User:CheshireKatz/Criminal

User:CheshireKatz/Criminal/State v. Mott
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R. v. Park

Actus reus

Omission

“Past voluntary conduct specified in advance by statute or case law”

Omissions (Failures to Act) made criminal by

Statutes

Contract

Special Relationship (Family, Guardian,

Voluntary Assumption of Care, so as to Seclude the Victim

Creation of the Life-Threatening Peril to the Victim (sometimes)

Jones v. United States, 308 F.2d 307

Criminal Constructive Possession

Power over item

Intent to Exercise Control over item

United States v. Maldonado, 23 F.3d 4 (Hotel drug deal)

United States v. Jenkins, 90 F.3d 814 (Sitting by drugs on table)

People v. Gina, 137 A.D.2d 555 (

Requirement of Voluntariness

Prohibition of “Status” Crimes: California statute making addiction to narcotics a criminal offense was struck down. Miami (et al.) statute making performing “life sustaining activities in public” illegal. ACLU claimed this was a veiled proxy for punishment of status.

Robinson v. California, 370 U.S. 660

Status

Don’t punish people for what they are (race, gender, handicapped, addict) Punish them for what they do (drunk driving, buying/selling drugs, loitering)

Pottinger v. City of Miami
Miami legislature attempted to get around prohibited “status law” Miami bans performance of “life-sustaining activities in public” Referred to “Powell v. Texas” affirming ban on public drunkenness ACLU contest the law distinguishing it from Powell Alcoholics can drink at home, homeless have no home to go to Miami points to homeless shelters ACLU contests that homeless shelters are insufficient Miami contends “homeless” is not a status, as it is not immutable Court says that it is a status

Johnson v. State, 602 So.2d 1288

Legality Principle – “Past voluntary conduct specified in advance by statute or case law” Reasons: Fair Warning Public should have reason to know consequences of actions Separation of Powers Judicial Branch should not be lawmakers Potential for arbitrary enforcement Legislation being used to target individuals discriminatorily

Commonwealth v. Keller, 35 D. & C.2d 615 (1964) Keller claims to have drowned baby

Rogers v. Tennessee, 532 U.S. 451 (2001)

Keeler v. Superior Court, 2 Cal.3d 619 “Killing of human being with malice aforethought”

Malice aforethought

Chicago v. Morales, 527 U.S. 41 Broad legislation struck down Public was highly supportive of legislation However it would set a dangerous precedent

For specificity there must be a: Location restriction Scienter - Knowingly. Having the requisite knowledge of the wrongness/illegality of an act or conduct; guilty knowledge; knowing the impropriety/illegality associated with doing certain acts. This is often an element of liability or guilt that must be proven before a judgement or conviction can be obtained.

Loiter in or about public restroom for the purpose of engaging in or soliciting lewd and lascivious conduct California SC decided it did not serve as fair warning

Vagueness

Criminal Law Class – 01/22/07

“Past voluntary conduct specified in advance by statute or case law” Voluntary = Conduct = Specified in Advance = By Statute or Case Law =

Vagueness Challenges “Loiter(A2 & A3) in or about any toilet(B1) open to the public for the purpose(B2) of engaging in or soliciting any lewd(A1-A2) or lascivious(A1-A2) or unlawful act”

Two Arguments for Vagueness A1) Notice / Fair Warning What qualifies as lewd & lascivious behaviour? A2) Potential for Arbitrary Law Enforcement What A3) Overt act • Is the act connected to the crime? • How many who participate in the act would be committers of crime?

Two Arguments against Vagueness B1) Location Restriction B2) Scienter (intent)

Strict Liability

Eg. “Possessing inhibited drugs with hallucinogenic properties” • Where is the mens rea? Legislature claims it’s “Knowledge” But what about the extent of knowledge? 1) Possession of Drugs? 2) The Drugs Were Inhibited? 3) They Contained Hallucinogenic Properties? • Pure: “Knowledge” does not need to connect to any • Impure: “Knowledge” must connect to some or all of the acts

Pro-Strict Liability (supportive) • Popular among state legislatures In certain acts, Actus Reus is enough for a criminal misdemeanor • For the sake of Public Safety, 20th c. Regulatory Crimes, Lower Penalties • Statutory Rape has always been Strict Liability

Anti-Strict Liability (non-supportive) – “Need a guilty mind” • Model Penal Code (more interested in punishing the criminal intent) If even a possibility of jail time, there must be intent to commit act. • “Positive aggressions against State, persons, property, or public morals” • Severe Penalties or Significant damage to reputations • 6 mos (misdemeanor) v. 2 yrs (felony), no diff. in court opinion • Courts more concerned with actual jail time than other losses •

Common-law Origin – “Positive aggressions (or invasions)” These tend to not be strict liability. Aggressions against the person, the state, property, or public morals

People v. Dillard F: Boy riding bicycle carrying a gun that he was unaware was loaded. H: For the sake of public safety, we ignore mens rea.

Morissette v. United States, 342 U.S. 246 F: Junk dealer appropriates spent bomb casings. State charges him with “knowingly converting government property,” a modern form of larceny. H: Larceny, from common law roots, requires a guilty mind.

Early 1900s, legislature passes public welfare regulatory statutes. Acme Foods selling products inadvertently poisoned in factories. Government goes after the company president, though he lacks mens rea. For the sake of public safety, mens rea is not necessary.

United States v. Wulff, 758 F.2d 1121 F: Wulff tries to sell necklace made of migratory birds’ talons, in violation of law.

United States v. Engler, 806 F.2d 425 F: Engler possesses a necklace made of migratory bird feathers

United States v. X-Citement Video, 513 U.S. 64 (1994) F: “knowingly transports or ships in interstate or foreign commerce…any visual depiction, if (A)

If Food, Drug, or Public Safety, then Strict Liability If “positive aggressions against State, persons, property, or public morals” or if severe penalties or significant damage to reputations or of common law origin, then a guilty mind is necessary.

