Criminal Law Huigens Spring 2007
MPC
§2.01 – Voluntariness
§2.01(3) – Omission plus duty
§2.02(1) – PKRN required
§2.02(2) – PKRN defined
§2.02(3) – PKR for undefined elements
§2.02(4) – Same level as defined element for entire offense
§2.02(6) – Conditional Threat
§2.02(7) – Willful blindness
§2.04(1) – Ignorance or Mistake
§2.04(2) – Lesser Crime
§2.04(3) – Mistake of Law
§2.06 - Accomplice
§2.08 – Intoxication
§2.09 - Duress
§3.04 – Self Defense
§3.09(2) – Reasonableness of self-defense belief
§4.01 - Insanity
§4.02(1) – Mental Disease or Defect
§5.01 - Attempt
§210.2 – Murder
§210.3 – Manslaughter
§210.4 – Negligent Homicide
§210.6 – Death Penalty
-
Principles of Legality
-
You can’t make up crimes. They have to have been law before. (Keeler).
-
You can’t make retroactive (ex post facto) laws.
-
Notice and opportunity
-
Specificity avoids tailoring, generality avoids loopholes
-
“unreasonable” is allowed vagueness, because there is notice of possible interpretation. Keeler (is fetus in the category of “baby?”) is not, because there’s no notice.
-
Acts not People
-
Burdens
-
Burden
-
Patterson – common law says that P doesn’t have to prove a lack of extreme emotional disturbance (provocation), because it’s not the flip side of intent. (KH thinks Wrong)
-
Mullaney – common law says that P has to prove lack of heat of passion (flip side of malice), D just has to raise a reasonable doubt.
-
Generally, P has to prove all elements beyond a reasonable doubt.
-
Presumptions
-
Conclusive – must infer B from A
-
Mandatory – must infer B from A unless D proves otherwise.
-
Permissive – jury can infer whatever they want, general rule
-
Voluntariness
-
There must be a voluntary act to have a crime. (§2.01)
-
You need a lack of justification or excuse, criminal fault, causation, and concurrence.
-
A duty plus an omission is an act. (§2.01(3)).
-
Duty and Omission
-
No duty to rescue – personal liberties, too vague, how many people have to try to rescue at once, might make things worse.
-
Assumption and seclusion – If you start helping and stop others, you’re responsible (Regina v. Stone and Dobinson)
-
Relationship or status – Family, Physician (although no duty to continue ineffective treatment)
-
Contract – lifeguard, caretaker
-
Statutory
-
Created the risk
-
Sometimes it’s a cost-benefit analysis, even if courts don’t want to admit it.
-
Duty changes over time (Beardsley had no duty to mistress in home, Oliver had duty to drugdoer in home)
-
Fault (§2.02)
-
Purpose – With an objective in mind
-
Knowingly – With awareness of the outcome
-
Recklessly – With disregard of a substantial risk
-
Negligence – Should have known of a risk, with less than normal care
-
Negligence is objective
-
Default is that you need PKR for each element unless defined (§2.02(3)) (Regina v. Cunningham)
-
(4) wants the same level for all elements as any defined element (he disagrees, it’s too strict, assumes too much, and makes it very hard to convict.
-
Willful blindness is the same as knowledge, if a jury thinks he willfully ignored a high chance of the fact in question. (§2.02(7))
-
A conditional threat is enough for intent. (§2.02(6) and Holloway) (KH disagrees, there’s no actual intent to do it)
-
Strict Liability
-
The only real defense is involuntariness
-
P will usually try to prove negligence anyways, because it makes it easier for the jury to convict. D will object, but lose anyways.
-
Baker (p. 247)– turning on cruise control is voluntary, so speeding was voluntary even though it was malfunctioning cruise control. However, this becomes a negligence argument in the case.
-
Causation
-
But-for causation is too broad, allows legality problems.
-
Proximate cause is used in RN crimes (§2.03(3)(b)) – must be same type and not too remote.
-
“Highly extraordinary result” – Acosta, p. 518, it’s not foreseeable enough for malice, and there is an intervening factor. This just puts everything on the jury.
-
Foreseeability produces vague results, but it’s better than the other tests. Part of the problem is what was foreseeable, the ignition or the explosion (Warner Lamberg Co.)
