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CRIMINAL LAW
I. Legality and Specificity
A. Legality
1. Keeler-Man kicked
ex-wife, killing fetus. Couldn't be charged, since statute said "Murder is the
unlawful killing of a human being . . ."
a. Jurisdictional
problems
MPC1.05 No conduct constitutes an offence unless it is a crime or violation under
this Code or another statute of this State.
Courts can't create offence by enlarging statute, inserting words, or giving terms unusual
meanings
b. Fair warning
problems
No fair warning consistent with due process if statute is retroactively applied to prior
conduct.
--also applies to unforeseeable judicial enlargements of statutes
Bouie--South Carolina SC convicted two blacks for remaining in restaurant. Prior courts
had held that blacks couldn't enter after notice had been given, but SC SC construed the
statute to also prohibit the wholly different act of remaining after notice was given.
US SC held Carolina court's ruling was unforeseeable.
B. Specificity
1. Ricks-Woman was arrested for violation of
DC's vagrancy law
--Language of statute
was so vague as to infringe on due process
--Broad language leaves too much to be decided and too much room for inconsistency
--Men of common intelligence must necessarily guess at its meaning and differ as to its
application
--Statutes should leave
no room for speculation as to innocence or guilt. All are entitled to be informed what the
State commands or forbids.
II. Principles of Criminal Punishment
A. Deterrence
1. Holds that would-be offenders are rational
and respond to their perception of the costs and benefits of actions
B. Incapacitation
C. Rehabilitation
D. Retribution
III. The Guilty Act
3)cases
Proctor - illegal liquor charge, rented a
place, did preparation but there was no guilty act beyond the preparation, Where do you
draw the preparation line?
McQuirter - black man charged w/ attempted
assault w/ intent to rape because he was "lurking" in a white neighborhood.
Shouldn't have been convicted.
A. Commissions
1)common-law - must have some demonstration of
guilty intent, SOME PHYSICAL ACT
2)MPC 2.01 - VOLUNTARY, conscious control
* get straight the
differences between common-law and MPC. How much stricter is the MPC if there are any
diff.
1. The Need for Guilty Act
Proctor v. State--Man
was arrested for keeping a place with the intent and for the purpose of selling alcohol.
--Statute made mere intention, unexecuted and not connected with any act, a crime.
--An intent to commit a crime is not indictable, and, although the intent, is in general,
of the very essence of a crime, some overt act is the only sufficient evidence of the
criminal intent.
Is Possession an Act?
State v. Palmer--Statute treated possession as "prima facie evidence" of intent
to commit a crime, meaning that although the defendant would normally enjoy the
"presumption of innocence", once the prosecution introduces evidence of
possession, a "presumption" of guilty then arises. In the case of a person who
was caught with burglary tools, the Palmer court held that there was a rational connection
between the fact allowed to be inferred and the fact proved and that the D was in a better
position to explain his intentions than the state.
People v. Timmons--possession of two or more stolen credit cards is presumptive evidence
that the possessor has knowledge that the cards were stolen....In fact this presumption
usually affords the prosecution the only practical method of proving, at least prima
facie, this element of the crime.
State v. Emerson--man caught approaching school at midnight loaded to the gills with
burglary tools. His only explanation was that the tools were his way of rising above his
past. Court was justified in finding him guilty.
But See
State v. Saiez--Florida court struck down statute criminalizing possession of credit card
production machines, saying it interfered with the rights of those who possessed the
machines for legitimate business purposes.
Delmonico v. State--Struck down statute criminalizing the possession of spearfishing
equipment in a county where spearfishing was illegal.
Robinson v. State--Struck down statute prohibiting the wearing of a mask or any other
device concealing one's identity while on public property.
What constitutes Possession?
United States v. P--court overturned statute making it illegal to posses an unregistered
gun "unless the defendant explains such possession to the satisfaction of the
jury"
--D drove car in which companion had sawed-off shotgun. Either he or companion placed it
under front seat for safety. D held the gun for a few seconds and fired it twice, and had
no further physical contact with the gun. Gun later ended up in D's house where a young
woman was killed.
--Court said possession means "having something within one's power"--this
defendant never exhibited the requisite "dominion or control" or "power of
disposal".
People v. Valot--D was convicted of "possessing" or "having under his
control any narcotic drug." D had rented motel room for himself and several friends.
D paid first day, somebody else paid second day. Police searched the room and found 5
people asleep, and marijuana paraphernalia in the room. Court held Valot had
"control" of the drug, regardless of who had brought it into the room. Dissent
argued no possession, since no evidence he brought it in or ever used it.