Mens rea

Model Penal Code diction

Chart available on pg. 193
Specific Intent	Purposely	Conscious objective or positive desire to achieve goal
	Knowingly	Aware of a high probability
General Intent	Recklessly	Aware of a substantial & unjustifiable risk and disregarded it
	Negligently	Should have been aware of a substantial & unjustifiable risk

Mens rea arguments

Pro-Strict Liability (supportive) - Popular among state legislatures

• In certain acts, Actus Reus is enough for a criminal misdemeanor

For the sake of Public Safety, 20th c. Regulatory Crimes, Lower Penalties

Statutory Rape has always been Strict Liability

Anti-Strict Liability (non-supportive) – Model Penal Code

• If even a possibility of jail time, there must be intent to commit act.

“Positive aggressions against State, persons, property, or public morals”

Severe Penalties or Significant damage to reputations [6 mos (misdemeanor) v. 2 yrs (felony), no diff. in court opinion]

Courts more concerned with actual jail time than other losses

Eg. “Possessing inhibited drugs with hallucinogenic properties”

• Where is the mens rea? Legislature claims it’s “Knowledge”
• But what about the extent of knowledge?

1) Possession of Drugs?

2) The Drugs Were Inhibited?

3) They Contained Hallucinogenic Properties?

• Kinds of Strict Liability

Pure: “Knowledge” does not need to connect to any

Impure: “Knowledge” must connect to some or all of the acts

Early 1900s, legislature passes public welfare regulatory statutes. Acme Foods selling products inadvertently poisoned in factories. Government goes after the company president, though he lacks mens rea. For the sake of public safety, mens rea is not necessary.

If Food, Drugs, or Public Safety involved, then Strict liability If "a positive aggressions against State, persons, property, or public morals" or if severe penalties or significant damage to reputations or cause of action originates from common law, then a guilty mind is necessary.

The recklessness default rule attaches the recklessness standards to any element of a crime without a mens rea standard attached to it.

Burglary (3rd Deg)

Enters a building or occupied structure } Recklessly

with purpose to commit a crime therein } Purposefully

unless the actor is privileged to enter. } Recklessly

“ “ (2nd Deg)

“ “ …if perpetrated in the dwelling of another at night. } Recklessly

MR: Purpose to commit crime; AR: Enters a building…

In most jurisdictions, if you are in a building you are not privileged to be in, with the purpose of committing a crime, then guilty of Burglary (3rd Deg).

Examples on pg. 210

A) No Mens Rea purpose to commit crime on entry,

B) 3rd, but not 2nd, since he wasn’t aware of substantial risk of dwelling

C) 3rd, but not 2nd, No Actus Reus to enter dwelling

Mens rea cases

People v. Dillard, 154 Cal. App.3d 261 (1984) F: Boy riding bike with gun aware it's loaded.

Morissette v. U.S., 342 U.S. 246 (1952) F: Junk dealer selling salvaged government bomb casings

U.S. v. Wulff, 758 F.2d 1121 (6th Cir. 1985) F: Wulff tries to sell necklace made of migratory birds’ talons, in violation of law.

U.S. v. Engler, 806 F.2d 425 (3d Cir. 1986) F: Engler possesses a necklace made of migratory birds' feathers, in violation of law.

U.S. v. X-Citement Video, 513 U.S. 64 (1994) F: Distributors charged with sale of kiddie porn

U.S. v. Dotterweich, 320 U.S. 277 (1943) F: Pharm. CEO charged with selling misbranded & adulterated drugs. (see Vicarious liability)

U.S. v. Park, 421 U.S. 658 (1975) F: Acme Markets President charged with selling contaminated food. He is liable unless, "powerless to prevent or correct the violation"

Lambert v. California, 355 U.S. 225 (1957) F: Failure to register as felon

Liparota v. U.S., 471 U.S. 419 (1985) F: Restaurant owner charged with knowingly buying food stamps illegally

A strict reading of the statute with no knowledge-of-illegality requirement would thus render criminal a food stamp recipient who, for example, used stamps to purchase food from a store that, unknown to him, charged higher than normal prices to food stamp program participants. Such a reading would also render criminal a nonrecipient of food stamps who "possessed" stamps because he was mistakenly sent them through the [471 U.S. 419, 427] mail 11 due to administrative error, "altered" them by tearing them up, and "transferred" them by throwing them away. Of course, Congress could have intended that this broad range of conduct be made illegal, perhaps with the understanding that prosecutors would exercise their discretion to avoid such harsh results. However, given the paucity of material suggesting that Congress did so intend, we are reluctant to adopt such a sweeping interpretation.

People v. Ryan, 82 N.Y.2d 497 (1993) F: Ryan charged with knowingly unlawfully possessing 625mg of a hallucinogen. Ryan claims he didn't know how much psilocybin was in the mushrooms and gets off. Law is rewritten to say

Legal Defenses

Affirmative Defenses

Two Burdens on Defense (Post-Hinkley)

Burden of Production

Insanity: Expert Testimony
Intoxication: Evidence - BAC or witnesses of alcohol consumption

Burden of Persuasion

Must persuade a jury the affirmative defense is true

Actus reus Defenses

Automatism

One's act was not voluntary (actor was unconscious, physically forced, etc.)

Self-Defense

One's act was in response to a reasonable fear of imminent bodily harm

Self-Defense Requirements
Kind	Honest?	Reasonable?	Benefit
Perfect	YES	YES	Exonerates
Imperfect		NO	Mitigates*

If your self-defense action was honest, but reckless (unreasonable) you have no defense to crimes of recklessness.

Self-Defense under MPC
Does the actor...	Yes or No
actually need	YES	NO	NO	YES
honestly believe he needs	YES	YES	YES	NO
reasonably believe he needs	YES	YES	NO	YES, (Had He Honestly Believed)
...to protect himself against the use of unlawful force?	Conduct is Justified	Conduct is Excused	"Imperfect" Self-Defense;	No Defense; See § 3.04(1)
	Exonerates		Mitigates

Under MPC, if your honest self-defense action was reckless, then you have no defense to crimes of recklessness or negligence. If your honest self-defense action was negligent, then you have no defense to crimes of negligence.

Section 3.04 Use of Force in Self-Protection

1. Use of Force Justifiable for Protection of the Person.
   Subject to the provisions of this Section and of Section 3.09, the use of force upon or toward another person is justifiable when the actor believes that such force is immediately necessary for the purpose...of protecting himself against the use of unlawful force by such other person on the present occasion.
2. Limitations on Justifying Necessity for Use of Force.
   
