Table of contents criminal Law Outline

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Held, words alone may be sufficient if they are informative of adequate provocation.

Typically, words are not enough. However, if for instance husband hears his wife is committing adultery, this may mitigate down to manslaughter.

Texas: manslaughter if insulting your female relatives.

People v. Borchers

D loved Dottie; Dottie cheated on D and provoked him by telling him he was a chicken if he didn’t shoot her.
Held, passion doesn’t have to be rage or anger it can be intense or enthusiastic emotion.
If the trial judge concludes there was no malice aforethought, then no murder

Absence of Cooling time

General
1. There must have not been a sufficient time between the provocation and the killing for the passions of a reasonable person to cool.
2. D must have in fact not cooled off between provocation and the killing
The prevailing view today is that the jury must determine whether sufficient cooling time has elapsed, making the D’s reaction not an immediate response to the provocation:
1. Long-Smoldering reaction:
  1. Even if considerable time has elapsed since the provoking act, the defendant may still be entitled to a manslaughter instruction if the head of passion has been building up since the provocation.
2. Rekindling doctrine
  1. Reminders of the provocation may rekindle the D’s passion, thereby justifying a reaction even after substantial time has passed.

MPC approach to Manslaughter – 210.3(1)(b)

General
1. A killing which would otherwise be murder is reduced to manslaughter if it is committed under the influence of extreme mental or emotional disturbance for which there is a reasonable explanation or excuse.
Five Key Differences between MPC and Common Law Provocation
1. No Specific Act required
  1. The MPC doesn’t require a specific act of provocation. It is sufficient if the D was acting under extreme emotional or mental distress. This involves more than just the emotion of rage.
2. More subjective Viewpoint
  1. An act of provocation is viewed from the point of view of a reasonable person acting in the D’s situation.
3. No Cooling Time limitation
  1. The cooling time doctrine doesn’t technically apply under the MPC because the focus is not on the D’s reaction to a specific provocation, but on whether the D was under the influence of extreme emotional or mental disturbances at the time of the killing
4. Words alone may be sufficient
  1. The MPC approach appears to allow words alone, under certain circumstances, to form the basis of legal provocation.
5. Diminished Capacity Not considered
  1. Diminished Capacity simply could provide the basis for the extreme emotional disturbance

Involuntary Manslaughter

General
1. Unintentional Homicides, if committed without due caution and circumspection, constitute involuntary manslaughter.
2. Courts will often call this “gross negligence,” “criminal negligence,” or even “recklessness.”
3. Typically is regarded as acting with a gross deviation from the standard of care that a reasonable person would act with.
  1. Most often this is “gross negligence.”
Gross Negligence
1. Definition
  1. If a reasonable person would not pose the same risk to human life, the D has acted negligently. Negligence rises to the level of gross negligence when there is either a high likelihood of harm or risk of severe harm, or little or no social utility to the D’s risky actions.
2. Determining: Two points
  1. The D was not aware of the risk taken (Negligence)
    1. If he was, possible malice for murder if extreme
  2. The risk taken greatly outweighed the social utility of the conduct. (Gross Negligence / Involuntary Manslaughter)
3. Factors often considered:
  1. How serious was the risk D’s conduct Posed?
  2. What was the foreseeability of harm?
  3. Why was the D involved in the high-risk activity?
  4. Are there other reasons D’s negligent conduct should not be punished such as the social utility of his conduct

Misdemeanor-Manslaughter Charge

Killing in the course of the commission of a misdemeanor is manslaughter
1. Usually must be Malum in Se,
2. If Malum Prohibitum
  1. The act must be one which has knowable and apparent potentialities, actual or imputed, resulting in death.

