CRIM LAW

Malice

(1) when a defendant's actions demonstrate a particularly wicked, cruel, heinous, or wanton disposition OR (2) when his actions demonstrate a mind without regard for sociality or consequences. Prosecutors may imply malice from attendant circumstances.

MPC 2.01 and Omission

(3) Liability for the commission of an offense may not be based on an omission unaccompanied by action unless: (a) the omission is expressly made sufficient by the law defining the offense; or (b) a duty to perform the omitted act is otherwise imposed by law.

Self Defense- MAJORITY Objective and Subjective Reasonableness

Ask whether the defendant SUBJECTIVELY believed that force was necessary (real risk of bodily harm or injury), and whether that use of self-defense was OBJECTIVELY reasonable in a case like this. The decision to use force in self-defense need not be correct, only reasonable under this test.

Last act test

Can only prosecute someone after they have taken the last necessary act to complete the crime in question Jury makes this determination but it is an area of factual ambiguity. historical origins of the substantial step test- English common law test

Causation

Consequences matter. Because of this, we often ask whether a defendant's actions actually caused a particular outcome Actual and Legal

Proportionality

Courts analyze the application of precedent cases with similar fact patterns to determine the punishment. The notion of punishment should fit a crime. Only punishment that is GROSSLY DISPROPORTIONAL to the crime is unconstitutional (8th amendment) When judging the proportionality of a punishment, we employ either a categorical or non-categorial analysis Considers the nature of the offense and the characteristics of the offender. AND Compares the gravity of the offense to the severity of the sentence.

Commonwealth v. Vlatcher

D shot disabled son after having an extended temper tantrum. D was denied manslaughter because the child's actions that day would have come as no surprise to the defendant... also ask whether a reasonable person would act this way- probably not.

People v. Walker

Deceased asked D to gamble, when denied he drew a knife and tried to cut one of the men with D. D knocked deceased to the ground then cut him with his own knife. D was convicted of murder and COA reversed changing conviction to manslaughter.

State v. Gounagias

Deceased had humiliated the accused by sodomizing him and then over the course of 2 weeks had bragged about his sexual triumph to other men in the town. Holding: D had encountered from day to day the same ridicule by others demonstrated on the day of the murder.. this was nothing new and was exactly what he must have anticipated based on his experience the past 3 weeks. repeated demonstration coupled with the original outrage does not cumulate into a sudden passion and therefore is not manslaughter. Must prove sudden anger and resentment.

Social Harms

H1. Statute that limits clothes people wear (sagging pants)- social harm? H2. Drug use (marijuana)- chemical addictiveness is at or below cigarettes and alcohol- social harm? H3. Prostitution. economic transaction- we can regulate economic transactions. social harm? consequences of prostitution (involuntary, sex trade)

Jury Instructions and Appeals

If the defense disagrees with the jury instructions and the jury finds the defendant guilty, the defense can appeal the conviction on the basis of the jury instructions. In some jurisdictions, if the prosecution disagrees with the proposed jury instructions, it can appeal before the jury is instructed, via an interlocutory appeal.

Impossibility and conspiracy

Impossibility is NOT a defense Even if there are no factual consequences of this agreement of the crime, there is still a real harm... RISK IS STILL THERE

Voluntary Manslaughter

Lesser form of INTENTIONAL homicide. A person is guilty of voluntary manslaughter when she (1) knowingly, intentionally, or purposefully (2) causes the death of another person (3) in response to legally sufficient PROVOCATION. Sometimes called mitigated killings.

Culpability and Conspiracy

MPC allows for punishment in most scenarios up to the same level of the completed crime. Majority: most grade attempt and solicitation below the actual completed crime

State v. Barger (possession)

Merely viewing is not the same as possession; Need something more than simply accessing and looking at incorporated material of the kind involved here to "possess" or "control" that material. If Barger had downloaded the images and saved them to his computer, there would be no question of possessing or controlling images, forgetting to delete his cache box is not the same as intentionally saving and controlling the images.

Rules on retreat

North Dakota Rule (very minority): if a co-occupant is the one posing a threat, the burden is placed on the threatened co-occupant to retreat. If our goal is to decrease violence, this rule would push us toward that end, permanent obligation to leave that would decrease domestic disputes ending in deadly force. Majority rule does not put a burden on individuals to retreat in a place they have a lawful right to be before they use a proportional force in defense. Further, even in states that do have this burden to retreat, they do not extend this burden to the home. MPC puts a burden on individuals to retreat

deliberation

Proved by demonstrating that the accused acted with "consideration and reflection upon the preconceived design to kill turning it over in the mind, giving it second thought." Time is not required to be long.

People v. Stone

The mental state required for attempted murder is the intent to kill a human being, not a particular human being (shoot into a crowd). A general intent is sufficient for intended murder because all members of the gang were in the intended kill zone.

People v. Nesler

mother and 7 yr old son had to testify at son's sexual assault trial. D overwrought by the trauma her son had suffered since the attack shot the deceased to death after he smirked at her in the court room, had also consumed a high does of meth that morning. convicted of voluntary manslaughter

MPC 2.07 Corporate Complicity

"a corporation may be convicted of the commission of an offense if.. the unlawful conduct is performed by an agent on behalf of the corporation within the scope of his office or employment." It creates a defense where managerial agents exercise due diligence.

MPC 2.06: Liability for Conduct of Another; Complicity.

(1) A person is guilty of an offense if it is committed by his own conduct or by the conduct of another person for which he is legally accountable, or both. (2) A person is legally accountable for the conduct of another person when: (a) acting with the kind of culpability that is sufficient for the commission of the offense, he causes an innocent or irresponsible person to engage in such conduct; or (b) he is made accountable for the conduct of such other person by the Code or by the law defining the offense; or (c) he is an accomplice of such other person in the commission of the offense. (3) 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 or attempts to aid such other person in planning or committing it, or (iii) having a legal duty to prevent the commission of the offense, fails to make proper effort so to do; or (b) his conduct is expressly declared by law to establish his complicity. (4) When causing a particular result is an element of an offense, an accomplice in the conduct causing such result is an accomplice in the commission of that offense if he acts with the kind of culpability, if any, with respect to that result that is sufficient for the commission of the offense. (5) A person who is legally incapable of committing a particular offense himself may be guilty thereof if it is committed by the conduct of another person for which he is legally accountable, unless such liability is inconsistent with the purpose of the provision establishing his incapacity. (6) Unless otherwise provided by the Code or by the law defining the offense, a person is not an accomplice in an offense committed by another person if: (a) he is a victim of that offense; or (b) the offense is so defined that his conduct is inevitably incident to its commission; or (c) he terminates his complicity prior to the commission of the offense and (i) wholly deprives it of effectiveness in the commission of the offense; or (ii) gives timely warning to the law enforcement authorities or otherwise makes proper effort to prevent the commission of the offense. (7) An accomplice may be convicted on proof of the commission of the offense and of his complicity therein, though the person claimed to have committed the offense has not been prosecuted or convicted or has been convicted of a different offense or degree of offense or has an immunity to prosecution or conviction or has been acquitted.

MPC 2.01 and Voluntary Acts

(1) A person is not guilty of an offense unless his liability is based on conduct that includes a voluntary act... (2) The following are not voluntary acts within the meaning of this section: (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

MPC 2.01 and the Act Requirement

(1) 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.

MPC 2.03 Causation

(1) Conduct is the cause of a result when: (a) it is an antecedent but for which the result in question would not have occurred; and (b) the relationship between the conduct and result satisfies any additional causal requirement 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 the 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 is not too remote or accidental in its occurrence to have a (just) bearing on the actor's liability or on the gravity of his offense (3) When recklessly or negligently causing a particular result is an element of an offense, the element is not established if the actual result is not within 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 differing 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 is not too remote or accidental in its occurrence to have a (just) bearing on the actor's liability or on the gravity of his offense (4) When causing a particular result is a material element of an offense for which absolute liability is imposed by law, the element is not established unless the actual result is a probable consequence of the actor's conduct

MPC 210.2 Murder

(1) Criminal Homicide constitutes murder when: ​ (a) It is committed PURPOSELY or KNOWINGLY; or ​(b) 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 robbery, rape or deviate sexual intercourse by force or threat of force, arson, burglary, kidnapping or felonious escape. (2) Murder is a felony of the first degree but a person convicted of murder may be sentenced to death.

MPC 5.02: Criminal Solicitation.

(1) Definition of Solicitation: person is guilty of solicitation to commit a crime if with the purpose of promoting or facilitating its commission he commands, encourages or requests another person to engage in specific conduct that would constitute such crime or an attempt to commit such crime or which would establish his complicity in its commission or attempted commission. (2) Un-communicated Solicitation: it is immaterial under subsection (1) of this section that the actor fails to communicate with the person he solicits to commit a crime if his conduct was designed to effect such communication. (3) Renunciation of Criminal Purpose: it is an affirmative defense that the actor, after soliciting another person to commit a crime, persuaded him not to do so or otherwise prevented the commission of the crime, under circumstances manifesting a complete and voluntary renunciation of his criminal purpose

MPC 4.02 Evidence of Mental Disease or Defect Admissible When Relevant to Element of the Offense; Mental Disease or Defect Impairing Capacity as Grounds for Mitigation of Punishment in Capital Cases

(1) Evidence that the defendant suffered from a mental disease or defect is admissible whenever it is relevant to prove that the defendant did or did not have a state of mind which is an element of the offense. (2) Whenever the jury or the Court is authorized to determine or to recommend whether or not the defendant shall be sentenced to death or imprisonment upon conviction, evidence that the capacity of the defendant to appreciate the criminality (wrongfulness) of his conduct or to conform his conduct to the requirements of law was impaired as a result of mental disease or defect is admissible in favor of sentence of imprisonment).

MPC 2.08 Intoxication

(1) Voluntary intoxication of the actor is not a defense unless it negatives an element of the offense. (2) When RECKLESSNESS established 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, itself, constitute mental disease within the meaning of section 4.01 (4) Intoxication that (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.

People v. Unger

(1) the prisoner was faced with a specific threat of death, forcible sexual attack or substantial bodily injury in the immediate future; (2) there was no time for a complaint to the authorities or there exists a history of futile complaints; (3) there was no time or opportunity to resort to the courts; (4) there was no evidence of force or violence used toward prison personnel or other "innocent" persons in the escape; OR (5) the prisoner immediately reported to the proper authorities when he has attained a position of safety from the immediate threat. Questionable whether he met these requirements. Could have complained to the authorities.. was escape his only choice? What about complaining after escape? Unger claimed he was leaving out of necessity to preserve his life and many prison situations are similar. Argument that if he could claim this however, this would create incentive to escape as many prison situations are similar.

MPC 2.04: Ignorance or Mistake.

(2) 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: (a) 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 (b) 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

MPC 2.01 and Possession

(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.

MPC mitigating factors Mitigating standards have to be proved by a preponderance of the evidence. Defendant can bring any mitigating circumstances that might lessen culpability even if unrelated to the murder(i.e., defendant's background and character)

(a) the defendant has no significant history of prior criminal activity (b) the murder was committed while the defendant was under the influence of extreme mental or emotional disturbance (c) the victim was a participant in the defendant's homicidal conduct or consented to the homicidal act. (d) the murder was committed under circumstances which the defendant believed to provide a moral justification or extenuation for his conduct (e) the defendant was an accomplice in a murder committed by another person and his participation in the homicidal act was relatively minor (f) the defendant acted under duress or under the domination of another person. (g) at the time of the murder, the capacity of the defendant to appreciate criminality (wrongfulness) of his conduct or to conform his conduct to the requirements of law was impaired as a result of mental disease or defect or intoxication.

MPC aggravating factors Aggravating standards that may enhance possible punishment range (i.e. elevate a lengthy prison sentence to a death sentence) have to be proved beyond a reasonable doubt. Aggravating circumstances are limited to the incident in question.

(a) the murder was committed by a convict under sentence of imprisonment. (b) the defendant was previously convicted of another murder or of a felony involving the use or threat of violence to the person. (c) at the time the murder was committed the defendant also committed another murder (d) the defendant knowingly created a great risk of death to many persons (e) the murder was committed while the defendant was engaged or was an accomplice in the commission of, or an attempt to commit, or flight after committing or attempting to commit robbery, rape or deviate sexual intercourse by force or threat of force, arson, burglary or kidnapping (f) the murder was committed for the purpose of avoiding or preventing a lawful arrest or effecting an escape from lawful custody (g) the murder was committed for pecuniary gain (h) the murder was especially heinous, atrocious or cruel, manifesting exceptional depravity.

factual vs. legal impossibility

(a.) Traditionally, courts would distinguish between legal impossibility and factual impossibility. We no longer care about this distinction, nor does the MPC. Today, very few impossibility claims are defenses to attempt liability (b) Modern rule is exemplified by the MPC: factual impossibility is not a defense- only something called legal impossibility is a defense (situation in which someone believes committing a crime/ statute but no such statute exists- believing cannot buy alcohol until 23 and buying it at 22, although believed committing a crime- the crime does not exist for you to have committed). Rule: today individuals are subject to criminal attempt liability if they take a substantial step towards completing an act, even if the attendant circumstances made completion of the criminal act impossible. A person may be liable for attempt so long as, if the facts circumstances were as they believed them to be, their actions would have constituted a crime TAKE AWAY: Factual impossibility still exists as a way for defendants to be prosecuted for attempt whereas pure legal impossibility is not

Intervening factors hypotheticals

1. Bar in Tuscaloosa giving alcohol to people who are already drunk and P gets into a drunk driving accident- involuntary manslaughter? Intervening acts? Third party making own choices- getting into the car "Too remote"- Even if you contributed to a third party's negligent or reckless choice, their choice is an intervening factor in criminal law. 2. Marchl v. Dowling: Absent car being double parked, P would not have had to walk around the car and gotten hit by another car. Foreseeability? Reasonable person would not expect a person to get hit by another car given the seemingly innocent nature of double parking Act of a third party intervening 3. Dr in charge of a mental institutional who carelessly leaves the door unlocked when he leaves the padded cell of a homicidal maniac and thematic escapes and kiss someone. Based on gross negligence, is this doctor guilty of involuntary manslaughter? But-for? yes actual causation Legal causation Foreseeability? yes Third person intervention? homicidal maniac made choice to end the string of causation? Can he make this choice on his own? Question of do we look at the homicidal maniac as a dangerous instrument we know could cause the death of someone? If we view the homicidal maniac as a person, then it becomes an issue of an intervening act as making his own decision to kill Discussion of mental state? (recklessness or negligence) negligence would be a reasonable person standard and recklessness is a different mental stat

arguments for and against death penalty

1. FOR Ultimate retributive punishment Deterrence o Empirical effect as a deterrent is not convincing. ▪ Difficult to control for all variables that effect crime like opportunity for crime and culture Ultimate form of incapacitation- Possibility of escape, still interacting with guards and other inmates 2. AGAINST o Punishment as death is outdated- Outlier who continues to use the death penalty. Virtually all other developed countries in the world currently prohibit the death penalty o Racially discriminative- Race of the victim seems to be deciding factor as opposed race of the offender. Criminologists argue that socioeconomic standard is a better decider of who will commit crime as opposed to race.

