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Crim Law Outline – Fall 2007; Blakey

COMMON LAW FELONIES (Mrs. RM Lamb)

-MURDER-Unlawful killing with malice aforethought

who: person

con: kill intent (malice aforethought)

sc: person kwldg

res: kill intent

-RAPE-Sexual intercourse without consent (statutory-under age)-date, marital, statutory

who: person

con: intercourse

sc: woman

not wife

res:

-SODOMY-Oral copulation between humans “crime against nature” (homosexual)

-ROBBERY-Taking another’s property by violence through intimidation “aggravated larceny”

-MAYHEM-Malicious injury a person’s body to destroy capability for self-defense

-LARCENY-Unlawful taking of someone’s property-grand, by-trick, petit, mixed

who: person S of M

con: taking and carrying away intent to steal

s.c: property strict

of another knowledge

res: taking and carrying away

-ARSON-Malicious burning of someone’s house

-MANSLAUGHTER-Unlawful killing without malice aforethought

who: person S of M

con: kill reckless

sc: person reckless

res: kill reckless

-BURGLARY-Breaking and entering dwelling at night with intent to commit felony

who: person S of M

con: breaking and entering intent to commit a felony

s.c.: dwelling strict

of another knowledge

night strict

res: breaking and entering

STATE OF MIND REQUIREMENTS

MODEL PENAL CODE

SURROUNDING CIRCUMSTANCES

- liability -------recklessness

- jurisdiction, grading, law, venue -------strict

CONDUCT -------recklessness

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FEDERAL PRINCIPLES

OLD RULE

- scienter for common law type, not for regulatory offenses. ( Morrissette v. U.S.)

MODERN RULE

Conduct requires knowing (U.S. v. Bailey)

Surrounding Circumstances

- Liability requires knowing (Staples v. U.S.)

- Jurisdiction requires strict (U.S. v. Feola)

- Grading requires strict (U.S. v. Xcitement Video)

- Law requires strict/knowledge (Williams v. North Carolina… strict for

bigamy)

(Ratzlaf v. U.S…. knowledge for money illegally

structured)

Result requires knowing (U.S. v. Gypsum)

Affirmative defenses are implied (e.g. US v. Bailey… necessity-duress)

I. Rationale of Criminal Justice

I. PRECEPT

1. rule- layperson’s conception- (i.e. 12 people on a jury, Black letter rule)

2. standard- (i.e. reasonable force)

3. principle- (i.e. Presumption of innocence)

4. doctrine- (i.e. Consent)

5. conception- classification (i.e. Civil or criminal law)

II. TECHNIQUE

III. IDEAL how have the ideals changed over time?

1. TRADITIONAL MORAL PERSON--RETRIBUTION

A. JEWISH- problematic effort to answer “Is God just?”

- The answer in Job: We cannot know

a. No answer

b. Can’t put it in our heads

- Romans: 1.) We deserve suffering,

2.) Suffering reminds us that we are not God

3.) We will be rewarded in Heaven

- We must find out God’s law and follow it. If we live up to God’s rules,

we will be treated justly. This leads to….

- Retribution: punish evil

- Individual responsibility: a move away from the previous vicarious

clan-type responsibility of the 10 Commandments

B. GREEK- shift from MYTH to REASON

C. ROMANS- used force to keep peace, but were fair

- shift from legislative justice, which protects the dignity of the Senate,

to judicial justice, which protects the dignity of the state

LAWS AND MORALS ARE INTERLOCKING

Do something immoral and you break the law

-Queen v. Dudley and Stevens-no necessity for killing

-United States v. Holmes -

2. CLASSICAL RATIONAL PERSON—DETERRENCE

A. REFORMATION

- still focused on moral person.

- Law based on scripture.

- shift from religious unity to schism

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- moral order dispute-not whether it is, but what it is (broke up by

Luther).

B. ENLIGHTENMENT

- focus shifts to rational person.

- Law based on reason.

- shift from retribution to deterrence (requires swift, sure, and severe

punishment-Bentham)

- “1st

law ought to be that of liberty”

- Legislative supremacy-can do anything not prohibited

- Paul Feurbach-no punishment without crime

- Nulla poena sine lege

LAWS AND MORALS ARE SEPERATED

-Kansas v. Hendricks-Incapacity not always punitive and didn’t punish him

for something he did (retribution)

-Special deterrence-steps taken to stop particular offenders

-General deterrence-impact of the criminal law on society

3. MODERN DETERMINED--- INCAPACITATION & REHABILITATION

(person is no longer moral or rational)

A. FREUD

- you are no longer rational person, but determined by conditions

- psychology is the answer to problems… reconditioning

B. MARX

- Man is product of forces of production, not rational choice

4. POST MODERN

- moral and rational persons are subjective constructs (values), not

objective (virtues)

- no person… unprincipled chaos

-4 Ways to reason about criminal laws

-1)-Authority-common law

-2)-Institutional-legislature decides

-3)-Rightness-Act in itself

(Romans 3:8 Never justified if it is a wrong act no matter the consequences

-4)-Consequences-Model Penal Code-Justifies act if the harm sought to be avoided is greater than the harm

prevented by law

KANSAS V. HENDRICKS (1997) [yourself] DUE PROCESS- procedural- in 5

th and 14

th substantive- we made it up

CIVIL V. CRIMINAL MAD (civil matter) BAD (criminal matter) NEW CATEGORY…

“SEXUAL PREDATOR”

…Really there is no inherent difference

EX POST FACTO- not for civil matters

KANSAS V. CRANE (2002) [yourself]

Act does not require the state to prove offender’s total or complete lack of control over his dangerous

behavior, but federal constitution does not allow civil commitment under the Act without any lack of

control determination - find that it was substantially probable that the person would commit sex

offenses in the future, if he or she was not confined

PEOPLE V. MASTERSON (Ill. 2003) [yourself]

(1) the term "mental disorder," as used in the SDPA, meant a congenital or acquired condition affecting the

emotional or volitional capacity that predisposed a person to commit sex offenses and resulted in serious

difficulty controlling sexual behavior; (2) the U.S. Supreme Court's Crane decision required that, before a

court find that a person was sexually dangerous and could be committed under the SPDA, the court had to

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find that it was substantially probable that the person would commit sex offenses in the future, if he

or she was not confined; and (3) because neither the U.S. Supreme Court nor the Supreme Court of

Illinois had adopted the standard which the U.S. Supreme Court announced in Crane at the time of the

accused's commitment hearing, remand was required for a new hearing to determine if the accused should

be committed.

3 MAIN ELEMENTS OF CRIMINAL LIABILITY:

1. CRIMINAL ACT

2. CRIMINAL STATE OF MIND

3. ABSENCE OF A DEFENSE OF

JUSTIFICATION OR EXCUSE

PUNISHMENT BREAKS DOWN INTO TWO COMPETING VIEWS

Example of problem….

People v. Delury -man assisted wife’s suicide (she was dying of MS)

- jury convicted him of manslaughter

- sentenced to 4 months

- WHAT GOAL IS SERVED BY THIS PUNISHMENT?

a. Retributive- the man’s wrong deserved to be punished by

virtue of the fact that it was wrong

b. Utilitarian- will a 4 month sentence serve any utility?

