Crim Law Outline I. After Prima Facie case is made: A. D must chip away at PF case OR B.

Raise affirmative defense 1. Always evidentiary issues Sometimes the judge takes the power away from jury because of these evidentiary issues

I. AN INTRODUCTION TO CRIMINAL LAW

Q: What is the nature of the criminal law? Q: What are the limits of the criminal law? 1. Crime Defined: a. A breach of rules or laws for which some governing authority can duly assign a conviction. b. An action or an occasion of negligence that is injurious to the public welfare or moral values, or to the states interests, and that is legally prohibited. c. Any social harm defined and punishable by law. i. Why Social? 1. Harms beyond what happens to the victim (P in civil). 2. Criminal Law: a. A collection of binding rules devised and enforced by a governing authority that prohibit conduct that has been deemed to be harmful or otherwise undesirable. b. Substantive v. Procedural: i. Procedural: 1. Protects individuals ii. Substantive: 1. Punishment iii. Deontological: there is not tension between the two, because they are both based on rights. 3. Criminal v. Civil: a. How are crimes different from civil wrongs? i. Crimes are more serious. 1. But there is the crime of jay-walking and the civil wrong of negligence resulting in death. ii. Crimes harm society and affect the welfare of unrelated citizens. 1. But society has an interest in tort, contract, etc. too. iii. Dressler: The criminal/civil divide has faded; there is overlap. 1. My notes: Criminal law deals with more serious punishments, has a higher burden of proof, and is more difficult to find liability/guilt; Thus, the civil law, which only deals with money, can be used as a sort of safety net to provide some justice when a criminal goes free.

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2. In general, criminal law is concerned with morally condemnable conduct that causes/risks serious social harm. b. Criminal v. Civil differences in law: i. Who brings action: Gov. (criminal) v. Private (civil) ii. Punishment: 1. Criminal: Fines, incarceration, execution, etc. a. Misdemeanor: < 1 year b. Felony: > 1 year 2. Civil: a. Mostly compensatory (financial or injunctive) b. Punitive damages (financial) in cases of severe civil wrongdoing iii. Burden of Proof: 1. Criminal: Always on the prosecution 2. Civil: Shifts to D after prima facie case is made iv. Standard of Proof: 1. Criminal: beyond a reasonable doubt; practical certainty 2. Civil: preponderance of evidence; probable v. Guilt (criminal) v. Liability (civil): Guilty verdictMoral Condemnation, but Liability need not be condemnation 1. What is guilt? a. Legal: Proven beyond a reasonable doubt b. Factual: D committed the crime c. Emotional/Psychological: Internal conflict (c.f. shame which is external) 2. One guilt may lead to another: a. EX: The factual guilt that D committed the crime makes D feel emotional guilt, which leads to his confession, which proves he committed the crime, resulting in legal guilt. b. EX: Emotional guilt may be perceived by a jury to reflect intent (he wouldnt be acting guilty if it wasnt on purpose, etc.) 3. Psychopaths may not feel guilt, but we may find them guilty anyway 4. Mens Rea = Guilty Mind/Evil Mind i. What is evil? 1. violence, hate, wrong, etc. ii. Strategy: 1. Violence and evil are feared, so portraying evil persuades juries. 4. Classes of Law: a. Common Law: Backward looking b. Statutory: Forward looking; Federal and each state i. Model Penal Code: Attempts to unify the 52 criminal codes (statutory) 1. Highly influential, but not expressly adopted by any state

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5. Presumption of Innocence: Burden of proof + Standard of proof a. More of an assumption (an assumption requires no evidence, and here the assumption is of innocence) b. Rooted in the 5th (Fed) and 14th (States) amendments i. Each element must be proven beyond a reasonable doubt c. Probable Cause: i. The standard of evidence required for police to make an arrest ii. This is like a presumption of guilt (based on evidence, unlike the assumption of innocence made at trial) d. So, the presumption of innocence is really a benefit of the doubt or assumption of innocence to protect individual rights and avoid unjust punishment i. If a juror doesnt buy in, and it is obvious, he/she can be eliminated at voir dire e. Owens v. State: i. Police matched a parked vehicle with description of suspicious vehicle ii. D was intoxicated, sleeping at the wheel, with beer can surrounding iii. D was arrested, convicted at trial, now on appeal iv. Circumstantial Evidence: Indirect evidence which may support an inference of guilt (but is not sufficient proof on its own) 1. Exception: Unless the circumstances are inconsistent with any reasonable hypothesis of innocence. 2. Is there a reasonable hypothesis here? a. Court found a hypothesis of innocence too unlikely, so affirmed conviction. b. Court used more than a flip of a coin of a chance he was guilty, is that enough? i. No, it shouldnt be, but he probable thought it was more than thatpractical certaintywhich is sufficient. 6. Right to Trial by Jury: a. 6th amendment right to a speedy and public trial, by an impartial jury b. Only applies to non-petty offenses: i. > 6 mo. prison ii. Other legislative intent indicating seriousness (prison + large fine) 7. Jury Nullification: Jury can acquit even when D is proven guilty a. Unjust laws b. unusual circumstances c. Juries do not have to explain verdicts d. Double jeopardy would prevent D from being tried again e. State v. Ragland: i. D charged with several offenses including armed robbery. ii. Judge to jury: you must find him guilty of the possession charge if he had a gun during the robbery iii. D argues he has constitutional right to jury nullification, so jury instruction

