I. Purposes of Punishmenta. Deterrence

i. general- discourage public @ largeii. specific- discourage individual offenders from repeating their crimes (self-interest not to be punished again)

b. Rehabilitation- instill values and attitudes & provide means to live a productive lifec. Incarceration (incapacitation or protection)- rendering the criminal incapable of doing harm

i. prison, deathii. difference b/t incarceration & specific deterrence: don't care about mindset, are physically removed

d. Retribution- "give the offender what he deserves"i. satisfies a societal need to avenge the harm, rather than a desire to rehabilitate or deter the offender

e. Burden of Proofi. In re Winshipi. The Constitution requires the prosecutor to persuade the fact finder beyond a reasonable doubt of every fact necessary

to constitute the crime charged, in both juvenile proceeding and adult criminal trials, because the same stigma and potential loss of liberty is there

b. §1.02—Purposes1. The general purposes of the provisions governing the definition of offenses are:

a. To forbid and prevent conduct that unjustifiably and inexcusably inflicts or threatens substantial harm to individual or public interests

b. To subject to public controls persons whose conduct indicates that they are disposed to commit crimes

c. To safeguard conduct that is without fault from condemnation as criminald. To give fair warning of the nature of the conduct declared to constitute an offensee. To differentiate on reasonable grounds between serious and minor offset

2. The general purposes of the provisions governing the sentencing and treatment of offenders are:a. To prevent the commission of offensesb. To promote the correction and rehabilitation of offendersc. To safeguard offenders against excessive, disproportionate or arbitrary punishmentd. To give fair warning of the nature of the sentences that may be imposed on conviction of an offensee. To differentiate among offenders with a view to a just individualization in their treatment

II. Principle of Legality

a. Common Law Crimesi. Why do they exist?

1. keep up w/the movement in the community where the legislature hasn't actedii. State v. Bradbury- burned body in basement furnace; offense @ common law

1. Essence of the charge isn't that the body was burned but that it was done so indecentlyiii. Commonwealth v. McKarski- picketing & alleged that truck hit him; arrested for common nuisance & improper conduct

1. don't want to make exception to rule of criminal law that nothing is a crime unless it's plainly forbidden by lawa. Must be classified as a crime by legislatureb. Want to make what is a crime very clear

i. Can't punish people for committing acts that they didn't know were crimes2. Legislatures are more active in codifying and exacting statutes no longer a need for common law crimes

a. Used to meet a lot less frequently in the past, more of a need for common law crimes3. Legislature can now step in quickly and react to unforeseen problems (i.e. internet)

b. Statutory Crimes- look @ words, leg. intent, prior interpretations, analogous statutes, other jurisdictionsi. Keeler v. Superior Court- D kneed ex-wife in stomach (who was significantly pregnant) causing baby to be stillborn; D

charged w/murder of baby1. Court looks to legislative intent when statute was first enacted – determine that legislature meant to exclude an

unborn fetus from the definition of “human being” w/i the murder statute2. Court can't redefine "human being" b/c to do so would be to create a new common law crime and they don't

have the power to do so, only legislature can create crimesa. Judicial enlargement proposed couldn't have been foreseeable by defendant and to adopt it would

deny him due process of law requirement of fair warning

c. Void-for-Vaguenessi. Basic principle of due process: an enactment is void for vagueness if its prohibitions are not clearly defined

1. b/c laws must give a reasonable person an opportunity to know what it prohibited, so that he may act accordingly

2. void if the statute could be arbitrarily and discriminatorily enforceda. however, doesn’t completely eliminate this problem – have to make statutes very specific to diminish

the problem

3. It must provide a. fair warning that it is a crime to a person of ordinary intelligenceb. must have explicit standard of enforcement for those who apply them (avoid arbitrary &

discriminatory enforcement), and c. Must be clear in terms to avoid inhibiting the freedom of exercise of 1st Amendment rights.

i. People will censor their behavior if they don’t know where the line b/t legal & illegal isii. Grayned v. City of Rockford- D took part in protest in front of school; arrested for violating “anti-picketing” and “anti-

noise” statutes1. Supreme Court doesn’t have power to “interpret” state statute, therefore, “extrapolate” determine how IL

Supreme Court would interpret the statute if they had toa. Held that statues weren’t vague don’t contain a broad invitation to subjective or discriminatory

enforcementiii. Kolender v. Lawson- D charged w/violating law that requires people stopped by cops to provide “credible & reliable” ID

1. statute is unconstitutionally vague w/i meaning of Due Process clause by failing to clarify what is meant by the requirement that a suspect provide a "credible and reliable" ID

a. ordinary person must understand what the statute is asking for (fair warning) no standard to determine what a suspect has to do in order to fulfill the requirement of providing "credible and reliable" ID

III. Actus Reus

a. In Generali. Actus reus: The wrongful deed that comprises the physical components of a crime and that generally must be coupled

with mens rea to establish criminal liability; a forbidden act

ii. §2.01. Requirement of Voluntary Act1. A person is not guilty of an offense unless his liability is based on conduct which includes a voluntary act or the

omission to perform an act of which he is physically capable…(p.58)2. The following acts are not voluntary acts within the meaning of this Section (p.62):

a. A reflex or convulsion; b. A bodily movement during unconsciousness or sleep;c. Conduct during hypnosis or resulting from hypnotic suggestion;d. A bodily movement that otherwise is not a product of the effort or determination of the actor, either

conscious or habitual…3. Liability for the commission of an offense may not be based on an omission unaccompanied by action unless (p.72):

a. The omission is expressly made sufficient by the law defining the offense; orb. A duty to perform the omitted act is otherwise imposed by law...

4. Possession is an act , within the meaning of this Section, if the possessor knowingly procured or received the thing possessed or was aware of his control thereof for a sufficient period to have been able to terminate his possession. (p.62)

iii. US v. Shabani- D charged w/conspiracy to distribute coke; D asking court to read into the statute an overt act that wasn’t there

1. Legislative intent was to omit the requirement of an overt act in the conspiracy statute (consistent w/common law) there is still an act however, the agreement to commit the crime is the unlawful act necessary for conspiracy

iv. Powell v. Texas- D arrested for public drunkenness; argued that b/c he had chronic alcoholism, it was cruel & unusual punishment under the 18th Amendment to arrest him for it since he had no control over his behavior

1. Held it wasn’t cruel & unusual statue includes act requirement & D’s conduct fulfilled that requirement

b. Affirmative Actsi. Some crimes committed just thru speech: conspiracy, perjury, yelling “boo!” behind someone standing @ the edge of a

cliff (jumps out of fright & falls off cliff)ii. Every involuntary act is preceded by a voluntary act

1. Have to identify the relevant conduct that leads to the act (voluntary or involuntary)

iii. People v. Shaughnessy- D was passenger in a car that went onto private property & was charged w/violating statute prohibiting entry upon private property; argues statute is unconstitutional b/c punishes someone criminally w/o individual having the intent to commit an act that constitutes a crime

1. Held: An involuntary act isn’t criminal An overt act or an omission to act must occur in order for the establishment of a criminal offense

iv. Wise v. State- D got into bar fight, was hit on side of head w/bottle, ends up stabbing other guy in chest; claims to have suffered a certain type of seizure b/c of blow to head and was unconscious during the attack

1. Reversed conviction & remanded to allow expert witness re: D’s seizure can’t punish an involuntary acta. None of the purposes of punishment would be served by convicting D (solitary act that’s unlikely to

reoccur)

c. Omissions i. State v. Miranda- D convicted of assault for abuse of gf’s child – had legal duty to protect child

1. In general there is no legal duty to help someone else in danger, BUT there are 4 exceptionsa. Where one stands in a certain relationship to another ( @ common law: parent-child; husband-

wife; master-servant)b. Where a statute imposes a duty to help another (have to stop if in a car accident)c. Where one has assumed a contractual duty (lifeguard, babysitter, nursing home)d. Where on voluntarily has assumed the care of another (dr-patient; caretaker of elderly)

2. A person must act when (1) they have a legal duty to act and (2) they can physically perform the acta. Also implicit is that there is little risk to the individual in performing