State v. Bugger--Officer found D drunk and asleep in his car. Car was parked off the road
and was not running. Court reversed D's conviction for "any person who is under the
influence of liquor to drive or be in actual physical control of a vehicle", holding
that d was not exercising any physical control or dominion over the car at the time of his
arrest.
2. Voluntary Acts
People v. Newton--D boarded a plain in the Bahamas for a flight to Luxembourg. Plane made
an unscheduled landing in NY, where D was arrested for violating NY handgun possession
law.
--Court found D did not subject himself to criminal liability by virtue of a voluntary
act. Landing of plane in NY was not attributable to voluntary act of D.
Martin v. State--man was convicted of being drunk on a public highway. D had been arrested
in his home, and officers took him onto the highway, where he used loud and profane
language.
--under plain terms of the statute, a voluntary appearance is presupposed. D's appearance
on the highway was not voluntary.
Notes--(pp 70-80)
1. MPC defines
"act" largely by exclusion, and stresses the element of conscious control,
rather than muscular movement.
5. People v. (Huey) Newton--man struggled with
officer and was shot in abdomen. Man then shots and killed a second officer. Jury was
allowed to consider that man committed no voluntary act, since abdominal wounds might
produce reflex shock conditions for up to half an hour or so.
Robinson v. California--USSC struck down
California statute making it illegal to be addicted to a narcotic drug, analogizing it to
punishing someone for having a common cold.
Powell v. Texas--6
years after Robinson USSC upheld Texas conviction of man for being drunk on a particular
occasion, saying CA was trying to punish a status.
8. Sleepwalking
King v. Cogdon--mother
axed her daughter while sleepwalking--act of killing was not , in law, regarded as her act
at all.
9. People v. Decina--epileptic had seizure
while driving and killed four pedestrians. Although seizure was involuntary, he was still
criminally liable, since he had awareness of a condition which he knows may produce such
consequences as here, and his disregard of the consequences, renders him liable for
culpable negligence.
McQuirter v. State--White woman left a diner
with her two children. Black man followed her down the street and waited outside the house
she went into for @ 30 minutes.
--Jury must be
satisfied beyond a reasonable doubt that defendant intended to have sexual intercourse
with prosecutrix against her will, by force or by putting her in fear.
--The jury may consider
social conditions and customs founded upon racial differences, such as that the
prosecutrix was a white woman and defendant was a Negro man.
B. Omissions
1)legal duty rule - unless D has a duty to act,
an omission is not culpable
a. imposed by law; ie.
statute, public ordering
b. contract; private
ordering
c. certain status
relationship to another
d. voluntarily assumes care of another and so seclude the person as to prevent others from
rendering aid.
e. cases: Jones and
Beardsley
Jones v. U.S. (p. 80)
-- Woman allowed child she took care of to starve to death. Woman didn't have monetary
agreement to care for child, but had complete custody of the child. COA reversed
conviction, holding that the jury did not establish that the appellant was under a legal
duty to supply food and necessities to the child.
Beardsley (p. 85) --
Beardsley had tryst while wife was away. Companion drank heavily, and then took morphine,
even though Beardsley attempted to stop her. Woman passed out, and Beardsley had her taken
to another apartment. Doctor's examination discovered the woman was, in fact, dead.
Beardsley was convicted
of manslaughter, on the theory that the facts and circumstances attending the death of the
woman were such as to lay upon him a duty to care for her, and the duty to take steps for
her protection. WRONG
Conviction was
overturned, because the duty owed has to be a legal duty, not a moral duty. Original
conviction was partially based on status of victim--a woman.
Commonwealth v. Cali --
Man accidently started fire, but then allowed it to burn down building to collect
insurance proceeds. Held, guilty, since his intent didn't have to be formed before the
fire started.
2) Lambert -felon didn't register w/ the county
- ct concerned w/ lack of scienter/guilty mind/mens rea
On becoming aware of her duty to register, she
was given no opportunity to comply with the law and avoid its penalty, even though her
default was entirely innocent.
"A law which punishes conduct which would not be blameworthy in the average member of
the community would be too sever for that community to bear."IV. Strict
Liability
-ignore the actor
-omit need for guilty mind because suppression
of the activity is so important, the goal is crime control.
A) focus is on the act - crime control overrides fair warning
B) focus on status of the victim
C) MPC 2.05 - penalties are light w/ strict liability
D] only applies to public welfare cases
1-where does public welfare line get drawn?
2-How is the act looked at traditionally? If
it's a "traditional" crime strict liability doesn't apply.
3-all is weighted by what we're trying to
suppress.
