I.

CRIMINAL LAW STANDARD AND BURDEN OF PROOF The Winship Standard: Beyond a Reasonable Doubt Where it comes from: not in the Constitution, or necessarily in common law. Kind of fudged. Why do we use it: Blackstone says its better to let ten guilty men go than imprison one innocent guy. 1. conviction involves loss of liberty: more serious. 2. conviction attaches social stigma 3. we need to breed respect for the law What does it mean? How do courts define it? Courts have struck down all attempts to quantify. Some refuse to define it altogether. For jurisdictions that do, however, the CA/MA Webster definition is most popular: an abiding conviction to a moral certainty. II. WHY PUNISH? A) Retributive Theory: Just Deserts. Why? i) Kants Categorical Imperative: treat others as a means to an end, and we dehumanize ourselves. If we are all to be treated as an ends, we must treat everyone in the same way. You get what you deserve. ii) Hegelian Annulment: Criminality imposes a stain, and society must punish to remove it, otherwise we are implicit in it. iii) Debt Retributivism: Criminal has a debt to pay to society, and will repay through being punished. An evening-out of advantages and disadvantages. iv) Denunciation/Collective Outrage: we have social need to collectively denounce. (is this really utilitarian, however?) B) Utilitarian Theory Concerns i) General Deterrence ii) Specific Deterrence iii) Tension of norm-nurturing iii) Respect for the Rule of Law iv) Over deterrence C) Rehabilitation Theory D) Mixed Theory Variations: i) Punishment requires both retributive AND utilitarian reasons ii) Whether to punish: R, but how much to punish, U iii) Whether to punish: R AND U, but how much to punish, U (MPC, 102) Three main prongs of CJ system: 1. Legality (fair notice) 2. Culpability (Morally culpable mind, act, and result, when result is element) 3. Proportionality (just deserts) III. THE PRINCIPLE OF LEGALITY nulla poena sine lege (no punishment without the law)

Why? fair warning issue, and want to control discretion of prosecutors, judges and juries. Four iterations of this principle: A) No vague criminal statutes o Its a fair notice issue. If we cant understand it, we cant be on notice. o SJC Morales case: no loitering with gang members, need to disperse. o But not a clear test. Could go either way. o Factors to consider when determining if vagueness is unconstitutional: 1. Does the vagueness threaten a constitutionally protected interest? (assembly, speech) 2. Versus..How great is the public danger sought to be prevented? 3. Could the legislature have been more clear without too much trouble? B) No ex post facto laws (says Article I, 9-10 of Constitution) o Applies to both the crime and the possible punishment thereof o Its a fair notice issue. o But theres a tension here: we are based on common law, whose courts defined those crimes. Most US jurisdictions refuse to let courts create new crimes. Few of them allow it, and then usually only misdemeanors. C) No retroactive judicial enforcement of crimes (equivalent to ex post facto) Also a fair notice issue However, what if courts interpret an existing criminal statute in a way which enlarges the crime? Okay, but only apply it prospectively. If its retroactive, it violates fair notice. Nuance: Bouie Decision (SJC, 1964) decided conservatively: retroactive judicial enlargement is ex post facto. SJC retreated from Bouie, however, in Rogers (2001) because apparently they only think it should apply where retroactive judicial enlargement by interpretation would be unforeseeable. Look at: common sense, legislative intent, surrounding circumstances. This is related to rule of lenity. D) Rule of Lenity The loose approach: just take the narrowest possible meaning & give D the benefit of the doubt. (McBoyle) The strict approach (Dauray): will only apply rule of Lenity when you have two equally plausible interpretations. Dont automatically take the narrower of the two. And to consider which is more plausible, go through rules of statutory interpretation: 1. Plain meaning 2. Canons of Construction Lists and associated terms: o Noscitur a sociis: meaning may be determined by reference to their relationship with other associated words or phrases o Ejusdem generis: when general terms follow a list, they should be construed to complete that class/list.

 Statutory Structure Statutory amendment Avoiding absurdity 3. Legislative history IV. REQUIREMENTS FOR CRIMINAL CULPABILITY A) ACTUS REUS i) Voluntary Acts Why is the voluntary act (versus wicked thoughts) so important? o U: otherwise theres nothing to deter, and breeds disrespect for law. Plus, you cant enforce punishing thoughts. o R: if theres no choice, theres no blameworthiness o Cogitationis poenam nemo patitur: no one is punishable solely for his thoughts. Every material act in the crime has to be voluntary: Martin v. State But what is voluntary? MPC: defines what is NOT voluntary: o Reflex, hypnosis, unconsciousness, sleep, any bodily movement which is otherwise not product of own effort or determination o But habitual actions ARE voluntary o Prosecutor has burden of proof under MPC to show that it was a voluntary act. But not all jurisdictions follow MPC on this point: CA: Newton case: unconsciousness, when not self-induced, is not voluntary (MPC does not make that distinction) Most states dont think hypnosis should be an excuse Sleepwalking is also considered, under MPC and common law, as an excuse (Cogdon case) Intoxication is not an excuse, under either. But important qualifier is that at common law, the actus reus must coincide with the mens rea. And crimes have been defined in ways which make that happen: passing out at wheel and veering into another car is not voluntary. But choosing to get into a car drunk is voluntary. Thats your voluntary act, simultaneously with a mens rea. Rest is left to causation. ii) Omissions ABSENT A LEGAL DUTY TO ASSIST, OMMISSION IS NOT AN ACTUS REUS. Step one: Is there a legal duty? Sources of duty: 1. Statute (Good Samaritan laws) Variation #1: Duty to REPORT SD and OHL any felony = duty to report WA: violent felonies

MA: only rape & murder Variation #2: Duty to ASSIST VT is broadest: must aid to the extent that you can without endangering yourself or interfering with important duties owed to others, giving reasonable assistance to anyone exposed to grave physical harm FL, HI, WI: Much narrower: only victims of crime, or sexual crime only. However, must also consider that the fines are extremely low, and prosecutorial discretion means that they are not prosecuted most of the time. 2. Status: husband/wife, parent/minor child (but not child/parent) master/servant, landlord/tenant) Otherwise, no criminal omission: Pope case. 3. Contractual 4. Undertake to aid and segregate, thereby preventing further aid 5. Creation of the Peril (Levesque) o This is newest, most controversial source. Not all jurisdictions have adopted it, first of all. And for those that have, question is whether its limited to intentional or negligent risk-creation, or extends to innocent risk creation as well. Step Two: Were they freely able to discharge that duty? Step Three: Did the omission CAUSE the harm in question?

B) MENS REA i) Generally Mens rea is specific to the crime/act. There is no mens rea in the air. o See Regina v. Cunningham (the gas meter) That means that transferred intent, in criminal law, does not transfer across crimes, with limited exceptions (FM rule) But it does transfer across people (mens rea follows the bullet), and only limitation is that there is one intent to distribute. MPC approach has been highly influential. Has advantage of simplicity. o 4 mens reas: 1. Purposefully a. Result: you intend, conscious object to produce b. Act or attendant circumstances: you know OR hope they exist 2. Knowingly a. Result: aware it is practically certain to result b. Act or attendant circumstances, you KNOW. 3. Recklessly a. All the same: consciously disregard S & UJ Risk