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was in error. iv. Held: The right of jury nullification is of the jury, not D; Trial judge does not have to explain this to the jury. 1. Why not use may instead? a. Slippery-slope of anarchy/inconsistency b. Bad juries (KKK Jury) 2. Pros and Cons: a. Goes against legislature which represents people b. But jury may better represent people c. but jury may not better represent people (KKK jury) d. but there are safeguards (transfer, voir dire) e. however, voir dire doesnt work with a bad attorney or a completely bad pool (or totally unsympathetic D) f. Juror #10 (People v. Williams): i. Juror #10 disagreed with statutory rape law and refused to convict ii. Judge found out and dismissed juror iii. Fontaine: I would have appealed 8. General v Special: a. General: Doctrines, such as Principles of Punishment i. Help us understand guiding principles to avoid blindly applying rules that lead to absurd results b. Special: Definitions of Specific Crimes and Defenses

II. PRINCIPLES OF PUNISHMENT Q: Why punish? What justifies punishment? Q: What theory best describes American criminal law?

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9. Punishment: a. Why punish? What justifies punishment? What theory best describes American criminal law? b. Retribution v. Utilitarian v. Mixed c. Defense of necessity: Excuse v. Justification i. Modern: viewed as a justification (it was not wrong) 1. Many restrict to natural threats (c.f. duress/coercion) ii. Argues D acted in the necessary way to prevent some greater harm. iii. Necessity is not a defense to murder 1. how does one measure comparative values of human lives? iv. Hungry man stealing food? 1. Starving? a. There are difficulties in drawing the lines of greater harm b. Deontology and consequentialism: i. Does necessity/hunger bestow a right? (Deontology) ii. If so, what are the ramifications of recognition of the defense? (Consequentialism) c. Retributive v. Utilitarian: i. Retributive: If D didnt freely choose, he shouldnt be punished; What does he deserve? ii. Utilitarian: Even if he felt compelled, this cannot be allowed, or it will become prevalent. d. The Queen v. Dudley & Stephens: Ds lost at sea and starving murdered ill boy to feed off of and preserve their own lives. i. Found guilty, BUT sentence reduced to 6 months

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1. Guilty verdict reflects consequentialist/utilitarian concerns (deter conduct) 2. Light sentence reflects deontological/retributive concerns (did not deserve execution) v. Vol. Manslaughter v. Murder 1. Partial defense: Excusing conditions; heat of passion/provocation a. People v. Du: D (Storeowner) thought V was shoplifting, caused confrontation, V struck D and was walking away when D shot V in the back. i. Found guilty of voluntary manslaughter, BUT sentence was suspended. ii. Karlins objectives: 1. Protect society 2. Punish D for committing crime 3. Encourage D to live a law abiding life 4. Deter others 5. Isolate D so she cant commit other crimes 6. Secure restitution for V 7. Seek uniformity in sentencing iii. Were they all met? 1. All met to a certain extent, OR 2. None were fully accomplished, OR 3. Mixed iv. Karlin calls the max sentence revenge; also says theres no point in sentencing to 3, 6, or 11 (utilitarian) v. Retributive v. Utilitarian: 1. Utilitarian: More punishment wouldnt create anymore deterrence, BUT 1) Maybe this wont deter as much (light)? i) Harsh punishments lead to more pleading & prosecutors going for lesser charges with higher chances of conviction, so maybe a lighter punishment will result in more deterrence. 2. Retributive: What did she deserve? 1) She deserved 3, 6, or 11 (how do we calculate?) 2) She deserved no punishment because of excusing conditions, OR 3) She did not deserve murder because of excusing conditions, BUT she did deserve manslaughter (3-11 years); How do we