E] relative hardship of D less injurious than injury to society from
the crime
F] MPC - guilty of at least what you THOUGHT YOU WERE DOING
Balint -- man was convicted for selling coca leaves and opium, even
though he didn't know that's what he was selling. Strict liability statute was intended to
require every person who deals in drugs to ascertain at his peril whether that which he
sells comes within the statute. Congress weighed the possible injustice of subjecting an
innocent seller to penalty against the evil of exposing innocent purchasers to danger from
the drug, and concluded that the later was the result preferably to be avoided.
Beran v. State--Alaska court followed the MPC,
overturning conviction for "crime" of fishing in closed waters, since defendants
had mechanical problems and couldn't haul in their net. MPC holds strict liability is only
acceptable for violations, not for crimes.
US v. Dotterweich -- D convicted of violating Food, Drug & Cosmetic
Act--"any drug that is adulterated or misbranded." Court balanced the relative
hardships, holding Act "In the interest of the larger good it puts the burden of
acting at hazard upon a person otherwise innocent but standing in responsible relation to
a public danger.
US v. Park--Park found criminally liable for
the adulterated shipments of food which his company shipped. Held, the duty imposed by
Congress on responsible corporate agents is, one that requires the highest standard of
foresight and vigilance, but does not require that which is objectively impossible.
Morissette v. United States--Man who sold spent
bomb casings was convicted for "knowingly converting" government property. Court
reversed his conviction, holding that this type of larceny was not a good strict liability
crime, and man did not have the intent to steal.
US v. FMC Corp.--Birds were killed by pesticide
in FMC's wastewater pond. FMC took several steps to correct, but indictment came down
before FMC was successful. Who knows what this case means.
People v. Dillard--D convicted for carrying a
loaded firearm on his person, even though he didn't know the gun was loaded. Held, the
loaded gun was so dangerous to the public at large that this was appropriate strict
liability crime.
People v. Hutchison--Half bottle of alcohol was
found in D's van. D's conviction was reversed, and the court held that strict liability in
this case would be tantamount to punishing a man for the sins of his neighbor, since there
was no way D could have known what his passenger possessed.
V. The Guilty Mind
1. Categories of Mens Rea
categories of mens rea; culpability depends on
person's awareness
A. Material Elements--*Break the statute down into its material
elements
conduct
attendant circumstances
result (when provided)
(Immaterial/Excluded - venue, jurisdiction,
etc.)
B. Mens rea has to be met for each material element
of the statute
C. MPC 2.02 Categories
Negligent -
unaware--should've known but didn't; what a normal person would've known
Reckless - conscious
disregard of a substantial, unjustifiable risk
Knowledge - had knowledge of
practical certainty
Purposeful - purposeful of
nature of conduct
Ask: 1) What is the mens rea for
each material element?
2) MPC 2.02(3) if there's no
stipulated mens rea recklessness is the default.
D. Regina v. Faulkner Def. was trying to steal rum
and when his lighted match caught the ship on fire and destroyed it. Should we hold D
liable for destroying ship when he had no intention to do so? How far do we go w/
liability of a guilty mind? Does it extend to unforseen/planned injury? D was found NOT
guilty for the fire in this case.
Pros.--because he lit
match, he was liable for result
Def.--if he did not
foresee result, he could not assume risk--can't possibly be held liable (*D-today, you
have to at least prove a minimal awareness of further risk)
2. Mistake
1. Mistake of Law
Mistake of law v. Ignorance of law
1)mistake of law is NO
DEFENSE - means that he knew of the law but had no understanding that this act would fall
under that law.
2)ignorance of law is
NO DEFENSE - no excuse ignorance, each bears burden of finding out the law. Doesn't matter
if one has a good motive. EXCEPTION Lambert (5-4 decision)
Mistake of law is NOT A DEFENSE
Mistake of fact IS a defense
Legal impossibility IS a defense
Factual impossibility is NOT A DEFENSE
MPC 2.04(3)
1) Ignorance or mistake as to a matter of fact
or law is a defense if:
(a) the ignorance or mistake negatives the mens
rea required to establish a material element.
(b) law provides that the state of mind
established by such ignorance or mistake is a defense
2) D is not available
if D would be guilty of another offense had the situation been as he supposed (FACTUAL
IMPOSS)
*REDUCE THE GRADE AND DEGREE OF THE OFFENSE
3) Mistake of law - A
belief that conduct does not legally constitute an offense IS A DEFENSE to a prosecution
for that offense based upon such conduct when:
(a) statute or other enactment defining the offense isn't known to the actor and hasn't
been published or otherwise reasonably made available prior to the conduct alleged; or
(b) he acts in a reasonable reliance upon an official statement of the law afterward
determined to be invalid or erroneous, contained in (i) a statute or other enactment; (ii)
a judicial decision, opinion or judgment; (iii) an administrative order or grant of
permission; or (iv) an official interpretation of the public officer or body charged by
law w/ responsibility for the interpretation, admin or enforcement of the law defining the
offense.
