CRIMINAL LAW OUTLINE (summer 2000)
I. PRINCIPLE OF LEGALITY
A. No Status Offenses (Bill of Attainder, 8th Amendment)
Papachristou-Law criminalized certain type of personalty, vagrants. Invalid
B. Legislation (Separation of Powers, Necessity of Interpretation)
Law by legislation, not judges, juries
'Reasonable result' reasonable standard' create problem
C. Prospectivity (Ex Post Facto, non-retrospective)
Problem of prosecutors narrowly tailoring to write law
Also, when public policy question...should not stretch law to fit ideal, i.e. prison escape (People v. Unger) as lesser evil from rape, or would this be too much against public policy
D. Notice and Opportunity (Due Process, Social Norms)
Problem of strict liability offenses, mistake of law defense,
Laws should generally follow social norms
II. COMPONENTS OF JUST PUNISHMENT
A. VOLUNTARY
1) Martin v. State- D convicted of being drunk on public highway. D voluntarily got drunk, but cops took him out. The act required for the crime was not done voluntarily.
2) State v. Baker-D charged for speeding, while using cruise control. Strict liability offense requires no culpability, but does require the voluntary act. Court uses broad time frame to convict D, for he voluntarily engaged controls.
3) People v. Newton-D shoots police while in struggle, after bing shot in the abdomen. D's evidence of his unconsciousness is allowed in on appeal.
B. ACT
1) Pope v. State-D may not be punished as a felon for child abuse for failing to fulfil a moral (rather than legal) obligation.
2) OMISSION: Only with a pre-existing duty can an omission become an act. Failure to act may constitute a breech of legal duty when one is obliged by statute, status relationship, contractual duty, and when one volunteers but has prevented others from interfering.
C. CULPABILITY (mens rea)
1) Purpose, Knowledge, Reckless, are intentional states of mind needed to convict D of an offense.
2) Elements approach: harder to convict. Under MPC § 2.02(3) EACH element of the offense as defined must have been committed with an intentional state that is Reckless or greater unless otherwise proscribed in the definition.
3) Offense approach: Under MPC § 2.02(4) the prosecution must prove that all elements of the crime were committed with the same requisite stated culpability.
Creates legality problem, in that judges and juries must read in culpability (or not)
A) Purpose: Conscious object to engage in conduct of such a nature, aware of circumstances or hopes/believes they exist with conscious object to cause such a result,
B) Knowing: Aware that conduct is of such a nature, aware that circumstances exist and aware result is practically certain.
C) Reckless: Consciously disregard substantial risk that substantial and justifiable risk of circumstances exist and result may ensue.
Strict Liability and Negligence
1) Negligence and strict liability require no intentional state of mind.
a. Negligence: Should be aware of substantial risk that conduct will cause harmful or offensive result.
b. Strict Liability: Criminal liability standard which dispenses with mens rea, often criminalizes apparently innocent conduct, used to define public welfare and regulatory offenses among others. Unless Congress explicitly takes out mens rea, courts will require a separate showing of it under MPC. Prosecution, however may argue strict liability as a way to convict easy.
2) United States v. Staples- D has automatic weapon and does not use or realize it. D not charged under strict liability that applies to public welfare rationale.
3. United States v. Dotterweich- D's company bought (by error) mislabled drugs and repackaged them for sale. They were charged under FDA regulation, which dispenses with the conventional requirement of mens rea. The conviction was upheld because they had an obligation to prevent public danger and could have stopped the harm.
4. Criminal negligence standard (gross negligence): If conditions of liability are invariant and not flexible, i.e. if they are not adjusted to the capacities of the accused, (failure to take precautions that reasonable person would, capacity to take those precautions) negligence becomes a sort of absolute liability. (Dressler) Problem of legality, for jury would be making law and defining the 'reasonable person.' See generally, State v. Williams-case about Native American couple who fail to realize the extent of child's illness, do nothing, and are held criminally liable for negligent homicide.
5. MPC and Negligence: MPC individualizes the standard to be "the care
that would be exercised by a reasonable person in the actors situation."
D. CAUSATION
1) Causation links the actor to the social harm and serves as the mechanism for determining how much the wrongdoer owes society and ought to repay it. "But for" causation is shown when the social harm would not have occurred when it did but for D's voluntary acts.
A. MPC uses "Proximate (legal) Causation:"
-Was the harm that ensued the same as that intended
-Was the harm sufficiently similar to have just bearing on punishment?
-Is the result too remote, bizarre (principle of legality, cant stretch to fit.