1.) RETRIBUTIVE deontological theory JUSTIFICATION: moral culpability

under a theory of retribution, the vast majority of the accused are fit for punishment

A. Criminal law as a moral statement (involves community condemnation)

B. Retribution and the capacity for responsible conduct

i. who qualifies as a blameworthy agent?

---all but the very young, crazy, and retarded

ii. what situations negate free choice?

---overwhelming external pressures

criticism: retribution theory disregards the influence of

offender’s impoverished circumstances and henceforth

society’s own responsibility.

response: 1. There is no conclusive proof of circumstantial

causality

2. Responsibility is an ethical, not a factual matter.

3. Such criticism erodes the state’s respect for individual

autonomy and leaves room for repressive measures (i.e.

detention of the “potentially dangerous” who come from

circumstances which often produce criminals.)

C. Retribution & Grading: Proportionality

Implemented in TWO ways:

i. The system grades offenses

ii. Requires assessment of whether a sentence accurately reflects

blameworthiness under specific circumstances

D. Retribution as a Limiting Principle

Even consequentialists agree that retributive premises can lead to desirable

consequences.

2.) UTILITARIAN theory JUSTIFICATION: to achieve social

consequences = to minimize crime.

A. GENERAL DETERRENCE (not special deterrence, which is tailored to

the individual)

a. Rests on the notion of human as rational calculator of pain and

pleasure… if costs of crime are higher than possible gains, then

person won’t commit them.

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b. Not backward-looking or vengeful, but strictly utilitarian.

B. INDIVIDUAL PREVENTION

a. Special deterrence: to keep individual from recidivism. Distinct

from rehabilitation. It seems that punishment is not effective.

b. Incapacitation: Should be used only when it is necessary to

restrain offender from future offense.

i. Difficulty: how do you distinguish potentially recidivist

offenders? Those, like Dulury (above case) who most

likely won’t commit again should not be punished.

C. REHABILITATION… Crime is caused by PATHOLOGY. We’ve gone

from optimism to pessimism about this idea.

II. The Principle of Legality

Principle of Legality – Put simply, the principle of legality forbids the retroactive crime definition

(ex post fact). Condemnation of judicial crime creation of the sort involved in Manley and Shaw. The

essential idea is that no one should be punished for a crime that has not been so defined in advance by the

appropriate authority. Therefore, the principle of legality may be taken to signify the desirability in

principle of advance legislative specification of criminal conduct.

The principle of legality does not speak to the question of what conduct should be declared criminal.

Rather, it states a normative expectation regarding how that decision should be made. In other words, the

principle concerns the process of crime definition rather than the content of specific offenses.

PRINCIPLE OF LEGALITY

CLASSIC FORMULATION -Paul Feurbach- nulla poena sin lege

-J. Bentham- First law ought to be that of liberty

PRINCIPLE IS… 1. Limit of power (Liberty)

2. Allocation of Power --- (from Executive & Court –to- Legislature)

3. Theory about Common Law --- Deter, not Retribution… movement (from Moral

order held together by community –to- Individual.) and (from vindictive –to-

intimidation)

Implication of this move is toward vagueness

ROOTS: 1. Roman- law is to be written. (movement from Will of the prince –to- reason based

law)

2. Germanic- custom rooted in reason, rule of law

3. English- 1215 Magna Carta= limitation on the King. Civil Liberties arise

4. French- French Revolution… about arbitrary power. There was no criminal code.

Prosecutor could make up law at whim. Revolution established rule of law

CRITICISM: 1. Assumption that people are rational ( Marx and Freud- we are determined by inner

desires and environment)

2. Law can be set apart from morals

3. need to have shared values

PRINCIPLE OF LEGALITY: LEGAL CONSEQUENCES

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1.) COMMON LAW CRIMES- Early ones were established judicially.

- in 1812, SC decided there are no federal common law crimes (United

States v. Holmes)

- (1600 – 1860) move of power from court to legislature

2.) STRICT CONSTRUCTION -When you have an ambiguity that can be read two ways, must read in

the light that is most favorable to the defendant

RATIONALE

1. fair notice for the individual

2. limited discretion of the courts

3. Article I not III makes the law

LEGAL SEMANTICS AND PRAGMATICS

STATUTORY MEANING

1. intentional-

a. state of mind- applies only to what I intend

b. logical universal- applies to all instances of the word (at least)

2. literal- words + grammar = sentence (default, plain meaning)

3. CONVENTIONAL- sentence + context = utterance. What a reasonable

person would construe. This is the preferred interpretation.

4. personal- unacceptable in interpreting lay, allows for too much to be read

into it

PRAGMATICS

1. SAY: literal

2. MEAN: conventional

3. DO: accomplished subtext- look to consequences of interpretation

1. Locutionary = Said

2. Illocutionary = Meant

“can I go to the bathroom”

“can you pass the salt”

3. Perlocutionary = Done

LANGUAGE PROBLEMS

1. ambiguity

a. verbal- 2 meanings

b. syntactical- what do the words modify

c. contextual- uncertainty as to how a statement affects another

statement with which it is inconsistent

2. vagueness-outer edges unclear; laws that are unreasonably vague may not

be enforced

3. generality-a lot fall within

CONSTITUTIONAL MEANING

1. TEXT TEXT TEXT

a. Hard core meaning

b. Logical extension

2. Context-What was the purpose

3. Doctrine

4. “Problem”… language + language is still language with its inherent

problems

5. Values (privacy, etc.)

3.) EX POST FACTO

4.) BILL OF ATTAINDER

5.) PRESUMPTION OF INNOCENCE

Individual Unit of Statutory Analysis

1. Who (subject)

2. Conduct (verb)

3. Surrounding Circumstances

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4. Result

5. State of Mind

a. Intent/purpose

b. Knowledge/belief

c. Recklessness/risktaking

d. Negligence/should have known

6. Classify Surrounding Circumstances

7. Apply rule of Construction

Old- scienter

New-(current Fed view)

CONDUCT = KNOWLEDGE

SURROUNDING CIRCUMSTANCES =KNOWLEDGE

RESULT = KNOWLEDGE

All crimes have four basic common elements: (1) a voluntary act (“actus reus”); (2)

a culpable intent (“mens rea”); (3) concurrence between the mens rea and the actus

reus; and (4) causation of harm.

III. Conduct

1. Previously Defined Conduct

Rex v. Manley (Ct. of Appeal - England, 1932) – “crying wolf” to police

-EXAMPLE OF COMMON LAW CRIME IN ENGLAND

-U.S. HAS NO FEDERAL COMMON LAW CRIMES (US v. Hudson & Goodwin)

can use analogy to decide cases, but not create crimes

Due Process: a. “fair notice”: presupposes a person is both moral and

rational. No crimes by analogy. Must be specific legislation-

even though stealing the officer’s time is the functional

equivalent of larceny-can’t make crimes by analogy but can

decide

b. “separation of powers”: judiciary cannot enact legislation

c. “limit of discretion”: keep police from random arrests.

Village of Hoffman Estates V. Flipside (1982)

1. unconstitutionally vague (Vagueness Doctrine: Based on Due Process

Clause. Requires that a criminal statute state explicitly and definitively what

acts are prohibited, so as to provide fair warning and preclude arbitrary

enforcement.)

void for vagueness does not apply if it is clear that defendant’s

conduct falls within statute

2. overbroad (Overbreadth Doctrine: First Amendment claim. If a statute is

so broadly written that it deters free expression, then it can be struck down

on its face… even if it also prohibits acts that may legitimately be forbidden

[i.e. no picketing, signing loyalty oaths])

does not apply to commercial speech

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EX PARTE QUIRIN (1942) – eight German spies -- Pres’s authority to try before tribunal court not civil

EXAMPLE OF FEDERAL COMMON LAW CRIMES: LAWS OF WAR

Due Process (5th

Amd.) and Laws of War (Art. I) are in direct conflict

We learn that the constitution is not a self-contained theory, but a series of

compromises. Not consistent with Flipside- ignores separation of powers, limits on powers and fair notice

2. Act

Keeler v. Superior Court of Amador County (CA SC, 1970) � statute cannot be enlarged to cover fetus as

murder

CAN’T ENLARGE STATUTES JUDICIALLY UNLESS ENLARGEMENT IS FORESEEABLE (look to

legislative intent & history)

Barriers to enlarging statute:

- JURISDICTIONAL- power to define crimes is vested in legislative branch.

Courts cannot even create an offense by enlarging a statute

- CONSTITUTIONAL- ex post facto type (due process). Can’t create new

definition and apply retroactively. Have to give fair notice

POLICY: when does life begin? Ct. says “born alive”

ISOMORPHIC?: NO. Say�fetus not human being; Mean� abortion not murder; Do� precedent against

anti-abortionists

People v. Sobiek (CA App 1973) – statutory definition of theft enlarged to apply to property in partnership

Enlarging a statute to cover certain conduct must be approached with the following question…

Was it a foreseeable judicial enlargement of a criminal statute applied retroactively? [Bouie]

- says that Keeler was merely dicta

-

*Why, then, wasn’t the statute enlarged in Keeler?

Blakey says: either case could have been enlarged without violating the canon of legal

interpretation. Keeler refused to enlarge the definition of “human being” to apply to a fetus, while

Sobiek enlarged the definition of “theft” to apply to property in a partnership. Both could be called

foreseeable. Look to Keeler’s lack of isomorphism to discover why they didn’t enlarge statute.

3. Omission

Commonwealth v. Konz (1979, Sup. Ct. Penn) Wife had duty (based on relationship) to seek aid for ailing husbund

- (Complicity-criminal liability for the conduct of another. Ex. Erikson. Can’t be liable if principle (Mrs.

Konz) not guilty)

- For criminal liability to be based on an omission as opposed to an act…

The duty to perform the omitted act must be otherwise imposed by law.

CHIEF CATEGORIES OF LEGAL DUTY

1. Based on STATUTE

2. Based on RELATIONSHIP(parent/child)

3. Based on CONTRACT(lifeguard)

4. Based on VOLUNTARY assumption of responsibility

a. D caused danger – D has affirmative duty to save victim

b. Undertaking – D may come under a duty to render assistance if he undertakes to give

assistance � this is especially true where D leaves V worse off than he was before, or

effectively dissuades others who believe that D is taking care of the problem.

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Barber v. Superior Court of L.A. County (1983) - This case is a rare prosecution of doctors “allowing” a patient to die. It brings up many of the

ambiguities between “allowing” and “causing”. The court grounds decision on the difference between

ACT and OMISSION.

- Duty of doctor ceases when “heroic efforts are futile”—use ordinary care, not extraordinary care

POLICY When do we end life? (Keeler-when does it begin?)

Pulling plug is ok.

Vacco v. Quill (1997 Rehnquist) - NY doctors try to legalize euthanasia (ACT), using policy from Barber (OMISSION), saying there’s no

real difference & must treat like cases alike.

- Must not compromise fundamental right without some legitimate state interest.

SC: prohibiting intentional killing, preserving life, preventing

suicide, keeping physicians as healers, protecting the

vulnerable. These are the state’s interests.

- In this case there is INTENT to kill, in Barber it was KNOWLEDGE that patient would die.

- This case the distinction between “letting” and “making” a patient die.

Does autonomy define the end of life?(Roe v. Wade). If they had gone the other way,

consequentialism constitutionalized(euthanasia)

MAXIM OF THE LAW

“Live honestly, harm no one, and give each his due.”

TRADITIONAL PERSPECTIVE ON JUSTICE

ANCIENT: Aristotle- Justice is the relationship between assembly and citizens

- exercise of virtues [courage, moderation, wisdom, justice]

- move toward intentionalism(not what you did, what you intended)

- Assembly >distributive just.> citizen >individual just.> citizen >legal

just.> Assembly

MEDEIVEL: St. Thomas- Community oriented

- Capital virtues [fortitude(courage), temperance(moderation),

prudence(wisdom), justice(justice)] << Christian view

- King >distributive> subject >communitive> subject >legal> King

CLASSIC/MODERN

- individual >justice> individual ……….only individual justice

- fundamental principle—GREED

- Bentham-do what’s best for you-GREED

AND - Marx- only distributive justice

- Fundamental principle---ENVY

- Socialism-you have what we want-ENVY

Attorney General of Israel v. Eichmann (1961, SC) Superior orders are only an excuse for committing a crime when there is an imminent danger to

you own life and no other alternative

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4. Possession

Mere possession of an object may sometimes constitute the necessary criminal act. (Ex: Possession of

narcotics frequently constitutes a crime in itself.)

• When mere possession is made a crime, the act of “possession” is almost always construed so

as to include only conscious possession. (Ex: If the prosecution fails to prove that D knew he

had narcotics on his person, there can be no conviction.)

Baender v. Barnet, Sherriff (1921)US Dist. Ct. – possession of die for making US counterfeit coins

POSSESSION—this case demonstrates that state of mind is constitutionally required for possession

What is meant by possession? Constructive possession- (stuff in my room at home) must be conscious

possession.

Exemplifies law enforcement justification

MPC: possession can be a criminal act only if D knew he had possession of the object, AND “was aware

of his control thereof for a sufficient period to have been able to terminate his possession.”

5. Voluntary

An act cannot satisfy the actus reus requirement unless it is voluntary

Martin v. State (1944 – intoxicated man forcefully taken out of house and arrested for public intoxication

crime not valid if act not voluntary Involuntary Conduct(no consciousness) MPC:

-Physically coerced movement

-Reflex movement

-Muscular contraction or paralysis produced by disease(stroke)

-Unconsciousness

Impaired consciousness

-Concussion

-Hypoglycemia

IV. State of Mind

1. Common Law

Specific vs. General Intent Crimes

Specific intent – crimes that require act and purposeful intent for conviction

General intent – crimes that require only an act for conviction, intent is inferred from the act.

List of Specific Intent Crimes: ELFBARF

Strict liability for Grading elements Mistake of fact – CL: If an actor honestly and reasonably, although mistakenly, believed the facts

to be other than they were, and if his conduct would not have been criminal had the facts been as

he believed them to be, then his mistake is a defense if he is charged with a crime which requires

“mens rea”

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Strict liability for independent moral wrongs

Regina v. Prince (England 1875) ELFBARF

Abduction

-POLICY OF TERROR- no state of mind required for liability element (under 14) Conviction affirmed because D’s conduct (abduction) would have been morally wrong even if the girl had

been 18 as he believed her to be. (no defense of mistake of fact; since D knew enough about his conduct

that it was morally wrong, liability should be strict as to rest of elements

Justification: protect property from illegitimate heirs from random dudes nailing your daughter

2. Statute

Cases involving the California Penal Code

Preface of CPC, in §20: To constitute crime there must be unity of act and intent. In every crime

or public offense there must exist a union, or joint operation of act and intent, or criminal

negligence

1. When interpreting statute from CPC, California courts must apply the complete code

w/ preface toward the individual statute.

People V. Fowler (Cal. 1871) Abduction for prostitution

- Tension between objective of the code (stop prostitution=strict liability) and justice to the defendant (need

justification for punishment, but get only policy of terror)

People V. Ratz (Cal. 1896) Statutory rape

- STRICT LIABILITY again,

Court fails to apply the complete statute (ignores the preface)

-One who violated the law at issue did so at his peril and could not have defended himself on the plea of

ignorance as to the age of the child.

People v. Hernandez (Cal. 1961) the only “rightly decided” statutory rape

- This court applies the minimum SofM from the preface to the statute (negligence). OVERRULES RATZ.

-this is “rightly” decided, no policy of terror

-defense of mistake of fact � in the absence of a legislative directive to the contrary, a charge of statutory

rape was defensible when criminal intent was lacking

People v. Olson (Cal. 1984, Byrd) wrongly decided -Willfully is both verbal and syntactical ambiguity

- even after Hernandez ruled that you need SofM for S.C., Byrd uses strict.

• Olson should have had mistake of fact defense � reasonably thought she was over 14

- presence of probation statute that allows leniency for SofM excuse does not justify reading substantive

statute to be strict (Byrd says it does)

-If prosecution shows absence of negligence beyond reasonable doubt then defendant can’t show

negligence by preponderance of the evidence

Lewdly probation statute

Sex with child under 14 convicted for “lewdly”

SofM- strict SofM- negligence ----- for age

Burden of proof- prosecution Burden- on defendant

Beyond reasonable doubt preponderance of evidence

Inculpation exculpation

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-Byrd’s justification- if govt. shows absence of negligence beyond a reasonable doubt, defendant can’t

show presence of negligence by preponderance of evidence.

-Blakey analysis- evidence is arguable. Jury may decide one way and the judge another--- this is an

acceptable result. Therefore the probation statute does not mean that they intended an exception to §20

-Byrd:

SAY: following legislature

MEAN: following her own policy

DO: added to the intent of legislature

Effect:POLICY OF TERROR to terrorize all persons in favor of “safety of children”

Garnett v. State (Maryland App.Ct. 1993) statutory rape

-Where statute doesn’t explicitly offer a mistake of age defense, there is none… and it’s strict

for SofM TERROR! -Strict liability even for retarded people

3. Federal Law

i. Old View: Scienter

Morrissette v. United States (1952, Jackson) 18 U.S.C. §641

WHO: whoever

CON: embezzles

Steals

Perloin

Converts knowingly

SC: thing [liability] knowingly

Value [grading] strict

U.S. [jurisdiction] strict

- this is the bomb casings case. M knew what he was doing, but didn’t know it was wrong. He thought

casings were abandoned.

- Even though the statute is silent as to SofM of SC, Jackson reads one in. He uses this rationale

1. intent is inherent in common law offenses--- intent meaning “some sort of SofM”

2. He couldn’t convert “knowingly” if he did not know property could be converted [thought it was

abandoned, not U.S.]

RULE: IN COMMON LAW TYPE CRIMES, SILENCE AS TO THE STATE OF MIND

REQUIREMENTS FOR THE SURROUNDING CIRCUMSTANCES IS NOT ENOUGH TO PERMIT

STRICT LIABILITY. … SCIENTER FOR COMMON LAW, NOT REGULATORY OFFENSES.

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ii. Modern View: Element Analysis

U.S. v Bailey (1980, Rehnquist) U.S.C. §751(a) if a regulatory type crime,

WHO whoever we can read as strict.

CON escapes [attempts]

SC custody [liability] if a common law type crime

Arrest we read in SofM. But..

Lawful knowingly, or

Att Gen. of US [jurisdiction] intentionally?

Felony [grading]

Or Misdemeanor

RES escape

-Clarifies ambiguities from Morisiette

RULE:

1. THE TERMS “GENERAL” AND “SPECIFIC” INTENT WERE REJECTED IN THIS CASE.

DON’T USE THEM. EVER.

2. KNOWLEDGE WILL BE READ INTO STATUTE AS TO CONDUCT WHEN NO OTHER

SPECIFICATIONS EXIST (IN FED CASE).

3. ELEMENTAL ANALYSIS MUST BE APPLIED.

4. AFFIRMATIVE DEFENSES ARE IMPLIED [NECESSITY-DURESS]

And defendant bears the burden by preponderance of evidence

Morrisette sets out new rule of degrees of SofM, Bailey actually practices this new

standard and develops it further by setting up elemental analysis. X-Citement Video uses

the elemental analysis from Bailey.

U.S. v. X-Citement Video (1994 Rehnquist)

WHO any person

CON transports knowingly [does this apply to SC?]---SYNTACTICAL

AMBIGUITY

SC visual

Depiction

Conduct

Sexual

Explicit

minor

-1st Amendment required knowledge of the sexually explicit character of materials although it

doesn’t require knowledge that the materials are legally obscene

-Obscenity is not speech it is conduct

-Conduct can be speech if symbolic (sign language, burning flag)

-Rehnquist says not grammatically ambiguous ���� “knowingly” applies to both Conduct & SC

Why not ignore a state of mind for surrounding circumstances?

1) avoid constitutional question-would be terrorized

2) Absurd-Congress doesn’t do absurd things

3) Silence alone is not enough-Morissette

- preserves strict for face-to-face sex offenses, but requires knowledge when not face-to-face with

underage person.

- RULE: GRADING REQUIRES STRICT

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United States v. Jewell (1976)US Ct Appeals 9th

-Contended he didn’t “knowingly” drive a car containing marijuana across the border

-United States v. Davis held that a defendant was guilty when he had knowledge of possession of a

controlled substance even though he didn’t know which

-He deliberately avoided positive knowledge [ostrich defense]

-Gov’t must prove beyond reasonable doubt he had the conscious purpose of avoiding the truth

-Willful blindness same as knowledge

- MPC-when knowledge required, if the person is aware of a high probability of existence- same as

knowledge

United States v. Giovannetti (1990) US Ct Appeals 7th

-Aiding and abetting an illegal gambling business

• A&A has two elements: (1) Conduct=facilitating (2)SofM=intent

-“ostrich instruction” given in Jewell-criticized because it allow conviction based on negligence when

intent required

-Must have active avoidance of finding the truth- such as: walk a different way to work so as not to

discover that the house he rented was being used for gambling

United States v. Freed (1971) SC -Defendants indicted for possession of unregistered grenades

-Act did not require specific intent

-“regulatory crime”-can be strict

-Infer that Congress meant knowledge that 1) they possessed items and 2) they were grenades

- LAW SUR. CIR. ARE STRICT AS TO SofM

4. Model Penal Code (p194-208)

5. Mistake of Criminality

-Mistake as to existence(Rex v. Esop)

-Application to criminal(Horning v. District of Columbia)

General rule-no-everyone presumed to know

-Exception-mistake as to existence of application of civil law but won’t get you out of crime(States v.

Woods)

Cox v. Lousiana -If cop particularizes something, only those that hear directly from cop can claim

personal defense

- deal with govt. agents at your peril

Rex v. Esop

-prisoner argued that unnatural act was normal in his country

-Mistake of existence of standard (law) not a defense- though we can’t justify it according to our

justification for punishment (T,C,M)

Horning v. District of Columbia

-Mistake as to application of law is not a defense

-you can’t try to push the law to its limits and expect to go unpunished

Page | 15

State v. Fox (1993) SC of Idaho

-Convicted for possession of ephedrine

-Statute didn’t prescribe any mental state

-Ignorance of law no excuse

-Only requires knowledge of the nature of the substance-ignorance of fact that it is illegal is not an excuse

United States v. Barker (1975)

-Defendant can be acquitted if he shows he reasonably relied on a public official’s authority

-Objective test under facts

- POLICY: Society places a high value on responding to law enforcement orders and allows reasonable

reliance on those orders

State v. Woods (1935) SC of Vermont

-Woman found in bed with married man-convicted under blanket act

-Believed that his divorce valid

-Ignorance of marital status of partner is not a defense to an adultery charge [but is valid for bigamy]

-Mistake of fact (marital status) or is it mistake of law (thought divorce was valid)--- court says law, court

is messed up

6. Negligence

MPC: A person acts negligently with respect to a material element of an offense when he should be aware

of a substantial and unjustifiable risk that the material element exists or will result from his conduct.

The risk must be of such a nature and degree that the actor’s failure to perceive it constitutes a gross

deviation from the standard of care that a reasonable prudent person would observe

• Criminal negligence is frequently defined by the courts as an especially egregious sort of

callousness that is different in kind from the ordinary negligence that will warrant

recovery in a civil suit

Argument Against – personal blameworthiness is the essential ethical predicate for criminal sanction

Argument For – effective social control with limitations based on blameworthiness

Director of Public Prosection v. Smith (1960) House of Lords

-Cop drug by car-law imputes to a persona who willfully commits a criminal act an intention to do all the

probable consequences

-Only objective state of mind is negligence-

-MPC must have recklessness, knowledge or intent for liability

Homicide-4 Ways

1) State of Mind + cause + result

-Intent, know, reck, neg

2) Conspiracy –during conspiracy, in furtherance of conspiracy and foreseeable [Pinkerton]

3) Aiding and abetting-[it] + cause + natural and probable

4) Felony + cause = murder-doesn’t make sense anymore because not all felonies are violent like past

V. Causation

1. Doctrine

Common-Law Approach to Causation Actual – “but for”

Proximate – sufficiently direct cause

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MPC Approach (p852-853)

People v. Kibbe (1974)

-Man left on road in middle of winter

-Even if trucker hadn’t hit V, it was foreseeable that because of Ds’ actions V would be hit by a car

-Cause is not physics or science-Cause-is there a supervening factor

-But for + foreseeable = substantial factor

-Defendant’s actions must be “sufficiently direct”

-Grading can turn on causation-they would have still committed a crime even if they hadn’t caused the

death-plane lands on him

People v. Warner-Lambert Co (1980)

-Explosion in gum-manufacturing plant-No difference between running the risk of death here or Kibbe

-Court said couldn’t find actual cause-couldn’t prove manner so not foreseeable

-Sufficiently direct cause not but for test

-Policy-White collar crimes have lawyers at grand jury while street crime has public defenders

-General problem with juries-no young people, no feminists and they decide “reasonable person”

-Legislature should decide balance between risk of death and furtherance of economy

2. Felony Murder Felony-Murder Doctrine broadens the crime of murder in two ways. First, when a victim dies accidentally

or without specific intent in the course of an applicable felony, it increases what might have been

manslaughter (or even a simple tort) to murder. Second, it makes any participant in such a felony criminally

responsible for any deaths that occur during or in furtherance of that felony.

• Courts have three devices for limiting the situations to which the rule applies:

1. A requirement that the felony be inherently dangerous, either in general or on the

particular facts;

2. A causation limitation, usually expressed as a requirement that the death be a

“natural and probably result” of the felonious conduct; and

3. A requirement that the felony be “independent” of the homicide

People v. Aaron (1980)

-Felony murder-death while in commission of felony is murder (felony + cause = murder)

-Felony must be inherently dangerous and death must be natural and probable result of conduct

-Felony must be independent of the homicide-can’t have assault with intent to murder and murder (offenses

“merge” and precludes felony-murder)

-Jury must find malice in order to convict murderer-underlying felony is dispositive of malice (rejects

felony-murder in Michigan)

People v Hansen (1994)

-man discharges a firearm at an inhabited house, inadvertently kills girl in house

• Is discharging firearm at house a felony “inherently dangerous to human life” for purposes of

the second-degree felony-murder doctrine

-offense was inherently dangerous and does not “merge” with the resulting homicide so as to

preclude application of felony-murder

State v Sophophone (2001)

-Can D be convicted of felony murder for the killing of a co-felon not caused by his acts but by the lawful

acts of a police officer acting in self-defense?

-Agency Approach: majority rule; F-M Doctrine does not apply if the person who directly causes the death

is a non-felon

Page | 17

-“Proximate Causation” Approach: if an act by one felon is the proximate cause of the homicidal

conduct by the non-felon, murder liability is permitted

-D not guilty of felony-murder because he did not directly cause the death of co-felon, nor was he the

proximate cause of his death

-Dissent: D set in motion acts that could have resulted in the death of a police officer, so through

transference he should be held liable for co-felon’s death

VI. Immaturity, Mental Abnormality, and Intoxication

1. Immaturity

Can be convicted if demonstrate understanding discretion

-Guilty mind requires maturity and sanity

-Juvenile supposed to be therapeutic rather than punitive but found to be punitive

-Juvenile court frequently deprives child of liberty without due process

-Supreme court declared that a juvenile charged is constitutionally entitled to virtually all of the procedural

protections afforded to a defendant in a criminal prosecution

In re Tyvonne Conn. (1989) p512

-Issue-Whether the common law defense of infancy applies to juvenile delinquency proceedings

- court was not persuaded by the juvenile's proposition that the juvenile justice system punished rather

than rehabilitated so that there was no good reason not to recognize incapacity as a defense

- court rejected the juvenile's argument to the effect that the common law presumption that children

between the ages of 7 and 14 were incapable of committing a crime should apply because the offense

charged was a serious juvenile offense.