4. Negligently a. All the same: gross deviation o Rule that you default to recklessness if no mens rea state, unless contrary purpose plainly appears 2.02 (3) o Rule that you apply the stated mens rea to all material elements of the crime, unless a contrary purpose plainly appears. 2.02(4) How to determine if element is material? Ask, is it connected to the harm sought to be prevented? If its not, it could be interpreted as just jurisdictional o Rule that the practical certainty doctrine (from common law) only applies to knowingly, not purposefully. (you can infer that people intend the natural practically certain results of their actions) o Rule that a higher mens rea always satisfies a lower mens rea (only matters in those hoping scenariosI hope her plane will crash) 2.02(6)(d) o Rule that you only apply common law doctrine of practical certainty to the mens rea of knowingly, not purposefully like before. Conditional Purpose: applies to specific intent/further intent crimes. (Assault with intent to kill, larceny, stealing with intent to permanently deprive). You conditional purpose satisfies intent (purposefully) UNLESS the condition would negate the crime itself. o Ex: you rob someone at gunpoint, tell them give me 5k or Ill kill you, your conditional intent satisfies the mens rea. However, if you go over to your buddys house, take a box of CDs you think belong to you, but dont sort through, and say, Ill look thru these at home and if I find any that are his, Ill return them. That will negate the evil mens rea. The Recklessness question: is the standard objective or subjective? Consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. o Does he have only consciously subjectively disregard the risk? Or does he also have to be subjectively aware that the risk is substantial and unjustifiable? We dont really know. o Most jurisdictions have taken approach that he must be aware of a risk which the jury finds to be substantial and unjustified. The Negligence issue: o MPC makes choice to not allow civil negligence to form basis of criminal liability. Most states are also conservative in interpreting negligence in statutes conservatively, requiring criminal negligence: a gross deviation from the standard of care that a reasonable person would have observed in actors situation. But some states have allowed civil negligence standards for certain statutes: Alaska in the Valdez oil spill: Justified by utilitarian arguments Negligence, rather than gross negligence, is sufficient to provide assurance that

criminal penalties will be imposed only when the conduct at issue is something society can reasonably expect to deter. A policy argument. Retributivists have big problems with this: a simple mistake? Willful Blindness: Distinguishing Knowingly from Recklessly o What if drug mules specifically avoid knowing that they are carrying drugs to avoid criminal liability? If the statute says knowingly, and they dont actually know? o Practical certainty rule only applies to the RESULT of actions, not attendant circumstances. o Most American jurisdictions follow dissent in Jewell, which requires 1. subjectively aware of a high probability of the illegal conduct and 2. purposefully contriving to avoid learning of illegal conduct. o MPC takes a looser, high probability approach: when knowledge of existence of a fact is an element, such knowledge is established if person is aware of a high probability of its existence, unless he believes it doesnt actually exist. ii) Mistake of Fact and Strict liability Not a true defense: its a failure to prove mens rea MPC takes simple, streamlined approach in 2.04: o 1. If trier of fact finds that MoF defeats mens rea required for any element of the crime, you cannot be convicted of that crime. MPC 2.02 has principles of statutory construction to figure out what mens rea applies to the elements of the crime. o 2. However, when even considering that mistake, you would be committing a crime, you can be convicted of a lower crime. Strange and varied common law doctrines: Not all states follow MPC: o Many first look at legislative intent. But if you cant discern, might use common law tests: o Many jurisdictions only allow MoF if reasonable In MPC, however, reasonable only matters if mens rea is negligence Indeed, making MoF turn on reasonableness is essentially creating a negligence standard. o Others make distinction b/t specific and further intent crimes Allow MoF for further intent, but not for general intent, or not unless its reasonable. o And still others say that even if it is a reasonable mistake, they dont allow it if either The act without the mistake is still a lesser moral wrong Regina v. Prince (carrying off a girl under 16) The act without the mistake is still a lesser crime Many states now require a lesser crime, cant just have lesser moral wrong (b/c of legality)

Statutory Rape: The exception to modern Mistake of Fact Doctrine o MPC insists you need to have SOME mens rea, even if only recklessly And Yet, contradicts itself in 213.6: says that when the crime turns on child being under 10, NO MISTAKE ALLOWED. And child over age of 10, only mistake if you can prove by preponderance of evidence, D, that it was both honest and reasonable o But many jurisdictions have statutory rape laws, exceptions to mistake of fact doctrine: really impose something close to strict liability for the age element. Public policy reasons. Continue to follow Prince doctrine. o However, emerging approach in many states (at least 20) is to increasingly allow MoF Defenses for statutory rape, in certain circumstances. Some require both subjective mistake and reasonable mistake Some just require honest subjective mistake A few say you can only get mistake instruction if age differential is close. AK is only state to say that Strict Liability is unconstitutional. o Two recent developments to further challenge constitutionality of strict liability statutory rape laws: 1. Lawrence v. Texas: SJC says that you CANNOT punish sex between two consenting adults (which would basically mean that they HAVE to allow mistake of fact doctrine in some form??) 2. Minimum mandatories and Sex offender registries. Think Doe v. Attorney General, MA 1997 Strict Liability Crimes o Even more extreme than lesser crime reasons for denying mistake of fact defense: dont allow it in any circumstances, even if there is no lesser crime! o MPC doesnt like SL, and so in 2.05(2), requires that if it is to apply, it can only apply to violations (not involving prison time or death) o But not all states follow this MPC rule, and allow SL for certain crimes which involve jailtime! Why? Utilitarian arguments: public policy, social harm, malum prohibite. Need this to make regulations work, and this guy is in best position to prevent the harm. Also, wont be effective unless we attach a criminal stigma. So usually, SL only used for malum prohibite crimes (not malum in se) This makes absolutely no sense from a retributivist perspective, but more sense from a utilitarian perspective.

o What about the tension surrounding the default to reckless rule unless a contrary purpose appears? Can court read in a legislative intent to impose strict liability? MPC doesnt think so: it has to plainly appear But many state courts dont agree. They consider: Staples Factors Malum in se or malum prohibite? Level of penalty: is jail a possibility? Social stigma attached Whether they are otherwise innocentis the baseline activity protected (think guns). Thomas added this as fourth. This sounds like first consideration: malum prohibite or malum in se. So is the question really is it constitutionally protected? or should we focus on broad range of activities. If its expansive. Vicarious Liability Crimes o Even more extreme: really doesnt happen in criminal law o Guminga Case: MN Court says its unconstitutional. Goes too far o This level of intrusion of personal liberty is not outweighed by the public policy, especially where there are other means of achieving the end. iii) Mistake of Law Never a Defense (Ignorantia legis neminem excusat) MPC agrees: 2.02(9) EXCEPT: 1. when statute requires actual knowledge of law: MPC 2.04(b) Treated just like mistake of fact o Cheek (tax evasion, knowledge of legal duty is element) 2. estoppel (relying on official government statement) MPC 2.04(3) allows two situations: o The law has been passed but not yet published o Reasonable reliance on official statement of the law, afterward determined to be invalid or erroneous, in A statute or enactment And apparently, per Marrero, a standing ambiguous statute cannot be such a statement, when it has not been determined erroneous. A judicial decision, judgement, opinion But REASONABLE reliance! Some courts said not reasonable to rely on controversial opinions Administrative order or grant of permission (permit) Official interpretation by officer or body charged with enforcing the law.

When estoppel is used, its a true defense and must prove by preponderance of evidence. 3. Other law mistake: a doctrine in flux. Look at MPC 2.04 (1) If a criminal statute relies on a term, which is, unbeknownst to violator, defined not in that criminal statute but in another criminal/civil statute, you can claim other law mistake. o Usually, attendant circumstance is embedded in a crime, and another law defines particulars of that attendant circumstance Some jurisdictions have applied it only to specific intent crimes Some other jurisdictions use it ONLY when the definition is in civil code, and not criminal penal code. And if the criminal statute points you to the relevant provision, the mistake usually doesnt apply. The Lambert Exception (SJC_ Confluence of 3 factors required: When its a non-feasance crime (omission) When its based on her mere STATUS of being somewhere Nothing to make her think she should register, not malum in se But MPC did not adopt this. Also, some states have become more lenient on mistake of law: See California proposals: If a persons mistaken belief is due to ignorance of the existence of the law, and he exercised due care (reasonable person), then thats a defense. If a persons mistake is due to a reasonable misconception of the meaning or application of the law defining the crime to his conduct, and he either Acts in official reliance upon official statement of law (estoppel) Or otherwise diligently pursues all means available to him to ascertain the law and concludes in good faith that his conduct is not a crime in circumstances which a law-abiding and reasonable person would do the same. (Cheek, Marrero) This has been adopted in DE, NJ.

C) SIGNIFICANCE OF RESULTING HARM (when result is an element) i) Causation But-For Causation: Usually never a problem except for omission cases Proximate Causation: Usually only two situations: o 1. Murder, first prong malice: he doesnt die in way you thought he was going to die. o 2. Manslaughter, where mens rea is recklessness. What if the risk you are aware of is not the risk which actually causes the death?

o What test do we use? Proximate cause is policy decision. Possible approaches: Foreseeability (MA) Sufficiently Direct (NY) Zone of Danger (Acosta helicopter dissent) Excluding Highly unusual results (CA) Same type of injury and not too remote or accidental to have bearing on culpability (MPC) o But those are just a bunch of words saying the same thing. o Common law doctrines of causation: Novus actus interveniens Cambell case, suicide Vulnerable victim (egg shell skull) For recklessness, means that awareness of any risk is enough. The brain swelling case. MPC shies away from this rule, talks about result. Concurrent Sufficient Causes Both can be convicted (exception to the but for causation rule) Intervening Causes Not a result of novus actus interveniens (involuntary) Ask: was that intervening cause dependent or independent of the first cause? o If dependent: theyre going to be quite loose with proximate causation. Just foreseeable. o If independent: stricter with proximate cause. For medical negligence, mere negligence is usually dependent. But gross negligence is independent. ii) Attempts Mens Rea: in order to be convicted of an attempt, you need actual intent (purposeful) even when completed crime itself requires a lesser mens rea. o MPC 5.01: when causing a result is an element of the crime, you need to have the purpose of causing that result. Purposefully o Captures common law notion that you need an intent to do the crime to be guilty of an attempt. o Yin Yang between actus reus and mens rea. o So you cant get attempted murder on a 2nd or 3rd prong malice theory, for example. Two Types of Attempt: o Imperfect Attempts (easy to prosecute, you just have bad aim) o Incomplete Attempts: more difficult to prosecute. Where to draw line? For incomplete attempts, where to draw the line? o 1. Last step/Eagleton Rule (abandoned) o 2. Dangerous Proximity (objective)

Rule of thumb: look for apprehension, either in victim or general public. NY, FL, MA When this falls short, alternative is to make a separate crime (soliciting minors, i.e.) o 3. Unequivocality Test: subjective How clearly do your actions bespeak your intent? CA/Wisc/AL But most states following this rule reject subsequent confessions as evidence that can contribute. o 4. MPC blend of objective and subjective Requires both substantial step and that the substantial step be strongly corroborative of actors purpose. Gives list of things that shall automatically be considered substantial steps, but not limited to that list. Then its a jury question whether or not it was strongly corroborative. Solicitation o At common law, was not enough for attempt o Many states have enacted solicitation statutes, making it a separate crime. o But when can solicitation be enough for an attempt? More modern view is that it has to be accompanied by something more, akin to a substantial step, to be qualified as an attempt. MPCs Complicity as an independent Attempt: o An exception to the substantial step requirement: MPC 5.01 (3) says that if you assist someone thinking youre helping them to commit a crime, and that assistance would be sufficient for accomplice liability under 2.06, youre guilty of your own attempt EVEN IF CRIME ISNT COMMITTED! Abandonment/Renunciation o Its a true defense, MPC says D needs to prove Complete and voluntary renunciation of criminal purpose And not voluntary if motivated by a change in circumstances outside actors control which make it less attractive to commit the crime. (what do we do about rapists talked out of doing the crime by victims?) Impossibility o Can you be guilty of an attempt even if it was impossible to commit the crime? Depends. o Pure Factual impossibility: no problem, always guilty. Pickpocket case

o Pure Legal impossibility: if the thing youre trying to do is not a crime, you cannot be guilty of an attempt. (having sex with a 17 year old, thinking 18 is age of consent but actually its 16.) o Hybrid: Modern trend in most jurisdictions is to treat the hybrids as factual impossibility: still guilty. From Jaffe to Dlugash. o MPC 5.01 (1)(a) takes this approach as well: if the D purposely engages in conduct which would be a crime if the attendant circumstances were as they the D believed them to be, it is still an attempt. Or acts with purpose of causing a result or with the belief that it will cause such a result, where the result is an element of the crime. VI. RAPE Common Law definition: o Carnal knowledge of a woman not the defendants wife, without consent and with force or threat of force.
Traditional Definition Nature of the offense Type of sexual act Type of non-Consent Property Only vaginal intercourse Non-Consent required: Both verbal and physical expressions required; closely linked to force and resistance requirements Force or threat of force Reform Definitions (MPC) Battery notions; violent Vaginal, oral, anal Non Consent still required, but removes physical resistance requirement in force, also non-consent. Emerging View Privacy, invasion of choice, autonomy -Force jurisdictions retain non-consent requirements, but easy to prove. -Non-force jurisdictions, question is do we focus on requiring consent, or non-consent? 1. Some states starting to eliminate force requirement altogether 2. A few keep force but broaden definition to include duress, fraud 3. Others keep force but create a lesser crime through gradations for no force rape 4. But most jurisdictions remain force/ threat of force jurisdictions *If threat of force, the fear must be reasonable! But reasonable from whose perspective? Most jurisdictions say boths. MPC suggests mostly perp.

Force Requirements

Usually force or threat of force required, unless certain circumstances: unconscious, or HE has given her intoxicants, or less than 10yrs old. But threat of force can now be against anyone, not just victim herself.

Resistance requirements

If actual force, must resist. If not, must be prevented from resisting b/c threat of force, & must be reasonable belief Must be extrinsic to sex act, positioning Spousal exclusion

Extrinsic/intrinsic

MPC removes the resistance requirement; just treat it as evidence of force and/or nonconsent. BUT some states retain it, when reasonable. In force jurisdictions, extrinsic Still spousal exclusion

For most part, no longer elemental, just evidentiary, with exceptions of Missouri, Mississippi. In force jurisdictions, extrinsic. In non-force jurisdictions, intrinsic will suffice. Most states have abolished, except KY. But they do have lesser punishments, gradations, etc. No longer gender specific. Most jurisdictions only call it rape if theres force without consent. But some jurisdictions treat it as a higher grade felony if aggravating circumstances (weapon, serious bodily injury, etc) MPC grades, calls rape second degree unless first degree.

Spousal rape

Gender specific Gradations

Only men can be guilty; only women victims No gradations

Still gender specific Some gradation: gross sexual imposition, starts to recognize duress as substitute for force

Problems with continued force jurisdictions: o Extrinsic force required! What is force, if resistance requirement has been loosened? Well really, has resistance requirement persisted, because you cant prove force without proof of resistance? o If threat of force, and no resistance is required, whose POV decides reasonableness of not speaking up? Problems with no-force jurisdictions: o Is it for legislature or courts to lead this revolution? o The crime becomes non-consensual sex; no extrinsic force required; only actus reus is non-consensual sex. o So how to define consent and non-consent? Most liberal Requiring express verbal NO Requiring physical or verbal expression of no Most strict Requiring lack of yes by words or conduct Requiring express verbal YES o Should gradations create lesser crimes? o What about ambiguous situations? (no means yes)

o What to do about mistake of fact? Some states ALWAYS allow, because require mens rea as element AK, MPC Some states allow it IF REASONABLE NJ, CA Some states say NEVER (MA, because we remain a force jurisdiction) Some states say it DEPENDS on what kind of case: date rape or a he said she said? PA, IN, maybe MA (leave door open in Lopez) Problems with redefined-Force jurisdictions: o What does duress include? Bargaining? Choice? What to do with intoxication? o If D is intoxicated, says he couldnt perceive non-consent, almost never a defense. Policy reasons. o If P is intoxicated, however, what does that change? Three approaches, in force: 1. MA: Intoxicated to point of being wholly insensible, AND D has to have known about this intoxication (approach in Urban) Substitutes for force (MA still force jurisdiction) 2. CA: when person prevented from resisting by any intoxicating substance (like threat of force) and this condition is known, or reasonably should have been known by D. CA also force jurisdiction Uses intoxication as substitute for force! And sounds like negligence standard, no? Casts very wide net. 3. WI: intoxicated to a degree which renders person incapable of apprising persons conduct, and D knows of such condition. This has the lowest standard for the act, but high standard for mens rea. But doesnt this invite cases of arguable consent? Depends on how you read statute Fraud cases: fraud in the factum versus fraud in the inducement o Usually, fraud in the inducement will not suffice o It must be fraud in the factum.

