about complicated federal taxes
-Cheek is not mistaken about the penal law; he’s only mistaken regarding the constitutionality of
the law
-Honestly believed that he did not need to pay fed. income tax; in terms of fed. tax law,
ignorance of law is a valid defense for willfulness; Willfulness requires that the person knew the
duty and willfully violated it.
-In Cheek, Congress’ use of the word willfully was construed to require a purposeful or
knowingly mental state to the crime. At trial, the judge incorrectly instructed the jury that an
honest but unreasonable mistake as to the legality of his conduct is not a defense. By doing this,
the judge was attaching a “negligent” mental state to the defense.
-In Cheek, the willfulness mens rea created another element of the crime; since this element was
not met, Cheek did not commit a crime
-Appeal court conviction is vacated
Liparota v. US (US SC 1985, p.342)
-D’s restaurant was not authorized to receive food stamps
-Court rules that the government must prove that the D knew that his acquisition or possession of
food stamps was in a manner unauthorized by statute or regulation
US v. Albertini (9th Cir 1987, p.352)
-D acted based on 9 Cir. Dismissal of charges against him
th
23
-The SC would later reverse that decision, though
-Relies on prior judicial decision but the court decision is later overturned
a) So he is charged
b) He made a mistake about the law but he was relying on judicial decision
-The court said he was allowed to rely on it until the law became bad
Cox v. Louisiana (US SC 1965, p.356)
-To convict D of protesting where officials told them they could would be entrapment, judgment
reversed
Mistake of Law Recap
1) General Rule – Not a defense (unless mens rea with respect to law is part or statuteSee
Cheek, Liparota; but see Bryan)
2) Penal v. Collateral Law (Long / Marrero)
a. Long knew about the penal law governing bigamy but was just mistaken about the
collateral divorce law
b. Morrero is not confused about the peace officer can carry a firearm law (penal),
but he is confused about what the definition of peace offer is (collateral)But
here court says ignorance of the law no excuse (different values at play here)
3) Reliance (Albertini / Cox)
a. Albertini relies on a court to tell him what the law is, but when that law is
reversed by the SC what he is doing is no longer allowed
b. Cox shows that sometimes the court will extend reliance for reasonable mistake of
law beyond the judiciary
-The justice look at the underlying acts to see if they conform to societal norms or threaten them,
and that influences their interpretations and rulings
V. RAPE
o
Mens Rea for Consent
 Like “mistake of fact” problems we studied earlier in the semester (see
Morrisette & Prince)
 Legislatures are often silent w/r to mens rea and consent, so courts have to
“read in” a standard
o
Mens Rea & the “No Sometimes Means Yes” Norm
 Knowledge - Morgan & dissent in Berkowitz
 Negligence - most jurisdictions (& Sherry?)
 Strict Liability - Simcock & Lefkowitz
o
Force (or Threat of)
 The traditional (and still predominant) common law approach requires that
there be force of threat of force (see MD & NY statutes).
Force Standard:
 There must be proof of resistance on the part of the victim.
 Resistance must be physical and not merely verbal.
Threats
o
o
24

o
o
A threat must be sufficient to make a reasonable woman fearful (Rusk)
Traditional Justification
 Under the “no sometimes means yes” norm, the only unambiguous
indicator of non-consent is physical resistance (dissent in Rusk).
Reform Efforts
 Objections to the force requirement have lead some jurisdictions to drop
the force requirement (MTS).
 To address the objection that non-forcible rape is not as bad as forcible
rape, Wisconsin has adopted a highly graded scheme.
Commonwealth v. Berkowitz (Pa. 1994, p.359)
-The victim said “no” but didn’t physically resist and never screamed out
-D claims that victim’s “nos” were amorously whispered
-D convicted of indecent assault because there was no force (which would be rape) but a lack of
consent
-The no sometimes means yes norm is subject to dissensus, both behaviorally and morally
-Rape law reform has been targeted at repudiating no sometimes mean yes, but prosecutors and
juries are not allowing that to happen
MPC § 213.1. Rape and Related Offenses.
(1) Rape. A male who has sexual intercourse with a female not his wife is guilty
of rape if:
(a) he compels her to submit by force or by threat of imminent death, serious
bodily injury, extreme pain or kidnaping, to be inflicted on anyone; or
(b) he has substantially impaired her power to appraise or control her conduct by
administering or employing without her knowledge drugs, intoxicants or other
means for the purpose of preventing resistance; or
(c) the female is unconscious; or
(d) the female is less than 10 years old.
Rape is a felony of the second degree unless (i) in the course thereof the actor
inflicts serious bodily injury upon anyone, or (ii) the victim was not a voluntary
social companion of the actor upon the occasion of the crime and had not
previously permitted him sexual liberties, in which cases the offense is a felony of
the first degree.
(2) Gross Sexual Imposition. A male who has sexual intercourse with a female
not his wife commits a felony of the third degree if:
(a) he compels her to submit by any threat that would prevent resistance by a
woman of ordinary resolution; or
(b) he knows that she suffers from a mental disease or defect which renders her
incapable of appraising the nature of her conduct; or
(c) he knows that she is unaware that a sexual act is being committed upon her or
that she submits because she mistakenly supposes that he is her husband.
-In MD and NY, force or threat of force still required by rape statute
-WI does away with traditional statute, has a more complicated graded scheme where
force/threat of force carries a stiffer penalty but other grades where it’s just sex without consent:
-No mens rea in here
-So how can courts figure out what the mens rea is when it’s not specified by the statute
25
-So you look to AR (intercourse) and ATC (No Consent, Force or Threat) and ask what
MR should apply
a) Remember in Morriessete, court decided to apply knowledge standard for the
MR because values supported that interpretation
-Establishes gradations based on consent and threat of force
-Strict Liability here, you need a yes, not just a lack of non-consent
-What distinguishes the gradations?
1) force/causes pregnancy
2) threat…
3) Lack of consent
-Some chilling effect, but huge deterrence benefit in theory, non consensual sex is thwarted
Regina v. Morgan (UK 1976, p.368)
-Husband and army buddies come home wake wife up and have sex with her, while she is held
down
-Court adopts honest belief in consent as mental state standard on lack of consent
-Question is whether to apply a negligence standard of honest and reasonable or a knowledge
standard of just honest
-Judge is saying that negativing mens rea is not a formal defense; the mens rea here is knowledge
a) So honest mistake is a defense
b) But at trial the D’s had a consent defense and not an honest mistake one
c) The AC finds that even if they had made a mistake their TC defense of consent would
still not stand
-So the court ends up going with knowledge but still affirms
Commonwealth v. Sherry (MA 1982, p.377)
-Victim taken to one of the D’s home, she verbally protests but has sex with all 3 men, she said
she was very frightened during all of this
-D’s say very different story and that victim consented to everything
-Court holds victim is not required to use physical force to resist, just needs to demonstrate her
lack of consent is honest and real
-Court says it is unaware of any mistake of fact defense regarding consent without
reasonableness
a) It’s a matter of actual knowledge (honest mistake) versus negligence (honest and
reasonable mistake) versus strict liability (no mistakes allowed)
-In Commonwealth v. Lefkowitz, arising out of same fact pattern, “no means no” adopted
-Problem with knowledge standard: you can fake it, pretend you didn’t know; discourages people
from asking questions (i.e. asking for consent) because you can just say you didn’t know
-Most jurisdictions employ the negligent standard: the jury will be doing a lot more work here to
see if D was behaving reasonably; the standard is more objective, looks at what is normal
reasonable in the community; as for fairness, if the D fails to live up to what the community
believes to be reasonable behavior then its fair to punish him
-Strict Liability Standard (what MA adopted): forces people to be very cautious; not as worried
about a chilling effect like we were in Morissette; but what do you in communities with varying
perspectives? In those instances, the chilling effect is going to be great
26
a) Why is that when states institute no means no / strict liability standards, rapes don’t go