Using the 8th Amendment

1. Is the analysis a categorical or non-categorical one (categorical- death penalty and rape, non-categorical usually discussed in terms of years). 2. Is this grossly disproportional?

Excuses

1. Legal Insanity/ Mental Illness or 2. Duress

Justifications

1. Necessity or 2. Self Defense

Common Policy Questions

1. What are the instrumental effects of this rule/ law? (Deterrence, incapacitation, rehabilitation). 2. What are the moral effects of this rule/ law? (Retribution, proportionality, expressive argument)

Eddings v. Oklahoma

16 y.o. convicted of murdering a highway patrol officer who had stopped him for reckless driving. TC blocked admission of evidence that his parents divorced when he was 5, that he had then lived with his alcoholic mother entirely without supervision, and that he was then sent to his father and was seriously abused. SC: "just as the state may not by statute preclude the sentencer from considering any mitigating factor, neither may the sentencer refuse to consider, as a matter of law, any relevant mitigating evidence.

State v. Ochoa

3 men (Ochoa, Velarde, and Avitia) were charged and convicted of second degree murder after a fight broke out within a crowd and a deputy sheriff was killed. We don't have the principal actor who we think was the one that pulled the trigger- is this a problem? In old common law there was a distinction between the principal and accessory (must first prosecute principal and then determine wither accessory was before or after)—- this has changed and is no longer the rule. Was Velarde aiding or abetting? Must be certain of intent behind the words that were said- CAN'T PUNISH MERE THOUGHTS- consistent with someone who is rightfully angry and wanting to lead a protest.. not illegal. Ochoa: took action that could lead to death but not toward the person who actually died BUT Both O and A did something that was maybe sufficient to lead back to the death- used violence against the person who could have brought aid to the deputy who died, knew that the crowd was using deadly force. Do not have to have pre-existing coordination- can have instantly acquired aid/ attempt. Merely knowing the criminal act is occurring and continuing to act in such a way is enough. Community of purpose and intent to aid even if that intent to aid is not known to the principal- need to show in some cases for complicity.

MPC and Necessity

3.02. It uses the "choice of evils" approach, and also exempts individuals who created a dangerous situation from claiming necessity. The MPC does not provide for a homicide exception. (1) Conduct that the actor believes to be necessary to avoid a harm or evil to himself or to another is justifiable, provided that: (a) the harm or evil sought to be avoided by such conduct is greater than that sought to be prevented by the law defining the offense charged; and (b) neither the Code nor other law defining the offense provides exceptions or defenses dealing with the specific situation involved; and (c) a legislative purpose to exclude the justification claimed does not otherwise plainly appear. (2) When the actor was reckless or negligent in bringing about the situation requiring a choice of harms or evils or in appraising the necessity for his conduct, the justification afforded by this section is unavailable in a prosecution for any offense for which recklessness or negligence, as the case may be, suffices to establish culpability.

Lawrence v. Texas

A Texas statute made it a crime for two persons of the same sex to engage in certain sexual conduct- setting apart sexual conduct between homosexuals and heterosexuals. A substantial number of sodomy prosecutions and convictions for which there are surviving records were for predatory acts against those who could not or did not consent, as in the case of a minor or the victim of an assault. General rule: most people read into criminal law that the conduct made unlawful is also harmful.

Corporate Complicity

A corporation may be held criminally liable if an agent of the corporation violates a criminal statute. We sometimes call this doctrine respondeat superior. A corporation is not, though, vicariously liable for any action taken by one of its agents. To be criminally liable: (1) the agent must be acing in the course of his or her employment, having authority to act in such a way; (2) the agent must be acting in furtherance of a corporate interest; and (3) management must be authorizing, tolerating, or ratifying the behavior in some way.

Regina v. Martin Dyos

A defendant cannot be convicted of murder for committing an act if death would or could have occurred in the absence of the defendant's act. Decedent received 2 or more separate blows.No evidence as to whether they were caused by the same or different objects, both principal wounds were potentially fatal, no distinction was made as to the seriousness of either wound, either would would "very probably" caused death There was no certain way of telling which injury came first, and there was a "reasonable and sensible" possibility that the deceased might have recovered from the first injury, whichever that was.

Jones v. United States (omission and legal duty)

A defendant may only be convicted of a crime for the failure to act if the defendant was under a legal duty to act. A conviction for manslaughter may only be based on the omission of a duty to provide care for the victim if the defendant was under a legal or contractual obligation to provide that care, not simply a moral duty. The party must owe a LEGAL duty to act.

Necessity

A defendant may utilize the affirmative defense of necessity when he (1) feels compelled to pick between two competing evils, and (2) commits a criminal act that helps prevent or avoid the greater evil, (3) provided that there was no alternative choice. Most jurisdictions do not permit a person to claim necessity if they created the dangerous situation.... Unlike self defense where there is another posing a threat of death or serious bodily injury. Also, the situation is out of the hands and not caused by the defendant (acts of nature) where they feel compelled to pick between competing evils Objective Reasonableness Threat must be an emergency situation that is imminent and compelling their acts. (Warshow nuclear trespassing the burden to prove necessity normally falls on the defendant

Retreat in self defense

A majority of states have some provision that allows individuals to respond with deadly force in cases where they face a serious risk of bodily injury, even if the opportunity exists to retreat. These so-called "Stand Your Ground" states also increasingly put the burden on the prosecutor to disprove self-defense beyond a reasonable doubt. A significant minority of states still put a burden on the defendant to retreat before using deadly force outside their home, if retreat is possible.

Protect Your Castle

A majority of states recognize that a person may be more justified in using deadly force to repel an attack within his or her home. Some states have extended these protections to the workplace. Historically, it was sometimes the case that a person could only use deadly force inside their homes when the occupant reasonably believed that the intruder intended to use violent force or commit a violent felony therein. Protect Your Castle statutes commonly establish a statutory PRESUMPTION that when a person unlawfully enters another individual's home or dwelling, the occupant is reasonable in fearing serious bodily harm and thus using deadly force to repel the attack. A majority of states have adopted this statutory presumption.

Legal Insanity/ Mental Illness MPC- minority test

A minority of states utilize the MPC 4.01 test, considering two factors: (1) Appreciation of actions: did the defendant have a substantial capacity to appreciate the criminality or wrongfulness of his or her conduct? (2) Volitional capabilities: did the defendant have a substantial capacity to conform his or her conduct to the law?

MPC and Negligently

A person acts negligently 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 os such a nature and degree that the actor's failure to perceive it, considering the mature 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.

MPC and recklessly

A person acts recklessly when he CONSCIOUSLY DISREGARDS 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, 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.

MPC 2.06(3): purpose requirement

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 an offense he (i) solicits such other person to commit it or (ii) aids or agrees or attempts to aid such other person in planning or committing it.

MPC 5.01 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 an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.

MPC 5.03 Conspiracy

A person is guilty of conspiracy with another person or persons to commit a crime if with the purpose of promoting or facilitating its commission he: (a) agrees with such other person or persons that they or one or more of them will engage in conduct which constitutes such crime or an attempt or solicitation to commit such crime; or (b) agrees to aid such other person or persons in the planning or commission of such crime or of an attempt or solicitation to commit such crime.

Proportionality in self defense

A person may only use deadly force when he or she faces an imminent threat of deadly force, or the threat of serious bodily injury. Proportionality of aggression v. act of self defense

MPC 3.04-3.06 and self defense

A person may use self-defense "when the actor believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force..." (MPC 3.04(1)). This general rule also applies to the protection of other people (MPC 3.05). And 3.06 also provides a limited set of situations when individuals cause force in defense of property. MPC 3.04(2)(b) limits the use of deadly force to a narrow set of circumstances where a person is at risk of serious bodily injury, death, or a subset of particularly violent crimes. The MPC also bars aggressors from using deadly force in self-defense (3.04(2)(b)(i)). While the MPC appears to establish a subjective test for self-defense, 3.09(2) bars the use of self-defense claims where the defendant is reckless or negligent in subjectively believing that self-defense is necessary. MPC 3.04: fairly subjective test of whether or not person believed the person needed to use deadly force to protect himself. MPC 3.09: limits MPC from being a fairly subjective test. If person was wrong, could still charge with negligence or recklessness Recklessness is hard to prove in a case where a person believes he is in the right for acting the way he did because you have to prove he knowingly took a risk May subjectively believe use of force was necessary but if that belief was grossly negligent, can still be responsible under the MPC.

MPC terms of solicitation mirror the majority rule used in most states

A person must generally "command, encourage, or request another person to engage in specific conduct that would constitute such crimes..." (MPC 5.02(1)) Some states and the MPC allow for individuals to be held liable for un-communicated solicitation- situations where a person tries to solicit someone to commit a crime but fails to reach their intended target with the communication (MPC 5.02(2)) MPC rule, close to what you see in most states, one key difference to keep in mind is that most states that punish solicitation downgrade it significantly than attempt which is still less than those who actually commit the crime (although MPC would treat them all relatively the same)

Self Defense

A person who believes that the force he uses is necessary to prevent imminent unlawful harm is JUSTIFIED in using such force if his belief is a correct belief. If, on the other hand, a person reasonably but incorrectly believes that the force he uses is necessary to protect himself against imminent harm, his use of force is EXCUSED (legal insanity). A defendant may utilize self-defense when (1) he is not the initial aggressor, (2) he uses otherwise unlawful force (3) to protect himself or another person (4) from an imminent threat, and (5) that force used in self-defense is necessary and proportionate to repel the attack. Traditionally, states put the burden to prove self-defense on the defendant (like most affirmative defenses), but today there has been a shift to put this burden on the prosecution to disprove self-defense beyond a reasonable doubt

Commonwealth v. Twitchell

A reasonable person not trained in the law might fairly read the Attorney General's comments as being a negative answer to the general question whether in any circumstances such parents may be prosecuted. Official statement of law by AG, a government official, is the highest standard of an opinion of law available (different than in Cheek) and is a valid defense of culpability.

Diminished capacity

A small number of jurisdictions have historically allowed defendants to use diminished capacity defenses. These are NOT affirmative defenses. They instead are cases where a defendant uses evidence of mental illness or other conditions that they believe negate the mental state (malice) and thus mitigate culpability (for example, reduce murder to manslaughter like in the "Twinkie Defense" example in class). MPC 4.02(1) allows this kind of diminished capacity.

Complicity

A way for the state to hold a person liable for an offense when they simply help, assist, or aid in the commission of the crime. Complicity generally applies to completed crimes. Complicity is not a separate criminal offense. You cannot charge someone with complicity. Instead, you can use the complicity doctrine to hold a person liable for the offense when they otherwise would not be liable without the doctrine. The requisite MPC section (2.06) and the majority rules for complicity are very similar.

Sentencing Designs

ANY FACTUAL FINDING THAT INCREASES THE POSSIBLE MAXIMUM ALLOWABLE PUNISHMENT FOR A CRIMINAL DEFENDANT MUST BE SUBMITTED TO A JURY AND DECIDED BEYOND A REASONABLE DOUBT.

MPC 2.03 vs. Common Law Causation

Addresses causation in a slightly different way. It requires actual causation and legal causation. In judging legal causation, though, the MPC states that the court should determine whether the outcome is "not too remote or accidental" as to have a "just bearing on the actor's liability." The MPC also establishes somewhat different legal causation tests based on the statute's underlying mental state requirement

Rowland v. State

Adultery as adequate provocation

Smith v. State

Alaska Law at the time of this case: A person is not responsible for criminal conduct if at the time of the conduct, as a result of mental disease or defect, he lacks substantial capacity either to appreciate the wrongfulness of his conduct or to confirm his conduct to the requirements of law. Evidence of previous mental illness is not enough to legally determine legal insanity. BUT must consider ALL evidence. Not enough to say that because his actions did not make a lot of sense that he lacked a substantial capacity to conform his conduct. According to supervisors, although D showed signs of dissatisfaction, his year in the army was devoid of additional bizarre behavior.

Duress

An affirmative defense brought by an individual who commits a crime only because he reasonably feel coerced by another person. In order to bring a duress claim, a defendant must (1) have committed an otherwise unlawful act (2) against his will via coercion, (3) resulting from an unlawful and imminent threat (4) of serious bodily harm to the person facing the coercion, or to a third party. This defense is NOT available to individuals who voluntarily put themselves in a position to be coerced via their own negligence the burden to prove duress normally falls on the defendant. Objective Reasonableness If you could seek resolution through the justice system, duress may not be applicable.

Aggressors and self defense

An aggressor can lawfully use force and claim self-defense only if (1) the aggressor withdraws/ retreats and the initial victim continues to use force, or (2) the victim responds to the aggressor's initial force with disproportionate force. If original aggressor loses his self-defense claim, his real culpability lies in his original aggressive act that caused the situation that led to the victim attacking him with deadly force and then him responding wth deadly force.

Apprendi v. New Jersey (sentencing design and the 6th amendment)

Any fact, other than a prior conviction, that increases the maximum penalty for a crime must be submitted to a jury and proven beyond a reasonable doubt by the prosecution. New Jersey statute classifies the possession of a firearm for an unlawful purpose as a "second-degree" offense punishable by imprisonment for "between 5 and 10 years." A separate statute, described by the State's SC as a "hate crime" law, provides for an "extended term" of imprisonment if the trial judge finds, by a preponderance of the evidence, that "the defendant in committing the crime acted with a purpose to intimidate an individual or group of individuals because of race, color, gender, handicap, religion, sexual orientation or ethnicity." The extended term, authorized by the hate crime law for second-degree offenses is imprisonment for between 10 to 20 years. Violates the 6th amendment

Withdrawal and Conspiracy

Any withdrawal must be VOLUNTARY and COMPLETE. It must also involve some effort to offer assistance to the authorities or prevent the crimes from happening. The bar is going to be pretty high for conspiracy because risk has already been created by merely agreeing. all we are punishing is the agreement of an act. Modern rule requires an effort to thwart the act in order to satisfy withdrawal, merely communicating disapproval is typically not enough

Sexually Violent Predator (SVP) Laws

As of 2007, 19 states held an estimated 2,700 offenders via SVP laws Sex Offender Registries and Zoning Laws:All 50 states have sex offender registries. In some states and cities, these restrictions limit offenders from living within 2,000 feet of any school, park, playground. This prevents offenders from living in 99% of homes in some jurisdictions... "world's smallest park."

Felony Murder

At minimum to be charged with felony murder, a person must (1) commit an independent (2) inherently dangerous felony, and (3) the felony is at minimum the "but-for" cause of another person's death. Typically categorized as a first or second degree murder

People v. Thousand

Attempt to meet underage girl, the fact that she does not exist does not provide a defense for impossibility Liczbinski was a cop who posed as a minor in a chat room. Defendant in the chat room who described himself as 23 years old approached Liczbinski. Liczbinski said that he was a 14-year-old girl. Conversations with the defendant became sexually explicit and defendant sent a picture of his genitalia. The two arranged to meet and officers arrested the defendant. Defendant makes it very clear that he knows the girls age by asking if she looks over 16 as to not arouse suspicion. Liczbinski told him to bring a white teddy bear as a way to identify him. Issue: Can D be charged with an at when one of the elements required is not met? Any person who shall attempt to commit an offense prohibited by law, and in such attempt shall do any act towards the commission of such offense, but shall fail in the perpetration, or shall be intercepted or prevented in the execution of the same, when no express provision is made by law for the punishment of such attempt, shall be punished. Court ruled in favor of prosecution that because there was no minor victim does not give rise to viable defense.