Jurisdictional Rules regarding Manslaughter

Majority View of manslaughter
1. Manslaughter is voluntary if there was an intent to kill
Minority View of manslaughter
1. Manslaughter is voluntary if it was mitigated down; anything else would be involuntary

Second Degree Murder v. Involuntary Manslaughter

Second Degree Murder
1. Malice / Wanton Disregard, and
2. Gross Recklessness
  1. Weigh the risk against social utility of the conduct
Involuntary Manslaughter
1. No Malice
2. Gross Negligence or Mere Recklessness

Negligent Homicide - MPC (210.4)

Definition
1. The intentional killing of another either in the commission of an unlawfully inherently dangerous act, or in the commission of a lawful act in a criminally negligent manner
Criminal Negligence
1. A gross deviation from the standard of care that a reasonable person would observe under like circumstances (“recklessness”)
2. You must disregard a known risk or a risk which you should be aware
3. The result must be clearly foreseeable
4. Negligence is not determined by the result alone
5. Woman who left her kids at home
Unreasonable but good faith belief of justification
1. One’s reasonable belief that their life is in danger or in danger of great bodily harm is a form of mitigation down to negligent homicide
2. D must reasonably and honestly believe in the necessity of responding with deadly force
3. Recklessness distinguishes itself from the other elements of negligence b/c it shows a subjective, conscious disregard for the risks involved in one’s actions
4. People v. Watkins
  1. D and decedent argued at the bar. Decedent left, then came back to get D. D believed he was being attacked and so shot and killed the guy.
  2. Held, when there is evidence, however improbable, unreasonable, or slight that tends to mitigate the homicide to a lesser grade, the D is entitled to an instruction.
  3. Rationale
    1. A jury might not believe that a reasonable man would be in fear of his life under the circumstances, but they might believed that D had a good-faith belief that he feared for his life. Such a belief would entitle D to criminally negligent homicide rather than 2^nd degree murder.
Cases
1. State v. Bier
  1. D waved officers down when they responded to a call about a possible suicide. Wife was bleeding from a neck wound inflicted from a .357 magnum. Wife had picked up the gun and put it to her head. D tried to smack it away but was unable to do so and it went off killing his wife. D convicted of negligent homicide following a trial.
  2. Held, a gross deviation from a reasonable standard of care which results in death may suffice to uphold a conviction of negligent homicide.
  3. Criminal homicide committed negligently is negligent homicide. The risk must be so great that to disregard it is a gross deviation from a reasonable standard of conduct, greater than mere lack of ordinary care.
  4. D’s act was such a gross deviation.

Assault and Battery

General
1. Statutory Offenses
  1. Where a criminal statute gives notice fo the type of unlawful behavior and sets ascertainable standards for adjudication, as well as being interpreted in a statutory setting, the statute is constitutional and not invalid from being vague [ State v. Foster ]
Battery
1. General
  1. Battery is the unlawful application of force to the person of another
Assault
1. General
  1. Definition
    1. Assault is an attempt to commit battery, or an intentional placing of another in apprehension of receiving an immediate battery.
  2. Rules
    1. Threat of violence, or a conditional threat, is not an assault.
    2. The threat must be of an immediate battery.
      1. Words alone may be sufficient as long as the threat is immediate.
    3. D must have the present ability to commit the battery, and the most courts hold that if the D has the apparent ability to commit the battery, even without actual ability, an assault is committed.
2. Tort Definitions
3. Majority View of Assault
  1. Either an attempted batter, or the tort definition of assault
4. Minority View
  1. Need an attempted battery with present ability
  2. Attempted Battery
  3. Chart

Def’s of Criminal Assault	D knows Not Loaded V thinks Loaded	D thinks Loaded V knows Not Loaded	Both Know that Gun Not Loaded	Both think Loade
Attempted Battery	No( No intent to cause Contact)	Yes	No	Yes
Attempted Batter w/ Actual Present Ability	No	No	No	No
Attempted Battery OR Tort Definition	Yes (Under Tort Prong)	Yes (Under Attempted Battery)	No	Yes (Under Both!)