up? Because prosecutors don’t bring the cases, judges influence cases, and jurors nullify
State v. Rusk (Md. 1981, p.381)
-Pat drove Rusk home and she contends he took the car keys making her come into his place
-Pat said she was scared to death so went with D up to his room, begged him to let her leave, he
refused, even put her hands on her throat lightly choking her, and then had sex with her
-Rusk says it was totally consensual , and after sex Pat started freaking out
-Majority finds the TC should not be reversed if they thought Pat’s apprehension of fear was
reasonable (don’t need force for rape)
-Dissent says that Pat’s allegation of fear is not enough. D did not act in a way to cause fear or
make her think he was going to rape her
State in the Interest of M.T.S. (NJ 1992, p.387)
-Victim claims she woke with MTS on top of her with his penis in her vagina
-MTS has a very different story and claims that it was consensual until his fourth thrust when she
kicked him out of the room
-At TC proved that victim was not asleep but she had not consented
-Court looks to the unclear statute and defines “physical force”. Court concludes any act of
sexual penetration without the affirmative and freely-given permission of victim constitutes
sexual assault. Physical force beyond penetration is not necessary for it to be unlawful
-When no words are given, reasonable person interpreting the physical touchings between parties
is how affirmative and free authorization to sex is understood
-Acquaintance rape often takes place between two people who know each other with no use of
force
-Factfinder must only see if D’s belief that victim had freely given affirmative permission to sex
was reasonable NOT whether engaging in sex without permission was reasonable
-With the court deciding physical force like this, issue of Notice and Over Deterrence come up
-Similar case to Keeler
a) Controversial issue where institutions may want to dodge accountability
MR
AR
AT
Knowledge – honest mistake
Intercourse w/o consent
Force or threat
Negligence – honest and reasonable mistake
Strict Liability – No means no
-Negligence is the majority rule in the United States
-Strict Liability abolishes any local norms that might have no meaning yes
a) But even with strict liability, there’s the potential for other institutions to not uphold
the no means no standard (Police, Judges, Jurors)
-The majority rule in the US is still requires force or threat for rape
-Force or Threat bears on issue of consent and the mens rea
-Implied threats are not good enough; the person has to be reasonably in fear of their life
a) You need a threat sufficient to have a reasonable woman succumb
VI. HOMICIDE
CONVENTIONAL HOMICIDE GRADATIONS
27
Unintentional
Felony Murder
(Auman, Aaron, Phillips, and Smith)
1. Felony Murder;
2. Recklessness + Depraved & Malignant Heart
(Malone, Fleming?, Watson?); or
3. Intent => GBH
Adequate Provocation 1. Recklessness- (no consciousness of risk
Voluntary
necessary) or Wanton/Gross Negligence
Manslaughter + Heat of Passion
- Cooling time
(Welansky & Williams); or
(Thornton, Carr)
2. Unlawful Act (rare, sometimes known as
"misdemeanor manslaughter")
1st Degree
Murder
2nd Degree
Murder
Intentional
Premeditation
(Carol & Perez)
No Premeditation
(Anderson)
1st Degree
2nd Degree
Murder
Involuntary
Manslaughter
MPC HOMICIDE GRADATIONS
Intentional
Unintentional
Purpose or Knowledge
Felony Murder
Murder
Murder
or
Recklessness + EIHL
Recklessness
Manslaughter Purpose or Knowledge +
Manslaughter
Extreme Emotional Distress (Casassa)
Negligence
Negligent Homicide
-MPC pays close attention to Mens Rea



Common Law: 1st v. 2nd Degree Murder
o Supposed doctrinal standard: premeditation
o In practice, not so much
 Most jurisdictions follow the PA standard and don’t require much in the
way of real premeditation (see Carol)
 Some (but not as many) require real premeditation (or at least did,
compare, eg.g., Anderson & Perez)
o Is there anything left over for 2nd Degree murder?
MPC: Murder
o Only one degree of intentional murder under MPC
Common Law: Murder v. Manslaughter
o Murder can be mitigated to manslaughter if there is:
 Adequate Provocation
 Heat of Passion
 Insufficient Cooling Time
o What is adequate Provocation?
 Derivative of social norms
 Spousal Infidelity traditionally accepted (see Thornton), but also
sometimes rejected (e.g., by MD legislature)
28
o


Who decides?
 Normally jury decides (Maher)
 Sometimes courts decide (Carr)
MPC: Murder v. Manslaughter
o Murder can be mitigated to manslaughter if there is “extreme mental or emotional
disturbance for which there is reasonable explanation or excuse.”
o Leads to battle of experts in court (see Casassa)
MPC v. Common Law on Mitigation to Manslaughter
o MPC conceals debate over what is “adequate”
o Do we want contentious norms about who deserves to die to be made public in
court, or kept private in the jury room?
o MD reform suggests openness is good, but there might also instances where
openness reinforces bad norms.
MPC § 210.1. Criminal Homicide.
(1) A person is guilty of criminal homicide if he purposely, knowingly, recklessly
or negligently causes the death of another human being.
(2) Criminal homicide is murder, manslaughter or negligent homicide.
MPC § 210.2. Murder.
(1) Except as provided in Section 210.3(1)(b), criminal homicide constitutes
murder when:
(a) it is committed purposely or knowingly; or
(b) it is committed recklessly under circumstances manifesting extreme
indifference to the value of human life. Such recklessness and indifference are
presumed if the actor is engaged or is an accomplice in the commission of, or an
attempt to commit, or flight after committing or attempting to commit robbery,
rape or deviate sexual intercourse by force or threat of force, arson, burglary,
kidnaping or felonious escape.
(2) Murder is a felony of the first degree [but a person convicted of murder may be
sentenced to death, as provided in Section 210.6].
MPC § 210.3. Manslaughter.
(1) Criminal homicide constitutes manslaughter when:
(a) it is committed recklessly; or
(b) a homicide which would otherwise be murder is committed under the
influence of extreme mental or emotional disturbance for which there is
reasonable explanation or excuse. The reasonableness of such explanation or
excuse shall be determined from the viewpoint of a person in the actor's situation
under the circumstances as he believes them to be.
(2) Manslaughter is a felony of the second degree.
MPC § 210.4. Negligent Homicide.
(1) Criminal homicide constitutes negligent homicide when it is committed
negligently.
(2) Negligent homicide is a felony of the third degree.
-2nd Degree murder is described as everything not 1st degree murder
a) Premeditation is what distinguishes them
Commonwealth v. Carrol (Pa. 1963, p.422)
29
-The issue on appeal was whether the crime was premeditated or not (difference between murder
in the first or second degree)
-Carroll’s defense is that he was gripped by a sudden impulse; he was conscious of what he was
doing but wasn’t in full control (he took gun and shot wife twice in the head)
-The question here is was there sufficient evidence here to convict on first degree murder
-The court affirms, but why?
a) Even given the D’s own account, the court will not overturn because in that account
you can find premeditation (reaches for gun and commits act)
-“Murder in Pa is defined as an unlawful killing of another with malice aforethought, express or
implied.” 1st degree requires willful, deliberate and premeditated killing. Court finds that no time
is too short to allow for premeditation to occur (p.424)
-On the matter of impulsiveness, society would be unprotected if we allowed impulsive killings
to be treated as second degree of murder
a) But even convicted of 2nd degree murder he is incapacitated; there’s a reason for the
gradation
-We find the 1st degree murders to be more heinous, more culpable in society
-Courts are not allowed to increase the conviction on appeal
-In this arrangement, the jury has a lot of discretion here. The court can’t bump it up, and in PA,
the court won’t bump it down, so lies with the jury
-Cardozo wants the court to be more straightforward with the jury; they have the power to
determine the gradation depending on their view of all circumstances but that’s not explicitly
told to them like in jury nullification
People v. Anderson (Cal. 1968, p.426)
-1st degree murder conviction overturned for a conviction of 2nd degree murder
-Court uses three part test to determine premeditation: (1) Planning activity, (2) Motive/Prior
relationship with victim, and (3) Precision/Manner of killing (was executed like a plan or just a
hack-job)
a) Court believes this case lacked all 3 of those things
-Courts in CA empowered, unlike in PA, to bump the gradation down to 2nd degree
a) If you had Carroll in CA, you could have gotten 2nd degree
-Why is premeditation something we worry about? Isn’t it easier to deter a premeditation than
impulsiveness?