3. D had assumed role of father, therefore, had legal duty to protect child

IV. Mens Rea

a. In General

i. §2.02. General Requirements of Culpability1. Minimum requirements of Culpability. Except as provided by Section 2.05, a person is not guilty of an offense

unless he acted purposely, knowingly, recklessly or negligently, as the law my require, with respect to each material element of the offense…

ii. A person is guilty of an offense if their conduct includes : 1. A voluntary act or omission (actus reus)2. Accompanied by the requisite mens rea3. Legal cause of the harm proscribed by the offense

iii. Hierarchy of culpability1. Purpose2. Knowledge3. Recklessness4. Criminal negligence

iv. Each of the definitions deal w/3 different contexts1. Causing a particular result – what result is the offense concerned w/?

a. Gypsum- fixing pricesb. Budish- burning down structures & landc. Leonardo- serious physical injury

2. Knowledge of attendant circumstances3. Purpose

v. MPC: Culpability Not Provided1. When the culpability sufficient to establish a material element of an offense isn’t prescribed by law, such

element is established if a person acts purposely, knowingly or recklessly w/respect theretoa. Recklessness is the minimum threshold

vi. MPC: Culpability Applies to All Elements1. If there is no distinguishing among the material elements of an offense, the culpability prescribed will apply to

all the material elements (unless a contrary purpose plainly appears)a. Example: “It is illegal to knowingly sell porn to minors”

i. Actor must know: (a) it’s porn being sold & (b) that it’s being sold to minorvii. MPC: Substitutes

1. When the law provides negligence establishes an element established if person acts reckless, knowingly or purposely

2. When recklessness suffices established if person acts knowingly or purposely3. When knowingly suffices established if person acts purposely

viii. For a criminal offense to occur there has to be this mens rea (culpability) and that culpability has to be specific to the particular offense in question

1. When someone inadvertently causes a harm they're less culpable than someone who recklessly or purposely cause the harm and he shouldn't be treated the same

ix. Morisette v. US- D took spent bomb casings & sold them for scrap; convicted of “knowingly converting” gov’t property1. Reversed conviction: D had no intent to steal congressional silence re: intent w/i this statute (i.e. common

law offenses) is in line w/common law tradition that intent is inherent (not necessary to include in the statute b/c it is so inherent)

a. NOT the case w/public welfare offensesx. Regina v. Cunningham- D stole gas meter from basement of house, causing gas to escape and partially asphyxiate the

woman living in the house next door; convicted o/larceny & violating Offenses against the person act (unlawfully & maliciously caused to be taken by Mrs Wade noxious coal gas that endangered her life)

1. Reverseda. In any statutory definition of a crime, malice requires either (1) An actual intention to do the

particular kind of harm that in fact was done; or (2) recklessness as to whether such harm should occur or not (i.e. accused has foreseen the harm might be done and continues)

i. Because without this, there would be no deterrence, retribution, restraint, or rehabilitation without the desire, willfulness, or knowledge to produce the result

b. Can’t use mental state from one offense (larceny) to satisfy the mental state for another offence (offense against the person)

b. Purpose & Knowledge

i. §2.02. General Requirements of Culpability2. Kinds of Culpability Defined

a. Purposely : A person acts purposely with respect to a material element of an offense when:i. If the element involves the nature of his conduct or a result thereof, it is his conscious

object to engage in conduct of that nature or to cause such a result; andii. If the element involves the attendant circumstances, he is aware of the existence of such

circumstances or he believes or hopes that they exist.b. Knowingly : A person acts knowingly with respect to a material element of an offense when:

i. If the element involves the nature of his conduct or the attendant circumstances, he is aware that his conduct is of that nature or that such circumstances exist;...

ii. if the element involves the result of his conduct, he is aware that it is practically certain that his conduct will cause such a result

1. person’s knowledge of a particular fact is established if:a. either he is aware of such a fact, or aware of a high probability of such fact’s existence, unless he

actually believed that it didn’t exist

ii. Common Law1. Intent = purposely & knowingly doesn’t distinguish b/t purpose & knowledge2. A person acts intentionally if either:

a. His conscious object when engaging in that conduct was for that result to follow, whatever the likelihood of the result following his conduct (MPC purpose); OR

b. He was aware that it was practically certain that that result would follow from his conduct unless he believed the result wouldn’t follow (MPC knowledge)

3. A person’s knowledge of a particular fact or attendant circumstance is determined by a subjective standard under which one asks whether the person is aware of such fact or circumstance

iii. US v. Gypsum- D’s convicted of conspiracy to fix prices of gypsum board; jury instruction erroneous: "If the effect of the exchanges of pricing information was to raise, fix, maintain and stabilize prices, then the parties to them are presumed, as a matter of law, to have intended the result"

1. Reversed convictionsa. As a matter of law, it is not a legal presumption that because an event occurred as a result of an act,

and this result was a likely result, then the actor intended the act. i. One knowingly causes result if one is aware (subjectively) that it is practically certain

(objectively) that his conduct would cause result.iv. Transferred Intent

1. MPC – only transfer intent for “purpose”a. When purposely…causing a particular result is an element of an offense, the element is…established

if…the actual result differs from that designed…only in the respect that a diff. person or property is injured/affected

2. Common Lawa. Limited to results that create the same type of harm as was actually intendedb. Doesn’t require that the intended victim by the actual victimc. Intent doesn’t transfer b/t crimes (Cunningham) w/exception of felony murder

v. HYPO1. purposely want to kill someone on a plane so you place a bomb on the plane2. Bomb goes off, everyone dies3. Have purposely killed that individual4. Didn't purposely kill everyone else, but had the practical certainty that placing the bomb on the plane would

kill them5. Both types of culpability should be sufficient for liability

a. There isn't a great deal of difference b/t the two & they are often lumped together, rarely find "purposely" alone in a statute without "knowingly"

vi. State v. Adkins- D convicted of receiving stolen property after having sold stolen items @ an auction; claimed he didn’t know they were stolen; statute: have to know that the property is stolen and have the intent to deprive the true owner of it (two types of culpability)

1. Affirmeda. No specific result required (like in Gypsum), more related to the circumstances surrounding the

eventsb. Intent & knowledge can be determined by surrounding circumstancec. Objective test o/guilty knowledge : Whether a rationale jury could have found beyond a reasonable

doubt that a reasonable person in the circumstances of the defendant would have known that the goods were stolen common law

2. Court’s holding is opposite of the MPC subjective test (gives D chance to explain that he’s not a reasonable person

vii. HYPO1. What if D had said "ok, you're right, a reasonable person might have known they were stolen but i'm an idiot"?

a. Test is what would a reasonable person know and the fact that this person might not be a reasonable person is irrelevant

2. What if D said that he answered the door and was so tired b/c he was out late, etc. and he wasn't in the correct frame of mind to make him aware that the goods might be stolen?

a. Same result

c. Negligence & Recklessness

i. §2.02. General Requirements of Culpabilityc. Recklessly

A person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from this conduct. The risk must be of such a nature and degree that, considering the nature and purpose of the actor’s conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a law-abiding person would observe in the actor’s situation…

d. Negligently A person acts negligently with respect to a material element of an offense when he should be aware of a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that the actor’s failure to perceive it, considering the nature and purpose of his conduct and the circumstances known to him, involves a gross deviation from the standard of care that a reasonable person would observe in the actor’s situation

ii. What's the difference b/t civil negligence and criminal negligence?1. Matter of degree

a. Degree of departure from standard of carei. Gross deviation: criminal

ii. Any deviation from standard of care of reasonable person: civil negligenceb. The risk the actor fails to perceive must be of a greater magnitude for criminal negligence than

for civil negligenceiii. MPC "negligence" is really "criminal negligence"

1. "should be aware of a substantial and unjustifiable risk"a. Question to ask re: Garris Whether his conduct created a substantial risk of killing someone

i. YES- could have not only killed other people, but himself and driverb. Need to look at surrounding facts and circumstances b/c same conduct in different

circumstances may not amount to criminal negligencei. Doing this on a deserted street @ 3am wouldn't amount to a "substantial risk" of killing

someone- no one's around!2. "Justifiable"- had D grabbed wheel to avoid hitting a group of children in the middle of the road, conduct

would've been justifiableiv. Distinction b/t reckless and negligent conduct that the MPC makes is in the conscious disregard of the risk by the

reckless actor and failure to perceive the risk by the negligent actorv. Santillanes- D convicted of child abuse for cutting nephew’s throat during an altercation; statute: Abuse of a child

consists of a person knowingly, intentionally or negligently and without justifiable cause, causing or permitting a child to be: (1) Placed in a situation that may endanger the child's life or health