-PROSECUTION may say 'but for' causation--broader,
-but DEFENSE would argue that would be negligence, 'should have known,' and whereas actor would have no reason to know. Cant-- principle of legality
B. Transferred intent: (MPC §2.03(2-4) When crime requires that D intentionally cause a particular result, that element of the crime when D accidentally causes the result to one person while intentionally trying to cause it to another (MPC is about intent of D to cause harm, not amount of actual harm done.)
2) People v. Acosta- Police chase of D was watched by helicopter teams who collided midair. Conviction reversed because there was no malice, but there was (but for) causation, and possible forseeibility. Proximate cause established in order to set grounds for finding of negligent homicide (i.e. reasonable person should have known danger of high speed police chase) There is a problem of legality here with the jury deciding on public standards. 'Unusual Result' may violate principle of legality.
3) People v. Arzon- D set fire and police came. There was a second fire started by another in the same building which prohibited firefighters from getting out safely. The second fire was thus an intervening factor, and Arzon got off because there was no finding of proximate cause.
4) People v. Warner-Lambert-Explosion in factory and employees are killed. Experts had told D that the chemicals were dangerous, but court held that the evidence didn't show forseeabillity of immediate harm and no causation (prosecution couldn't prove HOW explosion occured)
5) Commonwealth v. Atencio- Drinking buddies playing Russian Roulette and one gets killed. A is responsible for B's death because it is forseeible and not an unexpected result of the game. Reckless disregard for human life was shown.
6) People v. Campbell- D provided weapon to other who then commits suicide. Human choice, not chain of events. Apply ordinary proximate cause analysis with human intervenor. Thus, D not legal cause of suicide.
E. CONCURRENCE
1) Definition: A person may not be convicted of an offense unless the prosecutor proves beyond a reasonable doubt that the Defendant, with the requisite mental state, performed a voluntary act that actually and proximately caused the proscribed social harm. The actus reus (voluntary act) and mens rea (culpability)
must concur in time (temporal) and motivation (more than coincidence)
III HOMICIDE (MPC §210.1-210.5)
A. Murder (210.2) requires Purpose, Knowledge or Reckless under circumstances manifesting extreme indifference to human life. R/w extreme indifference is presumed in case of serious felony including Robbery, Rape, Arson, Burgalry, Kidnapping, Felonious Escape.
1) Reckless indifference:
(U.S. v. Fleming) Drund driver speeding and driving in the wrong direction. Show reckless and gross deviation from the norm of reasonable care, driving with no regard for life or safety of others.
2) Premeditation: (MPC focuses on deliberateness)
Commonwealth v. Caroll- First degree murder for killing wife--deliberate action taken to use deadly weapon on vital part, tho there was barely time to premeditate. Crititue: principle of legality problem--higher conviction with unclear rules, but responsive to particulars.
People v. Anderson-Gruesome killing of girl. Charge reduced from 1st to 2nd because no clear plan, motive, and design of premeditation found. Critique-bad guy falls through the cracks because of strict rules, but rules the same for everyone.
3) Felony-Murder rule (Theory, intent to commit felony constitutes the implied malice required for common law murder) Must be in furtherance?
Note: premised on recklessness with extreme indifference to human life. Argument against premising liability on recklessness.
MPC §210.2(1)b If a death occurs while actor is engaged or is an accomplice in the commission of, or attempt to commit, or flight after committing or attempting to commit robbery, rape, arson, burglary, kidnapping, or felonious escape.
-Inherently dangerous (People v. Phillips) Quack doctor charged with murder and grand theft in conjunction with medical wrongdoing. However, grand theft is not inherently dangerous, so applying F-M rue would violate principle of legality.
-Independent Purpose (People v. Smith) Can felony child abuse serve as the underlying felony to support 2nd degree murder on F-M theory? No, the purpose
of the conduct was the very assault/harm which resulted in the death. When felony is an integral part of the homicide, (i.e. assault) F-M rule is inapplicable.
-Death in Furtherance of the Felony (Who got killed and who did the killing)
State v. Canola- Store robbery, owner fights back and fires shots. Does the F-M rule apply to hold felon guilty of co-felon's death at the hands of the victim? No, 1) he didn't do it himself, 2) not in furtherance, 3) public policy.