-
Causation isn’t the same as fault
-
Fault is meaning to kill a human.
-
Causation is knowing that you are killing this human.
-
Transfer of Intent - KH thinks this is dumb.
-
Intervening Human Agency
-
D – person behind it didn’t do it, the shooter did.
-
P – shooter acting under duress or involuntarily, so they don’t count.
-
If the shooters make a choice, they break the chain and intervene.
-
We generally use proximate cause, it’s less tort-like.
-
We use IHA for PK, but shouldn’t, because the person is more at fault if they meant it to happen.
-
We don’t use IHA for R, but should. Possibly because the fault is creating the risk, not the harm.
-
MPC doesn’t use it at all.
-
Root uses IHA to get a drag racer off, McFadden uses foreseeability to convict drag racer.
-
Homicide
-
MPC Classes
-
Murder (§210.2) – PK, R with extreme indifference, plus felony murder
-
Manslaughter (§210.3) – R, Murder under extreme mental or emotional disturbance.
-
Negligent Homicide (§210.4) – N
-
Common Law Classes
-
Carroll (PA) – 1st degree premeditated, 2nd willful, deliberate, not premeditated, 3rd all others. No time is too short for premeditation, so 1 and 2 are basically the same, leaving too much jury discretion
-
Anderson (CA) – Need planning activity, motive, or a preconceived design to have premeditation. Much better for D than Carroll.
-
PA too accurate, not enough legality. CA too much legality, not enough accuracy.
-
Death Penalty
-
Separate Section in MPC (§210.6)
-
Only comes up federally in sentencing, not trial.
-
Gets rid of premeditation, which is good for legality. Most states use this.
-
Fault for Murder
-
MPC uses objective approach, judges by a reasonable person in the actor’s situation (§210.3(1)(b))
-
Williams – It’s not the reasonable uneducated Indian, it’s the reasonable general person. Williams argues that N shouldn’t be enough, because it doesn’t deter. Hart argues that there must be some application of reasonable to the actual person.
-
He’s not big on B < PL.
-
Malone (PA, p. 439) – Malice, causes legality problems, because can include N and looks at things like wickedness.
-
Under the MPC, becomes R with extreme indifference.
-
Could have been N, because they took precations
-
Malice covers all PKRN.
-
Self-induced intoxication is not a defense to R. (§2.08(2)) It can also provide malice aforethought in common law.
-
General intoxication can negate PK, but not RN.
-
Felony Murder (§210.2(1)(b)
-
MPC: Only robbery, rape, deviate sexual intercourse by force or threat of force, arson, burglary, kidnapping, or felonious escape: presumes R with EI
-
You can’t make assault into FM because everything would be a murder, there’d be no manslaughter or negligent homicide (Smith says the felony must have an independent purpose)
-
Only appropriate with an inherently dangerous felony (Phillips looked at the specific case, but we should look at the general type).
-
“In furtherance of a felony” – Two versions
-
Agency rule - The person doing the killing must be an agent of the felon. So a robber isn’t responsible for a cop killing a bystander. The D has no mens rea.
-
Shield exception – if D uses someone as a shield they are liable for a cop shooting them.
-
Court makes up some exceptions – Taylor p. 477, associates provoked the shooting, so liable even without agency.
-
Proximate cause rule – If the felony is the proximate cause of the death, D’s liable. Was it a foreseeable risk?
-
Co-felon exception – You aren’t liable for your co-felon getting killed during the felony.
-
Justified homicide – If a cop kills somebody during the crime, he’s not liable because it’s justified. This also gets the felon off, since justification negates criminality of the act.
-
All of this is historical in MPC, because they just list the actual types of felony.
-
Provocation (MPC: Extreme Emotional Disturbance)
-
Mitigation, not a defense. It just reduces the offense.
-
Common law has certain traditional objective standards.
-
Must be what would provoke a reasonable person, can’t be just words
-
Can’t have a cooling off time
-
Seems to be an old-school defense of honor thing. Encourages violent reactions. Could be akin to momentary insanity.