a) Deterrence argument here is not so great
-Expressive argument holds more water for making premeditation worse than impulsiveness
-Advantages of giving tough questions to jury is that they decide the controversial issue; allows
for the people to balance the difficult issues at hand and reach a conclusion representative of the
community
a) Disadvantages would be inconsistency, bias
People v. Perez (Cal. 1992, p.432)
-TC found 1 degree, AC reversed that to 2nd, and SC reinstates 1st degree
-D killed victim in her home, had limited prior relationship and the manner of killing was sloppy
-Court applies same test as in Anderson but yields a different outcome
st
30
Maher v. People (Mich. 1862, p.437)
-In Maher, 3 elements are brought out regarding voluntary manslaughter: adequate provocation,
heat of passion, and insufficient cooling time
State v. Thornton (Tenn. 1987, p.440)
-D shot his wife’s lover in the bedroom
-Defense is it was a crime of passion
-Classic case of mitigation manslaughter
-Is there adequate provocation? Sleeping with another man’s wife would be provocative
-Heat of passion? Seeing your wife sleep with another would no doubt create a heat of passion
-Cooling time? D argues that the hours that elapsed was not enough time to diminish his passion
-Of course, the prosecution could also argue against all of this
a) His wife was loaded, they were separated; he walked into the situation; did a lot of
other stuff like let the air out of tires and get camera
-Insufficient evidence of 2nd degree murder turns out to be sufficient evidence of voluntary
manslaughter
-Court finds this to be a classic case of voluntary manslaughter
-From Maher, passionate reaction must be reasonable; can’t get angry over something because
you’re a bad person (like in Carr)
Commonwealth v. Carr (Pa. 1990, p.446)
-D became enraged when he saw lesbians making out. D claims his psychosexual history should
suffice as adequate provocation
-The ultimate test for provocation is whether a reasonable man confronted with the same series
of events would have become impassioned to the extent that his mind was incapable of cool
reflection
a) If provocation found, still need to look at heat of passion/cooling time
-Provocation here is not sufficient
People v. Casassa (NY 1980, p.448)
-D devastated by neighbor’s romantic rejection of him, brutally murders her
Debate here boils down to extreme emotional disturbance
-The trier of fact decides if extreme emotional disturbance (EED)
-There are 2 standards to EED
1) Subjective standard, did the D act under EED
2) The objective standard, is there a reasonable explanation or excuse for EED
(determined from the viewpoint of a person in the D’s situation under the circumstances
as De believed them to be)
-TC applied test correctly and was not right in finding no mitigation because D acted with
malevolence
-Md. statute states that adultery situation does not constitute sufficient provocation mitigating
murder to voluntary manslaughter (enacted after a man was sentenced to a work-release program
after shooting his wife several hours after discovering infidelity)
31
-People who kill on slight provocation are dangerous and need to be deterred with more serious
punishments than those who are adequately provoked
-The question is what is the best approachVoluntaristic in prof.’s mind, you evaluate the
provocation and passion
-The MPC relies on EED that obliterates reason
-Jurisdictions largely rely on the voluntaristic approach
-When the law mitigates from murder to manslaughter, something is being said about the quality
of that life that is taken – and that can be distressing
-Employing confusing doctrines like EED to juries leads to similar results as under the CL
-If we leave the issue to juries the issue could be exposed but it could stay silent
-Judges could take the issue upon themselves by restricting the juries access to expert witnesses,
certain evidence, and decide doctrinally that certain provocations are more adequate than others
and that certain amounts of time are sufficient/insufficient for cooling time
a) Or the legislature could come in, like in MD, and say that this (wife cheating) is not
adequate provocation for murder





Common Law: Involuntary Manslaughter
o At least three Mens Rea standards
 Negligence
 Gross Negligence
 Recklessness (note: not always like MPC recklessness)
o Theoretical dimension
 Objective standard. Makes deterrence sense; maybe not desert or
expressive condemnation (compare Welansky and Williams)
o Institutional dimension
 legislatures and courts employ language such as “willful”, “wanton”,
“gross”, etc., to distinguish from civil liability, leave it to a jury to decide.
MPC: Manslaughter = Reckless Homicide
Common Law: Depraved & Malignant Heart
o Resulting from recklessness with respect to the risk of death (in some
jurisdictions, may not require conscious disregard - “constructive recklessness” see Malone & Fleming); and
o Act and circumstances show a “depraved and malignant heart”
MPC: Just Call it Murder
o Reckless with respect to the risk of death; and
o Displaying an “extreme indifference to the value of human life.”
MPC & Common Law: Felony Murder
o Limitations
 Most jurisdictions list specific felonies
 Many also require that the “natural consequences” of the underlying act be
“inherently dangerous” (e.g., CA; see Phillips)
 Merger: underlying felony can’t be a lesser included part of murder (e.g.,
CA; see Phillips)
o Reform
 California Strategy: merger creates odd gradations.
 Michigan Strategy: repeal.
32
-The MPC says there is criminal liability for negligent actions (most jurisdictions don’t agree
with the MPC)
-Mere negligence around dangerous instrumentalities would constitute involuntary manslaughter
-You don’t want to over deter things like driving or playing baseball even though they involve
dangerous instruments, the difference is the social context
-Under the MPC, negligence is someone who is unaware of a substantial and unjustifiable risk
-Under the MPC, recklessness is someone who is aware of a substantial and unjustifiable risk but
disregards it
a) The difference between the two is consciousness
-Consciousness of a risk makes someone more culpable because they’re aware about it, it could
have been avoided
a) You want to deter people from taking substantial and unjustifiable risks
b) It’s harder to deter someone who is doesn’t know of the risk
Commonwealth v. Welansky (Mass. 1944, p.464)
-D ran a nightclub where the emergency exits were incredibly hard to find/open
-Many people died, D found guilty of wanton/reckless care, which is intentional disregard for
dangerous risk
-The negligence standard is if the ordinary person would be aware of the risk then the D should
be or there’s negligence
-This guy is a greedy SOB (locking fire exits to prevent them from skipping out on the bill)
a) Poor character
State v. Williams (Wash. 1971, p.471)
-Ds negligently failed to provide their child with medical care, and the baby died because of it
-Something was wrong with the baby, parents weren’t very bright, just gave it aspirin because
didn’t want social services to take it away
-Wash. doesn’t require gross negligence, the crime is deemed committed even though there was
simple or ordinary negligence
-Did the D’s have the capacity to know about the risk / make the appropriate judgments?
a) Court holds them criminally liable regardless
-Hart, unlike Justice Thomas, believes people should be held to a subjective standard (only liable
for what they could have known)
-Thomas’ standard approach is easier to administer, and it’s better to err on the side of over
punishing
Commonwealth v. Malone (Pa. 1946, p.480)
-D and victim were boys playing Russian roulette with a pistol when the victim was shot
accidentally in the head
a) D was convicted of 2nd degree murder
-Court finds an act of gross recklessness for which death must reasonably anticipated was
committed and that exhibits a wicked disposition (a depraved and malignant heart)
-This wouldn’t be first degree murder because premeditation was lacking
a) What is the mens rea here? Well its reckless for sure
33
b) Manslaughter occurs with mere recklessness, what distinguishes this case to make it 2nd
degree murder is that it is GROSS Recklessness that the D should have reasonably anticipated
death could result indicating a state of mind of malice
Under MPC, there would likely have been a manslaughter conviction
a) Not a case of Extreme Indiff. To Human Life (EIHL) because the boy thought the
bullet wouldn’t be fired
-The moment you say “should have known” you’re in negligence; for recklessness you have to
know
US v. Fleming (4th Cir. 1984, p.484)
-D was drunk, lost control of his car and killed victim
-Convicted of 2nd degree, appeals arguing it should’ve manslaughter b/c no malice aforethought
-Court holds that malice can be established by reckless and wanton conduct that D is aware will
lead to death or serious injury
-D not only drove drunk but his driving was so reckless to show a depraved disregard for human
life
-Not consciously making the decisions, this guy is just drunk
-The court deals with this fact by pointing out that voluntary drunkenness is not a mitigating
factor
-What is the implication of this for all drunk drivers?
a) Court qualifies that if you’re drunk and driving like a normal person would then not as
big a deal, but if you drive erratically and are drunk then you’re in trouble
-The point is that the prosecution, etc are saying he SHOULD HAVE BEEN aware, that by
definition is negligence
-Court upheld 2nd degree murder conviction
Felony Murder
1) Origins
2) Basic Rule (Serne and Auman)-----------> 1st Degree: Rape, arson, kidnapping, robbery,
burglary, mayhem; 2nd Degree: all other felonies
3) Limitations
a. Inherent Danger
b. Merger
4) Debate and Reform
-Felony murder imported from England to the US
-In the US we have always increased the number of felonies on the books and in most
jurisdictions we still have the felony murder doctrine
-MI court held that felony murder is an unnecessary. Finds that the state has no statutory felonymurder rule which allows the mental element of murder to be satisfied by proof of the intention
to commit the underlying felony
a) Since this rule, state legislature has not amended murder statute to allow felony murder
People v. Phillips (Cal. 1966, p.510)
34
-Charged with grand theft and felony murder for saying he could treat cancer patient without
surgery. Court reversed felony murder conviction because grand theft is not an inherently
dangerous felony, which you need for felony murder
-What happens when merger and inherently dangerous is combined? See Watson case
a) D breaks in with a weapon and kills his ex-wife, though he broke in to commit a
robbery
-Seems like this should be a murder case, but what if the person breaks in steals a stereo, sparks a
fire, and the woman dies anyway
a) This case is more easy to punish than the one where the husband shoots the wife
-This is the problem in CA, where the state is trying to get rid of felony murder by broad
interpretations of merging and inherently dangerous
-In MI, they decide that felony murder is going to require all the elements of another murder
(override felony murder basically); CA won’t do that because they don’t want to run over the
legislature
-The argument against the MI approach is judicial activism BUT judges came up with it anyway
through common law and if the legislature wanted to change it they could
-In CA they pretend to be respectful of the legislature but they’re essentially gutting the law
VII. ATTEMPT




Mens Rea
o Purpose (and, very rarely, knowledge)
 generally excludes crimes of negligence and recklessness
 but some jurisdictions allow for prosecution of strict liability crimes (e.g.,
statutory rape)
o Read the MPC carefully, as it is the majority rule.