**there are definite limits, especially if it's
paid counsel which has been relied on, STILL RESPONSIBLE because it would be putting an
atty's advice above the law
4) D must prove a defense under (3) by a
preponderance of evidence
2. Mistake of Fact
It is a defense if it's
HONEST AND REASONABLE, this needs to fit to both a subjective and objective test
Common-law Impossibility Rule
1) FACTUAL IMPOSSIBILITY - NOT A DEFENSE
all elements were present only factually
impossible to commit the offense
2) LEGAL IMPOSSIBILITY - YES A GOOD DEFENSE
one of the elements couldn't be satisfied
MPC says neither are a defense, better to use
D's perception, not reality, thus it would've been possible under D's perception.
Mistake of fact - good D ? of mens rea, person's appreciation of Mistake of law - NOT a D
wrong doing.
Impossibility of fact - still guilty
Impossibility of law - not guilty under common law, MPC = guilty
No mens rea ?, we're looking to see guilty act
ex. faulty gun = still guilty, fact imposs
Keeler (killing a viable fetus) can't make criminal that which isn't
criminal under a statute
State v. Guest--D reasonably believed the girl he was raping was 16.
Mistake of fact was allowed, since court would otherwise be imposing criminal liability
without any criminal mental element. While Mistake of fact does not serve as a complete
defense, it should serve to reduce the offense to that which the offender would have been
guilty of had he not been mistaken.
People v. Bray--Court reversed Brays conviction of being a felon in
possession of a gun. Bray did not know he was in fact a felon, and since his ignorance was
reasonable under the circumstances, mistake of fact was a valid defense for him.
State v. Hatch -- Man was cited in NJ for driving with out firearms
purchaser card and not keeping weapons in closed and fastened case. Hatch argued he was in
compliance with Massachusetts law, and was unaware of any further legal requirement in
passing through NJ. Court held that lock-up requirement was reasonable and did not unduly
burden interstate travel. However the legislature couldn't have contemplated that someone
in Hatch's situation would be required to hold a NJ card.
For-Sale sign story (p.164) woman cited for displaying for sale sign in
car. Woman was unaware of statute, and had simply parked her car in the neighborhood while
visiting a park.
Hopkins v. State--State's attorney advised minister it would be OK to
advertise for marriages, even though statute prohibited it. While ignorance of fact may
sometimes be admitted as evidence of lack of criminal intent, ignorance of the law
ordinarily does not give immunity from punishment for crime, for every man is presumed to
intend the necessary and legitimate consequences of what he knowingly does. Even advice
from State's attorney did not exempt from "ignorance of law is no excuse"
Nofziger--when to draw the line between what is acceptable and what is
not acceptable?
Cheeks
VI. Attempt --- Dori
VII. Defenses -- Dori
A. Abandonment
B. Impossibility
VIII. Causation
Only an element where "result" is required--e.g., murder.
What is role of Causation?
Crime suppression v. fair warning
--if you take "broad cone"
approach--you want to make people aware their conduct is criminal--place blame on many
potential causes; if take "narrow cone" approach--only applies to those who knew
or should have known
Punishment--retribution v. deterrence
if narrow view--only those people who have
level of culpability will be held liable; if "broad cone" approach--get as many
as you can.
Hardest time to determine causation is in cases with multiple
causation.
Common law developed substantial factors--if
two or more potential causes--->see if they were a substantial factor
MPC doesn't follow that approach--uses
"Was it an antecedent cause" How did it happen?
-where more than 1
but-for cause, they all become the legal cause.
A. "But For" Causation
1. Regina v. Martin
Dyos--In fight, boy struck victim in head with a brick. Victim also had another headwound.
Since it could not be determined which wound caused death, it could not be determined that
but for MD's actions, Victim would not have been killed.
B. "Legal Causation"
1. Regina v. Benge--Benge
headed RR crew, ordered tracks pulled up after negligently mis-reading when train would
arrive.
-engineer was negligent
in driving train
-flagman was negligent
in not warning properly
-but Benge's negligence
was the substantial cause of the accident
2. Commonwealth v. Rhoades--Rhoades set fire to
building, and fireman died from combination of stress, cold weather, and smoke inhalation.
-must be proximate cause--in the natural and continuous sequence, produces the death, and
without which the death would not have occurred.