Approaches: CA Penal Code: 1. Rape is sexual intercourse accomplished by person not the spouse of perpetrator in following circumstances: (punishable by three, six, or eight years) Mental or physical incapacity to consent: Person is incapable (mental or physical disability) of giving consent, and this is known or reasonably should be known to person committing act

Force or Duress: By Force, violence, duress (direct or implied threat of force, violence, danger, or retribution sufficient to coerce a reasonable person of ordinary susceptibilities to perform the act, or to acquiesce. Total circumstances should be considered) menace (threat to inflict injury) or fear of immediate and unlawful bodily injury on person or another Threats of future harm: By threatening retaliation in the future against victim or other person, and reasonable possibility that he will execute. (kidnap, inflict extreme pain, bodily injury, or death). Intoxication: Prevented from resisting by any intoxicating substance, and this condition was known, or reasonably should have been known by accused. Unconsciousness: Unconscious of the nature of the act, and this is known to accused Fraud: pretending to be spouse, and D conceals/artifice intends to induce such belief. 2. Unlawful sexual intercourse with a minor: (Punishable by not more than four years) Person not spouse of perpetrator, under 18 years. Sounds like strict liability as to age? Or should we read in recklessness, unless contrary purpose appears? o Seems like contrary purpose appears if we read next section on consent: only applies to rape, not statutory rape, which would suggest that nonconsent need not be shown. 3. Rape of a Spouse (also punishable for three, six, or eight years): Same as rape, except that o mental/physical disability doesnt count o spousal fraud doesnt count. Makes total sense, just a pragmatic question. Pros and Cons: Remains a force jurisdiction but expands the definition of force to include o Violence o Duress (present and future harm, but limited to bodily harm, not other kinds of duress) Allows express or implied threats In considering Duress and threats, need to consider person of reasonable sensibilities o This focuses both on the victim and the accused. o Think of total circumstances. o If she thinks its reasonable, he probably would too. Although not always: possibilities of gender gap here. Includes spousal rape Just sexual intercourse, however. Does this include oral, anal? Intoxication to the point of being prevented from resisting, has to be known to the person, or reasonably should have been known.

o Problem: is this a negligence mens rea for rape? Some people would say unfair. NY Penal Code: 1. Rape in 1st degree: (punishable 25 year max) Forcible compulsion o Compel by either force or threat, express or implied, of force (death or physical injury or kidnapping) to person or another OR Incapable of consent by being physically helpless OR OR Less than eleven years old (no force required) OR Less than 13 years old and the actor is 18 or over (no force required) 2. Rape in 2nd degree (punishable 7 years max) 18 years or older, has sex with someone under 15. o BUT it shall be affirmative defense that D was less than four years older than victim at time of act (a barely 18 year old has sex with an almost 15 year old) OR sexual intercourse with person incapable of consent b/c mental disability 3. Rape in 3rd degree: (punishable 4 years max) Sexual intercourse with someone incapable of consent (remaining circumstances: person committed to care of state, and actor is an employee, and knows or reasonably should know that such person is committed, OR victim is patient and D is a health care provider or mental health care provider, and sexual conduct occurs during treatment session, consult, examination. OR is 21 or over and has sex with someone less than 17. OR has sex with someone without that persons consent! o Circumstances under which, at time of intercourse, victim clearly expressed that he or she did not consent to engage in such act, and a reasonable person in the actors situation would have understood such words and acts as an expression of lack of consent to such act under all the circumstances. 4. Sexual Misconduct (misdemeanor, one year max) Sex without someones consent. o Includes statutory rape. Less than 17. Pros and Cons: The basic gradation breakdown seems fair. o Except that the last possibility of 1st degree rape seems tenuous: 18 and under 13.what if you really dont know? Thats very harsh. o And I would put health care provider up in 2nd degree rape rather than 3rd However, 3rd degree rape simple non consent, no extrinsic force required. o I like this approach: keeps force requirement but creates a lesser crime for non-consensual sex. o However, does put the onus on the victim to, it sounds like, verbally and physically communicate the non-consent. The risk of re-introducing a resistance requirement. If she said nothing, had consented to foreplay but

not to a sex act, and suddenly freezes, is that enough? Not very clearly communicated. And its this or nothing. Then again, you almost need some kind of communication, because otherwise there is nothing separating 3rd degree rape from 100% lawful intercourse. Needs to be reasonable. Strange balance between defining rape to meet the victims needs versus defining rape to only punish behavior which is truly criminal Wisconsin Statutes o Bizzare structure: doesnt call it rape, calls it all sexual assault. o 1st degree, 60 year maximum: Sexual contact or sexual intercourse without consent by use of or threat of use of dangerous weapon Sexual contact or sexual intercourse without consent Consent defined as words or overt actions by competent person to give informed consent indicating a freely given agreement to have sex AND causes pregnancy or great bodily harm. nd o 2 degree (40 year max) Sexual contact/intercourse by force or threat of force Sex contact without consent and causes injury, illness, disease, or impairment of a sexual or reproductive organ, or mental anguish. Sex with person who suffers from mental deficiency, rendering them incapable of appraising persons conduct, and D knows of such condition Intoxicated to point of being incapable of apprising conduct, and D knows of such condition. Sex with someone he knows to be unconscious Correctional institution. (no non-consent required!) o 3rd degree (10 year max) Sex without consent. (words or overt actions) o And then has sexual assault of a child as a separate section. o First degree: under thirteen (60 year max) No distinction for age differentials nd o 2 degree (40 max) Under 16 o And then has sexual intercourse with a child 16 or older: 9 months max o Statutory rape. o Pros and Cons: o The Sexual assault/rape section has strange mix of being extremely victim centered at certain points, and extremely accused-focused at others

Accused has to actually KNOW of intoxication, mental deficiency. Not just be reasonable. And yet, the gradation often depends on the resulting circumstances vis--vis the victim (pregnancy, injury, distress) without ANY regard to the Ds mens rea. You can get 60 years for mere non-consensual sex (no force) if pregnancy results. o Also, the statutory rape section is extreme: no exceptions for age differentials, and the punishments are comparable to the other sexual assault laws. VII. HOMICIDE A) INTENDED KILLINGS i) MURDER: you need malice aforethought, which you can get 4 ways: 1. First Prong Malice (Intent to Kill) 2. Second Prong Malice (Intent to cause grievous bodily injury) 3) Third Prong Malice (Depraved Heart) o Uber-recklessness: plain and strong risk of death, circumstances manifesting extreme indifference to value of human life. 4) Felony Murder Rule (but not all jurisdictions) (5) And at common law, there was a 5th: opposing a cop Grading Murder Most jurisdictions grade murder (to allocate punishments) o MPC doesnt do it in murder definition, but rather in punishment (aggravating circumstances), 210.6(3). Doesnt include premeditation, however. o CA: Big long list, aggravating circumstances, including premeditation o NY: 2nd degree is default, 1st degree only for certain circumstances, cop killing, etc. But no premeditation. o MA: 1st degree if deliberate premeditation, or extreme atrocity or cruelty, or in commission of serious felony. Anything else is 2nd. Premeditation: (most common basis for grading): Two approaches: o 1. Guthrie approach: (WV and MA): you need some time for reflection. Implication: you can get a murder 2nd instruction even if youre in first prong malice. Among states who grade based on premeditation, Guthrie is majority view. o 2. Carroll approach: (NY, CA, AL): no time is too short. Dont need to meaningfully reflect on nature of your acts.

