How to use:
There are three outlines, a large outline of all material covered in the class, a smaller condensed outline, and an even smaller SUPER condensed shorthand outline. All files are hosted on Dropbox and in Word .doc format.
I don't encourage law students to copy this or any other outline prepared by another, but rather, read through it and use it to gap-fill or review the subject matter. I do encourage students to copy the strategy of writing a condensed outline for the final rather than bringing in a giant 80+ page behemoth into finals, provided they are open book/open note. Honestly, I'd prepare short-form outlines even if it was closed notes, just to use as a study aid.
Before using or relying upon this outline, please refer to this website's disclaimer.
Big Outline (much more usable .doc version here on Dropbox)
Overview
The Exam
The exam will last for three hours. It will have a multiple choice and an essay component. The multiple choice component will account for up to 1/3 and the essay component up to 2/3rds of the exam. You will find examples of the kind of multiple choice questions I ask throughout the materials, in the past exams attached as an addendum to these materials (the answers are available via Blackboard), and in additional past exams available via Blackboard. I will distribute a several sample essay questions both during the semester and in the review session I schedule at the end of the semester.
The exam will be closed book except that you may bring into the exam a 3 X 5 card of your own preparation with writing or printing on both sides of the card.
The exam will cover material found in the assigned reading and/or covered in class. You are not responsible for material that is neither in the assigned reading nor covered in class.
May want to include in outline for exam the cites for specific important cases and the tests that come from such cases.
Essay Exam Taking Tips:
1. See if problem identifies source of law
2. Break offense down to constituent elements: Act, attendant circumstance, general intent, specific intent, result, causation
3. Discuss whether each is satisfied
4. Identify issues requiring more discussion because answer isn’t clear
5. Make a brief list/outline of issues to discuss on scratch paper that may help you avoid missing issues
6. When an issue is susceptible to more than one reasonable resolution, discuss all of them
a. When facts are unclear or conflicting, make alternative assumptions about them
b. If it is unclear which legal rule the jurisdiction follows, analyze the problem under each rule. Time permitting, identify arguments for preferring one rule over another.
An A+ Answer?
I. M. Muscle owns and operates a gymnasium in the State of Green catering to body builders. At his gym, he sells dietary supplements, which he acquires from U. R. Supplier. Supplier told Muscle about an exciting new supplement called BigTime, which, she said, produced amazing gains in muscle mass. Muscle asked her whether BigTime capsules had been “approved.” Supplier just shrugged her shoulders. Although he was not really sure whether BigTime had been approved, he took Supplier’s reaction to mean that the U.S. Food and Drug Administration (FDA) probably had not approved BigTime.
Muscle bought a stock of BigTime and began selling it to some of the gym’s patrons. One of these, Arnold Clone, began using BigTime regularly and enthusiastically. Unfortunately, Clone was found dead in his bed one morning. Besides finding that at the time of death Clone had a chest size of 54" and a waist of 31", the autopsy concluded that the cause of death was heart attack. A medical expert determined that the heart attack was triggered by BigTime. According to the expert, BigTime leads to the quick development of significant arterial deposits in about 5% of those who use it. Clone was one of these.
In fact, BigTime had not been approved by the FDA. BigTime had been the subject of numerous news stories. Information about it, including the fact that BigTime was not FDA-approved and the link between BigTime and heart attacks, was readily accessible through, e.g., the internet. Despite being an internet geek, Muscle was unaware of this information and was unaware that use of BigTime carries any risk of causing death.
A statute in the State of Green provides: “It shall be a felony, punishable by imprisonment of up to ten years and/or a fine not exceeding $150,000, to sell any drug not approved by the U.S. Food and Drug Administration.” BigTime fits within the statute’s definition of “drug.”
- Whether Muscle committed the act of ‘selling’
- Whether he had the required culpability re this act
- Whether what he sold was a drug
- Whether he had the required culpability re this act
- Whether the drug was “not approved by the FDA”
- Whether and what degree of culpability is required respecting the ‘not approved by the FDA’ attendant circumstance element
- Import of statutory text, statutory presumptions and the Morissette factors
- Which is more likely: knowledge or recklessness?
- Muscle’s level of culpability re “not approved” element
o “knowingly”: Muscle was not substantially certain the FDA had not approved Bigtime
* Willful blindness
o Etc.
Question 2: What level of culpability did Muscle have re the death?
Purpose? Knowledge? Recklessness? Negligence?
(Would discuss each)
- Awareness of risk of death for reckless.
- Certainly not purpose or knowledge, but these would be discussed.
- Negligence? Probably. Had a duty to research this stuff and not provide death-drugs.
Outline of Criminal Law Principals
Purposes of Criminal Punishment
- Schools of Thought
o Utilitarianism
* Purpose and goal of criminal punishment is to produce future happiness or utility, weighing costs and benefits.
* Specific deterrence
o Deters particular offender from repeating crimes
* General deterrence
o Deters all potential offenders from doing crimes on a societal level
* Incapacitation
o Removing offenders from society to prevent future offenses
* Rehabilitation
o Reformation of offenders to prevent future offenses
o Retributivism
* Meta-notions of justice and fairness are the goals of criminal punishment
* Punishments must be proportional
* Gravity of wrong depends on degree to which offender has infringed on another’s autonomy
* Extent of responsibility for the wrong
* The general character of the wrongdoer
Basic Principals of Criminal Liability
- Criminal Liability Requires
o Act
* The criminal act, which must be voluntary,
* Generally omissions don’t count, Unless
* Special duty created by creation of danger, incomplete rendering of aid that prevents others from offering, contractual duty, parental duty, or other.
o Culpability
* The state of mind, with varying levels of subjective fault, with different kinds
* Purposely, or a conscious act to bring about resulting consequence
* Knowingly, practically certain to cause the resulting consequence
* Recklessly, awareness of risk, plus deviation of standard of care
* Negligently, deviation of standard of care
* Interpreting culpability requirements of a statute
* Presumption against strict liability, if there is a culpability word “knowingly, negligently” it is presumed to apply to all elements, statutory purposes, caselaw, etc.
* Few crimes are strictly liable. If not specified, elements of strict liability offenses:
o Mild penalties, severe harms, punishes omissions, functions to regulate businesses, is statutory not moral wrong, substantial policy interest, with exceptions such as in the case of rape
* Specific or general intent requirement
o Relevance
* Certain offenses require specific intent, may be negated by diminished capacity due to intoxication, mistake or other
o General intent
* Culpable for all acts under the offense, despite mere recklessness or negligence
o Specific intent
* Statutes which require knowingly or purposeful action
o Sometimes additional elements of consideration
* Attendant circumstance
* General qualifications constituting criminal liability outside of act and culpability
* Result & Causation
* Causal link between act and culpability
o Cause in fact AND
* ‘but for’
o Proximate cause
* Foreseeability, lack of attendant circumstance
Homicide
Capital Murder
o Qualifications:
* 1st Degree Murder
* Aggravating circumstances
* Weighs all factors relating to: heinousness of crime VERSUS mitigating circumstances
First Degree Murder
o Qualifications:
* Intent to kill
* Express malice
* Purposeful or knowing killing
* Premeditation
* Aforethought. Shown by:
o 1. Evidence of planning
o 2. Prior motive to kill
o 3. Method of killing which suggests design
* Felony murder
* Kills in the commission of a common law felony
o At common law
* Applies to killings committed in the course of rape, sodomy, robbery, burglary, arson, mayhem, larceny
o Modern law
* Commission of dangerous felonies,
* “Dangerous” depending on jurisdiction’s view
o 1. General nature of the felony
o 2. Elements of felony are violent or likely to cause harm
o 3. Some statutory codes list “dangerous” felonies
* Not subject to merger doctrine
* As to avoid elevating all 2nd degree murder felonies to 1st degree if the homicide is inseparable from the commissioned felony
o A) mechanical rules
o B) Would FMR all of a type of lesser homicides?
* Proximate cause
* Without intervening act
o Not counting medical malpractice
o Agency theory: not responsible for acts of third party
* Not followed by all jurisdictions
* Reasonable foreseeability (standard varies)
* In furtherance of
* 1. Killing must occur while felony is taking place
* 2. Agency theory may render FRM inapplicable
* 3. May not apply to co-felon’s death if victim is co-felon
* Intent to do serious bodily harm
* Kills intending to inflict serious bodily harm
Second Degree Murder
o Qualifications:
* Intent-to-kill without premeditation
* Depraved heart
* Kills with awareness of risk and indifference to high and unjustifiable risk
* Intent to do serious bodily harm
Manslaughter
o Voluntary
* Heat-of-passion
* 1. Subjective heat-of-passion
* 2. Provocation occurs
* 3. Provocation is adequate
o Strict common law determination aka pigeonhole approach
* 1. Provocation from victim directed at D or close family
* 2. Provocation must be
* adultery, serious assault, battery, or other violence, mutual combat, unlawful arrest
* 3. Not mere words or invasion of property rights
o Informational words expansion
* Some jurisdictions expand pigeonhole to second hand knowledge
o Model Penal Code
* Any acts committed under extreme mental or emotional disturbance with reasonable explanation or excuse
* 4. No cooling occurred
* 5. Reasonable person wouldn’t have cooled
o May be based on circumstances and duration of provocation
* Imperfect self-defense (in some jurisdictions)
o Involuntary
* Killings committed
* While acting recklessly, or “gross deviation from objective standard”
* Recklessness/lack of justification does not rise to the level of depraved heart murder
o Does not require indifference to risk
o But does require subjective awareness
* Unlawful act involuntary manslaughter
* Kills resulting from
o a) felony not subject to the felony murder rule, OR
o b) a misdemeanor
* Limited to
o Offense must be enacted to protect human safety
o Is not a strict liability offense
* No traffic offenses (Makin rule)
* Exception: Drunk Driving
o Restrictive interpretations of cause in fact and proximate cause
* Culpability required for unlawful act
o Is negligence of some degree between civil negligence and recklessness.