Cases
1. State v. Foster
  1. D became friends with two sisters b/c they were neighbors. Sister dated both D and Colvin, never telling Colvin about D. Colvin knocked D down one evening and assaulted him with a butcher knife. D returned w/a shotgun and said he would kill Colvin. Another time at Terry’s apartment, Colvin held D down and struck him with a close fist, then knocked his head against a wall; D was taken away for treatment. After the beating, D learned falsely that Colvin had access to a gun, and a friend of D said that she had seen Colvin carry a gun in a shoulder holster. It is disputed whether D started carrying a gun before or after he learned that Colvin might have a gun. When Colvin was coming up the stairs of the apartment complex, he pushed Terry aside and reached inside his coat. D panicked, and wildly fired two shots at Colvin that both wounded him, but he survived. Judge instructed jury with instructions that included that for second degree assault. Jury found D guilty of 2^nd degree assault (10 years w/mandatory minimum sentence of 7.5 years). D contends that the statute upon which the jury was instructed was unconstitutional.
  2. Held, the statute is not unconstitutionally vague, and D is guilty of Second Degree Assault
    1. State v. Carter test for vagueness
    2. Washington Assault Statute
      1. (1) Every person who, under circumstances not amounting to assault in the first degree shall be guilty of assault in the second degree when he (e) with criminal negligence, shall cause physical injury to another person by means of a weapon or other instrument or thing likely to produce bodily harm
2. US v. Bell
  1. Bell was convicted in a bench trial of assault with intent to commit rape. He was in a detoxification ward for alcohol and drug addictions when he raped a patient suffering from a mental disease which made her incapable to understand what was going on. D says the victim must have a reasonable apprehension of bodily harm to satisfy the offense of assault.
  2. Held, it is not necessary in an assault charge that the victim have a reasonable apprehension of bodily harm.
    1. There are two concepts of assault in criminal law. (1) an attempt to commit a battery, and (2) an act putting another in reasonable apprehension of bodily harm.
    2. “There may be an attempt to commit a battery, and hence an assault, under circumstances where the intended victim is unaware of danger.”
3. US v. Jacobs
  1. D intended to evict Bodoh and blocked Bodoh’s driveway. When Bodoh came home, he drove around his obstacle and entered the house. Before he entered, he was shot in the arm. D followed Bodoh into the house and struck him with his gun; he insisted it went off accidentally. D convicted of assault resulting in serious bodily injury. D appeals, b/c he asserts that because Bodoh didn’t see him before the gunshot, it couldn’t be apprehension for assault.
  2. Held, the victim of a completed battery does not need to apprehend the battery for the offender to be guilty of assault.
    1. Any apprehension that Bodoh felt related to a subsequent bodiy injury, not the one resulting in “serious bodily injury.” The idea that the post-injury apprehension makes the first shooting an assault is unfounded.
    2. However, whenever actual battery is committed, it includes an assault. Because D committed a battery, the conviction for the included offense of assault is legally supported.
    3. The inconsistent verdict is permissible. The jury could have found that D intended to frighten Bodoh but not to injure him.
MPC Approach – 211.1
1. Simple Assault
  1. 211.1 - (1)(a), (b), (c)
  2. (1)(a) - Attempt to purposefully, knowingly, or recklessly cause bodily injury to another
  3. 1(b) – Negligently Causes bodily injury to another with a deadly weapon
  4. 1(c) – Attempt by physical menace to put another in fear of imminent serious bodily injury
  5. Simple Assault is a Misdemeanor unless committed in a fight or scuffle entered into by mutual consent, in which case it is petty misdemeanor
2. Aggravated Assault – 211.1 – (2)(a), (b), (c)
  1. 2(a) - Attempt to cause serious bodily injury to another, or causes such injury purposely, knowingly, or recklessly under circumstances manifesting extreme indifference to the value of human life; or
  2. 2(b) - Attempts to cause or purposely or knowingly causes bodily injury to another with a deadly weapon
  3. Aggrevated Assault under paragraph (a) is a felony of the second degree; Aggrevated Assault under paragraph (b) is a felony of the third degree.
3. Recklessly Endangering Another Person
  1. 211.2
    1. Misdemeanor – if he recklessly engages in conduct which places or may place anotherperson in dangewr of death or sesriouis bodily injury.
    2. Recklessness and danger are presumed where a person knowingly points to a firearm at or in the direction of another, whether or not the actor believed the firearm to be loaded.

Attempt
1. General
  1. Punishment of a D who tries to commit an offense but never completes it.
  2. The prosecution must establish that the D had the mens rea and actus reus requirements.
  3. The Key Issues:
    1. Did the D have sufficient intent to commit the crime?
    2. Did the D take enough steps to justify punishment?
2. Requirements for Attempt
  1. Mens Rea
    1. Majority approach
      1. General
        
        Purposeful or specific intent
        
        Thacker v. Commonwealth
        
        D and two others got drunk at a church gathering and on the way home saw a light in a tent and wanted to shoot it out. D and the other approached the tent and requested lodging. When they were rejected, they left, but D again wanted to shoot out the light in the tent. In fact, D shot at the light three times, narrowly missing the head of a woman and her child. D was convicted of attempted murder and appeals.
        