3. Commonwealth v. Root--2 kids racing, one
tried to pass on a bridge and was hit by semi.
-D's conduct was not a sufficiently direct cause of the death
D's conduct was unlawful and reckless, but this is a criminal, not civil, case.
Murder Classifications/General Overview
Common Law
MPC
1st Degree Murder
Murder
2nd Degree Murder
Voluntary Manslaughter
Manslaughter
Involuntary Manslaughter
Negligent Homicide
MPC makes no distinction between 1st & 2nd Degree Murder--too hard to determine
whether the intent to kill was premeditated.
If analyzing under MPC, 1st ask if def. was aware/unaware. If on awareness side, start w/
murder. If facts can lead you to argue lesser culpability, you can move down to
manslaughter.
If analyzing under common law, first ask if aware/unaware. If aware, start at 2nd degree
Murder; then ask if can be increased to 1st, or decreased to voluntary manslaughter.
(Explain how prosecution/defense would want to benefit from arguing either MPC or common
law.)
IX. Involuntary Manslaughter (common law); Negligent Homicide (MPC)
(least culpable homicide--not aware of risk of death)
A. Common Law
1. State v. O'Brien (p. 191)
--Defendant was to adjust switches of railroad
so that passenger trains would correctly change tracks.
--He failed to perform his duty, there was a
wreck, and a man lost his life.
--"Intent to take life, whether by an act
of omission or commission, distinguishes murder from manslaughter."
--If Def.'s omission was wilful, he was guilty
of murder.
--It was found that he was negligent, but he
did not have intent to take life; his manslaughter conviction was upheld.
2. State v. Williams (p. 202)
--An Indian husband and wife were held liable
for manslaughter in the death o their infant son, because they failed to realize that what
they thought was a toothache was an abscess which without medical attention became
gangrenous and led to the child's death.
--duty of care required was that of
"ordinary caution; would an ordinarily prudent person have obtained medical care?
they breached that care--ordinary negligence, which is sufficient to support a conviction
of statutory manslaughter.
--NOTE: Should Court have applied standard of
an ordinary Shoshone Indian rather than an ordinary person?--that's what the MPC would
require--comparison to an ordinary person in those circumstances.
--some states require "gross"
negligence rather than just ordinary negligence.
B. MPC 210.4 & 211.2
1. Regular manslaughter requires mens rea of
"recklessly"--so there would have to be awareness. Negligent Homicide, however,
occurs "when he should be aware of a substantial and unjustifiable risk," and
his failure to perceive that risk involves a "gross deviation from the standard of
care that a reasonable person would observe in the actor's situation."
C. Generally.
1. Dr. Kavorkian case. Is he negligent? Causation
problem--people who die actually cause the act--he does not.
2. pregnant women who take drugs, etc.--harm baby
"What if mother
gives baby AIDS after it's conceived?"
X. Second Degree Murder - examine closely; could go up to first or down to
manslaughter--prosecutors get to play "judge and jury" by deciding what charge
to bring.
A. AWARENESS - to move into 2nd degree, person has to be aware of a
homicidal risk;
B. Malice aforethought--
--homicidal malice does not look at motive
--diff. between motive and intent: don't ask whether person was trying
to do good--mercy killing; no difference in the penalties attached--same elements apply
(sometimes we use motive to mean intent--what was the reason they did something)
Under MPC--> 1) knowledge
2) extreme indifference to value of human life
--MPC tried to clear up notion of malice
aforethought (was intent to end person's life or intent to take gamble--extreme gamble,
with no social utility (Russian Roulette).
--instead, we look at a person's appreciation
of risk, and then did they make a risk more substantial that was not justifiable?
Common law
1. Harris (p.286) Intent to Kill. (look at facts to
determine intent)
--schoolmistress killed former lover
--she had a deadly weapon
2. Francis v. Franklin (p. 288)
--prisoner escaped from dentist's office
--had several hostages, etc.--didn't kill
--gun went off when man slammed door--killed
him
recklessness standard--weigh when making
assessment
1)
How substantial is the risk?
2)
Whether it was justifiable? social utility; (vehicular homicides--socially useful to allow
driving)
Why does defense argue that it should matter
that he didn't kill people he could have? --he's trying to show he was only ordinarily
reckless--he did make the risk more substantial, so there can't be extreme indifference.
3. Mayes v. The People (p. 295) - Extreme Recklessness
--drunk husband threw mug at wife; broke lamp
she was holding, burned her and she died
--he intended to inflict bodily harm
(sufficient to lead to murder conviction under common law)
MPC differs here--MPC rejects notion of implied
malice, by not allowing intent to inflict bodily harm qualify for murder. MPC holds out
for higher standard that you have to have extreme indifference to value of human life.
e.g. - proposed Utah statute trying to bring
that notion back (common law view); if person hits someone and they die, can charge
homicide.