Actus Reus
o Common Law: Dangerous Proximity (Peaslee & Rizzo)
o MPC (majority rule): Substantial Step (Jackson & Buffington)
Renunciation
o Common Law: abandon or otherwise prevent commission of crime (Joyce)
o MPC (majority rule): complete and voluntary renunciation of criminal purpose
(Joyce?)
Merger
o If the crime is actually committed, then the attempt is “merged” with the actual
offence
-Deterrence (preventing them from trying again), expressive condemnation (wrong to try to
commit a crime), and Individual desert (bad that someone had malice in the heart to attempt a
crime)
-Marginal deterrence to be gained from punishing someone less who has attempted a crime and
failed than someone who has successfully completed a crime (chance to reconsider and weigh
the options)
-From a social meaning perspective, less offensive when a crime is not completed
-Crimes of recklessness and negligence can never be attempted because of this
35
-An exception: statutory rape and some strict liability crimes. Many jurisdictions hold that
someone can be charged with attempted statutory rape even if unaware of the AT (also
attempting to kill a federal officer, even if D did not know that he was a federal officer)applies
to these specific malum in se crimes, they are wrongs in and of themselves
-Posner: want to criminalize attempts to deter future attempts, increase expected cost of crime,
and incentivize changing one’s mind and not completing crime
MPC § 5.01. Criminal Attempt.
(1) Definition of Attempt. A person is guilty of an attempt to commit a crime if,
acting with the kind of culpability otherwise required for commission of the crime,
he:
(a) purposely engages in conduct that would constitute the crime if the attendant
circumstances were as he believes them to be; or
(b) when causing a particular result is an element of the crime, does or omits to do
anything with the purpose of causing or with the belief that it will cause such result
without further conduct on his part; or
(c) purposely does or omits to do anything that, under the circumstances as he
believes them to be, is an act or omission constituting a substantial step in a course
of conduct planned to culminate in his commission of the crime.
(2) Conduct That May Be Held Substantial Step Under Subsection (1)(c).
Conduct shall not be held to constitute a substantial step under Subsection (1)(c) of
this Section unless it is strongly corroborative of the actor's criminal purpose.
Without negativing the sufficiency of other conduct, the following, if strongly
corroborative of the actor's criminal purpose, shall not be held insufficient as a
matter of law:
(a) lying in wait, searching for or following the contemplated victim of the crime;
(b) enticing or seeking to entice the contemplated victim of the crime to go to the
place contemplated for its commission;
(c) reconnoitering the place contemplated for the commission of the crime;
(d) unlawful entry of a structure, vehicle or enclosure in which it is contemplated
that the crime will be committed;
(e) possession of materials to be employed in the commission of the crime, that
are specially designed for such unlawful use or that can serve no lawful purpose of
the actor under the circumstances;
(f) possession, collection or fabrication of materials to be employed in the
commission of the crime, at or near the place contemplated for its commission, if
such possession, collection or fabrication serves no lawful purpose of the actor
under the circumstances;
(g) soliciting an innocent agent to engage in conduct constituting an element of
the crime.
(3) Conduct Designed to Aid Another in Commission of a Crime. A person who
engages in conduct designed to aid another to commit a crime that would establish
his complicity under Section 2.06 if the crime were committed by such other
person, is guilty of an attempt to commit the crime, although the crime is not
committed or attempted by such other person.
(4) Renunciation of Criminal Purpose. When the actor's conduct would otherwise
constitute an attempt under Subsection (1)(b) or (1)(c) of this Section, it is an
affirmative defense that he abandoned his effort to commit the crime or otherwise
prevented its commission, under circumstances manifesting a complete and
voluntary renunciation of his criminal purpose. The establishment of such defense
does not, however, affect the liability of an accomplice who did not join in such
abandonment or prevention.
Within the meaning of this Article, renunciation of criminal purpose is not
voluntary if it is motivated, in whole or in part, by circumstances, not present or
36
apparent at the inception of the actor's course of conduct, that increase the
probability of detection or apprehension or that make more difficult the
accomplishment of the criminal purpose. Renunciation is not complete if it is
motivated by a decision to postpone the criminal conduct until a more
advantageous time or to transfer the criminal effort to another but similar objective
or victim.
Commonwealth v. Peaslee (Mass. 1901, p.523)
-Guy charged with attempted arson after setting up combustibles around a building but
chickening out before he did it
-The court applies a dangerous proximity test and convicts the guy, even though the guy clearly
renounced that he was going to do the crime
People v. Rizzo (NY 1927, p.524)
-Bank robbery case
-Again the question is how close to committing the crime did the Ds come
-Ds not guilty because they had not found nor reached the presence of the person they intended
to rob
-These guys came as close as you can get to committing a crime without doing it and aren’t
convicted because court didn’t find dangerous proximity
-Under the MPC, both cases satisfy the substantial step toward a crime, but (4) of the MPC may
get Peaslee off (but maybe not because he renounces after the kid hesitates)a question for the
jury but under the dangerous proximity test (CL) the judge decides)
-So institutional shift from the CL (judge decides proximate danger) to the MPC (jury decides if
the facts meet the standard of attempt)
-What drives jurisdictions to switch to the MPC approach?
a) Law should encourage renunciation
b) Stop people before they get to the dangerous proximity
-First caveat, where a result is part of the essential element of crime (e.g. death for homicide)
then knowledge with respect to that result is sufficient
a) So if purpose does something and knows death is likely to result then there is sufficient
MR for attempt
-Second caveat is that some (but not all) strict liability cases in some (but not all) jurisdiction,
purpose with respect to the attendant circumstances is not required (e.g. statutory rape); still have
to purposely engage in sexual intercourse but don’t need to know the age or purposely go after a
younger woman
- Under CL, had to get just up to the dangerous proximity and could abandon it without liability
-But wouldn’t it be able to prevent people from getting dangerously close
-This is what MPC did with substantial step test (has to be strongly corroborative of the criminal
intent)
a) MPC allows for abandonment, but it has to be a complete heartfelt abandonment
-No longer up to the judge to figure out the doctrine (e.g. whether someone was dangerously
proximate); MPC lays out what is needed and exceptions, etc
US v. Jackson (2d Cir. 1977, p.527)
-Ds charged with attempt to rob a bank
37
-Were casing the joint when they detected surveillance and tried to escape
-MPC has 2 tier test for attempt: (1) Must have requisite mens rea and (2) must take a substantial
step toward the commission of the crime
-The abandonment in the first attempt would not constitute renunciation because they only did
that because they thought they might get caught (Is the contrary to deterrence theory? No
because deterrence theory is not suppose to encourage people to plan for an easier crime)
US v. Buffington (9th Cir. 1987, p.531)
-Another bank robbery case
-Again the Ds are surveying the scene. Power outage forced bank to lock its door and so men
drove away but were then arrested
-At trial charged and convicted with attempted robbery; on appeal that is reversed because the
conduct of Ds didn’t meet substantial step test
-If you’re a prosecutor you might be able to argue substantial steps:
a) Revolvers (2)(e) of MPC p.526
b) Standing around, waiting (2)(a)(c)
US v. Joyce (8th Cir. 1982, p.535)
-Government sting operation. D refused to show money to buy cocaine and then refused to
purchase the cocaine, and left
-D renounced his criminal act, all that occurred was a preliminary discussion that broke down
The guy flew to St. Louis; demands to see the cocainehow are these not overt acts
-Could read it as abandonment but it’s not heartfelt/voluntary, if he ever really tried to abandon
at all
-In cases where there is some chance of substantial harm, maybe want a more flexible standard
for some substantial step
-Prof. believes this judge still relying on their old dangerous proximity test
VIII. GROUP CRIME





MPC Section Section 2.06(3)(a) & Modern Common Law
Actus Reus
o Solicit or Assist in Criminal Act
 Need not contribute to result (Tally)
 Mere presence not enough unless it evidences encouragement (Wilcox,
Clarkson & Dunlop)
 Omissions may be enough were there is a duty (Noffsinger & Hunter)
Mens Rea
o Mental state of underlying offense (Wilson)
o Purpose of promoting or facilitating the underlying act (evidenced by what?)