Legal Insanity/ Mental Illness majority test

Basic Test: Most states utilize some form of the M'Naghten test three possible considerations are: (1) Cognitive capacity: did the defendant know the nature and quality of his act? (2) Moral capacity: did the defendant understand that his actions were wrong (morally wrong or unlawful, depending on jurisdiction)? (3) Irresistible impulse: did the defendant commit the act because of an irresistible impulse? Note: the original M'Naghten test only included the first two prongs, the third is a recent addition in some states.

People v. Newton (must voluntarily commit the crime)

Became unruly on a plane in flight from the Bahamas to Luxembourg. Pilot re-routed the plane to land in NY and Newton was charged with illegal possession of a weapon (requires an act AND a mental state of knowingly, intentionally, or recklessly). Brought to NY involuntarily and therefore involuntarily forced to violate this NY statute that he never intended to violate. Because he had no intention of being in the state of New York he therefore should not be subject to state law or federal law as he had no intention of being in the United States as well.

Legal Insanity/ Mental Illness

Because of mental condition we excuse ENTIRELY their conduct, although we know the conduct is wrong/ not engaged in good behavior but not morally blameworthy. Whether or not they know or appreciate the wrongfulness of their conduct- not a deterrable group of individuals (unable to obey the law), and if we're focused on individual culpability then retribution does not make sense. Rehabilitation- what they really need is rehabilitation and pushing them into prisons is not going to accomplish this goal The burden is normally on the defendant to prove legal insanity by a preponderance of the evidence. Legal insanity is about whether a person was sane at the time of the crime. There is a separate legal procedure for individuals who are not sufficiently sane to stand trial. Also, remember that someone found not guilty by reason of insanity will almost always be subject to civil commitment- although to do so long-term, there must be a showing that the person

Blakely/Booker

Blakely- redefined what statutory maximum meant... The maximum a judge may impose based solely on the facts reflected in the jury verdict or admitted by defendant Booker- Made federal sentencing guidelines no longer binding. Essentially applied the Apprendi decision to state and federal courts. Now judges again have more discretion- have to find that a factual finding is made without a reasonable doubt Blakey immediately caused courts, legislatures, sentencing commissions, and legal scholars to reappraise the structures and procedures of virtually every sentencing scheme in the US.

Justifications and excuses

Both affirmative defenses that a criminal defendant can bring up to avoid punishment. In such cases, a defendant typically admits to having violated the statute, but argues that he should not be punished because either: 1. the behavior was socially valuable due to the state of external conditions (justification) OR 2. the behavior was morally blameless because of some internal condition (excuse) Both justifications and excuses are complete defenses, which means that if a defendant meets the evidentiary burden for a justification or excuse, the state will not criminally punish the defendant for his action (although civil commitment normally follows a showing of legal insanity).

People v. Dillard

CA Penal Code stated "Aside from special enumerated circumstances, every person who carries a loaded FIREARM, on his or her person or in a vehicle while in any public place or on any public street is guilty of a misdemeanor." Court applied strict liability and stated no knowledge of carrying a loaded gun was necessary because this is an issue involving SOCIAL WELFARE/ SAFETY and a loaded weapon.

Robinson v. California (status crimes)

California statute which makes it illegal to be addicted to narcotics whether or not he has ever used or possessed any narcotics within the State and whether or not he has been guilty of an antisocial behavior Punishing and confining a person for his status as a drug addict is akin to punishing and confining people for mental illness or physical diseases. Imprisoning a person for even one day solely because of his status and not because he exhibited criminal conduct is cruel and unusual punishment. Status prefaced upon previous acts.... could have been previously punished for the acts that caused this addiction. (double jeopardy) individuals continuously subject to criminalization of their mere being, impossible to immediately change status of addiction (indefinite).

People v. Ceballos

Cannot claim self defense if you set up a trap that causes someone's death or serious physical harm. Trap is not going through deciding steps for use of deadly force. Decision to install trap means any time a person opens the door without his permission puts that person at risk of seeing maimed or killed. Doesn't leave a lot of room for human judgment.

People v. Cavitt

Cavitt and Williams plotted with Mianta to rob her step-mother. They entered the home, bound her up and stole guns, jewelry, and also beat her. Evidence that C and W caused the death but also evidence that Mianta deliberately suffocated her after the two others left and were in a place of temporary safety. Causal Relationship - proof of a logical nexus, beyond mere coincidence of time and place, between the homicidal act and the underlying felony the non-killer committed. Most states use some form of the logical nexus test. Felony murder does not apply where act resulting in death is COMPLETELY UNRELATED to the underlying felony other than occurring at the same place and time. BUT the killing does not have to be in furtherance of the felony. In this case, either theory of the death suffices: Killed as result of beating/being tied up or Mianta killed her (killing only witness)... Even if she killed her out of animosity, this would not let C and W off - many victims of felonies are chosen for this exact reason. Temporal Relationship - proof of the felony and the homicidal act were part of one continuous transaction

MPC 5.01(2) examples of substantial step

Conduct shall not be held to constitute a substantial step under Subsection (1)(c) of this Section unless it is strongly corroborative of the actor's criminal purpose. Without negativing the sufficiency of other conduct, the following, if strongly corroborative of the actor's criminal purpose, shall not be held insufficient as a matter of law: (a) lying in wait, searching for or following the contemplated victim of the crime; (b) enticing or seeking to entice the contemplated victim of the crime to go to the place contemplated for its commission; (c) reconnoitering the place contemplated for the commission of the crime; (d) unlawful entry of a structure, vehicle or enclosure in which it is contemplated that the crime will be committed; (e) possession of materials to be employed in the commission of the crime, which are specially designed for such unlawful use or which can serve no lawful purpose of the actor under the circumstances; (f) possession, collection or fabrication of materials to be employed in the commission of the crime, at or near the place contemplated for its commission, where such possession, collection or fabrication serves no lawful purpose of the actor under the circumstances; (g) soliciting an innocent agent to engage in conduct constituting an element of the crime.

Completing v. conspiring to complete a crime

Conspiracy involves other people not just feigning interest (usually not just unilateral). Whenever you involve 2 or more people that creates additional risks that would not be there if it were just one person committing a crime. Likelihood of completeness increases, Pinkerton doctrine (allows for us to hold co-conspirators responsible for the foreseeable behavior of co-conspirators), etc

Conspiracy

Conspiracy under the majority state rule requires (1) an agreement to commit a crime (2) accompanied by an overt act done by some member of the conspiracy in furtherance of that conspiracy. We also require that a person have more than mere knowledge to satisfy the mental state of conspiracy- instead a person must intend to agree and intend to commit the crime. Conspiracy is particularly useful for inchoate group crimes (i.e. those where it may not be possible to use complicity to an attempt. Today we have a unilateral approach and thus the state must only show one person believed that he was agreeing with another person to commit a crime to justify conspiracy charges. It is enough that D thinks there is an agreement with one or more additional parties.

Justification in punishment

Constitution does not require states to adopt any particular justification for punishment. States are free to choose punishments that emphasize one justification over another (e.g. rehabilitation or retribution) so long as their punishment scheme does not violate the eighth amendment

Death Penalty

Constitutionally permissible punishment under the 8th amendment for defendants who have committed AGGRAVATED FIRST DEGREE MURDER. Empirical evidence has long demonstrated that there is substantial racial inequality in the administration of the death penalty. Nonetheless, in McClesky the Court held that the death penalty is constitutionally permissible This is in part because states today utilize complicated procedures to ensure that juries only hand down death sentences after a holistic consideration of statutorily circumscribed AGGRAVATING factors and all reasonably applicable MITIGATING factors. States provide statutory guidelines for factors that may elevate a first-degree murder to a capital crime. Defendants have a constitutional right to present evidence of any possible mitigating factors that may reduce their culpability or mitigate the need for the death penalty. These mitigating factors may have to do with the circumstances of the crime or the defendant's background and character

Franks v State

Court had different interpretation of immediate flight. Defendant robbed a supermarket and drove off the scene UN-PURSUED. Several minutes later, he was stopped for speeding and running a stop sign by an officer unaware of the robbery. The defendant assaulted the officer, took his gun, fired at him and then drove off. The officer who had run from the gunshots was unable to pursue by car. A few minutes later, Franks ran another stop sign and struck another car, killing a child passenger. The court reversed the felony murder conviction for want of a causal nexus between either the robbery of the grocery store or the attack against the officer and the child's death.

Roper v. Simmons

Court has adopted categorical rules prohibiting the death penalty for defendants who committed their crimes before the age of 18.

Hutto v. Davis (non-categorical)

Court upheld a sentence of 40 years for possession of marijuana with intent to distribute and distribution of marijuana

Harmelin v. Michigan (non-categorical)

Court upheld a sentence of life without parole for possessing a large quantity of cocaine. 8th Amendment contains a narrow proportionality principal that does NOT require strict proportionality between crime and sentence but rather forbids only EXTREME sentences that are grossly disproportionate to the crime.

Rummel v. Estelle (non-categorical)

Court upheld a sentence of life without possibility of parole for a defendant's third nonviolent felony, the crime of obtaining money by false pretenses.

Defense and Appeals

Courts must generally conform to the past decisions of the highest court of appeals in their jurisdiction. The HIGHEST court can change its mind about how to interpret their constitution or statute. Courts can only invalidate statutes based on constitutional grounds. All courts defer to the US Supreme Court on matters of federal constitutional law. But neither SCOTUS nor any federal court generally has the authority to interpret state statutory or state constitutional law.

public policy and attempt/ solicitation

Criminal attempts and solicitation statutes allow the justice system to hold more people accountable for acts that either fail to achieve their intended result, or have not yet been fully completed. Attempt and solicitation statutes expand the net of people that we can prosecute. And by distinguishing between solicitation and attempt, we also ensure that the requisite punishment fits the relative culpability of the offender. But generally, keep in mind that in most cases attempts and solicitation offenses are punished less harshly than completed criminal offenses- demonstrating yet again that outcomes matter in the criminal law.

MPC 210.3 Manslaughter.

Criminal homicide constitutes manslaughter when: (a) it is committed recklessly; or (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. Manslaughter is a felony of the second degree

Dandova v. State

D and father of her child separated shortly after she believed he sexually assaulted the child. Bitter custody and financial dispute ensued which reduced D to poverty. 2 years later, news of a new lawsuit her ex husband was filing against her and the unexpected sighting of him driving a new vehicle re-inflamed D's anger over earlier wrongs and she shot him. Court rejected more flexible MPC rule in favor of the more objective common law standard... could possibly have won under the MPC.

State v. Etzweiler

D charged with 2 counts of negligent homicide. Loaned his car to Bailey, knowing he was intoxicated. Bailey collided with another car killing the 2 passengers of the other car. Court: cannot legally use complicity to an underlying crime that does not involve intent. an accomplice's liability ought not to extend beyond the criminal purposes that he or she shares. Can't apply complicity to a general intent crime. This is an example of why incorporate both an intent to assist and the underlying mental state.... must intend to take a specific action

State v. Formella

D charged with criminal liability for conduct of another after participating as a lookout for other students to steal math exams from their high school. Let's assume there his no requirement legally to report the crime... they stopped providing assistance and walked outside. Must communicate lack of encouragement- undo any harm they had potentially done. Take Away: withdrawal must be complete and voluntary and wholly deprive the crime of its effectiveness. if not then must either alert the police or to something significant to stop the crime

Lockett v. Ohio:

D getaway driver in an armed robbery, while she was waiting one of her accomplices accidentally killed the robbery victim. Ohio death penalty statute mitigating factors: victim of the killing helped cause his own death, D acted under duress, coercion, or strong provocation, or that the offense primarily resulted from D's mental impairment BUT judge not allowed to count D's minor participation in the killing. SC: vacated her death sentence- the ENTIRE character and background of D is relevant to the sentencing decision

People v. Lauria

D promises services are discrete and as safe as you can get, "tricks," admissions of previously working with prostitutes. Issue: distinguishing between knowing conduct may help another commit a crime v. intending behavior to help another commit a crime. Factors the court says may be relevant in distinction: (1) intent may be inferred from knowledge, when the purveyor of legal goods for illegal use has acquired a stake in the venture. (2) intent may be inferred from knowledge, when no legitimate use for the goods or services exists. (3) intent may be inferred from knowledge when the volume of business with the buyer is grossly disproportionate to any legitimate demand or when sales for illegal use amount to a high proportion of the seller's total business and (4) misdemeanor v. felony: "limitation is found in the criminal liability of an accessory, which is restricted to aid in the escape of a principal who has committed or been charged with a felony." Sounds like they are trying to lower mental state requirement for a specific group of offenders (felons).The average person is pretty adverse with most felonies (things we know are crimes uniformly). Court found that Lauria was not guilty because it would be an undue burden on him if he was forced to scrutinize all the parties that he did business with, it would make it very difficult for him to run his business efficiently. Lauria had knowledge, but there was insufficient evidence that he intended to further their criminal activities. May not penalize people who do not understand it is a dangerous or illegal crime. Formal distinction between minor crimes which are less knowable than more serious crimes most know are illegal. Generally, mere knowledge that your conduct might be helpful to commit a crime is not necessarily enough to demonstrate conspiracy.. what we need is a true purpose or intent to assist in a crime (true meeting of the minds).

People v. Serravo

D stabbed his wife while she was sleeping, wounding but not killing her. When she woke up, D explained that she had been attacked by an intruder, and he repeated this explanation to the police. Several weeks later, however, his wife found letters written by D admitting that he had stabbed her. When she confronted him, he confirmed his guilt and stated that he had been told by God to end the marriage by killing her. Sounds like he knows it is wrong (morally just but not legally- police wouldn't understand. Moral objective test for wrongfulness.

Montana v. Egelhoff:

D was charged with deliberate homicide, or purposely or knowingly causing a death. D claimed that his extreme intoxication made him physically incapable of committing the crime and unable to remember what happened. State criminal code provided that a defendant's intoxicated condition could not be considered in determining whether the defendant had the mental state required for commission of the offense. Statute upheld. States have broad authority in defining the elements (requisite mental state) of criminal offenses, and such statutes do not violate the Due Process Clause unless they violate fundamental principles of justice.