XI. First Degree Murder
A. 1st step - determine whether material elements of murder statute have
been satisfied (have to show it was murder).
Next, evaluate evidence to determine whether it was an aggravated
murder (enhancing considerations lead us to feel capital punishment is warranted.)
Under Common law 1st degree murder, not only have they seen risk and
magnified it, they've taken pains to work though most efficient/maximum risk. It's as
probable, substantial and likely as a killing could be (in fact, they take precautions to
make sure victim will not not die); premeditate--consider, reconsider, weigh pros/cons,
etc. Mens rea=knowledge/purpose.
B. U.S. v. Watson
--Appeals court is looking at issue of whether there is sufficient
evidence that a reasonable jury could find that there was time for premeditation, for 1st
degree murder.
--1st - was there murder? facts: scuffle, def. had gun, police
officer's pleading words
--2nd - was there required malice (intent to kill)? (could D see a
substantial, unjustifiable risk that someone could be killed; and did he disregard that
risk? Also, it was totally unjustified--no social utility.) shooting the officer in vital
organ area
--3rd - was it aggravated murder? Defense could argue he was badly
confused/irrational;
Court wanted to know if he had time to
contemplate it? Review his decision-divide process in 2 ways:
-quantity (passage of
time--how long did he have to consider, review, rethink his decision to kill?), or Did D
have opportunity to reflect/reconsider/cease from intent to kill? and
-quality (with what
depth, with what meaningful thought did the D appreciate the risk--see the ways in which
it was murder, and did he mull over the risk?)
What if he'd already been planning to kill a cop? If that's on final,
first thing you say better be "It's not enough to think that way--thoughts alone are
not enough; you have to show coupling between thought and act--that the intent was
operative at the time."
What if it were reflexive act or irretrievable impulse? What would
defense argue? No intent--no voluntary act on part of D. Has to emerge through volition,
not compulsion.
Cardozo says what if there's an impulse where the D chose to act on the
impulse (making murder still okay)? Where do we say that that choice isn't one that could
otherwise qualify under quantity/qualify of time test? Isn't it the case that what we're
really saying is that any 2nd degree murder, so presented to a jury, can be found to be a
2nd degree? Since there isn't a clear distinction to him, great man that he is, how can
ordinary jurors be expected to make the decision? Isn't it immoral to require them to?
Deterrence - Want to send message to people who may have opportunity to
think about killing someone that they will be subject to highest form of punishment.
Retribution - this person is the most vile killer; they appreciate what
they're doing--they build up a framework around their act so that the person will almost
certainly die; they need to be given the worst punishment possible.
What about 70 year old lady who strangled husband? We still have to
send message that it is not for anyone to make decision about life of another person.
What is it that we're intending to do with criminal law as a whole?
Don't want to lead to signal that it's okay to make decision yourself about value of
another's life. Judge says this lady's situation will not send such a signal.
IF on final, think- What might that mean if I'm
defense counsel? What could I say? IF it's the case that she has had to take care of this
man round the clock at her own expense so that she had denied herself of necessary sleep,
care, etc.--she could have been bothered so much that it triggered her to strangle him,
but she did not have the capability of forming the mens rea to kill. Argument has to be
that some element cannot be satisfied beyond reasonable doubt. Here, more than justice as
a whole--analyze facts and argue that mens rea is insufficient.
C. People v. Benjamin
--Man was in bar; left after scuffle; prowled parking lot; when victim
came out w/ woman and got in her car, Def. drove up and shot and killed victim.
--If you can show lying in wait and murder, you have 1st degree.
--Def. counsel - Def. wants to attack
foundational basis for establishing murder. So 1st, is it murder? (Don't start w/ why he
doesn't meet 1st and work backwards) Unjustifiable and substantial (no social utility).
Here, meets test for 2nd. SO, under statute, because he was lying in wait, you can try him
for 1st degree murder.
XII. Felony-Murder (Common law only--N/A under MPC)
Felony-murder rule comes into play when the defendant is committing a nonhomicidal felony
and a death results; there are two types--first degree felony murder and second-degree
felony murder.
First Degree Felony-Murder - If the crime is specifically enumerated in the statute passed
by the legislature (then the legislature has pre-determined that certain felonies are
deemed to be sufficiently dangerous to invoke the felony-murder rule--these usually
include the major felonies such as robbery, burglary, rape, and arson).