Implication: you can only get a murder 2 instruction when its 2nd or 3rd prong malice. All 1st prongs will probably be murder One. o AZ approach: Any length of time to permit reflection, but proof of actual reflection is not required. (middle ground?) Culpability based on opportunity to change your mind? o MA: must show that Ds resolution to kill was at least, for some short period of time, the product of reflection. o CA: by prior calculation or design, but no mature or meaningful reflection required. o Note: premeditation, when criteria for 1st degree murder, only applies to 1st prong malice: you cant get 1st degree murder on premeditation when its 2nd or 3rd prong malice. Proving Premeditation: o Almost always circumstantial evidence. o Will get instruction that Jury may, but need not infer that people intend the natural and probable consequences of their act. Thus, you may infer that someones use of deadly weapon meant they intended to kill. o For premeditation, can consider circumstantial evidence like they bought a gun, the relationship, the nature of killing. Premeditation can transfer! If you kill the wrong guy. Extreme atrocity or cruelty: Killing done in a manner which surpasses that which is necessary to take a human life. (Cuneen factors, in MA): indifferent to or take pleasure in suffering, disproportional means, Consciousness of suffering, extent of injuries. Felony Murder Rule: o Much hated, but widely majority rule. Only Mich, KY, HI dropped o 4th prong of murder: elevates what would be involuntary manslaughter, or not even, to murder. o Interesting: in pure form, FM rule loosens up proximate cause: doesnt have to be specifically foreseeable, because its foreseeable in general that someone will get hurt. o Theoretical justification for FM rule: U: Deterrence, baby! Dont do the felony in first place R: Debt theory. But otherwise, kind of sketchy. No mens rea o Limiting the FM Rule: 1. Most jurisdictions limit to inherently dangerous felonies Some states statutorily assign felonies to 1st or 2nd degree murder, or some say FM can only be 2nd degree murder, and only for certain felonies.

Otherwise, two common law variations: 1. Inherently dangerous as defined (CA) 2. Inherently dangerous as committed. o Foreseeable risk of death? o Or HIGH risk of death? 2. In Furtherance of the Felony (temporal) Has to be during (from attempt to escape to safety) and as a part of the felony (in furtherance of) Becomes problematic when: o Killing occurs after escape. o Killing is unexpected, done by co-felon Some states allow frolic evidence to exculpate co-felons. If it was never planned o Killing is done by cops/bystander trying to help: Agency theory says it must be done by co-felon Proximate cause theory, however, says if its foreseeable, youre responsible. o A co-felon is killed. Should we convict him for death of his co-felon on FM rule? Some states statutorily say no. Could you get him anyways on 3rd prong malice? 3. Merger Doctrine: FM rule cannot apply to assault-based felonies. Otherwise, we would could get you for murder on a mere mens rea for assault with deadly weapon. Not distinct from the felony being committed. Must have independent purpose. Irony of the Merger rule: not having intent to assault means that its actually easier to convict you for murder. (Burton case) MPC 210.2 : Just says that you can create A PRESUMPTION of third prong malice by committing one of these designated felonies: .and can be rebutted.

But if you cannot make it into the murder bucket through either malice aforethought or felony murder rule, you grade down to: ii) VOLUNTARY MANSLAUGHTER 1. Provocation (Murder Mitigated)a 1st prong intent to kill, but we show them mercy out of deference to human fragility: A) Heat of Passion Categorical Approach:

o Girouard: 1. Must be sudden 2. Must have no time to cool off (is this a judge or jury question??) 3. And must fall into a category that would cause an ordinary person to act irrationally: Extreme assault and battery Mutual combat Illegal arrest Discovery of adultery Hurting a family member B) Heat of Passion Non-Categorical Approach o Maher: 1. Still has to be sudden 2. still no time to cool off 3. But we think what kinds of provocation are sufficient is a jury question * Girouard was common law and is still majority view, but the non-categorical approach is gaining ground. Also, most jurisdictions have an exception to either: words alone are not enough for provocation in any circumstances. Misdirected retaliation: Victim is the laugher, not provoker? o Jurisdictions are split: Many require that he actually be the provoker. (treating it as partial justification!) Others say it doesnt matter.

C) Extreme Mental/Emotional Disturbance Approach (MPC), adopted by only five states: o Cassassa, NY o Leans toward subjectivity: Extreme mental or emotional disturbance for which there is a reasonable explanation or excuse, and the reasonableness shall be determined from viewpoint of person in actors situation under circumstances as actor believes them to be. o Do not need an external catalyst o Objective reasonableness elements are missing. o But weird: asking someone to pretend theyre crazy to figure out if there is a reasonable excuse? Not a good approach. 2. Simple Assault & Battery which leads to death (IVM elevated) Note: this is only voluntary manslaughter in some jurisdictions (many would call it involuntary) 3. Excessive Force in Self-Defense (IVM elevated)

To be true heat of passion/provocation, must be passion and not self defense which causes person to react. Otherwise it goes here.

B) UNINTENDED KILLINGS: i) INVOLUNTARY MANSLAUGHTER: Mens Rea: Depends on jurisdiction: 1. Recklessness: consciously disregards a substantial and unjustifiable risk that the material element exists or will result from conduct. And must be a gross deviation from standard of care a reasonable person in the actors situation would observe. (MPC) 2. Wanton or Reckless conduct MA, Welansky nightclub fire case: Says that recklessness will suffice, but even if you dont recognize the risk, and a person in your circumstances would have, thats wanton too. Requires a high degree of likelihood of HARM (not necessarily death). (MPC says substantial and unjustified risk of the result) Risk of death or grave bodily injury must be known or reasonably apparent. So this sounds like it bridges Recklessness and Gross Negligence: either will be enough. Convenient! 3. Gross Negligence: gross deviation from standard of care that a reasonable person would use in the actors situation. (but you didnt subjectively know/choose the risk) Majority of states kick in here, at gross negligence. 4. Simple Negligence (very rare). Just a couple of states. What mens rea you impose depends on your theories of punishment: Utilitarianism: Lower mens rea means more deterrence, but also means overdeterrence, and maybe disrespect for the law. Higher mens rea means that deaths will happen, not enough deterrence. Retributivism: Lower mens rea is not criminal! Shouldnt punish, because theyre not criminally blameworthy. Distinguishing Involuntary Manslaughter from 3rd Prong malice: Its both qualitative: the circumstances surrounding: do they demonstrate a deliberate indifference to value of human life? Depraved heart. And quantitative: the degree of risk: is it plain and strong (3rd prong) or just high or substantial (involuntary) Woodward case: should have gotten involuntary instruction, even if she didnt want it, because its a fine line between plain and strong and high Drunk driving cases: could be either. Most states do vehicular homicide as a separate crime. One less than involuntary manslaughter.