   1. The use of force is not justifiable under this Section:
      1. to resist an arrest that the actor knows is being made by a peace officer, although the arrest is unlawful; or
      2. to resist force used by the occupier

Retreat rule: Never caught on. Castle rule: Widely accepted.

People v. Lavoie, 395 P.2d 1001 (1964) F: Rear-ended pharmacist R: Colorado statute:

“When a person has reasonable grounds for believing, and does in fact actually believe, that danger of his being killed, or of receiving great bodily harm is imminent, he may act on such appearances and defend himself, even to the extent of taking human life when necessary, although it may turn out to be false, or although he may have been mistaken as to the extent of the real or actual danger.”

H: Court (unusually) ordered judgment as a matter of law for "perfect" self-defense. One reasonably in fear of his safety may use deadly force against the source of the fear. The elements of the defense are fear must be reasonable and actually felt by D. Mistaken fear, as long as it is reasonable is ok. The burden of proof here fell to the prosecution.

People v. Gleghorn, 193 Cal. App. 3d 199 (1987) F: Gleghorn enters Fairall's habitat at 3am for the announced purpose of killing him. Gleghorn beat the sleeping Fairall out of bed with a stick and sets a fire under him. Fairall fires an arrow at Gleghorn and in response Gleghorn beats him seriously. H:

Initial aggressor is determined by the gross escalation of violence, which

State v. Leidholm, 334 N.W.2d 811 (1983) F: Drunk wife kills sleeping husband and claims battered wife syndrome

People v. Goetz, 68 N.Y.2d 96 (N.Y. 1986) F: Armed subway passenger shoots teen attempting to intimidate him.

People v. Abbott, (N.Y. 1980) F:

Tennessee v. Garner, 471 U.S. 1 (1985) F: Police Officer shot a teenager in the head fleeing from a burglary.

Necessity (Choice of Evils)

The Queen v. Dudley & Stephens, 14 Q.B.D. 273 (1884) F: Shipmates lost at sea, Pounce upon & eat delusional cabin boy for survival. H: Failure to draw straws or otherwise accept an equal risk of sacrifice for shipmates, demonstrates a lack of necessity.

1) Balancing of harm

(eg. Destruction of Property vs. Lives)

Who balances the harm? Sometimes judge has preliminary review, sometimes goes straight to jury.

U.S. v. Oakland Cannabis Buyers' Coop, 532 U.S. 485 (2001) H: Legislature already decided marijuana didn't have sufficient medical benefits under any conditions to justify use in defiance of law.

State v. Warshow, 410 A.2d 1000 (1980) F: Protests at nuclear power plant preventing workers from reopening plant. H: Protestors' concerns of meltdown were already considered by legislature prior to plant construction and are thus unjustified.

2) Mens Rea

Honest & Reasonable Belief

Same tests as self-defense.

People v. Unger, 362 N.E.2d 319 (Ill. 1977) H: Honor farm escapee's claim of avoidance of bodily harm is evaluated by a different standard than other choice of evils cases

California's Lovercamp test includes a requirement to turn oneself in. Chicago's law does not require

3) No Alternatives

If an alternative exists, then no necessity

4) "Fault"

Placed self in situation and assumed risk

MPC asks for Mens rea: "Was your fault reckless or negligent?"
Vermont & Alaska don't care fault is fault.

5) Imminence

If there is no imminence, then no urgency

MPC rejects imminence requirement

Amanda & Natalie are driving to Amanda's isolated cabin for weekend. As they arrive, Amanda informs Natalie that she plans to kill her before they leave. Amanda that night gets Natalie drunk, steals the car, & drives to safety. No imminence.

Duress

Old MPC Requirements for Duress

Threatening human conduct

Producing a reasonable

fear of death or serious bodily injury

to self or to a (nuclear) family member

NOT a defense to Murder

See MPC Sec. 2.09 Duress on pg. 566

State v. Crawford, 253 P.2d 629 (1993) H: Cocaine addict committing burglary & kidnapping to get money for his dealer who would threatened to kill him.

U.S. v. Contento-Pachon, 723 F.2d 693 (9th Cir. 1984) H: Coke mule for columbian drug cartel.

Same standard as self-defense except No Recklessness Permissible. Also note (on pg. 567), "in their situation" may only include "stark tangible factors." Battered Person Syndrome and other psychological evidence is not acceptable for Duress.

Mens Rea Defenses

Mistake defense

Model Penal Code - 2.04. Ignorance or Mistake

1. Ignorance or mistake as to a matter of fact or law is a defense if:
   1. the ignorance or mistake negatives the purpose, knowledge, belief, recklessness or negligence required to establish a material element of the offense; or
   2. 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 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 to a prosecution for that offense based upon such conduct when:
   1. the statute or other enactment defining the offense is not known to the actor and has not been published or otherwise reasonably made available prior to the conduct alleged; or
   2. he acts in reasonable reliance upon an official statement of the law, afterward determined to be invalid or erroneous, contained in (i) a statute or other enactment; (ii) a judicial decision, opinion or judgment; (iii) an administrative order or grant of permission; or (iv) an official interpretation of the public officer or body charged by law with responsibility for the interpretation, administration or enforcement of the law defining the offense.
4. The defendant must prove a defense arising under Subsection (3) of this Section by a preponderance of evidence.

People v. Bray, 52 Cal. App. 3d 494 (1975) H: Didn’t “know” he was a convicted felon (due to prosecutorial sloppiness), therefore didn’t meet the mens rea requirement.