        Held, a person may not be convicted of attempting a crime which he didn’t intend to commit.
        
        An attempt requires the intent to commit a crime plus direct, ineffectual act towards its commission. An act prompted by general malevolence, or by specific design to do something else, is not an attempt to commit a crime not intended.
        
        D did not intend to murder the person in the tent, therefore he did not attempt murder.
        
        D’s act was done towards commission of murder, but it was not done with the necessary specific intent to constitute attempt. D might have been properly convicted of malicious mischief or some other offense, however.
      2. Knowledge v. Purpose
        
        In most jurisdictions, knowledge of the likely consequences of one’s act is insufficient to prove the mens rea for attempt. The D must act with the purpose to cause the harmful result
        
        Even in jurisdictions requiring purpose as the mens rea for attempt, a D’s knowledge of the likely consequences of his act may be used to prove purpose.
      3. MPC approach – 5.01(1)(b) – Purpose or belief
        
        Under MPC, a D who acts “with the purpose of causing or with the belief that his conduct will cause” the prohibited result satisfies the required mens rea for attempt.
        
        More flexible than the common law standard
    2. Minority Approach
      1. A few jurisdictions uphold convictions even in the absence of an intent to achieve the prohibited result. These jurisdictions mandate that the D only have the same mens rea required for the specific attempt
  2. Actus Reus
    1. General
      1. Must be a crime that could result in an injury
        
        Wilson v. State
        
        D altered a check which read $2.50 to make it read $12.50. He did not alter the written-out amount. The check had printing on it which started “$10 or less.” When D attempted to negotiate the check, he was arrested. Later he was convicted of attempted forgery and D appeals.
        
        Held, there can be attempted forgery if the alteration made is doe so that no injury could result from it
        
        There must be intent to commit a crime and an act sufficient so that injury can result. The alteration of the note was such that no injury could result and the forged note was clearly void on its face.
        
        D’s act was not sufficiently close to consummation of a forgery to be considered an attempt.
      2. Substantial step toward completion of the crime
        
        People v. Paluch
        
        D was charged with attempting to practice barbering without a certificate of registration. Undercover agent entered the barbershop which was unlocked by D, was told to sit in a chair while D put on an apron and got his tools to start barbering
        
        Held, an act which is a substantial step towards the commission occurs when there is a “dangerous proximity of success.”
      3. Rationale:
        
        Thoughts alone do not punish someone. A D’s conduct must justify using law enforcement resources for deterrence and prevention.
        
        Accordingly, D must engage in more than “mere preparation” to commit a crime. However, no firm line separates how much conduct is needed.
    2. Tests for analysis
      1. First Step
      2. Last Step
      3. Dangerous Proximity Approach
      4. Indispensable Element Test
      5. Abnormal Step Test
      6. Probable Distance Test
      7. MPC – Substantial Step strongly corroborative of intent
    3. Common Law Approaches
      1. First Step Test
        
        A D’s first step toward commission of a crime is insufficient to establish an attempt. Rather, such acts constitute mere preparation.
        
        E.g. D plans to rob a bank, and calls the bank to find out when its open.
        
        Exception: The first administration of poison will be sufficient.
      2. Last Step Test
        
        Under early common law, a D was not guilty unless he had done all he could do to commit a crime and external forces prevented him from causing a harmful result
        
        Criticism: Delays law enforcement until long after manifestations of the D’s intent and ability to harm, thus putting victims at undue risk.
      3. Traditional “Dangerous Proximity” Approach
        
        Addresses how close the D has physically come to completing the criminal act. The test focuses both on how much D has done to complete the crim and how much is left to be completed.
        
        It is vague, but it requires the D to go beyond the first act, and not as far as the last act, to be punished.
        
        Criticism: Gives too little guidance to when someone has committed an attempt.
        
        People v. Rizzo
        
        D and others, with the intent to rob a payroll, armed themselves and went in search of Rao or whoever had the payroll that day. They went to the bank and to various other locations but were unable to find Rao. At one place they were arrested when they got out of their car. Rao was nowhere near where they were arrested.

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