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calculate? 10.Proportionality (punishment fits the crime): a. Retributive: i. Proportion w/ respect to desert 1. Deontological retributivism (was it wrong before knowing results?) 2. Consequential retributivism (judged after knowing results) b. Utilitarian: i. Proportion w/ respect to deterrence th c. 8 amendment forbids excessive/cruel/unusual punishment i. some punishments forbidden (we do not do pure lex talionis; we do not rape rapists) ii. some punishments limited to certain crimes and circumstances (mental states/severity of crime) 11.Cruel and Unusual a. Is death penalty for rape unconstitutional (violating 8th amendment)? i. Furman v GA: 1. Brennan: a. Degrading to human dignity b. severe and arbitrary c. severe and rejected by society d. severe and unnecessary ii. Coker v. GA: 1. Murder-rapist escapes from prison and rapes again (also threatens). 2. Aggravating/Mitigating factors are always considered for capital punishment cases 3. Majority: yes, it is grossly out of proportion w the severity of the crime a. Basically, unless somebody dies, no death penalty 4. Concurrence/Dissent: Majority went too far saying death penalty is always disproportionate for rape 5. Dissent: a. Majority understates the severity of rape (can it be worse than death?); b. it is not irrational to punish more severely than the crime itself (just not grossly) for deterrence; c. court can take into account Ds propensity for life-endangering behavior (aggravating factors) 6. Retributive v. Utilitarian: a. Retributive arguments cut both ways (how severe is rape?) b. Utilitarian arguments cut both ways: i. Prison didnt work and capital punishment would deter rape (pro-capital) ii. Capital punishment would encourage murder in rape

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crimes since there is nothing to lose and doesnt want witnesses (anti-capital) iii. Kennedy v. Louisiana: Coker extended to say death penalty is excessive for child-rape, if victim survives.

III. MODERN CRIMINAL STATUTORY LAW Legality principle: Notice Ex-post facto Due process(14th ) Void for vagueness: Legislative respoisibility/separation of powers Notice Lenity Q: What is the role of modern criminal statutes? Commonwealth v. Mochan State statute had grandfathered common law crimes Held: act outraged public decency, fitting the common law definition of a misdemeanor, and thus being a crime grandfathered by the statute; affirmed Is outrageous specific enough? Dissent: This was not a crime under common law, so the court just violated separation of powers and made law. even if the law can be said to be clear enough, legislative cannot delegate lawmaking to the courts on ad-hoc basis Lenity? Keeler Legality principles at work In re banks:

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Does statute take into account intent (what you want to do) or motive (why you want to do it)? secretly Does this unambiguously show a requirement of intent or motive? What if youre spying to help them; What if youre a PI? J. Slotin: Secretly is overinclusive female is underinclusive Presumption of constitutionality v. lenity principle void for vagueness, not for ambiguity If laws are too rigid, then IV. ELEMENTS OF CRIME: ACTUS REUS Q: What does it mean for an act to be voluntary? Q: Can an omission to act equal an act? Q: Do outcomes (e.g., social harm) matter? Actus Reus Conduct CrimesDUI (risk of harmful result) Result CrimesMurder (manifested harmful result) Both (address social harmsrisk or actual) Model penal code Voluntary act, Knowledge+Possession, Voluntary Omission Involuntary: Reflex, Spasm, Convulsion Sleepwalking Hypnosis Not the will of the actor, either conscious or habitual Omissions: Model Penal Code
(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.

Possession: Know or SHOULD have known Willful blindness Acts are more observable than thoughts; more than mere acts, but VOLUNTARY acts (hidden/embedded mens rea?yup, p. 131) LenityFavors D

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Utilitariancant deter involuntary acts RetributiveNo desert without free will

1. Martin v. State: Drunk guy arrested at home, forced into the public, now being charged with public intoxication. a. Held: Act must have been voluntary. D Aquitted. 2. State v. Utter: WWII vet stabs son who snuck up behind him. At trial, convicted of manslaughter. a. Conditioned response is mens rea or actus reus? Mens rea defenses had been rejected in precedent. i. A spasm is not an act; volition is part of the actus reus ii. The unconscious cannot commit culpable acts 1. However, if it is voluntarily induced unconsciousness (drugs), there is not a complete defense iii. Jxs are split in whether automatism (reflex) is a separate defense from insanity or a subspecies of insanity defense. Insanity is an affirmative defense, while automatism can be a separate defense that the actus reus element is missing. 1. Why might D prefer acquittal by automatism to acquittal by insanity? a. to avoid the social stigma of insanity b. wont have to go to a locked facility iv. General rule: i. One cannot willfully create a state (e.g., drunkenness) by which she engages in acts that are involuntary (or, at least, not fully voluntary) and be excused of her wrongful action committed during said state. Q: Is there really something wrong with punishing persons for their thoughts? Q: Suppose someone admitted to fully intending to murder the President? In fact, in his/her mind, a highly involved murder plan had been designed, with the intention of carrying it out? Minority Report 3. People v. Beardsley: Affair where mistress overdoses. a. Omission will only be considered a crime if i. statute designates it ii. there is a legal duty arising from a relationship (wife-husbands, parent-child) iii. Contractual duty of care for another iv. Voluntarily assumed care of the other (more narrow than civil negligence) b. In case where paramour overdoses, man is not guilty of manslaughter c. Prosecution argues that D created the risk, thus creating a legal duty: i. But D tried to help her by knocking pills out of her hand, leaving her with someone else, etc. 1. But he invited her over, got the alcohol, etc. Four reasons for not considering omissions acts: all of these are debatable 1. evidentiary concerns 2. line-drawing problems 3. bystanders often make matters worse 4. freedom issue: forcing action (forecloses every other option) is more restrictive than restricting a single act **Genovese Case: If more peopleless chance of help because each person expects the other to help instead. In this case, doesnt a person nearby who doesnt help reduce the chance of the victim being saved? 4. Barber v. Superior Court:

V. ELEMENTS OF CRIME: MENS REA

Crim Law Outline Old Malice v. New Malice U.S. v. Cordoba thought they had cocaine, but had heroin Rule: the act by itself does not suffice for guilt; mental state is required Regina v. Cunningham Malice requires actual intent to do the particular kind of harm or recklessness (awareness of substantial risk or particular kind of harm) Mens Rea: Proving Culpability 1. People v. Conley a. D swings a bottle at another guys head, missed and hits V. V is permanently disabled. b. Aggravated Battery* i. Intentional/Knowingly causes great bodily harm 1. Aggravating factor: greater harm a. must be INTENDED (transferred intent is allowed) i. Did Conley intend to inflict a permanent disability 1. Does prosecution have to prove intent specific to a certain kind of harm? a. Question of law b. Yes, but jury can infer based on circumstances; Remanded for jury 2. Is there enough evidence to support (1)? a. Question of fact (for the jury) b. Intent inferred from attendant circumstances i. words, weapon, force 3. Even if prosecution cannot get aggravated battery, it can impose the harshest penalty for ordinary battery c. Battery: Physical contact causing harm OR insult d. Should transfer of intent be allowed?: i. Utilitarian: yes, because intent is hard to discern; if there is no transfer of intent, the e. Broken window: No transfer of intent if harm is of a different category f. Killing the president: no transfer (specific intent) i. Specific intent v general intent 1. Must match a. Mary cannot get murder of president charge if she kills her husband instead b. If Mary kills Donny instead of Johnny, theyre both general murder, so it matches g. Murder & attempted murder for one act/crime? i. Murder is inclusive of attempted murder (both are general) 1. to avoid double-jeopardy-ish issues, only 1 is allowed h. If Tommy is the Prez? i. Yes, both can be charged 1. Attempt to kill is a diff crime (specific) 2. Murder is General Model Penal Code Approach: Pay attention to underlined words and key 1. Purpose v. Knowledge:

Crim Law Outline Purpose: Why did you engage in the conduct? To bring about the result. Ex: I shot the gun to kill the person; harm is the Conscious Object of the conduct o Ex: Im going to blow this building up w/ the conscious object of killing the night watchman. o Motive: Why did you want the outcome? Because the result does something for you. Ex: I wanted to kill the person to inherit their money. Knowledge: Practical Certainty that harm would result o Ex: Im going to blow this building up and I know that theres a night watchman there, and Im practically certain this will kill him. 2. Recklessness Awareness: Substantial risk that harm will result o Ex: Im going to blow this building up and Im aware that there is a substantial risk that somebody is in the building. 3. Negligence Unaware, but a reasonable person would have been aware of the substantial risk D must act grossly inadequate relative to the average reasonable person Average Reasonable Person Standard may be made more subjective by taking Ds circumstances into account Average reasonable battered woman makes no sense: o A battered woman is not reasonable o How can a jury understand how a battered woman thinks? Willful Blindness: Penal code: intentionally fail to be informed of knowledge that would make them liable, OR Some states: attempt to avoid liability by failing to be informed (MOTIVE) 1. State v. Nations a. Law required knowingly engaging in criminal conduct (hired 16 y/o stripper) b. Owner did not check the girls ID c. Held: This is not actual knowledge (practical certainty), but a high probability (substantial risk), the statute requires actual knowledge (practical certainty); D was reckless, but didnt have knowledge i. Court is not penalizing willful blindness ii. Does not penalizing willful blindness blur the line between practical certainty and substantial risk? 1. Willful blindness requires a choice (intent/motive) not to have actual knowledge/practical certainty 2. With recklessness, it is impossible for D to ever gain that knowledge iii. Does willful blindness transfer? Depends on which rule you use (is motive necessary? 2. Mr. Sleaze Hypo: a. Under Nations, he may be liable; however, it depends on what actual knowledge is (100% or 66%?) b. Under MPC, he will definitely be liable. 3. Drug trafficking Hypo: a. Does motive matter? i. Theory v. Pragmatism (Evidentiary problem); Utilitarian: dont distinguish (force people to find out) ii. Culpability; Retributivist: distinguish

4. Flores-Figueroa: a. Mexican used fake ID, including SS card with his name but others social sec. #. Convicted of 2 counts of aggravated ID theft. b. knowinglyof another person i. aggravated because he was Mexican c. D argues that he didnt know the SS# belonged to another individual i. Lower ct says it would be too easy to get off if knowledge required that D knew it belonged to another individual ii. HELD: Mens rea applies to every element of the crime 1. Ordinary grammar says so 2. especially the elements listed AFTER the mens rea 5. Revisit U.S. v Cordoba-Hincapie (strict liability): a. punitivemens rea required= about culpability/retributive b. public welfarenot required= about social welfare/utilitarian i. however, without intent, can there be deterrence? c. dont laws sometimes have mixed purposes? d. SL applies to mistake of fact cases 6. Model Penal Code Attacks Strict Liability: 7. Staples v U.S.: a. D had a semi-auto weapon, but it was modified to be automatic. It was the functional equivalent of an automatic weapon. He was convicted of violating a fed statute for automatic weapons. i. Did he need knowledge that it was modified in order to be charged? b. Court says yes; this is punitive and takes away freedom (think of lenity and due processpresumption of constitutionality); default rule implies mens rea c. Look at common law, impute mens rea if common law requires it i. but does this obfuscate the separation of powers? d. Dissent: SL applies to dangerous: expressio unius, machine guns are not regulated by the common lawthey are regulated by statute in light of public welfare concerns. 8. People v Navarro: D took wooden beams from construction site, but said he thought they were abandoned. a. Does D require a reasonable good-faith belief OR any good-faith belief to be acquitted? i. App Ct said that good-faith belief does not have to be reasonable to be acquitted. ii. one cannot *negligently steal 1. intent is required for stealing b. Good-faith mistake of fact is a defense to specific intent crimes i. specific intent (like malice distinction) ii. Negligence as moral culpability v. matching (moral v legal?) c. why doesnt reasonableness cut against good-faith? i. in the modern, narrow view, mens rea has to match exactly (elemental) ii. reasonableness goes to negligence, not intent iii. is court dissent looking to willful blindness? 1. willful blindness requires intent 2. this is the distinction between mistake of fact and willful blindness; willful blindness is not about intent (higher mens rea), its about (knowledge) iv. it could be submitted to the jury, whether it was a good faith belief 9. People v Marrero (mistake of law) a. law said state prison or of any penal correction institution i. federal corrections officer suing

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Crim Law Outline b. held: ignorance (mistake) of the law is no excuse, unless the mistaken belief is based on an official statement of the law; i. this law is about public welfare, not punishment, so the mens rea is not required (like SL) 1. utilitarian (future looking/social net gain) a. retributive arguments go against this (wrongfully punishing the non-culpable) i. retributive can be consistent w/ utilitarian justification in special situations (intent/blame proven/willful blindness) ii. Dissent: 1. retributive: there are too many laws now and this punishes those who arent culpable 2. *no void for vagueness; this isnt vague, its ambiguous a. or breaks the modification b. why not lenity? i. utilitarian goals trumped the competing goals of lenity ii. they make an example of him, but can be lenient at sentencing iii. Did he really rely on the statute, or on somebody elses statement? 1. Should good-faith reliance be enough? a. reasonable reliance (higher than good faith)? 10. Reasonable Reliance: a. Official statement: i. If a police officer gives you permission 1. some jx require written a. treated like excuse, not justification CAUSATION 1. Actual; But for causecommon law/model penal code a. multiple actual causes: any wrongdoer can be liable b. **substantial factor test: when but for fails c. acceleration i. but for act of D, would not have occurred so early ii. Oxendine: couldnt be proven that Oxendine was an accelerating cause (overturned jury verdict for manslaughter) 1. beyond a reasonable medical certainty (1/3 experts isnt enough) a. Doctors are reasonable, so if ANY doctor has a reasonable doubt, no rational/reasonable trier of fact can find manslaughter 2. why isnt this left to the jury? a. No reasonable jury could find D guilty of manslaughter based on the evidence, but could find assaultsee above b. Emotional case iii. Tyree was found to have been the actual and proximate cause, but Oxendine is still in court because prosecution was looking for multiple causes 1. Time is of the essence; but for Ds action would V have died when V died 2. Why did Tyree bring an expert to try to prove acceleration? iv. What was the abandoned theory of causation? 1. substantial factor a. She could say Oxendines acts were a superceding cause

Crim Law Outline v. FONTAINE: An omission counts as an act when you have a duty to act and dont, so I would have argued that D violated a parental duty in refusing to take the boy to the hospital d. concurrent causes: e. obstructed cause: 2. Proximate (legal) cause: a. Intervening cause: b. Intervening is broad category; all super. cause are intervening, but only some intervening are superceding i. Responsive: foreseeable not a superceding cause ii. Coincidence: not foreseeablesuperceding iii. Free, Deliberate, Informed: not duress/unsound mind iv. Apparent Safety c. Omission will rarely be a superceding cause d. Model Penal Code: i. to find D liable, harm must not be too remote or accidental in its occurrence from that which was designed, contemplated, or risked ii. MPC issue is not proximate cause per se, but whether D had the correct mens rea required by the definition iii. Proximate cause is a higher standard than MPC standard (in most cases) 1. Ex: a. MPC: Was harm too far removed from the foreseeable risk? (need not be foreseeable, but close to it) i. adds an extra degree of separation b. Prox. Cause: Was harm foreseeable? (must be foreseeable) iv. Apparent AND safety e. Rideout: i. 6 Dressler factors ii. Court viewed Vs action as independent 1. free deliberate 2. apparent safety 3. Overturned on further appeal 4. 3 factors most relevant a. Apparent safety b. Free and Deliberate c. Foreseeability iii. Preslar: 1. wife freezes to death 2. Free choice? Maybe not, she may have been depressed, etc. 3. Apparent safety? iv. Velazquez: 1. Was there even actual cause? a. yes, but its weak (you can use the same reasoning and say Ds parents are actual cause for giving birth to him) 2. Rideout v. Velasquez a. rideout: uses factors b. velasquez: policy c. Fontaine: Use factors, then address policy to make exception; Velasquez messed up 3. Policy a. no retribution nor utilitarian justification