United States v. Baker, 807 F.2d 427 (1986) F: Baker sold fake Rolex watches, said he didn’t know it was illegal, though admits he knew the watches were fakes. R: “Intentionally traffic goods and knowingly use a counterfeit mark in connection therewith.” H:

Cheek v. U.S., 498 U.S. 192 (1991) F: "I didn't think my wages were income, so I didn't think the were taxable." "I'm not paying taxes on my wages, because taxing them is unconstitutional." R: "willfully evading taxes" H: District court interpreted willfully as "intentionally" or "knew he had a duty and disregarded it"

1. What is the Mens rea required for conviction in the statute
2. What is the nature of the ignorance claim being proffered by D?
3. Would proof of that proffered ignorance/mistake claim negate the mens rea

Graffiti Law (Hypothetical)

Purposely draw upon, or otherwise mark, state property, without prior authorization, } Purposely

with any indelible substance, knowingly or recklessly believing it to be so } Recklessly (Knowingly is covered within Recklessly)

Rewrite: Consciously desire to draw upon, or otherwise mark, state property, without prior authorization with a substance that has a high probability of being indelible;

Felony transportation of cocaine vs. felony transportation of stolen furs

State v. Guest, 583 P.2d 836 (Alaska Sup. Ct. 1978) (pg. 208) F: Guest, charged with statutory rape, claims he thought she was 19.

Hopkins v. State, 69 A.2d 456 (Md. 1950) F:

Commonwealth v. Twitchell, 617 N.E.2d 114 (1993) F: Christian Scientists Mr. & Mrs. Twitchell are charged with the involuntary manslaughter of their sick child, who they failed to bring to hospital.

Insanity defense

(affirmative defense)
Presumption of innocence
Presumption of sanity

Kinds of evidence in case

observation evidence - Witness Testimony

mental disease evidence - Expert Testimony

capacity evidence - Expert Testimony

Tests: M'Naughten (majority) vs. ALI/MPC (minority)

M'Naughten (Cognitive)

"So diseased...as to be incapable of distinguishing right from wrong"

"Incapable of knowing the nature & quality of his criminal act"

People v. Serravo, 823 P.2d 128 (1992) F: Man stabs his sleeping wife "on God's orders." H: The standard, "incapable of distinguishing right from wrong," refers to societal morals, not lawfulness.

3 Standards of Wrong

Legally Wrong (strictest & rare)

Subjectively Morally Wrong (uncommon)

Objectively Morally Wrong (popular)

• Deific Decree (distinguished in some states)

Texas v. Yates, F: Yates drowned her children "on Devil's orders."

Intoxication defense

• Available for specific intent crimes requiring purpose or knowledge
• Not available for general intent crimes requiring recklessness or negligence

Clark v. AZ, F:

State v. Cameron, 514 A.2d 1302 (1986) F:

Burdens

Burden of production

Burden of persuasion (proof)

Can be assigned to the DEF unless proof of the defense would negative the mens rea required to convict. (ie. Necessity Defense)

Affirmative defense: Proof of the defense does not negative mens rea requirement.

A person is guilty of bigamy if, while he is married, he purposely contracts another marriage. It is a defense that the actor reasonably believed that his prior spouse was dead.

Mental Illness & Gross Intoxication - There is a dead man in the front seat of a car, a gun-wielding drunk in the back seat with BAC of .42, thus there is no way he had the mental capacity to form the mens rea requirement for murder. In many Western Mountain States, intoxication is never an available defense.

Homicide

Elements of Homicide

Homicide is the killing of one human being by the act or omission of another.

Crimes of Homicide
Mens rea	Crime	Commission of an act or omission...	which
Premeditated	Intent-to-kill	...with the intent to kill an individual	directly contributes to the death of an individual.
	Intent-to-do- serious-bodily-harm	...with the intent to do (at minimum) serious bodily harm to an individual
Heat of Passion	Voluntary manslaughter
Reckless	Felony murder	...that is (or occurs during the commission of) a felony*
	Intoxicated vehicular manslaughter	...that occurs while driving with a BAC over the legal limit
	Depraved heart	...that is grossly reckless and unjustifiable
	Involuntary manslaughter	...that is reckless or negligent**
Negligent
* Applicable felonies frequently limited to: arson, rape, kidnapping, robbery, burglary, & felonious escape. In addition, federal law includes terrorism & carjacking. ** Criminal negligence or Ordinary (Tort) Negligence standard depending on jurisdiction.

Depraved heart murder is the reverse of Voluntary manslaughter: An unintentional homicide so unexcusable that we are compelled to raise it to murder, as opposed to an intentional homicide so excusable that we are compelled to lower it from murder.

Elements of Heat of Passion

Elements of Heat of Passion
Jurisdictional Approach	Evidence of:
	Provocation	Opportunity to Deliberate	Actual Deliberation
Subjective	Sufficient to induce a charged emotional state	Calm, cool, reflective behaviour	Planning activity or preparations Motive (preferably prior to encounter) Nature of the killing (impulsive vs. methodical)
Objective	Adultery (presently witnessed) Mutual combat Violet or sexual assault on self or relative Physical attack on self or relative*	Fixed cooling time (minutes, hours, days)
* Words are insufficient for physical attack

Murder

Premeditated Murder

Murder is homicide resulting from a premeditated effort to kill, harm, act with reckless disregard for human life, or commit a felony.

Model Penal Code definition of murder is killing with malice aforethought

Francis v. Franklin, 471 U.S. 307 (1985) F: Escaped armed prisoner with hostage arrives at victim's residence demanding a car. When door slams in prisoner's face, gun goes off killing victim through the door.

Mens Rea Jury Instructions
Type	If you find that the defendant [actus reus], then...	Lawful?	Rationale
Mandatory, irrebuttable presumption	You Shall Presume the defendant intended the "natural and probable consequences"	NO	Violates Due Process clause: Prosecution shows mens rea simply by showing actus reus, without permitting the defense to refute it.
Mandatory, rebuttable presumption	It Is Presumed the defendant intended the "natural and probable consequences"	NO (Francis)	Prosecution shows mens rea simply by showing actus reus and imposing the Burden of showing a lack of mens rea on the defense
Permissive inference	You May Presume the defendant intended the "natural and probable consequences"	YES	Prosecution still carries the burden of persuading the jury of defendants mens rea

U.S. v. Watson, 501 A.2d 791 (1985) F: Watson was scuffling with armed cop, cop drops gun, Watson pins the cop down, reaches the gun, and fires.

Felony Murder

Proof of felony + Proof of death = Almost always get Murder One. At its broadest application, If a death occurred in the vicinity at any point during the course of a crime or the escape from the crime scene for whatever reason. No jurisdiction is this broad.