United States v. Hamilton

Defendant and deceased gathered with a group to play pool and they began to argue. They were asked to leave and then a fight started. In the course of the fight the deceased was knocked down and the defendant exploded in a fit of rage. The deceased was taken to the hospital and due to his violent nature he was strapped down. The restraints were eventually removed and he had a convulsion and with his own hands pulled out his tubes which kept his airways clear and died about an hour later. 1. Actual causation? But-for 2. Legal causation? intervening act of P ripping out his tubes? How was this not a voluntary choice to disrupt the chain of causation? Unsure of whether or not he would survive regardless but definitely fair to say the removal of tubes hastened his death significantly. Absent this act of taking out the tubes, Hamilton would be responsible for his death. We don't know if this was his conscious decision, but according to the court in this case, "even if the act of the deceased in pulling out the tubes was conscious and deliberate, it would not help the defendant." pp.303-304 Court's holding: Where the injuries inflicted on the deceased by the defendant were the cause of death in the light of the principles of law, the defendant should be found guilty of homicide.

Rogers v. Tennessee

Defendant charged with second degree murder after stabbed victim died 15 months later due to complications of coma induced by stabbing. At the time of the crime, TN common law recognized the year and a day rule but it was not statutorily recognized. Although the SC of TN concluded that the rule persisted at common law, it also pointedly observed that the rule had never once served as ground of decision in any prosecution for murder in the State. The TN court's abolition of the year and a day rule was not unexpected and indefensible (outdated, no good reasons exist for retaining the rule). It would be different if this rule were included in a state statute.

Payne

Defendant guilty of felony murder when one of homeowners (innocent third party) was killed by a shot that could not be identified

Powell v. Texas

Defendant was arrested and charged with being found in a state of intoxication in a public place, in violation of a Texas statute which states "Whoever shall get drunk or be found in s state of intoxication in any public place, or at any private house except his own, shall be fined not exceeding $100." He was tried, found guilty, and fined $20. His counsels urged that he was afflicted with the disease of chronic alcoholism, that his appearance in public while drunk was not of his own volition, and therefore to punish him criminally for such conduct would be cruel and unusual in violation of the US Constitution. Conviction upheld. Appellant was convicted not for being a chronic alcoholic but for being in public while drunk on a particular occasion. Texas has not sought to punish a mere status, nor has it attempted to regulate appellant's behavior in the privacy of his own home. He knowingly failed to take feasible precautions against committing a criminal act (the act of going to or remaining in a public place).

People v. Beeman

Defendant was charged and convicted with robbery, burglary, false imprisonment, destruction of telephone equipment and assault with intent to commit a felony after he gave the blue prints and further instructions as to how to rob the victim. Argued that although he acted in ways which in fact aided the criminal enterprise, he did not act with the intent of encouraging or facilitating the planning or commission of the offenses. Distinction between knowledge and intent: can you have just knowledge without intent? no. Arguably being willfully ignorant- whatever the consequences, the crime could be committed or not just indifferent. Willful ignorance/ ostrich approach: p.762. should not be able to just bury your head and hide. MENTAL STATE REQUIREMENT: must show a true purpose or intent to facilitate the crime and satisfy the mental statement for the underlying crime. An aider and abettor will share the perp's specific intent when she knows the full extent of his criminal purpose and gives aid or encouragement with the intent or purpose of facilitating the perp's commission of the crime. Convictions reversed.

Abandonment

Defendants sometimes claim that they can no longer be held criminally responsible for an attempt after they have abandoned or renounced their criminal intent. Jurisdictions that permit abandonment use a test similar to that in MPC 5.01(4), which states that the renunciation must be voluntary and complete. Generally, renunciation is not voluntary if it is motivated by an increase in the likelihood of apprehension, a desire to postpone the plan until a later date, or a desire to transfer the intended target

Homicide

Describes the crime of causing the death of another person via a guilty mental state. But the term homicide broadly groups together many different offenses. 1. Some homicide offenses (murders) are generally considered more reprehensible than other homicides (manslaughter). 2. The MPC only distinguishes between murder, manslaughter, and negligent homicide. 3. States, though, generally elaborate numerous different degrees of homicide beyond those articulated in the MPC. 4. Punishment ranges for homicide offenses can range from a few years up to the death penalty. 5. transferred intent doctrine: if intent is to cause one death but you in turn cause another's death, we transfer that intent onto the new victim. Does not reduce culpability or intent.

general deterrence

Designed to make potential criminals fear the consequences of crime (scared to commit murder because of possibility of death sentence)

Solicitation

Distinguished from attempt and is a separate criminal offense that sometimes captures individuals that are planning crimes, but have not yet taken a substantial step.

Felony murder v. Pinkerton

Double jeopardy (if there is already a completed act, you can use this as a way to target a person without conspiracy- no meeting of the minds needed). Some states have more rigorous tests than Blockburger for double jeopardy- some require separate distinct acts. Pinkerton is not a uniform rule (now far more common but not used uniformly)...

National Response to Juvenile Crimes

During the early 1990s, nearly every state made it easier to charge juveniles with adult crimes. These new laws took three primary forms: (1) 45 states expanded juvenile eligibility for adult criminal court proceedings, (2) 30 states expanded sentencing authority in juvenile cases, and (3) 47 states removed traditional confidentiality provisions by making previously sealed juvenile records more open to public scrutiny. Only three states failed to enact laws making the juvenile justice system more punitive during this time.

Lesser included offenses

Encompassed by more serious offenses but don't have all the elements). Manslaughter in many states is a lesser included offense because it does not include a mental state.

Defenses

Even if the prosecutor can prove each element of a statue beyond a reasonable doubt, the defendant may offer additional reasons- called defenses- why he or she should not be found guilty. Jurisdictions differ on how a defendant can raise and prove a defense. The US Constitution does not require that the prosecution disprove any defenses raised by the defendant beyond a reasonable doubt.

Booth v. State

Example of old rule distinguishing between legal impossibility and factual impossibility Charged with the crime of receiving stolen property and found guilty of the lesser crime of Attempt to receive stolen property. General Rule: "Where the actual physical possession of stolen goods has been recovered by the owner or his agent and afterwards carried to the receiver either by the original their or the instrumentality through which the thief originally intended to convey it, at the express direction of the owner or his agent, for the purpose of entrapping the receiver, his receiving of the goods is not a receiving of stolen goods." Could not be convicted of receiving stolen property because the coat had lost its character as stolen property- not in the category of stolen property at the time he received the coat... factual impossibility. D is intending to violate the statute but in reality, if he had completed everything about the act, he would have merely been in possession of lawfully obtained goods.

Policy Considerations: Felony Murder

Expands the net of individuals potentially liable for murder. By increasing the severity of punishment, we can potentially DETER more wrongdoers. It should also serve a RETRIBUTIVE purpose by vindicating the death that happen during felonies- even those that were unintended 46 states have felony murder law. In 40 states the felony murder rule applies to deaths of co-felons. Felony murder is generally a first degree murder, although sometimes states downgrade it to second degree. Punishable by death in 24 states.

Policy Considerations and Involuntary Manslaughter

Extending criminal liability to ordinary negligence runs the risk of penalizing people who engage in what we would call mistakes that don't exactly understand the risk they are undertaking. Casting too wide of a net could catch more people similar to you and I. As a general rule, we want to avoid criminalizing these people. At least when making it more narrow with recklessness we are making sure they have that mental state of knowing. Moving the standard to GROSS NEGLIGENCE is probably MOST DESIRABLE- cast a wide enough and narrow enough net

People v. Gleghorn

F destroys property (releases snake) —> G threatens F in garage and sets fire. —> F shoots arrow and hits G and comes down —> G seriously injured F. Example of when both parties are in the wrong, who is responsible for escalation of harm? Introduces us to the idea of the initial aggressor and the complexity when there are multiple people using different forms of harm against each other. Court: 1.F could have viewed this differently (reasonable person would probably view this simple assault as serious threat to bodily harm). 2. Didn't just respond by inflicting an injury similar to an arrow in the back, he completely incapacitated him (G acted disproportionately). Once you are the initial aggressor, you assume the risk that another might use force against you. But, initial aggressor can use deadly force if the other person acts out disproportionately, escalating the risk of serious bodily harm.

Shelton v. Secretary, Department of Corrections (application of strict liability)

FL Legislature enacted changes to FL's Drug Abuse Prevention and Control Law which made FL the only state in the nation expressly to eliminate mens rea as an element of a drug offense. This was a second degree felony, SEVERELY besmirching consequences, high penalty (put away potentially for the rest of your life). Is this the kind of crime that it is a serious public safety/welfare risk that you can dismiss the inclusion of intent (similar to that of the loaded rifle)? Probably not. Court held that the State was required to prove that defendant knew of the illicit nature of the items in his possession... lack of mens rea (knowledge) in the statute violates due process.

People v. Lubow

Facts: Charge was that defendants attempted to cause Silverman to commit the crime of grand larceny by attempting to induce him to obtain precious stones on partial credit with the intention not to pay creditors. Defendants owed Silverman $30,000 for diamonds. Because of the money owed Silverman was being forced into bankruptcy. In response Lubow said lets make the bankruptcy a big one and the defendants outlined a method to purchase diamonds partly on credit and sold less than for cost to build up credit until large amounts came in and then there would be a claim of bankruptcy with Silverman explaining that he lost all his money gambling. Silverman reported this proposal to the DA and the next month police equipped Silverman with a tape recorder for use during conversations. Easy solicitation example. Sufficient evidence in the record to find that Lubow and Gissinger (defendants) intended Silverman to engage in conduct constituting a felony by defrauding creditors of amounts making out grand larceny and that they importuned Silverman to engage in such conduct- meeting the actual terms of the statute. The act requirement for criminal solicitation doesn't involve any physical act taken by defendant, the act would actually be encouraging or trying to get someone else to violate a statute.

Pottinger- Homelessness

Federal court extends the reasoning from Powell and Robinson to prevent the City of Miami from enforcing a local ordinance banning the homeless from sleeping, standing, sitting, or performing other life-sustaining activities in public spaces. Status of being homeless is involuntary and beyond their immediate ability to alter and that the conduct for which they are arrested is inseparable from their involuntary homeless status. (people rarely choose to be homeless; unavailability of low-income housing or alternative shelter; conduct is harmless).

State v. Colenburg

Felony murder conviction was upheld where the defendant had received a stolen car and committed the felony of possessing it, and then, almost seven months later, fatal struck a toddler with the stolen car while driving it normally, when the unsupervised child wandered into the street. The court held that at the time of the accident, the defendant was still driving the car without the owner's consent. Problems: long temporal interval between the receipt of the stolen car and the death; the offense is minor and would not be a felony in most jurisdictions; the offense is not ORDINARILY DANGEROUS and so would not be a predicate felony in MOST jurisdictions; and normal driving does not foreseeably cause death or advance a felonious purpose. Prosecutors originally charged defendant with negligent homicide and only re-indicted him for felony murder when he forced them to prove his negligence by refusing to plead guilty.

See Defense MINORITY Subjective test

Focused almost entirely on what is going through the person's mind. no objective reasonability. allows for more people to claim self defense in a case like State v. Leidholm (North Dakota battered woman). Rather just being able to rely on physical characteristics, she can now rely on her unique emotional state- whether or not she subjectively believes this conduct is reasonable under her circumstance based on her past experiences. Completely subjective

specific deterrence

Focused on those who have already committed a crime Punish known criminals so severely that they will never be tempted to repeat their offenses(3-strikes law)

Francis v. Franklin Second-Degree Murder

Franklin was receiving dental care and was released from his cuffs to receive preliminary treatment and then was escorted back to the waiting room where he was not recuffed. There he grabbed one of the officer's pistols and took a hostage. Franklin went looking for a car and arrived at a house and when he knocked on the door and demanded a car, the door was slammed on him and at that moment Franklin's gun went off through the door and into the homeowner's chest. Seconds later the gun fired again and the bullet traveled upward through the door and into the ceiling. Intent to kill establishes the "malice" or "malice aforethought" necessary for murder. The act of killing alone does not alone prove the requisite intent to kill.

State v. Christy Pontiac-GMC, Inc. (corporate complicity)

General Motors offered a cash rebate program for its dealers. A customer who purchased a new car delivered during the rebate period was entitled to a cash rebate, part paid by GM and part paid by the dealership. GM would pay the entire rebate initially and later charge back against the dealer, the dealer's portion of the rebate. Employees at Christy Pontiac twice forged customers' signatures to obtain and to pocket for the dealership the customers' share of the rebate. Burden is placed on the corporation to prevent bad behavior. A corporation can be liable for the actions of its agents when 1) the agent was acting within the course and scope of his or her employment, having the authority to act for the corporation with respect to the particular corporate business which was conducted criminally; 2) the agent was acting at least in part, in furtherance of the corporation's business interests; and 3) the criminal acts were authorized, tolerated, or ratified by corporate management Here there was sufficient evidence of management authorization, toleration and ratification. Hesli, who committed the forgeries was middle manager who had responsibilities for cash rebate applications.

First Degree Murder

Generally considered the most culpable form of homicide and is generally when a person (1) knowingly, intentionally, or purposefully (2) with deliberation or premeditation (3) causes another person's death (4) with malice (either expressed or implied). The majority of states authorize the death penalty for some types if first degree murder, with other states authorizing life in prison.

The Requirement of Harm

Generally speaking, limitations to use criminal law only related to situations that involve definitive harm to individuals- mainly dicta, not binding General rule: most people read into criminal law that the conduct made unlawful is also harmful.

Factual vs. Legal Determinations (Appeals)

Generally, a defendant can appeal the LEGAL determinations made by the lower court in a criminal trial. For example, the defendant can appeal the judge's interpretation of the statute, interpretation of an earlier judicial decision, the constitutionality of the statute, or the properness of the jury instructions. Most appeals courts will NOT accept challenges to the FACTUAL determinations made by the jury, unless the defendant can show that no reasonable jury could have reached that factual determination based on the facts presented.

Ewing v. California Non-categorical (3 strikes)

Gives us a TERMS OF YEARS sentence deemed to be acceptable in proportionality to crime. Under California's "Three Strikes and You're Out Law," defendants with more than two violent or serious felonies are sentenced to "an indeterminate term of life imprisonment." Some crimes may be deemed felonies or misdemeanors at the discretion of the prosecutor and the court. Courts may also avoid the three strikes rule by vacating allegations of earlier serious or violent felonies. 2 time offenders actually have been found to be less likely to commit a third offense due to California's Three Strikes and You're Out Law. BUT the court found that Recidivism laws further the goals of incapacitation and deterrence. In this case, there is NO GREAT DISPROPORTION between the seriousness of the offense and the sentence. Ewing was convicted of stealing items worth $1,200 after four serious or violent felonies. The sentence is warranted by California's interest in protecting the public from repeat offenders like Ewing through incapacitation and deterrence.

People v. Gladman (immediate flight)

Gladman robbed at store at 8:10 pm. He walked ½ mile away. Police officer spotted a hiding man, Gladman. Gladman did not drop his gun; he instead shot the officer, leading to his death. This occurred at 8:24 pm. Key facts: 14 min. gap and ½ mile away; also, no temporary safety reached. Considerations: Distance; time; temporary safety. No complete set of considerations; each case is unique. Immediate flight.