Crim Law Outline i. Fennel: Punishment must fit the crime; He did violate drag racing laws ii. Agree + Me: leave civil law to allow proximate cause and provide deterrence/insurance policy for society 4. What if V dies during drag race? a. shouldnt matter; V is superceding 5. What if V is 3rd party? D still liable? a. v still superceding v. Megan Meier Suicide: 1. PC? a. foreseeable; not free, deliberate, informed b. Would a reasonable person foresee this harm? i. Today, probably: psychological studies and publicized bullying related suicides ii. but 20 years ago, maybe not 3. Concurrence of the elements a. State v. Rose: Guy runs V over and drives off with him under the car; D abandons car and body is found under car; D charged with manslaughter and leaving scene of crime i. Held: D acquitted of manslaughter because, if V died instantly, (Reasonable hypothesis of innocence: it may have been Vs own fault)D was not negligent at the time he hit V; however, D was guilty of leaving the scene of an accident ii. No reasonable jury could conclude that the facts are inconsistent with any reasonable hypothesis of innocence. No evidence of neg. on striking, so state would have to prove V was alive when D drove away. Negligent act was possibly after death, so there was no concurrence of the elements. b. Fagan v. Commissioner of Metro Police: i. Omission = Act, then there is a concurrence ii. If Omission is not an Act, then no concurrence iii. Held: There was a continuing act of staying on the foot, so there was a concurrence because mens rea formed after initiation of act, but still during the act. Criminal Homicide: . Murder - "the killing of a human being by another human being with malice aforethought" - Malice: Intent to kill Intent to inflict grievous bodily injury to another. An extremely reckless disregard for the value of human life; or The intention to commit a felon during the commission or attempted commission which a death results (felony murder rule). Even if you just drive the getaway car, you can be charged with first degree murder Retributive: Outcomes matter (social harm); however, murder 1 punishment for lesser blameworthiness is only accomplished by Utilitarian justification: deter felonies (which carry high risk of death); this is like recklessness applied to murder Should it be 2nd degree murder instead? 1. Murder 1: willful, deliberate, premeditated a. Premeditated: Any interval of time between the forming of the intent to kill and the execution of that intent, which is of sufficient duration for the accused to be fully

2.

3. 4. 5.

Crim Law Outline conscious of what he intended, is sufficient to support a conviction for first degree murder. Murder 2: not premeditated, but intentional a. Default b. Malice : i. Can be implied if: (1) a person intends to cause grievous bodily injury to another, but results in death, (2) if a person's conduct manifests an extreme indifference to the value of human life (depraved-heart). 1. A person kills "recklessly" if she consciously disregards a substantial and unjustifiable risk to human life. a. When a person should be, but is not, aware that her conduct is very risky - the risk taking is inadvertent - her behavior may justify the appellation of "criminal negligence", and constitutes involuntary manslaughter. Voluntary Manslaughter: provoked, intentional homicide Involuntary Manslaughter: not intentional, just reckless Vehicular homicide: negligence

Manslaughter - Is "an unlawful killing of a human being by another human being without malice aforethought" o voluntarypassion, etc. o Involuntarydeath during unlawful act (or unlawful manner of a lawful act), not a felony (this would be felony murder) MPC Homicide encompasses and combines the degrees of murder into one category: One is guilty of MPC criminal homicide if she unjustifiably and inexcusably takes the life of another human being purposely, knowingly, recklessly, or negligently. Unlike the common law, the death need not occur within a year and a day of the homicidal act. Murder, manslaughter, negligent homicide Even CL jx use MPC mens rea to distinguish levels of homicide

Deliberation-premeditation formula: Worley: premeditation is more than deliberation; it is forming the plan Guthrie: Trial ct equated willful, deliberate, premeditated to intentional and said it can be instantaneous; App ct says there must be some period between the intent and the actual killing; this time needs to be enough for the accused to be fully conscious of what he intended; formation of a plan or design o Implies consciousness and rationality o depends on minds, temperament, circumstances o Why use all 3 terms: they build upon each otheremphasizes time lapse this is confusing for juries o If he has these psychological issues, is he capable of consciously formulating a plan of destruction? o Should this be voluntary manslaughter? (heat of passion/provocation)