People v. Stamp (p. 352) - robbery; Def's hold up amusement park office; owner suffers
heart attack and dies shortly after robbery.
What is Def's counsel going to argue on appeal?
-no way they knew; unforeseeability
-way they committed crime; robber did not increase odds that anyone would die--was not a
dangerous kind of robbery; took care to see that no one risked death
strict liability problem--disregards mens rea; defendant did not appreciate the risk.
Questions are:
-guilty act? Yes
-guilty mind? only because of the fiction that
because a robbery is committed, we have kind of person who sees and takes homicidal risk
-Result? Yes--death of victim.
-Causation? Even if but for, no legal
causation. No imputable causation that links them up with this person dying. Reason is
that the standard case, normally speaking, we foresee everyone getting on ground, they
take money and leave. That's what is fairly foreseen--death is not foreseen. No legal
causation.
Second Degree Felony-Murder - Where the judiciary creates a test to decide if a felony
outside of those enumerated in the statute is sufficiently dangerous to invoke the felony
murder rule. If the felony fits within the court-constructed rule, then, it is 2nd degree
felony murder.
Generally, the rule has been that before a court can apply felony murder rule, it must
first determine whether the felony itself is dangerous to human life.
People v. Patterson (p. 320)
question--is this felony a suitable predicate felony for imposition of felony second
degree murder rule?
What is the test the court must use? Whether high probability of killing will result from
commission of the felony?
Courts ask not w/in context of this killing, but rather in larger context of the crime,
does it present crime which is inherently dangerous to human life?
--back up from circumstances of case and ask if by nature of the
felony, by virtue of its commission, it is inherently dangerous to human life.
How important is it to show some awareness on part of defendant? Not at all important--he
doesn't have to be aware at all. That's the purpose of felony murder rule--this defendant
did not have to haves some appreciation that his felony was greatly appreciating the
likelihood of creating a homicidal risk. The 2nd degree felony-murder rule eliminates the
need for the prosecution to establish the mental component.
Kind of a strict liability approach--since no awareness. Then how can the punishment be so
severe?
ANS. deterrence policy. What are we trying to deter? The felony itself?
Then why not have much more severe punishment for felonies? felony w/ a dangerous weapon?
maybe that's what trying to deter. It turns out that very few felonies occur during
commission of felony, even with dang. weapon. Is this kind of statute necessary?
Argument is that if it deters anyone, it is
worth it.
Here, sense of societal vengeance--we need scapegoat. Status of victim is more
important--someone should have to pay for forfeiture of victim's life. Best person we have
to place blame/fault on is the defendant.
How would Def. argue?
Def. would argue that he's been doing it for a long time--wasn't inherently dangerous to
him.
e.g.--Burroughs; healer that killed people and was in violation of
felony (practicing w/o license); It's dangerous, but it's not inherently dangerous. What
if you were trying to help someone in an emergency--tried to fix broken bone--by some
freak accident, the person dies. But it was not inherently dangerous.
General Rule
That's CA rule; in other states, test is whether the felonious manner of killing
encompassed the homicidal risk. It doesn't matter if Def. saw risk--if that is case, you'd
go to indifference to human life.
In that case, Burroughs satisfies felonious manner of killing because of the circumstances
of the case and the dangerous nature of this act.
In some states, they do examine the facts of the case in determining dangerousness of the
felony.
Diff. between high probability and substantial probability--if it's case that person
engaging in felony cannot see the threat to life, is not aware of it, and the bulk of us
would only see a substant. probabl. but not a high probl., then argument is that
substantial probability should not lead to 2nd degree felony murder. (No fair
warning-since majority of us would not see it as high prob.) We're not going to impose it
unless it has high probability.
Other tension is crime control/suppression. Court saying if we have death and it comes as
a result of the commission of felony, we want to control that kind of crime by placing a
very severe sanction on it. No accidental killing, etc. This is crime control at work.
Even though someone would only have seen a substantial probl, we want to establish
approach that holds them liable regardless of risk.
Fair warning argument--Say to prosecutor, either show murder or don't get murder. Goes
against fair warning.
Is this person one targeted (felony murder rule is to protect him)?
What's the test for inherently dangerous to life? To whose life? TO whom doe sit apply? If
anyone dies?
Merger - yet another qualification on imposition of 2nd degree murder.