Griffin v. State

Griffin's car overturned and someone called the police. When the police arrived on the scene there was a crowd of people there. Out of nowhere, Griffin and members of the crowd started yelling at and attacking the police officers, severely beating them. Griffin was charged and convicted of conspiracy to commit the beatings. Conspiracy actually requires a meeting of the minds- for those to agree or think they are agreeing to commit a crime. Complicity: completed crime that is demonstrative of their criminal purpose Why use conspiracy? What does it get us here that other charges would not? His culpability is not fully recognized by charging him with a crime or attempt. Effort on his part to get other people to join in committing the crime- once you incorporate more people, that is the risk we are trying to get rid of with conspiracy. Do not necessarily need evidence of parties getting together beforehand to agree to commit crime... legally there may be enough to convict. Agreement may be done quickly and instantly and can be unilateral in intent to bring others in on the crime. Represents as far we can take conspiracy. Evidentiary standard for getting this issue to the jury is less than what one would expect.

Attempt hypos

H1: Harold shoots figure 5 times which he believes is his father, actually a manikin. Tried his best to cause his death, the fact his father was not killed was due to something out of his control. Factual impossibility not a defense, only pure legal impossibility. This is not a pure illegal impossibility, attempted to commit an actual crime H2: Dave carries a small amount of foreign currency across the border. This is no longer a crime, although Dave fully believes he is committing a crime. Not liable- pure legal impossibility, no charge to bring H3. Buys talcum powder believing it is cocaine. Buying cocaine is a real crime and a real statute to be violated. Can be charged with attempt.

voluntariness and drunkenness

H1:Quigley is a heavy drinker. He also has a history of becoming violent and aggressive when drunk. One day, after drinking excessively, Quigley gets into a fight with a passerby on his walk home. He ends up punching the passerby. Officer Coco witnesses the incident and arrests Quigley. When Quigley awakes the next morning, he finds himself in jail with no recollection of the previous night's events. He argues that he should be held responsible because he did not voluntarily commit the incident. Does Quigley have a case? Could likely predict his drunken behavior. H2: Same as above but substitute alcohol with an elicit drug (arguably different because you don't always know what you intended to get)- still voluntary? Difficult to make the distinction between a status crime and voluntariness? When you take a drug, you know you could have a different reaction than before, once you fail to recognize the voluntary choice in the use of drugs it opens up a Pandora's box in the criminal justice system. The strongest argument is that they voluntarily assumed the risk, even if that creates a fuzzy line of what we know about drug and alcohol addiction- negating culpability could introduce a lot more ambiguity in the criminal justice system

Tison v. Arizona

Have to demonstrate recklessness in their mental state and had to have been a major participant. Helped someone they knew was a murder, had previously attempted to escape and killed someone in the process, brought a cooler of weapons, and pretty high mental state for felony murder. Person who kills the witnesses of felonies is also involved with the defendants in multiple felonies who are also in flight of helping him escape.

Merger idea and felony murder

Have to have an independent separate felony other than the intent to cause death to be charged with felony murder. Independent felony separate from the death itself. Hypo of committing assault with intent to bring about serious bodily harm. Person B dies. Could holding person A in felony murder be rational for his actions? Should be charged with murder, not felony murder,- intending to cause bodily harm infers that you assume the risk of causing death

People v. Hickman

Hickman and Rock were committing a burglary when police arrived. Tried to escape. One officer saw another man with a gun and the man did not drop the gun. Officer shot and killed this man - another police officer. Neither defendants had a gun. Example of proximate causation. third person trying to prevent the felony causes the killing = person committing felony can be guilty of felony murder

State v. Hunter foreseeability and felony murder

Hunter is convicted of felony murder after hitch-hiking a ride with Rameta, who forces him to take 2 people hostage. (Duress aside) Knowledge of Rameta's weapon, participates in kidnapping with a person who has talked about committing other deaths and crimes. Definitely potentially constitutes felony murder (likely satisfied). Similar situation to sons helping father and cellmate escape with weapons

State v. Hunter

Hunter is convicted of felony murder after hitch-hiking a ride with Rameta, who forces him to take 2 people hostage. Viewed in the light most favorable to Hunter and particularly in light of fact that it was undisputed that Rameta had possession of the .357 Magnum at all times, it cannot be said that Hunter had a reasonable opportunity to escape. If anything we can say that Hunter picked a lesser evil (kidnapping) in order to avoid death or serious harm to himself- did not chose to commit murder Court reversed trial court's decision not to allow compulsion instruction

People v. Ceballos (potential felony murder)

Hypo: Assume Steven died, Robert lives but does not get harmed. Could Robert be charged with felony murder for assuming the risk of breaking into someone's house? Relevant that this is a case involving a co-felon. Some states explicitly exclude holding co-felons in felony murder. Also relevant that they are not breaking into what is clearly a home but a garage. Risk assumed in breaking into a garage vs. a home is definitely less. Lack of foreseeability of risk could play into not being charged with co-felon felony murder.

Graham v. Florida categorical approach

Imposing a sentence of life in prison without parole upon a juvenile who did not commit homicidal crimes violates the Eighth Amendment's prohibition against cruel and unusual punishment. (1) national consensus: 6 jurisdictions do not allow life without parole for any juvenile offender, 7 jurisdictions permit life without parole for juvenile offenders but only for homicide crimes, etc. (2) independent judgment: juveniles have lessened culpability so are less deserving of the most severe punishments due to "lack of maturity and underdeveloped sense of responsibility" AND with respect to life without parole for juvenile non-homicide offenders, none of the goals that have been recognized as legitimate (retribution, deterrence, incapacitation, and rehabilitation) provides an adequate justification.

Lambert v. California

In a case where the government installs a NON-COMMON DUTY upon you, courts may read in an actual obligation owed by the government to NOTIFY. This state had a statute which said that all those convicted of an offense punishable as a felony in this state, it would be unlawful to remain in Los Angeles for a period of more than 5 days without registering. Lambert was arrested on suspicion of another offense and was charged with a violation of the registration law because at the time of her arrest she had been living in L.A. for 7 years and had previously been convicted with the crime of forgery, an offense which California punishes as a felony. Issue: Whether a registration act of this character violates due process where it is applied to a person who has no actual knowledge of his duty to register, and where no showing is made of the probability of such knowledge. Holding: The registration provisions of the Code as sought to be applied here violate the Due Process requirement of the 14th Amendment.

deliberation/ premeditation

In a majority of states, no time is considered too short to demonstrate deliberation or premeditation so long as the defendant took time to reflect on his actions

Strict Liability Offenses and the Absence of a Mental State

In a small subset of cases the state need not prove any mental state. Courts normally defer to legislative intent in determining whether a crime is a strict liability offense. Due Process generally prevents the state from eliminating the mental state requirement from common law and non-regulatory offenses that impose stiff punishments that may BESMIRCH the defendant. (Wulff). BUT strict liability can be applied in cases involvingSOCIAL WELFARE/ SAFETY (loaded weapons-Dillard). General rule for this class: strict liability should very rarely be used- avoid if possible. Ask: Is this the kind of crime that it is a serious public safety/welfare risk that you can dismiss the inclusion of intent (similar to that of the loaded rifle)?

6th Amendment

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

6th amendment

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause.

Cheek v. United States (willfulness)

In demonstrating a knowledge of the law, a subjective interpretation of the law can be a defense. Petitioner was entitled to an instruction on good faith misunderstanding of the tax laws as to his belief that wages were not income, whether or not such a belief was objectively reasonable. Knowledge and belief should normally have been questions for the jury. The defense of good faith misunderstanding did not apply to claims of unconstitutionality, however, because such claims arose not from innocent mistakes but from knowledge of the law and disagreement with its provisions. The purpose of this case was to introduce the idea of willfulness, typically viewed as above and beyond the 4 mental states in the MPC. Willfulness requires some understanding of what the law actually is. Can be viewed as an alternative mental state.

The Mental State

In order to be held criminally culpable in most cases, the "mental state" requirement mandates that the state must prove that the defendant had a guilty mental state worthy of punishment. But states are generally free to decide what mental state is required for each offense.

MPC and voluntary manslaughter

In order to reduce a murder down to a voluntary manslaughter charge, MPC 210.3(1)(b) focuses on the experience of the defendant by requiring a showing of an EXTREME EMOTIONAL DISTURBANCE for which there is a reasonable excuse as opposed to a legally sufficient provocation.... should be viewed from the viewpoint of a person in the actor's situation. Under the MPC we're supposed to view the defendant's mental state at the time of his actions. Cooling off period is still relevant but not the main focus

Beyond a reasonable doubt:

In order to secure a conviction, the US Constitution requires that the prosecution prove beyond a reasonable doubt, that a defendant committed each element of the statutorily proscribed offense. The prosecutor must prove both the act element (always) and the mental element (if required by the state) beyond a reasonable doubt. burden on prosecution

Withdrawal and Complicity

In order to withdraw and avoid complicity liability, an accomplice must withdraw before the crime occurs. An accomplice cannot withdraw after the crime happens. The majority rule states that to withdraw someone must either (1) wholly deprive their assistance of its effectiveness, or (2) give timely warning to law enforcement or otherwise make some effort to prevent commission of the offense.

Jury

In serious criminal cases, the defendant has a right to a trial by a jury of her peers. These juries differ in size depending on the jurisdiction. After both the prosecution and the defense present their case, the court will instruct the jury on the meaning of the statute, and on any judicially created law concerning the mental elements, justifications, and excuses. These are called jury instructions. The jury then must, in the vast majority of cases, UNANIMOUSLY agree, beyond a reasonable doubt, that the defendant completed each element of the statute in order to return a guilty verdict.

Implied threats

Instead of using physical force (holding gun to head), using coded language strongly suggesting they may act in a deadly way toward you or someone you love.Note 10 P. 603- man saying you have to do this (get cocaine) or else with an aggressive tone. Can include knowledge that this person has previously committed certain acts/ aggressiveness/ tone into objective analysis, don't have to use a purely subjective or purely objective (reasonable person test). Totality of circumstances can be added into objective standard.

Commonwealth v. Levesque

Issue: Whether omission of a legal duty caused the deaths of these firefighters Actual Causation- But-for the fire, the firefighters would not have died. They started the fire and did not report which allowed the fire to reach a more dangerous point. Additionally, the firefighters believed there to be people in the building and this was a contributing reason for why they entered the building. Legal causation-No other intervening actors and this was a predictable consequence of their actions. Maybe behavior would have changed if firefighters knew there was no one in there. Reckless failure to report had to make them realize the heightened risk in continuing to let the fire burn. There was sufficient evidence and expert testimony presented at trial that the longer the fire burned, the greater the risk of harm or death for the firefighters when they entered the burning warehouse. Should have known their omission caused a foreseeable risk.

Keeler v. Superior Court

Issue: Whether the fetus was a human being within the meaning of the statute which said "Murder is the unlawful killing of a human being with malice aforethought. The legislature intended the language of "human being" to mean a person who had been born alive, and did not intend the act of feticide as distinguished from abortion to be an offense under the laws of California. Defendant knew what he was doing and his purpose was to make the fetus no longer viable- no question of his knowledge that he was doing a bad act. BUT Knowledge of the conduct is different than knowledge of the punishment he is subject to- must be specified by statute. We still need to live by this distinction under due process . The relative culpability for offenders is a matter for the legislature and not the judicial branch. The power to define crimes and fix penalties is vested exclusively in the legislative branch... aka there are no common law crimes in California.

People v. Dlugash

Issue: whether or not there is sufficient evidence for murder or attempted murder. What if at the time D shoots him, hastened the death by a few seconds? Even if inevitably about to die, ANY TIME YOU HASTEN SOMEONE'S DEATH IT CONSTITUTES MURDER... Mixed evidence to prove whether or not decedent was still alive- obvious that shots to the chest would be the cause of death but unsure of whether he was still alive at the time D shot. Court finds sufficient evidence for attempted murder (could take up to 5-10 minutes for heart to fill with blood). Based on the evidence we have, the jury reached beyond a reasonable doubt that he tried to kill this person (mental state) and jury charged him with murder. Even if factually it was impossible for him to cause the death, factual impossibility is not a defense.

Hubbard v. Commonwealth legal cause

Jailer with heart problems....Shows traditional common law principle that absent some true physical blow or some other clear hostile action geared toward the defendant one cannot be held responsible for another's death If there was an intervening cause for which death would not have occurred, he is blameless. Way to make sure we do not hold people responsible for a death (similar to the year and a day rule). Natural and probable consequence when adjudicating whether an act constitutes legal causation

Kansas v. Hendricks

Kansas Sexually Violent Predator Act est. procedures for the civil confinement of persons who, due to a mental abnormality or a personality disorder, are likely to engage in predatory acts of sexual violence. Hendricks has ALREADY been imprisoned for engaging in predatory acts and has expressed his desire to commit others, even says the only way to stop him is to kill him. Cannot criminalize mere propensity or thoughts of committing a crime...can only punish the voluntary act of a crime- has to be some act in furtherance of conspiracy or attempt. BUT the mere fact that a person is detained does not inexorably lead to the conclusion that the government has imposed punishment. Civil confinement is constitutional and does not violate ex post facto/ double jeopardy when the purpose of the legislation is not to punish but to prevent sexually violent predators from committing these acts again.

People v. Kevorkian

Kevorkian assisted in the deaths of the deceased who were suffering great pain. Each had sought Kevorkian's help. The suicide was done by a machine and in each case he was not actually doing the action of ending the life, but providing the tools. Kevorkian was determined to not be the direct or natural cause because the intervening actions of the women were the direct and natural cause. Importance: usefulness in exam is to demonstrate the trickiness of applying the causation standard in situations involving suicide (intervening act especially when it is truly voluntary by the decedent)

Withdrawal Formella Hypo

Let's assume instead they decided to break into the school at night, helped cut phone cords so no one could call police if they were caught, and then decide after cutting the cords that they no longer wanted to be involved. This makes it more difficult for them to take a step back, hard to undo encouragement. Crime happens after they cut the phone line, what do they do in between phone line being cut and commission of crime- timely notification of criminal act (go to police) or some other action like that.

MINORITY on duress

Limits applicability of duress only to yourself and family members- what do we think of this? Criminal law can't see what is going on in someone's mind, maybe this is an attempt to get as close to proof as it can to an existing relationship

The Eighth Amendment

Limits the infliction of punishment that is cruel or unusual- which has been interpreted to bar disproportionate and arbitrary/ capricious punishment. Only bars cruel and unusual punishment. For the purposes of this class, this generally means that states may not inflict punishments that are grossly disproportionate to the crime committed.

State v. Martin

Lit a paper bag of trash on fire at an apartment after a party and everyone escaped except deceased who had fallen asleep after drinking. Court's test: the appropriate test under the probable consequence standard in New Jersey should be whether the death was so remote from the felony, so accidental in nature, or so dependent on the acts of some other person that it could not have been reasonably foreseen by the defendant. Focus should be on the relationship between the victim's death and the felony, not the individual roles of the various perpetrators. D should be exculpated only when a death occurs in a manner that is so unexpected or unusual that he or she could not justly be found culpable for the result.

