CRIMINAL LAW OUTLINE

 

I.  INTRODUCTION

 

Preliminary Hearing - (1) probable cause to show crime was committed, and (2) probable cause to show D did it. 

 

Difference between civil and criminal sanction for same action - stigma.  Goal of criminal law is to punish, make restitution.  Goal of tort law - compensate the victim.

 

Consent of injured - may be a defense in torts but often not in criminal law.  Similarities:  proximate cause, intervening cause, duty to act, self-defense.

 

"preponderance of evidence" vs. "beyond a reasonable doubt"

 

criminal law is slower to borrow from the civil statutes than the civil law is to borrow from criminal statutes.

 

Desuetude - laws that are not enforced wither away.

 

 

II.  CRIMINALIZATION

 

Factors affecting criminalization:  1) does it have moral dimension?   2) can the law be enforced?    3) will the law promote respect for the law?     4) will the cost of enforcement be greater than society's benefit?    5) will investigation methods necessary to enforce the law be unreasonable or degrading?     6) does the crime have a victim?

 

A.  CRIME AND MORALS

 

Sources of crime:  1. legislatures;  2. Constitution - treason;  3. administrative regulations;

4. martial law, military law, tribal law;   5. treaties (genocide);   6. common law crimes.

 

B.  DEFINING CRIMINAL CONDUCT

 

          1.  Principle of Legality - violate specific rules made known in advance.  Limit on the government.  If the Principle of Legality were strictly followed, statutes would be narrowly construed, never retroactively.  To some extent Pple of Legality included in Due Process.

 

          2.  Common Law Crimes

 

          Something against the health, safety, and welfare of the public. (generic)  Most jurisdictions held common law crimes violate the Pple of Legality - unconstitutional, no advance warning.  Requires public harm, not private harm.

 

          3.  Legislature-made Crimes  (a) Vagueness and Overbreadth

 

          Vagueness - barred by Due Process of the 14th and 5th

          Overbreadth  - barred by 1st Amendment

 

          Three bases for examining VAGUENESS:  (1) does the statute in question give fair and advance notice to those persons potentially subject to it - otherwise trap the innocent by not providing fair warning?  (2) does it adequately guard against arbitrary and discriminatory enforcement - ad hoc basis for policemen and juries?  (3) does it provide sufficient breathing space for First Amendment rights?   "men of common understanding" must necessarily guess at its meaning and differ as to its application  Connally Test

 

          Standard used in applying vagueness statute - judicial gloss on statute.  Is IL SC's interpretation/refinement of the law to "imminent" diversion constitutional?  U.S. SC does not read vague statute as written, but as narrowed by the state courts -violates the principle of legality.

 

          Concerning the antinoise ordinance:  "we do not have a general breach of peace" ordinance, but a statute written specifically for the school context, where the prohibited disturbances are easily measured by their impact on the normal activities of the school."  Therefore not vague.  It is not overbroad as unduly interfering with First Amendment rights, including right to picket on a public sidewalk near a school, since expressive activity is prohibited only if it materially disrupts classwork.  Grayned v. City of Rockford

 

          Principle of Construction - each word is meant to mean something different.  They are mutually exclusive.

 

          (b)  Ex Post Facto and Bills of Attainder - Article I, '' 9 & 10.  9 - Congress, 10 -states.  Ex post facto - retrospective laws.  Not permitted.  Applied to conduct permitted before the law.  TWO ELEMENTS:  1) retrospective application   2) disadvantageous to criminal accused.

 

          Legislature cannot pass law today to make activities of yesterday a crime.  Citizen responsible for law at time of his actions.  Punishment is rendered as it was at the time of illegality.  "Photograph of laws at time of crime."

 

          Also cannot change retroactively procedures - only those procedures that protect a substantial right - to disadvantage of the criminal accused.  If legislature passes a new jury law, that law would not apply to illegalities performed prior to the passage of the law.

 

          Any law that causes a defendant to suffer a disadvantage, however, does not offend this provision.  The Supreme Court has distinguished between disadvantageous changes affecting procedure and those altering substantial personal rights.  The ex post facto provision was not designed to limit the legislature's prerogative of altering both remedies and procedures which do no involve matters of substance.  Increasing the penalty for a crime and imposing it retroactively violates the ex post facto guarantee.  Altering the method used to determine whether the death penalty was imposed was constitution.  It did not change the "quantum of punishment" attached to the crime.  New Florida procedures did not change the definition of the crime or the amount of proof necessary for guilt.

 

          Parole laws do not violate ex post fact provision - no constitutional right to parole.

 

          If act is not harmful to the criminal, then ex post facto does not apply.

 

          Does ex post facto apply in judicial decisions? - only applies to legislative acts.

 

          Bills of Attainder - legislative punishment of people who are readily identifiable.  Cannot single out group or individual for punishment.  Bill of Attainder still is not identifiable.  If purpose of the bill is punishment, it is a bill of attainder.  Not applicable to procedural matters.  (Originally, death sentence passed by legislature without benefit of trial - legislative decree - Struck Down)

 

          Example:  Congress passed law that presidents' papers must be taken.  Nixon claimed Bill of Attainder - Nixon claimed impetus of the bill was punishment.  Supreme Court did not find for Nixon on issue of who owns presidential papers.  Stated if Nixon had a financial loss, compensation would be made.

 

          Example:  All lawyers must pay a $200 tax - bill of attainder.  Neil Cohen must pay a $200 tax - bill of attainder.  Reaches a particular person or easily identifiable group.

 

4.  Substantive Due Process - limit on legislature's capacity to declare certain actions criminal.  Judicial second-guessing.  Courts ask whether law serves a public purpose/­interest.  U.S. SC now says belongs to legislature.  Does not deal with substantive due process anymore.  At the state level, still viable.

 

5.  DOUBLE JEOPARDY CLAUSE - 5th Amendment bars prosecution for same crime twice, includes merged crimes.

 

 

III.  PUNISHMENT

 

A.  RATIONALES

 

FOUR MOST COMMON RATIONALES: 

1) retribution - societal revenge and expiation (atone for misdeeds through punishment).  Still commands the most public support.  Claimed to suppress acts of private vengeance.  May serve as check against tyranny - you should not be punished unless you did something wrong. 

 

2) incapacitation.  Isolate the offender or disable him from offending.  Requires you to predict future behavior.  When no longer a threat, then you can release.

 

3) rehabilitation  - correction or reformation.  Lose motive to do crime.  Must predict future behavior.  Most in conflict with the other rationales.

 

4) special deterrence - exposing a criminal to sufficiently distasteful punishment, that individual will lose the desire to commit crimes.  

4) general deterrence - punishment will hopefully deter other would-be criminals from committing crimes.  Deterrence - important in cases like income tax evasion where system relies on self-assessment.

 

5)public education - inform the general public of what conduct is deemed socially unacceptable.

 

Regina v. Dudley and Stephens.  An innocent person may not be killed in order to save the life of another.  Where the victim has not assaulted or otherwise endangered the killer, the killer has not, by necessity, been placed in a position which permits him to kill the innocent victim.  The extreme necessity of hunger does not justify larceny, nor can it justify murder.  While, generally, the preservation of one's own life is a duty; in some cases, the highest duty may be to sacrifice it.  Neither can the temptation caused by hunger be called an excuse.

          COMMENT:  While this case actually discusses a defense to murder, necessity (which here did not excuse the murder), the case appears here in the casebook more for its moral discussion of why the defendants, unwillingly placed in a tragic situation,  must be punished for their act.  The court notes that "Law and morality are not the same, and many things may be immoral which are not necessarily illegal," but that law would be divorced from morality if the temptation to kill, which arose, could be an excuse for the actual killing.  Even if the temptation were a valid excuse, who is to determine who must die so that the others might live?  (The death sentence was later commuted by the crown to six months' imprisonment.)

 

2.  SENTENCING

 

Since 95% of those charged with crime enter a plea bargain, the only issue is sentencing.

 

TREND - jurisdictions adopt sentencing schemes which place the greatest emphasis upon the nature of the crime which was committed and comparatively little upon the characteristics of the particular offender - mitigates good behavior argument for parole.

 

TREND - Retribution became dominant over rehabilitation in the early 1970s.

 

Sentencing procedures have changed radically in the last few years.  Judges decide sentences in all 50 states.  Effect of statutes:  REDUCE JUDGES' DISCRETION.  Predominantly, legislature sets both min and max sentence for a crime.

 

Right of allocution - right to speak at sentencing.

 

When a jurisdiction's jails and prisons are full, sentencing decisions must reflect this reality.  Emergency valve - early release due to unconstitutional overcrowding.

 

Sentences can be determinate and indeterminate.  A sentence of 5-10 years is indeterminate.

 

Incapacitation, rehabilitation, and deterrence - require you to predict future behavior and dangerousness.

 

"Equal Protection" has infrequently been successful in challenging sentences or sentencing procedures.  The key is finding an impermissible discrimination.

 

No federal parole.  15% reduction for good behavior.

 

PROBATION - suspend execution and suspend imposition.  In the case of a probation violation, the court may be bound by the original prison sentence it imposed in the suspended execution model, but has no such limits in the suspended imposition model.  Probationers enjoy a conditional liberty that cannot be taken away without certain due process procedures.

 

FACTORS a FEDERAL COURT must consider in determining whether to impose a FINE:  (1) D's ability to pay,  (2) burden that payment of the fine will impose on both the D and his/her dependents,   (3) whether restitution will be made by D to victim.

 

SCANDINAVIAN "DAY FINE" - fine a person the equivalent to a certain # of days pay for work, e.g., 100 days.  This system is fair to both rich and poor, since it punishes them proportionately and equally in terms of relative loss.

 

FORFEITURE OF PROPERTY - another sentencing option.

 

RICO - bars a person from receiving income from racketeering or illegal debt collection activities.  18 U.S.C. ' 1962.  SC has upheld the forfeiture of drug proceeds used to pay for defense counsel.  Book proceeds restrictions against criminals violate First Amendment.

 

RESTITUTION - another alternative to sentencing.

 

DIVERSION - if does not violate law again, or meets community service requirement, charges will not be filed or will be dismissed.

 

PROCEDURES - often the rules of evidence do not apply at sentencing hearings, making hearsay evidence both admissible and frequently used.

 

Minnesota guidelines:  1) prescriptive - establish its own policies;  2) de-emphasize imprisonment for property crimes, and emphasize for violent crimes;   3) in order to attack sentencing disparities, established narrow sentencing ranges (e.g., 30 - 34 months, 50 - 58 months);   4) adopted "just deserts" as the governing premise of its policies concerning who received prison sentences;   5) had to take existing prison capacity as given, thus if lengthened one sentence area would have to shorten in another.   6) forbade consideration of education, employment, marital status, etc. in sentencing decision - to avoid discrimination against minorities, women,  or low income groups.

 

SENTENCING MATRIX - requires the calculation of GRAVITY OF CRIME against CRIMINAL HISTORY.

 

Victim's rights movement = harsh sentence.

 

 

B.  EIGHTH AMENDMENT

 

The Eighth Amendment's cruel and unusual punishment clause is used to challenge the severity of a sentence.  The offender claims that a particular sentence is so harsh that it is unconstitutional.  These claims are rarely successful.  It is not clear to what extent the eight amendment embraces a requirement that sentences be proportionate to the offense.

 

The prohibition has three aspects:  (1) limits the methods which may be used to inflict punishment;  (2) it limits the amount of punishment which may be prescribed for various offenses;  and

 

1.  Status Crimes

 

(3) it bars any and all penal sanctions in certain situations - invalidate California law making it a crime to be "addicted to narcotics."  Robinson v. California.  The punishment (confinement) is not cruel, but the conduct should not be the subject of criminal sanction.  Now laws incorporate actions:  "spreading" AIDS, "driving" drunk

 

Public drunkenness distinguished from status crime in Powell v. Texas.  However, White said some public drunks you cannot punish:  1) homeless and 2) involuntarily drunk.

 

2.  Death Penalty

 

Gregg v. Georgia 1976 the U.S. Supreme Court reinstated the death penalty.  (1) bifurcated hearing, (2) list of aggravating circumstances, (3) tries to be predictable.

Fact that it does not deter does not matter; retribution is sufficient.  Aggravating circumstances list satisfies the concerns of Furman as to capricious and arbitrary administration.  No clear way to weigh aggravating and mitigating circumstances.  Cannot have mandatory death penalty, must allow for mitigating circumstances.

 

TREND:  number of aggravating circumstances has been increasing.

 

MCCLESKEY V. KEMP, (1987).  The death penalty is not unconstitutional because of statistics demonstrating a tendency towards racial bias (victim) in its application.  To prove an Equal Protection violation, a person must prove he was the victim of purposeful discrimination, not a discrim. factor.

 

Payne v. Tennessee (1991).  May include victim impact statement.  No standards for jury use.

 

It is unconstitutional for a state to mandate the death penalty for a certain degree or category of murder; or for those murders unaccompanied by a few specified mitigating circumstances; or for a sentencing judge to disregard as a matter of law relevant mitigating circumstances.

 

capital punishment must "be imposed fairly, and with reasonable consistency, or not at all," for "a consistency produced by ignoring individual differences is a false consistency."

 

8th Amendment requires some proportionality - cannot have death penalty for nonheinous felony.  Minors can be executed.

 

3.  Cruel & unusual punishment in other contexts

 

Courts have seldom held a punishment may be cruel due to excessiveness.  Courts are seldom to strike down sentence on proportionality grounds.

 

Harmelin v. Michigan 1991.  No majority opinion today on PROPORTIONALITY.  Harmelin given a life sentence for drug possession.  Today, if we have a grossly disproportionate sentence - "way out of whack" - seven justices would strike.  Scalia's approach would remove proportionality for noncapital crimes.

 

Legislatures and judges can give pretty severe penalties.

 

C.  BURDEN OF PROOF

 

1.  MULLANEY v. WILBUR (1975).  Maine homicide statute struck down that enabled state to get conviction for murder without proving malice aforethought.  D had to prove manslaughter/heat of passion of automatically charged with murder.  Court said this law denies Due Process by shifting burden of proof onto D.  For a constitutional law, the state must prove each element of its case beyond a reasonable doubt.  The prosecution must prove the absence of the heat of passion on sudden provocation when the issue is properly presented in a homicide case.

 

2.  In PATTERSON v. NEW YORK, (1977), the Supreme Court held that the modern "extreme emotional disturbance" version of "heat of passion" could be interpreted as an affirmative defense w/o a denial of DUE PROCESS.  As an affirmat. defense, the burden of proof was on the D who raised the defense.  Separate defense from elements of the crime - consti. permissible. 

 

3.  Burden of production - responsible for producing evidence, government.  D no burden.  Burden of persuasion - gov't must convince jury.  Burden shifting - prima facie case frequently.  If D asserts insanity, must introduce evidence to support a prima facie case, then burden shifts to gov't to get negative.

 

          MARTIN v. OHIO.  Common law rule placing burden for proving self-defense on D held constitutional.  Burden of production on D.  An affirmative defense does not negate an element.  (Only Ohio and South Carolina have not abandoned the common law rule and require the prosecution to prove the absence of self-defense when raised by the D.  Could juror feel reasonable doubt about self-defense but not preponderance of the evidence?  Is beyond a reasonable doubt for elements sufficient?

 

          Indiana has been trying to write laws that say "possession of another's property is theft" then allow defense for permission, emergency = changes lack of consent from element and shifts burden to D.

 

4.  Defenses fall under 1) exception, 2) defense, and 3) affirmative defense categories.

 

5.  Mandatory presumptions (i) conclusive or (ii) rebuttable, and permissive inferences.  When conclusive, gov't does not have to prove intent only, e.g., unexplained presence.  After FRANCIS v. FRANKLIN (1985), prosecutors cannot use presumptions to prove an element of a crime; state must prove each element beyond a reasonable doubt.  Reasonable presumption allowed in defense:  a mandatory presumption that works to disprove an element (i.e. helps the D and does not remove any of the state's responsibility to prove each element) is constitutionally permissible.  In other words, not all presumptions are invalid in criminal cases.  On the prosecution side, "presumption language" replaced with "inferences" today for jury instructions.  Permissive inferences do not violate the Due Process clause unless the conclusion is one that reason and common sense would not justify in light of the proven facts.

 

          Court does not decide issue of whether a mandatory presumption that shifts only a burden of production to the D is unconstitutional.

 

 

                                           PART TWO: CRIMES

 

I.  THE CRIMINAL CODE

 

Exception - burden on D by preponderance of evidence.  State does not have to prove anything.  Exception: law enforcement officer carrying a gun on school property.  Burden of persuasion on D.

 

Defense - burden on D to produce.  Burden of persuasion - on gov't beyond a reasonable doubt.  To escape acquittal, gov't must negate defense beyond a reasonable doubt.  Insanity, self-defense.

 

Affirmative Defense - Burden on D for production and persuasion.  51% probability must be established by D. 

 

"Intoxication" is not a "defense" in TN, but it can get you off the hook like a defense 1 really is a defense.

 

By default if you can't tell, it is a defense.

 

Rule of Lenity 2 rule of strict construction against the gov't.  Close cases tilt in favor of D.

 

TREND = many states want an unbiased reading, interpretation of their criminal statutes just like any other statute.  No bias on vague provisions against the government.

 

 

II.  BASIC ELEMENTS:  the body and mind

 

Elements of a crime:  1) wrongful act - actus reus;  2) mens rea - evil mind;   3) resulting harm    4) circumstances    5) causation (both factually and proximately)

 

Relationships:  mind must actuate the act; the act must cause the harm.

 

Example:  drive to someone's house intending to shoot/kill him, and runover by accident instead.  Link between mens rea and actus reus not present.

 

Split second in time fixes mens rea and actus reus.

 

The physical act and the mental state must exist at the same time.

 

 

A. ACTUS REUS  - "voluntary" act as well as an omission where there was a duty to act.  "Voluntary act" has imbedded mens rea component. 

 

Omission of duty - duty limits liability from the whole world.  Duty to Act:  (1) statute, (2) contract, (3) relationship,  (4) voluntary assumption of care/rescue attempted,  (5) creation of peril.

 

kill someone while in convulsion - no crime.  Acting like automaton or automatically - no actus reus, not voluntary, must look inside criminal's head.

 

If you start to provide assistance, you must continue.

 

conscious exercise of the will.  Contrast:  (1) conduct that is not the product of the actor's determination;  (2) Reflexive or convulsive acts;  (3) unconscious or asleep - unless D did so purposely to engage in dangerous behavior.

 

Actus reus - required by 8th Amendment, Powell v. Texas leading the way.  Yet TN has no actus reus in our new criminal code. ??? 

 

B.  MENS REA - the more mens rea elements, the more prosecution must prove.

 

Four mens rea elements in a modern penal code:  1) intentionally (in common law `purposefully, willfully,'  2) knowingly - I thought it would happen,  3) recklessly - I thought it could happen and went ahead,   4) criminal negligence - I should have known. 

 

Higher degree of fault suffices.

 

          strict liability crimes - have no mens rea element.  There are few strict liability crimes.  (prosec. would like few or no mens rea elements, therefore strict liab. is ultimate)  Normal routine way - conviction based on circumstantial evidence.  Example:  speeding (intent not important).

 

For knowingly, "reasonably certain" < "practically certain"

 

negligently - only mens rea element that does not have subjective component.  Must have gross deviation; otherwise only collect in tort law.

 

recklessly - aware of risk and disregarded it (subjective) also an objective element on gross deviation from standard of conduct of a reasonable person.

 

2.  Enumeration of Specific Intent Crimes

 

1)  Solicitation:  intent to have the person solicited commit the crime;

 

2)  Attempt:  intent to complete the crime;

 

3)  Conspiracy:  intent to have the crime completed;

 

4)  First degree premeditated murder (where so defined by statute):  premeditation;

 

5)  Assault:  intent to commit a battery;

 

6)  Larceny and robbery:  intent to permanently deprive the other of his interest in the property taken;

 

7)  Burglary:  intent to commit a felony in the dwelling;

 

8)  Forgery:  intent to defraud;

 

9)  False pretenses:  intent to defraud;

 

10) Embezzlement:  intent to defraud;

 

 

3.  Malice - Common Law Murder and Arson

The intents required for "malice" crimes do not take the specific intent defenses.  The common law created this special mental state category especially to deny to murder the specific intent defenses:  voluntary intoxication and unreasonable mistake of fact.

 

4.  General Intent - Awareness of Factors Constituting Crime

D must be aware that she is acting in the proscribed way and that any attendant circumstances required by the crime are present.  D need not be certain attendant circumstances exist; it is sufficient tha she is aware of a high likelihood that they exist.

 

          a.  Inference of Intent from the Act

 

          b.  Transferred Intent - applies to homicide and battery.  Does not apply to attempt.  Example:  A shoots at B, intending to kill him.  She hits C, only wounding him.  While A may be guilty of attempted murder of B, she is not guilty of attempted murder of C. 

 

5.  Model Penal Code Analysis of Fault

 

          a.  Purposely, Knowingly, Recklessly

          b.  Negligently

 

Example:  With liability for "knowingly makes a sale of an intoxicating beverage to a minor, the Model Penal Code would require D know (1) sale took place, (2) beverage was intoxicating, and (3) purchaser was a minor.

 

 

C.  VICARIOUS LIABILITY & CORPORATE LIABILITY

 

Employer responsible for employee.  Attribute the actus reus to another; requires NO PROOF of ACTUS REUS by the D.  Strict liability crime.  He is responsible unless he is "powerless to stop it."  Differentiates from status crime.  Duty is very high.  Social policy to make him do everything possible.  Do not use reasonable person test.  (?-why not)  Areas for concern:  public welfare, public safety, food distribution/public health; environment.

 

UNITED STATES v. PARK

CEO of Acme found guilty of allowing rats to contaminate his food - actually just found in warehouse.  The only way a corporation, such as Acme, can act is through people.

The liability under the act is limited to corporate employees who have a "responsible share" in the furtherance of the transaction which the statute outlaws.  Moreover, the principle is recognized that a corporate agent, through whose act, default, or omission the corporation becomes guilty of a crime, is himself guilty of the crime.  Finally, the Act imposes not only a positive duty to seek out and remedy violations but also a duty to implement measures that will ensure that violations will not occur.  However, the Act does not require that which is objectively impossible.  Ultimately, the government must prove beyond a reasonable doubt the defendant's guilt.

 

The imposition of corporate liability does not affect the criminal responsibility of the actual perpetrator.  Hence, both the corporation and the guilty employee may be convicted of the offense.

 

 

III.  CRIMES AGAINST PERSONS

 

Contrast "common law" with modern provisions:  1) "malice aforethought" vs. NY v. Patterson (extreme emotional distress);    2) fetus had to be born alive  vs. crime of killing of a fetus;    3) dead when heart stopped vs. brain death standard.

 

Common law murder:  malice aforethought 4 types:  intent to kill, intent to injure seriously, commission of a felony, recklessness "depraved heart"

 

Common law manslaughter:  no malice aforethought

 

A.  HOMICIDE:  TRADITIONAL

 

1.  Malice Aforethought

 

          a.  Intent to Kill - yes - her goal was to kill Clarence.

          b.  Intent to Commit Serious Bodily Injury - yes (part of intent to kill)

          c.  Recklessness - yes, throwing a hand grenade in the park.

          d.  Felony Murder Rule - yes (killed Walters while trying to murder Clarence; also some kind of weapons felony for exploding, possessing, etc. an active hand grenade; state statute ' 123.4, malicious destruction.

 

2.  First Degree Murder

 

          a.  Willful, deliberate, premeditated

 

          i.  Willful - was intentional killing; purposeful; transferred intent.

                   Did it matter that she changed her mind and tried to retrieve the grenade before it exploded?  She no longer had the intent to kill at the time the victim was killed.  But was her change of mind too late?

          ii.  Deliberate - act performed with a cool mind

                   She appeared to plan the crime carefully; she concealed herself; no evidence of rage

          iii.  Premeditation - some advance reflection (however short)  (See deliberation facts)

          iv.  Was he "lying in wait" when she hid behind a tree? if so, this may be evidence of willful, deliberate, and premeditated action.

          v.  Use of poison also captures the three mens rea elements.

          b.  Felony-murder

          Unless attempted first degree murder is a listed felony, is probably no felony in the list of those qualifying for first degree murder.

 

3.  Second Degree Murder

 

          a.  Assuming there is malice aforethought - see above

          b.  Willful, deliberate, premeditated (at least one misssing/missing link)

          c.  Recklessness - reckless killing

          d.  Felony murder - not one of the five or so felonies listed; don't need intent to kill

          e.  Intent to injure homicide

 

4.  Voluntary manslaughter

          a.  Heat of passion

          i.  Facts say Geogina hated Clarence

          ii.  Since reason for the hatred is unclear, don't know whether it would be legally sufficient provocation.  Worth a sentence to raise the issue.  OBJECTIVE standard -REASONABLE PERSON - do not consider particular sensitivities.

          iii.  Note:  there was advance planning, so was there adequate cooling time?  A brooding case?

 

5.  Involuntary manslaughter

          a.  Misdemeanor Manslaughter Rule

          i.  Misdemeanor weapons violation?  Vandalism?

          b.  Criminal negligence - gross deviation from standard of care

          i.  Throwing hand grenade in Central Park

                   - others obviously around

                   - inherently dangerous act

          ii. careless driving

 

B.  HOMICIDE:  MODERN STATUTES

 

1.  Many varieties

2.  Intentional homicide

          a. Transferred Intent

3.  Knowing homicide - 2nd degree murder in NY

          a.  Transferred knowledge?

4.  Reckless homicide

          a.  Role of commission of felony, no mandatory or rebuttable prosec. presumptions

5.  Voluntary Manslaughter

          a. Now more SUBJECTIVE (was this person provoked?)

6.  Criminally negligent homicide - replaces invol. manslaughter in NY

 

Difference between modern and common law statutes on homicide:  1) if you eliminate death penalty, may remove the need for Murder 1 and Murder 2;   2) extreme emotional disturbance 3 heat of passion (change of language only);    3) Common law was easier to prove recklessness - now unconstitutional for prosecution to have mandatory or rebuttable presumptions;  4) eliminate felony murder rule;    5) no misdemeanor manslaughter rule;  6) malice aforethought;    7) manslaughter very subjective, does not use as much external standards for legally sufficient provocation.  Does away with reasonable person.

 

Relation Murder 1 and Volun. Manslaughter:  different interpretation of the same facts.  Cooling off period vs. brooding and building up.

 

Relation Murder 2 and Involuntary Manslaughter:  degree of criminal negligence vs. recklessness - fact in question.

 

Reforms of felony murder rule to accommodate criticism that accidents are put into the same category as more blameworthy crimes:  1) felonies must be inherently dangerous;  2) proximate cause;   3) merger - we don't consider battery as separate felony automatically triggering murder.

 

1.       Murder 2 argument for Beth Kavel's killing of Harvey Cedars (p.B37) -- homicide during felony murder, may qualify for recklessness using objective vs. subjective test

2.       Manslaughter - heat of passion but lacks legally sufficient provocation.

 

Imperfect Self-Defense:  leaves D open to volunatry manslaughter

 

TREND - aggravating circumstances group keeps growing.

 

 

2.  OTHER CRIMES

 

A.  ASSAULT

 

1.  Traditional

          a.  Willful AND unlawful

          b.  Attempt to offer, with force or violence, to do a bodily hurt to another

          c.  (includes attempted battery and reasonable apprehension of immediate battery assaults)

          d.  transferred intent applies.

 

2.  Modern

          a. attempts to commit a violent injury to another

          b.  commits act -> reasonable apprehension of immediately receiving a violent injury.

          c.  some jurisdictions tack on ability to commit the assault.

 

Simple Assault - misdemeanor - intentionally, knowingly, recklessly (no negligently) requiring 1) attempt to commit bodily injury,  2) apprehension of imminent bodily injury. 

Felony Aggravated Assault - 1) causes serious bodily injury (includes pain and impairment of mental faculty),    2) uses or displays a deadly weapon.

 

2 Categories of Assault:  1) carefully thought-out threat,   2) situational crime, bar room brawl

 

          Example: case where fraternity brother rubs elbow of another.  Argue against assault:  not an offensive touching.

 

B.  BATTERY

 

1.  Traditional

          a.  Willful AND unlawful

          b.  Use of force upon the person of another

 

2.  Modern

          a.  Intentionally OR knowingly

          b.  Without legal justification

          c.  Or by any means - captures negligent battery

          d.  Causes bodily harm to an individual

          e.  makes physical contact of an insulting or provoking nature with an individual

 

3 kinds of BATTERY:  (1) intentional, (2) criminally negligent battery, (3) aggravated battery (with intent to rape, murder, serious bodily harm).

 

MERGER DOCTRINE bars conviction for both battery and murder.

 

C.  RECKLESS ENDANGERMENT - something that creates an UNREASONABLE RISK.  NOT A SPECIFIC INTENT CRIME.

 

 

IV.  CRIMES AGAINST PROPERTY

 

Thief - someone who disregards traditional property relations.

 

Custody - an owner places goods temporarily in someone else's control.  Don't own it, don't have the right to alter.  Employer gives to employee to give to someone else.**

 

Possession - exclusive control, intent to exercise, separate from ownership.  Larceny is crime from someone's possession.

 

Bailment - Bailor entrusts goods to bailee.  Usually by contract.  Example:  give clothes to cleaners.  A bailee has possession, no custody.  Therefore, if cleaner keeps clothes, not guilty of larceny.  He already has possession.

 

Title - ownership = bundle of interests.  Legally entitled, exclusive.

 

Abandoned property - belongs to nobody.  Original owner relinquished interest.

 

1.  LARCENY:  (1) trespassory, (2) taking, and (3) carrying away, (4) of personal property, (5) of another, (6) with intent to steal; and is classified as either grand or petit, depending on whether value is > $50.  Must take with evil mind from another's possession.  Example:  Third party to servant (gets possession & keeps) then supposedly to master:  no larceny.

 

          Larceny by trick - obtain possession through deceit.  Key: evil mind at time of acquiring possession.  "Constructive possession" fiction.

 

          Larceny by bailee - where bailee acquires lawful possession then converts it.  If bailee misappropriates the entire bale without breaking it open, it was not larceny.

 

          Steal files and return - no larceny, so long as files not depleted in value.

 

          Asportation - "moving every part of it"  "carrying away".  Most modern codes do not use this concept.

 

          Owner can commit larceny of his own property:  rental car repossess.

 

          Prove intent with circumstances.  JOYRIDING - temporary taking.

 

          MODERN STATUTES (1) differentiate misdemeanor petit larceny from felony grand larceny, (2) cover both theft of property and services,  (3).

 

          Nature of property:  must be tangible personal property.  A deed, representing real estate, or a contract, representing an intangible right to performance, could not be stolen.  Also in common law one could not steal intangibles such as stocks, bonds, checks, promissory notes, all of which are documents.

 

          VALUE - often divided into grand larceny and petit larceny; inflation tilts more toward grand larceny.

 

         

2.  Embezzlement - one, who through position of trust, obtains lawful possession of another's property, then turns evil and converts.  (agents, servants, employees)

 

          Servant who takes property intended for his master from a third party, the servant acquires possession, and his misappropriation is not larceny, it is embezzlement.  If he puts money in the cash register first, then takes it, it is larceny providing the cash is in the register long enough for master to acquire possession.

 

          a.  Fraudulent Breach of Trust  - fiduciaries;

          b.  Fraudulent conversion - anyone, but must have clean mind.

 

          At common law, embezzler punished less than larcenist due to expectation for less violent behavior.  Modern statutes treat the same.

 

3.  False pretenses - obtain ownership (title) by deceit.  (Cousin of larceny by trick)  Misrepresentation of past or present fact such that (1) one obtains title, title passes by trick, affirmative misrepresentation;  (2) fact must be material.  Mens rea - must know that it is false and must (3) intend to defraud.  Example:  forgery.

 

4.  Extortion - obtain property by threats to do something in the future, ordinarily not involving physical harm; does not have to be threat of violence.  "blackmail"   Common law:  public official taking a bribe.

 

 

How Obtained                          What Person Obtained

                                      Possession                               Title

Stealth                            larceny                                    

Deceit                             larceny by trick                         False pretenses

Force/Threat                             extortion, robbery                     XXXXX

Rightful, then convert      larceny by bailee                       American way

 

 

5.  Robbery - (1) trespassory (2) taking and (3) carrying away of the (4) personal property OF ANY VALUE  (5) of another  (6) with intent to steal it PERMANENTLY +  (7) taken from the person or his presence of the other and (8) accomplished by force of putting in fear.  "mugging"

 

animus furandi - intent to steal; does not need intent to convert to one's own use, only deprive the owner of the property.

 

          Value of property not affected

 

          Negated by:  (1) honest mistake to claim of ownership;  (2) takes with intent and ability to return in a reasonable time;  (3) practical joke - still not blameless.

 

          Person:  includes homicide victim,

 

          Violence line between larceny and robbery:  not easy to draw.  Include "snatching" cases.  May also render victim helpless by blow or drugs.

 

          Aggravated/Armed Robbery:  Use of a dangerous or deadly weapon, inflicted serious bodily injury, had an accomplice, or used dangerous instrumentality.

 

          CONTRAST with Larceny from person - "purse snatching;" elderly woman falls and breaks hip, but not enough violence to constitute robbery.  Pickpocketing can be larceny or larceny of the person.

 

          Classification DEPENDS on POTENTIAL HARM not acutal harm to the victim.

 

 

6.  Receiving Stolen Property  "fence"

          a. receives or conceals

          b. stolen property

 

Mens rea:  (1) knowledge that stolen, and (2) intent to deprive owner PERMANENTLY

 

requires more than "put in my greasy hands"

 

If thought goods were legit, then find out stolen and keep, then "concealing" catches you.

 

Ambiguous what "stolen" means - false pretenses, extortion, etc.

 

"Knowledge" does not mean certainty, only belief.

 

Not guilty - if you think it is your property, or purchase with intent to return to owner.

 

ordinarily - treated the same as larceny.

 

 

7.  Consolidated Theft Crime - embezzlement, false pretenses, fraud conversion, receiving stolen property, extortion ... now all rolled up (in Tennessee) in theft crime 39-14-103.  "knowingly obtains or exercises control over property without the owner's effective consent."  Old distinctions - custody, possession - eliminated.  False pretenses - handled by "effective consent."

 

8.  BURGLARY - common law (1) breaking and entering of the (2) dwelling place of another (3) in the nighttime (4) with the intent to commit a felony.

 

          entry through pre-existing open door or window:  no breaking.  Opening of a door closed but not locked:  sufficient breaking.  Entry by fraud or force:  constructive breaking.

 

          MODERN CODES:  no "breaking" - use "unlawful" instead; kept "entry"; replace "dwelling" with any building,  no "night".  Permit affirmative defense that the building was abandoned.  Aggravated burglary - burglary of a habitation.  

 

          Access crime not subject to MERGER.  Can be convicted of both burglary and rape. 

 

9.  INCHOATE CRIMES - "foreplay" of criminal law:  1) assault,  2) burglary (real purpose is theft or kill),   3) attempt,   4) solicitation,   5) conspiracy.

 

Focus on dangerous person - actor, authorizes law enforcement to intervene.

 

A.  ATTEMPT

 

1. TRADITIONAL

          a.  intent for criminal conduct - prevents us from having "attempted negligent or reckless crimes."  If intent present, then not negligent or reckless.

          b.  specific intent for the underlying crime

          c.  an overt ACT beyond the PREPARATION stage

          d.  No ABANDONMENT defense.  Once you cross the perpetration line (requisite acts with criminal intent), you are guilty, regardless of whether you change your mind.

 

2.  MODERN STATUTES

          a.  Permit renunciation defense (religious conversion):  VOLUNTARY and COMPLETE ABANDONMENT.

          i.  Change mind when you see cops are present - no renunciation or negation of your intent.

          ii.  Involuntary abandonment is no defense.

          iii.  Burden of proof on D to show a manifested act to prove his renunciation.

          iv.  Decision to postponse crime until another time 4 abandonment.

 

3.  OVERT ACT

The overt act must be beyond mere preparation for the offense.  Look at all circumstances for corroborative evidence.

 

          a.  Proximity Test - have done everything he believes necessary to bring about result; physical and time proximity to intended crime.  (Used most often in TRADITIONAL jurisdictions)  (the more remote in time and space, the less likely a court will find attempt)

          b. ordinary course of events would lead to crime except for the intervention of some extraneous factor; likelihood that crime will be committed.  (the more likely D's act will result in a crime, the more likely a court will find attempt). 

          c.  Equivocality Test/Res Ipsa Loquitur Test:  If D's acts do not on their face indicate criminal intent, some courts will not convict for criminal attempt.  Act itself is evidence of unequivocal criminal intent - *** different from other types of crime **;

          d.  manifested "dangerousness" of the person;  (the more clearly the D's conduct has been manifested, the more likely a court will find attempt)

          e.  the seriousness of the crime.  The more serious the crime, the further back in time the court may reach to find an attempt.  

          f.  MODEL PENAL CODE Approach - "SUBSTANTIAL STEP":  possession of mater­ials to be employed in the crime, unlawful entry, lying in wait, etc.  The "step" must be "strongly corroborative of the actor's criminal purpose.  ALSO uses act to establish INTENT.

 

4.  Defenses to Liability for Attempt

 

          LEGAL IMPOSSIBILITY - where D has done all the acts intended, but his conduct does not constitute a crime.  Example:  person who erroneously believes he is in a country forbidding alcohol sales, buys or attempts to buy some liquor.  Legislature must define as crime first.  Self-defining criminality (e.g., picking nose)

 

          FACTUAL IMPOSSIBILITY - D is unable to accomplish his criminal purpose because of facts unknown to him.  Not a legal defense.  Example:  pickpocket who finds an empty pocket.  Still charged with "Attempt"

 

          MIXED FACT-LAW IMPOSSIBILITY - most troubling to the courts, mixed results, generally not a defense.  D did all acts intended in an area covered by criminal statutes, but cannot be convicted of the substantive offense because of a factual mistake pertaining to the legal character of a collateral matter.  Example:  A bribes B on the erroneous belief that B is a juror.

          Example:  Police sell "goods" to C, who mistakenly believes they are stolen.  Can be charged with attempt to receive stolen goods.

 

          People v. Jaffe  D purchased certain goods in the mistaken belief they were stolen.  Ct of appeals reversed conviction of attempt because "if the accused had completed the act which he attempted to do, he would not be guilty of a criminal offense."  Jaffe analysis rejected in cases where person thought the cigarette he smoked contained marijauna, the drugs he sold or received contained heroin, the girl with whom he had sex was alive, or the man he shot was alive.  One form of LEGAL IMPOSSIBILITY DEFENSE.

 

                   Modern Penal Code rejects Jaffe because it does not look at actor's "intent" or "purpose" but rather at situation wholly at variance with the actor's beliefs.  Attempt liability should be imposed.  Actor has manifested his dangerousness and clearly demonstrated his criminal purpose.

 

          Wilson D changed a draft from 2.50 to 12.50.  He did not change wording "two dollars and 50/100 dollars" or the marking "ten dollars or less."  But forgery statute requires a change in a material part of the draft.  D may have thought he was committing a crime, but if he did it was not because he intended to do something that the criminal law prohibited but rather because he was ignorant of the material alteration requirement of the crime of forgery.  Not guilty of either forgery or attempt to commit forgery.  Application of Principle of Legality:  D did not intend to do anything that had been made criminal, and what is not criminal may not be turned into a crime after the fact by characterizing his acts as an attempt.

 

          INHERENT IMPOSSIBILITY - D employs means a reasonable man would view as totally inappropriate to the objective sought.  Example:  voodoo doctor put pins in a doll to commit murder.  (Others argue he might try a gun next time).

 

5.  Double Jeopardy prohibits prosecution for both crime and attempt of that crime

 

6.  Serves the important function of allowing law enforcement officers to INTERVENE in time to prevent crime.

 

7.  In Tennessee, attempt - punishment 1 level below crime attempted.  An attempt indicates disposition toward such activity - REHABILITATE.  General deterrence - minor function of the law of attempt.

 

          voluntas reputabitur pro facto - the intention to be taken for the deed.

          insidiator viarum - one who lies in wait to commit an offense

 

 

B.  SOLICITATION

 

MERGER DOCTRINE - bars conviction for both solicitation and conspiracy in many jurisdictions.

 

Modern statutes allow a renunciation defense.  Minor crime.  Does not have to be successful.  NOTHING ELSE NEED BE DONE***  Ordinarily occurs before you cross line for attempt.  Must have intent for committing the crime.

 

Every time solicitation is successful = conspiracy, as long as both are serious (not an undercover cop).  Solicitation = attempted conspiracy.

 

In TN, punished two levels below the crime.

 

 

C.  CONSPIRACY - punishes group interest; NO MERGER bar against prosecuting for substantive crimes.  In Tenn, punished one notch below crime intended, which can increase sentence by 75%.

 

1.  TRADITIONAL

          a.  Intent to enter into an agreement; may be inferred from conduct; intent cannot be inferred from mere knowledge - person who sells someone a gun.

          b.  Intent to accomplish some criminal or unlawful purpose or accomplish some lawful purpose by unlawful means.  CORRUPT MOTIVE DOCTRINE - usually applied to offenses malum prohibitum.  Parties must know their objective was criminal.

          c.  agreement/UNDERSTANDING between 2 or more people; agreement itself is the actus reus.

          d.  covers any act injurious to public health, morals, or obstruct justice

          e.  conspiracy for general crime, ordinarily not a serious offense.  conspiracy for specific crime, e.g., bribing a public official, punished at one level below underlying crime.

          f.  PINKERTON RULE - charge other members with remote offenses caused by one conspiracy member if (1) further objectives of conspiracy and (2) foreseeable consequence.

          g.  Must be meeting of TWO or MORE MINDS.  Eliminate conspiracy convictions where one party was an undercover cop.

 

2.  MODERN

          a.  object of conspiracy be a specific proscribed offense

          b.  Intent to achieve the objective of the agreement; must be established for each individual defendant

          c.  overt act in furtherance of the conspiracy, but mere preparation will usually suffice.  (Contrast with "substantial step" of attempt)

          d.  Reject Pinkerton Rule; use accomplice liability approach

          e.  MPC Unilateral conviction approach.

          f.  A few jurisdictions permit renunciation as a defense to the conspiracy charge itself.

 

          (1)  VENUE RULE - prosecutors are allowed to bring charges in any location (venue) where an act in furtherance of the conspiracy occurred.  Thus, Dr. Spock charged in Seatlle with conspiracy to burn draft card for speech given in Boston.

 

          (2)  CIRCUMSTANTIAL EVIDENCE - marginally relevant, circumstantial evidence is often admissible.

 

          (3)  HEARSAY ALLOWS - relaxed evidentiary rules; any statement of a conspirator in furtherance of the conspiracy is admissible against any co-conspirator.

 

          (4)  Understanding Element - oral agreement with faded edges.  Does it include an escape?  All subjective - may not agree on all parts.  It takes two to conspire.  We look at the intent in both their heads.  If one thinks in conspiracy and other doesn't = no conspiracy.  Does each know they are in a conspiracy with unknown others?  In prosecution, we look at what they intended on an issue they never thought about.  Agreement - who is in it, when does it begin and end, rarely written.

 

                   POSSIBLE TO CRIMINALIZE THOUGHTS - Axle Sally may not have done anything in the CB radio conspiracy.

 

          (5)  FORMS of CONSPIRACY:  (1) Spoke Wheel (hub and spoke).  Pinkerton Rule especially important for this form.  (2) Chain Link - we can draw conspiracy circles around part or all of the links.

 

          (6)  PINKERTON RULE:  each member of the conspiracy is responsible for crimes committed by every other member of the conspiracy that are foreseeable.  To determine number of conspiracies in a group - jury question based on "understanding" - immense consequences.  Example:  charged with conspiracy to sell drugs and murder.  (Is it foreseeable?)  Problem on p.B87:  Axle Salley could be charged with conspiracy to obstruct justice and 2nd-degree/reckless murder (of the hitchhiker).  The substantive crime must be reasonably foreseeable to be charged with it.  Great expands liability, but unfair element.

 

                   MODERN APPROACH:  TREND:  Most jurisdictions have rejected the Pinkerton rule.  In these, liability for the substantive crime must be proved by the regular rules of accomplice liability rather than through the actor's participation in the conspiracy.  In order to be guilty of the substantive offense, the accomplice must, with few exceptions, have aided, encouraged, counseled, abetted, assisted, or in some other manner furthered the commission of the crime.

 

          (7)  Where two persons are charged with conspiracy, an acquittal of one is generally held to bar the conviction of the other.  The acquittal of all people with whom D is alleged to have conspired precludes conviction of the remaining D.

 

          (8)  Generally solicitation proceeds conspiracy, but not always:  e.g., CB radio conspiracy has no solicitation.

 

          (9)  Comparing CONSPIRACY and ATTEMPT:  (1) Conspiracy may require an act; attempt always requires an act.  (2) For conspiracy, an insignificant act may qualify as an overt act; reason: proves intent, more than just talking about it.  For attempt, the overt act must cross the line to the perpetration stage.  (3) Conspiracy penalizes group activity, but the model penal code has a unilateral approach when dealing with undercover agents.

 

          (10)  Substantive crime must be related to conspiracy to be charged with it.

 

 

DEFENSES TO CONSPIRACY:

 

          1.  ABANDONMENT OR WITHDRAWAL - (i) a defense only for crimes committed after the withdrawal.  May still be charged with conspiracy and with substantive crimes committed prior to withdrawal.  (ii) starts the running of the statute of limitations and terminating the co-conspirator's exception to the hearsay rule for statements made subsequent to withdrawal.   (iii) must effectively communicate to all conspirators and in time for them to abandon their criminal purpose.  Communication satisfy reasonable man test.  Some statutes permit notification to police in lieu of other conspirators.  (iv) few modern statutes permit renunciation to be a defense to charge of conspiracy itself.

 

          2.  WHARTON'S RULE - a conspiracy conviction will not lie where concerted action is necessary to commit the substantive crime which is the objective of the conspiracy and no more than the minimum number of persons required for the substantive offense has participated in it.  Rule of statutory construction.  Can't commit adultery by yourself or gamble - requires 2 or more - therefore, if only two people, charge with gambling but not conspiracy to gamble.

 

 

          3.  Factual impossibility is no defense. 

 

          4.  Violates First Amendment right of free speech.  Statute may suffer from vagueness and overbreadth.

 

          5.  In Tennessee cannot have conspiracy for class C misdemeanor, because conspiracy penalty is one level below substantive crime.  Can have conspiracies for class A & B misdemeanors as well as for felonies.

 

 

VII.  PARTIES TO CRIME

 

A.  PRINCIPALS AND THEIR HELPERS - Accomplice liability permits you to determine who is guilty of the substantive crime without regard to the existence of a conspiracy.

 

          Two ways to analyze culpability of other parties:  (1) accomplice liability, and (2) conspiracy with Pinkerton Rule.  Without Pinkerton Rule, conspiracy law is of limited use.  It would not tell you who is guilty of the substantive crime.

 

1.  THREE CLASSIFICATIONS OF THOSE INVOLVED IN A CRIME:  (1) those who incite or aid another in committing a crime;  (2) actual perpetrators of the crime;  (3) persons who aid the perpetrator after the crime has been committed.  Persons giving post-crime aid are often punished less severely than those furnishing pre-crime aid.  In common law the distinction between the three groups was sharply drawn; now tendency to assimilate inciters and aiders (often lumped together under the heading accomplice).

 

2.  COMMON LAW/Traditional CLASSIFICATION FOR PARTIES TO A FELONY:  (1) Principal in the first degree - one who personally or with non-human instruments or through an innocent agent actually committed a crime.  For any felony, there could be more than one principal in the first degree.  (2) Principal in the second degree - originally called "accessory at the fact" and also "aider" and "abettor" - one who aided, assisted, counseled, commanded, or encouraged the principal in the first degree or stood ready to render aid if needed.  (3) Accessory before the fact - one who ordered, counseled, encouraged, or otherwise aided the commission of a felony, but who was not present at the crime.  (4) Accessory after the fact - one not involved in the commission of the felony who concealed the felon or otherwise aided the felon to escape detection, arrest, trial, conviction, or punishment.    (1) - (3) are subject to the same punishment; (4) is subject to less severe sanction.  Why? - no role in commission of the substantive crime; only obstructing justice.

 

3. COMMON LAW CLASSIF. FOR PARTIES TO A MISDEMEANOR:  all parties involved in a misdemeanor were considered principals, except that an accessory after the fact to a misdemeanor was not guilty of a crime.

 

4.  TRADITIONAL ACCOMPLICE liability for crime of another: (1) intentionally aid, encourage, advise, hire, counsel, or conspire with or otherwise procure the other to commit the crime;  (2) person liable under (1) also liable for any other crime if reasonably foreseeable by him as a probable consequence of committing or attempting to commit the crime intended (PINKERTON);  (3) person may be charged with the crime although the person who directly commits the crime is acquitted or convicted of a different crime, or is otherwise not subject to criminal prosecution.

 

5.  SOME MODERN ACCOMPLICE STATUTES have rejected the reasonably foresee­able - probable consequence (or "natural and probable consequence") approach and limit liability to more direct participation in the crime:  (1) solicits or commands such other person to commit the offense; (2) aids, counsels, or attempts to aid such person in planning or committing the offense; or (3) has a legal duty to prevent the commission of the crime, and fails to make proper effort to do so.  Responsible for conduct of another -solicitation, innocent agent, or omission.

 

6.  MODERN STATUTES - (1) use words "party, principal, or accomplice" rather than "principal of first degree," etc.  (2) mens rea element is intent to commit or aid the commission of the crime.  Therefore, just hiding someone is not enough.

 

          Example 1:  Plumber's beating: 1. first-degree principal under common law;  2. "offense by own conduct" - modern provision.  Example 2: Roomie is 2nd degree principal under traditional; "acting with intent to aid" - modern.  Example 3:  If junior unaware that Roomie is outside to help, Roomie not guilty because he is not responsible for junior's action.  He did not provide any solace/aid.  If Roomie actually does some act, e.g., waits on a customer with intent to prevent discovery, then he is guilty.

 

7.  LIABILITY OF SELLER FOR THE CRIMINAL ACTS OF THE BUYER:  (1) One view, used especially for more serious offenses, is that the seller is liable if he knowingly furnishes assistance which he knows will facillitate the commission of the crime.

(2) MODERN TREND - seller is liable only if he knowingly supplies items that he knows will be used for a crime and also intends (or has "purpose") to promote or facilitate the crime.   (3) a few jurisdictions adhering to the "purpose" standard have created the crime "criminal facilitation" - carrying a less severe sanction than accomplice.  Some have enacted a "compounding an offense" statute.

 

8.  DEFENSE of WITHDRAWAL:  (1) former accomplice must repudiate his prior aid and/or communicate his withdrawal to his fellow criminals in time for them to abandon the planned crime.  Furthermore, some jurisdictions will not accept the withdrawal defense if it was motivated by the increased likelihood of detection.  Some jurisdictions require the withdrawer take active steps to frustrate the crime's accomplishment.

 

 

VIII.  DEFENSES TO CRIME - TREND in Tenn. & 60% other jurisdic. - common law defenses eliminated; defenses are statutorily prescribed.  Public policy - give person a break - they are less morally culpable.

 

FOUR CLASSES OF DEFENSES:  (1) Protection of (societal recognized) Competing Interests - self-defense, defense of others, lawful arrest, crime prevention, defense of property or habitation.  Person must reasonably and honestly believed force was necessary; many jurisdictions require belief of imminent attack; not available to original agressor unless his nondeadly force was met with deadly force or he withdrew from the encounter. 

 

          (a)  Some jurisdictions using "alter ego" approach say rescuer's right to use force is only as great as the attacked person's right to defend himself.  Others say only an "honest" belief is required; others require "honest (SUBJECTIVE) and reasonable (OBJECTIVE) belief."

 

          (b)  use of nondeadly force permitted for defense of property other than a dwelling house from imminent, unprivileged intrusion or theft.  Also used to recapture property wrongfully taken.  Some modern codes extend defense to property of others.  Some jurisdictions require honest beliefs and others hold they must also be reasonable.

 

          (c)  deadly force permitted for defense of dwelling.  Deadly force is generally limited to preventing dangerous felonies.

 

(2) Necessity or Duress/Choice of Evils - violate the criminal law in order to avoid a greater harm.  Difference is whether a natural physical force (necessity) or force from a third party (duress) is the source.  Courts generally hold that a D must select the least harmful alternative.  Common law required that the harm faced be imminent.

 

(3)  Accused disproves or negates the mens rea element:  infancy, intoxication, mistake of fact or law, and consent.  No crime.  In certain situations not permitted to raise these defenses on public policy grounds.

 

(4)  Ignorance of the law - void for vagueness, or ignorance of certain legal principles.  

Insanity - treated later.

 

COHEN's PRESENTATION:  1. Partial Defense - drops offense to lower level, not complete excusing.  E.g., voluntary manslaughter, imperfect self-defense - use excessive force, preemptive strike.   2. Negative Element (negate mens rea)   3. Complete Excuse.  Example: insanity, self-defense.

 

          Doctrine of relative innocence - everyone at fault, but someone is less at fault than another.  (Applications:  Self defense, human life has more value than property, to facilitate arrest of criminals).

 

          Burden of proof:  sometimes on D, sometimes shifts to prosecution, MOST JURISDICTIONS/TREND put some burden on D.

 

A.  TEN DEFENSES

 

1.       Self-Defense - like tort concept, complete defense.  Objective - amount of force used must be reasonable + Subjective - I must honestly believe force is necessary.  Responding to unlawful force (maybe even by police).

 

          Do not need to consider running away as an option.

 

          Escalation - person with white hat changes instantly to excessive force, and loses right to use self-defense.  forget history, take photograph of the time when force is applied.  If using reasonable force to respond to excessive force, then you have self-defense defense.  Sudden escalation - aggressor then has right to self-defense.

 

          Minority of jurisdictions have Safe Retreat Rule - before using deadly force requires safe retreat if possible unless in your home or sometimes in your place of business.  Majority rule - no retreat is necessary.

 

          Retreat vs. withdrawal - person who presses on becomes the aggressor.  Other party must stop.

 

2.  Defense of Others

 

          a.  Does not require special relationship.

 

          b.  "Traditional" approach - "Stand in the Shoes Rule"  Privileged to use the same force for defending a 3rd party as for self-defense.  MAJORITY jurisdictions - mistake is no excuse.  Minor trend - allow for mistake.  Model Penal Code - allow for "honest" mistake.  This one encourages people to help.  In Tenn, reasonable rescuer rather than the original victim's perspective.

 

3.  Defense of a Dwelling

 

          a.  Nondeadly Force is justified whenever reasonable to prevent entry or attack upon one's dwelling.

 

          b.  Deadly Force is permitted in some jurisdictions in defense of habitation where it appears reasonably necessary to save the habitation from destruction, or believe felony will be committed, or tumultuous entry + personal danger.  Otherwise, reasonable force is permitted.

 

          c) Common law and some jurisdictions require the person claiming the defense to have first requested the trespasser to leave.

 

          d) Minority of jurisdiction have extended the defense of habitation to include places of business.

 

4.  Defense of Property - law permits reasonable use of non-deadly force to protect their personal property or property other than a dwelling house from imminent, unprivileged intrusion or theft.  Such force is also permissible for immediate recapture of property reasonably believed to be wronfully taken.  Some modern codes extend these privileges to the protection of another's property.  Deadly force may not be used.

 

          Some jurisdictions require honest beliefs, others require reasonable as well.

 

 

5.  Defense of Crime Prevention

 

          a.  Nondeadly force - A person who honestly, and in most jurisdictions, reasonably believes that a felony or breach-of-peace misdemeanor is being committed or is about to be committed in his presence may use reasonable force to prevent its commission. 

 

          b.  Deadly force is generally limited to preventing dangerous felonies.

 

6.  Use of Force to Effectuate Arrest

 

          a.  By Police Officer

          The use of deadly force to apprehend a fleeing felon constitutes a seizure.  the force used to effect a seizure must be reasonable.  Deadly force is reasonable only when the felon threatens death or serious bodily harm and deadly force is necessary to prevent his escape.  [Tennessee v. Garner (US 1985)].  Thus, a police officer cannot use deadly force to apprehend an unarmed, nondangerous felon; but an officer may use deadly force to prevent a felon from escaping if the felon poses a threat of serious bodily harm to the officer or others.  4th Amendment violation.

 

          An officer may arrest someone without a warrant for a crime that he observes.

 

          OBSERVED CRIMES:  Misdemeanor - no authority;  Felony - probable cause D did it and probable cause crime was committed.

 

          b.  By Private Person

          A private person has the same right to use force to make an arrest as a police officer or one acting at the direction of a police officer, except that the private person has a defense to the use of deadly force only if the person harmed was actually guilty of the offense (i.e., felony) for which the arrest was made.  It is not enough that it reasonably appeared that the person was guilty.  A private person has a privilege to use nondeadly force to make an arrest if a crime was in fact committed and the private person has reasonable grounds to believe the person arrested has in fact committed the crime.

 

          A citizen may arrest someone without a warrant for a crime that he observes.

 

          OBSERVED CRIMES:  Misdemeanor - no authority;  Felony - probable cause D did it and a felony was actually committed.  No leniency for mistake about felony.

 

7.  Resisting Arrest

 

          a.  Right to Resist Person Not Known to Be Police Officer

          An individual may lawfully repel, with deadly force if necessary, an attack made by a police officer trying to arrest her if the individual does not know that the person is a police officer.

 

          b.  Right to Resist Known Police Officer

          OLD RULE:  May a person resist arrest if the person attempting to make the arrest is known to be a police officer?  Yes, nondeadly force may be used to resist an improper arrest even if a known officer is making that arrest.

          NEW RULE:  must submit to arrest whether lawful or not.

 

          c.  When using excessive force whether by officer or citizen

 

8.  Necessity

          Conduct otherwise criminal is justifiable if, as a result of pressure from natural forces, the D reasonably believed that the conduct was necessary to avoid harm to society exceeding the harm caused by the conduct.  The test is objective; a good faith beilef in the necessity of one's conduct is insufficient.  Causing the death of another person to protect property is never justified.  The defense of necessity is not available if the D is at fault in creating the situation requiring that she choose between two evils.

          Example:      Jettisoning of cargo at sea during a violent storm, if necessary to save lives, would not constitute criminal damage to property.  On the other hand, jettisoning some members of the crew to save the cargo would never be justifiable.

 

          a.  Duress Distinguished

          While duress involves a human threat, necessity involves pressure from physical or natural forces.

          Example:      A points a gun a B and threatens to kill B if she does not break into C's house and steal food.  B does as she is told.  B may raise the defense of duress.  If, however, B is a starving victim of a plane crash in a desolate area and commits the same act, she has the defense of necessity.

 

9.  Public Policy

          A police officer (or one assisting her) is justified in using reasonable force against another, or taking property, provided the officer acts pursuant to a law, court order, or process requiring or authorizing her to so act.  Example: executioner.

 

10.  Domestic Authority

          The parents of a minor child, or any person "in loco parentis" with respect to the child, may lawfully use reasonable force upon the child for purpose of promoting the child's welfare.

 

 

B.  THE DEFENSE OF DURESS

 

          A person is not guilty of an offense, other than homicide (in some jurisdictions), if he performs an otherwise criminal act under the threat of imminent infliction of death or great bodily harm on himself or a third party.  Act committed under duress is termed excusable rather than justified:  society condones the acts but does not encourage them.

 

          Example:  If Art forced Betty to run down a police officer at a police roadblock, killing the police officer, she would be guilty of a criminal homicide.

 

 

C.  OTHER DEFENSES - most often mens rea knowledge element, but also intent

 

          1.  Mistake of Ignorance of Fact

 

          a.  Mistake Must Negate State of Mind

          Ignorance or mistake as to a matter of fact will affect criminal guilty only if it shows that the D did not have the state of mind required for the crime.

 

          Defense must be raised by D.  Let's you be guilty of what you thought you were doing.  For example, can be convicted of marijauna possession when in fact you possessed cocaine.

 

          b.  Requirement that Mistake Be Reasonable

 

                   1)  Malice and General Intent Crimes - Reasonableness Required

 

                   2)  Specific Intent Crimes - Reasonableness Not Required

                   Example:  take an umbrella by accident - no larceny.

 

          c.  Strict Liability Crimes - Mistake No Defense

          Since strict liability crimes require no state of mind, mistake or ignorance of fact is no defense to them.

 

          2.  Mistake or Ignorance of Law

 

          a.  General Rule - No Defense

 

          b.  Mistake or Ignorance of Law May Negate Intent

          If the crime is one that requires knowledge of some aspect of the law, ignorance or mistake as that aspect of law will negate the state of mind.  Such crimes are uncommon.  Those that exist generally require awareness of some aspect of law other than the existence of the statute making the act criminal.

 

          Example:  Statute prohibiting the sale of a pistol to a convicted felon.  If A believed the buyer to be only a convicted misdemeanant (because she thought assault was a misdemeanor), she lacked the state of mind required for the crime.

 

          2) B, who has had her car repossed by a loan company, honestly believes she is still the lawful owner of the vehicle and is lawfully entitled to possession of it.  She sees it sitting in a parking space in front of the loan company office and takes it.  Even if B is wrong about her right to take the automobile, she is not guilty of larceny because she lacks the requisite specific intent.

 

c.  Exceptions

 

          - Statute Not Reasonably Available (Unpublished)

 

          - Reasonable Reliance Upon Statute or Judicial Decision:  any written opinion.

 

          - Reasonable Reliance Upon Official Interpretation or Advice of Admin

            Agency

 

          - COMPARE:  Reliance Upon Advice of Attorney is NO DEFENSE

 

          3.  Consent - may negate element of the offense.  (Rape, kidnapping, theft);  assault and battery - boxing and wrestling (implicit).

 

          a.  Requirements of Consent as a Defense

 

                   (1)  authoritative;

                   (2)  consent was voluntary and freely given;

                   (3)  party was legally capable of consenting;

                   (4)  No fraud was involved in obtaining the content;

                   (5)  Cannot exceed the scope of consent.

 

          4.  Forgiveness by the Injured Party No Defense

 

          5.  Criminality of the Victim is NO DEFENSE

 

          6.  Entrapment

 

          Majority SUBJECTIVE approach:  did gov't induce someone not predisposed to commit crime?

 

          Requires proof of two elements:  (i) the criminal design / criminal intent originated with law enforcement officers;  (ii)  the D must not have been in any way predisposed to commit the crime.

 

          a.  Offering Opportunity to Commit Crime is NOT ENTRAPMENT

          It is not entrapment if the police officer merely provides the opportunity for the commission of a crime by one otherwise ready and willing to commit it.

          Example      A, an undercover police agent, poses as a narcotics addict in need of a fix.  B sells narcotics to A.  Does B have the defense of entrapment?  No.  By posing as an addict, A merely provided an opportunity for B to commit the criminal sale.

 

          b.  Inapplicable to Private Inducements

          A person cannot be entrapped by a private citizen.  Inducement constitutes entrapment only if performed by an officer of the government or one working for him or under his control or direction.

 

          c.  Inconsistent with Other Defenses

          If a D denies her participation in the offense, she has elected not to pursue entrapment and is not entitled to raise the issue, even if the facts would otherwise permit her to do so. 

 

          d.  Practical Difficulties of Entrapment:  (1) Putting Predisposition at Issue -Extended inducement raises question.  Was it instilled by officers?  A mere "inclination" to engage in the illegal activity is not adequate proof of predisposition.  (2) Jury hostility - maybe be hostile to defense and not evaluate properly.

 

 

D.  INTOXICATION - alcohol, drugs, any substance

 

          1.  Voluntary Intoxication

          Defined as voluntary/without duress; need not be intentional

 

                   a.  Defense to Specific Intent Crimes

                   Voluntary intoxication evidence may be offered when D is charged with a crime that requires purpose (intent) or knowledge to establish that the intoxication prevented the D from formulating the requisite intent.  Thus, it may be a good defense to specific intent crimes, but usually will not be a sufficient defense to general intent crimes.  The defense is not available if the D purposely becomes intoxicated in order to establish the defense.

 

                   b.  No Defense to Crimes Requiring Malice or Recklessness

                   Not a defense to crimes requiring only malice, e.g., common law murder, recklessness, or negligence, or crimes of strict liability. 

                   Example      After drinking heavily, A breaks into a house wrongly thinking it is her own.  When surprised by B, the owner, A reacts with force, beating B with her fists.  While driving home A is cited for speeding.  Will A have a defense of intoxication: to burglary? (Yes, if as a result she did not know that the house belonged to B or did not have the intent to commit a felony therein); to battery? (No, because as defined battery may be the result of recklessness); to speeding? (No, because speeding is a strict liability offense).

 

          2.  Involuntary Intoxication

          Intoxication is involuntary only if it results from the taking of an intoxicating substance (i) without knowledge of its nature, (ii) under direct duress imposed by another, or (iii) pursuant to medical advice while unaware of the substance's intoxicating effect.

 

          May negate a mens rea element.

 

          Involuntary intoxication may be treated as mental illness, in which case a D is entitled to acquittal if, because of the intoxication, she meets whatever test the jurisdiction has adopted for insanity.  (Basis for insanity)

 

          3.  Relationship to Insanity

          Intoxication and insanity are two separate defenses.  However, continuous, excessive drinking or drug use may bring on actual insanity.  Thus, a D may be able to claim both an intoxication defense and an insanity defense.

 

         

E.  INFANCY

 

          1.  Common Law - Rule of sevens:  1) Under Seven - No Criminal Liability;  2) 7 - 14 - Rebuttable Presumption of No Criminal Liability;  3) Over 14 - Adult.

 

          2.  A number of modern statutes have abolished the presumptions of the common law and have provided that no child can be convicted of a crime until a stated age is reached, usually 13 or 14.

 

          3.  Juvenile Delinquency

          Juvenile court generally has exclusive jurisdiction over children under a certain age, and concurrent jurisdiction (with the criminal courts) over older children.  In most jurisdiction, the common law immunity rules for infants do not apply in these courts because the primary goal is rehabilitative rather than punishment.

 

 

F.  INSANITY - legal term, total defense

 

Procedure:  tough sell.  Client must appear competent.  Most jurisdictions require notice of defense -> court order evaluation.  Bifurcated hearing.

 

1.  Formulations of Insanity Defense

 

a.  M'Naghten Rule/Test

          Right/wrong test.  If you knew it was wrong, you fail regardless of your ability to control your actions.  COGNITIVE TEST

 

          1)  Elements

          The traditional M'Naghten Rule provides that a D is entitled to acquittal if the proof establishes that: 

 

                   a) A disease of the mind

                   b) Cause a defect of reason

                   c) Such that the D lacked the ability at the time of his actions to either:

                             (1) Know the wrongfulness of his actions; or

                             (2) Understand the nature and quality  of his actions.

 

          2)  Applications

 

                   a) Defendant with Delusions

                   Example:  A, because of a mental illness, believed B wanted to kill him.  A killed B.  Is A entitled to acquittal on insanity grounds under the M'Naghten Rule?  No.  Even if A's delusion had been accurate, he would not have been legally entitled to kill B simply because B wanted to kill him.

 

                   b)  Belief that Acts are Morally Right - no right to acquittal

 

                   c)  Inability to Control Oneself - No Defense

 

 

b.  TESTS FOR INSANITY

 

1.  Irresistible Impulse Test - D entitled to acquittal if he was unable to control his actions or to conform his conduct to the law.  Need not come upon D suddenly.

                  

2.  Durham (or New Hampshire) Test - D entitled to acquittal if he proves his crime was the product of mental disease or defect.  A crime is a product of the disease if it would not have been committed but for the disease.  Broader than either the M'Naghten or irresistible impulse test.

 

Understand how Durham test differs from the other two - why psychiatrists given too much power, why used to often?

 

3.  ALI - Model Penal Code Test (PREVAILING)

 

Under this test, the D is entitled to acquittal if the proof shows that he suffered from a mental disease or defect and as a result lacked substantial capacity to either:  (i) appreciate the criminality of his conduct; or (ii) conform his conduct to the requirements of law.  This test combines the M'Naghten and the irresistible impulse tests by allowing for the impairment of both cognitive and volitional capacity.  Highly praised, the A.L.I. test is rapidly becoming the most popular formulation.

 

c.  EXCLUSION OF PSYCHOPATH

          Some jurisdictions exclude psychopaths from def'n of mental illness by saying that repeated antisocial behavior is not insanity.  There is a difference of opinion as to whether this behavior caused by a disease.

 

d.  DIMINISHED CAPACITY - did not have the particular mental state (mens rea) required for the crime charged.  Most states recognizing this defense limit it to specific intent crimes.  PARTIAL DEFENSE.

 

2.  DIFF. BWTN INSANITY AND COMPETENCE

 

Insanity is an excuse.  Competence refers to one's ability to go through trial.  Competence test:  (1) Can the person understand the proceedings?  (2) Can he participate/assist in the proceedings?

 

Hearing for competency -> mental hospital 99.9%.   Usually temporary, until competency restored.  Decided by judge -> there will be no trial.

 

Insanity - not at time of trial but at the time of crime.  Moral measure as opposed to capacity measure.  Jury or judge decide.  If held, then not guilty of any crime.  Only reach insanity stage after person ahs been declared competent.  (virtually never used).  When used, usually not disputed.  Little evidence for successfully faking insanity.  People tend to stay longer in mental hospital than if convicted of crime.  Recidivism rate about the same as thouse found guilty.

 

3.  Guilty But Mentally Ill (GBMI)

New on the horizon.  Michigan.  Serves part of sentence in a mental institution, and finish time in prison.  Like a special verdict.  Directs D to a mental hospital.  Intended as an alternative to finding people not guilty by reason of insanity.  Has not had intended effect.

Has not changed # of people found guilty or not guilty, just increased percentage of guilty sent to mental hospital first.

 

4.  Effect of Not Guilty by Reason of Insanity Verdict

 

60 - 90-day obsevation period.  Must be released or kept under civil commitment laws.

SUPPLEMENT

1. Overworked participants and overcrowded facilities. - the system adapted to resource limits by relying on many shortcuts through the criminal justice process.

2. While discretion is subject to abuse, it provides the actors with a flexible process to deal with both unusual facts and inadequate resources. Some jurisdictions attempting to limit discretion by given police officers written instructions with how to deal with certain situations.

3. Plea bargaining accounts for 90% of cases.

4. Misdemeanor - usually punishable by jail sentence less than a year.

Sixth Amendment - right to counsel if subject to incarceration.

Steps: complainant - citizen or police; complaint; magistrate; probable cause; arrest warrant;

summons/citation or arrest; station house bail; professional bail bondsperson; preliminary examination - notified of charges and rights, bail addressed, date for prelim hearing; prelim hearing - adversarial, if probable cause, then bound over to grand jury; grandjury true bill or indictment or prosecutor information - if jurisdiction does not utilize grand jury or defendant waives indictment; test - crime committed and defendant committed it; presentment - formal allegation that a named person or business has committed a crime; subpoena, contempt of court, immunity - person cannot use 5th Amendment grounds; arraignment - chance to plead; pretrial conference - by motion of party or the court, defendant's counsel must be present though defendant need not be; Trial - motions, discovery, jury selection, swearing in, initial jury instructions, opening statement, prosecution's case, defense motion to dismiss, defense's case, rebuttal and surrebuttal evidence, closing arguments, jury instructions, jury deliberations, announcement of jury verdict; sentencing hearing; direct appeal in most states also rehearing before same appellate court (perhaps en banc); collateral attack; and executive clemency.

presentment = indictment

grand jury indicts in 95% of cases brought to it

? offended by use of the word "pardon" - to exonerate the innocent

? when and what acceptable for collateral attack. ? Supreme Court declared limit on time for raising review of even exculpatory evidence?

CRIMES AND TORTS - Lafave and Scott

Criminal law is a subset of tort law. Aim of criminal law - punish harmful results of conduct. Tort law - compensate someone injured for the harm he has suffered. Consent of injured - may be a defense in torts but often not in criminal law. Similarities: proximate cause, intervening cause, duty to act, self-defense.

"preponderance of evidence" vs. "beyond a reasonable doubt"

criminal law is slower to borrow from the civil statutes than the civil law is to borrow from criminal statutes.

nulla poena sine lege - public policy alone is not sufficient to make conduct criminal, in the absence of a direct legislative advance warning.

B. DEFINING CRIMINAL CONDUCT

4. SOME LIMITS ON THE CREATION OF CRIMINAL CONDUCT: SUBSTANTIVE DUE PROCESS

LaFave & Scott, pp. 148-155. Criminal laws may be invalidated because the conducts bears no substantial relationship to injury to the public.

A statute may also be struck down because it contains no mens rea requirement: it punishes conduct innocently engaged in without any sort of bad state of mind, or it may be that the statue punishes mere status or condition instead of requiring some specific act of omission to act.

Deline in the court-asserted control over legislative policy begain in 1934 with Nebbia v. New York, upholding the conviction of a grocer under a statute prohibiting the sale of milk under established prices. In Nebbia, the court held "that the legislature is primarily the judge of the necessity of such an enactment." The Supreme Court is now must reluctant to strike down statutes on no relation to public injury.

If Court strikes down on "void for vagueness" or "equal protection grounds," a state legislature can revisit the proscribed conduct. If finding that it violates "pure" substantive due process, then insulates prohibitive conduct from future legislative restriction. However, state courts have still struck down statutes as no substantial relation to injury to the public.

p. 152 State courts sometimes strike down a statute on the basis of a finding that the evil as perceived by the legislature does not exist (sell imitation cream). 2. those person at whom the statute is directed will escape detection, while others, engaged in innocent pursuits, are likely to be deterred. (sell cattle hides without brands - not capture the theifs). 4. Pass on alternative means to protect the public interest - clear labeling is better than prohibiting sale of imitation cream. 5. true purpose is to serve a special interest group rather than the public 6. Police power may not be utilized to absolutely prohibit a "legitimate" business.

p.154 Statutes Covering Harmless Conduct. For example, an offense for any jeuvenile to be on the street past curfew, or possession by anyone of hypodermic needles and syringes without a doctor's authorization, or sell magazines without their covers (to collect fraudulent refund on covers). All of these held unconstitutional. Too sweeping in encompassing activity which is wholly innocent.

Class Notes 9-8-94

Vagueness - constitutional limit on how criminal status are written. Vagueness is a way of attacking actual statute itself. Standard used in aplying vagueness statute - judicial gloss on statute. Common understanding test - would reasonable person understand statute.

Jonas v. Blandhi - p.B14 of Supplement - professor accused of cursing over the phone - Did not make the phone call, therefore not guilty. Initiator of the call has intent.

This statute is also vague - no definition of the terms in the statute. It is also overbroad on First Amendment grounds.

Principle of Construction - each word is meant to mean something different. They should be mutually exclusive.

In order to amke this activity illegal, you may wish to include intent to offend. This implies who initiated the phone call.

Bill of Attainder & Ex Post Facto Laws - Article I Sect. 9 and 10.

Ex post facto - retrospective laws. Not permitted. Apllied to conduct permitted before the law. TWO ELEMENTS: 1) retrospective application 2) disadvantageous to criminal accused.

Legislature cannot pass law today to make activities of yesterday a crime. Citizen responsible for law at time of his actions. Punishment is rendered as it was at the time of illegality. "Photograph of laws at time of crime."

Also cannot change retroactively procedures - only those procedures that protect a substantial right - to disadvantage of the criminal accused. If legislature passes a new jury law, that law would not apply to illegalities performed prior to the passage of the law.

Parole laws do not violate ex post fact provision.

If act is not harmful to the criminal, then ex post facto does not apply.

?Does ex post facto apply in judicial decisions?

Bills of Attainder - legislative punishment of people who are readily identifiable. Cannot single out group or individual for punishment. Bill of Attainder still is not identifiable. If purpose of the bill is punishment, it is a bill of attainder. Not applicable to procedural matters. (Originally, death sentence passed by legislature without benefit of trial - legislative decree - Struck Down)

Nixon - Congress passed law that presidents' papers must be taken. Nixon claimed Bill of Attainder - Nix claimed impetus of the bill was punishment. Supreme Court did not find for Nixon on issue of who owns presidential papers. Stated if Nixon had a financial loss, compensation would be made.

III. THEORIES OF PUNISHMENT.

SIX MOST COMMON RATIONALES:

1) retribution - societal revenge and expiation (atone for misdeeds through punishment). Still commands the most public support. Claimed to suppress acts of private vengeance. May serve as check against tyranny - you should not be punished unless you did something wrong.

2) restraint - also called incapacitation. Isolate the offender or disable him from offending.

3) rehabilitation - correction or reformation.

4) special deterrence - exposing a criminal to sufficiently distasteful punishment, that individual will lose the desire to commit crimes.

5) general deterrence - punishment will hopefully deter other would-be criminals from committing crimes.

6)public education - inform the general public of what conduct is deemed socially unacceptable.

Rehabilitation - most in conflict with the other rationales.

Deterrence - important in cases like income tax evasion where system relies on self-assessment.

p. 29 TREND - jurisdictions adopt sentencing schemes which place the greatest emphasis upon the nature of the crime which was committed and comparatively little upon the characteristics of the particular offender - mitigates good behavior argument for parole.

REGINA v. DUDLEY AND STEPHENS, Queen's Bench Division, 14 Q.B.D. 273 (1884). (P.A66-70 of supplement). Appeal of jury's special verdict finding Dudley (D) and Stevens (D) guilty of murder of Parker, with whom they were stranded on the high seas in a lifeboat, in order to survive off Parker's remains after having run out of food and water.

FACTS: Dudley (D), Stephens (D), Brooks, and Parker, crew members of an English yacht, were cast adrift on the high seas 1,600 miles from land in an open lifeboat. They had no water and two one-pound tins of turnips. After 12 days adrift, they were without food. Dudley (D) and Stephens (D) suggested to Brooks that one of the four may have to be sacrificed so that the others might survive. Brooks dissented, and Parker, a 17-year old boy, was never consulted. On the 20th day, Dudley (D) and Stephens (D) killed Parker, who was too weak either to resist or assent. Four days after Parker's death, the surviving three were rescued. They would not have survived had they not fed off Parker's remains.

ISSUE: Was the homicide excusable by the necessity of saving some of the crewmen?

HOLDING AND DECISION: No. An innocent person may not be killed in order to save the life of another. Where the victim has not assaulted or otherwise endangered the killer, the killer has not, by necessity, been placed in a position which permits him to kill the innocent victim. The extreme necessity of hunger does not justify larceny, nor can it justify murder. While, generally, the preservation of one's own life is a duty; in some cases, the highest duty may be to sacrifice it. Neither can the temptation caused by hunger be called an excuse.

COMMENT: While this case actually discusses a defense to murder, necessity (which here did not excuse the murder), the case appears here in the casebook more for its moral discussion of why the defendants, unwillingly placed in a tragic situation, must be punished for their act. The court notes that "Law and morality are not the same, and many things may be immoral which are not necessarily illegal," but that law would be divorced from morality if the temptation to kill, which arose, could be an excuse for the actual killing. Even if the temptation were a valid excuse, who is to determine who must die so that the others might live? (The death sentence was later commuted by the crown to six months' imprisonment.)

COHEN AND HALL SUPPLEMENT, PP. A18-29, 40-65

p.A18 In most criminal cases that proceed to trial, the defendant will be found guilty and will serve some kind of sentence.

p.A19 In addition to sentencing guidelines, two current proposals are "Truth in Sentencing" (the sentence a criminal serves should be about the same as that announced by the judge) and "Three Strikes You're Out," (third time violent offenders should receive a sentence of life without possibility of parole.

Legislature may establish a mandatory minimum sentence or even set a mandatory sentence that must be imposed. RECENT SENTENCING SYSTEMS HAVE CONFINED THE JUDGES' DISCRETION BY ADOPTING VARIOUS GUIDELINES.

In most situations, the plea bargainer is deprived of the right to appeal the sentence. See, e.g., 18 U.S.C § 3742(c).

p.20 When a jurisdiction's jails and prisons are full, sentencing decisions must reflect this reality.

Sentences can be determinate and indeterminate. A sentence of 5-10 years is indeterminate.

p.22 Rehabilitation assumes the accused is "sick" and can be "cured" by the proper dose of punishment.

p. 24 Incapitation, rehabilitation, and deterrence - require you to predict future behavior and dangerousness.

p.27 "Equal Protection" has infrequently been successful in challenging sentences or sentencing procedures. The key is finding an impermissible discrimination.

The Eighth Amendment's cruel and unusual punishment clause is used to challenge the severity of a sentence. The offender claims that a particular sentence is so harsh that it is unconstitutional. These claims are rarely sucessful. It is not clear to what extent the eight amendment embraces a requirement that sentences be proportionate to the offense.

A law violates the ex post facto provision if it is (1) retrospective and (2) disadvantageous to the offender.

p. 28 Any law that causes a defendant to suffer a disadvantage, however, does not offend this provision. The Supreme Court has distinguished between disadvantageous changes affecting procedure and those altering substantial personal rights. The ex post facto provision was not designed to limit the legislature's prerogative of altering both remedies and procedures which do no involve matters of substance. Increasing the penalty for a crime and imposing it retroactively violates the ex post facto guarantee. Altering the method used to determine whether the death penalty was imposed was constitution. It did not change the "quantum of punishment" attached to the crime. New Florida procedures did not change the definition of the crime or the amount of proof necessary for guilt.

Parole - must satisfy a list of requirements like hold a job and maintain regular contact with payroll officer.

Halfway house, split confinement

p. 42 PROBATION - suspend execution and suspend imposition. In the case of a probation violation, the court may be bound by the original prison sentence it imposed in the suspended execution model, but has no such limits in the suspended imposition model. Probationers enjoy a conditional liberty that cannot be taken away without certain due process procedures.

p.43 FACTORS a FEDERAL COURT must consider in determining whether to impose a FINE: (1) D's ability to pay, (2) burden that payment of the fine will impose on both the D and his/her dependents, (3) whether restitution will be made by D to victim.

SCANDANAVIAN "DAY FINE" - fine a person the equivalent to a certain # of days pay for work, e.g., 100 days. This system is fair to both rich and poor, since it punishes them proportionately and equally in terms of relative loss.

FORFEITURE OF PROPERTY - another sentencing option.

RICO - bars a peson from receiving income from racketeering or illegal debt collection activities. 18 U.S.C. § 1962. SC has upheld the forfeiture of drug proceeds used to pay for defense counsel. Book proceeds restrictions against criminals violate First Amendment.

RESTITUTION - another alternative to sentencing.

DIVERSION - if does not violate law again, or meets community service requirement, charges will not be filed or will be dismissed.

PROCEDURES - often the rules of evidence do not apply at sentencing hearings, making hearsay evidence both admissible and frequently used.

p.49 Minnesota guidelines: 1) presecriptive - establish its own policies; 2) de-emphasize imprisonment for property crimes, and emphasize for violent crimes; 3) in order to attack sentencing disparities, established narrow sentencing ranges (e.g., 30 - 34 months, 50 - 58 months); 4) adopted "just deserts" as the governing premise of its policies concerning who received prison sentences; 5) had to take existing prison capacity as given, thus if lengthened one sentence area would have to shorten in another. 6) forbade consideration of education, employment, marital status, etc. in sentencing decision - to avoid discrimination against minorities, women, or low income groups.

FEDERAL SENTENCING GUIDELINES - requires the calculation of THE OFFENSE LEVEL and the CRIMINAL HISTORY CATEGORY.

p. A54 "real offense" sentencing - permits Courts to consider "relevant conduct" of criminal and reasonably foreseeable acts of others involved in the crime, whether or not these other acts were charged as crimes.

LAFAVE & SCOTT, pp.177-184

The Eighth Amendment prohibits the federal government from imposing cruel AND unusual punishments for federal crimes; the Due Process clause of the Fourteenth Amendment prohibits states from inflicting such punishment for state crimes.

The prohibition has three aspects: (1) limits the methods which may be used to inflict punishment; (2) it limits the amount of punishment which may be prescribed for various offenses; and (3) it bars any and all penal sanctions in certain situations - invalidate California law making it a crime to be "addicted to narcotics." Robinson v. California. Public drunkenness distinguished from status crime in Powell v. Texas.

The scope of the Eighth Amendment "must draw its meaning from the evolving standards of decency that mark the progress of a maturing society."

Castration is illegal, ? voluntary castration in exchange for no sentence legal?

Gregg v. Georgia 1976 the U.S. Supreme Court reinstated the death penalty. The court emphasized three factors: 1) long history of use for murder in England and the U.S.; 2) large proportion of the population regard it as appropriate and necessary; 3) serves purposes of retribution and deterrence.

p.178 It is unconstitutional for a state to mandate the death penalty for a certain degree or category of murder; or for those murders unaccompanied by a few specified mitigating circumstances; or for a sentencing judge to disregard as a matter of law relevant mitigating circumstances.

capital punishment must "be imposed fairly, and with reasonable consistency, or not at all," for "a consistency produced by ignoring individual differences is a false consistency."

Courts have seldom held a punishment may be cruel due to excessiveness. Courts are seldom to strike down sentence on proportionality grounds.

p.180 Coker v. Georgia, 1977, The Supreme Court held death penalty unconstitutional for rape. "It is the first modern decision in which the Supreme Court has relied on disproportionality to invalidate a punishment under the cruel and unusual punishment clause."

Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417 (1962). Appeal from conviction for narcotic addiction. FACTS: A california statute makes it a crime for a person to be addicted to the use of narcotics. The evidence against Robinson (D) was a police officer's testimony that Robinson (D) had scars, discolorations, and needle marks indicating his frequent use of narcotics.

ISSUE: Is a law which makes narcotics addiction a criminal offense constitutional?

DECISION: No. Narcotic addiction is an illness which may be contracted innocently or involuntarily. Like mental illness, leprosy, or venereal disease, a state could establish a program of compulsory treatment, involving quarantine or confinement for narcotics addicts. However, a law which makes a criminal offense of narcotic addiction inflicts a cruel and unusual punishment in violation of the 8th and 14th Amendments. The California (P) statute imprisoning a person addicted to narcotics, even though he has never used any drug within the state, or been guilty of any irregular behavior there, is unconstitutional.

CONCURRENCE: Confinement for the purposes of punishing, rather than curing, drug addiction cannot be upheld.

DISSENT: The court has remove the state's power to deal with the recurring case where there is ample evidence of use but no evidence of the precise location of use.

COMMENT: punishment hear is not cruel, but the conduct should not be the subject of criminal sanction.

POWELL v. TEXAS, 88 S.Ct. 2145, (1968). Appeal from conviction for public drunkenness. FACTS: Powell (D), a chronic alcoholic, was found guilty of being drunk in public. He was fined $20. D argued that his appearance in public was not of his own volition, and that to punish him for his illness would be cruel and unusual in violation of the 8th Amendment as applied to states by the 14th Amendment. The medical profession has not yet determined whether alcoholism is an illness, is physically addicting, or merely psychologically habituating. On appeal, the court ruled that chronic alcoholism was not a defense to the charge and fined D $50.

ISSUE: Can punishment for public drunkenness be constitutional?

DECISION: Yes. D was not convicted for being a chronic alcoholic, but for being drunk in public. Here the conviction protects public safety and health. Facilities for treating indigent alcoholics are woefully lacking. A short time in jail will enable an alcoholic to sober up. Some actus reus is required before criminal penalties may be inflicted.

Because penal incarceration has stringent time limits, it is probably preferable to an unlimited civil commitment when no treatment is available.

RULE: Chronic alcoholics do not suffer from such an irresistible compulsion to drink and to get drunk in public, that they are utterly unable to control their performance of either or both of these acts, and thus cannot be deterred at all from public intoxication.

GREGG v. GEORGIA, 428 U.S. 153 (1976). Gregg (D) was found guilty of murder and sentenced to death. Furman 1972 had previously struck down the death penalty for capricious and arbitrary manner it was imposed. Here the court upheld the constitutionality: it is not "cruel and unusual" per se.

RATIONALE: 1. Cap. punishment is essential to a society which requires reliance on legal process instead of self-help.

2. Statistical attempts to evaluate the deterrent effect have been inconclusive, the resolution of this complex factual issue rests with the state legislatures.

3. Under Georgia's sentencing procedure, the jury's discretion is always circumscribed by legislative guidelines. The death penalty is available for only six categories of crimes: murder, kidnapping for ransom or where the victim is harmed, armed robbery, rape, treason, and aircraft hijacking. After a verdict of guilty, a separate sentencing hearing is conducted, and the jury must find that one of ten specified aggravating circumstances exists before imposing the death penalty. This satisfies the concerns of Furman as to capricious and arbitrary administration.

DISSENT (Brennan): Our civilization and the law have progressed to the point that punishment of death, for whatever crime and under any circumstances, is "cruel and unusual."

MCCLESKEY V. KEMP, 107 S.Ct. 1756 (1987). The death penalty is not unconstitutional because of statistics demonstrating a tendency towards racial bias in its application. FACTS: McClesky (D), a black man, was convicted of killing a white police officer. The jury recommended the death penalty which the court imposed. McCleskey (D) appealed, producing statistical studies tending to prove that the penalty was imposed much more frequently on blacks than whites, particularly when the victim was white. The penalty was affirmed. The district court refused to grant habeas corpus, and the court of appeals affirmed. The Supreme Court granted certiorari.

DECISION: The death penalty is not unconstitutional because of statistics demonstrating a tendency toward racial bias in its application.

RATIONALE: The death penalty is not unconstitutional because of statistics demonstrating a tendency towards racial bias in its application. To prove an Equal Protection violation, a person must prove he was the victim of purposeful discrimination. Evidence of statistical tendencies does not prove that the decision makers in his case were biased. In terms of the 8th Amendment analysis, the discretion that this Court has mandated in the application of the death penalty necessarily leaves room for bias. However, the only other alternative, mandatory application of the penalty, is antithetical to the fundamental role of discretion in our penal system. Finally, to hold that statistical evidence of bias in death penalty application makes it unconstitutional would open the door to a broad range of challenges to various aspects of the criminal justice system, which would impose unacceptable costs thereon. Here, as the only challenge McCleskey (D) has made is based on statistical analysis, his challenge is insufficient. Sentence affirmed.

DISSENT: the proper analysis is not whether an arbitrary sentence has been imposed, but whether there is an unacceptable risk thereof. The studies here demonstrate this to be the case.

DISSENT: In terms of equal protection analysis, one challenging a particular system need only show that the totality of relevant facts gives rise to an inference of a discriminatory purpose, a burden McCleskey (D) has met.

BURDEN OF PROOF -- MULLANEY v. WILBUR, 421 U.S. 684 (1975). FACTS: Petition for certiorari by the prosecution due to district and appellate courts allowing habeas corpus relief. Wilbur (D) fatally assaulted Herbert after Herbert's homosexual advance. The defnse argued that the homicide was not unlawful since D lacked criminal intent or, alternatively, that at most the homicide was manslaughter rather than murder since it occurred in the heat of passion provoked by the assault. The state of Maine, where the homicide occurred, requires that the defendant charged with murder prove he acted "in the heat of passion on sudden provocation" i order to show lack of malice aforethought and thus reduce the homicide from murder to manslaughter. D was convicted of murder and appealed to the Maine Supreme Court, which rejected D's contentions. D then filed a writ of habeas corpus with the federal district court on the basis that the Maine rule violates due process because the prosecution is not required to prove beyond a reasonable doubt every fact necessary to constitute the crime charged but is permitted to rely on implied malice aforethought if D fails to prove he acted in the heat of passion on sudden provocation. The court of appeals affirmed the district court's ruling in favor of D and the U.S. Supreme Court granted certiorari.

ISSUE: Does the Maine requirement that D prove he acted "in the heat of passion on sudden provocation" constitute a denial of due process?

DECISION: Yes. Judgment for D affirmed.

1. Here the state argued that there was no denial of due process, since homicide and the presence or absence of heat of passion on sudden provocation pertained merely to the punishment. However, a state could undermine a D's right to due process by eliminating the requirement that prosecution prove beyond a reasonable doubt the elements of the crime by instead redefining these elements and characterizing them simply as factors that bear solely on the extent of punishment.

2. Requiring the defendant to prove the critical fact in dispute increases the likelihood of an erroneous conviction. The prosecution must prove beyond a reasonable doubt the absence of the heat of passion on sudden provocation when the issue is properly presented in a homicide case.

In PATTERSON v. NEW YORK, 432 U.S. 197 (1977), the Supreme Court held that an affirmative defense to a charge of murder provided by New York law (i.e., that defendant acted under the influence of an extreme emotional disturbance for which there was a reasonable explanation or excuse) was a considerably expanded version of the common law defense of heat of passion on sudden provocation. The burden of proving such an affirmative defense could be placed on the D without constituting a denial of due process. A dissenting opinion, however, arged that Patterson really was indistinguishable from Mullaney.

UNITED STATES v. PARK, 421 U.S. 658 (1975).

FACTS: Appeal from reversal of conviction for adulterating food in violation of federal law. Park (D) was president of Acme Markets, Inc., a food chain with 874 outlets. Rodents contaminated food stored at an Acme warehouse. Federal inspectors discovered this and wrote to D. Three months later, although there was some improvement, rodent contamination was still discovered. Acme and D were charged with violating laws prohibiting adulterating food by contamination. Acme pleaded guilty to all counts and D pleaded innocent. At trial, evidence showed that D had delegated responsibility for sanitary conditions to a vice-president in whom he had confidence. D was convicted at trial. The circuit court of appeals reversed the conviction. The U.S. appealed.

ISSUE: May a corporate official be prosecuted for a cime solely by virtue of his position of supervisory responsibility over the corporate area wherein the infraction arose?

HELD: Yes. The circuit court is reversed and conviction upheld.

1. The federal law involved here dispenses with the need of proving conscious wrongdoing.

2. Here. Acme's operations touch phases of the lives and the health of people which, in the circumstances of modern industrialism, are largely beyond self-protection. In the interest of the larger good, the federal law puts the burden of acting on a hazard upon the person otherwise innocent but standing in responsible relation to remedy the public danger.

3. The only way a corporation, such as Acme, can act is through people.

4. The liability under the act is limited to corporate employees who have a "responsible share" in the furtherance of the transaction which the statute outlaws.

5. Moreover, the principle is recognized that a corporate agent, through whose act, default, or omission the corporation becomes guilty of a crime, is himself guilty of the crime.

6. Finally, the Act imposes not only a positive duty to seek out and remedy violations but also a duty to implement measures that will ensure that violations will not occur. However, the Act does not require that which is objectively impossible. Ultimately, the government must prove beyond a reasonable doubt the defendant's guilt.

7. The jury charge that D contends is misleading faily advised the jury that in order for D to be guilty, he had to be in a responsible relation to the situation. The circuit court's reversal of D's conviction is reversed.

DISSENTS (Stewart, Marshall, Powell): The jury instruction given by the trial judge could have allowed the jury to find D guilty purely due to the position he occupied in the corporate structure.

2. Here we are dealing with criminal penalties, not civil forfeiture. The conviction here is alient to fundamental principles of law.

3. The jury should have been clearly instructed that D had to be engaged in wrongful conduct at least amounting to common law negligence. There was no such instruction in this case.

COMMENT: The imposition of corporate liability does not affect the criminal responsibility of the actual perpetrator. Hence, both the corporation and the guilty employee may be convicted of the offense.

HOMICIDE. The killing of one human being by another human being. At common law, homicides are justifiable, excusable, or ciminal; however, modern statutes tend to abandon this categorization effort.

Justifiable homicides are those killings authorized by law. The killer is regarded as simply doing what the law permits. a) execution of prisoner by court order; b) killing by a police officer or private person to prevent the victim from committing a felony by violence or surprise; c) killing by a police officer or private person in suppressing a riot; d) killing to effect the arrest of the perpetrator for a felony; e) killing by one who was feloniously assaulted to save himself from death or great bodily harm.

Excusable Homicide: those in which the killer is not necessarily without fault but where the circumstances do not justify the infliction of the normal punishment for homicide. At common law, excusable homicides are penalized by forfeiture of goods and chattels. Excusable homicides are of two types:

(1) Compare - killing in self-defense as justifiable. One engaged in legitimate self-defense who accidentally kills the aggressor commits excusable homicide, whereas a killing is justifiable if it is intentional, and done under circumstances in which the law authorizes a killing in self-defense.

(2) Killings in self-defense upon a sudden affray. This involves killing another in the course of a sudden mutual fight in order to save oneself from a reasonably apparent danger of death or great bodily harm.

Criminal homicide. Killings without justification or excuse are criminal homicides, either murder or manslaughter.

Classification under modern law. Under modern statutes and decisions, excusable homicides are no longer punished, and so the distinction between excusable and justifiable killings is of no significance. Rather, homicides are now simply regarded as lawful or unlawful (although there are a number of different offenses which may be punished as criminal homicides).

ONE METHOD TO ANALYZE HOMICIDE SITUATIONS: (1) Check to see if elements are present for murder, voluntary manslaught, and involuntary manslaughter. Analytical steps:

1. Is it reasonably likely that the defendant had, at the time of the killing, any of the states of mind that will suffice to establish malice aforethought? If so, the killing may be murder.

2. If there is an applicable statute, is it reasonably likely that the crim can be elevated (from what would otherwise be second degree murder) to first degree murder?

3. If there is a reasonable likelihood that the killing might be murder, is there any basis for finding adequate provocation and thereby mitigating the crime to voluntary manslaughter?

4. If there is no reasonable likelihood that the killing might be murder, do the facts support a finding of involuntary manslaughter?

5. If there is any possibility that the defendant may have committed one of the above offenses, are there any problems of causation? Consider all of the following possibilities: a) "factual" causation problems? b) "proximate" causation problems?

c) special causation problems posed by the "year-and-a-day" rule?

HEAT OF PASSION

Voluntary Manslaughter. A killing that would otherise be murder but that was committed in response to adequate provocation is committed without malice aforethought and is therefore voluntary manslaughter. Gnerally, the provocation must be such as might render ordinary persons of average disposition liable to act rashly, without deliberation, and from passion rather than judgment.

Elements of adequate provocation: 1. reasonable provocation - not enough D provoked if reasonable person would not have been; 2. actual provocation; 3. absence of reasonable cooling period; 4. No actual cooling off.

Model Penal Code position. The Model Penal Code provides that the reasonableness of the disturbance which reduces a killing to manslaughter is to be determined from the viewpoint of a person in the D's position under the circumstances as the D believed them to be. This allows the court to take into account some of the D's special characteristics, but it is not clear where the line is to be drawn.

Particular situations. 1. Words alone. The traditional and majority view has been that mere words, no matter how insulting, are not adequate provocation.

2. Battery. Blow must be violent and painful to be sufficient provocation.

3. Assault. it may constitute provocation, expecially in aggravated cases.

4. Illegal arrest. Unlawful arrest can constitute provocation, particularly where the D is aware of unlawful nature of arrest.

5. Adultery. It is well established that the discovery of one's spouse in the act of committing adultery is sufficient provocation. Moreover, the modern trend is to extend this rule beyond situations where one spouse actually catches the other in the act. Thus, some courts find sufficient provocation where the D is told of his or her spouse's adultery.

6. Mutual quarrel or combat. If two persons voluntarily engage in a fight in the course of which one is killed, the homicide is only manslaughter. Conceptually, the suddenness of the affray, rather than any specific action by the victim, is the provocation.

7. If she was mistaken as to the existence of the provocation but her mistaken belief was a reasonable one, the killing should still be mitigated.

8. Defendant intends to kill provoking party. If the D killed someone else, either by accident or because she was mistaken as to who provoked her, the killing is still only voluntary manslaughter.

9. Defendant intends to kill nonprovoking party. the killing is not reduced to manslaughter.

10. If the subject of the provocation is a close relative of the D, rather than the D herself, the provocation may still be adequate. And while the case law suggests that this rule would not be applied if the subject of the provocation were a distant relative or a mere friend, modern courts, reluctant to hold offered provocation inadequate as a matter of law, might well permit such cases to go to the jury.

MURDER -DELIBERATE OR PREMEDITATED KILLING

In the common law, murder is the unlawful killing of another human with malice aforethought.

"Malice aforethought" is sometimes defined as the intention to kill, actual or implied, under circumstances who do not constitute excuse or justification or mitigate the offense to manslaughter. The intent to kill is "actual" where the D consciously desired to cause death, and "implied" where the defendant intended to cause great bodily harm or where the natural tendency of his behavior was to cause death or greath bodily harm. No ill will or hatred of the victim need be shown.

Malice aforethought encompasses several different mental states; absent evidence of provocation, malice aforethought exists if the D entertained any one of the following states of mind:

1) Intent to kill. In most cases, the intent to kill must be inferred from the surrounding circumstances, as only rarely will the accused have announced his mental state. Often, however, the inference can be drawn from the D's conduct. Thus, one who intentionally uses a deadly weapon (a weapon calculated to produce death or great bodily injury) on another human being, and thereby kills him, is presumed to have intended the killing. Under the better view, this is not a mandatory presumption.

2) Intent to inflict great bodily injury. A murder conviction is likewise supported by evidence that the D intended to inflict serious bodily injury, even though he did not consciously desire to cause the victim's death.

3) Awareness of a high risk of death or serious bodily injury. Under certain exceptional circumstances, a D may be guilty of murder where he acted in the face of an unusually high risk that his conduct would cause death or serious bodily injury. Traditionally, it is said that the risk must have been such that ignoring it demonstrates an "abandoned and malignant heart."

4) Intent to commit a felony. As will be seen, if the D was in the process of committing a felony - and therefore had the intent to commit a felony - he has acted with malice aforethought. This is the basis of the felony-murder rule.

5) Actual awareness of risk. There is some dispute as to whether the D must have been actually aware of the grave risk involved or whether it is enough that his conduct created that risk.

6) Proof of malice aforethought. The various states of mind comprising malice aforethought may be proved by circumstantial evidence.

FIRST DEGREE MURDER. No common law equivalent. Creature of statute. Includes: (1) Premeditated killings - most states no appreciable time needed. (2) Killing during enumerated felonies: arson, rape, robbery, burglary, kidnapping, mayhem, and sexual molestation of a child.

SECOND DEGREE MURDER: all killings committed with malice aforethought which are not specifically made first degree murder.

RECKLESS AND NEGLIGENT KILLING

An unintended killing is involuntary manslaughter if it is caused during the commission of an unlawful act not amounting to a felony or if it is the result of criminal negligence.

"Misdemeanor Manslaughter" - also supports a felony that, for any reason, will not support felony murder will be enough. Moreover, some acts, although not criminal under the law, have been held "unlawful" for manslaughter purposes.