First limitation

Proximate causation

State v. Martin, 573 A.2d 1359 (1990) F: Def spreads kerosene around and lights a fire in a trash bin. The fire spreads consuming the house killing those sleeping upstairs. Convicted of felony (arson) murder

People v. Stamp, 2 Cal. App.3d 203 (1969) F: Armed def entered office for the purpose of robbery. Victim at scene suffered from cardiovascular disease and had a fatal heart attack. Convicted of felony (rape) murder.

People v. Brackett, 510 N.E.2d 877 (1987) F: Def raped 85 yr old woman, who subsequently fell into depression and needed to be placed on feeding tube. However, due to injuries to throat from rape, when feeding tube inserted, woman died.

NOCADC People v. Hickman, 510 N.E.2d 877 (1987) F:

Felony murder limitations
Name	Limitation	Example	Rationale
Proximate Causation	The death must have been a foreseeable risk of the felony.
Affirmative Defense for Unarmed Co-Felons
Limiting predicate felonies (BARRK)
Requiring an independent Mens Rea (eg. recklessness or negligence) for Homicide
No one cares about dead co-felons

Hawaii has loosest criminal code. California strictest.

1. Who is the Killer? - Agency jurisdiction (must be felon or co-felon, California)
2. The Scope of the Felony Event (necessary) - "Res Gestae" = time, place, & causal relation
3. Merger - Is the statutory construction of the predicate felony expansive enough such that proving the felony proves the murder (ie. Child abuse)?

Gladman: time & place Franks (OK 1981) - Is there a causal nexus btw the killers & the felony Colenburg 773 S.W.2d 184 (Mo.App. 1989) - But-for causation Stouffer v. State Lucas - Child abuse Shock - "Willful & malicious beating with the intent to commit serious bodily harm." The exact acts which produced the death. Any crime that meets this definition, becomes felony murder. Contrasted with Robbery, which also requires intent to steal.

2nd Degree Felony murder

non-enumerated felonies

Must prove that the felony has the potential risk of death in the least dangerous application. Furnishing cocaine: Selling a tiny amount is unlikely to kill anyone, but enough to get a conviction, therefore not applicable.

Reckless Murder (Depraved Heart)

Mayes v. The People, 106 Ill. 306 (1883) F: Drunk, angry man hurls bottle at wife holding oil lamp & candle, knocking her unconscious. Oil splatters over her & ignites from candle. Man watches on as she burns to death.

Commonwealth v. Malone, 47 A.2d 445 (1946) F: Russian Poker (a'la Russian Roulette) Game

People v. Protopappas, 201 Cal. App. 3d 152 (1988) F: Worst Dentist Ever

Berry v. Superior Court, 208 Cal. App. 3d 783 (1989) F: Killer dog protecting pot plants mauls baby crawling into yard

State v. Marjorie Knoller, F: Massive killer dog kills lesbian woman

Manslaughter

Voluntary Manslaughter

Voluntary Manslaughter is killing with "intention in the heat of passion (CL lang.)" or purposeful or knowing killing under extreme mental or emotional disturbance

People v. Walker, 204 N.E.2d 594 (1965) F: After repeated harassment by knife-wielding Stenneth, Walker knocked Stenneth out with a brick, acquired the knife and stabbed the unconscious Stenneth. Court ruled this was a continuous affray. This means that the "cooling time" never began.

Ex Parte Fraley, 109 P. 295 (1910) F:

People v. Nesler, 16 Cal. 4th 561 (1997) F: After Mr. Driver was acquitted for allegedly sexually assaulting her son, Ms. Nesler pulled out a gun from her sister's purse. Despite the premeditation of putting the gun in her sister's purse, the jury felt that her rage over Mr. Driver's gleeful response to his acquittal.

Rowland v. State, 35 So. 826 (1904) F: Rowland discovered his wife with another man. Rowland fired at the man and killed his wife. This fact alone, in legal contemplation, was adequate provocation to reduce the grade of the homicide, if then instantly committed, from murder to manslaughter.

Carter v. State, 843 So.2d 812 (Ala. 2002) F:

State v. Gounagias, 153 P. 9 (1915) F: Gounagias was sodomized while unconscious. Word of this event spread around town and he was relentlessly taunted for it. Finally, the ridicule overwhelmed him, leading him to seek out and kill his assailant. Defense argued that provocation had accumulated with each taunt and that the cooling time was perpetually being reset.

Involuntary Manslaughter

Standards for Unintentional Homicide
Model Penal Code	Manslaughter	Reckless killing
	Negligent Homicide	Criminal (gross) negligence
		Ordinary (tort) negligence
Common Law	Involuntary Manslaughter	X

Mad skier (incredibly reckless a lethal weapon at that speed)

Hunter who shoots at white mittens (armed with lethal weapon)

Bad chiropractor (treated individual for tuberculosis rather than send him to a capable specialist)

Texas A&M hazer (Frat forced man out of bed in the middle of the night to run to exhaustion after which he died)

• Texas creates hazing law (misdemeanor) so as to achieve certainty in conviction, where juries are unlikely to convict young hazer, in spite of the evidence against him.

Prof with cooked infant (left baby in car and forgot about it)

Commonwealth v. Welansky, 55 N.E.2d 902 (1944) F: Welanksky, owned a night club, frequently overcrowded with locked emergency exits & flammable decorations. A fire starts accidentally. Many died from trampling, smoke inhalation, and burns. P: Trial court convicts Welansky for reckless disregard of fire safety precautions resulting in patron deaths. H: Wanton or reckless disregard of affirmative duty is sufficient to support manslaughter conviction. R: The essence of wanton or reckless conduct is “intentional conduct, by way of either commission or of omission where there is a duty to act, which conduct involves a high degree of likelihood that substantial harm will result to another." Usually, wanton or reckless conduct consists of an affirmative act. However, where a duty exists and it is recklessly disregarded, the omission can serve as reckless conduct. The standard of wanton or reckless is a higher standard than that of negligence or even of gross negligence. To constitute wanton or reckless conduct, the grave danger to others must have been apparent to the defendant, and he must have chosen to run the risk rather than take adequate precautions. The standard of determining whether the grave danger was apparent is the reasonable man standard. Thus, the defendant could have had no actual awareness of the risk, but is still guilty if the reasonable man would have realized the grave risk. Negligence and gross negligence are a lower standard. Wanton or reckless conduct is legal equivalent of intentional conduct.