Agency rule-(narrow) killing by felon or co-felon only--cannot be charged for other deaths except victim shields (ie, cop shoots bystander, victim shoots cop)
Proximate cause rule (expands) any death that is proximately related.
| DEFENSES | FAILURE OF PROOF | JUSTIFICATION | EXCUSE |
| Should V resist D? | YES | NO | YES |
| Should bystander assist D? | NO | YES | NO |
| Should D's act be universalized? | NO | YES | NO |
| Burden of Persuasion | PROSECUTION | PROSECUTION | DEFENSE |
IV. FAILURE OF PROOF DEFENSES (Knock out the mens rea on one of the elements and
prevent prosecution from proving their case)
A. Mistake of Fact- (§2.04(1) Mistake of fact is a defense if it negates the mental state required to establish any element of the offense. §2.04(2) Mistake of fact is not available if actor guilty of another offense, had the circumstances been as he supposed. Also, mistake of fact will not help if offense is strict liability b/c no mens rea required in the first place.
1) Common Law--if mistake of fact was reasonable, than person not guilty. However, if unreasonable then guilty. Thus, punishing on actor's negligence as if she was reckless.
2) Regina v. Morgan Husband takes three guys to rape his wife and told them she will kick and scream, but she is kinky so this is her way of consenting. Proper jury instruction was that even unreasonable mistake of fact would get them off. However, jury would never have believed their wild story and convicted.
3) MPC does not require mistake to be reasonable, but if belief formed in recless/negligent way, can be convicted on negligence/recklessness.
B. Mistake of Law (Ignorance is no defense. Unless an official but wrong statement or statute defining offense not public or made available is reasonably relied on by the actor.)
1) Lambert v. California LA passes strict liability law that all convicted persons who . remain in town for 5 days must register. Does Act violate due process when applied to person who doesn't know he must register and it is unlikely that he would have reason to know. Yes. Also think, a) omission but no notice of duty, b) status offense, and c) not
bad/dangerous act per se.
C. Intoxication (Intoxication is a defense if it negates an element of the offense, (however when Negligent or Reckless, then intoxication does not negate Negligence or Recklessness because it is Negligent/Reckless to get drunk. For example, person who should be aware of substantial and unjustifiable risk in his conduct (negligent actor) can be punished for crime based on recklessness, if the reason he was unaware of the risk was because he got himself too drunk.
1) Can be used to negate elements (but this is hard to do)
2) Can act as negator of voluntary act (such as unconsciousness would do)
3) Can be used as affirmative defense (excuse) of insanity/mental defect from long term use.
D. Diminished Capacity (If person, due to some mental defect or incapacity cannot form the required mental state, then can negate that element)
1) U.S. v. Brawner Is mental health evidence admissible apart from its bearing on the insanity issue? Yes, to show specific mental state.
. 2) MPC can reduce murder to manslaughter if it is committed as a result of 'extreme mental or emotional disturbance for which there is a reasonable explanation or excuse' determined from the viewpoint of a person in the actor's situation under the circumstances as he believes them to be. MPC §210.3(1)(b) at the time of the offense (also provocation)
3) Can acquit to crimes charged, although actor may still be guilty of lesser offenses.
4) Principle of legality, looking into actors mind...cannot judge abnormal person as if he were normal.
V. EXCUSES (person not doing the right thing, but we refrain from punishing because it would
be unjust--they did as well as we could have in the situation)
A. Insanity (At the time of the offense, was s/he sane or not
1) State v. Crenshaw (Washington State) Guy murders new wife on honeymoon. Says it was his Muscovite faith to kill unfaithful wife, but realizes it is illegal. Judged not insane (Court applied M'Naghten test to mean distinguishing legal (rather than moral) right from wrong
2) State v. Cameron Guy murders stepmother brutally. Says he was under order from G'd to stop her spirit. Knew it was legally wrong, but felt no moral wrong and couldn't stop. Insane.
3) Model Penal Code (§4.01) addresses cognitive (knowledge), motivation (emotional), and volitional (control, choice) aspects. Test is...Cannot appreciate (criminality--moral wrongness) and Cannot conform conduct to requirements of law.
4) Not Guilty by reason of Insanity verdicts will almost always lead to incapacitation in mental institution, sometimes for longer than what would be the criminal sentence.
B. Duress (actor engaged in conduct charged because coerced to do so by use of or threat to use unlawful force against him or another, which a person of reasonable firmness in his situation would be unable to resist. Must be quid pro quo (or else) type of threat--thus, someone else to blame.