1. Affirmed but only b/c there was no reversible error (evidence established criminal negligence)a. A criminal standard of negligence , which requires a substantial and unjustifiable risk, and a gross

deviation rather than a civil standard (which was in jury instructions), which only requires an unreasonable risk and a deviation, is used in felony cases when no mens rea element is specified nor is a standard of proof because the stakes are so high in felony cases

vi. Garris- D convicted of criminally negligent homicide for pulling steering wheel of car down and causing it to go off road, hitting someone on sidewalk

1. Affirmed a. Evidence established D's failure to perceive the substantial and unjustifiable risk that death would

result from his conductvii. Budish- D indicted for unlawfully burning structures when a strong wind picked up embers of his fire; statute: recklessly

sets fire to or burns or causes to be burned; indictment was dismissed1. Affirmed

a. No evidence D acted recklessly- use subjective standardi. MPC: he consciously disregards a substantial and unjustifiable risk

ii. CA penal code: aware of and consciously disregards a substantial and unjustifiable riskviii. Leonardo- D charged w/1st degree assault for accidentally shooting girl when he was taking target practice @ a tree;

indictment was dismissed1. Reversed

a. Can only dismiss indictment if the evidence isn’t legally sufficient to establish the charge or lesser included offenses (same conduct & result but lower level of culpability)

i. Evidence established recklessness (culpability for lesser included offenses)ii. To establish recklessness People must show:

1. D was "aware of and consciously disregarded" a risk that injury would occura. This is more difficult to establish

2. That the risk was "substantial and unjustifiable"a. Court finds that firing a gun in a community creates a substantial risk

3. That disregard of that risk is a "gross deviation from the standard of conduct that a reasonable person would observe"

a. If D was aware of that risk & disregarded it, it would be a gross deviation

d. Strict Liability- always a presumption against strict liability unless there’s clear leg. intent for iti. Factors to look @ when determining if offense should be construed as a strict liability crime

1. Seriousness of harm to society – more serious S.L. likely2. opportunity of actor to ascertain true facts – no opp. S.L. likely3. difficulty of proof of culpability – more difficult S.L. likely4. severity of penalty – more severe not S.L.5. felony v. misdemeanor/ violation – felony not S.L.6. Origin of the offense (statutory or common law) – statute S.L. likely

ii. US v. Balint- D’s convicted of unlawfully selling opium derivative; argued statute didn’t make knowledge a requisite element, therefore the fact that they didn’t even know it was a drug excuses them of liability; indictment dismissed

1. To determine strict liability applies (if culpability is left out of the statute):a. Is the offense created by statute to be a public welfare offense (regulatory; malum prohibitum; protect

public from great harm) or was it created by common law (malum in se – theft – purpose is to punish) b. Is the injustice of subjecting an innocent party greater than that of exposing the public to dangers c. Do people have an opportunity to find out the facts of the offense d. Did congress wish to make it easier for the state to prove their case, reduce the burden by removing

culpability2. Court doesn’t look @ penalty of the offense, however

iii. Staples v. US- D convicted for possessing an unregistered machinegun; statute is silent on culpability; D claims he didn’t know it was a machinegun (automatic)

1. Reverse & remand faulty reasoning thougha. If no culpability was necessary, any ignorant gun owner (inherited a gun) would be liableb. Court reads a mens rea requirement into the statute: Harsh penalty leads court to decide that

Legislature didn’t intend for it to be a strict liability offensei. D needs to have the knowledge that he has a gun that needs to be registered or that has

characteristics that would subject it to regulation

iv. §1.04(1) An offense defined by this Code or by any other statute of this State for which a sentence of [death or of] imprisonment is authorized, constitutes a crime. Crimes are classified as felonies, misdemeanors or petty misdemeanors.

v. §1.04(5) An offense defined by this Code or by an y other statute of this State constitutes a violation if it is so designated in this Code or in the law defining the offense or if no other sentence than a fine, or fine and forfeiture or other civil penalty is authorized upon conviction or if it is defined by a statute other than this Code which now provides that the offense shall not constitute a crime. A violation does not constitute a crime and conviction of a violation shall not give rise to any disability or legal disadvantage based on conviction of a criminal offense. …

vi. §2.05(1) The requirements of culpability prescribed by Section 2.01 [voluntary act or omission] and 2.02 [purposeful, knowing, reckless, or negligent conduct] do not apply to:

(a) offenses which constitute violations, unless the requirement involved is included in the definition of the offense or the Court determines that is application is consistent with effective enforcement of the law defining the offense; or

(b) Offenses defined by the statutes other than the Code, insofar as a legislative purpose to impose absolute liability for such offenses or with respect to any material element thereof plainly appears.

(2) Notwithstanding any other provision of existing law and unless a subsequent statute otherwise provides:(a) when absolute liability is imposed with respect to any material element of an offense defined by a statute other than the Code and a conviction is based upon such liability, the offense constitutes a violation; and(b) Although absolute liability is imposed by law with respect to one or more of the material elements of an offense defined by a statute other than the Code, the culpable commission of the offense may be charged and proved, in which event negligence with respect to such elements constitutes sufficient culpability.

e. Mistake of Fact

i. §2.04— Ignorance or Mistake.1. Ignorance or mistake as to a matter of fact … is a defense if:

a. The ignorance or mistake negatives the purpose, knowledge, belief, recklessness, or negligence required to establish a material element of the offense; or

b. The law provides that the state of mind established by such ignorance or mistake constitutes a defense.

2. Although ignorance or mistake would otherwise afford a defense to the offense charged, the defense is not available if the defendant would be guilty of another offense had the situation been as he supposed. In such case, however, the ignorance or mistake of the defendant shall reduce the grade and [class or] degree of the offense of which he may be convicted to those of the offense of which he would be guilty had the situation been as he supposed

3. Discards distinction b/t specific & general intent crimes encourages each crime to be defined w/the appropriate level of culpability

ii. Common Law1. General intent crime mistake must be honest & reasonable2. Specific intent crime mistake need only be an honest mistake that negates the required specific intent3. Moral Wrong Theory : even if the facts were as D believed them to be, his act would still be immoral (example:

leaving pregnant wife immoral to leave her at all, doesn’t matter if he knew she was pregnant or not)4. Lesser Legal Wrong Theory : saying if someone is intending to commit a crime (fornication) and ends up

committing a more serious crime (statutory rape), he should be liable for the serious crimea. Violates Cunnigham no culpability in the statutory rape statute so court is taking culpability from

fornication statute & applying it to statutory rape exactly what Cunningham said it couldn’t do (take culpability from theft to offenses against persons)

iii. People v. Mayberry- D convicted of rape, kidnapping & assault; argued he thought she was consenting (she didn’t resist or run due to fear & arthritic condition); jury instructions should’ve included mistake of fact

1. Reverse rape & kidnapping convictionsa. If the evidence shows that D reasonably believed she was consenting, it negates the criminal intent

necessary for rape & kidnappingb. An objective & subjective belief must be present for mistake of factc. A mistake of fact can be a defense if it is both honest (genuine) and reasonable and that it

negatives the required criminal intentiv. US v. Short- D convicted of assault w/intent to commit rape; argued he believed she was a hooker & had consented

1. Affirmeda. There must be a “reasonable and honest belief” & an instruction that only includes an honest belief

isn’t accurate2. DISSENT

a. General intent (rape)– crime is one particular act without reference of intent of a further act honest & reasonable belief that negatives intent needed for mistake of fact defense

b. Specific intent (assault w/intent to commit rape) – when the definition refers to defendant’s intent to do some further act or achieve some additional consequence honest belief that negatives intent enough for mistake of fact

v. State v. Silva- D convicted of statutory rape; argued he reasonably and honestly believed she was 16+; should’ve gotten mistake of fact instruction

1. Affirmeda. Mistake of fact defense not allowed for statutory rape – judicial exception

i. Lesser Legal Wrong theory ii. Moral Wrong theory

vi. Director of Public Prosecution v. Morgan- Morgan convicted of aiding & abetting a rape (can’t commit rape of own wife under common law); other 3 Ds convicted of rape; they argue she consented

1. Affirm (change in jury instructions wouldn’t have changed outcomea. A defendant cannot be convicted when he honest but unreasonable belief that there was consent

intent needed for rape is the intent to have sex w/o consent, if there was a mistake re: consent, it goes against the required intent

b. If it is reasonable from the surrounding facts and circumstances to come to a conclusion, supports the belief that the defendant reached that conclusion.

f. Ignorance/Mistake of Law

i. §2.04 – Ignorance or Mistake1. Ignorance or mistake as to a matter of law is a defense if

a. the ignorance or mistake negatives the purpose, knowledge, belief, recklessness, or negligence required to establish a material element of the offense

b. the law provides that the state of mind established by such ignorance or mistake constitutes a defense2. although ignorance or mistake would otherwise afford a defense to the offenses charged, the defense is not

available if the defendant would be guilty of another offence had the situation been as he supposed. In such case, however, the ignorance or mistake of the defendant shall reduce the grade and class or degree of the offense of which he may be convicted to those of the offense of which he would be guilty had the situation been as he supposed.