-common law defense of infancy did not apply to juvenile delinquency proceedings. Juvenile

delinquency adjudication is not a criminal conviction, thus it is unnecessary to determine whether the

juvenile understood the moral implications of his behavior.

In re Dahl Minn. (1979) p522

-Issue-Whether lower courts erred in referring a juvenile to a district court for adult prosecution

- the juvenile court's finding that defendant could not be successfully treated within the juvenile court's

jurisdiction was not reasonably supported by the evidence

- There was no supporting psychological data or history of misconduct

- D's age was not to be a substantial factor in determining whether reference was appropriate.

In re D.F.B. Minn. (1988) p527

[The juvenile, age 16, used an ax to kill his parents and siblings, motion to refer for prosecution as an adult

affirmed]

- reference was justified in this case because, looking at all of the statutory factors including: the offense

with which the juvenile was charged, the manner in which he committed the offense, the interests of society

in the outcome of the case, the testimony of the court-appointed psychiatrist suggesting that treatment of

the juvenile might be unsuccessful, and the weakness of the defense expert's testimony, the State met its

burden of proving by clear and convincing evidence that the juvenile was unamenable to treatment

in the juvenile court system consistent with the public safety.

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2. Mental Abnormality (Insanity)

-Insanity defense is difficult because most clinicians assumptions about mental abnormality not supported

by statistics

-Civil commitment must be used if mentally ill not within reach of criminal law

-Product test-act was the offspring and product of mental disease

-Contract test-focuses on will rather than cognitive capacity

-Model Penal Code-if they lack substantial capacity to appreciate the wrong or to conform to conduct to the

law

Traditional-punish “bad” not “mad

Classical-sanction wrong not the insane

Modern-cure the sick-scientific

Pragmatic-compromise between prison and hospital

-What does insanity do-negate state of mind or conduct = defense

-despite elements, still not guilty = affirmative defense (burden on defendant)

-Classifying someone by an expert is false whether defense of affirmative defense-still decided by jury

1) Rex v. Donald-are they a “wild beast”

2) M’Naughten-“defect of reason” right/wrong test-

ambiguity for legal/moral wrong

3) United States v. Durham-not criminal responsible if

product of mental disease (burden on gov’t to prove he

is sane)

-Hard to meet because psychiatrists aren’t consistent with

definitions and diagnosis

4) Model Penal Code-Classical ideology-mental disease,

lack of substantial capacity to 1) appreciate

wrongfulness or 2) conform acts to societal standard

5) 18 USC 17-Insanity is a) affirmative defense-severe

mental disorder and fails to appreciate wrongfulness

b) defendant must prove by clear

and convincing evidence that he

wasn’t sane

-Experts can testify to ultimate question of fact but only jury can decide if he is insane

-“If he looks like me”-bad, “if he looks crazy”-hospital

-Used less and less as death penalty faded-almost exclusively murder cases

People v. Lance

-Pragmatic approach of guilty but mentally ill-hospitalized until sane then serve remaining time in jail is

constitutional(GBMI-guilty but mentally ill)

-NGRI-not guilty by reason of insanity

3. Intoxication

Voluntary Intoxication

• Not a defense to a General Intent crime

1. Common law rejection of voluntary intoxication as neither “excuse” nor

“justification” for crime of homicide upheld [Mt v Egelhoff]

• Not a defense to crimes involving negligence, recklessness or strict liability

• A defense to Specific Intent crimes, provided the intoxication prevents Defendant from

formulating the requisite intent (can bump 1st Degree Murder down to 2

nd Degree)

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Involuntary Intoxication

• Taking an intoxicating substance without knowing its nature or under duress or medical

advice

• Defense to both Specific and General Intent crimes

• Most jurisdictions treat this same as insanity if, because of intoxication, D meets whatever test

the jurisdiction adopted for insanity

Montana v. Egelhoff

-Intoxication can negate specific but not general intent

-Rape is a general intent crime (only intent to commit acts constituting offense, not intent to commit

offense)

-Involuntary intoxication is excusable

-Habitual tendancy is excusable

-Policy-juries don’t find people guilty when they were drunk even if negligent/reckless because everyone

gets fucked up (except death)

VII. Attempt

1. Conduct

-Proximity test-how close was the act to being completed

-MPC-focus on what’s been done rather than what remains-“substantial step towards the commission of

crime “

-Common law-weighs the proximity and degree-can infer state of mind from closeness of factors to [it]

-In strict liability-liability element is strict as to [it] but not to attempt

-However if other elements are strict in [it] then those elements stay strict in attempt

Traditional-attempt-punish less than [it]

Classic-attempt-want to punish same as [it]-incentive to commit whole crime if punishment is the same

regardless if completed

There are two main approaches which courts use to decide whether D’s act was sufficient, the “proximity”

approach and the “equivocality” approach.

• The Proximity Approach: Most courts have based their decision on how close D came to

completing the offense. This used to require D to achieve a “dangerous proximity to success”.

However, modern courts tend to require merely that D take a “substantial step” towards carrying out

his criminal plan.

• The “equivocality” approach: Other courts follow a completely different approach, concentrating

not on how close D came to success, but on whether D’s conduct unequivocally manifested his

criminal intent. If D’s conduct could indicate either a non-criminal intent or a criminal one, it is not

sufficient—but if it does unequivocally manifest criminal intent, it suffices even though completion of

the plan is many steps away.

• Third option: MPC’s “substantial step” test: The MPC incorporates aspects of both the “proximity”

test and the “equivocality” test. But the incorporated aspects of each test are relatively unstringent in

the MPC approach, so that almost any conduct meeting any of the variation of either of these tests

would be sufficient under the Code. Under the MPC, conduct meets the act requirement if, under the

circumstances as D believes them to be: (1) there occurs “an act or omission constituting a substantial

step in a course of conduct planned to culminate in [D’s] commission of the crime”’ and (2) the act is

“strongly corroborative” of the actor’s criminal purpose.

Page | 20

People v. Bowen and Rouse (1968)

-Convicted of attempted larceny in old woman’s home

-Must be more than preparation-must have overt act that manifest symbolic of the crime -Must have had intent while going in

Conduct-state of mind-intent to do [it]

Surrounding circumstances-state of mind-knowledge of [it]

McQuirter v. State (1953)

-Man found guilty of attempting to commit assault with intent to rape

-An attempt to commit assault with intent to rape is an attempt to rape which has not proceeded far enough

to amount to assault

-Policy-reason for drawing line close to [it] in attempt is to punish only the act from traditional

-classical-deterrence it is unclear

-modern draw close to it to prevent even smallest tendency towards [it]-give opportunity for abandonment

-No one goes to jail for what he thinks

-Infer state of mind from actions

United States v. American Airlines (1984)

-White-collar crime where CEO convicted of attempted monopolization

-Agreement not absolute prerequisite for attempt-solicitation can be an attempt

2. State of Mind

Traditional View: attempt requires a specific intent “to do the entire evil thing”. The intent in the mind

covers the thing in full; the act covers it only in part

MPC: accepts the Thacker result, but departs from the common law position that a specific intent is

required as to ALL elements of the offense attempted:

MPC:

…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 purposely engages in

conduct…or…has belief that his conduct will cause such result…or…purposely does anything

which constitutes a substantial step in the culmination of the crime

(A) Intent usually required: Generally, D will be liable for an attempt only if he intended to do acts which, if they had been

carried out, would have resulted in the commission of that crime.

i. Example: D hits V in the jaw, intending only to slightly injure V. Instead, V suffers serious injuries

due to hemophilia, but recovers. D will not be liable for attempted murder, even though he came close to

killing V; this is because D is liable for attempted murder only if he had the mental state needed for actual

murder (in this case, either an intent to kill or an intent to do seriously bodily injury).