1) Under MPC, can be a defense to homicide, imminence not an absolute bar, not only serious bodily injury/death but also unlawful force. (Theory-duress involves no choice, and in common law the bar to use of this excuse for homicide is that you would be choosing your own life. Not MPC)
2) Duress is not available as an excuse if the actor recklessly put himself in the situation. If negligently placed herself in situation, defense is available for all offenses except those premised on negligence. Also, does not apply to coercion/threat from non-human sources, or when any interest other than bodily integrity is threatened.
3) U.S. v. Fleming- Guy charged with collaborating with the enemy. War conditions and threats to be taken north to death caves if he did not cooperate. Common law: Imminent death/harm not present, and he had not resisted to last ditch like a good soldier. Guilty.
4) U.S. v. Contento-Pachon- Taxicab driver threatened that he would be killed if he did not swallow and import cocaine-filled balloons to the U.S. Duress is excuse if he could not escape, but this hinged on fact question.
5) Prison escape cases--policy level problem. One view: once prisoner finds safety outside
prison, escapee must turn himself in, otherwise defense of duress or necessity is
unavailable. Another view: whether conditions in the prison that motivated escape were so
extreme and imminent that jurors could imagine themselves doing same.
VI. JUSTIFICATIONS (Used like mistake of fact. Whereas all elements of the offense must be
committed with requisite mens rea; to convict, any justification offered by the defense must be
disproved by the prosecution. If actor has a mistake-of-fact on justification, so too is there a failure
of proof)
| Justification--i.e. self defense/ lesser evils | Defense-
Mistaken justification. She thought she was doing right thing, but was mistaken |
Prosecution-
But there was really no threat, was absence of justifying circumstances and otherwise she had purpose |
Defense-
But that would be conviction on 'ought to know' there was no danger afterall |
A. Self Defense MPC requires good faith belief in danger, does not require it to be reasonable or imminent.(§3.04) However, if belief formed in reckless/negligent way, (unreasonable) can be convicted on negligence/recklessness (§3.09)
1) When justified in using force in self defense, but R/N injures or creates risk to others, cannot use justification for those add-on offenses.
2) Deadly force not justified unless actor believes force is necessary to protect against death, serious bodily harm kidnapping or rape. Deadly force not justified if retreat is
possible or if actor purposely provoked deadly force against himself.
3) People v. Goetz Guy shoots black teens after being asked for money in the NYC subway. Use of deadly force justified when conduct is that of a reasonable man in his situation. Reasonable racist? Reasonable victim of prior muggings? Lower court dismissed b/c belief was reasonable to him, but appeals court reinstated b/c this belief must meet objective notion of reasonableness. MPC says no, belief does not have to be reasonable. Eventually aquitted of most charges.
4) State v Norman Abused wife kills husband while he is sleeping. Self defense must be for reasonable belief that death or bodily harm is imminent. She does not get off because she is mistaken about the justifying circumstances (not right time)
5) State v. Kelley Wife stabs husband after years of domestic violence. Expert testimony allowed in to explain wife's state of mind (her experience as battered woman caused her to honestly fear harm but still stay with him--person in her situation) and bolster her claim of self defense.
B. Lesser Evils
1) MPC §3.02 Better to save more lives than less, if given the choice. However, 'lesser' evil is not always a numbers game, especially if the choice involves a family member. Can be mistaken, like self defense, but if R or N in arriving at mistake, then can be convicted at that level.
2) U.S. v. Schoon Political protesters cannot commit crime to theoretically prevent the greater evil unless it is directly relevant and even then it might be too indirect.
C. Provocation
1) MPC §210.3(1)(b) Reasonable explanation or excuse--does not have to be immediate
Traditional--adultery, "heat of passion" theory. Reasonableness determined from the
viewpoint of a person in the actors situation under the circumstances as he believes them to
be. Goes to motive and drops murder to manslaughter.
VII. ATTEMPTS (Reckless attempts not chargeable. See §5.01. Instructions in MPC turn on conduct, results, and attendant circumstances--not elements approach. Conduct and result must be proved with purpose. Attendant circs can be reckless or greater or as definition of offense specifies.) Can be charged, but not convicted for both attempt and actual crime, for same offense.
1) Cannot punish on remote prepatory acts, but MPC test does not required the 'last proximate act for which without crime won't happen. (Dangerousness of letting things get out of control; try to get the bad guys earlier.)
A. MPC--Substantial Step test: Actor's conduct, considered in light of all of the circs, must add significantly to other proof of her criminal intent, ie. Lying in wait, searching for victim, visiting crime scene, unlawful entry, possession of criminal tools. MPC focuses on subjective intent rather than manifest intent.