State v. Lyerla

Lyerla and some teenagers in another car were traveling in the same direction. At one point Lyerla tried to pass the teenagers and they accelerated so that he could not overtake them. Lyerla decided to leave the interstate. When he exited, the pickup pulled to the side of the road near the entry ramp. Lyerla loaded his pistol, reentered the interstate and passed the pickup. When the girls attempted to pass him, he fired at the passenger side of their truck and killed Tammy Jensen. Conviction for second degree murder was affirmed while the conviction for attempt was reversed. Conviction was of second degree murder which means the mental state had to be reckless and not knowingly, but in an attempt you must have the mental state of knowingly. Attempt liability only applies to crimes in which the person is required to have a specific mental state You cannot be found guilty for an attempted reckless or negligent act. Not going to allow for intent to apply to anything but knowingly, purposeful and intentional actions. He only took the risk that someone might die.

MPC and Felony Murder

MPC 210.2(1)(b) has a felony murder rule, established by classifying deaths caused by reckless behavior as murder and stating that "recklessness and indifference are presumed if the actor is engaged or is an accomplice in the commission of (or attempt to commit) robbery, rape,... arson, burglary, kidnapping, or felonious escape.

Involuntary Manslaughter and the MPC

MPC 210.3(1)(a) requires a showing of recklessness as opposed to negligence. MPC requires that the consequence that comes about is in the range that the person could foresee coming about, and what must be intended is the conduct not the resulting harm. This is one area where the MPC differs. MPC does recklessness like Massachusetts (Welansky) with a separate offense for negligent homicide.

Death penalty and MPC (separate proceedings)

MPC 210.6 provides for a similar set of procedural requirements and model examples of aggravating factors 1) Death Sentence Excluded. When a defendant is found guilty of murder, the Court shall impose sentence for a felony of the first degree if it is satisfied that: (a) none of the aggravating circumstances enumerated in subsection (3) of this section was established by the evidence at the trial or will be established if further proceedings are initiated under subsection (2) of this section; or (b) substantial mitigating circumstances, established by the evidence at the trial, call for leniency; or (c) the defendant with the consent of the prosecuting attorney and the approval of the Court, pleaded guilty to murder as a felony of the first degree; or (d) the defendant was under 18 years of age at the time of the commission of the crime; or (e) the defendant's physical or mental condition cals for leniency; or (f) although the evidence suffices to sustain the verdict, it does not foreclose all doubt respecting the defendant's guilt. (2) Determination by Court or by Court and Jury. Unless the Court imposes sentence under subsection (1) of this section, it shall conduct a SEPARATE PROCEEDING to determine whether the defendant should be sentenced for a felony of the first degree or sentenced to death.

Reckless Murder/ Depraved Heart: MPC 210.2 (1)(b)

MPC: when the murder 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 robbery, rape or deviate sexual intercourse by force or threat of force, arson, burglary, kidnapping or felonious escape. The MPC differentiates between mere recklessness that causes a death (manslaughter) and reckless murder caused by "extreme indifference to human life"

The Act Requirement

Mandates that all punishment be for (1) past, (2) voluntary, (3) wrongful (4) conduct, (5) specified (6) in advance (7) by a statute.

Voluntary intoxication

May negate a specific, actual intent (knowing, purposely/intentionally) to commit a crime, but rarely negates general intent (not intentionally committing crime just acting negligently or recklessly)... general rule MPC does not make a distinction between specific and general intent

Policy considerations substantial step

McQuirter v. State: Relying upon a fairly innocent action and then statements that were allegedly made and heard by one other person- looking at this case historically (Alabama in the 50s) we can believe that there was some abuse in acquiring these later statements. Substantial step test gives states more of a lateral line to prosecute- could be enough for some jurors under the substantial step test. This case shows us the dangers of an expansive reading of the substantial step test

Conspiracy and the Act Requirement

Merely the agreement between two or more people to commit a crime. Because this is hard to show, we require that someone involved in the conspiracy take an overt act in furtherance of or corroborative of the criminal conspiracy to demonstrate this agreement. This overt act could be almost anything that suggests there was an actual agreement. This is a much lower standard than substantial step. This overt act can be a preliminary arrangement (like going to the house in Verive)

United States v. Wulff

Migratory Bird Treaty Act: felony conviction under the Act does not require proof of intent. Because the crime is not one known to the common law, AND because the felony penalty provision is SEVERE and would result in IRREPARABLE DAMAGE to one's reputation, the felony provision of the Act is unconstitutional.

People v. Bray

Mistake of law v. mistake of fact. Law:Person A travels from CO to TX with an ounce of marijuana in her possession. Person A doesn't realize that possession of marijuana possession is a crime in TX...not an excuse. Fact: Person B traveling thinks it's organic oregano in her purse and enter TX, the organic oregano is actually marijuana... excuse. We're really worried about the mentality when deciding culpability

Homicide Exception for necessity

Most jurisdictions do not permit an individual to commit a homicide out of necessity. The Queen v. Dudley & Stephens: Cannot use necessity as a way to take another's life in order to save your own

Homicide Exception for duress

Most jurisdictions make an exception to homicide, meaning a person who commits a homicide while under a threat of coercion is not covered by the duress defense.

Complicity and Mental State Requirement

Most of the time, though, the issue in complicity cases is whether the defendant had the requisite mental state requirement. We measure mens rea in complicity cases by asking: (1) whether the defendant satisfies the underlying mental state of the statute at issue, and (2) whether the defendant intended to aid or encourage the commission of the crime. When analyzing this second prong, we ask whether the defendant's mental state was such that he had a "true purpose" to aid or assist in the criminal act. Must show a true purpose or intent to facilitate the crime and satisfy the mental statement for the underlying crime. An aider and abettor will share the perp's specific intent when she knows the full extent of his criminal purpose and gives aid or encouragement with the intent or purpose of facilitating the perp's commission of the crime.

Mental Element

Most, but not all, statutes require the defendant have a certain mental state to warrant culpability (mens rea). Strict liability crimes require no showing of a culpable mental state.

necessity mountain hypo

Mountaineer, roped to a companion who has fallen over a precipice, who holds on as long as possible but eventually cuts the rope. Accelerated one death slightly but avoided the only alternative, the certain death of both. Although the view is not universally held that it is ethically preferable to take one innocent life than to have many lives lost, some people probably think a net saving of lives is ethically warranted if the choice among lives to be saved is not unfair. Situation where it doesn't neatly fit into any category. Unintentional acts could amount to threat to safety- picking between the lesser of 2 evils. MPC v. Majority rules for necessity and duress.

People v. Murray

Murray had determinations of contracting a marriage with his niece, an elopement with his niece for those purposes, and his request to one of the witnesses to go for a magistrate to perform the ceremony. Intent has been shown but the question is whether intent alone is enough to constitute an attempt to contract an incestuous marriage with his niece. The attempt contemplated by the statute must be manifested by acts which would end in the consummation of the particular offense, but for the intervention of circumstances independent of the will of the party. We want to have some sort of act committed but then again we have him committing some physical acts (calling magistrate or having someone else doing it for him). Some preparations may be corroborative of criminal attempt and also an otherwise lawful conduct- don't want to read too far into otherwise lawful conduct.

People v. Goetz

NY- normal objective test (what a reasonable person of similar physical stature). Incorporate previous experiences as relevant. Unique personal experiences relevant for our consideration in his claim for self defense- lived in a time of dangerous subways in NY, unable to escape?, previous muggings etc.

People v. Ryan

New York penal law makes it a felony to knowingly and unlawfully possess 625 milligrams of a hallucinogen. Ryan asked friend to receive shipment of hallucinogenic in which he did and then gave to Ryan. The package had 932.8 grams and contained 796 milligrams of a hallucinogen. Issue: Whether knowingly applies to the weight of the controlled substance? Court read in mental state requirement of the weight of the drug. Knowingly does apply to the weight of the substance and the trial evidence was insufficient to satisfy that mental culpability. In absence of clear mental state in statute, courts will read it in. Gives us an example of how courts are going to read in mental state when it hasn't been explicitly stated in each element.

Commonwealth v. Welansky

Night club owner who violated fire safety code leading to the death of 400. Could be evidence of negligence but would not warrant a finding of wanton or reckless conduct. Focus on the DEGREE OF THE RISK being taken and not whether the person beyond a reasonable doubt was aware of the risk.

Civil Confinement for Mental Health Reasons

Not considered punishment, so long as the confinement is NOT a penalty for violation of the law. Outside the scope of the Eighth Amendment. Not punitive but done for the protection of social welfare (civil not criminal). Not punishment because it's not retributive or deterrent... could be for an indefinite period of time.

Tennessee v. Garner

Officer shoots 8th grader in flight after a prowler inside call (stole $10 and a purse). Old rule: In flight, can use deadly force to stop escape. New rule: how much of a threat the person has just posed or is going to pose while in flight from officers.

Olsen v. State

Olsen entered bar, instructed 2 patrons to lie down on the floor and robbed the bar. After having the bartender also lay on the floor face down, he shot all 3 in the back of the head, firing a fourth shot seconds later when it appeared that one of the victims was not dead. went to a convenience store and chatted with the store clerk until asked if he knew why the police were active in the area. became agitated by this question and went home to pack his vehicle. Before he left his home, he confessed the murders to his mother and then fled in his vehicle. After he left, his mother called the police and within a few hours he was apprehended, advised of his rights, and spent much of the rest of the day confessing the murder to police. During a recorded interview conducted later that morning he claimed that he did not remember confessing to his mother, continued to admit that he shot three people in the back of the head, but explained that his motive for killing them was fright and intoxication. Evidence shows that Olsen was intoxicated at the time, that he suffered organic brain damage since birth resulting in an aneurysm that caused severe learning and behavioral problems and that on the night of the murders he had taken a relatively new drug to control related seizures. This case established that a separate hearing was necessary to determine if death is appropriate and the burden of proof placed on prosecution that the homicide/s were aggravating and outweighed the mitigations presented. We allow mitigating circumstances because the judgment of the death penalty is based on whether the person has any remaining value to society

Martin v. State (must voluntarily commit the crime)

One convicted of being drunk in a public place must have voluntarily placed himself there. If the accused is taken involuntarily and forcibly carried to a public place by an arresting officer, a charge of being drunk in a public place cannot stand.

Ex Parte Fraley

Parker had allegedly killed Fraley's son 9 or 10 months before, but was acquitted. Holding: A deliberate killing committed in revenge for an injury inflicted in the past, however near or remote, is "murder.

United States v. Reico

Police found and seized a truck in which they found a large stash of illegal drugs. With the help of the truck's drivers they set up a sting. The officers took the truck to its intended destination and the drivers paged a contact and the defendants showed up 3 hours later. As the defendants were driving away with the truck the officers stopped them Issue: Whether or not a conspiracy ends automatically when the object of the conspiracy becomes impossible to achieve A conspiracy does not automatically terminate simply because the Government, unbeknownst to the conspirators, has defeated, the conspiracy's object and just because the ultimate purpose of the conspiracy was frustrated by police it doesn't mean that the conspiracy has ended. We're punishing the blameworthiness of the offender- doesn't matter if it was factually impossible, their intent was to commit the crime

possession as an act

Possession of a large amount of a drug that is inconsistent with personal use may be demonstrative of intent. Possession of a large quantity of an illegal substance may also be a SUBSTANTIAL STEP towards demonstrating an intent to distribute. "Keeping a place" is not. Division of drugs into individual packages MPC: 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.

Policy Considerations and solicitation

Potential problems: (1) Extraordinary care might be required in deciding when to prosecute in determining the truth and in appellate review of the factual decision; (2) Misinterpretation (how do we know what someone did was truly solicitation, could have been a joke or misinterpreted by the other person), distinguishing between freely expressing opinion of an outcome they wish would occur v. actually willing this crime to action; (3) it is immaterial that the actor fails to communicate with the person he solicits to commit a crime if his conduct was designed to effect such communication- phone message initiated but never delivered; (4) Un-corroborated solicitation: different from attempt where we require further evidence... he said she said.

reckless/ depraved heart murder vs. manslaughter

Potential reckless murder: firing into a crowd, driving a car along a crowded sidewalk at high speed, opening a lion's cage at the zoo, dropping stone from an overpass onto a busy highway.- Clearly examples of culpable acts Normal reckless behavior comes at a lower probability of death than these acts. engaging in reckless conduct with a pretty high probability of death. Low enough that you are not acting intentionally and purposefully but still highly probable of death. Inherently problematic behaviors that come along with high risk of death and harm.

United States v. Watson

Premeditation and deliberation may be inferred from sufficiently probative facts and circumstances. The jury could reasonably find that when D sat at the table, after making the phone call, he was anticipating the officer's arrival and planning how to escape. He knew the officer had drawn his gun and a juror could infer that he realized he would have to disarm the officer in order to escape. He was also larger and was able to gain complete physical control over the officer without weapon. At no time was he impeded from escaping... Also suggests a few seconds was enough to establish premeditation or deliberation- no specific amount of time is necessary to demonstrate premeditation and deliberation- "some appreciable time must elapse." The true test is not duration of time as it is the extent of the reflection...

Abbot

Previous experiences in prison made him paranoid. responds with deadly force to waiter taking him outside to use the restroom. Issue of initial aggressor- do we accept minor provocation? does that justify use of deadly force? Initial aggression: Under the general rule, generally not able to utilize deadly force. If the real initial aggressor was Abbott, he cant say the waiter's response to his aggression is justification for deadly force. Imagine we're in Abbott's mind...Could Abbott's comments of settling this be the initial aggression? Waiter responds with physical aggression (although we know waiter is innocent and was just leading him to the restroom, could this be what Abbott was thinking?). Would a reasonable person consider waiter's movement toward him was initial aggression? Does this justify use of deadly force? Probably not. Eventually convicted of manslaughter.

Wilson v. People

Private person facilitating/ engaging in a sting operation. He actually helps the person break into the place before he notifies the police- he is actually creating the risk that we want to be prevented. When would he have to stop according to this lending of assistance? Even the planning and talking about the location/ crime could be sufficient of prosecution. Just knowing about it and walking away might not be lending assistance... Court: must share the intent of the person committing the crime. True purpose not to participate in crime but to assist law enforcement. Reemphasizes the need for true purpose to facilitate the crime.

Proctor v. State

Proctor was convicted under an Oklahoma law that made it a crime to own a building with the "intent" or "for the purpose of" selling such beverages. Unlawful intent in and of itself is merely a thought and cannot constitute a crime. The unlawful intent must be connected with some overt act that is designed to carry out the unlawful intent. Owning/ renting a building is not an unlawful act.

Charging Process

Prosecutors formally charge a defendant by either seeing an indictment in front of a grand jury, or based on an affidavit written by a prosecutor (called an information or complaint). The latter normally requires a preliminary hearing before a judge to test sufficiency of the evidence.