Court has constructed this whole device; not particularly liking that felony murder rule
has such an easier burden of proof, we'll impose restrictions. Problem when death results
because of an assault, battery, or the abuse of the victim. That is, you can prove that
felony, and then victim dies. Should that fit under felony murder rule? Could argue it is
inherently dangerous to beat someone like that. What's problem with that? It's one
act--constituent parts of it, to be sure, but what we had here is the fact that death was
a direct result, ended up being a part of, this defendant's felony, but what we have in
the way of evidence is that this defendant intended to batter/assault/abuse. Now question
is, given what we can show, should we be able to leapfrog what we can't show? -can't show
homicidal risk/intent;
Courts have decided once prosecutor can establish assault, it is not
the case that the prosecutor gets to use that and argue then that murder liability should
also attach because of the initial conviction. Have to show either independent felony or
you lose application of felony second degree murder rule. By that, mean felony which does
not by its nature show an attack on the person--doesn't show understanding of how that
victim would be harmed. e.g. Heroine--we don't know how blameworthy they were with respect
to harming victim; we can only show they had used heroin. We only know that defendant
died.
Reshaping the claim to look like an assault helps the defendant.
Generally, the felony murder rule is not looked upon favorably; one state has abolished
altogether.
MPC does not have felony-murder rule, because it goes against culpability requirements--if
defendant was not aware of risk, he cannot be culpable.
XIII. Voluntary Manslaughter
MPC 210.3
Why doesn't MPC use word voluntary? 2.01--definitions; criminal act has to include a
voluntary act; it's a given; MPC need not "dress up" by putting voluntary with
manslaughter.
Voluntary Manslaughter - def. had understanding/intent to kill; not malice, because he
didn't have time to think through intent; it was a reflexive act/uncontrollable
urge--takes away from 2nd degree; person has so much passion they can't recognize
homicidal risk.
MPC - voluntary manslaughter = murder
People v. Walker
Deceased was provoking Def. with knife--Def. threw brick at deceased and then cut him with
deceased's own knife; it was all in one sequence of events.
-Was there the adequacy of provocation? victim was outnumbered
-Was Def.'s force excessive?
-Time lapse? Def. had time to see alternative, reject it and proceed w/
act.
status of the victim--looms large in the court's analysis of the provocation; if victim
had been a different sort of person, it would be looked at differently.
MPC would look at circumstances of actor;
common law differs--wouldn't see adequate provocation; trend is to stretch common law to
fit more in line w/ common law
Rowland v. State
Classic case of adultery; man caught wife and boyfriend; shot at boyfriend and killed
wife; found guilty of murder; he argued it was just manslaughter.
adultery ---> anger
injury
stopping a crime
no immediate threat to Def. (not self-defense)
*D's argument is that men are less mature--retarded. We expect it out of men--they don't
know better; men can't withhold fury.
common law notion is that manslaughter is typified by the classic adultery case--ah, now
we understand and see why the killing was manslaughter.
common law is patriarchal--doesn't recognize opportunity that women may resort to other
means (e.g., poison); common law talks about first transport of passion; if woman has
enough control to not lash out on the spot, but come up w/ another means, then it's
murder. She had a at least a momentary grasp on situation, weighted factors, and then
proceeded.
Obviously gender-biased.
Why doesn't MPC use provocation? when someone comes unglued, not maybe right then, but as
a matter of combination of things, then manslaughter still ought to apply; morally obtuse
for def. to stand trial for murder, when jury may be convinced that this is someone
operating under mental distress. etc.
doesn't excuse crime all together--will be held to manslaughter; deterrence argument. Does
it really deter in heat of passion circumstances? Not really, but we want to impress upon
them that they will not get off, in larger scheme of things. Who else is being deterred?
the victim/the women; if it's understood taut if you fool around and your husband catches
you, there's no murder--some courts have even gone so far to say it's justifiable;
In any case, deterrence to victim is what's going on in manslaughter.
Provocation is not only objective, but subjective. (e.g., if husband knows wife is fooling
around, and he plans killing--find out when he can catch them, etc.; doesn't apply--malice
aforethought; careful calculation that will increase likelihood of killing--MURDER.) In
other words, the person committing the act has to actually be provoked.
common law - actually investigating if "temporary insanity' is applicable; material
elements of criminal code; mens rea is being compromised--can't show it if person didn't
have their faculties;
other way to argue is taut person did see, but they acted reflexively--compulsion that
rove their act; now, there's no voluntariness of act--no guilty act.
People v. Berry
provocation - not so overwhelming he couldn't have taken other alternative
time - 20 hours between alleged provocation and killing
he had thought about killing her; he now appreciates substantial risk of homicide; she has
also presented notion of it being unjustifiable risk--she asked if he was there to kill
her, so he's at least thought about it; def. proceeds to get so worked up that he
strangles her.
he knows he's capable of harming her (past experience); in formulation of MPC on
recklessness, it shows that it manifests extreme indifference to value of human
life--prerequisite for murder.