Over deterrence concerns?

ii) MISDEMEANOR MANSLAUGHTER You can also get a misdemeanor manslaughter instruction, even without the requisite mens rea, if the killing occurs in commission of a misdemeanor Unpopular for same reason that felony murder is unpopular. A minority rule. Where it applies, only attaches to malum in se misdemeanors, not prohibite And you obviously still need proximate cause. VIII. GROUP CRIMINALITY A) COMPLICITY At Common law: Had Principals (1st degree primary actors and 2nd degree secondary actors) and Accessories (Before the fact and after the fact) Also required that principals be convicted before accessories could be convicted And needed to allege with specificity what they did, and where act of assist happened. US Jurisdictions: Collapse these categories, make them all liable for one common crime, except for accessories after the fact, who are still subject to lesser punishment. And therefore do not require principals be convicted before accessories And therefore do not need to allege with specificity who did what exactly MENS REA: Accessory liability is a DUAL INTENT CRIME, requiring: 1. Share the mens rea of the principal as to the crime committed 2. Have the requisite mens rea to assist (intentionally doing the act) What happens when you assist/facilitate but are ambivalent about sharing the actors intent? Almost all jurisdictions require purposeful assistance, vis a vis the ultimate crime. Knowing is not enough, although jury can but need not infer purpose from knowledge. MPC: with the purpose of promoting or facilitating the commission of offense Other states, however, have created lower crime of facilitation, only requiring you to know its probable that he will commit crime (misdemeanor) CA takes the approach that you look to seriousness of underlying crime: more serious crimes only require knowing; minor crimes require purposefulness. What happens when the mens rea required for the underlying crime is lower than knowingly/purposefully? If you intentionally assist in the act, and you share the requisite mens rea, thats good enough: McVay boiler case. See MPC, 2.06 (4)

 What happens when youre an accomplice and your partner goes off and commits an unexpected crime in the process: NATURAL AND PROBABLE CONSEQUENCES DOCTRINE: Minority rule in US jurisdictions, most reject. MPC does not follow it; requires purposeful Note: you do not need to be friendly with partner to share his purpose People v. Russell and People v. Abbott: gang shoot-outs. Shared 3rd prong malice. Temporal connections: does it make a difference how far removed the accomplice is, in time or in space, from the actual commission of the crime? Compare State v. Ayers and State v. Travis ACTUS REUS: what acts suffice to be an accomplice? Obvious: soliciting, encouraging, providing help for, at scene, or before, or after, upon pre-arrangement, or just being there for purpose of helping. Not so obvious: Mere encouragement? Most jurisdictions say that even words of encouragement at the scene is enough to assist (emboldening) New Bedford Rape Case Hicks: but remember, you need the independent mens rea, and therefore your words must be intended to assist. Omissions: Only when you have a legal duty to prevent commission and fail to make effort to do so with the intent of facilitating the crime. (Father/son rape case) Strict but-for causation not required! Judge Tallys telegram need not have actually caused it. As long as it contributes/facilitates/somehow makes it easier. Ineffective aid If you yell words of encouragement, and they literally fall on deaf ears, most jurisdictions will not convict. MPC 2.06 (3): even an attempt to aid will suffice. Most jurisdictions do not agree, however. Only a few have followed MPC: KY, NJ, PA, TX AND MPC says that if your behavior is sufficient for complicity, you can even be convicted of attempted __ even if that crime is never committed! See MPC 5.01. Most other jurisdictions dont follow this, however. Community of purpose requirement: If you help someone commit a crime because you want them to get caught, youre not in community of purpose and thus the other guy, in order to be convicted

of the crime, must have completed all the elements of the crime himself, without borrowing any elements from you. Hayes case But if you, in helping guy get caught, complete actus reus necessary for the crime, will not be convicted, because you do not have the requisite mens rea. Entrapment: If law enforcement sets you up BIGTIME, however, in a way which really induces the crime from the very start, entrapment is a defense. Did not exist at common law, but virtually every US jurisdiction has it now. Majority: the Subjective predisposition test: would law enforcements acts make the D predisposed to commit the crime? Minority: the objective predisposition test: would it induce an ordinary, law-abiding citizen to offend? MPC supports objective test. Whats the primary motivation behind entrapment defense? Preventing police misconduct in undercover operations, or retributive concerns for blameworthiness? Abandonment: MPC 2.06(6) is pretty consistent w/most jurisdictions: If you terminate your complicity prior to commission AND Either wholly deprive your complicity of its effectiveness OR Give timely warning to law enforcement or makes proper effort to prevent commission of offense * gets rid of MPC 5.01(3) attempts as well. Other restrictions on accomplice liability: MPC 2.06 (6) You cant be an accomplice if youre also the victim of the crime You cant be an accomplice if youre the person who makes the thing an offense (youre the underage alcohol buyer)

B) CONSPIRACY Mens Rea required: See MPC 5.03 A person is guilty of a conspiracy if with the purpose of promoting or facilitating its commission he a) agrees with other person that they will engage in conduct which constitutes crime, attempt, or solicitation b) agrees to aid in planning or commission of crime, attempt, or solicitation. So like attempt, conspiracy is an inchoate crime and thus requires intent, purpose Is both an Inchoate crime AND Form of vicarious liability (in Pinkerton jurisdictions) Inchoate Crime No Merger

Unlike attempt, most jurisdictions say conspiracy does not merge. Why not? Because the conspiracy itself represents a separate, special kind of harm to society But MPC disagrees: 1.07. merger Federal Sentencing guidelines agree w/MPC In MPC 5.05: solicitation, conspiracy, attempt, all merge! Can be charged with all, but only punished for one (see sentencing guidelines.) I solicit, we plan (conspiracy), we prepare that reach substantial step (attempt). You cant be ridiculous. You can be guilty of one of these things, but not all of them. More states follow this. Punishment for Conspiracy At common law, a completely different crime, with unrelated sentencing (only few states still follow this) Federal: 5 years max, and for misdemeanors no more than actual crime itself Majority of jurisdictions peg sentence at something lower than actual crime And about 1/3 of states, and MPC make punishment exactly the same as the object crime, except for most dangerous felonies. this is the same as their approach to attempts punishment], but for attempt conviction you need to have taken substantial step. Not so for conspiracy!

Multiple Objectives: when you conspire to commit multiple objectives, multiple crimes, there is only one conspiracy count, whereas there would be three arson counts Mens Rea: You really need to INTEND that the crime be committed. Actus Reus: It is the act of AGREEMENT ITSELF It is not necessary to prove express agreement to violate the law. The proof, by nature of crime, must be circumstantial and therefore inferential ( Knowledge by D of all details of conspiracy is not required. Its enough that he know the essential nature of it. Not all co-conspirators need know each other; just have to know that for its success might involve other people. The agreement can be implicit and tacit: Ask for a Coleridge instruction (Interstate Circuit case) Overt Act Requirements At common law, no act beyond the agreement was required However, some US jurisdictions are adding an overt act requirement through statutes (differ in what they require). Some require overt act only for lower felonies, but not higher felonies Federal law requires overt act. MPC 5.03(5) requires overt act in pursuance of the felony.

SJC has ruled that if no overt act requirement appears, none should be read in. Other Considerations: Duration of Conspiracy: Viewed as a continuing offense. Remains in effect until objectives have either been achieved or abandoned. But conspiracy can also continue after crime is committed. Cover-ups, further activities, etc. However, you cannot infer an implicit conspiracy to conceal or cover up a crime after the fact. Has to be more explicit than that, or some act. And the tricky thing is that statute of limitations for conspiracy starts running not when ultimate crime is committed, but when conspiracy itself terminates. Longer window for prosecution. Impossibility of planned crime does not terminate the conspiracy (United States v. Jimenez Recio).govt sting or set-up cases. Abandonment and Renunciation Abandonment: (common law definition) Most states, all federal courts, and MPC only require affirmative action to announce withdrawal to all other conspirators. A minority of courts have required not only announcing abandonment or withdrawal, but also that D try to thwart success of conspiracy. Renunciation: (MPC definition): never available at common law, but most states today, and MPC, allow complete defense of renunciation under certain circumstances. MPC 5.03(6) says you have to renounce AND succeed in preventing commission of criminal objectives. Many states only require a substantial effort to prevent crims.