Deterrence

Punishment dissuades people from committing crimes

Expressive Argument

Punishment is a conventional device for the expression of attitudes of resentment and indignation and of judgments of disapproval and reprobation on the part of punishing authority. When we punish people, it is a communication of society's condemnation that actually is beneficial to society itself. Society is reinforcing social norms.. keeps society in line

Retribution

Punishment is justified on the grounds that wrongdoing merits punishment. Punishment imposed as repayment for offense committed. The idea that it is morally fitting for a person who commits a wrongdoing to be punished, or suffer, in proportion to his wrongdoing (an eye for an eye, "just desserts")

Utilitarianism

Punishment used to maximize utility of society. Punishments are applied when the bad of the action outweighs the good.

recklessness

Realizing the potential consequences of your actions, and none the less deciding to take that action

Policy Considerations: McCleskey v. Kemp

Reasonable procedures for the death penalty in a state- but despite these procedures, the application of the death penalty showed a disparity in race. McCleskey, a black man, was convicted and sentenced to death for the murder of a white police officer. Baldus Study: natural experiments in which we look at the existing data to predict what variables are predictors in who will be executed and who will not be. did not just find that race is always treated differently 3 groups: (1) homicides that may be death penalty eligible but due to other factors may not get the death penalty, (2) homicides that have so many aggravating and problematic circumstances that definitely will almost always get the death penalty, and (3) the middle ground- narrower band of cases with some aggravating circumstances (this is where you see the racial imbalance). "The power to be lenient is the power to discriminate." By giving the jury the power to make a more discretionary opinion, it allows them to maybe have racial bias creep into their decision-making still does not violate the 14th amendment

People v. Staples

Rented office space- knew exactly where bank at vault were under the rented space- lots of evidence of taking substantial steps- had all the tools to do it. Why did he choose to abandon/ give up his criminal purpose? wife returning/ change of heart OR under impression they were onto him (landowner took control)...not just a moral change of heart- we want to incentivize these changes. As a general rule, the fear of the immediacy of apprehension will not be a successful abandonment (increased likelihood of being caught is not an excuse we want to use). Once you've taken that substantial step to constitute an attempt, abandonment will not be an option. This is the test used by the majority of states!!!!!

States limit the scope of felon murder

Require that the death be close in time and place to the felonious act (logical or causal nexus). In such cases, courts also generally require that the death be reasonably foreseeable. Some states also: 1. require that the killing be in furtherance of the felonious purpose. 2. require a showing that the felony was merely the proximate cause of the death. 3. require that they must also be a major participant in the death. 4. explicitly exclude holding co-felons in felony murder. 5. consider whether the killing was of the witnesses to the crime

Commonwealth v. Rhoades (legal cause/ foreseeability)

Rhoades deliberately committed arson and set fire to the apartment complex. A firefighter who was attempting to assist those fighting the fire experienced difficulty in getting air and while on the roof of the building he collapsed and died. Medical experts concluded that a combination of cold weather, stress, and smoke inhalation precipitated the coronary thrombosis which caused his death Proximate cause, which, in the natural and continuous sequence, produces the death, and without which the death would not have occurred. AND efficient cause, the cause that necessarily sets in operation the factors which caused the death. Despite these intervening acts and conditions still constitutes legal causation

People v. Rizzo

Rizzo with three others planned to rob Charles Rao of a pay roll valued at about $1,200. Two of the defendants had firearms and they all started looking for Rao. Rizzo was supposed to be able to point Rao or the pay roll man out. By this point they were being watched and followed by police officers and they went into the building and were apprehended. No person with a pay roll was at any of the places they stopped. Issue: Do the facts establish sufficient evidence to support a conviction for attempted robbery? No. Here, the intended victim was never found. Court tested whether the defendant was proximately close to the completion of the criminal act. Court says he was not.

Commonwealth v. Root legal causation

Root accepted deceased's challenge to an automobile race. Accident occurred when the deceased attempted to pass in a no pass zone with a truck approaching from the opposite direction The deceased was aware of the dangerous condition created by the defendant's reckless conduct in driving his automobile choosing to swerve into the path of the oncoming truck. Although a car wreck was foreseeable, the defendant's action must be a more direct causation. The defendant's reckless conduct was not a sufficiently direct cause of the competing driver's death to make him criminally liable.

State v. Crawford

Should we incorporate different factors? (unique psychological background- North Dakota. past experiences- Guetz). A strong argument could be made that the defense of compulsion is not available to Crawford due to his placing himself in a position of dependence on and indebtedness to Bateman. Relationship with drug dealer leads to actions that do not constitute a situation of duress Threat must be CONTINUOUS and IMMINENT- no opportunities to escape. Here, the required element of an imminent threat is missing, the compulsion is not continuous and there were opportunities for escape

Moral Reasons for Punishment

Social cohesion and establishing social norms and expectations Retribution, proportionality, expressive argument

Categorial Analysis

Some punishments are considered categorically disproportionate in all cases. For example, the DEATH PENALTY is considered categorically disproportionate in ALL cases involving a JUVENILE OFFENDER. Under no circumstances could the infliction of a death sentence be appropriate for a juvenile offender. Death for non-murder offenses is categorically unacceptable AND life without parole for a juvenile who committed a non-murder offense is also unacceptable under the 8th amendment Test: (a) Does the punishment seem objectively out of line with other jurisdictions? AND (b) In the independent judgment of the Court, does the punishment seem appropriate?

State variation in involuntary manslaughter mens rea

Some require a version of negligence. Normally jurisdictions require gross negligence. RARELY ordinary negligence unless it ends in death. Others require recklessness: understanding risks they're undertaking and maybe knowing the consequences but taking the risk nonetheless. Recklessness is specifically about what is going through the defendant's mind not just what a reasonable person would do Commonly, if a state requires a higher mental state showing recklessness, that state will also criminalize negligent homicide as a separate and lesser offense- MPC 210.4

Actual Causation

Sometimes called "but for" causation test. Ask: But for the actions of the defendant, would the criminal result have occurred when it did? If the answer is no, then the defendant's actions were a "but for" cause of the outcome. A criminal defendant's actions must be NECESSARY, but need not be sufficient, to cause the outcome in order to warrant criminal liability. This is different than in torts. In tort law, individuals may be held at least partially liable for damages in cases where their actions were neither necessary nor sufficient to cause the undesirable outcome- provided that the individual's actions could be part of a sufficient set of actions could be part of a sufficient set of actions that led to the outcome in question (rat poison)

states and aggravating factors

States provide statutory guidelines for factors that may elevate a first degree murder to a capital crime. examples: (1) "murder was especially atrocious or cruel , being unnecessarily torturous to the victim.."; (2) "Knowingly created a great risk of death to two ore more persons; (3) "for the purpose of avoiding or preventing a lawful arrest or effecting an escape from custody."; (4) premeditated felony murder aggravating circumstance)

Legal Causation

States use a number of different terms (efficient cause, main cause, direct cause, and natural and probable consequence). The key questions to ask are: 1. Was the result reasonably foreseeable? 2. Were there any intervening actors/ events that broke the chain of causation? 3. Was the eventual result too remote to be fairly attributed to the defendant's actions? There is no simple formula to determine whether legal causation exists. Instead, courts will consider the relevant standard, the various questions listed above, and the unique facts of the case in reaching a fair conclusion.

Stephenson v. State

Stephenson abducted the deceased and repeatedly assaulted, bit and attempted to rape her. The deceased secretly obtained poison, took it, and became violently ill. Stephenson offered to take the deceased to the hospital which she refused and then he decided to return the deceased to her home and during the trip she became violently ill to which Stephenson did nothing to alleviate the pain and after arriving home the deceased died 10 days later. The deceased's actions were natural and probable consequence of Stephenson's unlawful and criminal treatment.

Tison v. Arizona

Still in the process of being in flight (facilitating escape)- not at home relaxing but changing vehicles and in the process of leaving- and indifferent to the fact that their actions could lead to the death of others.. Also death penalty case

People v. La Voie

Suggestions of profane and obscene language. Real threat to life? Unclear of whether they are carrying weapons, does that matter? He's not trying to seek out this force and actually is in the process of retreating. He is in his car and they were pursuing him regardless. Continuously ramming into the back of his car. Not the initial aggressor- did nothing to put himself in this position. Example of a case in which a court utilizes the generally used test for self defense. Also demonstrates where someone is facing a serious risk of bodily harm and therefore may use deadly force.

United States v. Barker (conviction under a criminal statute does not require knowledge)

The Act requires that the defendant be dealing in goods and knowingly use a counterfeit mark. There is no requirement that the defendant know that his conduct violates the Act. As a general rule, conviction under a criminal statute DOES NOT REQUIRE KNOWLEDGE by the defendant that his act is unlawful. In this case, Baker had the mental state required for conviction under the Act... Counterfeiting is something we WIDELY understand as unlawful, clearly understood wrong just changing how it is categorized under the criminalized law. Once a law is passed, knowledge is presumed (time passed is not a consideration)- still responsible for violating the law.

Chicago v. Morales

The Chicago City Council enacted the Gang Congregation Ordinance which prohibits "criminal street gang members" from "loitering" with one another or with other persons in any public place. The ordinance was violated if: (1) a police officer reasonably believed that at least one of the two or more persons present in a "public place" was a "criminal street gang member," (2) the persons were "loitering," defined as "remaining in any one place with no apparent purpose," (3) the officer ordered "all" of the person to disperse and remove themselves from the area, and (4) any person (whether a gang member or not) disobeyed the officer's order. Court held that statute was void for vagueness. An ordinary person could not change their behavior in response to the statute AND the statute in Morales left too much discretion to police on defining loitering.. could incriminate anyone speaking to a suspected gang member

Kennedy v. Louisiana categorical approach

The Eighth Amendment prohibits imposition of the death penalty in a criminal case that does not result in the death of a victim. 1. Appears to be outside the national consensus when it comes to child rape (people want severe punishment for this crime) BUT 2. Courts have always held that death is different- punishment by death may not have a big impact on deterrence, especially when the abuser is a family member and there is already a fear of disclosing the abuse that is occurring. AND retributively, it is not at all evident that the child rape victim's hurt is lessened when the law permits the death of the perpetrator. Punishment does not seem appropriate... grossly disproportional

Attempt

The MPC and the majority state rules are generally the same for attempt (although wording state-to-state varies). BUT unlike the MPC, states generally punish attempts less severely than completed offenses. An attempt can describe: 1. Where a person purposefully tries to commit a crime, but fails to achieve the intended result necessary for a conviction under the statute (example: person A shoots person B intending to kill, but person B survives). MPC 5.01(1)(b). (a.) These are relatively easy cases, legally speaking. In these cases, the central question is whether the defendant intended to achieve the result required under the statute (example: whether person A above intended to kill person B). 2. Where a person tries to commit a crime but the attendant circumstances make the intended outcome impossible. (example: person A shoots a mannequin thinking it is person B). MPC 5.01(a). 3. Where a person takes a substantial step towards committing a crime, but is arrested or apprehended before completing the final act (example: person A intends to rob a bank, but police stop him at the door of the bank with a gun, mask, and note demanding cash). (a.) This category contains the most testable material. We want to make sure that we don't punish mere preparation, but instead only punish substantial steps towards completing the act. (b.) We ask whether the individual's actions were strongly corroborative of the individual's criminal purpose (same test used in MPC 5.01(1)(c)). This section of the MPC provides useful examples for the exam

MPC and Homicide

The MPC only distinguishes between murder, manslaughter, and negligent homicide. The MPC does not differentiate between first and second-degree murders, but instead groups them together into one murder category because first degree murder no longer necessitates the death penalty.

Incapacitation

The ability of the criminal to do harm is removed when he is removed from society. Punishment/ jail keeps criminals away from criminal opportunities by taking away the power of doing injury; If they're physically incapacitated, they lack the ability to commit crimes in society (mutilations and perpetual imprisonment)

Excuse

The defendant can also argue that, even though she violated the statue, her circumstances or personal characteristics render her blameless. Courts may entertain and accept excuses even if the statue does not address them. Generally, it is the burden of the DEFENDANT to PROVE such a defense.

Justification

The defendant can argue that, even though she violated the statue, her actions were proper under the circumstances. The Court may entertain these so-called justifications even if the criminal statue does not address it. Generally, the PROSECUTION must DISPROVEjustifications beyond a reasonable doubt- although the US Constitution does not require this.

Defendant Response

The defendant can ask the court to throw out the charge if the prosecutor failed to state each of the elements of the charge. The defendant may "demur" or "move to quash" the formal charge. If successful, though, the state can still re-prosecute the defendant. Double jeopardy only bars multiple adjudication of the facts of a case. If the court accepts the demurer, the prosecution may appeal to a higher court to reinstate the charge. If the court rejects the demurer, then the trial proceeds.

People v. Berry

The long course of provocatory conduct, which had resulted in INTERMITTENT outbreaks of rage under specific provocation in the past, reached its final culmination when deceased wife began screaming. both D and psych. testified that D killed in a state of uncontrollable rage and passion. "D's testimony chronicles 2 week period of provocatory conduct by his wife that could arouse a passion of jealousy, pain and sexual rage in an ordinary man of average disposition such as to cause him to act rashly." Helped by expert testimony!

Conspiracy and the Mental State Requirement

The members of the group must KNOWINGLY or INTENTIONALLY agree to commit a crime. Additionally, they must actually intend to commit the crime and must have more than mere knowledge that the crime is happening- they must have a true intent to aid or assist Generally, mere knowledge that your conduct might be helpful to commit a crime is not necessarily enough to demonstrate conspiracy. what we need is a true purpose or intent to assist in a crime (true meeting of the minds).

(4) Conduct

The state can find a person criminally culpable for both a voluntary act and a failure to carry out an established duty.

(6) In Advance

The state cannot engage in ex post facto punishment. Article 1, sections 9 and 10 of the US constitution explicitly bar the passage of any ex post facto law- barring criminalization of an act after already committed.

(3) Wrongful

The state cannot find a person criminally culpable for behavior that is constitutionally protected. examples:The 5th amendment to the US constitution states that no person shall be subject for the same offense to be twice put in jeopardy of life or limb- can't be prosecuted and punished twice for the same crime. Also issue of due process- (procedural interpretation and substantive due process). Substantive due process places limits on criminalizing mental states/ propensities.

punishment

The state's infliction of some type of penalty on an individual in response to a violation of the law Legal punishment includes incarceration, parole, probation, fines, community service, and other penalties designed to respond to criminal behavior. Ought to serve one of the theoretical justifications for punishment discussed in class.

Act Requirement

The statutory definition of an offense must include some proscribed voluntary conduct (actus reus), whether that is an action or an omission to perform a duty.

Double Jeopardy Under Blockburger

The test for determining (constitutionally) whether a prosecutor can bring multiple inchoate charges for the same core acts comes from Blockburger. ​​​(1) Whether there are two offenses rather than ​​​merely one, and ​​​(2) Whether each provision requires proof of an ​​​additional fact which the other does not. It does not necessarily violate the Fifth Amendment to convict a defendant of both conspiracy and attempt for the same criminal incident, provided that each statute requires proof of an additional fact which the other does not. If one statute was totally subsumed by the other, the smaller crime would become a lesser included offense which is not permissible by double jeopardy. As long as each crime has some SEPARATE element required, can charge these 2 together. Federal constitution est. a very permissive standard for double jeopardy.