State v. Williams, 484 P.2d 1167 (1971) F: Williams are parents of a child who died of an untreated infection who were charged with manslaughter based on their negligence. P: Trial court convicts Williams of manslaughter for their ordinary (tort) negligence. H: In Washington, ordinary (tort) negligence (as opposed to gross negligence) is sufficient for manslaughter. R: Williams had notice of baby's illness before infection was fatal and yet ignored opportunity to save child. MPC says that any homicide committed with the mens rea of negligence falls under this offense. If we’re not going to punish character in general, then we’re rejecting using the threat of criminal punishment to change people’s moral makeup. If this is the rule we’re using, we should only punish acts, and we shouldn’t bother giving people any incentives to change their character.

Porter v. State, 88 So. 2d 924 (Fla. 1956) F:

Attempt

1st degree felonies treated as 2nd degree felonies, but otherwise attempt of crime treated the same as successful commission.

Unintentional Attempt

If you don't intend the result in a result crime, then you

State v. Lyerla, 424 N.W.2d 908 (S.D. 1988) F: Fired 3 shots at 3 girls in car. Charged w/Attempted DH murder. H: DH murder is a crime of recklessness. Attempt requires intent. No "Attempted Recklessness."

Same for attempted Felony murder

Interrupted attempt Uninterrupted attempt

3 Elements:

Conduct - Purpose

Result - Purpose or Belief

Circumstance - Can apply the mens rea from underlying statute

Attempted murder of a law professor. Did not know victim was a law professor. Negligence applied as mens rea of "law professor."

MPC §5.01. Criminal Attempt

(1) Definition of Attempt. A person is guilty of an attempt to commit a crime if, acting with the kind of culpability otherwise required for commission of the crime, he:

(a) purposely engages in conduct which would constitute the crime if the attendant circumstances were as he believes them to be; or

(b) when causing a particular result is an element of the crime, does or omits to do anything with the purpose of causing or with the belief that it will cause such result, without further conduct on his part; or

(c) purposely does or omits to do anything which, under the circumstances as he believes them to be, is a substantial step in a course of conduct planned to culminate in his commission of the crime.

For section C

Proximity to completion (What is left to be done?) (see Rizzo)

Unequivocality or Res Ipsa (Do the acts speak for themselves?) (see Staples)

Probable desistance (Have they passed the "point of no return"?)

Substantial steps or measures (What has been accomplished?) (MPC & Popular) ("Non-act evidence;" see U.S. v. Jackson)

McQuirter v. State, 63 So.2d 388 (1953) F: In segregated South, jury instructed that "social condition & customs founded upon racial differences" may be considered. Asking jury, "What do you really think he was doing there?"

Abandonment

People v. Staples, 6 Cal. App. 3d 61 (1970) F: Mathematician convicted of attempted burglary for drill through office floor into bank vault below. Gave up drilling at some point prior to his arrest. Given defendant's confessed intent to burglarize the vault, his unequivocal act of drilling constituted direct movement towards the commission of the offense, and it was immaterial whether defendant was having second thoughts as he had already caused sufficient danger of harm and property damage. Conviction affirmed.

...a complete and voluntrary renunciation of his criminal purpose.... [R]enunciation is not voluntary if it is motivated in whole or in part, by circumstances, not present or apparent at the inception of the actor's course of conduct, which increase the probability of detection or apprehension or which make more difficult the accomplishment of the criminal purpose. Renunciation is not complete if it is motivated by a decision to postpone the criminal conduct until a more advantageous timeor to transfer the criminal effort to another but similar objective or victim.

— Model Penal Code §5.01(4), Renunciation Rule

Aiding & Abetting

There is no conviction for (& thus no one is ever "guilty of") complicity.

State v. Ochoa, 72 P.2d 609 (1937) F: Ochoa & Avitia were convicted of 2nd deg. murder as aiders & abettors for a local sheriff's death. DEFs were part of a mob attempting to free a prisoner the sheriff was escorting. Deputy Boggess threw a tear gas bomb into the crowd & in response gunfire broke out. Ochoa & Avitia then attacked the deputy & other deputies. The sheriff was then shot to death. The jury found that DEFs' actions prevented deputies from coming to sheriff's aid & upheld DEFs' murder convictions as aiders and abettors.

If acts are facilitative & there is community of purpose or intent, then preconcert is not necessary. Preconcert doesn't require measurable affect, because the peace of mind obtained is facilitative. Aiding and abetting is mere joint activity.

Conspiracy is 'an agreement between two or more persons by some concerted action to commit an offense.' Smith v. Commonwealth, 453 S.E.2d 572, 575 (1995). No conspiracy w/o proving beyond a reasonable doubt that an agreement existed. Floyd v. Commonwealth, 249 S.E.2d 171, 174 (1978) To prove a conspiracy, must prove preconcert & connivance. Zuniga v. Commonwealth, 375 S.E.2d 381, 384 (1988)

However, explicit agreement not required, may rely on circumstantial evidence, inferences drawn from overt actions, and a collocation of circumstances, which evince agreement upon a common purpose and plan. Combs v. Commonwealth, 520 S.E.2d 388, 392 (1999)

Aiders & Abettors

• 1st deg. principal (active participant) (eg. lookout)
• 2nd deg. principal ("constructively" present & aids 1st deg. principal) (eg. getaway driver)
• Accessory before the fact (arms dealer)
• Accessory after the fact (hiding escaped felons)

MPC rejects these distinctions & treats everyone the same.
Most states collapse first three, but leave "accessory after the fact" ("misprision of felony") separate.

State v. Tally, 102 Ala. 25 (Alabama 1894)
F: Judge Tally staked out telegraph station to prevent anyone from alerting Ross of his brothers-in-law's approach. The brothers-in-law had no knowledge of Tally's help.

Judge Tally is accused of assisting his brothers-in-law to kill Ross, a man who had carnal knowledge of their sister.