 Stake in the venture / Nexus of purpose? (Gladstone)
 Common Plan? (Puffer)
Derivative Liability
o In a few jurisdictions, the accomplice cannot be held liable for a crime the
principle did not commit. (Richards, Hayes)
Gebardi Exception
38
o
Can’t be an accomplice if
 Defendant is victim of the offense
 The offense is defined so that defendant’s conduct is inevitably incident to
its commission
MPC § 2.06. Liability for Conduct of Another; Complicity.
(1) A person is guilty of an offense if it is committed by his own conduct or by the
conduct of another person for which he is legally accountable, or both.
(2) A person is legally accountable for the conduct of another person when:
(a) acting with the kind of culpability that is sufficient for the commission of the
offense, he causes an innocent or irresponsible person to engage in such conduct;
or
(b) he is made accountable for the conduct of such other person by the Code or by
the law defining the offense; or
(c) he is an accomplice of such other person in the commission of the offense.
(3) A person is an accomplice of another person in the commission of an offense
if:
(a) with the purpose of promoting or facilitating the commission of the offense, he
(i) solicits such other person to commit it, or
(ii) aids or agrees or attempts to aid such other person in planning or committing
it, or
(iii) having a legal duty to prevent the commission of the offense, fails to make
proper effort so to do; or
(b) his conduct is expressly declared by law to establish his complicity.
(4) When causing a particular result is an element of an offense, an accomplice in
the conduct causing such result is an accomplice in the commission of that offense
if he acts with the kind of culpability, if any, with respect to that result that is
sufficient for the commission of the offense.
Selected Sections of the Model Penal Code Page 13.
(5) A person who is legally incapable of committing a particular offense himself
may be guilty thereof if it is committed by the conduct of another person for which
he is legally accountable, unless such liability is inconsistent with the purpose of
the provision establishing his incapacity.
(6) Unless otherwise provided by the Code or by the law defining the offense, a
person is not an accomplice in an offense committed by another person if:
(a) he is a victim of that offense; or
(b) the offense is so defined that his conduct is inevitably incident to its
commission; or
(c) he terminates his complicity prior to the commission of the offense and
(i) wholly deprives it of effectiveness in the commission of the offense; or
(ii) gives timely warning to the law enforcement authorities or otherwise makes
proper effort to prevent the commission of the offense.
(7) An accomplice may be convicted on proof of the commission of the offense
and of his complicity therein, though the person claimed to have committed the
offense has not been prosecuted or convicted or has been convicted of a different
offense or degree of offense or has an immunity to prosecution or conviction or has
been acquitted.
Accomplice Liability
AR: Encouraging, assisting, or soliciting a crime
MR: Purpose of seeing the crime succeed
Rough heuristics: Nexus / Stake in venture, neither necessary or sufficient
39
a) Something that could help establish purpose
-Aiding and abetting is an after the fact offense and in the US, it is considered less liable than
accomplice liability, which is quite broad and only has one standard (can be held just as liable as
the person who commits the crime)
Wilcox v. Jeffrey (UK 1951, p.544)
-American saxophone plays in England without the proper license
-The D was found guilty because he derived a benefit from the illegal activity (enjoying the
music and then writing a column about it)Aid and Abetting illegal act
a) Clapping, paying for a ticket and seeing the event succeed so he can write an article all
are parts of the AR here
Wilson v. People (Colo. 1939, p.546)
-Wilson told Pierce he would help him rob a store. Once Wilson had gotten Pierce through a
window into the store, Wilson called the police
-Sounds like Wilson is encouraging and assisting the criminal
a) The guy didn’t even have the watch
-But Wilson did not have the purpose of seeing the crime succeed, and he doesn’t have a stake in
the success of the crime
-Wilson though is a loose cannon, but is not as dangerous as Pierce, who’s committing the crime
State v. Gladstone (1980, p.549)
-D drew a map for where the undercover cop could find someone to buy weed from
a) He is accused of assisting the seller and not buyer with the unlawful sale of marijuana
-If Gladstone made a point to say tell Kent I sent you that could change things
a) No nexus but that’s not necessary, MR arguably established with this
-Is Gladstone a dangerous guy, someone worthy to try to deter?
-If Gladstone referred Thompson to hit men to kill somebody would that change things?
a) Yes because that is a lot more troubling even if there’s no change in the MR/AR
-Court reversed Gladstone’s conviction
-So you could leave the question of “Is this person responsible?” to the legislature, the jury
(often happens), or the juryBasically everyone in the criminal justice system does this
-A lot of the outcome depends on who is trying the case and their background (intangibles)
-If Posner did nothing, the legislature would be more likely to do something (Keeler and over
punishment v. under punishment)
-Posner would want to grade the MR based on purpose not knowledge (e.g. a lot worse if you
help a kid buy weed than help Bin Laden). This is not the majority rule.
-Legislatures fail to provide the sophisticated gradations that’d you like
Regina v. Clarkson (UK 1971, p.550)
-Two guys watched an army buddy rape a girl. Charged with aid and abetting
-Would have to infer the Ds presence as encouragement
-While the inference could be drawn, charges have to be dropped
Regina v. Dunlop (Canada 1979, p.551)
40
-Another rape case where guy was present when fellow biker gang members rape a girl
-Again, D is just present and that does not make him guilty because he did nothing to stop it
Accomplice Liability (cont’d):
AR: Encouraging, assisting, soliciting (Willcox & Tally)
MR: With purpose or principle’s success (Wilson & Gladstone)
a) Evidence: Stake/Nexus – But remember neither necessary nor sufficient
1) Derivative Liability
2) Gradations based on intents (Richards)
3) Kingpin Statutes (Pino-Perez)
4) Special Duties (Dunlop & Clarkson v. Noosfringer & Hunter)
Derivative LiabilityCan the accomplice be held liable if the principle is not?
State v. Hayes (Mo. 1891, p.560)
-D helps robber through window, accepts bacon the guy hands back out, but it was all just a
setup to catch the D, who only helped the guy through the window
-Hill doesn’t have the intent of actually completing the crime
-If Hill had boosted D through the window, then D would have been guilty of the more serious
crime
-D is more dangerous than the principal here, who was not charged
-Expressively we may want to do something here, but not convict them of the more serious crime
-Cannot convict someone of the offence when the offence is not committed (can get him for petit
larceny, for taking the bacon?)
Regina v. Richards (UK 1974, p.567)
-D had gotten two hired thugs to injure her husband
-The guys did not have the intent to do grievous harm; she didn’t want her husband killed but
wanted him in the hospital
-At TC, she gets charged with the more serious crime
-Because the more serious crime was not committed, she can’t be convicted for it. Is that right?
-This woman orchestrated the crime
-Accomplices are not going to be held more liable than the offence of the principles
-Policy issues cut either way here
US v. Pino-Perez (7th Cir. 1989, p.573)
-Want to restrict kingpin to the person at the top, if you extend liability down, you’ve done away
with the purpose of the statute itself
-Peno is not an underling, he’s an independent supplier
-Looking at the statute on pg 573, looks like the guy fits the bill
-There’s another statute on the books (§841 on p.575) to punish this guy
a) Why have it if you make him an accomplice
-Look at this from perspective of institutional performance
a) Peno could go either way
b) If Peno gets off for the kingpin statute, we risk under punishing him and not deterring
c) If Peno gets the statute, the risk is we over punish
41
d) Judiciary should take the under punishment risk, so the legislature does something to
fix this
NC v. Noffsinger (2000, p.562)
-Robin and her boyfriend, David Tripp were in charge of Robin’s 15 month old child David
-The child was rushed to the hospital for injuries and Robin and David appeared to be
laughing/concerned about being arrested
-Robin had picked up the child 2 weeks earlier from the Proffitts home and it had bruises
-Tripp gave David a bath the day before, burned the baby’s skin off. The next day gave it another
bath and the child fell and was hitting its head
-The child then look unresponsive CPR administered, ambulance called
-Tripp pled guilty to 4 counts of felony child abuse, Robin was sentenced for felony child abuse
-Robin appealed; AC finds Robin didn’t take affirmative steps to protect her child, therefore she
could be found guilty of felony child abuse on the theory of aid and abetting
NC v. Hunter (2002, p.563)
-Dewella Hunter was charged with 2 counts of felony child abuse in regards to her two adopted
girls LaTrece and LaCarol
-Dewella married Monte Hunter, watched the girls but had mental problems
-Concern that the 12yr old LaTrece was pregnant, Dewella unsurprised to discover this but
claims to know nothing about it
-In examination with Dr. Russo, LaTrece admits that Monte had impregnated her
-Dewella appeals claiming the state did not have substantial evidence that she allowed Monte to
sleep with her girls
-If Dewella had been convicted on an aiding and abetting theory, then she would have had to
have been present
-In fact Dewella was aware that Monte might sleep with the girls, knew LaTrece stopped
PMSing
-So conviction affirmed because she allowed or permitted abuse on her child
MPC §2.06: (6) Unless otherwise provided by the Code or by the law defining the offense, a
person is not an accomplice in an offense committed by another person if:
(a) he is a victim of that offense; or
(b) the offense is so defined that his conduct is inevitably incident to its
commission;
-This is known as the Gebardi exception
IX. CONSPIRACY


MPC (Section 5.03) & Common Law
o Mens Rea
 With the purpose of committing a crime
o Actus Reus
 Agrees to attempt, solicit, or commit a crime; or
 Agrees to aid another person in doing so
 (For smaller crimes, there must be an overt act)
Similarities with Attempt & Accomplice Liability:
42
o
o
o



Must have mens rea for underlying offense
Must purposefully seek the criminal act
In most jurisdictions, for strict liability crimes, must have knowledge of attendant
circumstances (though there are many exceptions: assaulting a federal officer; and
in some jurisidctions, the age of a statutory rape victim)
Differences:
o Common Law, but not MPC: No merger (can be guilty of conspiracy *and* the
underlying crime)
o Fully liability for reasonably foreseeable acts of co-conspirators (Pinkerton)
o Withdrawal/renunciation: Must declare to co-conspirators or the police
What is an “agreement”?