Plea Bargaining

The vast majority of criminal defendants plead out. Often, the defendant agrees to plead guilty to a lesser charge in return for the prosecutor dropping the higher charge or recommending a lower sentence to the judge

Rat Poison Hypo

The victim of the homicide is Vern, a 1L who is widely hated by his fellow classmates and is particularly hated by his 5 roommates (A,B,C,D, and E). Each if these roommates notices a box of rat poison in the basement laundry room and each decides, INDEPENDENTLY, to kill Vern by poisoning him. They each take one pellet and over the course of a single day successfully introduce their pellets into Vern's food. Unknown to the students, one pellet is not a fatal dose; a fatal dose is exactly three pellets. Because Vern has consumed 5 pellets, he dies the next day BUT none of his roommates can be viewed as a BUT-FOR cause for his death because each can say that Vern would have died even without his contribution.

Cooling off period

The way we judge what would a reasonable person do. Under the MPC we're supposed to view the defendant's mental state at the time of his actions. Cooling off period is still relevant but not the main focus.

United States v. Diaz

They called Diaz and he arrived and they waited for Peirallo who brought the cocaine. Peirallo told Perez that he had a gun, which he intended to use if anyone tried to steal the drugs. Perez took the drugs to Collins who gave the arrest signal. Diaz was then convicted of using a weapon. Conspiracy to distribute cocaine seems to be the most obvious charge... more complicated when charged with a separate firearm charge. Did not have firearm on his person. A conspirator may be found guilty of a substantive crime unless that crime could not be reasonably foreseen as a necessary or natural consequence of the unlawful agreement. Court: the illegal drug industry is a dangerous, violent business. When an individual conspires to take part in a street transaction involving a kilogram of cocaine with $39,000, it certainly is quite reasonable to assume that a weapon of some kind would be carried.

Durham Test

This is a single prong test that asks whether or not the defendant's action was the product of a mental disease or defect. One state, New Hampshire, still utilizes the so-called Durham Test.

Objective Reasonableness in duress

This test asks whether an objectively reasonable person would have viewed the threat as coercive enough to commit the unlawful act

Mayes v. The People

Threw beer glass in wife's direction, he says he aimed it toward the door but wife was in the way, witnesses say he threw it to intentionally cause harm. knocked oil lamp, igniting wife on fire- dies later in the week due to burns. At minimum: some reckless mental state. Culpability, assuming that he did not directly intend to hit the lamp and set her on fire? Doesn't try to help put out the fire

Complicity and the Act Requirement

To be held responsible for a criminal offense via the complicity doctrine, a defendant must take some action that solicits, aids, or encourages the commission of a crime. A person can also be held complicit in a crime if he has a legal duty to prevent the commission of an offense, and he omits to fulfill this duty. This active assistance, aid solicitation, or omission of a legal duty satisfies the act requirement. Complicity involves completed crimes- in solicitation and attempt the crime was not completed. Complicity involves conduct that goes beyond just saying "that sounds like a good idea"...Their role is larger- outcomes/ consequences matter! Involves actual harm being done to somebody- thus may warrant more retribution

United States v. Hilton Hotels Corp

To finance the association, which was used to attract conventions to their city, members were asked to make contributions in predetermined amounts. To aid collections, hotel members agreed to give preferential treatment to suppliers who paid their assessments and to curtail purchases from those who did not. Manager of Portland hotel and his assistant testified that it was hotel policy to purchase supplies solely on the basis of price, quality, and service. They also testified that on two occasions they told the hotel's purchasing agent he was to take no part in the boycott. Purchasing agent confirmed receipt of those instructions but despite them he had threatened a supplier with loss of hotel's business unless the supplier paid the association assessment and he testified that he violated his instructions because of anger and personal pique toward the individual representing the supplier. Corporation is liable for acts of its agents within the scope of their authority even when done against company orders. Court held that Hilton did not gain exculpation by issuing general instructions and the court inferred that violations of this act are a consequence of pressure to maximize profits and generalized direction to obey the act when the result is to forego profits is unlikely to be taken seriously. Conviction of the individual is unlikely to be much of a deterrent while punishment of the corporation is likely to be more appropriate and effective.

premeditation

To prove premeditation, the government must show that a defendant gave "thought before acting to the idea of taking a human life and reached a definite decision to kill.

mistakes of law

Traditionally, mistakes of law are no excuse for criminal behavior, while mistakes of fact can mitigate culpability by showing the lack of a guilty mind. Example:Person A travels from CO to TX with an ounce of marijuana in her possession. Person A doesn't realize that possession of marijuana possession is a crime in TX...not an excuse. There are some important exceptions to this general rule: Ignorance or mistake as to a matter of fact or 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; OR (b) the law provides that the state of mind established by such ignorance or mistake constitutes a defense.

Second Degree Murder

Traditionally, the term groups together two different types of murder: impulse murders and depraved heart/ reckless murder. These two types of killings all involve a defendant who (1) demonstrates malice in their behavior that (2) causes the death of another person.

State v. Verive old rule needing 2 separate acts

Underlying offense: dissuading a witness from testifying (requires a result)- here, we have enough to charge with conspiracy to commit the crime and the attempt to complete the crime. AZ law states that one single act cannot be punished twice with 2 different criminal charges (can only choose one charge per act- 2 separate acts are required). 2 separate acts are required: 1. person went to the residence 2. used their fists- technically 2 separate acts. Attempt: must have a substantial step, maybe going to the house could be a substantial step but actually beating him is definitely a substantial step Conspiracy: anything corroborative of that criminal intent. SO under AZ law, we are ok.

Instrumental Reasons for Punishment

Use punishment as a tool to prevent/ stop people from acting in unwanted ways. Important to note that correlation does not necessarily mean causation. Deterrence, incapacitation, rehabilitation

Rehabilitation

Used as a means to contribute to the reformation of the offender not only through fear of being punished again but by a change in character and habits. The idea that the justice system is obligated to help these unfortunate people who commit crimes and not simply punish them for their misdeeds; Proper treatment will prevent future crimes ("curing the sickness")

State v. Cameron:

Victim was playing cards when Cameron approached and disrupted the game with her conduct. Participants moved card game to which Cameron followed and then attacked the victim with a broken bottle. Under New Jersey law, voluntary intoxication is a defense to crimes requiring a purposeful or knowing mental state but is not a defense to crimes that merely require a reckless or negligent state. Even if the defense is permitted, however, it may be presented to the jury ONLY when the defendant establishes he was SO INTOXICATED that the mens rea required for the offense was totally lacking. The circumstances disclosed by the evidence in this case did not require that the issue of defendant's intoxication be submitted to the jury. Allowing an intoxication defense to apply only to purpose or knowledge crimes will yield substantially the same result as allowing the defense to apply only to specific intent crimes.

Pinkerton Liability

We can often hold any conspirator liable for the foreseeable substantive crimes committed by co-conspirators in furtherance of the criminal conspiracy When multiple people are involved in a criminal conspiracy, any of the conspirators can be held responsible for the substantive offenses of other conspirators done in furtherance of the criminal conspiracy provided that the substantial offense were reasonably foreseeable. Best justification comes as deterrence or justification.

Recklessness/ negligence and attempt

We generally cannot hold someone responsible for an attempt if the underlying offense has a mental state of recklessness or negligence due to lack of specific intent Attempt liability only applies to crimes in which the person is required to have a specific mental state. Instead, a prosecutor will typically rely on a lesser offense like reckless endangerment to punish these individuals. What about gross recklessness (any reckless behavior demonstrating an indifference to the value of life- captures both depraved heart and impulse murder) can you say there is purposeful action? probably

Objective Reasonableness

We judge the reasonableness of a criminal action taken out of necessity by an objective standard. Ask whether a REASONABLE PERSON would have seen the act as objectively necessary to prevent the greater evil.

reckless/ depraved heart murder

When a defendant causes another person's death through reckless behavior, as opposed to a purposeful or knowing act. MPC 210.2(1)(b) calls these depraved heart murders. MANY STATES classify as second degree murder BUT some states do not, opting instead to catalog them as separate, potentially less culpable category of homicide. Potential reckless murder: firing into a crowd, driving a car along a crowded sidewalk at high speed, opening a lion's cage at the zoo, dropping stones from an overpass onto a busy highway.- Clearly examples of culpable acts

Involuntary Manslaughter (Common Law)

When someone's actions (1) INVOLUNTARILY (2) causes the death of another person (3) because of GROSS or criminal negligence (4) WITHOUT malice. could show a mere intent to commit some other crime

MPC 5.01(4) Renunciation of Criminal Purpose

When the actor's conduct would otherwise constitute an attempt under Subsection (1)(b) or (1)(c) of this Section, it is an affirmative defense that he abandoned his effort to commit the crime or otherwise prevented its commission, under circumstances manifesting a complete and voluntary renunciation of his criminal purpose. The establishment of such defense does not, however, affect the liability of an accomplice who did not join in such abandonment or prevention. Renunciation of criminal purpose 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 time or to transfer the criminal effort to another but similar objective or victim.

MPC 2.09 provides for an affirmative defense of duress

When the defendant "was coerced to do so by the use of, or the threat to use, unlawful force against his person or the person of another, which a person of reasonable firmness in his situation would have been unable to resist." It also prevents claims of duress caused in part by the claimant's reckless or negligent conduct that facilitates the coercive situation. Thus, the MPC rule generally mirrors the rule used in most states. There is at least one major difference: the MPC does NOT exclude homicide

impulse murder

When the defendant (1) knowingly, intentionally, or purposefully (2) causes the death of another (3) with malice (either expressed or implied). No deliberation or premeditation

Imperfect defense and manslaughter

Where a person kills in the unreasonable and mistaken belief that he must do so in self-defense, or kills in the face of an actual threat of death or serious injury where he himself was the INITIATOR or PROVOKER of the threat from the victim, the charge of intentional murder might be compromised to one of voluntary manslaughter.

Non-Categorical Analysis Usually discussed in terms of years

Whether the relative severity of the crime matches the punishment. The infliction of a life without parole sentence for an adult offender is not, per se, categorically disproportionate. Instead, the Court does a more nuanced test about the relative proportionality of the offense committed by a SPECIFIC individual and the punishment. Test: (1) How does the gravity of the offense compare to the severity of the punishment? (a) If the punishment is more severe than the relative seriousness of the crime, then the Court may find an inference of disproportionality and moves onto step 2. If the answer to this question suggests that the punishment is reasonably proportionate, then the Court will simply assume that the punishment is constitutional. (2) The court compares the sentence of this defendant with the sentences received by other offenders in the same jurisdiction and with the sentences imposed for the same crime in other jurisdictions (a) Only if the sentence in this case is out of line with society or other defendants within the jurisdiction will the Court find there to be a non-categorical disproportionality problem.

People v. Wu (reasonable person)

Wu believed that Sidney, who lived with his father in the U.S., was looked down upon by everyone but his grandmother because he had been born out of wedlock. When she learned that his grandmother was dying she felt trapped and in an intense emotional upheaval strangled Sidney and then attempted to kill herself so that she could take care of him in the afterlife. Wu was born and raised in China and she met a man who she believed would marry her. She conceived his child but after the child was born the man made no indication of getting married. Wu then returned to China, but gave money to the man to help him with his restaurant. Wu returned to Las Vegas when the man said that they would get married. Wu was convinced that he was only with her for her money. When she found out that the man had a girlfriend from Sidney and the house they lived in belonged to her, she went into a rage and killed Sidney and then tried to kill herself. Culture can influence mental state and culpability. The court held that a reasonable jury could have found that Wu's act was committed while in a state of unconsciousness and that a reasonable jury could have further concluded that defendant could have deduced that she strangled Sidney even if she was not conscious of this. The defendant's culture was also relevant on the issue of malice that over a 10 year period the jury could have concluded that Wu was suffering from preexisting stress at the time that Sidney told her things which confirmed her fear about him and because he was not legitimate and was being treated poorly that things would only get worse when his grandmother died.

MPC and knowingly

a person acts knowingly 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; and (ii) if the element involves a result of his conduct, HE IS AWARE that it is practically certain that his conduct will cause such a result

MPC and purposefully (aka intentionally)

a person acts purposely 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; and (ii) if the element involves the attendant circumstances, HE IS AWARE of the existence of such circumstances or he believes or hopes they exist.

United States v. Maldonado (constructive possession)

constructive possession: where the defendant lacks immediate physical possession of the drugs but has both the power and the intent to exercise control over the drugs. (1). Effective power over the thing possessed: Defendant had effective access to Palestino's room and was free to return there to take the drugs. Although Santos had not been paid for regarding the drugs and might therefore be regarded as having an equal control or veto power over them, Defendant could nevertheless be convicted under the doctrine of joint possession. (2). Intent to control the thing possessed: Defendant's intent to participate in the storage and transfer of the cocaine is established by his assurances to Santos that Palestino was coming to the room. The telephone calls between D and Palestino, and D's proposal that the drugs be temporarily stored in another room. Jury was entitled to find that an intent to transfer and store drugs amounted to an intent to control them. D has impeded access to the room- can come and go as he wants- and only he has impeded access to this room.

(7) By a Statute

criminal laws must generally be in the form of a statute that clearly identifies each element of the offense

(5) Specified

criminal statutes must clearly define the prohibited behavior Vagueness Test: Vagueness may invalidate a criminal law for either of 2 independent reasons: (1) It may fail to provide the kind of notice (fair notice) that will enable ordinary people to understand what conduct it prohibits. An ordinary person cannot change their behavior in response to the statute. (2) It may authorize and even encourage arbitrary and discriminatory enforcement. Statute in Morales left too much discretion to police on defining loitering.. could incriminate anyone speaking to a suspected gang member.

Gross negligence

higher standard than civil negligence

transferred intent doctrine

if intent is to cause one death but you in turn cause another's death, we transfer that intent onto the new victim. Does not reduce culpability or intent.

MPC 2.02 and Mental States

lays out the four basic mental states from most culpable (purposefully) down to the least culpable (negligently). The default presumption is that common law crimes ought to require at least a recklessness mental state. (1) Minimum Requirements of Culpability: Except as provided in 2.05, a person is not guilty of an offense unless he acted purposely, knowingly, recklessly, or negligently, as the law may require, with respect to each material element of the offense.

Cumulative provocation

maybe lots of small incidents over a period of time build and the final act, no matter how small it is, could be sufficient for adequate provocation- the straw that broke the camel's back. Minority States

(2) Voluntary

the state can only find a person criminally culpable for voluntary conduct.

(1) Past

the state can only prosecute individuals for prior conduct.

Limitations of civil confinement

the state must show via clear and convincing evidence that: (1) a person suffers from a mental illness that requires treatment (2) as a result of this mental illness, this person poses a threat to society (3) Additionally, the confinement cannot be punitive in nature. Otherwise, the confinement would violate the constitution's bar on double jeopardy or the ex post facto clause.

provocation

whether a reasonable person would have been provoked if he was in the defendant's shoes... Causes defendant to act in "the heat of passion." (objective and subjective) Traditionally, only a small subset of physical acts was deemed sufficiently provocative but today, words alone can generally serve as adequate provocation.