-
MPC requires:
-
Extreme Emotional Disturbance- subjective
-
Reasonable excuse (objective)for that mental state from the person’s point of view- subjective, possible problem with people who always think they are reasonable
-
Fault issue – burden of production on D, burden on P to prove that there is no excuse.
-
KH thinks the best way is to have D have burden of production. Once they have raised manslaughter, PK is negated, so the prosecution will want to prove manslaughter to get something.
-
Defenses
-
Failure of Proof (Mistake, Diminished Capacity, Intoxication)
-
Ignorance or Mistake (§2.04(1))
-
Mistake of fact is a defense, mistake of law isn’t.
-
The mistake must negate culpability for one of the elements.
-
Regina v. Prince
-
Brett thinks that a reasonable, good faith belief makes it N, not PKR.
-
Bramwell thinks that if you were doing something that is generally wrong, you should be at fault. Basically SL.
-
MPC thinks Brett wins.
-
Lesser Crime (§2.04(2)
-
If you would be guilty of a crime if things had been as you believed, you can’t use the ignorance defense, but your crime is reduced to the one you thought you were doing.
-
Legality problems because it’s basically making up the facts.
-
Common law - Regina v. Morgan – you must have a reasonable belief of consent in rape. Just N is enough. This was a huge change, ex post facto law.
-
Ignorance of the law is not a defense for morally prohibited crimes.
-
MPC (§2.04(3)) – Ignorance of the law is a defense if the person reasonably relied on an official interpretation of the law later found to be false, or he had no way of knowing the law.
-
NY law just requires your interpretation to be wrong, not the whole law (Marrero narrows it to the MPC rule)
-
Ignorance of a legal fact is a defense under MPC.
-
Cheek – A good faith ignorance doesn’t have to be reasonable.
-
Cultural defense
-
A mistake of fact based on culture will probably win, unless it is totally unreasonable.
-
Diminished Capacity (§4.02)
-
A failure of proof defense – not really about capacity.
-
It’s about the mental state you were in, more like mistake of fact.
-
Negates fault elements. NOT Jr. Insanity.
-
Mental health evidence is admissible to disprove mens rea and specific intent. Basically it’s proving a mistake of fact where the reason is mental illness. (Brawner, p. 919) CORRECT
-
Wilcox (OH, p. 921) rejects Brawner, psych evidence isn’t allowed past insanity.
-
Really rejecting jr. insanity.
-
Thinks it’s a partial defense, where it should be a full one.
-
Wouldn’t be a problem if courts did Dim. Cap. right, but most don’t.
-
Intoxication (§2.08) –
-
Self induced negatives PK, not RN
-
It’s only a defense if it negatives an element of the offense.
-
Hood and Stasio – it’s a defense to specific intent crimes but not general intent crimes. MPC rejects the terms but keeps the idea.
-
Non-self induced is a defense if it removes capacity to appreciate wrongfulness or conform behavior to the law. (§2.08(4)).
-
Can still get a drunk driver on R with EI. (Fleming)
-
Justification (Self Defense, Lesser Evils)
-
Self Defense (§3.04)
-
Traditional
-
Reasonable belief
-
That life is in danger
-
Imminent threat
-
Proportionate force
-
Some jurisdictions require that you be unable to retreat.
-
Reasonable is actually an issue for all of them.
-
MPC
-
Immediately necessary, To protect himself, Against unlawful force by another person
-
Doesn’t matter if it is unreasonable, just good faith belief
-
Doesn’t require an imminent threat
-
Limits deadly force to danger of death, serious bodily harm, kidnapping, and sex compelled by force or threat (§3.04(2)(b)).
-
You can’t have started the violence with deadly force. (§3.04(2)(b)(i)).
-
You have a duty to retreat if there is complete safety. (§3.04(2)(b)(ii).
-
Castle exception - Not from your home or workplace, unless you were the initial aggressor or you and the attacker share a workplace. (1)
-
Not public officers doing their jobs.
-
Unreasonable belief (§3.09(2))
-
A good faith belief that isn’t reasonable knocks out PK, but not RN.
-
You could just put reasonable into the definition of self-defense and you wouldn’t need this. (Goetz)
-
Battered Woman Syndrome isn’t a defense, it’s evidence of state of mind and justification.
-
The mistake approach is better than the MPC approach.