Conspiracy as a Form of Vicarious Liability (PINKERTON) And it often goes further than accomplice liability! Most jurisdictions do not follow natural and probable consequences doctrine for Accomplice liability: they require a mens rea. But the Pinkerton doctrine allows liability for co-conspirators IF 1.crime is within the scope of agreed conspiracy (same as accomplice liability) OR 2. It is in furtherance of the felony and reasonably foreseeable Pinkerton rule followed by: Most/some? Federal govt: says you can be convicted by it but not punished for it? MPC rejects it: 2.06: would require a mens rea Note: Pinkerton can only get you liability for the substantive offense, not the conspiracy to commit it, because there was none Note: in Jurisdictions with felony murder rule, you dont necessarily even need pinkerton to get your co-conspirators on murder. (see felony murder rule)

Unless you have a merger situation, and thats where Pinkerton could be helpful. Note: No liability for prior acts: you cannot be convicted of a substantive crime on a Pinkerton theory if you joined the conspiracy only after the crime was committed. but prosecutor can use evidence of prior acts as evidence of existence of conspiracy Note: An exception to Pinkerton for minor actors? Seems a little unfair, especially in big elaborate conspiracies with many actors, some of whom play relatively minor roles, to hold them responsible for any and all substantive crime. Courts have suggested that Pinkerton might not extend this far, if you can show that they really were minor actors, and that their involvement was remote and attenuated from the crime committed (Alvarez) IX. DEFENSES: JUSTIFICATION AND EXCUSE A) JUSTIFICATIONS (Its a good thing you did what you did, normatively) Why do we have justifications? Utilitarians: prevent greater harms from occurring, and deter initial aggression Retributivists: they are justified, not blameworthy! No debt created Rehabists, however: say turn the other cheek? Be a pacifist 1. Self Defense Elements: Reasonable and honest belief of (applies to all elements!): imminent and unlawful if its lawful, you cant defend yourself if you instigated aggression, and they go beyond, can you respond? Jurisdictions differ: some require that you first try to get yourself out of being aggressor. Bodily force about to be committed And there is no available reasonable alternative See Retreat rules! Three Strands: Necessity (reasonable and honest belief, imminent, no alternative) Imminence (reasonable and honest belief of imminence) Why? Retribs want to give victim chance to change mind, Utilitarians say we dont want vigilante justice, and we dont want pre-emptive strikes. Minimize total harm Proportionality (an eye for an eye. Dont use deadly force unless its used against you.) Note: some jurisdictions statutorily include rape, kidnapping, as deadly force. MPC goes even further.

Is it a true affirmative defense? Jurisdictions differ: MA takes just burden of production approach MPC 3.04 treats it as a true affirmative defense, burden of persuasion 1.12 lays out burden of proof Affirmative defenses must be proven by a preponderance of the evidence. Retreat Rules Deadly Force: Most jurisdictions (about half) say there is duty to retreat to place of safety, if available and reasonable. (MA, NJ, NY, etc) But these Jurisdictions usually have a castle exception: No duty to retreat if youre in your home. But you do need to reasonable believe that deadly force has been threatened/is imminent Exception to exception: when attacker is co-occupant, you may have duty to retreat. Minority of jurisdictions say theres no duty to retreat EVER. Non-Deadly Force: All jurisdictions say no duty to retreat. Retreat rule unrelated to the duty to look for alternatives! Reasonableness Rules You have to have a reasonable and honest belief of all elements, but from whose perspective is reasonableness judged? Some states take a mostly objective approach: reasonable person, but taking account of limited circumstances like size, speed, physical characteristics But thats at a minimum Some states take a somewhat subjective approach: (NY, MA): can also take account of the relevant knowledge of the actor about the aggressors, any prior experiences And minority of states, and MPC 3.04, take purely subjective view: With caveat, however, that if you are reckless in believing the thing, you can be convicted of any crime with lower mens rea Same approach as mistake of fact. How does Battered Womens Syndrome fit in? 25-30 years ago, courts kept this out of evidence Now, courts allow it in usually. Can be relevant to Imminence Necessity Proportionality And relevant to both: (Kelly) Honesty of the belief Reasonableness of the belief

Some courts refuse to allow evidence of it if victim is killed in a nonconfrontational state (sleeping, watching TV) I dont think this makes sense. MPC 3.04 has loosened the imminence requirement for self-defense: instead of saying imminent, they say immediately necessary. Also, note that if BWS evidence doesnt get in, it might get in under the MPC EEMED approach to heat of passion mitigation. And if they dont get BWS evidence, they still have imperfect self defense Imperfect Self-Defense Two Situations: May be allowed when excessive force is used Or when you act unreasonably in perception of danger, imminence Some jurisdictions grade down from murder to manslaughter, like for heat of passion. MPC 3.06 (3)d, however, eliminates need for imperfect self-defense, as long as attacker believes subjectively that its necessary But then in 3.09, says if you are reckless/negligent, you can be convicted of crime with those mens reas. Same result: Involuntary M

2. Defense of Others Works exactly the same as self defense But depends on what approach you use: Alter Ego Approach: You step into his shoes, his POV. Problems include: Mistake over who initial aggressor is Mistake over whether aggression is lawful or unlawful Mistake over actual fear or no fear, knowledge of no danger Reasonable Perception Approach: Focus on the helpers reasonableness MPC 3.05 uses this approach: under the circumstances as he believes them to be Most jurisdictions are moving in this direction. But in both approaches, the helper needs to have clean hands! 3. Defense of Property You NEVER have right to use deadly force You have right to use non-deadly force IF You first make request to desist, as long as such request would not be clearly futile. Rules change, however, when property is the HOME

 According to common law castle exception, you can kill them! No retreat required Modern US jurisdictions, however restrict this. MPC 3.06(3)(d) does too: Use of deadly force is prohibited UNLESS; Person against whom force is used is attempting to dispossess him of his dwelling otherwise than under a claim of right to its possession Or person against whom force is used is attempting to commit or consummate arson, burglary, robbery, or other felonious theft or property destruction AND HAS EITHER Threatened or employed deadly force against or in presence of actor Or use of force other than deadly force to prevent commission of crime would expose the actor or another to substantial danger of serious bodily harm. 4. Necessity Justifications for necessity defense: Retributivism: Youre not blameworthy. Its still a good thing. Also, Criminal law is imperfect. Leave people some leeway. Utilitarianism: Classic cost-benefit analysis. X < Y. Also, no deterrent effect if you think its really necessary. Elements in MOST jurisdictions: 1. Reasonable belief 2. Imminent harm 3. Choosing LESSER EVIL in order to prevent GREATER EVIL Must be both causal And reasonable belief in the causation link. 4. Actor is blameless in creating the predicament 5. There has been no prior explicit legislative judgment about the values Ex: medical use of marijuana. CA has an explicit statement that its okay, and therefore it is the lesser evil. Federal law, however, has explicitly excepted it. Greater evil. Strict liability crimes: Most states will allow this excuse even for strict liability crimes. Otherwise would defeat the purpose. But no busy prosecutor will charge it anyways. [6.] Only in some jurisdictions: only situations caused by natural forces. Excludes human actors altogether. MPC doesnt add this MA doesnt use it either.