Crim Law Outline Lesser included offenses: gambleif D thinks D can get off on highest charge, D prefers not to have lesser defenses included; If D is scared of getting highest charge, D may ask for lesser offenses; cannot be found guilty of higher offense than charged with 1. Midgett v. State: Is this premeditated? a. Majority: not enough evidence for reasonable jury to find appropriate mens rea i. convicting is just revenge ii. previous beatings are not evidence of intent in this jx 1. in a felony-murder jx, this could be murder 1 2. in an extreme indifference jx, this could be murder 1 a. Ark amended code to allow murder 1 for extreme indifference if knowingly causing harm to under 14 i. why under 14? because at that age kids can start defending/escaping; political/emotional b. Dissent: a reasonable jury could have found appropriate mens rea i. previous beatings are evidence of intent to kill 2. Common law Heat of Passion partial defense (part justification and part excuse): a. acted in heat of passion at the moment of homicide (angry when killing) i. passion=anger b. adequate provocationreasonable person standard; (The anger is not by reasonable standard, just the provocation) i. sometimes statutes can set standard ii. What if D misconstrues the social event to be provocative (but its not)? 1. Is it reasonable? Need not be accurate, all comes down to reasonableness. iii. words are not enough (insults not enough) 1. UNLESS, informational (I just killed/raped/slept with your daughter or wife) c. no opportunity to cool off (provocation and killing must be proximate) i. some jx are moving away from this req d. Causal link (presumed); sometimes listed as D must demonstrate he did not cool off i. social event ii. interpreted by TARP as provocation iii. creates an emotional disturbance in the D (subjective) iv. causes D to murder 1. substitute victim hypo; read fontaine articles Girouard: o Wife insults husband and informs him that she reported him to court martial. She also asks him if he will hit her (taunting) and hits him. D goes and gets a knife and hides it under the pillow. She continues to insult him until he lunges at her and stabs her 19 times. o Heat of passion defense? Words enough? Held: Words are not enough. Old law had few non-physical adequate provocations(threats, wife cheating) Should this go to the jury? o Theories of punishment: isnt what actually happened (effect on D) whats important? (for deterrence and culpability) Some feel that some provocations are really bad (they call it provocation defense instead of heat of passion) (experiential; also only some provocations are serious enough) o Cooldown? He walked away and came back, but she also continued to insult him (renewing anger; new provocation). stabbed 19 times:

Crim Law Outline Time enough to cool down o but shows how disturbed/enraged he was Suicide attempt and calling police: shows that he would not have done it if he was of sound mind at the time Jersey v. Holley: o V and D argued, V told him she cheated on him. D says he picked up an axe to go outside and chop wood, but then she said, you dont have the guts. D struck her 7-8 times with the axe. Homicide Act says words, acts, words & acts are enough Factually (subjective), was their serious provocation? Objectively, was there provocation? I cheated on you or you dont have the guts? o Cool off period can be an instant, then you dont have the guts isnt provocative enough. o OR he still hadnt cooled off 3. Diminished capacity v. Heat of passion a. applies to more than just murder b. partial excuse/ partial version of insanity c. about showing that D was not of sound mind (not a reasonable person), rather than the provocation (by TARP) d. If jx has heat of passion AND diminished capacity defenses, heat of passion should be read narrowly/objectively i. if there is only heat of passion, it may be unfair to hold a D to reasonable person standard if they have mental problems 4. MPC manslaughter: Extreme emotional disturbance a. A person is guilty of manslaughter under the MPC if she: (1) recklessly kills another; or (2) kills another person under circumstances that would ordinarily constitute murder, but which homicide is committed as the result of "extreme mental or emotional disturbance" for which there is a "reasonable explanation or excuse." i. Reasonableness of explanation or excuse is from Ds point of viewso its actually subjective b. much broader than heat of passion i. Combines heat of passion and diminished capacity (adds diminished capacity to heat of passion) ii. allows words in more cases iii. EMED applies to more offenses than just murder (c.f. heat of passion) c. Difference from Common Law Heat of Passion i. A specific act is not required to trigger the EMED defense. ii. It need not involve an injury, affront, or other provocative act perpetrated upon the defendant by the decedent. iii. It need not fall within any fixed category of provocations; and contrary to the common law, words alone can warrant a manslaughter instruction. iv. There is no rigid cooling-off rule. 1. makes sense because science shows us that people dont cool down easily 5. Some defenses can be construed as either or both justifications and excuses a. Excuses focus on Ds diminished capacity (internal circumstances) (subjective); D didnt have the right b. Justifications focus on external circumstances (objective); D had the right c. Affirmative defenses are mostly about intent: I did it, but i. however TARP plays a role in fulfilling some elements of affirmative defensesboth excuses and justifications

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Self-defense: Like heat of passion, D can misunderstand the threat, so long as it is reasonable Peterson: Windshield wipers being stolen from D. D gets gun. V gets wrench in response. Wrench v. shotgun, guess who wins. o Held: (1)If you start it, you cant use self-defense. (2) D had a duty to retreat, because it was not in his house (and also, he provoked it). but who really started it? They were on his property, stealing, so D may have felt in danger (but reasonably?). Court feels that stealing windshield wipers is not a reasonable threat to Ds life.