-
§3.05 – Defense of others is the same as self defense.
-
Lesser of Two Evils (§3.02)
-
The harm avoided has to be greater than that prevented (in reality).
-
No other statute can say otherwise about the specific thing.
-
If it’s an RN offense, a situation that was RN brought about is not a defense.
-
Possible ways to decide the lesser
-
Sheer Numbers
-
Probability of saving
-
Permissible mistake – good faith belief about the probability
-
Superior duty to one party, relationships are good for society
-
Involuntariness – negates mens rea, didn’t even reason about the decision
-
Moral involuntariness – really a duress defense.
-
You can’t do directly evil things for a greater good, but they can be byproducts of a good thing (double effect doctrine).
-
Excuse (Insanity, Duress)
-
Duress (§2.09)
-
Traditional
-
Not a defense to homicide
-
Threat of death or serious bodily injury
-
Imminent threat
-
Reasonable person in the situation, not good faith belief
-
Cannot have put yourself in the situation
-
MPC
-
Threat of unlawful force
-
Person of reasonable firmness in their situation could not resist
-
No imminent threat requirement
-
No serious bodily injury requirement
-
Cannot have placed themselves in the situation.
-
Can be used for homicide.
-
More of a discretionary approach.
-
Essentially the same as a choice of lesser evils, but it is ok to choose saving yourself.
-
Doesn’t have to be a quid pro quo (you can stab the attacker to avoid neglecting your dying child even though the stabbing isn’t the coerced action).
-
Insanity (§4.01)
-
M’Naughten
-
Did not know the nature of the act or
-
Didn’t know right from wrong
-
MPC
-
Lacks substantial capacity to appreciate the criminality of the act
-
Lacks substantial capacity to conform conduct to the requirements of the law (Irresistible impulse)
-
Some find this too lenient, after Hinckley tended to swing back to M’Naughten.
-
“Deific decree” exception – even if you know right from wrong, if God told you to do it, you can use insanity (Crenshaw).
-
Usually D has burden of production, affirmative defense
-
Attempt (§5.01)
-
§5.01(1)(a) is an offense approach (conduct), (b) is an elements approach (result), (c) is substantial step (circumstances).
-
You must have the culpability otherwise required, and purpose for the conduct element.
-
Substantial step works for an uncompleted act.
-
Last act test – You must have taken the last step toward the crime.
-
Unequivocal act test – You must have done things that declare your intent overtly.
-
MPC uses substantial step, which isn’t about proximity, it’s about intent and culpability.
-
You can’t have a reckless attempt, but you can be reckless about an attendant circumstance.
-
Factual impossibility isn’t a defense, because that’s what makes it an attempt.
-
(4) A voluntary, good faith abandonment of the attempt is a defense.
-
Impossibility
-
Factual – Not a good defense
-
Legal – Good defense
-
KH thinks neither is really a good defense.
-
But CL, you can’t be convicted of a crime that doesn’t exist.
-
MPC recommends the same punishment as the actual crime, but common law tends to reduce for attempt.
-
Accomplice Liability (§2.06)
-
Same charge as the actual actor
-
CL – They have to have actually done something, with a P to commit the crime. (Gladstone, WA, p. 612)
-
MPC is more total offense than elements. Requires P for the crime, aiding, and the principal’s actions.
-
K or N about attendant circumstances is enough in common law (Xavier p. 621)
-
MPC doesn’t really comment on attendant circumstances.
-
MPC you can be an accomplice to an N crime (McVay p. 623), but only if you had a purpose to allow the negligence (Abbott p. 625).
-
Presence isn’t enough, there must be an act, even if just encouragement.
-
Your act doesn’t have to have actually helped, as long as you intended it to.
-
The principal doesn’t have to have been convicted.
-
You can be an accomplice to an attempt in MPC (§5.01(3)), but not in common law.
-
Justification makes there no crime, excuse doesn’t.
Theft
Elements §5.01(1) Attempt §2.06 Accomplice
Take PKR P (Conduct) PKR (or P for attempt)
Property PKR PKR (Attendant) PKR
Another Person PKR PKR (Attendant) PKR
Keep P P (Conduct or Result) P
Act in Aid P
|