Note: when the crime charged only has a mens rea of reckless or negligence, the defendant does not have to assert necessity. It is the prosecutions burden to disprove necessity. MPC Approach to Necessity: 3.02 Need to believe it to be necessary (subjective only!) And must be lesser evil (actually, objectively) But does not say, purposefully, whether judge or jury should decide this And no legislative determination, and no legislative intent to exclude justification And if the actor is reckless or negligent in bringing about the situation or in appraising necessity, he may be convicted of crimes requiring only recklessness or negligence. *Note, but this does not prevent him from using the necessity defense if the mens rea is higher! NY approach to necessity: Necessary as an emergency measure To avoid truly imminent injury Situation no fault of actor And ordinary standards of intelligence and morality would say that this outweighs this. And put it to the judge, as a matter of law, whether it was truly necessary by the greater evil. MA also puts the question of lesser evil to the judge. Differences: NY requires absolute, true necessity And fault of the actor provision. MPC would limit it to necessity claims directly of the fault, while NY says all necessity claims related. Economic Necessity Common law has carved out an exception excluding economic necessity: there are other alternatives, and therefore economic necessity is never true justification. Charitable relief exists, the democratic process exists. (Southwick case) MPC does not address this Civil Protests, Conscientious Objector Most jurisdictions will not give a necessity instruction at all A few are slightly more lenient for direct civil disobedience: Direct civil disobedience: you break the law youre specifically and purposefully protesting. Indirect civil disobedience: you break a law in the process of protesting some other law/policy. Escapes from Jail Two approaches: Lovecamp factors: Substantial threat of death, forcible sexual attack, or substantial bodily injury

 No force used against others in escaping No time to petition to courts/authority Immediately reports to authorities after escape. Jury determination of necessity: In Unger, court rejects Lovecamp factors and says give it to the jury like for anything else. Murder Exception: In most states, murder is never justifiable under a necessity defense, even if youre saving more lives, quantitatively. Refusal to calculate. B) EXCUSES (its not a good thing you did it, normatively, but we will excuse) 1. Duress Why isnt this covered by mens rea? Because you actually do intend to do it, even though youd prefer not to Why isnt this covered by actus reus? Because it actually is voluntary, in the same way. Justifications for duress excuse: Utilitarian: Theres no deterrent effect, generally or specifically. Also, we can punish the bad guy, and deterrent effect is there. Retributivist: This guy is not a bad person. Human nature. Didnt make free choice. Also, debt retributivist says we can punish the bad guy, so were covered. Whereas in heat of passion, there was no one else to blame. Should duress be a mitigating factor or a complete defense? Elements: (most commonly): 1. imminent threat of (about to happen) But some jurisdictions are loosening this requirement. Fleming versus Contento-Pachon. 2. Death or serious bodily injury to you or another Some states even limit to nuclear family members Defamation, firing, never enough. Needs to be physical. 3. Actor must be without blame in creating situation 4. Reasonable person in actors situation would not have been able to resist [5]. In Most jurisdictions, there is a common law rule murder exclusion. MPC doesnt have this exception, however. MPC Approach: Use of or threat of unlawful force, such that a person of reasonable firmness in his situation would have been unable to resist. [Imminence not required! Sees it included in the above requirement] [Also do not see physical force requirement. Also sees it as required] [Also no murder exclusion. Same idea]. This is risky, however, because it all depends on the jury.

Does say that duress is unavailable if you recklessly place yourself in situation where you would likely be subject to duress. (or negligent, when negligence suffices for the crime). Distinguishing Duress from Necessity Duress requires threat of physical force to humans, where necessity is not that specific. Can be destruction of property, too. Necessity requires choosing the objectively lesser evil. Duress might excuse even when you choose the greater evil, if its understandable to a reasonable person. You can only get duress from other persons pressure when they present you with a choice: escape or be raped. You cant get duress when they just threaten you with rape. Thats under necessity.

2. Insanity (at the time of the crime) Occurs very infrequently (less than 0.5% of cases) And when raised, seldom successful. Why do we need insanity? Doesnt mens rea cover it? If you think youre squeezing lemons, okay But if you think this guy is osama and you want to kill him, doesnt work So we need insanity defense to cover the rest In states who have abolished insanity excuse, evidence of insanity for proving no mens rea can come in. Burdens of Proof: There is a presumption of sanity, until D raises evidence claiming insanity (expert witness, probably) then P has burden of DISPROVING beyond reasonable doubt. In federal court, Ds burden is clear and convincing evidence. According to MPC, Ds burden is only by a preponderance. Two Insanity Approaches: 1. MNaghten Rule (older vintage) Disease of the mind which Renders you incapable of knowing either 1. the nature and quality of the act OR 2. from knowing right from wrong (disease must be true disease and not personality disorder) 2. MPC4.01 /McHoul (MA) (newer vintage) Mental disease or defect (same as MNaghten) which results in: 1. Lack of substantial capacity to appreciate criminality (or wrongfulness) of conduct

But here, right and wrong is left to the states to decide whether right means morally right, or legally right. Courts are split. OR 2. inability to conform your conduct to the law This is the irresistible impulse addition You would not get off under MNaghten, but might under MPC.

Differences b/t MNaghten and MPC: Knowing versus lacking substantial capacity to appreciate MPC gets a little looser, thinks you can know without truly appreciating MPC adds the irresistible impulse possibility States flop back and forth between stricter MNaghten and looser MPC After Hinkley verdict, there was uproar FIVE states have since repealed their insanity defenses completely. Congress has since gone back to MNaghten (Compare Blake and Lyons, 5th cir.) But added the word severe mental disease or defect. Does it make a difference? Also requires BoP to fall on D, clear & convincing evidence Many states have followed, esp. after American Psychiatric Assoc. told them its basically impossible to determine whether someone is suffering from irresistible impulse.

Disproving Insanity: Circumstantial evidence, surrounding context, pre and post act Medical testimony. Effects of Insanity Acquittal: (Four possibilities) 1. Judge refers matter to civil court for commitment proceedings NY, Federal Jurisdictions Require clear and convincing evidence And usually, judge has power to hold w/o bail for duration 2. Automatic and indefinite commitment upon acquittal (MA) Commonwealth v. Mutina Need to convince court that youre no longer mentally ill and dangerous Can actually spend longer time committed than you would have for the crime! 3. Automatic commitment for maximum years for underlying crime (NJ) 4. Presumption: treat acquittal as a PRESUMPTION that you are currently mentally ill, and have criminal court run separate proceeding to decide if you need to be committed (Arkansas, Wash) Justifications for Insanity Excuse:

 Utilitarian: If we dont have it, people cant fake the defense. On the other hand, it can work for specific deterrence if we lock the guy up afterwards. General deterrence, however, wont change much. If youre insane youre insane. Retributivism: Its not fair to punish mentally ill people. We would not want to live in such a society. Cannot norm nurture, because they are ill. Alternative: Guilty but Mentally Ill? Michigan led the movement, designed to keep people committed but get them medical treatment Guilty, punishable, but treatment available. Most often used when the mental illness is something less than a serious mental disease or defect. th 4 possible verdict 15-20 states have allowed this alternative verdict.

3. Entrapment Was never a defense at common law Development of American law, 1930s Recognized by statute in almost every state now Purpose of Entrapment defense? Prevent Governmental Overreaching (corresponds to objective test) Protect otherwise innocent citizens (corresponds to subjective test) Two Primary Tests: OBJECTIVE (Minority view) (Watson Case) 1. Requires first government inducement going beyond mere solicitation or presenting opportunity to commit crime. Watson: ruses, stings, decoys all permissible. Passive Active badgering, repeated pressure, however, is not. 2. Pressure must be that which is likely to cause an ordinary law abiding citizen to commit the crime. MPC 2.13 follows this: can get entrapment if the cop Tells them that something is not illegal when it is (mistake of law) OR employing methods of persuasion/inducement which create a substantial risk that such an offense will be committed by persons other than those who are ready to commit it. Violence exception: defense unavailable when causing or threatening bodily injury is an element of the offense charged. SUBJECTIVE: (Majority view) (Jacobsen case) 1. Is there some inducement which rises beyond mere solicitation

Note: if the govt behavior is truly outrageous, they might not even get to step two. At least 3rd circuit has gone this route, meth lab. 2. If so, was as this defendant otherwise predisposed to commit the crime? If so, theyre guilty nonetheless. Once D comes forward with evidence of inducement, P has burden of persuasion, beyond reasonable doubt that D was predisposed. Here, it becomes a mens rea problem. If you are subjectively willing to commit the crime anyways, you dont need the government. Does not protect against overreaching, necessarily. How do you prove predisposition? Evidence of prior convictions can come in But in Jacobsen case, they clarify that your predisposition needs to be independent of any government inducement. The predisposition must be pre-inducement. BUT Jacobsen case also says that the fact that you DID the crime can in itself be evidence of predisposition.