* Vehicular homicide
* Killing while operating a motor vehicle in a way that creates an unreasonable risk of injury that is a material deviation from standard of care
* Culpability
o Doesn’t require subjective awareness
Accomplice Liability
- To be responsible under accomplice liability
o 1. There must be someone liable for commission of the offense. (Guilty Principal)
* Exceptions, for those lacking criminal or legal capacity, not convicted, etc.
o 2. D must not be guilty as principal
* D did not commit the act, and did not cause the result
o D must have facilitated the crime
* 3. The Act: Facilitation
* May be as minimal as words of encouragement
* Must be an act, not omission, absent some kind of special duty
o Intent (but failure) to aid is sufficient under MPC, but not common law
* 4. The Culpability
* Must be purposeful,
* Knowingly is insufficient
o Exception certain for serious or severe crimes, such as bombings
* Minority view
o Culpability is the same required by the principal offense
- Natural Probable Consequence
o Some jurisdictions state that if guilty of Accomplice liability, then
Conspiracy
Elements
- 1) agreement between two or more persons
o Bilateral v. Unilateral
* In most jurisdictions, must be a bilateral agreement, aka “meeting of the minds”
* Some jurisdictions & in MPC, unilateral agreement, aka as long as one thinks they are agreeing
- 2) to commit a crime
o Crime does not need to occur, only the agreement to commit that crime
o Generally does not apply to misdemeanors, only serious crimes
- 3) commission of an act in furtherance of the agreement
o (in some jurisdictions)
Exceptions and Limits
- Membership of a legislatively protected class not liable for conspiracy
o “offense is so defined that his conduct was necessarily incident to the commission or attempt to commit the offense.”
- Wharton Rule
o When offense necessarily, inherently requires more than one person, D cannot be convicted of conspiring to commit that offense.
- Conspiracy ends when:
o Objectives have been achieved or abandoned.
o Must make affirmative act to withdraw from conspiracy
* Not recognized under common law. Only some jurisdictions.
* Applies only before the commission of the act.
- Scope
o May involve a central figure conspiring with several groups, or a chain of agreements to commit the criminal act
* May be guilty of a single conspiracy if there is one agreement to commit several offenses
o Conspiracy liability not recognized in international or civil law traditions
Punishment
- Conspiracy to commit an offense carries less severe but relative punishment to the object offense
Culpability
- Must have knowledge and stake in the crime (purpose?)
o Knowledge insufficient
- Corrupt motive doctrine: must know that the object of the conspiracy is a crime
o Followed by very few jurisdictions
- May be responsible for all crimes foreseeably committed in the course of the conspiracy by any conspirator
o Must make affirmative act to withdraw from conspiracy
o Not followed by all jurisdictions or MPC. Limits to those acts specifically assisted or agreed to.
Attempt
Elements
o Must intend to commit the crime
* Must have intent as an element of culpability
* Cannot be guilty of an attempted crime of negligence
* Knowledge may be sufficient
o Must take some substantial action in furtherance of the crime
* Must go beyond mere preparation
Impossibility defense
o Factual impossibility
* Not a valid defense
o Legal Impossibility
* A valid defense
* When the attempted offense is not illegal, cannot be charged with intent
o Some have abolished this defense, but it still is recognized because it lacks culpability to commit an illegal act.
Defenses
Justifications
- Description
o Conduct considered acceptable and undeserving of punishment
o Once properly asserted, must be disproved beyond a reasonable doubt (depending on jurisdiction)
- Types
o Self defense is a justification if
* The person subjectively believes the use of deadly force is necessary
* 1. To protect himself or others from
* 2. Imminent infliction
o a)Must be in heat of confrontation. [jurisdictional dispute for battered women]
o b)Of death, serious bodily harm, or certain violent felonies
* Some allow self-defense against other felonies, like robbery
o c)By an unlawful aggressor
* Self defense justification not available to initial aggressors
* 3. Belief of necessity of force, imminence, and unlawfulness are objectively reasonable.
o Mistake is okay only if objectively reasonable
* Imperfect self defense may be treated as voluntary manslaughter
* Duress
* May be an excuse for some minor crimes, to avoid “greater evils”
* Not an excuse in murder in some jurisdictions
o May be an excuse for murder in MPC
o Some jurisdictions, it may reduce murder to involuntary manslaughter
Excuses
- Description
o Conduct harmful or undesirable, but excused for lacking extent of blameworthiness required
o Defendant assert by preponderance
- Types (State of mind excuses, mostly, with similar )
o Intoxication
* Voluntary intoxication
* May provide a defense to specific intent, but not general intent crimes
* Involuntary intoxication
* Occurs if substance taken under duress or doesn’t know substance is intoxicating
* Must produce and render substantially incapable of knowing or understanding wrongfulness of conduct and of conforming conduct to the requirements of law
o Insanity
* If legally insane at the time of the crime
* Mental defect must leave a defendant unable to understand what he is doing; OR
* Mental defect leaves a defendant unable to understand his action is wrong.
* Used to not be a defense at all, then moving toward recognizing the defense.
o Mistake of law (two kinds)
* 1. Ignorance of the law
* Is no excuse, with a few exceptions:
o Statutorily expressed exceptions, An administrative regulation not published, or an action in reliance of a statute later determined invalid, in reliance of an official interpretation that was invalid
o If lack of knowledge of the law indicates a lack of culpability that the offense requires
* 2. Mistake as to collateral legal concept
* Treated as a mistake of fact, may negate required culpability
o Such as, committing perjury, said he hadn’t been convicted of a crime before
* Knew it was wrong to state false statement, so not ignorance of the law
* Mistake was to collateral legal concept, that he hadn’t been convicted
- Tests for state of mind conditions
o Traditional M’Naghten Test
* Not know the nature and quality of the act; or not know it was wrong.
o Irresistible-impulse test
* So lacking in volition due to mental defect or illness, couldn’t control actions
o MPC test
* Mental disease/defect render substantial inability to appreciate criminality or conforming conduct
o Product of mental illness test
* Asks whether a person’s action was a product of a mental disease or defect
o Mens rea model
* Adopted by KS and some other jurisdictions
* Evidence of mental disease/defect admissible only if it negates required culpability
o Some reject all definitions and defenses of insanity or intoxication
Nonexculpatory defense
- No bearing on culpability
o Examples
* Statute of limitations, jurisdictional limits
- Once properly asserted, must be disproved beyond a reasonable doubt (depending on jurisdiction)
Sentencing
- Which punishments are cruel and unusual
o 1. Cruel and unusual according to the founders
* Torture
o 2. Punishments contrary to “evolving standards of decency”
* Determined by:
* Objective indicia
o Legislative judgments
o Actual sentencing practices
o Foreign and international law
* Court’s independent judgment
o What has been found unconstitutional
* Mandatory death sentences for particular offenses
- In determining sentencing, they are determined by
o 1. Statutory limits/mandatory minimums
o 2. Statutory guidelines (suggestions)
o 3. Severity of offense
o 4. Offender’s criminal history
Abbreviated Outline (much more usable version here, on Dropbox)
Introduction
Criminal Liability
Elements of Criminal liability
- Most all criminal liability requires concurrence of criminal act and criminal state of mind
- Criminal Act (actus rea)
o A necessary element in all criminal cases
* Acts must be voluntary
* Acts not voluntary (MPC 2.01)
o A) reflex or convulsion
o B) Unconscious or sleep motions
o C) Conduct during hypnosis or resulting from hypnotic suggestion
o D) a bodily movement that otherwise is not a product of the effort or determination of the actor, either conscious or habitual
* Failures to act?
* Generally not criminal, but there are exceptions if a duty is established.
o By statute, contract, special relationship, creation of danger, voluntary rendition of aid
o Why is act necessary?
* Bad thoughts punishable?
* Retributivist would say:
* Utilitarian would say:
o Kitty Genovese Case
* Genovese stabbed and, yelled for help. Stabber ran away, made her way to rear entrance of apartment building. Door was locked, stabber came back and stabbed her some more. Raped, robbed and murdered. Witness called police later.
* Some statutes make it a crime to fail to act. But some observers thought it was a minor quarrel or didn’t realize what was happening. Should it be a crime? Most states say no.
o Barber v. Superior Court (1983)
* Medical doctors charged in a complaint with murder and conspiracy to commit murder. Dead guy underwent heart surgery. Was successfully completed but had cardiac arrest and was placed on life support. Was in a coma and unlikely to recover, with severe brain damage. Could breathe independently, but required feeding tubes, which were removed, and died.
* Was a matter of motive. There was no malice. No criminal liability unless there is a duty to act. There was no duty owed to a coma patient to keep them alive on life support indefinitely
* Discussion
* Withdrawal of respirator lacks direct causal relationship between act and resulting death.
* Act/Omission distinction?
o Is more of an omission than an act. Refusing to provide continuing care.
* Other issues about the medical context?
o Is not what was intended by the statute. Let the legislature determine what to do here.
o No duty to sustain life sustaining treatment after it has become futile in the opinions of qualified medical professionals. If the family disagrees, or if patient disagrees, may be in the scope of the doctor responsibility to continue treatment.
o Can’t pay bills? Violation of duty to pull the plug because of that.
* Role of premeditation: mitigating or contributing factor?
o Mitigating. To show careful consideration and consult shows sensitivity to the interests of the patient and their family.
* Euthanasia:
o Passive E. = withholding of life sustaining treatment. This is Barber case, and is legally okay but with some limits.
o Active E. = Murder even with consent. Not in all countries though, but in the US.
o Physician-assisted suicide = doc helps patient die but patient performs the act themselves. Legal in three states.
o Commonwealth v. Raposo (1992)
* Court found guy guilty to rape and indecent assault and battery on a mentally retarded person.