3. A belief that conduct does not legally constitute an offense is a defense whena. the statute is not known to the actor and has not been published or otherwise reasonably made

available prior to the conductb. he acts in reasonable reliance upon an official statement of the law, afterward determined to be

invalid or erroneous, contained in

Ds intended their conduct but were mistaken as to its illegality

i. a statuteii. a judicial opinion, decision, or judgment

iii. an administrative order or grant of permissioniv. An official interpretation of the public officer or body charged by law with the responsibility

for the interpretation, administration, or enforcement of the law defining the offense.4. The defendant must prove a defense arising under subsection (3) by a preponderance of the evidence.

ii. Common Law1. Defense only if the mistake negates the required intent of a specific intent crime

iii. Reasons behind not allowing mistake of law as a defense 1. Proving someone knew the law in order to establish mens rea would be next to impossible2. If it were allowed as a defense, it would encourage people to be ignorant of the law

a. Easier to make a claim like this w/statutory crimes, as opposed to “i didn’t know it was illegal to shoot someone”

3. Prosecutions provide education to the public re: the lawiv. State v. King- D convicted of unlawful possession of phentermine; wasn’t a controlled substance under state statute

(but was under federal law) until after she was arrested1. Affirmed

a. Ignorance of the law is no excuse – it was a controlled substance under federal law & she could’ve found out

v. US v. Fuller- D convicted of distributing a controlled substance; argued he was doing an undercover operation & he believed he had the power as mayor to sell crack as part of a sting operation (he didn’t have the intent needed)

1. Affirmeda. Mistake of law not an excuse

i. Plus, SC law doesn’t give mayor any law enforcement power & expressly states that the mayor is the chief administrative officer

vi. Hopkins v. State- D convicted of putting up illegal signs stating he performed weddings; argued he reasonably relied on advice from lawyer that the signs didn’t violate the statute

1. Affirmeda. Good faith reliance on advice of counsel isn’t an excuse – mistake of law is no excuse regardless

i. Why not? – D & lawyer could be in collusionvii. State v. Woods- D convicted of violating statute that said it was a crime for a woman to found in bed w/a man who

wasn’t her husband; argued she honestly and reasonably they were legally married (had gone to Vegas and man got divorce decree & then they got married)

1. Affirmeda. Divorce decree from Vegas was invalid

i. Ignorance of law no defense1. Under decision in Cude, however, it would seem that this is wrongly decided – she

would’ve needed to have intent to get in bed w/a man that wasn’t her husband & that wasn’t the case (assuming she’s telling the truth)

viii. State v. Cude- D convicted of grand larceny for stealing his car back from the mechanic; argued he didn’t think he was stealing since it was his car

1. Reverseda. Mistake of law allowed as defense b/c he intended to take his car, but he didn’t know that it wasn’t

his @ the time (title transferred to mechanic when it went in for repairs- civil law); he didn’t intend to steal the car

i. Grand larceny requires taking with the intent to steal his mistake negates the intent

g. Intoxication

i. §2.08 Intoxication1. Except as provided in Subsection (4) of this Section, intoxication of the actor is not a defense unless it

negatives an element of the offense.2. When recklessness establishes an element of the offense, if the actor, due to self-induced intoxication, is

unaware of a risk of which he would have been aware had he been sober, such unawareness is immaterial.3. Intoxication does not, in itself, constitute mental disease within the meaning of Section 4.01…4. Intoxication which (a) is not self induced or (b) is pathological is an affirmative defense if by reason of

such intoxication the actor at the time of his conduct lacks substantial capacity either to appreciate its criminality (wrongfulness) or to conform his conduct to the requirements of law.

5. Definitions : In this Section unless a different meaning plainly is required:a. “intoxication” means a disturbance of mental or physical capacities resulting from the

introduction of substances into the body…b. “self induced intoxication” means intoxication caused by substances which the actor knowingly

introduces into his body, the tendency of which to cause intoxication he knows or ought to know, unless he introduces them pursuant to medical advice or under such circumstances as would afford a defense to charge a crime.

c. “Pathological intoxication” means intoxication grossly excessive in degree, given the amount of the intoxicant, to which the actor does not know he is susceptible.

ii. Only allowed as potential defense for:

1. MPC – offenses requiring purpose or knowledge as the level of culpabilitya. Examples

i. Larceny - intoxication could be a defense b/c it states “taking with the intent to steal”ii. Offense against the person - culpability required: intent to endanger or recklessly doing so;

awareness of the risk is a necessary part of recklessness, so why not allow intoxication as a defense if he is unaware of the risk?

a. Person is aware that he/she may be creating risks the drunker and drunker he gets- it’s the continuing to drink that’s the culpability

2. What if the culpability required was “negligently” endangering a life?a. Wouldn’t be allowed as a defense either- negligence “should be aware of a

substantial and unjustifiable risk” and that would be determined by using the reasonable person standard; a reasonable person wouldn’t have become intoxicated to that point; by definition uses a “reasonable sober person” standard

2. Common law – specific intent crimes; treated intoxication like a disease or defecta. @ early common law- jury instructions properly excluded b/c intoxication not allowed as a defenseb. @ later common law- intoxication allowed as a defense to a specific intent crime- if it negates the

material element of the offenseiii. Bryant v. State- D convicted of attempted murder, statutory maiming, assault w/intent to disable & assault & battery;

argued b/c he was high on a mix of drugs & alcohol defense of intoxication should’ve been allowed for statutory maiming & assault w/intent to disable

1. Reversed & remandeda. Defense should have been allowed b/c the charges were specific intent crimes and if jury found that

intoxication negated the required intent, can’t find D guilty of the crimeiv. Montana v. Egelhoff- D convicted of 2 counts of deliberate homicide (purposely or knowingly causing the death of

another); had been out drinking w/the victims; argued that intoxication should be allowed as a defense b/c he was physically incapable of committing the murder (too drunk)

1. Affirmeda. Didn’t allow evidence of intoxication as a defense b/c it’s not uniformly accepted & common law

tradition of excluding it is still supported by valid justifications

V. Accomplice Liability

a. In GeneralCommon Law MPC

Principal in the 1st degree – individ who personally commits the crime or uses an innocent agent to commit the crimeo Innocent agent – someone who (1) commits a criminal

act but (2) lacks capacity to commit a crime or the mens rea for the crime and (3) is fooled or forced to commit the criminal act

Treats all actors, except those involved after the commission of the crime as equal

§ 2.06 – Liability for Conduct of Another; Complicity o Before the crime principal

Solicits another to commit a crime, which is then committed by person solicited OR

Aids, agrees or attempts to aid another in planning a crime who then commits the crime OR

Having a legal duty to prevent the commission of the crime, fails to do so

o During the crime principal Personally commits the crime OR Uses an innocent or irresponsible person

§242.3 – Hindering apprehension or prosecution o After the crime

Hinders apprehension or prosecution

Principal in the 2nd degree – individ who intentionally helps or encourages the principal in the 1st degree to commit the crime and is actually present @ the crime scene or is constructively present (near enough to assist if needed – lookout; driver of getaway car)

Accessory before the fact – aids & abets before the crime takes place but isn’t present or nearby when it does occur (obtains murder weapon; cases the store)

Accessory after the fact – aids and abets after the crime (buys plane tickets)

i. Standefer v. US- D convicted of 5 counts of aiding and abetting a revenue official in accepting compensation; argued that b/c official (principal) wasn’t convicted, he couldn’t be convicted as an accomplice based on common law rule

1. Affirmeda. Statute superseded common law & legislative intent clear that statute meant to allow conviction

of accessories even if principal was acquittedii. Hicks v. US- D convicted of murder; principal was shot and killed by cops; “take your hat off and die like a man”

1. Reverseda. Act or words must be done or said w/the purpose to aid and abetb. If he went there and didn’t aid and abet, then he had intent, but didn’t do anything. No act. That is

insufficient for liability unless there is a prior conspiracy. (Act of simply being there is encouragement and reinforcement in itself if there is a prior agreement).

iii. Wilson v. People- D convicted of aiding and abetting burglary & larceny; argues he didn’t have the intent to commit the offenses

1. reverseda. “for one to be guilty as principal in the second degree, it’s essential that he share in the criminal

intent of the principal in the first degree”i. D had intent to aid & abet (wanted principal to get caught) but didn’t have required

intent for burglary (breaking and entering w/the intent to commit a theft) or larceny (intent to deprive the true owner of property)

b. Scope of Accomplice’s Liabilityi. People v. Nguyen- D convicted of robbery & accessory to sexual assault

1. Affirmeda. “common design” to commit a crime & an accomplice to that crime can be held liable for any

natural & probable (reasonably foreseeable) consequencei. sexual assault was a reasonably foreseeable consequence of robbery (happens often)

ii. HYPO1. agree ahead of time to commit armed robbery; B stands outside as a look out while A goes in to rob store,

owner of store tries to run, A shoots at owner & seriously wounds him2. Is B liable for attempted murder, etc?- YES, reasonably foreseeable consequence

iii. HYPO1. C agrees to be an accomplice to a crime (rob a store) by casing the store and reporting back to the other

accomplices but overnight changes his mind2. Should he still be held liable? Should be “locked in” b/c he already rendered the aid?

a. Policy- NO but has to take further action beyond just decided not to go through w/it- call police, try to stop the accomplices from going through w/it, take back whatever it was D did to aid & abet

i. Gives D a way to opt out and avoid liability- “withdrawaliv. MPC: not an accomplice if “he is a victim of that offense”

1. Silva- underage girl consented, therefore, aided and abetted in the commission of the crime- both victim & accomplice

a. If held victims liable as accomplices, most likely wouldn’t be able to prosecute case b/c victim won’t testify and incriminate herself

b. Also, doesn’t really seem fair to hold the victim of a crime liable

II. Criminal HomicideBold = common lawItalics = MPC

Intended Killings: INTENT (premeditation, deliberate & willfulness)

Unintended but Recklessly Risked Killings

Murder INTENTPurposely & Knowingly

Malice Aforethought

RECKLESS (+)Recklessness under circumstances manifesting extreme indifference to the value of human life

Depraved Heart Manslaughter INTENT (-)

Extreme emotional or mental disturbance

Heat of passion

RECKLESSReckless

Culpable Negligence

RECKLESS (-)Criminal negligence

Culpable Negligence

a. Murderi. Common Law murder = unlawful killing of another human being w/malice aforethought, either express or

implied1. criminal – murder & manslaughter2. innocent – justifiable & excusable

a. today doesn’t matter what category it falls into, no liability for either

ii. § 210.0 Definitions1. Human being means a person ho has been born and is alive2. Bodily injury means physical pain, illness, or any impairment of physical condition

Implied malice

3. Serious bodily injury means bodily injury which creates a substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ

4. Deadly weapon means any firearm, or other weapon , device, instrument, material or substance, whether animate or inanimate, which in the manner it is used or is intended to be used is known to be capable of producing death or serious bodily injury

iii. § 210.1 Criminal Homicide1. A person is guilty of criminal homicide if he purposely, knowingly recklessly, or negligently causes the

death of another human being. (does not include intent to cause grievous bodily harm)2. Criminal homicide is murder, manslaughter, or negligent homicide

iv. § 210.2. Murder1. Except as provided in Section 210.3 (1)(b) [manslaughter] criminal homicide is murder when

a. It is committed purposely or knowingly, orb. It is committed recklessly under circumstances manifesting extreme indifference to the value

of human life. Such recklessness and indifference are presumed if the actor is engaged or is an accomplice in the commission of, or an attempt to commit, or flight after committing or attempting to commit a robbery, rape, or deviate sexual intercourse by force or threat of force, arson, burglary, kidnapping, or felonious escape.

2. Murder is a felony in the first degree.

v. Malice Aforethought – doesn’t require ill-will premeditation1. Common Law: Malice aforethought – a term of art encompassing 4 different mental states, the presence

of any one which, in the absence of mitigating circumstances, will make an unlawful killing murder2. MPC: abandons “malice aforethought”3. People v. Morrin- intention to kill, actual or implied, under circumstances which don’t constitute excuse or

justification or mitigate the degree of the offense to manslaughter4. Comber v. US – 4 types of malice aforethought

a. specific intent to kill express maliceb. specific intent to inflict grievous bodily harmc. wanton & willful disregard of an unreasonable human risk (intent to kill or injure unnecessary)-

depraved heart murderi. only exists where actor is subjectively aware his conduct created an extreme risk of

death or serious injury but engaged in it anywayd. felony-murder : killing occurs in course of the intentional commission of a felony

5. Intent To Kill- conscious object or purpose was to cause death or knowingly that death was practically certain as result of conduct

a. State v. Stanley- D convicted of murder for shooting victim; argues no proof beyond reasonable doubt that he had intent to kill

i. Affirmed1. Deadly weapon doctrine – use of deadly weapon on a vital part of another

may allow factfinder to infer there was an intent to killa. Can infer the intent to kill from the type of weapon used, the manner

in which it was used, the type of wounds it inflicted and the events leading to and immediately following the death

i. Look @ how object was used, not what it’s inherent nature is (baseball bat- not inherently dangerous UNLESS used in a specific manner)

ii. Use to make inference as to actor’s subjective intentb. HYPO

i. Go to liquor store, pull gun on clerk and say “this is a stick up, give me all the money or i’ll kill you”

ii. Clerk reached under counter and pulls gun on robberiii. Robber shoots clerk twice in chest, clerk diesiv. Can Robber be guilty of murder?

1. YES- shooting someone in the chest, no matter in what situation, infers the intent to kill

a. No need to go to felony murder b/c have inference of an intent to kill via the deadly weapon doctrine exists

6. Intent To Cause Grievous Bodily Harma. Grievous bodily harm : is injury that creates a substantial risk of death or the causes

protracted disfigurement, protracted impairment of health, or loss or protracted impairment of the function of any bodily member or organ

b. Commonwealth v. Sneed- D convicted of murder for death of baby

Common Law

i. Reversed1. Both statute & common law state that for murder it must be grievous bodily

harma. If only intended to cause bodily harm & resulted in killing

manslaughterc. Anderson v. State- D convicted of murder for beating death

i. Affirmed1. Acting w/the purpose to inflict serious bodily harm

a. “Serious” used instead of “grievous” but still intent to cause extreme bodily harm

b. “Purpose”: conscious object to engage in conduct of that nature or cause such a result.

d. NOTE: There is a great overlap between murder based on an intent to cause grievous bodily harm and depraved heart murder because the mental state is very similar

7. Depraved Heart/Extreme Recklessness- actor recklessly killed under circumstances manifesting extreme indifference to the value of human life

a. State v. Robinson- D convicted of depraved heart murder for hitting victim in head w/golf club b. Alston v. State- gang shootout, victim was caught in cross-fire

i. Affirmed1. Act in question must be committed under circumstances manifesting

extreme indifference to the value of human life2. Engaged in conduct that created a very high risk of death or serious bodily

injury to othersc. It is an unintentional homicide in which the intent to kill is implied

i. The actor’s reckless conduct is imminently dangerous and creates a very substantial risk of death (vs. the substantial risk needed for manslaughter.)

ii. The mental state for depraved heart murder is recklessness, and the circumstances must objectively create a very substantial risk of death.

iii. Extreme Recklessness 1. A person subjectively knows of a risk and consciously disregards a very

substantial and unjustifiable risk that death will result from his conduct. 2. Subjective standard (but we can infer if a reasonable person would have been

aware of the risk, he should have was aware of the risk)

8. Felony Murder- death resulting from the commission of an inherently dangerous felony, wherein such commission results in a high probability of death (examples: rape, armed robbery)

a. Common Law: all felonies were punishable by death so felony murder rule didn’t arise- doesn’t matter if you killed someone during the commission of a felony, going to be put to death regardless

b. ascribes malice aforethought to someone who kills accidentally during the commission of a felony

i. implies intent, even though D may not have had the requisite intent to kill- opposite of the holding in Cunningham

c. highly criticized: Legislatures have placed restrictions on the felony murder rule felony has to be “inherently dangerous to human life”

d. People v. Hansen (CA)- D shot into what he thought was an unoccupied house & killed teeni. Affirmed – Rudstein doesn’t agree w/this decision (no substantial risk if house is empty)

1. Looked @ elements of the felony in the abstract to determine if it’s inherently dangerous to human life

a. “an inherently dangerous felony is one which by its very nature cannot be committed w/o creating a substantial risk that someone will be killed”

b. “inherently dangerous felony is an offense carrying a high probability that death will result”

ii. DISSENT – confusing likelihood of people being present w/likelihood of death; if def. of dwelling doesn’t require people to be present, then there can’t be a high probability that death will result

1. Example – False imprisonment felonious when accompanied by violence, fraud, or deceit. Not inherently dangerous, because could be done with fraud or deceit, which create almost no risk of death.

e. Ex Parte Mitchell- D convicted for shooting death that occurred when selling weed; argued selling weed not inherently dangerous to life

i. Affirmed – Rudstein doesn’t really agree w/this one, not enough facts to know1. Adopts factual approach – look @ the facts of the case to decide if the D

carried out the predicated felony in a way that was dangerous to human life2.

f. Problems p.273

i. Felony: possession of sawed-off shotgun 1. Majority of the time anyone who has a sawed-off shotgun, it’s there to be used

a. However, under CA (Hansen) rule, looking @ felony in the abstract, possession of a sawed-off shotgun isn’t inherently dangerous to life

ii. Felony: false imprisonment a. By violence- inherently dangerous, obviouslyb. By menace- substantial possibility that it will result in violencec. By fraud- not inherently dangerousd. By deceit- not inherently dangerous

2. In the abstract- not inherently dangerous b/c there are instances when it can be committed w/o any danger to another

a. What’s wrong w/this approach?i. Wording of the statute lumps together various way in which felony

can be committed- 2 of which aren’t inherently dangerous3. Factual approach- inherently dangerous; felony perpetrated by violence (placed gun

@ person’s neck)iii. Felony: furnishing cocaine

1. Hansen rule- could sustain felony murder- comes close to Mitchell rulea. statute here creates various crimes since it describes the selling, furnishing,

administering, giving away, or transporting, etc. etcg. Barnett v. State- D killed man w/garden hoe; underlying felony – assault in 1st degree

i. Reversed1. Merger doctrine : Can’t instruct on felony murder when it’s based on a felony

that’s directly resulted in or is an integral part of the homicide; elements of the felony must be independent of the homicide (assault & battery)

a. Being able to prove murder by proving the intent element for assault instead of the required mens rea for murder/manslaughter would eliminate AL’s homicide laws & be contrary to legislative intent

b. Limits the scope of the felony murder rule h. Rodriguez v. State- D convicted of felony murder as accomplice to attempted robbery (principal

executed victim but didn’t steal anything); argued murder was an independent act from robberyi. Reversed

1. Evidence that the murder was separate independent act, didn’t occur in the course of or the furtherance of the attempted robbery

i. People v. Lowery- D convicted of felony murder when victim of armed robbery (that he’d attempted) shot @ him and accidentally killed a bystander; conviction was reversed

i. Reversed 1. Proximate cause of liability - liability attaches under felony murder rule for

any death proximately resulting from the unlawful activitya. victim’s retaliation was a foreseeable consequence of the initial

criminal act b. D put the events that led to the shooting into motion

2. Idea of legal safety: felony ends when D reaches a point of legal safety3. Broad application of the felony murder rule (shooting wasn’t really in self-

defense, D was being chased by victim)j. People v. Washington (CA, 1965)- D convicted of felony murder when accomplice was killed by

victim of their attempted robberyi. Reversed

1. Agency theory: killing must be commited by felon or an accomplice b/c otherwise it’s not committed in the perpetration of the felony

ii. Narrowed scope of felony murder rule k. Taylor v. Superior Court of Alameda Co. (CA, 1970)- D convicted of felony murder when

accomplice was killed by victim of their attempted robbery; same as Washingtoni. Affirmed

1. How did they distinguish Washington?a. All Washington decided was that for the felony murder rule to

apply, it has to be one of the felons that fired the fatal shot (D is right in that he can’t be found guilty under the felony murder rule)

2. Court isn’t relying on the felony murder rule- relying on depraved heart murder to find that D had malice aforethought

a. Where do they find the malice aforethought that shows a conscious disregard of a substantial risk of death or grievous bodily harm?

i. Provoking the “gun battle”- don’t have to fire the first shot to initiate the gun battle

ii. D is liable through accomplice/vicarious liability b/c it was his accomplice that initiated the gun fight

vi. Degrees of Murder: Premeditation & Deliberation1. Common Law: there weren’t degrees of murder

a. why?- all felonies were punishable by death, therefore, there was no need to distinguish between degrees of murder b/c they’re all felonies

b. why did PA install degrees (1st to do so)?- trying to change the punishment associated w/types of killings

i. not all killings equal- intentional worse than unintentional2. Modern view

a. Assumed to be 2nd degree murder unless prosecutor proves beyond a reasonable doubt that it was 1st

b. 1st degree murderi. committed during the commission of certain felonies (robbery, arson, kidnapping &

sexual assault)ii. perpetrated by a specified means (poison, lying in wait, or torture)

iii. perpetrated by any other kind of willful, deliberate and premeditated killing3. Commonwealth v. Carroll – D convicted of 1st degree murder for shotting sleeping wife twice in the back

of the head; argued evidence was insufficient to show premeditation (2nd degree murder)a. Affirmed

i. Very obvious to court that this was a deliberate killing Equate premeditation, deliberation & willfulness with an intent to kill- that’s all that’s necessary for 1st degree murder

ii. Premeditation can happen in an instant4. State v. Brown- D convicted of 1st degree murder for death of 4yr old resulting from repeated blows to the

head; argued evidence insufficient to show required premeditation & deliberationa. Reduced to 2nd degree murder – evidence only shows D assaulted child in heat of passion/anger;

no premeditation or deliberationi. Wilfully – w/the purpose/intent that that the act by which the life of a party is taken

should have that effectii. Deliberately – w/cool purpose; reflecting on decision to kill can’t be formed in

an instantiii. Maliciously – w/malice aforethoughtiv. Premeditation – a design must be formed to kill, b/4 the act by which the death

produced, is performed more than a split-second is needed to constitute premeditation

b. Deliberation & premeditation must be present for 1st degree murder – they aren’t interchangeable

5. People v. Anderson – D convicted for stabbing death of young girl not found to be premeditated – takes same approach as Brown court

a. willful, deliberate and premeditated means there must be a preexisting reflection, actual deliberation, careful thought and weighing of considerations, as a deliberate judgment or plan, carried out coolly and steadily according to a preconceived design

b. deliberation & premeditation can be shown thru circumstantial evidencei. 3 categories of the type of evidence sufficient to sustain a finding of premeditation and

deliberation1. planning activity: How & what the D did prior to the killing2. motive: Facts about the D’s prior relationship and/or conduct w/the victim3. manner of killing : Facts about the nature of the killing from which the jury

could infer that the manner of the killing was so particular and exacting that the D must’ve intentionally killed according to a preconceived design

ii. to sustain 1st degree murder conviction w/circumstantial evidence, there has to be either:

1. evidence of all 3 types;2. extremely strong evidence of planning activity; or3. evidence of motive in conjunction w/evidence of either planning activity or a

particular and exacting manner of killing

b. Manslaughter

i. §210.3 Manslaughter1. Criminal homicide constitutes manslaughter when:

b. A homicide which would otherwise be murder is committed under the influence of extreme mental or emotional disturbance for which there is reasonable explanation or excuse. The reasonableness of such explanation or excuse shall be determined from the viewpoint of a person in the actor’s situation under the circumstances as he believes them to be

2. Manslaughter is a felony of the 2nd degree

3. Abandoned any distinctions b/t the types (vol/invol)

ii. Common Law1. Any criminal homicide committed w/o malice aforethought is manslaughter2. Separated it into voluntary & involuntary manslaughter3. Voluntary Manslaughter – intentional criminal homicide that would be murder except for the presence

of mitigating circumstancesa. Mitigating circumstances

i. Heat of passion manslaughter

iii. “Heat of Passion” Voluntary Manslaughter1. How are vol. manslaughter, 1st & 2nd degree murder similar?

a. Intent to kill is necessary for all three2. Why is the intent to kill not enough to make manslaughter murder?

a. No malice aforethoughtb. An element of provocation

3. Manslaughter requirementsa. Committed in heat of passion – loss of self-control, emotions are so intense they distort actor’s

practical reasoningb. Provocation

i. Common law – provocation had to fit into defined categories otherwise provocation wasn’t adequate (mere words never enough)

1. Finding one’s spouse having sex w/another2. Mutual combat3. Assault & battery

ii. Modern view – provocation that would cause a reasonable person to lose control1. if no reasonable person could find the provocation to be adequate, judge may

exclude evidence of provocation2. words (informative or mere insults) may constitute legally adequate

provocationa. informative - Words that fit into the categories defined as sufficient

for adequate provocation – being told is one step removed from actual conduct that fits into the category

c. No cooling off periodd. Causal connection b/t provocation, heat of passion & killing

4. Vol. manslaughter is a lesser crime than murder b/c the courts understand that there are certain situations that may arouse such intense emotions in a person that they are unable to act rationale & those people should be treated differently from the one that takes the time out to plan a murder

5. People v. Pouncey- D convicted of 2nd degree murder for shooting victim after argument re: theft of a car; conviction reversed b/c vol. manslaughter intruction should’ve been given

a. Reversedi. 3 components of vol. manslaughter

1. D must kill in heat of passiona. Emotions must be so intense that they distort D’s reasoning

i. D stated that he wasn’t angry when he went inside the house & got the gun

2. Passion must be caused by adequate provocationa. Must be of a nature that it’s a cause a reasonable person to lose

controli. Mere word don’t constitute adequate provocation

ii. “informative words” have been found to constitute adequate provocation

iii. Words that fit into the categories defined as sufficient for adequate provocation (p.327)- being told is one step removed form actual conduct that fits into the category

3. There can’t be any lapse in time during which a reasonable person could control his passion

a. Enough time passed b/t time that D went into house & came back out w/the gun to constitute a cooling period

6. Girouard v. State- D stabbed wife 16 times & convicted of 2nd degree murder

a. Affirmed – mere words not enough for adequate provocation; takes common law approach there are certain well-defined categories of provocation

7. People v. Sullivan- D convicted of 1st degree murder for stabbing death of his wifea. Affirmed – provocation wasn’t adequate to cause a reasonable person to lose control (mental

qualities of the D are irrelevant in determining the adequacy of the provocation)

iv. Involuntary Manslaughter

1. In Generala. common law- criminal negligence (gross, culpable negligence) was necessary for invol.

manslaughterb. MPC- elevated the culpability necessary to “recklessly” committing homicide

i. What’s the problem w/the MPC elevating it to “recklessly”?1. Blurs line b/t invol. manslaughter & depraved heart murder2. What gap is left under MPC b/c of this elevation?

a. No liability for manslaughter if only criminal negligentii. Eliminate this gap by creating “negligent homicide”

c. §210.3 Manslaughter1. Criminal homicide constitutes manslaughter when

a. It is committed recklessly2. Manslaughter is a felony in the 2nd degree

d. §210.4 Negligent Homicide1. Criminal homicide constitutes negligent homicide when it is committed negligently2. Negligent homicide is a felony of the 3rd degree

2. Criminal Negligence or Recklessnessa. State v. Davis- D convicted of invol. manslaughter b/c of accidental drowning of her 2yr old

i. Reversed1. No evidence of criminal negligence

a. Criminal negligence: “when a man of ordinary prudence would foresee that the act would cause a high degree of risk of death or great bodily harm” same as MPC

2. Def. of invol. manslaughter: unlawful killing of another without malice, either express or implied, that occurs in the commission of some unlawful act

3. Unlawful Acta. Common law rule that a charge of involuntary manslaughter for a homicide committed without

malice aforethought, that is neither justified not excused if a killing occurs during the commission of an unlawful act (such as battery, assault, speeding etc.)

i. Must be a causal relation between the violation and the death1. Malum Prohibitum conduct: Look to whether the prohibited aspect of the

conduct actually caused the death, and if it was a natural of foreseeable consequence. (failing to renew driver’s license, then runs over a pedestrian)

2. Malum in Se Conduct: the unlawfulness adheres to the entirety of the act. Look to whether there was but-for causation

ii. allows an unlawful act to be the basis of invol. manslaughter conviction even if conduct didn’t create any perceptible risk of death

b. MPC has eliminated unlawful act manslaughter & requires criminal negligence (substantial risk of death)

c. State v. Pray- D convicted of manslaughter after hitting victim causing him to fall & crack head on pavement

i. Reversed – instructions for invol. manslaughter shouldn’t have been given, they were wrong

1. Common law rule no longer applicable

III. Causation

a. §2.03 Causal Relationship between Conduct & Result1. Conduct is the cause of a result when:

a. It is an antecedent but for which the result in question wouldn’t have occurred; andb. The relationship b/t the conduct and the result satisfies any additional causal requirements imposed by

the Code or by the law defining the offense.

2. When purposely or knowingly causing a particular result is an element of an offense, the element is not established if the actual result is not within the purpose or contemplation of the actor unless:

a. The actual result differs from that designed or contemplated, as the case may be, only in the respect that a different person or different property is injured or affected or that the injury or harm designed or contemplated would have been more serious or more extensive than that caused; or

b. The actual result involves the same kind of injury or harm as that designed or contemplated and isn’t too remote or accidental in its occurrence to have a [just] bearing on the actor’s liability or on the gravity of the offense.

3. When recklessly or negligently causing a particular result is an element of an offense, the element isn’t establishes if the actual result isn’t with the risk of which the actor is aware, or in the case of negligence, of which he should be aware unless:

a. The actual result differs from the probable result only in the respect that a different person or different property is injured or affected or that the probable injury or harm would have been more serious or more extensive than that caused; or

b. The actual result involves the same kind of injury or harm as the probable result and isn’t too remote or accidental in its occurrence to have a [just] bearing on the actor’s liability or on the gravity of the offense.

4. When causing a particular result is a material element of an offense for which absolute liability is imposed by law, the element isn’t established unless the actual result is a probable consequence of the actor’s conduct

b. In most cases, causation isn’t going be an issuec. There are some cases where there will be: D’s conduct intervening act (direct cause) death

i. Legal Cause = cause in fact + proximate cause1. First need to determine factual causation

a. Use “but for” testi. There can be hundred of factual causes

b. Was the D a cause in fact of the death?i. If NO- ends here

ii. If YES- look @ proximate cause2. Second: proximate cause foreseeability test

a. needs to be closely related enough to the death to hold a D liableb. intervening causes

i. independent intervening cause (coincidence)– force that doesn’t occur in response or reaction to the actor’s conduct; D’s act merely places victim @ a certain place @ a certain time, thus subjecting victim to the intervening cause

1. breaks causal chain unless it was foreseeable (i.e. doesn’t break if it’s unforeseeable)

ii. dependent intervening cause (response)– force that occurs in reaction or response to the actor’s initial conduct; reaction to the condition created by D

1. doesn’t break causal chain unless it was highly abnormal or bizarre and unforeseeable

d. State v. Rose- D convicted of manslaughter for hit & run deathi. Reversed - Rudstein doesn’t agree w/this holding