1. Specific crime: Furthermore, D must have had an attempt to commit an act which would constitute the same

crime as he is charged with attempting

Example: On the facts of the above example, it is not enough that D attempted a crime, namely a

battery against V. What must be shown by the prosecution is that D had the mental state needed for

the very crime D is charged with attempting—murder.

2. Knowledge of likely consequences: Nor is it enough that D knew that certain consequences were highly likely

to result from his act.

i. “Substantially certain” results: But if it is shown that D knew that a certain result was

“substantially certain” to occur, then this may be enough to meet the intent requirement even though

D did not desire that result to occur.

3. Crimes defined by recklessness, negligence or strict liability: Ordinarily, there can be no attempt to commit

a crime defined in terms of recklessness or negligence or strict liability.

i. Bringing about certain result: This is clearly true as to crimes defined in terms of recklessly or

negligently bringing about a certain result—there can be no attempt liability for these crimes.

Example: D gets into his car knowing that it has bad brakes, but recklessly decides to take a

chance. D almost runs into V because he can’t stop in time, but V dives out of the way. D will

not be guilty of attempted involuntary manslaughter, because crimes defined in terms of

recklessly or negligently bringing about a certain result cannot give rise to attempt liability.

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ii. Strict-liability crimes: Generally, courts will not convict D of attempting a strict-liability crime

unless D had a culpable state of mind.

4. Intent as to surrounding circumstances: It is probably not necessary that D’s intent encompass all of the

surrounding circumstances that are elements of the crime.

People v Thomas (Colo. 1986) p310

-White-collar crime where CEO convicted of attempted monopolization

-In order to be found in Attempt, one has to intend the full crime

-Agreement not absolute prerequisite for attempt-solicitation can be an attempt

3. Impossibility

Traditional (Common Law) Approach: Situations are classified as involving “legal” or “factual”

impossibility. “Factual” impossibility cases can be prosecuted as attempts. “Legal” impossibility cases

cannot. The distinction between the two is defined as follows by Booth v State:

• The reason for the “impossibility” of completing the substantive crime ordinarily falls

into one of two categories: (i) where the act if completed would not be criminal, a

situation which is usually described as a “legal impossibility,” and (ii) where the basic or

substantive crime is impossible of completion, simply because of some physical or

factual condition unknown to the defendant, a situation which is usually described as a

“factual impossibility.”

o Example 1: Suppose A aims a gun at B and pulls the trigger with intent to kill.

If the chamber is jammed and doesn’t fire has A still committed attempted

murder? --- Yes. A satisfied the requisite intent for the substantive crime of

murder and committed an overt act which was a substantial step in the

culmination of the crime. The fact that the gun didn’t fire is merely a “factual

impossibility” and will not provide a defense to A.

o Example 2: D is questioned by a police officer, during a criminal investigation.

D lies, while believing that lying to the police constitutes perjury. D cannot be

convicted of attempted perjury, because the act he was performing (and in fact

the act he thought he was performing) is simply not a violation of the perjury

statute.

• “Inherent impossibility (ineptness and superstition”: If D’s act is, to a reasonable

observer, so farfetched that it had no probability of success, D may be able to

successfully assert the defense of “inherent impossibility”.

o Example: D, a Haitian witch doctor, sticks pins into a voodoo doll modeled

after C. A court might conclude that D’s conduct was so inherently unlikely to

kill C that D should be acquitted.

MPC:

People v. Dlugash (1977)

-Defendant who mistakenly believes a victim to be alive and attempts to kill him is liable for attempted

murder even if it is later proven that the victim was actually dead

-However, this is an example of specious(phony)liability and, according to Blakey, defendant should not be

convicted because [it] (murder) could not occur if the victim was dead

-If it was impossible for [it] to occur then it is impossible for attempt to [it]

-Can’t be convicted of murder if can’t prove but if he believed he was alive at the time, can be convicted of

attempted murder (factual impossibility no defense)

United States v. Brooklier (U.S. 1983)

-Legal impossibility-intended acts even if successfully completed would not constitute a crime

-Factual impossibility-circumstance unknown to defendant renders the consummation of the intended

conduct physically impossible

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MISTAKE OF LAW REVIEW

1. CRIMINAL STATUTE

a. Mistake as to existence (Rex. V. Esop) NO

b. Mistake as to application (Horning) NO

2. CIVIL STATUTE

a. Mistake as to existence or application

i. NO (Woods)

ii. YES (James)

4. Abandonment – defense to Attempt

CL: Voluntary Abandonment may cause a reduction of sentence, but once D has gone far enough for

criminal intent, no subsequent repentance can possibly wipe away liability for the crime already committed.

MPC: “Renunciation of criminal purpose” – provides that where there has been what would otherwise be

an attempt, “it is an affirmative defense that [the defendant] abandoned his effort to commit the crime or

otherwise prevented its commission…” However, the abandonment must be a VOLUNTARY one.

Modern courts tend to follow MPC in this matter

What constitutes a “VOLUNTARY” abandonment?

1. Threat of imminent apprehension: Thus if D, at the last moment, learns facts causing him

to believe that he will be caught if he goes through with his plan, the abandonment will

generally not be deemed voluntary

a. Example: On the facts of the above example, just before V is scheduled to come out

of his house, D spots a police officer o the sidewalk near D. D’s abandonment has

been motivated by the fear of imminent apprehension, so his abandonment will not

be deemed voluntary, and D can be convicted of attempted murder

2. Generalized Fear: On the other hand, if D abandons because of a generalized fear of

apprehension, not linked to any particular threat or event, his abandonment will probably be

deemed voluntary

3. Other special circumstances a. Postponement: If D merely postpones his plan, because the scheduled time proves

less advantageous than he thought it would be, this does not constitute a voluntary

abandonment

b. Dissuasion by victim: Similarly, if D’s renunciation is the result of dissuasion by

the victim, it will probably be deemed involuntary.

i. Example: D decides to rob V, a pedestrian, on a secluded street at night. D

says, “Your money or your life,” and brandishes a knife at V. V pulls out

his own switchblade and says, “If you come any closer, I’ll carve you up.”

D turns around and walks away. D’s abandonment will almost certainly be

found to be involuntary, because it was motivated by the victim’s conduct.

Therefore, D can be convicted of attempted robbery.