o Interstate (dicta: no clear agreement needed)
o Alvarez1 (smile and nod not enough)
o Alvarez2 (smile and nod is enough)
RICO
o New concept of criminal “enterprise.” Agreeing to participate in the enterprise
does not require that the co-conspirators know the identities of other members;
rather, they just need to know of the enterprise’s existence.
MPC § 5.03. Criminal Conspiracy.
(1) Definition of Conspiracy. A person is guilty of conspiracy with another person
or persons to commit a crime if with the purpose of promoting or facilitating its
commission he:
(a) agrees with such other person or persons that they or one or more of them will
engage in conduct that constitutes such crime or an attempt or solicitation to commit
such crime; or
(b) agrees to aid such other person or persons in the planning or commission of such
crime or of an attempt or solicitation to commit such crime.
(5) Overt Act. No person may be convicted of conspiracy to commit a crime, other
than a felony of the first or second degree, unless an overt act in pursuance of such
conspiracy is alleged and proved to have been done by him or by a person with whom
he conspired.
(6) Renunciation of Criminal Purpose. It is an affirmative defense that the actor,
after conspiring to commit a crime, thwarted the success of the conspiracy, under
circumstances manifesting a complete and voluntary renunciation of his criminal
purpose.
Conspiracy
AR: Agreement
MR: Purpose
Withdrawal has to be affirmative
-Biggest gun in criminal prosecutor’s arsenal
-Conspiracy is punished as a fraction of the underlying offense or at some fixed rate
-Want to punish conspiracy less for deterrence; but if the crime is committed, some jurisdictions
allow for cumulative punishment
-Under MPC, underlying acts are charged under one act, not the same in common law, can
double up conspiracy with attempt and conspiracy with completed crime
43
-Katal argues conspiracy should be treated as a separate crime because group crime created by
conspiracy is more dangerous
-Conspiracy is the atomic bomb of federal courts, RICO is the hydrogen bomb
-Conspiracy is incredibly expansive and gives great procedural advantages
-Only way to constrain broad liability would be through Agreement element of conspiracy
-Don’t have to show a lot, but have to show entering into a true partnership in a criminal
enterpriseHard to figure out what constitutes an agreement
Pinkerton v. US (US SC 1946, p.596)
-Daniel convicted of crimes his brother did (Daniel is in prison no less)
-As a prosecutor, Pinkerton opens the floodgates for charging people
-An overt act of one partner may e the act of all without any new agreement specifically directed
to that act
Interstate Circuit v. US (US SC 1939, p.599)
-Price fixing case for movies
-Have no evidence that of agreement; the guy just wrote a letter and copied all of the other
distributors
-The court finds that the evidence established this agreement, D obviously disagrees
a) Points to the behavior to prove that’s enough (parallelism among movie theaters)
US v. Alvarez (5th Cir. 1980, p.602)
-Nods and smiles, does that constitute an agreement?
-At first go, court says there was no agreement
-Alvarez just smiles and nods, doesn’t understand English, intimidated by powerful figures
-The plot would have gone on with or without Alvarez
-In a world without conspiracy theory, couldn’t nab Alvarez on attempt or accomplice because
the crime hasn’t happened yet and really hasn’t taken a substantial step toward committing the
crime
-Alvarez just doesn’t seem as culpable as these other cats
-If you punish Alvarez this early on in the plot, no point for them in backing out
-The first panel said he aided and abetted but didn’t commit conspiracyprobably because the
panel found him less guilty as the others
-Unlike in Interstate, where all the partners were necessary, not the case with Alvarez
a) Does Alvarez have an effect on the group dynamic?
RICO
-Created to breakup organized crime
-Can have many degrees of separation between people but all will be liable for the offenses of
the criminal enterprise
-Have to do more than show people are part of a group and someone in the group committed an
offense
a) Show a series of crimes that are somehow committed
X. SELF DEFENSE
44




Common Law: Classic Formulation
o Honest & reasonable belief that:
 deadly force is necessary
 to repel threat of death or GBH; and
 threat is imminent
o Not always “objective” (Wanrow)
MPC: Mens Rea limitation - don’t worry about it.
Imperfect Self-Defense
o Honest but unreasonable belief mitigates gradation of homicide (domesticating
jury nullification in cases like Goetz?)
East Dakotan Modifications
o Exception for kidnapping, forcible rape or sodomy, robbery (e.g., NY)
o True Man (no duty to retreat) (Renner)
 Majority position, though some require retreat where possible
 From Home
 Just about all hold no duty to retreat from one’s home (e.g., FL
Statute)
 Exception in cases of aggression by family members
o Battered Woman Syndrome (Kelly & Norman)
-East Dakota example:
Human life is sacred to our law but so is individual dignity
Refuse to adopt rule that would allow stronger to prey on weak by obliging them to
submit to public thrashings
Use of deadly force warranted only to secure “self-preservation”
Appropriate standard has both subjective and objective elements but relationship should
be stated more precisely than the instruction
Honest belief is objectively reasonable so long as he was in fact subject to a physical
assault by the victim-who can predict with accuracy the degree of danger he faces?
Risk of error more justly assigned to the aggressor than the victim
-Why not allow him to defend his dignity? Offends sense of proportionate response
-Does it make a difference that the burden is on the defendant to prove that their perception was
reasonable?
-If honestly believed-encourages vigilante
-Has to be something objective that people can agree on
State v. Wanrow (Wash. 1977, p.625)
-D shot a man who was much bigger than her, the guy had a bad history and was freaking out the
neighbors
-Justification for self-defense is to be evaluated in light of all facts and circumstances, including
those known substantially before the killing
-Jury should have been allowed to consider the degree of force which a reasonable person in the
same situation would use
45
-Respondent was entitled to have jury consider her actions in light of her own perceptions of the
situation, including those perceptions which were the product of our nation’s history of sex
discrimination
-Liberal humanism values life above all else; drives Self Defense doctrine
-In the case of Rama, under the classic doctrine, Rama’s loss of dignity and so forth don’t justify
his killings of the two men
-East Dakota offers an alternative, saying that values such as dignity are JUST as important as
life; this approach would evaluate the character of the person defending his honor, dignity, etc
against the values of those attacking him
-Saw some of East Dakota in Wanrow
-There are jurisdictions that bend requirements of imminence and reasonableness, like in
Wanrow
-If courts aren’t willing to bend self defense doctrine, juries can
-A lot of what’s going on in trials is based on social norms, how the judge and jury look at the
defendant or victim
-Bentham: always try to grade the punishment so it seems commensurate to the crime at hand
a) What you have with the doctrine of Imperfect Self defense
Self Defense
-Honest: reasonable belief that deadly force is necessary to repel an imminent threat or death
Imperfect Self Defense
-Honest nut unreasonable belief (Caps liability at manslaughter)
East Dakotan Exceptions
Kidnapping, Rape, Sodomy, Robbery
-In Rama’s case, Imperfect Self Defense (ISD) offers a reasonable alternative to the two possible
extreme outcomes of murder 1 or acquittal
People v. Goetz (NY 1986, p.618)
-Have a grand jury here; convened to give indictments; NY high court overturns dismissal saying
that it should be a reasonable person standard under the circumstances, not what Bernard thought
was reasonable; more objective standard
-NY statute allows use of deadly force to prevent forcible robbery
a) Some cracks here in the liberal humanist approach, a bit of East Dakota in NY
-Is Goetz even being robbed here? Jury would say he’s about to get robbed
-What kind of message is the acquittal sending to the public? Vigilante justice, Rama message
-Race a big issue in this case
-Would the case have come out the same way if ISD was an option?