1. Evidence didn’t establish proof beyond a reasonable doubta. Court found that there was no evidence of criminal negligence by D up to & including the time

that victim was hit by D’s car, therefore: i. If victim was dead before D drove off, his criminal negligence has nothing to do with the

death Requirement that the actual culpability of the actor to have caused the death

e. Eversley v. State- D convicted of manslaughter for death of baby (rare form of pneumonia)i. Reversed

1. “but for” test of cause in fact causation should’ve been useda. “substantial factor” test should only be used when 2 independently sufficient causes combine to

cause the death “but for” test is impossible in this casei. there weren’t 2 independently sufficient causes operating together in this case

2. evidence didn’t prove beyond a reasonable doubt that but-for D’s failure to render aid the baby wouldn’t have died

a. holds that this doesn’t constitute criminal negligence so causation issue is irrelevant anywayf. McKinnon v. US- D convicted of 1st degree murder (slashed victims throat but she died from complications form aid given @

hospital to treat neck wound)i. Affirmed

1. Foreseeability test – D criminally liable for all harms that are reasonably foreseeable consequences of his conduct

a. Wound medical treatment obviously necessary (blood transfusions part of treatment) hepatitis is small, but potential risk from blood transfusions

g. State v. Smith- D convicted of invol. manslaughter: Punched victim in head victim fell and hit head on concrete causes skull fracture & other brain injuries caused damage to frontal lobes adversely affected victims ability to take care of himself didn’t take insulin died of diabetic ketoacidosis; argued unforeseen intervening events, therefore his conduct not a proximate cause of the death

i. Affirmed1. court determines that victim’s inability to take care of himself (alleged intervening cause) was a response

to D’s conduct (not a coincidence, which would break causal chain and excuse D from liability if it was abnormal & unforeseeable)

a. D doesn’t need to be aware of the exact consequences of his conduct, just as long as the result is w/i the natural and logical scope of risk created

IV. Justification & Excuses

a. Self Defensei. Common Law –

1. justified in using a reasonable amount of force to defend himself when he actually and reasonably believes such force is necessary to prevent the use of imminent unlawful force against him

a. Can only use deadly force if there’s an actual and reasonable belief that it’s necessary to prevent imminent death or grievous bodily harm

b. Most states have adopted the common law definition for self-defense2. No duty to retreat before using force, even deadly force 3. Not available if D was aggressor

ii. MPC – 1. doesn’t include “honest & reasonable” belief2. deadly force justified to protect against death, serious bodily injury, kidnapping or sexual intercourse

compelled by force or threat3. duty to retreat before using deadly force if retreat is possible in complete safety

a. Exception: castle doctrine – no duty to retreat before using deadly force if attacked @ home or work

iii. Use subjective standard to determine reasonableness of D’s belief1. Look @ circumstances from D’s point of view to determine if they were sufficient to induce in D an honest

and reasonable belief that he had to use force to defend himself against imminent unlawful forcea. Factfinder can consider D’s unique mental and physical characteristics in determining the

reasonableness of his beliefsiv. People v. Goetz- D indicted for attempted murder after shooting 4 teens on subway; charges were dismissed

1. Reversed (charged reinstated)a. Objective perspective used to analyze reasonableness of D’s belief that use of force is necessary

i. “a person may…use physical force upon another person when and to the extent he reasonably believes such to be necessary to defend himself or a third person from what he reasonably believes to be the use or imminent use of unlawful physical force by such other person”

v. Culverson v. State- D convicted of 1st degree murder for shooting victim; argued duty to retreat shouldn’t have been part of jury instructions

1. Reverseda. No duty to retreat if reasonable person in D’s position would believe assailant about to kill or

cause serious bodily harm to him2. DISSENT

a. Impose duty to retreat only if retreat is possible in complete safety vi. State v. Golson- D convicted of 2nd degree attempted murder of his wife; argued evidence was insufficient to prove

he wasn’t acting in self-defense1. Affirmed

a. Force used was unreasonable in the circumstances and not necessary to prevent an imminent assault

vii. Swann v. US- D convicted of 1st degree murder for shooting victim; argued vol. manslaughter instruction based on imperfect self-defense should’ve been given

1. Affirmed- failure to instruct on lesser included offense was harmless b/c mitigation claim (imperfect self-defense) can’t co-exist w/jury’s finding of premeditation

a. Self defense: i. D must have an actual belief both that he’s in imminent danger of serious bodily harm

or death & in the need to use deadly force in order to save himselfii. In addition to such an actual belief, D’s belief must be objectively reasonable

b. Imperfect self-defense: i. jury may conclude that D’s belief that he was in imminent danger and that he had to use

deadly force was in fact actually and honestly held BUT was in one or both respects

objectively unreasonable liable for vol. manslaughter instead of murder (not available @ common law)

viii. State v. Davis- D convicted of felony murder (shot man when trying to break into the house)1. Reversed- but NOT on self-defense claim b/c of failure to instruct on lesser included offense

a. For self-defense: D has to show his conduct was “what a reasonably cautious and prudent person in similar circumstances would’ve done and he reasonably believed he was in danger of bodily harm”

i. Defense is unavailable if D’s actions precipitated or provoked the altercation that required the use of force

ix. State v. Mayberry- D convicted of 2nd degree murder for stabbing victim to death; Argued there was error by including “w/o felonious intent” in the self-defense instructions b/c it narrowed the scope

1. Reverseda. Instructions erroneously prejudicial jury could’ve believed that self-defense wasn’t available

to D if he got into the situation w/felonious intenti. D attempted to withdraw in good faith

1. So, even if he had started/entered the altercation w/felonious intent his right to self-defense is revived upon withdrawal being made

a. Withdrawal = abandonment of the struggle that’s perceived by the other party

b. Defense of Another i. MPC – 3 conditions need to be met for defense of another

1. Actor would be justified in using such force to protect himself against he injury he believes to be threatened to the other person

2. Under the circumstances as the actor believes them to be, the person whom he seeks to protect would be justified in using such protective force

3. Actor believes that his intervention is necessary for the protection of the other personii. State v. Beeley- D convicted of simple assault for punching guy in face once

1. Reverseda. Rejected the alter ego rule used by lower court objective standard (common law)

i. the right to defend another is dependent on that person’s right to defend themselvesb. followed MPC rule

i. defense of another is a justification if D reasonably believes that the person is being unlawfully attacked

c. Duressi. Common law – not available for any intentional killing

1. Rule for defense of duressa. D must demonstrate that his criminal conduct was the product of an unlawful threat that

caused him reasonably to believe that performing the criminal conduct was his only reasonably opportunity to avoid imminent death or serious bodily harm, either to himself or to another

b. Can’t rely on this defense if he had reasonable opportunity to “both refuse to do the criminal act and also to avoid the threatened harm”

ii. MPC – 1. Affirmative defense that the actor engaged in the conduct b/c he was coerced to do so by use of, or threat

to use, unlawful force against his person or the person of another, which a person of reasonable firmness in his situation would’ve been unable to resist

2. Unavailable if actor recklessly or negligently put himself in the situationiii. Daung Sam v. Commonwealth- D convicted of murder; argued defense of duress can be based on threats to family

members1. Affirmed

a. Defense of duress can be based on threats to family BUT D had a chance to stop his participation in the crimes & warn his family but failed to do so, therefore, defense of duress is unavailable to him

b.iv. People v. Anderson- D convicted of 1st degree murder & kidnapping; argued instruction on defense of duress

should’ve been given1. Affirmed

a. Defense of duress isn’t available for murderi. Never was @ common law & isn’t by statute

ii. Conflicts w/the rationale behind the defense of duress: “it’s better that the D faced with a choice of evils, choose to do the lesser evil (violate criminal law) in order to avoid the greater evil threatened by the other person”

1. The resulting harm in murder committed under duress (death of an innocent person) is @ least as great as the threatened harm (death of D)

d. Necessityi. Elements of the defense

1. that there is no 3rd and legal alternative available2. that the harm to be prevented was imminent3. that a direct causal relationship may be reasonable anticipated to exist b/t D’s action and the avoidance of

the harmii. State v. Messler- D convicted of speeding b/c he sped up to get out of trooper’s way

1. Reverseda. Evidence to support the defense of necessity, therefore, instruction should’ve been given