Ross v Mississippi (Miss. 1992) -- This case gets it wrong, dissuasion by victim is not a defense

[D stopped at her trailer, pointed a handgun at the complainant, ordered her into the house, told her to undress, and

threatened to kill her. She pleaded that her daughter would be home from school soon. Defendant walked the

complainant out to the back of her trailer before he left]

- Defendant claimed that the jury should have been instructed only on a simple assault charge. He asserted that

it was not the complainant's resistance that prevented her rape nor any independent intervening cause or third

person, but the voluntary and independent decision by defendant to abandon his attack

- On appeal, the court reversed defendant's conviction because defendant raised a legitimate issue of error in

the sufficiency of the evidence supporting his conviction for attempted rape because he voluntarily

abandoned the attempt. An attempt consisted of an intent to commit a particular crime, a direct ineffectual

act done toward its commission, and failure to consummate its commission.

- The court found that defendant left willfully because he responded sympathetically to the complainant's

statement that she had a little girl.

Page | 23

VIII. Justification and Excuse

1. General Principle

Justification defenses state exceptions to the prohibitions laid down by specific offenses. Thus, for

example, an intentional homicide that would otherwise be murder is no crime at all if committed in self-

defense.

The law also includes doctrines of excuse. These defenses recognize claims that particular individuals

cannot fairly be blamed for admittedly wrongful conduct. The defendant is excused not because his

conduct was socially desirable, but rather because the circumstances of the offense evoke the societal

judgment that criminal conviction and punishment would be morally inappropriate.

List of the main justifications/excuses: (1) duress (2) necessity (3) self-defense (4) defense of others (5)

defense of property (6) law enforcement (7) consent (8) maintenance of domestic authority

Commonwealth v Markum (Pa. Super. 1988) [Appellants were charged with defiant trespass as a result of their destruction of property and occupation of an abortion

clinic, appellants claimed justification under 18 defense of others, trial court denied the use of the defense, and a jury

convicted appellants, Conviction affirmed]

- To prove justification as a defense, appellants had shown under that there was a clear and imminent harm,

that appellants' actions would have avoided the greater harm, that there was no legal alternative to prevent

the harm, and that the legislature did not preclude the defense.

- The court found that because abortion was legal under the Abortion Control Act, , and under the United

States Constitution, abortion was not a public disaster

- Additionally, appellants were unable to prevent abortion by its offense in one clinic, there were suitable

peaceful means by which to make a protest, and there was a legislative purpose in the preclusion of the

defense to appellants because abortion was legal.

2. Aggression [DEFENSE OF SELF & PROPERTY]

SELF-DEFENSE:

Requirements—

1. Resist unlawful force: D must have been resisting the present or imminent use of unlawful

force

2. Force must not be excessive: Degree of force used by D must not have been more than was

reasonably necessary to defend against the threatened harm

3. Deadly Force: The force used by D may not have been deadly unless the danger being

resisted was also deadly force

4. Retreat: (In some states) D must not have been in a position from which he could retreat

with complete safety, unless: (1) the attack took place in D’s dwelling; or (2) D used only

non-deadly force.

Effect of mistake: The effect of a mistake by D concerning the need for self-defense will depend

largely on whether the mistake is “reasonable.” Observe that there are various kinds of mistakes

that D might make concerning the need for self-defense: (1) a mistaken belief that he is about to be

attacked; (2) a mistake in belief that the force used against him is unlawful; (3) a mistaken belief

that only deadly force will suffice to repel the threat; or (4) a mistaken belief that retreat could not

be accomplished safely.

- As long as D’s mistaken belief as to any of these points is reasonable, all courts

will allow him to claim self-defense

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People v Goetz (N.Y. App. 1986) [A Grand Jury indicted defendant on attempted murder, assault, and criminal possession of a weapon for having shot

and wounded four youths on a subway train after one or two of the youths approached him and asked for money,

conviction reinstated]

- The lower courts, concluding that the prosecutor's charge to the Grand Jury on the defense of justification

was erroneous, dismissed the charges

- The reviewing court held that although state statutory law never required that an actor's belief as to the

intention of another person to inflict serious injury be correct in order for the use of deadly force to be

justified, the provisions had uniformly required that the belief comport with an objective notion of

reasonableness - The court concluded that although the prosecutor's instructions were not as complete as the court's charge on

justification should be, they sufficiently apprised the Grand Jury of the defense

State v Kelly (N.J. 1984) [D was charged w/ murder after stabbing her husband. At trial, D attempted to argue that she suffered from battered

spouse syndrome and that the stabbing was an act of self-defense. However, trial court excluded defendant's expert's

testimony regarding battered spouse syndrome, regarding it as irrelevant. The jury subsequently found defendant guilty

of reckless manslaughter. Defendant argued that the trial court erred in excluding her expert's testimony, judgment

vacated and remanded]

- On appeal, the court first held that evidence relating to battered spouse syndrome was relevant in

determining whether a reasonable fear of danger existed requisite to a self-defense claim

- Thus, the court held that the trial court committed reversible error

- However, examining the theory of battered spouse syndrome, as well as defendant's expert's record, the court

held that the emerging nature of the syndrome's theory necessitated giving the trial court broad discretion in

determining whether defendant's expert testimony was sufficiently reliable to be admissible

5. Public Authority

United States v Ehrlichman (D.C. Cir. 1976) [Defendant allegedly conspired with others to break into victim's office without consent. He was convicted of

conspiracy and perjury, conviction affirmed]

- D raised two substantive challenges to his conviction. First, was that the break-in, although conducted

without a judicial warrant, did not violate the Fourth Amendment. It was undertaken pursuant to the

President's delegable constitutional prerogative in the field of foreign affairs to authorize such a search.

Second, was that even if the search was unjustified in either law or fact and thus illegal, the special

prosecutor failed to meet his burden of proving he acted with a "specific intent" to interfere with victim's

constitutional rights.

- The court affirmed the convictions concluding that the district court did not err in rejecting defendant's good

faith defense. The law was clear that victim's Fourth Amendment rights were breached when defendant broke

into and searched his office without judicial authorization. The court concluded that defendant's conviction of

conspiracy as set forth in the indictment was in full compliance with the mens rea requirements

United States v Barker (D.C. Cir. 1976) [A Grand Jury indicted defendant on attempted murder, assault, and criminal possession of a weapon for having shot

and wounded four youths on a subway train after one or two of the youths approached him and asked for money,

conviction reinstated]

- He raised two substantive challenges to his conviction. First, was that the break-in, although conducted

without a judicial warrant, did not violate the Fourth Amendment. It was undertaken pursuant to the

President's delegable constitutional prerogative in the field of foreign affairs to authorize such a search.

Second, was that even if the search was unjustified in either law or fact and thus illegal, the special

prosecutor failed to meet his burden of proving he acted with a "specific intent" to interfere with victim's

constitutional rights. The court affirmed the convictions concluding that the district court did not err in

rejecting defendant's good faith defense. The law was clear that victim's Fourth Amendment rights were

breached when defendant broke into and searched his office without judicial authorization. The court

concluded that defendant's conviction of conspiracy as set forth in the indictment was in full compliance with

the mens rea requirements

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6. Situational Excuse

IX. Rape

X. White Collar Crime

XI. Complicity

1. Conduct

2. State of Mind

3. Guilt of Principal

4. Capacity

XII. Conspiracy