-After the trial, NY expanded self defense to consider more of the surrounding circumstances,
like Wanrow
Duty to Retreat
-If one has no ability to retreat then justified to use self defense
-About half the jurisdictions have no duty to retreat
46
-True man doctrine: man w/o fault is not obligated to retreat from an assailant (p. 641)
-See Beale (p.644); cowardly to retreat but 10 times worse to kill
Castle Doctrine & Exception
-Don’t have to flee your home, if you’re assailed there you can hold your ground; maybe about
self preservation or self defense
-One must retreat if the aggressor is a member of one’s own family
TN v. Renner (TN 1995, p.639)
-True man doctrine did not apply here for the D because he made sure to leave in a manner that
confrontation would ensue when he could have just left through a kitchen door with no problems
-Interesting that deterrence is the grounds for justification but a little bit of East Dakota
motivating no duty to retreat (duelist mentality)
Battered Woman Syndrome (BWS)
-Expert testimony bolsters SD argument (reasonable, imminent threat)
-No law of justifiable domestic homicide
State v. Kelly (NJ 1984, p.647)
-D killed husband. Years of frequent abuse and threats from husband. He was coming at her and
she stabbed him
-History of battery means that victim is an expert of husband’s battery, what she should expect
-Goes to whether Gladys had a reasonable fear for death when husband came at her
-Why hasn’t the woman left if things are so bad?
a) Part of BWS is that woman is helpless and is unable to change the situation, even by
escape
-Court finds BWS is scientifically reliable so the case is remanded
State v. Norman (NC 1988, p.654)
-Judy was subjected to some heinous abuse for 25 years
-Judy claims that she needed to kill her husband to save her own life; also had expert testimony
supporting BWS
-TC finds there’s not enough evidence to support claim of self defense so no instruction on it for
the jury
-At issue in the case is whether there was an immediate threat to Judy, as she killed her husband
while she was asleep
-Certainly seemed to have reason to fear, husband beat her viciously before shooting and sheriff
was afraid for her safety if he arrested the guy
-AC finds the threat to be imminent because husband’s sleeping was just a break in his reign of
terror and was her first opportunity to respond
-The supreme court doesn’t find the immediacy necessary for self-defense here, reinstates TC
court conviction
-Right after trial, governor commuted her sentence
-No solution to BWS in terms of self-defense
47
a) Some courts institute subjective standard based on what that particular woman was
going through (psychological evidence). Dissent in Norman says the imminent harm
requirement in these cases should be done away with
-BWS can be used to show woman’s belief is reasonable
-Under classic definition of self defense, imminent threat required; women who attack their
husbands when not being beaten fail to meet that standard
-So what do we do with women who respond when not being beaten?
a) BWS proponents say the threat is always there, and we need to adopt a different
standard
-Notion of justified domestic homicide?
-If willing to make certain exceptions to self defense (East Dakotan ones), why aren’t we willing
to make an exception with BWS?
-Could institute some kind of legislation for justifiable domestic homicide
a) Unlikely legislature would take the lead on this
b) The courts could take the lead, but how do they go about it? Question of what jurors
are allowed to hear in terms of evidence and jury instructions
i) So courts could relax the reasonableness standards (Wanrow)
-Can just leave the law is and allow clemency in some circumstances
a) The executive branch will be more attuned to people’s feeling on a case or issue
-Some argue that the law is about privileging life and have a standard for everyone, others would
argue more of an East Dakotan approach
-Syndrome talk hedges these two approaches. Doesn’t say the husband was deserving but
explains what the woman was going through
XI. NECESSITY



Common Law
o Choice of evils
o Defendant chooses lesser evil
o No contrary legislative intent
o Imminent greater evil requires choice
o Choice not created by defendant
o Not a defense to homicide (Dudley & Stephens)
MPC
o Immanency not required (but bears on claim of no alternatives)
o No bar on self-created choices, but defendant may be liable for crimes of
recklessness or negligence
o Available in homicide prosecutions
Protest Crimes
o Generally fail under both Common Law and MPC because there is a democratic
alternative (no end run around democratic process. (See Oakland Cannabis,
Schoon, and Hill)
Necessity
CL
Imminence
MPC
Imminence a factor
48
Not created by D
Self-created choice tracks Mens Rea
D chooses lesser evil
No contrary legal intent
No defense to murder
No bar to Murder defense
-Motivation behind necessity clear, want people to do the right thing, even if it’s illegal
US v. Oakland Cannabis Buyers’ Cooperative (US SC 2001)
-Congress thought about medical exceptions, didn’t put it in there, it was no accident
-The Court goes farther saying no statute should allow for an unarticulated necessity defense, but
the concurring opinion notes this is an overstep as many defenses are not articulated in statute
(e.g. self defense)
-Concurring notes that the fact that it’s distributing marijuana is a problem, and points out the
narrow holding of the Court and then says the rest is just dicta
US v. Schoon (9th Cir. 1992, p.681)
-Act of indirect civil disobedience; many alternatives to Ds actions (had a problem with El
Salvador and US tax dollars going there, so they trashed an IRS office)
-A democratic enhancing rule, can’t go around the process to get what you want
US v. Hill (N.D. Fla. 1994, p.684)
-D killed abortion doctor and others to prevent abortions
-Similar to Schoon, there are legal alternatives to D’s action
a) Democratic process for all of this
-Many legal alternatives to Ds action (not like helping a prisoner out of a burning jail, no sudden
unexpected emergency here)
Regina v. Dudley and Stephens (1884, p.686)
-Shipwreck survivors kill a weaker member so they can survive
-Killing the weaker guy is the lesser of two evils
-From a utilitarian calculus no problem here
-Enforce the law might mean granting clemency
-Men were convicted and sentenced to death but commuted to 6 months in prison
Why in the prison escape case would it be good for the jury to have plenary powers but not in the
abortion case (Hill)
-Imagine in both cases judge gives jury necessity instruction and juries acquit
a) What does that say?
b) The norm at stake in Unger is that you can protect your own personal safety
c) The norm in Hill would be justifiable homicide of abortion doctors (much more
controversial)
-So in Unger, courts willing to hand it over to jury because the norms jury would be drawing on
would be general ones, shared by most people or at least not controversial ones
-In Hill could you imagine a community where a jury might acquit?
-Necessity is a justification defense. Morally speaking, they were justified in doing what they
were doing (same is true in Self Defense)
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XII. DURESS



Common Law
o Threat of death or GBH
o Against defendant or a close friend
o That an ordinary person would yield
o Threat must be imminent (Fleming, Contento-Pachon)
o Duress situation not self-created
o No defense for murder
MPC
o Threat of unlawful force
o That a person of reasonable firmness would not resist
o Threat need not be imminent, though this goes to whether a reasonable person
would resist
o Threat may be against any person
o Defendant may not have recklessly put herself in the duress situation
What would cause a reasonable person to yield?
o Much of what determines whether a “reasonable” person would yield is cultural
and value-laden (Toscano, Romero, Webb, Fleming, Contento-Pachon)
Duress
CL
MPC
Death or GBH
D or close friend
Would cause ordinary person to yield
Imminent
No Murder Defense
Unlawful force
Anyone
Person of ordinary firmness would not resist
Must not have recklessly placed self I duress
situation
-Duress is an excuse defense. What I did was wrong but I want you to excuse me because I
could not make the right choice
-Deterrence: can’t deter someone with a gun to their head unless you ratchet up deterrence all the
way to the top (Electric chair. So if you go through with it you get electric chair)
-As for just dessert, no culpability
State v. Toscano (NJ 1977, p.693)
-D makes out false insurance report but only did so out of fear/threats to his family
-The TC doesn’t think D is entitled to duress jury instruction because threat was imminent
-Was AR, did the act; no necessity defense, he had choices (didn’t report it to the police because
he just wanted the whole thing to go away)
-Is the standard how hard the choice is for Toscano? No, the standard is an objective standard
-Under CL, the Toscano would not have had duress defense based on imminence
-NJ goes with MPC, does away with immanency, and reverse D’s conviction
People v. Romero (Cal. 1992, p.697)
-D claims duress in robberies with her boyfriend, afraid she would be killed if she didn’t obey
him
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-Debra contends she should be allowed the BWS defense
a) BWS explains issue of duress; Debra really didn’t have a choice
-BWS would be a response to prosecutor’s contention that Debra could have left Terrence
-She gets a new trial
US v. Webb (5th Cir. 1984, p.701)
-Charged with injury of child for beating Steve and refusing to get medical help for the child
-Would not be as optimistic as the Romero’s lawyer
a) For one, Webb took part in the beatings
b) More than that, though, her own kid died, she let it happenedno duress that bad to
allow it
-Not just a question of volition but also one of moral evaluation
a) Parent expected to protect their child
US v. Fleming (Military 1957, p.713)
-POW D agrees to enemy’s orders for fear of punishment
-Necessity defense was available to him, but immanency again comes into question
-What happens if the court doesn’t read imminence narrowly? You could claim imminence in
many situations. Guy is found guilty
-Part of military ethic requires you to put your country and soldiers above your own welfare
US v. Contento-Pachon (9th Cir. 1984, p.714)
-Imminent because he was followed and the threats were specific
-Deterrence argument here? What happens to the war on drugs, anyone can claim duress
-The hard choice also has to be a good choice
-No military code here, the guy is just a cab driver, understandable he values his family’s welfare
more than drug laws
-Character of choice being made is vital
-Need a threat to be a against a personproperty or reputation won’t do
-Nature of the threat itself
-What is the effect of combining no defense to murder and requiring imminent threat of death or
GBH under CL for duress?