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II.

Defenses A. Self Defense 1. Vocab: Imminence; Deadly force; Duty to retreat 2. Rule Common Law Rule: Restatement: Model Code: Justified if he believes such force is immediately necessary to protect himself against unlawful force Technically, it is subjective, no TARP req Most impute TARP Some impute TARP in the necessary Dissenting Rules: Policy:

Crim Law Outline Stand your ground: freedom > life (kill people who take away your rights) Retreat: Are people able to do cost-benefit analysis when they feel their lives are threatened? Behavior incentives: if we allow people to use deadly force instead of retreating, some people kill when they dont have to; If we dont allow killing, then criminals can be worry free.

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Analysis Reasoning by Analogy: hypo with cheating wife and V pulls out knife, D shoots in self defense. If sleeping w/ wife is adequate provocation, he created the emergency Factor Balancing: freedom v. life; safety from escape v. safety from deadly force Judicial Tests: Policy Arguments: Case Summaries Goetz: Ct. uses flexible TARP: put TARP into Ds shoes (w/ Ds experiences). C.f. Holley. Also, jury fell for rapid-fire defense. NOT TYPICAL SELFDEFENSE. Norman: Battered woman; constant imminence? (threat is always imminent). Lower appeals court said a reasonable jury could find self defense (including imminence); Sup. Ct. said there was no imminence, so no reasonable jury could have found self-defense (WHY IS THE CT. DECIDING FACT???). If she knows he will kill her when he wakes up, is it imminent? Court doesnt want to justify shooting someone in the back of the head. Are the courts arguing over Subjective TARP v. Objective TARP? I. The avg. battered woman would have found imminence (lower ct.) II. Avg. reasonable person doesnt see this as imminent. I. She could have divorced him, etc. III. If self-defense was an excuse, what happens? I. Diminished capacity? II. BATTERED WOMAN MAKES MORE SENSE AS AN EXCUSE, BUT FEMINISTS DONT LIKE THIS IDEA BECAUSE IT CALLS THE WOMAN CRAZY I. Imminence must be changed or removed, or must be gauged from a subjective TARP II. Constant state of imminence can make this happen. IV. Heat of passion? I. Common law has same problem as imminence: cooldown period, etc. II. MPC would probably work. V. She got voluntary manslaughter instead of murder, then was pardoned. I. Maybe imperfect self-defense II. Jury did what they wanted (like partial jury nullification) I. This is how heat of passion came to exist

Crim Law Outline 5. Necessity: Nelson v. State: Ds car is stuck in swamp. D takes several trucks to try to remove his car and gets them stuck . Harm Caused > Harm Avoided Stupid RAISE JUSTIFICATION FIRST! Duress: threat of death/GBH reasonable belief threat will be carried out no opportunity to escape the harm Reasonable firmness Insanity: McNaughten (cognitive) (majority for common law) too narrow Irresistable Impulse (volitional) too broad Causal/Product test (although implied from McNaughten) How can this proven? Only experts can decidejury is usurped MPC: Cognitive Volitional Causal Insanity v. Diminished capacity: You can be mentally ill, but not insane Diminished capacity does not rise to insanity (insanity is like saying Fully Depleted Capacity) If insane, you must be mentally ill Insanity encompasses diminished capacity

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MC Examples: o Read carefully and it will be easy Short Essay: o Agree/Disagree with case? o Why? Aggravating/Mitigating factors Proportionality of punishment; 8th amendment o Coker factors Principles of Punishment, etc. o (Retribution v. Utilitarianism) & Policies Pro-Case Anti-Case Argue slippery slopes, bright line rules, jury role, etc. Utilitarian: promotes vigilantism and disrespect of law Long Essay (Hypo): o Flag EVERY FACT! After outlining issues, apply facts to each eliment o Defend a side. o Main Issues: Crimes she can be charged for:

Murder Manslaughter Nothing Defenses: Main defenses: S-D, Insanity, Heat of Passion o Criteria for defenses o Go for full defense first Go full justification before full excuse Go for full excuse before partial justification Go for partial justification before partial excuse BE CAREFUL WITH CONTRADICTING WHEN RAISING DEFENSES but mention why youre not raising a defense if you omit it strategically. Squib defenses: battered-woman, diminished capacity, partial excuse o Mention that they may/may not apply Justifications for defenses: Principles of punishment o Was sentence too harsh? 8th amendment?

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