* Parent did not act to prevent it, although she knew of the criminal intent.
o Duty may exist for parent to act, though, but it usually requires wanton or reckless neglect, or malice.
o There was no malice, and it wasn’t wanton or reckless, so no crime for parent.
* Discussion
* Ms. Raposo couldn’t be guilty of the act, but can be guilty through failure to act, aka accomplice liability? Statute says whomever aids in commission of felony is guilty of the offense itself. “Aid” was not defined here, but in the backdrop of the common law. Generally, it requires an act with motive to help commit the offense.
o Knowledge is insufficient for accomplice liability. However, some exceptions in common law for serious crimes. Court doesn’t discuss this, however.
o What constitutes an act was left to centuries of common law. A parent’s omission will satisfy act requirement in common law for manslaughter, in prior common law. May therefore hold in accomplice liability. There is a special relationship, for sure.
* Court says act requirement is not met, however, as it wasn’t wanton or reckless. Personally, I totally disagree and think the decision is bullshit.
* Policy arguments
o Disruption of family unit? Not convincing, as assault is pretty damn destabilizing itself.
o Destabilizing environment with two family members in jail? May be situations where this is a good argument. But this isn’t true in every case, depending on the mother’s condition. But often, women get in relationships with abusers after leaving abusers. This may not solve the problem. Also depends on the condition of the foster system in a state. May be a positive option for a child. All in consideration, it’s not a convincing reason to preclude criminal punishment, although it may be a consideration in punishment or degree of liability.
o Disproportionately effect women? If she feared for her life, perhaps her failure to act was justified and criminal liability shouldn’t exist. However, that isn’t a case here, or a reason for denying such liability in all cases. Maybe in some circumstance, however.
o Ashcroft v. Free Speech Coalition (2002)
* Child Pornography Act of 1996 violates the 1st Amendment freedom of speech by criminalizing possession or distribution of non-obscene images of fictitious children engaged in sexually explicit conduct. Was no criminal action, just bad thoughts, which cannot be criminalized.
o Miller v. California (1973)
* Holds that “obscenity” is not protected by the First Amendment.
- Criminal State of Mind (mens rea)
o Aka Intent, aka culpability
* Very few crimes do not require a criminal state of mind
* Intent, fault, recklessness
o Culpability is relative
* Intentional – malicious – specifically intended – willful – purposeful – unreasonable – wanton
* Four kinds in (MPC 2.02)
* Purposely
o If conscious objective is to bring about a specific result that does occur.
* Knowingly
o If B is practically certain that B’s conduct is x, then x is done knowingly.
* Practical certainty of result, not mere awareness of risk.
* However, it may include willful blindness
* Not practically certain, but suspects and avoids seeking knowledge that is easy to obtain. Doesn’t apply to homicide.
* Recklessly
o Subjective - Actor must appreciate unjustifiable risk
* Is negligent without awareness
* But if there is clear constructive awareness, may still be reckless
o Objective - Gross deviation from standard of care to create the unjustifiable risk
* Negligently
o Reckless but without the appreciation of unjustifiable risk
o IS a gross deviation from standard of care to create unjustifiable risk.
* Drowning Brat hypo
* Fail to jump into pond with drowning kid. The one who pushed didn’t know it was so deep, and couldn’t have known. Not liable. The Babysitter and friend knowingly killed, after they knew that he was drowning and could have done something. Duty for babysitter, maybe not friend. Is largely an omission though.
* Jacob Vehicle Hypo
* Running over wife was knowing and purposeful, infant was not purposeful but almost certainly knowingly. If he didn’t see the infant, not knowing, purposefully, or recklessly. Yes negligently, however, if it was obvious (but not recognized).
* How to determine the necessary level of culpability required?
* Statutes are often ambiguous
o Methods for resolving ambiguities?
* Consult text, legislative history, statutory purpose, caselaw, statutory presumptions, cannons of construction, rule of lenity, and so on.
o General MPC requirement
* Culpability required unless otherwise provided. If a culpability term is used, it generally will apply to all elements of the statute.
o Culpability vs Strict Liability
* Morissette v. United States (1952)
* Morissette took discarded US property he thought was abandoned but was then charged for theft. Jury instructions disallowed consideration of intent. This may be acceptable if the law says so, but the question was not properly framed to the jury so it was reversed.
* Strict liability is the exception rather than the rule in criminal law.
* Discussion
* Morissette says not guilty because the statute implies attendant circumstance that the property belongs to another, and that the taker has knowledge that the property belongs to another. Jury instructions were wrong because it disregarded the knowledge element, according to SCOTUS.
* Why?
o Because mistakes happen and it would be ridiculous to make mistaken stealing a criminal offense.
* Strict liability cases tend to
* Have light penalties, prevent possible harm, punish omission, regulate business.
o Mistakes of fact
* In many jurisdictions, this is only a defense if it negates the state of mind required with respect to a material element of the offense.
o United States v. Feola (1975)
* Feola tried to sell drugs to undercover agents. Feola and others planned to swindle the buyers, and attacked the officers, and were arrested. Is Feola and others criminally liable for assaulting officers when they did not know they were officers? Yes liable, despite not knowing, because officers need protection under the law.
* Discussion
* Elements of assault of a federal officer?
o It’s unquestionably assault – threatened the victim with force, apparently ability to inflict it. Also no question that he was a federal officer. But is culpability required for the federal officer part?
o Court says no. Doesn’t matter if he knew it or not. Still liable, it’s a strict liability in this case.
* Normally, culpability for crimes with major punishments usually require culpability. But assault of a federal officer has a significantly higher punishment than on a non-federal officer. (Morissette)
* Hypo
o Highway rapist, dressing up like police. If a lady thinks a cop is this rapist, would she be guilty for pointing a gun at a uniformed police officer she thinks was the rapist? Not generally, because it requires culpability. But the KS statute doesn’t require culpability for uniformed officers and no culpability is required. Guilty.
* Might be a necessity exception for this hypo, but generally not.
o Commonwealth v. Sherry (1982)
* Rape case. Party, 3 defendants. D claims didn’t use physical force or threats of physical injury. But D did drag her there, playfully, and make her do things against her will. Judge said it doesn’t need to be overt threats, so long as they are reasonable. Lots of definition about force or threat of force. Mistake of fact was the reality of the threat. It was sufficient, takes into consideration all the facts, subjective standards, blah blah. Guilty.
* Discussion
* Proposed jury instruction, all that is needed is that victim refused consent. Strict liability in regards to the consent element.
* Text of statute: “Whoever has sexual intercourse or unnatural sexual intercourse with a person and compels such person to submit by force and against his will, or compels such person to submit by threat of bodily injury, shall be punished by imprisonment in the state prison for not more than twenty years.”
o Strict liability or does it require culpability? Statute does not explicitly say.
* Under Morissette, it should not be strict liability.
o Text of recodified KSA
* No culpability required is explicit in the statute.
o Court talks about caselaw, and mistakes of fact. Caselaw in other jurisdictions
* Court says that knowledge isn’t required for the lack of consent, and it’s a crime that has been around for a long, long time. Trend has been toward a standard of negligence – “reason to know” Virtually no case required actual knowledge in cases of rape.
* Why not strict liability?
o The severity of the offense to the victim. Force element ensures lack of consent, which is a common part of sexual assaults. Physical invasions require, in other circumstances, affirmative indications of consent.
o Argument in favor of/against knowledge requirement?
* Given the requirement of force, the requirement isn’t really necessary. But in Kansas caselaw,
* Hypo:
* MBEQ 29: Took park signs near rubbish heap to decorate room. Violated statute “any person who appropriates to his own use property owned by the state shall be guilty of a crime, and shall be punished by a fine of not more than 1000 or by imprisonment for not more than five years, or by both such fine and imprisonment.”
o Answer?
* Case law would require knowledge. I’m going with D.
o General versus Specific Intent
* Some crimes require specific intent, others require general intent
* Crimes that are done while intoxicated, for example, may negate intent, but only for crimes that require specific intent. Not general intent.
o Example: specific intent of premeditation in murder, intoxication may provide that as some evidence contradictory to premeditation. But intent to kill is a general intent, not specific, and so it doesn’t matter if the accused was drunk.
o Burglary requires specific intent. May be defensible.
o Attempt to commit a crime requires a specific intent
o Accomplice liability requires specific intent of purpose to help commit an offense.
* A different approach – Kansas
* KSA: all crimes defined in this code in which the mental culpability requirement is expressed as ‘intentionally’ or ‘with intent’ are specific intent crimes.
* Generally, if not universally, general offenses require only recklessness or negligence
* State v. Farris (1975)
* Kansas case, drunk guy, domestic dispute with wife, started shooting up the trailer. Police came, Farris pointed gun at police, Farris was shot in the face. Issue: is it aggravated assault because Farris was drunk and may not have intended to point his gun at a police officer? Yes. It was voluntary intoxicatedness.
* Discussion
o Level of culpability required for law enforcement element of the offense?
* Is not specified by the legislature. Court clearly has held that knowledge is not required that the gun is pointed at a law enforcement officer. Only requires that the law enforcement officer be properly identified, which he is. After that, it’s strict liability with respect to that element
o Hypothetical
* That it does require knowledge with respect to law enforcement element.
* Would intoxication provide a defense?
o Remember
* General intent = culpability specific to act or attendant circumstance
o Overview of Culpability discussion
* Strict liability is generally the exception to the rule on criminal liability
* Subjective culpability generally required for those elements that make an offense wrong
* How to determine liability
* Morrissette factors
o Severity of punishment, greater punishment, less strict liability standard
- Other Situational elements of criminal liability
o Absence of a defense of justification or excuse
o Causation between act and resulting crime
- In-Class Discussion on Criminal Liability
o Examples & Hypos
* Burglary is breaking and entering another’s dwelling with the intent to commit a felony therein.