B. Equivocality test--when conduct alone no longer ambiguous it corroberates his criminal intent. This test as well as 'last step' focus more on manifest, objective intent...looking mostly at conduct and not at culpability.
2) Problems:
A. Attempted strict liability...no culpability, so only punishing for danger/harm, not guilt--(didn't do, only thought about--thoughts, status--principle of legality.
B. 8th amendment against punishment on status---guy looks like he's dangerous, should we arrest him on attempt.
3) Homicide: Cannot write attempted manslaughter because it is premised on recklessness, and ATTEMPT requires purpose.
3) Defenses
A. Abandonment
B. Legal impossibility--when the intended acts, even if completed would not amount to a crime, so there is no injury, wrong, or loss (see principle of legality--cannot make new crimes If not against the law to do what you knowingly intended to do, the court cannot write a law against it just for you.
C. Failure of proof (no purpose...)
| Whereas it is a crime to purposely cross the border >R with drugs | Crime | Defense |
| Purposely crossed border with what he thought was drugs, but it was money | Attempt. If circs as he intended he'd be doing crime, but no thanks to him, no success | No defense (factual impossibility) He intended to break the law because he thought he had drugs |
| ...with what he thought was money, but was drugs | Crime done. Purposely crossed, with drugs | Has a defense under mistake of fact. Did not intend to break law. |
| Knowingly brought money, but thinks its against the law | No Crime. Brought something legal over the border and intended to do so | If charged for attempt, it is legally impossible. |
VIII. ACCOMPLICE LIABILITY (Under MPC §2.06, person guilty of an offense if he commits it by his own conduct or by the conduct of another person for which he is legally accountable, or both) §2.06
1) Accountability through an innocent instrumentality (PersonX threatening D under duress, person coercing another, personX getting insane other to do their work, etc.) PersonX must have mental state sufficient for commission of offense
2) Accomplice--related to specific offense (broader scope would be conspiracy, where both actors would be responsible for all crimes) If joint enterprise, each liable; however if one departs from agreement, other not liable.
A. Person is an accomplice if he assists with the purpose of promoting or f acilitating... and if applicable, culpability required for attendant circumstances and/or result of offense. (MPC) Must share Purpose (goals, not always means) and association, not just presence. (Judge Learned Hand
B Accomplice must actually aid, agree to aid (not just encourage, like in common law) or attempt to aid X (requires substantial step intended to culminate in assistance.
C. Or by omission: have a legal duty to prevent the commission of the offense but fail to do so. (Aiding and abetting child abuse--failing to protect own child from abuse--must show purpose, consenting to the abuse)
3) Primary actor does not have to be convicted for accomplice to be convicted (in the case of excuse, abandonment, etc.) Can also be convicted on attempt, if conduct intended to aid another in commission and otherwise would be convicted as accomplice, even if the offense was never fully carried out.
4) Negligence: People v. Luparello Person liable because he ought to know his buddy was planning to commit crime. Theory: Forseeible consequence dependant on principals acts can infer alleged accomplice's guilt...Critique: Jury retrospectively decides on 'ought to know' (legality?) And 'bad kids' (status offense) Some jurisdictions, but not MPC
5) Specific Issues:
A. Defenses: Abandonment, is a victim himself, inevitably incident
B. In common law, knowledge is sometimes sufficient if crime is serious, but MPC
says not, i.e. Store owner selling gun to person who says will shoot. (Fact intensive,
case-by-case, problem with principle of legality, too-broad liability)
IX. CONSPIRACY (§5.03) (Inchoate offense, like attempt--do not use elements approach, follow instructions in section.
1) Conspiracy is an agreement (express or inferred) Whether or not the act is committed/attempted or otherwise, the separate crime of conspiracy is the act of conspiring/agreeing.
2) MPC, can be convicted for all acts, agreed to and purposefully intended, that the conspiracy agreement covered. Charges will be separate for each crime and for each conspired act.
3) Principle of legality issues--punishing on thought crime, thought based on an idea only. Also, for status as one of the gang.
4) Other tests...premised on negligence, or 'ought to know' other crimes would occur.
A. Pinkerton- If conspired to commit a set of crimes, then all conspirators are per se accomplices for all reasonably forseeable crimes in furtherance
B. Bridges- Conspirators liable for all crimes committed within a broad forseeible range, even if not specifically planned.
5) Scope of MPC more limited: if a conspirator knows that a person with whom he conspires to commit a crime has conspired with another person or persons to commit same crime, he is guilty of conspiring with the others too, whether or not he knows their identity. Basically, it comes down to an agreement with shared purpose.