Three Questions

1. Did Tally commit an act or forbearance in furtherance of a common design?

2. If so, must it act actually assist the principals in order for Tally to be convicted?

3. Did the act actually assist the brothers-in-law?

Tally is not an accessory before the fact because he had no knowledge of the criminal intent prior to the commission.
The court concluded that Tally was constructively present at the scene of the crime because he acted as an effective lookout by staking out the telegraph station.
An incredibly trivial assistance is all that is required. The court found that Tally's message to the telegraph operator on the other end of the link to delay delivery of the warning telegram to Ross decreased Ross's chances of survival, if only minutely. No but for cause is needed to adjudge Tally's conduct to be culpable. (Accessory liability circumvents but for cause problems)
Because of his assisting act, Tally was convicted of [1st degree] murder.
Suppose the Skeltons attempted to kill Ross but failed

1. Skeltons: Attempted murder

2. Tally: Attempted murder as an A&A

Suppose the Skeltons desisted before the attempt

1. Skeltons: Not guilty of anything

2. Tally

a. At CL, since the principals were not convicted, Tally could not be convicted as an A&A. (Majority rule: derivative liability)

b. Under the MPC, he is guilty of attempted murder because he has the mens rea and has committed an overt act aimed at bringing the intended result to pass. Fortuity is rejected under the MPC. (Minority rule: independent liability)

3. Tally himself might have committed attempted murder in his own right based on an independent analysis of the elements (solicitation, procurement, facilitating, acquiring)

The MPC is structured around culpability.

1. Suppose Western Union's lines went down, and Tally did not incite, encourage, or aid the principals. Is he guilty as an A&A?

a. CL: No, Tally would not be an A&A. He would be acquitted even if he had the mens rea.

b. MPC: Yes, he would be guilty as an A&A. He did have the requisite mens rea, and attempt to aid is sufficient under the MPC to obtain a conviction.

2. Suppose the Skeltons desist before killing Ross.

(i) CL: No, Tally would not be an A&A because the principals could not be convicted of any crime, and A&A is derivative liability.

(ii) MPC: Yes, Tally would be guilty of attempted murder via A&A.

(c) Suppose Tally encourages the Skeltons to pursue Ross and kill him, but everything is stopped in the preparation stage. No one took any substantial step corroborative of criminal intent towards completion of the crime.

(i) CL: Tally is not guilty of A&A.

(ii) MPC: Tally is guilty of attempted murder via A&A (See MPC §5.01(3))

Complicity

Review pg. 710

Gains v. State, 417 So. 2d 719 (Fla. App. 1982) H: DEF's conviction of armed robbery for aiding and abetting reversed, b/c circumstantial evidence merely placed him in a car outside the scene.

Hypo: Driving a car w/passenger in the backseat. Pick up a hitchhiker who gets in back. Suddenly, passenger robs hitchhiker. Is driver an aidor & abettor if he knew nothing of passengers plan? Courts split.

Hypo: Standing in a group of friends, when one announces he intends to break into a nearby liquor store. This is interpreted

MPC §2.06(3)(a)(ii) [Complicity]

A person is an accomplice of another person in the commission of an offense if:

a. with the purpose of promoting or facilitating the commission of the offense, he

i. solicits such other person to commit it; or

ii. aids or agrees to aid or attempts to aid such other person in planning or commiting it.

People v. Beeman, 35 Cal. 3d 547 (1984) H: Requires purpose to promote or facilitate

MPC §5.01(3)

Conduct Designed to Aid Another in Commission of a Crime

A person who engages in conduct designed to aid another to commit a crime which would establish his complicity under §2.06 if the crime were committed by such other person, is guilty of an attempt to commit the crime, although the crime is not committed or attempted by such other person.

NY offers criminal facilitation, a class C felony, for the contribution of information with the knowledge that the recipient has a criminal intent.

A person is guilty of criminal facilitation in the 2nd deg. when, believing it is probable that he is rendering aid to a person who intends to commit a class A felony

Wilson v. People, 87 P.2d 5 (1939) F: Wilson boosted Pierce into a window. Immediately turns the guy in, admitting that he just intended to get Pierce caught. H: Affirmative defense of "Decoy" available where one party is trying to get the other guy caught. See Entrapment note on pg. 726

State v. Etzweiler, 480 A.2d 870 (1984) F: Etzweiler loaned his car to a drunk friend who subsequent crashed into another car killing two of its passengers. H: Where a statute relies exclusively on the MPC's complicity language, complicity cannot be used for unintentional crimes (recklessness or negligence).
Some states have subsequently added statutory exceptions where the result was foreseeable.

State v. Foster, 480 A.2d 870 (1984) F:

Pg. 639; §5.01(I)(a)(6) {

Conspiracy

Very expansive and not reigned in by states like felony murder

Inchoate

State v. Verive, 480 A.2d 870 (Arizona 1981) F: Verive convicted of attempt to dissuade a witness AND conspiracy to dissuade a witness
Issue on appeal → does convicting of conspiracy and attempt violate double jeopardy? Court says the actus reus requirements for conspiracy and attempt are different 1. Conspiracy requires an agreement 2. Attempt requires an act beyond preparation iv. Because the actus reus required for attempt is greater than for conspiracy, attempt isn’t a lesser included offense of conspiracy (isn’t wholly included in the elements of conspiracy

• Dual Punishment issue (Arizona State Law) → No dual punishment for same act
• Double Jeopardy issues (Federal Constitution)

Same Elements test - Does proof of one also prove the other?

Attribution of Criminality
	Complicity	Conspiracy	Attempt
Prior Intent?	No	Yes	Yes
Action?	Facilitative	Overt (though a Co-conspirator's is sufficient )	Overt beyond prepartion
Consensus?	Community of Purpose or Preconcert	Agreement	None

MPC requires no overt act for conspiracy
An overt act by one is an overt act for all.

Federal law criminalizes conspiracy even where the subject of the conspiracy is not illegal (Oliver North & Nicaragua)

Agreement

Formation of Agreement

Griffin v. State, 455 S.W.2d 882 (1970) F:

U.S. v. Cepeda, 768 F.2d 1515 (2d Cir. 1985) F:

Termination of Agreement

U.S. v. Recio, 270 U.S. 537 (2003) F:

In a two-person hypo with an undercover cop, conspiracy is unilateral (permissible under MPC)

Common Law required bilateral conspiracy.