* Act: breaking and entering
* Attendant circumstance: must be another’s dwelling
* Culpability: intent
* Result: N/A
Limitations on Criminal Liability
- Individual liberty and the right to privacy
o “Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct.” [Lawrence v. Texas (2003)]
* Scalia dissents, claiming that government has a role in regulating such things, otherwise, other laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality and obscenity are in question.
- Paternalism
o Some debate about enforcing laws in matters of health and morals for legally consenting adults
- Necessity Killing
o Defense Defined:
* [MPC 3.02: Justification Generally: Choice of Evils]
* (1) Conduct that the actor believes to be necessary to avoid a harm or evil to himself or to another is justifiable, provided that:
o (a) the harm or evil sought to be avoided by such conduct is greater than that sought to be prevented by the law defining the offense charged; and
o (b) neither the Code nor other law defining the offense provides exceptions or defenses dealing with the specific situation involved; and
o (c) a legislative purpose to exclude the justification claimed does not otherwise plainly appear
* (2) When the actor was reckless or negligent in bringing about the situation requiring a choice of harms or evils or in appraising the necessity for his conduct, the justification afforded by this Section is unavailable in a prosecution for any offense for which recklessness or negligence, as the case may be, suffice to established culpability.
* [MPC 3.02, Comment at 9.10]
* Under this defense, property may be destroyed to prevent the spread of fire. Speed limit violated in pursuit of a suspected criminal, ambulance may pass a traffic light, etc.
* It would be particularly unfortunate to exclude homicidal conduct from the scope of the defense. For, recognizing that the sanctity of life has a supreme place in the hierarchy of values, it is nonetheless true that conduct resulting in taking life may promote the very value sought to protected by the law of homicide… Although the view is not universally held that it is ethically preferable to take one innocent life than to have many lives lost, most persons probably think a net saving of lives is ethically warranted if the choice among lives to be saved is not unfair. Certainly the law should permit such a choice.
* [KSA 21-5206]
* (1) A person is not guilty of a crime other than murder or voluntary manslaughter by reason of conduct which he performs under the compulsion or threat of imminent infliction of death or great bodily harm, if he reasonably believes that death or great bodily harm will be inflicted upon him or upon his spouse, parent, child, brother or sister if he does not perform such conduct
* (2) The defense provided by this section is not available to one who willfully or wantonly places himself in a situation in which it is probable that he will be subjected to compulsion or threat.
o Cases
* [The Queen v. Dudley and Stephens (1884)]
* Murder case where a boat was in a storm, had no water or food, killed one against his will on the boat so the others would have a greater chance of surviving, and ate him. Still found guilty.
* Class discussion:
o Facts
* Captain’s neglect may have been responsible for the sinking of the ship, but it was uncertain.
* If they would have waited for Parker to die, eating him wouldn’t have been useful for the survivors.
* Drawing of lots was refused, and instead just killed the weakest one.
o Legal requirements for murder
* Act, culpability/intent, victim, and link between other factors. All of these are established.
o Defense?
* Necessity. Is that sufficient? Jury said they didn’t know, so here is a finding of facts (special verdict). Question goes to the highest British court, and they say that it is not a defense.
* Punishment, however, is commuted by the Queen and they only have time served.
o This is a common law case, no cites for statutes. Why abolish common law and have legislatures decide criminalization?
* Uniformity, notice, legislative bodies subject democratic process,
* But courts have less political pressure, judicial discretion good, less irrational punishment based on politics, courts must justify actions whereas legislatures don’t, so more rational basis for rulings
* [In re: A (2001)]
* Doctors did medical procedure to separate conjoined twins, an operation known to kill one deformed child to save the other, otherwise normal one. Parents denied consent, but doctors were given judicial allowance to do it. Parents appeal what is essentially a ‘necessity killing’ order approved by a judge. Was allowed by the court and the appeal was denied because the primary intent was not to kill one, but to save a life.
* Dick Cheney 9/11 Case
* Vertical Limit situation
- Applying Perspectives on judicial philosophies
o Utilitarian view
* Better that one die than all die, such as in all of these necessity killings cases
* Argument against is slippery slope argument, which means it could legitimize wrong killing and create an atmosphere of acceptable murder
o Retributivist view
* To right a wrong, if wrongs have been done. Did these people do anything wrong? Not really, if you consider self-defense or consent. Omissions and failures to act are less wrong from a retributivist standpoint, but still may be wrong. In moral dilemmas, premeditation may be a mitigating circumstance rather than aggravating.
Effects of Criminalization
- Benefits
o Not easy to calculate benefits
o Need to quantify the behavioral impact of a criminalization
* Depends on the nature and definition of the prohibited conduct
o Deterrent effect of any particular prohibition depends on probability of apprehension and conviction, and the magnitude of the anticipated penalty
- Costs
o Costs depend on level of enforcement and characteristics of the penalties imposed on violators
* Deterrence of socially valuable behavior
* Enforcement expenditures
* Effects on the individual
* Criminogenic effects
* Costs of under-enforcement
* Crime tariff
Sources of Criminal Law
Common Law
- Principals and doctrines of criminal liability originally developed by British judges and later by American judges, in the process of deciding particular cases
o Many state and federal criminal statutes incorporate common law principals.
o Includes all prior case law
Kansas/State Law
- Criminal law in the US is dominated by state law
o Over 90% of offenders who are incarcerated are in state or local prisons/jails rather than federal prisons
o Subject to constitutional limits, Kansas is free to define for itself its own criminal offenses, defenses, and punishments
Majority Law
- Principals applicable in a majority of modern American jurisdictions.
o Another way of saying that in a majority of modern American states, x is treated in y way.
The Model Penal Code
- A draft model code prepared under the American Law Institute by distinguished jurists, criminal law scholars, prosecutors, and defense attorneys
o No state has adopted the Code in its entirety, but many states have adopted one or more of the Code’s provisions, with or without modifications.
o May be referred to in cases of ambiguity
Questions
- A client comes to you and wants to know whether a given action – say holding a bingo game in which admission is charged and monetary prizes awarded --constitutes a criminal offense. Where would look to find the answer? What are the sources of law you would consult?
o Statutes, both state and federal.
* Because they have concurrent authority
* Model Penal Code a persuasive authority in cases of ambiguity, or a source of interpretation
o Prior case law/common law sources
* KSA 21-5103: No conduct constitutes a crime.. unless it is made criminal in this code…
* Makes common law crimes invalid, but it still may allow for using it in interpreting existing codes’ meaning
Interpreting Sources of Law – Statutory Interpretation
Sources of Statutory Meaning
- General models of statutory interpretation
o Traditional
* Look to text first, and then secondary sources in cases of ambiguity
o Textualism
* Look at text first, cannons second for interpretation. Follow literal text unless it leads to an absurd result.
o Legal process
* Judicial discretion, emphasis on the perceived purpose of the statute.
- The Legislature
o Criminalization decisions are entrusted to legislatures
* Are thought to be in the best position to decide when the state’s interest in social control should be vindicated by the drastic forms of intervention on individual liberty and privacy that criminal punishment entails.
- Text
o Must consider carefully the text, first and foremost
o If ambiguous, or susceptible of more than one reasonable interpretation, a court may consider other sources then.
- Legislative History
o Records of the committee process
* History of versions, debates, etc. that may help resolve ambiguities
o Disagreement as to the usefulness of such records in interpretation
* Scalia in Zedner v. U.S. (2006)
* Against: history shifts and not made by a single person. Finished product is what matters.
* Stevens in One Chicago v. Midwest Bank & Trust Co. (1996)
* For: May be useful in some circumstances to give insights to what the finished product is.
- Cannons of Construction
o Accepted maxims about how statutes are to be construed.
* Is highly situational and may require reading the statute in a broader context. Also, no sure way to tell which cannons/interpretations to rely on. [Llewellyn]
o Rules of lenity
* Ambiguities resolved in favor of the aggrieved, not the government, as it is the government who makes the statute.
- Ejusdem generis
o When a statute contains a list and a general term, the general term encompasses only those things on list
Questions
- A statute in the jurisdiction declares: “It shall be a misdemeanor to operate a motor vehicle on a walkway through a public park.” Assume for a moment that there are no decided cases of relevance.
o 1. On what basis would you conclude that a Ford Explorer is a “motor vehicle” within the meaning of this ordinance?
* Policy, public safely. While walking, wouldn’t want to have a Ford Explorer on the walkway.
* Plain meaning. “Textualist” approach. It is a vehicle and it has a motor.
* Problems with Plain meaning approach exemplified by 2 and 3.
* Defense: follow plain meaning unless it results in absurd result.
o 2. How would you go about deciding whether an electric golfcart is a “motor vehicle” within the meaning of the statutory prohibition? What sources of meaning would you consult?
* Less of a public policy argument. Far less dangerous. Purpose could be to preserve atmosphere, prevent noise. That may exclude golf cart from the statute.
* Legislative history may provide insights. Might not.
* Text of the statute, or the preamble which may declare the purposes of the law for context.
* Prior caselaw and accepted interpretations or purposes for the statute.
* Rule of lenity would say that the golf cart is not a motor vehicle
* Generally not adopted with criminal statutes, but it depends on prior caselaw and personal judicial opinions.
o 3. Now assume that the pertinent state supreme court had held that an electric wheelchair is not a “motor vehicle.” Is this case analogous, controlling, or distinguishable? Do you need to know more about the case? If so, what?
* No. This would be an absurd result, even to a Textualist.
* It would discriminate against disabled persons.
Basic Principles of Criminal Liability
The Basics Overview
- Central elements of criminal liability
-
Purposes of Criminal Punishment
Philosophical Underpinnings and Reasons for Criminal Punishment
Why are Philosophies Important Here?
- Which wrongs should be criminalized, what punishments should be incurred, how extreme, etc.
o All of this depends on philosophical underpinnings or reasons for the law
Utilitarianism
- Generally
o Looks at the consequences objectively from criminal punishments
- John Stewart Mill
o Classic proposition that there are categorical limits on the purposes for which the governmental properly may interfere with the individual, and that enforcement of the prevailing moral code is not a sufficient reason for criminalization.
* Criticism: Complete moral tolerance is not possible, may criminalize and impose out of necessity
- Criminal punishment is justified if it is better than alternatives at producing future happiness or utility
o Potential benefits are:
* Specific deterrence
* Punishment deters the punished from future criminal acts
* General deterrence
* Punishment deters others who are similarly situated from future criminal acts
* Incapacitation
* Effect of imprisonment or the death penalty of removing the offender from society to prevent future criminal acts
* Rehabilitation
* Reforming the offender to prevent future offenses.
- Example Questions
o Examining the death penalty?
* Compares benefits such as costs of death penalty with the benefits
o Negligent infliction of injury?
* Utilitarian would compare costs and benefits of criminalizing versus having it as a sole civil
* Would increase deterrence for negligent folks – make them pay attention; Could incapacitate chronic negligent actors from future events; rehabilitation, maybe?
* But it could overburden courts; expenses of incarceration; pretty much everyone would be a criminal
* From a utilitarian perspective, costs would be greater and therefore it should not be criminalized
Retributivism
- Purpose of criminal punishment under this school of thought
o Justice is independent of future consequences
o Criminal punishment is a matter of just desert rather than maximizing benefits over costs
- Sources
o Immanuel Kant’s philosophy
- Calculates criminal punishment by:
o Gravity of the wrong
* Degree that their actions infringe on a victim’s autonomy
* Degree of offender’s responsibility for actual or threatened infringement
o Does not consider past offenses, as the gravity of a wrong is independent for rational justice
- Example Questions
o Negligent infliction of injury?
* May be severe infringement upon another’s autonomy; person may be culpable for injury with some degree of responsibility
* But, culpability isn’t sufficient to conclude that justice requires punishment. Negligence requires compensation but not imprisonment
Implications - Comparison
- Often, both philosophies result in the same conclusions
o Punishments for wrongdoings, more punishments for more wrongdoings
* AKA Proportionality
- Differences
o Role of publicity is greater for utilitarian than retributivist
o Perhaps greater punishments for utilitarian if crime isn’t so bad but for a need of deterrence effect
o Relevance of prior convictions; role of publicity and punishment; punishment of the innocent; relevance of non-detection rate
Example: The War on Drugs
- Legalizing Drugs Makes Matters Worse
o If Legalized
* Drug use may increase
* Prices for drugs would be lower
* Quality price would decrease
* Dangerous additives would be lesser or eliminated
* Search price would be zero
* Eliminate crime and arrest threats
* Less Crime
- The War Against Drugs is Lost
o War on drugs costs a lot of money and has resulted in prison overcrowding
o Individual liberty – victimless to use drugs on oneself
o Marijuana, especially, has common usage and virtually no harm or negative side effects on life or job
* And so why alcohol and tobacco legal, which are worse?
o Less people would die, probably, with regulation
o Substantially lower costs if legalized
o Lower crime, etc.
- Philosophical perspectives on the war on drugs
o Retributive Perspective
* Premised on rational autonomy of each individual. Would take the libertarian argument in arguing for legalization of drugs.
o Utilitarian Perspective
* Most of the arguments from above are Utilitarian for legalization
* A) reduced usage
* B) reduced crime
* C) saving lives
* D) financial costs
* E) systemic costs
o Comparative Perspective
* Other countries have decriminalized marijuana, or made drug laws different and focused on rehabilitation rather than criminal punishments.
* With pretty good efficacy, too.
Crimes
Homicide
- There are several different kinds of homicide
o Categories of offenses and levels of severity
* Purpose?
* Uniformity of application of the law
o Multiple offenses limits judicial discretion
* Allows Legislature to define relevancy of aggravating/mitigating circumstances
o Democracy!
- Homicide at Common Law
o Murder
* More serious
* Four categories
* Intentional (express malice)
* Depraved heart (implied malice)
* Felony Murder (implied malice)
o Killing done, intentional or not, while done in the commission of a common-law felony
* Intent to do serious bodily harm (implied malice
o Manslaughter
* Less serious
* Three kinds
o Heat of passion
o Reckless
o Unlawful act
o Purpose of distinction
* To determine if homicides deserved the death penalty
* Modern law accepts and modifies this distinction
* Murder
o Capital
* 1st and aggravating circumstances
* Murders for which the death penalty is a possible punishment
o First-degree
* Intent to kill with premeditation
* Felony murder
o Second-degree
* Intent without premeditation
* Depraved heart
* Intent to do serious bodily harm
* Manslaughter
o Voluntary
* Head of passion
* Imperfect self-defense
o Involuntary
* Reckless killings
* Unlawful act killings
Capital Murder
- A subcategory of first degree murder
o Often includes premeditated requirement, but not in all states
- Principles of Guided Discretion and Mercy
o Ferman: Court said must specify aggravating and mitigating circumstances, in balance
* Issue regarding cruel and unusual punishments (8th amendment)
* Must be for the worst ones
o Kansas?
* Premeditated 1st degree murder with one of seven aggravating circumstances.
* Must be found not only guilty of capital murder, but also hold another jury determination for sentencing punishment.
* Must find that aggravating circumstance(s) aren’t outweighed by any mitigating circumstance(s)
* Mitigating factors?
* Often, a showing of remorse is one of the most powerful factors
* Defendant’s background, a no history of violence
Death Penalty and Alternatives
- About the 8th amendment
o Cruel and Unusual punishments
* Some believe that all death penalties are cruel and unusual
* Others, obviously, believe that it is appropriate
* Textualist may find that because it says “may not deprive of life… without due process of law” implies that death penalty is not inherently cruel and unusual
o Trop v. Dulles (1958): evolving standards of decency that mark the progress of maturing society.
* May determine contemporary standards by legislative judgments, jury and prosecutorial decisions, international practice, Court’s own view of the purposes of punishment.
- Kansas v. Marsh (2006)
o Aggregating vs. mitigating case, determine that death penalty should be imposed.
* Murdered woman and her infant. Was premeditated and pretty damn bad.
o Discusses death penalty, which is constitutional, so the court says here.
* Court must 1) rationally narrow the class of death eligible defendants and 2) permit a jury to render a reasoned, individualized sentencing determination based on the death-eligible defendant’s record, personal characteristics, and the circumstances of his crime.
o Discussion:
* To be guilty, must be pre meditated 1st degree murder, and find at least 1 of 7 aggravating factors.
* Issue here has to do with the weighing formula: if aggravating circumstances outweigh mitigating circumstances, rather than if they are in balance. – Ties go to death penalty unconstitutional?
* Principle of guided discretion not violated, jury had to find presence of specified circumstances
* Mercy not violated, jury free consider any and all mitigating circumstances
* Dissent says that no. Based on DP being reserved for “worst of the worst,” the equal pose provision frustrates this objective.
- People v. Anderson (1968)
o Murder of 10 year old. Found guilty for 1st degree murder, and sentenced to death.
o Court determined that there needed to be more evidence for the state of mind determination for first degree murder. Conviction was reduced to 2nd degree. No evidence of premeditation.
o Discussion
* Refutable evidence in terms of purpose and knowledge of killing in his act.
* Premeditation?
* California says that it means: 1. Evidence of planning, 2. Prior motive to kill, 3. Method of killing suggests design.
* Is the dispassionate, predesigned, deliberate killing of another person. Contrast with: unconsidered, impulsive, hastily executed.
- State v. Henson (1977)
o Appeal of 1st amendment conviction by jury for premeditated murder
o Lady found murdered, found bloody palm print, identified the D
* Sexual assault, stabbed in the heart repeatedly, had threatened before with stabbing,
* D claimed he just found her there, stabbed, and ran away scared
o Use of a deadly weapon insufficient by itself to establish premeditation, but conduct before and after, nature of the attack, threats and visits to her house, etc. showed that there is evidence of circumstance sufficient to draw an inference of premeditation.
- Policy Arguments
o Pro
* Prevention
o Against
* Mistake
* Racial, gender and socio-economic discrimination
* Cost
* Could be mitigated with streamlining the process. Maybe not the best argument, considering that it is based on utilitarian considerations.
Premeditation
- Is an aggravator generally
o May be mitigating factor?
* Only the absence of it, most always. But of course it depends on the circumstance
- State v. Hensen
o Proof of murder
* Nature of weapon used, lack of provocation, D’s conduct before and after killing, threats made by D before and during killing, dealing of lethal blows after deceased was rendered helpless
o Do all necessarily show prior planning?
* Use of deadly weapon?
* Depends on if he normally carries the weapon, or made a specific choice
* conduct after killing?
* Summary
- Should premeditation be defined narrowly
o Does limit jury discretion, etc.
* But could eliminate too much…
o Model of death penalty statutes?
* Could take explicit account of circumstance, but maybe be too complex.
* Could be specifically formulated, with premeditation as not always aggravating
* Consistent with method of deciding whether to impose death, but requires legislative action
Heat of Passion Manslaughter
- Two models
o Common law
* Strict (like in KS)
* Expanded (like in CA)
o Model Penal Code
* A killing committed while under extreme emotional or mental disturbance
* Elements
* 1. Heat of passion – jealousy, anger, etc emotional state that dethrones reason (subjective)
* 2. Provoked (subjective)
* 3. Provocation adequate (objective)
o if provocation sufficient for an ordinary person to lose control
* some are strict pigeonhole
* Pigeonhole?
o under common law
* Must come from victim and directed at D or close family member
* Provocation must be: Adultery, assault, mutual combat, unlawful arrest
* Inadequate includes: mere words, invasion of property rights
* informational words
* told information that something like adultery occurred
* jury decided standard what is sufficient to cause a loss of self control
* 4. D did not cool off after provocation (subjective)
* 5. Reasonable person wouldn’t have cooled (objective)
Barry case
- Facts
o Lady was with guy, but married, husband got mad when she told him
o He strangled her, left, came back, another argument, and he killed her
- Issue
o If evidence sufficient to allow heat of passion voluntary manslaughter?
- Discussion
o Premeditation
* Under common law pigeonhole approach?
* Evidence of planning, motive, exacting method of killing?
o Here, not really. He returned and said he was going to kill her, and he had strangled her before. Motive was there.
* Evidence of passion/adequate provocation?
o There was rage, told him of adultery, which is a pigeonhole thing under informational words doctrine (but not strict common law that requires seeing it)
o Under MPC reasonable explanation or excuse, perhaps yes.
o Cooling period?
* Is a question for the jury here, and so the lower court erred on not instructing the jury.
* Provocation’s cooling period may be extended if the provocation extended over a period of time. Such as an abused woman murdering her husband in his sleep, while not being provoked at that point, she had a very big cooling period considering the length and severity of the provocation.
State v. Guebara
- Facts
o D going through divorce, pressing assault and battery charges. Day before murder, tells sheriff that he is going to kill her. Next day, wife is coming up to him to pick up kids. He shoots her.
o Was convicted of 1st degree premeditated murder
- Issue
o Should have been instructed on heat of passion?
- Discussion
o Premeditation
* Evidence of it?
* Probably. Told someone he was planning to kill her. Prior motive.
* What about drug use?
* Requires specific intent for premeditation. Intent to kill may be treated as specific. And so, it may be evidence of lack of specific intent.
o Provocation
* Assault charges, the divorce, etc.
* Not adequate under common law standards. False arrest maybe, but not applicable.
* Maybe under MPC, as it is any extreme mental disturbance.
- Holding
o No. Not sufficient evidence to satisfy heat of passion, so the court is affirmed.
- Sexism in heat of passion
o Lady killing sleeping husband. Reasonable to consider?
* Difficult to show that she was in the throes of passion
o It’s understandable for abuse, maybe not for adultery
* With MPC, what wouldn’t go to the jury? Too much, perhaps.
Unintentional homicides
- Grading of homicides in order of severity
o First degree murder
o Second degree murder
o Involuntary manslaughter
o Negligent homicide
o Unintentional killings, not homicide
- State v. Davis
o Kid caught in car door, guy drives off, and kid dies
- Commonwealth v. Malone
o Kids playing Russian roulette, One shoots the other, victim dies, convicted of depraved heart murder
o Appellate court says it was, or that evidence was sufficient for that finding.
o Depraved heart murder:
* Awareness and indifference to high or unjustified risk of causing death. Not necessarily intentional killing.
* Here, he didn’t mean/intend/have motive to kill the other kid.
* Difference of DHM vs RIM:
o Matter of degree:
* The more unjustifiable the risk, the stronger case for DHM
* There was no justification for the risk of death.
- United States v. Fleming
o Voluntary intoxication, hit and killed someone, found guilty of 1st degree depraved heart murder
o Is VI an excuse to DHM or RIVM?
* No. Not a consideration here.
o General v. Specific intent:
* DHM requires indifference of risk. Fits definition of general intent. No other conditions required for it.
- Williams case
o Departure from ordinary standard of care and knowledge of risks…
- Why has KS legislature denied to enact negligent homicide offense?
o Prison overcrowding, no culpability to justify imprisonment
- Harrison case
o Left kid in car, died.
Felony Murder Rule
- Things that it may do, raise 2nd degree to 1st degree murder
o Accidental killings
* Done in the commission of a felony
o Killings committed by co-felons
* If working together to commit a felony, and the other felon kills, both may be responsible
o Killings by victims, police officers resisting the felony
o Intentional but unpremeditated killings
* Murder and rob a person, unpremeditated
- Felonies
o At common law
* Rape, sodomy, robbery, burglary, arson, mayhem, larceny
o Modern limits
* There are too many felonies to list, but they are generally limited by
* Dangerous felonies
o Two approaches to determine if they are dangerous:
* 1. Consider felony as abstract type, if elements tend to pose heightened risk to human life.
* Robbery, requires use of threat or use of force is a good candidate for calling the offense potentially violent
* Possession of marijuana, a poor candidate
* 2. Consider the facts, if they are dangerous
* Killings that do not merge with the predicating felony
o Merger doctrine: when underlying felony is insufficiently distinct from killing, it merges with the killing. Two approaches of determining distinctness:
* 1. Consult mechanical rules
* 1. Felony murder may not be based on lesser homicide of that same victim.
* 2. Felony murder may not be based on aggravated battery/assault of that same victim.
* 3. Felony murder may be based upon rape, robbery, arson, kidnapping, or burglary even involving that same victim.
* 2. Consult underlying rationale where mechanical rules don’t apply
* A. Need to preserve integrity of lesser homicide offenses
* B. Legislative has taken into account the danger to human life in setting the felony’s penalty
* Is proximate cause between murder and felony
* Only those in the course of doing another felony
- Aaron
o Requires punishment proportional to culpability
- Mitchell
o Most courts use particular facts, not the abstract approach
* Need more facts.
- Robertson
o Wantonly, aware of, consciously disregards substantial and unjustifiable risk. Risk is gross deviation of standard of conduct that a reasonable person would observe. Person who creates a risk is unaware by voluntary intoxication acts wantonly with respect thereto.
* In Phillips, court upholds wanton, where D shot into a car and dude shot back, killing passenger in D’s car.
* Other provisions include “may cause risk by conduct” regardless of direct causality
- Sanders
o Aware of the risk.
o Jury found that Sanders acted wantonly because he knew that gun accident may happen.
* Must be some causal relationship between type of risk and harm.
- Lofthouse
o Reckless action in response to the death because aware that user would probably die of AIDS. Drug needle sharing. Wanton? Superseding act? Overdose?
* It’s a test of reasonable foreseeability, and that intervening causes are superseding.
- Garcia
o Gross medical malpractice a superseding and intervening cause?
* But for, result, all that stuff. It’s just an issue of proximate cause, with intervening medical malpractice.
* Jury would determine if malpractice was reasonably foreseeable for that.
o Court’s test:
* “Relief from criminal responsibility for a death is whether the death can be attributed solely to the negligent medical treatment.”
* That’s a little extreme and tort law should not be the same principals of liability as criminal law.
Felony Murder, In furtherance of
- Accidental discharge while commissioning
o Sophophone and Bryant cases for tomorrow
- Sophophone
o Aggravated burglary occurred
* Dwelling, with intent to steal, etc.
* Is a ‘dangerous’ felony
- Felony murder artichoke
o 1. What is predicate felony? Is D guilty of that felony?
o 2. Is the felony a dangerous one?
o 3. Does killing merge?
* A) mechanical rules
* B) Rationale
o 4. Cause in fact and proximate cause?
o 5. In furtherance of?
* Time frame
* Agency theory
* May not apply if death of a co-felon
* May want cites to significant cases…
- Unlawful act involuntary manslaughter
o Killing that
- Makin case
o Relationship between Reckless involuntary manslaughter and vehicular homicide?
* Separate offenses with different levels of culpability
* Recklessness vs negligence requirement
Accomplice liability
- Guilt as accomplice
o Giving permission versus giving permission.
* Was Godfather’s act an act of killing?
* Act of giving blessing, causation
* Had the intervening cause, but it was readily foreseeable
o Purpose or function of accomplice liability
* Didn’t commit, or cause result, but did the thing
- Components
o Act
* Must have committed a facilitating act.
* Discussion:
* Encouraging words are sufficient which may encourage principal
* Need not be a but for cause of the consequence
o Only that the act be made easier or facilitated in some way
* Attempts to aid (failed attempts)
* Common law, no, no effect. Is not liable.
* Under MPC, would be guilty because he has the intent to facilitate
o Culpability
* Purpose to facilitate the offense’s commission.
* Discussion:
* Requires purpose in facilitation for culpability.
*
* General rule: knowledge insufficient
o Serious crime exception
o Guilty principal
* Must be a guilty principal who actually commits the offense
* Fairly straightforward.
- State v. Gladstone
o Undercover cop, marijuana sale from Gladstone
o Gave him another dude’s name, Cop bought from Kent, Gladstone charged as accomplice
- Moon
o Two drivers, street race.
o Abbott runs into a vehicle, kills someone
* Moon charged with accomplish liability
* Act
o Of drag racing, was an active participant.
* Causation
o Required two to have a race, did help cause the death.
* Culpability
o Was purposeful
* Not Principal
o Did not actually hit the victim.
* May even be principal here because it passes cause in fact as well as proximate cause.
- State v. Garza
o State appeals dismissal
* Garza with aggravated battery under KS law
o Facts
* G and V gunfight. Bystander was hit by a shot by V. G charged with aggravated battery of bystander.
* Some dispute over who fired the first shot in the gunfight.
* Judge made no finding as to aid and abetting V
o Rule
* Transferred intent
* Act by D that causes injury necessary. No causal relationship between G firing gun and hitting bystander, because V’s bullet hit bystander, not G.
* Aiding and Abetting
* Working in concert to create the criminal act?
o Not really. But the court says that it was possible.
- Wilcox v. Jeffery
o Wilcox newspaper Jazz Illustrated, unlawfully aid Hawkins in contravening art.
o Hawkins, played instead, was brought by Wilcox or something?
* Apparently it was illegal for H to play
* But H did it because he knew a reporter was going to be there.
o Ruling
* Appellant knew of act, reported on it, went to hear him.
* Something about purpose versus knowing. I think that’s the important distinction.
- State Attorney General v. Tally
o Tally
* Dead guy seduced judge’s sister and her brothers went to kill him.
* There was a warning telegram, of which the judge sent another saying that the saving one should not have been delivered.
* And subsequently, it wasn’t and dude was killed.
o No but for cause, it may have happened anyway, but it was aiding and abetting.
- State v. Hayes
o Burglary and larceny appeal
* Hayes and Hill, hayes proposed, Hill was like, okay, but told store owner of Hayes plan. Hill still helped hays in getting in and robbing the place, though.
o Assist or no?
* He did assist him, but intent is the question.
* Did not enter intending to steal. He was intending to get the other dude caught.
Conspiracy
State v. Crozier
- Facts
o Crozier charged with conspiracy to commit murder in 1st degree.
* Wanted to have her husband killed. Talked to two guys, asked them to do it. Paid them money. Provided them with gun and shells.
* Other parties left without doing it, claim that they didn’t ever intend to murder, just theft
- Issue
o Claims no agreement because no “meeting of the minds”
- Proc Hist
o Lower court trial found guilty, but sustained acquittal because insufficient evidence to show actual agreement.
- Ruling
o In order to establish crime of conspiracy under KS law, must prove
* 1) agreement and
* 2) commission by one or more of an overt act in furtherance of the conspiracy
o Did not satisfy elements, so it was dismissed
- More talking about conspiracy
Kotteakos v. United States (1946)
- Big conspiracy charge
o D claims unfairly convicted, or summarily done. Some kind of financial scam.
- State must show that all convicted were a part of the conspiracy, the singular one, and acted with common purpose
o But there were actually eight similar ones wrangled by the same central figure. Must prove each individually, because they were not of uniform purpose in committing the same act.
United States v. Bruno (1939)
- Big conspiracy charge to import and sell drugs
o Some acquitted, most convicted
- Defense complains that there were several separate conspiracies, not a single one.
o Prosecution failed to prove that they conspired to commit anything.
- Court said only one conspiracy because they all acted for the single purpose of selling drugs. Sufficiently linked and indistinguishable
o Prosecution won the day.
Pinkerton v. United States (1946)
- Pinkerton brothers indicted for tax fraud
o Daniel indicted along with them, contended insufficient evidence to convict him of conspiracy
* But he made no affirmative act to withdraw from the conspiracy, so his assisting them to do the illegal act carried through to all foreseeable illegal acts that he helped them facilitate
Attempts
Overview
- Elements
o Must intend to commit the crime
* Must have intent as an element of culpability
* Cannot be guilty of an attempted crime of negligence
* Knowledge may be sufficient
o Must take some substantial action in furtherance of the crime
* Must go beyond mere preparation
- Impossibility defense
o Factual impossibility
* Not a valid defense
o Legal Impossibility
* A valid defense
* When the attempted offense is not illegal, cannot be charged with intent
o Some have abolished this defense, but it still is recognized because it lacks culpability to commit an illegal act.
People v. Rizzo (1927)
- Facts
o Police prevented commission of a serious crime
* Robbery attempted, bank robbery, were followed and watched by police.
* Defendants not able to find the men they intended to rob.
- Issue
o Act too remote from actual robbery to constitute attempt?
- Holding
o Yes. Act was too remote. Maybe. Goes to jury. New trial.
- Rule
o Act done with intent to commit a crime but failing, is an attempt to commit that crime
* Tending is indefinite. If preparation is too remote, may not be guilty of intent. Must naturally effect the result of the crime.
- Application
o Defendants were looking for the dude to rob.
* (seems like a jury question)
* Remanded and a new trial granted.
United States v. Jackson (1977)
- Facts
o D found guilty without a jury, appeal their conviction
* Say that they di
- Issue
o Did they cross the line from preparation to attempt?
- Holding
o Yes. Guilty.
- Rule
o May not be found guilty of attempt for the mere preparation for the crime. They may only be found guilty for the attempt of the commission of the crime.
* The act must be closely related to the crime. An attempt at it.
- Application
o D was going to rob some dude, but there was a mixup and they arrived too late. Drove by to check, decided it was too risky without an extra person. Changed robbery plans, put on gloves and masks, were ready to go. One lady told FBI agents, who surveyed the bank. Robbers saw FBI agents around, and did not rob the bank.
* Changing their mind only due to intervention of law enforcement.
* They were culpable, they did make substantial steps toward doing the crime.
People v. Jaffe (1906)
- Facts
o D thought he bought stolen property. However, they weren’t actually stolen when D purchased bought them.
- Issue
o Impossibility defense?
- Holding
o Yes.
- Rule
o Can’t be guilty for an attempt to commit a crime that is not a crime – legal impossibility.
- Application
o It isn’t illegal to buy something that isn’t’ stolen, and so he isn’t guilty of attempting to buy stolen property.
* Pickpocketing has an intent to steal. Difference here?
* Actual commission versus potential commission… No. this is a stupid argument or distinction, really.
* Stacy says: No meaningful distinction. Jaffe sucks. But it shows there are some exceptions to the rule.
People v. Dlugash (1977)
- Facts
o Shot a dude in the face five times.
o Thought he killed him. Apparently didn’t.
o But D says he thought he was already dead, so no intent.
* He was already dead, or at least the court couldn’t prove that he was dead or alive.
- Issue
o Guilty of attempt?
- Holding
o Yes
- Rule
o Can’t do something if already done – impossibility defense
- Application
o D shot him when he says he thought he was already dead
* But he may have not been. He just shot him because he might not have been alive. He knew that. Guilty
* Had purpose and act in furtherance that was related. No defense of impossibility.
State v. Peterman (2005)
- Facts
o KS supreme court reviewing court of appeals’ reversal of D’s attempted rape conviction for insufficient evidence.
* Victim was drunk, met D at a bar. They went home together, talked about sex with kids and selling videos, or some sick shit.
* D expressed intent and agreed to do it, victim called police, police said they needed more info
* V gave D her address, he came up to her apartment, D asked about the girl, made plans to meet the girl at a motel, described in detail what he was going to do, had sex stuff, showed pictures of how he had done it in the past.
* Police came up, arrested D
o Court of appeals said D never in close physical proximity, therefore no conviction of attempted rape could be supported
- Issue
o Guilty of attempt to commit rape, solicitation to commit sexual exploitation of a child?
- Holding
o Yes. Guilty.
- Rule
o Attempt = any overt act toward perpetration of a crime…. But fails
* Must be fairly connected to doing the crime
- Application
o Made preparations, went to the place, but that may have been mostly mere preparation
* No clear statutory or legal guidance as to what is an overt act for attempting this crime
* So here, it’s really a jury question if it’s too remote or not.
* Factual defense
* Not possible because kid was fictional
o Statute says not a defense.
Defenses
Overview
- Justifications
o Conduct considered acceptable and undeserving of punishment
o Once properly asserted, must be disproved beyond a reasonable doubt (depending on jurisdiction)
o Examples
* Self defense is a justification if
* The person subjectively believes the use of deadly force is necessary
o to protect himself or others from
o imminent infliction
* Must be imminent, in the heat of a confrontation. Some jurisdictional dispute for battered women.
o of death, serious bodily harm, or certain violent felonies
* Some jurisdictions allow self defense to defend against other felonies, such as robbery
o by an unlawful aggressor
* The person’s beliefs as to the necessity of using deadly force and the imminence and unlawfulness of the harm are objectively reasonable.
o Mistake is okay only if reasonable
* Imperfect self defense may be treated as voluntary manslaughter
* Duress
* May be an excuse for some minor crimes, to avoid “greater evils”
* Not an excuse in murder in some jurisdictions
o May be an excuse for murder in MPC
o Some jurisdictions, it may reduce murder to involuntary manslaughter
- Excuses
o Conduct regarded as harmful or undesirable, but excused because he lacks the degree of blameworthiness required for criminal liability
o Must assert by a preponderance of the evidence, will only be accepted if Defense proves it is more likely than not
o Examples
* Intoxication
* Voluntary intoxication
o May provide a defense to specific intent, but not general intent crimes
* Involuntary intoxication
o Occurs if one takes a substance under duress or takes a substance he doesn’t know to be intoxicating
o Only a defense if intoxication produces and renders a person substantially incapable of knowing or understanding the wrongfulness of such person’s conduct and of conforming such person’s conduct to the requirements of law
* Insanity
* If defendant found legally insane at the time of the commission of the crime, the defendant is not guilty of the offense.
o aka
* Mental defect must leave a defendant unable to understand what he is doing; OR
* Mental defect leaves a defendant unable to understand his action is wrong.
* Used to not be a defense at all, then moving more toward recognizing the defense.
* Different definitions
o Traditional M’Naghten Test
* Insanity defined as “such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or, if he did know it, that he did not know he was doing what was wrong.”
o Irresistible- impulse test (60s-70s)
* Whether a person was so lacking in volition due to a mental defect or illness that he could not have controlled his actions
o Product of mental illness test
* Asks whether a person’s action was a product of a mental disease or defect
o Mens rea model
* Adopted by KS and some other jurisdictions
* Evidence of mental disease or defect is admissible only when it tends to negate the culpability required by the charged offense.
o Some reject all definitions and defenses of insanity
* Ignorance of the law
* Is no excuse, with exceptions:
o Statutorily expressed exception
o If lack of knowledge of the law indicates a lack of culpability that the offense requires
- Nonexculpatory defense
o No bearing on culpability
o Examples
* Statute of limitations, jurisdictional limits
o Once properly asserted, must be disproved beyond a reasonable doubt (depending on jurisdiction)
State v. Stewart (1988)
- Facts
o D shot husband while he was sleeping. Says she shot him because she was battered. Fear of future abuse.
- Issue
o Justification for use of deadly force in self-defense excuses a homicide committed by a battered wife where there is no evidence of a deadly threat or imminent danger contemporaneous with the killing.
- Holding
o No. Justification not valid.
- Rule
o Self defense generally posits between one time conflicts between persons of somewhat equal size and strength.
- Application
o When D claims self defense, traditional concepts don’t apply
* The accused did not defend herself in a direct conflict, such as the principal intends, but during a lull when there was no “imminent danger”
* Would be acceptable if he wasn’t sleeping, but he was totally defenseless and she could have gotten away or been otherwise okay.
People v. Anderson (2002)
- Facts
o Kidnapping and murder of A
* D and others suspected A of molesting girls in a camp.
* D claims other threatened to kill his family if he didn’t drop a rock on her head.
- Issue
o Duress an excuse to murder?
- Holding
o No
- Rule
o Duress, if violently assaulted, and no other means of escaping death but by killing an innocent, this fear and force shall not acquit him of murder; for he ought rather die himself than escape by the murder of an innocent (Blackstone, 1916)
* Duress is not an excuse for murder.
o Duress defense may apply to other crimes
* Better to violate criminal law than result in a death.
- Application
o Being threatened or beaten or whatever isn’t an excuse. I mean, maybe some kind of defense to reduce the charge from murder to manslaughter, but only if the legislature says so.
Sentencing
Overview
- Range in severity
o From Death as the most severe
o Imprisonment for various terms
o Probation for various lengths
o Fines of various amounts
Graham v. Florida (2010)
- Facts
o P, Graham. Parents were crack heads, P was diagnosed with ADHD. Alcohol and drug use from early age. Crime at 16, robbed a restaurant. Assaulted the manager, didn’t end up taking any money.
* Charged P with burglary with assault or battery and attempted armed-robbery,
* Accepted plea agreement
* 6 months later, arrested again for home invasion robbery. Used a gun. Lots of other trouble. Robberies, mostly.
* Was sentenced to maximum authorized under the law on each charge – life imprisonment and 15 years… Was a life sentence with no possibility of parole.
- Issue
o Does Constitution permit a juvenile offender to be sentenced to life in prison without parole for a non-homicide crime?
- Holding
o Yes. It’s fair.
- Rule
o 8th amendment cruel and unusual punishment clause.
* To determine if punishment is cruel and unusual, must look to evolving standards of decency that mark the progress of a maturing society.
* Is based on social mores
* The clause prohibits the imposition of inherently barbaric punishments
* Such as punishments of torture or whatever. Otherwise, are determined by the legislature and jury.
o Two classifications of proportional punishments challenges
* Challenges to length of term sentences
* Court considers all the circumstances.
* Categorical restrictions on the death penalty
- Application
o There are plenty of punishments, a wide range of varying ones. He did bad stuff, multiple times. Punishments were legislated and consistent with other jurisdictions.
Apprendi v. New Jersey (2000)
- Facts
o NJ statute
* Possession of firearm for an unlawful purpose = 2nd degree offense
* Punishable by imprisonment for between 5-10 years. If intended to commit a hate crime, extends by 10-20 years.
- Issue
o Due process violated for the increase of 10-20 years for the hate crime?
- Holding
o Yes. Violation of due process.
- Application
o Sentence enhancement
* Does not provide a principled basis for treating claims differently, whether for race or not. Is no more severe a crime if someone does the crime for race reasons or not.
Super short outline (more usable .doc version here, on Dropbox)
Theory:
Util:Spec/Gen deter, Incap, Rehab. Retributivism: Proportional, wrongness, fault, character.
Elements of Criminal Liability:
Act:Volun. Omit:Create danger, partial aid, K, parent. Att Circ.
Culp:Pur,Kno(prac cert),Rec(aware & disregard risk),Neg(disregard risk) Which?Stat say x,presume all x;Stat purp;ComLaw;context. Strict L: Mild penalty,severe harm, omits,reg business,mal prohib,policy,rape, lenity.Spec/gen Intent:Gen=Reck/Neg .Spec=Kno/purp.MPC igno gen/spec. KS=spec if “intent.”If no, gen. Transfer intent.Concur Act&Culp. Cause: C-n-Fact &Prox. Proscribed Result.
Homicide:
Req:Culp(varies),Act/omit, Att Circ=death,causal link.
Murder:
Capital: 1º+Ag circ(mitig v. aggra).Limit: Worst crimes,Cruel & unus.1º:Intent+Premed.Ev of plan, prior motive,meth sug design.1ºFel: Kill in comm of Fel. ComLaw=during rape,sdmy,rbry,brglry,arsn,mayhm, lrcny.Modern=+During“Dangerous”fel(1.Nature o fel 2.Elms=violnt/likly to cause harm).Some stats list “dangrs” fels.+Prox cause.+In Furtherance Of fel.+Not subj to Merge.+Pinkerton= nat&prob conseq. +Not Subj to Agency Theory (act in caus chain isnt fel or co-fel).KS= no agency or prox cause. 2º:Intent+No premed, Depraved <3: (Aware&Indiff 2 high&unjustfbl risk)Intent Seri Bdy Hrm:(intend bdy hrm short of homicide),
Manslaughter:
Voluntry:Heat-o-pass: 1.Subj rage 2. Provoke 3. Provoke adequate 4.No Cooling(ComLaw PigeonHoles: Adultery/Combat/ Violence/Unlawful Arrest.InfoWord Expansn: some Js. Modern:Abandon PigeonHole.Any xtrem mental/emot disturb w/reasonable expln.MPC: rduces mrder to mnsltr.)Imprfc Slf-Def: Honest+unreason belief in justf use o force.Involntry: Reckl kill(gross deviation from objective standard+neg not to level of dep heart). Unlawful Act(fel not subj to Fel M Rule OR misdemeanor. Limits:Pub safety offense. Some Js not strict L. KS=no traffic expt DUI,flee arrest,reckls driving.
Vehicular Homicide:KS=seprat crime. Culp=subj aware+more than civ neg, not quite gross.
Accomplice Liability:
1.Guilty Principal Exists.2.Not guilty as principal. (Closest in cause chain=prncpl) 3.Act to Facilitate– Encouragement sufficient.4.Purposeful.Serious crime exception=Kno sufficient. Culp o Acomp L match offense(KS). Natural&Prob Consequence(some Js& KS)Guilty of AL+Reas Foreseeble consequence of aided offense=Guilt of 3d offense.Defenses:Withdrawal (KS:may,w/draw b4 crime committed), Vlntry Intox(KS:negs req purpose), Legis Prtctd Class,Other(Self-def, duress,entrapmnt,insanity).Aiding Escape:KS:after the fact assist= not AL,othr(aid escp,obsrct justce)
Conspiracy:
1.Bilat Agree.MPC&KS:unilat suffcient.2.To commit crime(overt & beyond mere prep)3.Act n furthernce of agree.Exceptions & Limits: 1. Membership of protected class, 2.Wharton- No conspir if offense requires more than one. 3. Vendor-only if stake(kno insuff). Conspir Ends When:1.Goal achieved/abandoned 2.Act to withdraw (only some juris. & only before comm of act). Scope: 1.Guilty of one conspir if one agree for several offenses(aka Pinkerton). 2.Must have knowledge & stake in crime 3.Must know object of conspir is crim 4.Responsible for all crime foreseeable in course of conspir by any conspirator.Defs: w/draw(some&KS: w/draw by comuni w/ all members of conspir before comsn of overt act),Imposs,Aquit of all other conspirtrs,Member of Legi Pro Cls,Intox,others.
Attempt:
1.Purp & kno of crime(some Js, reckls suffice 2.Substntl act n further of,not mere prep(Danger prox test:would’ve been commit but for timely interfer.MPC Substnl Step test:lists acts suff to support-lie in wait,entice,posess mats,etc.KS=leave it to jury). Imposs Defense:Non-existent offns, Mistake(KS:if hoped/belivd hmslf to b doing).Mrgr:No attmpt&complt offns.
Defenses:
Self-def: Believes force needed to protect.a)In heat of confrntatn.(J dispute for battered women) b)of death(for kill),serious bodily harm, or certain violent fels, c)By unlawful aggrsr. Not available to initial aggrsrs. Belifs must be reasonable. Retreat(N/A in KS). Necessity:If resnble belif necesry to avoid grtr harm(KS=Def o Compulsion-no murder def, only lesser crimes).Duress: Excuse to avoid “greater evils.” Not excuse for murder in some juris, but may in MPC.No excuse in create situat.
Intox:Def to spec intent.Must produ &render sub incap o kno or undrstnd wrong o conduct and conform to law. Involuntry Intox: Complete def=to insanity. Unreasonable Mistake of Fact: Some Juris, not KS, may negate spec intent elmnts. Mistake of Fact: KS&other Js, ignorance of fact may negate intent required by charged offense.Insanity: Complt Defnse.M’Naghten:if mental ill=D unable to kno wrongfulns or natre &
qualty of acts.Irresist Impuls:ment disease or defct rendr unabl to contrl acts.MPC:Either M’Naghten OR Irresist Impuls.KS=abolish insanity as aff def.Only to negate spec culp of elmnt.Diminished Capacity: Only if negates spec intent.Mistake of law:1.Ignorance of law is no excus, unless:Statut excptn, admin reg not pub,act in reliance of invalid statut, reliance of officl&invalid interp, if lack of kno indicate lack of culp required. 2.Mistake of collateral legal concept treated as a mistake of fact. Merger: Can’t be liable for underlying merged felony. Merges if: 1º based on lesser homicide, agg assault/batry. May merge if: Robbery, Arson, Rape, Kidnapping of same victim.
Nonexculpatory def: Statute of limits, juris limits.
Sentencing:
Cruel & unusual: 1. According to the founders (exmpl: torture) 2.Punishment contrary to “evolving standards of decency,” determined by: Objective indicia, Legislative judgments, Actual sentencing practices, Foreign & int’l law, Court independent jmnt. NO death sentences mandatory or for Mntal Retrd & limit to worst crime. NO life w/o parole for juvenile non-homicide. Determine sent by: 1.Statutory mandatory min/max 2.Statutory guidelines(indeterm sntncng) 3.Severity of offense 4.Crim history.