a) Can’t trade an innocent life for your own
-A reasonable person will fear rightly and care rightly
-Romero’s fear is an appropriate evaluation in weighing her fear and threat to strangers, but
Webb inappropriately fears for her welfare over that of her child
-Similarly, guy won’t be condemned for breaking a drug to protect his family but will be for
collaborating with the enemy to save his own ass
-Appropriate love of one’s own; it is sometimes morally permissive in society to love ourselves,
loved ones more than strangers (sometimes it would be immorally inappropriate not to do so),
but there are limits to this, and they depend on specific facts
-The duress defense is abstract and ambiguous
a) Must look at specific case and look at character of choices
-Seems that where a person had a duress defense they had a necessity defense, which means their
act just wasn’t excused, it was justified
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a) The difference between duress and necessity virtually disappear
XIII. INSANITY




Two Major Approaches
o Historically many doctrines of insanity (see Finger)
o Today mostly M'Naughten (the majority rule) or MPC
o Trend (since Hinkley) has been towards M'Naughten
M'Naughten
o defendant had mental disease or defect that made her unable to know:
 the nature of her act; or
 that her act was wrong
MPC Section 4.01
o defendent lacks substantial capacity to either
 appreciate the criminality (wrongfullness) of her act or
 conform her conduct to the requirements of the law
What is the Insanity Defense About?
o Insanity remains an increadibly vague and difficult doctrine. Courts really don't
try to define it. (Guido)
o Juries don't focus on doctrine; instead, they pay attention to things like:
 the defendant’s background/scariness (Green)
 her relationship with the victim (Bobbit)
 her intent to harm
 her culpability before the act for bringing about her incapacity (Freeman
& Lyons)
o The doctrinal choices often come down to whether a judge or jury has the last say
(Green)
-The two traditional insanity defenses are above
- M’Naughten has a cognition element (nature of the act (squeezing lemons when actually
squeezing throat)); not knowing act was wrong = delusional thought they were repelling invasion
when just shooting neighbors
-MPC is more volitional test (1st prong cognitive, the 2nd prong is the volitional, which is derived
from irresistible impulse test)
-Moved from M’Naughten to MPC and now going back to M’Naughten
US v. Freeman (2d Cir. 1966, p.729)
-Freeman suffers from trauma that impairs his ability to control himself (undisputed). Also
undisputed, sold drugs and did it knowing it was illegal
-Jury given M’Naughten instruction and convicted
-On appeal, court moves to MPC standard and remands
-Kant would say we don’t punish people who aren’t in control of their own actions
-Prosecutors would argue this guy voluntarily got into drugs, should’ve gone to rehab, quit drugs
State v. Green (Tenn. 1982, p.732)
-Prosecution maintained he wasn’t insane but just different
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-Defense witness were testifying his inability to conform to the law
-Green said he killed the cop because god or Hitler was speaking to him
-Prosecution argued he acted normally when he was arrested
a) But witness says he could appear normal but still be a loon
-At trial, convicted of first degree murder
-Supreme Court reverses conviction because it wasn’t shown beyond a reasonable doubt that
Green was sane
-MPC excuses both impaired volition and cognition; does not required complete impairment
either; the court in Green found evidence to weigh so heavily in his favor
-Then how did the jury convict Green? For one, he was a crazy asshole that the people of TN
were terrified of (but he would be involuntary committed on acquittal)
a) If you’re defense attorney you would want to tell the jury that the guy is going to walk
free, let them know he will be committed to a mental hospital
b) Only a few jurisdictions require jury instruction that lets jurors know acquittal will
result in involuntary commitment
-The big issue here is that Green killed a cop, and the prosecution has extra motivation to burn
this guy
If a jury was free to disregard D’s experts, how could it be concluded that the jury erred
a) The prosecution has the burden of proof to prove that he’s sane, court doesn’t find that
the prosecution did that (only evidence is that Green appeared sane after the murder)
-Prosecution put on no expert testimony to show that Green was faking it
-What does this tell us about who has authority to say what insanity is? Not the jury, don’t have
the final word here
a) This case largely about jury control
-Under M’Naughten, burden of proof for insanity is on the D
-The TN scheme put the burden of proof on prosecution
-After Hinkley many jurisdictions put the proof on defendant
-Burden shifting is important for who gets to determine outcome
-Putting the burden on the prosecution is a form of jury control, where jurors are eager to convict
based on their bias/anxiety short of legal standard
-Putting the burden on the defense is a form of judge control
Bobbitt
-Asserted defense of irresistible impulse, a brief reactive psychosis
-Jury acquitted after asking for instruction if they had to accept court appointed psychiatrists
opinion that Bobbitt did not have irresistible impulse, the judge said no
-Put on evidence of family/friends about how toxic the relationship was (BWS) and expert
testimony
-With testimony, Bobbitt seems virtuous, without she looks bad
a) Act suddenly seems somewhat appropriate
-Is Bobbitt distinguishable from Green?
a) Green wasn’t sympathetic like Bobbitt; jury afraid of Green less afraid of Bobbitt
b) Don’t worry about Bobbitt acting again or doing this to you, not true w/ Green
-Issue of general deterrence though. Can’t let Bobbitt go free or other women will pick up a
knife
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US v. Lyons (5th Cir. 1984, p.742)
-Gets addicted to drugs after being prescribed back pain drugs
-Use M’Naughten standard, but doesn’t doom P; evidence of addiction can be used to address
cognitive claim of impairment
-Reconcilable with Freeman? Got addicted through prescription drugs. Arguably didn’t put
himself in this position, put their by his physicians
-Signals shift away from volitional standard
-Prosecutors and court here: how can we tell if someone really is suffering from volitional
impairment or they’re faking it?
-Defense would respond that there’s no reason to believe psychologists are better to understand
M’Naughten standard than they are the volitional standard
State v. Guido (NJ 1963, p.749)
-Defense would say court’s understanding of a disease different that psychiatrists
-Medical insanity different than mental insanity
a) Don’t really know what disease is, it’s obscure
-Jurors will decide then if law not really sure what a disease is
-Prosecutors don’t want everyone to get off on this disease defense
-Issue of disease is something you’d like to see go to a jury rather than see it decided against you
by a judge
-Problem: we don’t know what disease is. Ends up people infuse moral qualities into D’s
action/who the victim was and then make decisions
-Morally forgivable, being prescribed painkillers whereas getting drunk is not
-Not clear that juries are paying really close attention to the distinctions in M’Naughten and
MPC
-Is it ok to distinguish cases without medical grounds to do so? Central problem with the insanity
defense. Transforms medical impairment into a moral question. Courts recognize their
definitions are legal and moral, not medical.
-Moral intuitions of individuals will push standards in different directions in different cases
Review
-Don’t apply theoretical dimension for the most part except where there is ambiguity, etc
-More important is the institutional dimension questionpower allocated across different
institutions
-Don’t confuse irresistible impulse with involuntary act, which is like sleep walking,
unconscious, etc
-Specific IntentPurposefully wanted to commit that crime (tax crime)
-General IntentPurposefully refusing to pay taxes but haven’t specifically said your going to
break the law here (Cheek)
-Mistake of Fact: take the wrong umbrella leaving a diner, that is an excuse because if the facts
were as you imagined them you’d be innocent. But if your mistaken with who’s umbrella your
taking no excuse because even if the facts were as you imagined them you’d be breaking the law
(Prince case, wrong in and of itself)
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-Mistake of Law: never clear how collateral law has to be to be excusable, courts will make the
decision based on character of accused (guy who is mistaken about divorce but not about
polygamy); Not so clear you can rely on law from others than the court, really depends on the
underlying activity
-For Accomplice Liability can’t just inadvertently or knowingly engage in the act must have
purpose to the underlying act (Quiz: So long has Orrin had purpose to the underlying act of
driving recklessly, the underlying actcould get him for reckless endangerment)
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