Defense of legal impossibility: Lawyer: "I'm looking for a cashmere coat. Could you steal one for me?"
Client: "Sure."
Client steals a coat, but cops catch him & confiscate the coat. Client confesses his lawyer asked him to steal it. Cops return the coat to client with intent to trap the lawyer.

Withdrawal & Pinkerton

Illustrating withdrawal
1/1/04 Planning	1/2/04 Prepping	1/5/04 1st Act	1/8/04 Prepping	1/12/04 2nd Act	1/16/04 3rd Act	1/20/04 Arrest
Bill, Suzy, & Mary plan to rob banks	Mary buys guns.	Bill, Suzy, & Mary rob 1st bank	Mary's gun breaks & withdraws until she can replace it.	Bill & Suzy rob 2nd bank without Mary	Bill & Suzy rob 3rd bank without Mary	Suzy & Bill are arrested
Bill, Suzy, & Mary plan to rob banks	Mary buys guns.	Bill, Suzy, & Mary rob 1st bank		Bill & Suzy rob 2nd bank without Mary	Bill & Suzy rob 3rd bank without Mary
Bill, Suzy, & Mary plan to rob banks	Mary buys guns.	Bill, Suzy, & Mary rob 1st bank	Mary gets scared and announces her withdrawal.	Bill & Suzy rob 2nd bank without Mary	Bill & Suzy rob 3rd bank without Mary
Bill, Suzy, & Mary plan to rob banks	Mary buys guns. Bill & Suzy plan to exclude her.	Bill & Suzy rob 1st bank without Mary		Bill & Suzy rob 2nd bank without Mary	Bill & Suzy rob 3rd bank without Mary
Bill, Suzy, & Mary plan to rob banks	Mary buys guns, but announces her withdrawal.	Bill & Suzy rob 1st bank without Mary		Bill & Suzy rob 2nd bank without Mary	Bill & Suzy rob 3rd bank without Mary

1/1/04: Bill, Suzy, & Mary plan to rob a bank 1/2/04: Mary buys a mask for robbery. 1/5/04: Bill, Suzy, & Mary rob a bank. 1/8/04: Mary loses her pink mask & drops out for good.

Attempt vs. Conspiracy

Murder of a Renter of Residential Property
	Element	Attempt	Conspiracy
Conduct elements	Lethal action	Purpose	Purpose
Result elements	Death	Purpose or Belief	Purpose
Circumstance elements	Residential property renter	Can apply M/R from underlying statute	Code permits application of M/R from underlying statute

Property Crimes

Property Crimes Chart
Crime	Commission of an act or omission...	which
Intent-to-kill	...with the intent to kill an individual	directly contributes to the death of an individual.
Intent-to-do- serious-bodily-harm	...with the intent to do (at minimum) serious bodily harm to an individual
Voluntary manslaughter
Felony murder	...that is (or occurs during the commission of) a felony*
Intoxicated vehicular manslaughter	...that occurs while driving with a BAC over the legal limit
Depraved heart	...that is grossly reckless and unjustifiable
Involuntary manslaughter	...that is reckless or negligent**

Larceny

Test for Larceny
Consent
Asportation (carrying away)
Property
Intent (to permanently deprive)
Taking

People v. Alamo, 315 N.E.2d 446 (NY.App 1974) F: DEF arrested in car with motor running, but car hadn't moved. H: No asportation necessary for public safety concern of potential car chase

People v. Olivio, 420 N.E.2d 40 (NY.App 1981) F: Intoxicated DEF arrested in car with motor running, but car hadn't moved. H: Asportation necessary.

People v. Jennings, 504 N.E.2d 1079 (NY.App 1986) F: DEFs, entrusted with money, used it to collect interest before returning it. H: No larceny where consentually granted.

Embezzlement

Prior lawful possession (actual or constructive), followed by an illegal conversion

U.S. v. Titus, 64 F.Supp 55 (NJ 1946) F: Third party cigarette sale by employee outside employment H: Embezzlement

Virgin Islands v. Leonard, 548 F.2d 478 (3d Cir.App. 1976) F: Third party chicken wire sale by janitor H: Would never be in lawful possession, thus larceny, not embezzlement

U.S. v. Whitlock, 663 F.2d 1094 (DC.App 1980) F: High-level bank employee absconds with $85,000 H: Would be in lawful constructive possession, thus embezzlement

Low-level employees more likely commitors of larceny, while high-level employees more likely embezzlement.

U.S. v. Selwyn, 998 F.2d 556 (8th Cir.App 1993) F: Postal employee takes dress sent through mail. H: No lawful possession, larceny, not embezzlement.

From Titus: "If the agent knowingly appropriates money belonging to his principal to his own use, even though at the time he does so he intends to restore it, it is nevertheless embezzlement within the spirit of the letter of the law, for when one knowingly appropriates money belonging to another to his own private use, the law presumes a criminal intent."

False Pretenses

1. A false misrepresentation as to a material present or past fact (not something that might happen in future)
2. which causes the victim
3. to pass title to
4. his property to the wrongdoer
5. who -
   a. knows his representation to be false AND
   b. intends thereby to defraud the victim.

Chaplin v. U.S., 157 F.2d 697 (1946) H: Modern interpretation - False intention is sufficient for present misrepresentation.
Common law interpretation - False intention is insufficient, because intention won't be realized until future.

Nelson v. U.S., 227 F.2d 21 (1955) H: Even where misrepresentation

Locks v. U.S., 338 A.2d 873 (1978) H:

Hypo: Earthquakes cause rampant cattle stampedes. Cattle show up on Rancher A's land. Rancher B comes along & identifies the cattle as his and asks that they be handed over. Rancher A gives cattle to Rancher B. Rancher C shows up having heard that his cattle are on Rancher A's land. Rancher C realizes that Rancher B falsely claimed Rancher C's cattle. Is Rancher B guilty of Larceny or False Pretenses? Larceny, because Rancher A never held title and thus could not convey it.

Robbery

Larceny plus force

Commonwealth v. English, 279 A.2d 4 (1971)

Commonwealth v. Sleighter, 433 A.2d 469 (1981) H: Use of force is impermissible as a means of asserting a claim of right. Retaking must be peaceful & reasonable.

Commonwealth v. Brown, 484 A.2d 738 (1984) H: