Significance of Resulting Harm in Criminal Law

Significance of Resulting Harm

A. Causation

1.                  Causation is only an issue in crimes with result elements.  It’s therefore not an issue in crimes like burglary, theft, rape, possession of drugs, and many others.

2.                  Burden of Proof: for but-for and proximate cause is on the prosecution.

Eggshell Rule

·         Eggshell skull rule applies in criminal just like in torts for proximate causation. See Stamp (heart-attack during robbery)

Transferred intent

MPC §2.03(2)(a) where crime requires that a defendant intentionally cause a particular result (e.g. killing someone), that culpability transfers if defendant accidentally causes that result to one person.

·         Transferred intent applies for more than just murder. State v. Contua-Ramirez

But-For Cause

Concurrent causes (multiple ∆s at same time)—all ∆ are liable either if all were necessary or any one was sufficient

                e.g. Ten men stab the same victim at once; everyone is guilty of murder

Departure from usual ‘but for causation’; moral inuitions typically control

Intervening cause – Sufficient to break chain of events set in motion and excuse the “’but for actor’ by introducing a new ‘but for’ actor.

Intervening cause generally (see proximate cause):

-          Sudden

-          Unusual: foreseeability a factor, but not a test

-          Blameworthy: especially if more blameworthy than prior actor

-          Act of an independent moral agent: doctor v. fragile skull

United States v. Hamilton DC 1960 AM94 (But-for causation)

·         Bar fight. Victim goes to the hospital. Many hours later, victim pulls out tubes necessary to clear his airway à dies.

·         Holding: if someone strikes a non-mortal blow, which leads to the death of the victim, even if the victim is negligent about getting care à homicide

-          Even gross medical negligence is rarely held to release defendant of responsibility for harm (death) resulting (but Courts are split on this issue)

o    (State v. Shabazz: Gross negligence by hospital staff may permit defendant to escape liability only when it was the sole cause of death)

-          Hypo: A poisons B; C shoots B before death. C commits murder; A commits attempt

Proximate Cause

General Rule: Where A and B are both proximate causes, and B happens after A, courts treat B as an intervening cause of harm if B is: sudden (lightening striking ambulance), unusual (e.g. rare virus, foreseeability sometimes factored), a human agent (but must be at least grossly negligent), blameworthy (evil nurse)

Policy Isues: Doctrine is intimately bound with moral notions of blameworthiness inadequately expressed in statutes

-          To what extent does the defendant take the victim as he finds him? Should the victim’s own contributory negligence or reckless actions play a role in assigning culpability?

       

Other Rules

·         Thin skull rule

·         Victim does not need to treat injuries

·         Harm within the risk (e.g. after assault ambulance hit by a car: assaulter likely guilty of murder; e.g. virus in hospital—infections are common).

·         Additional negligence at hospital? Shabazz—depends on court if gross negligence, but not ordinary

·         Intentional wrongful killing by evil nurse breaks proximate cause

Doctrine of transferred intent

·         (MPC §2.03(2)(3)

·         Actor culpable for intentional harm visited on unintentional victim

o    Generally limited to more serious crimes, such as homicide, though it has been applied to assaultive felonies as well

§  State v. Contua –Ramirez: Defendant attempted to strike wife, hit baby instead; convicted of felony on a child rather than misdemeanor assult on adult

People v. Kibbe NY 1974 AM97 (convicted of murder)

·         Drunk victim. D’s drive him to rural highway on a cold night, pull off his pants, dump him on the road without his glasses.

·         Victim gets hit by a 3^rd party truck while walking in the middle of the road.

·         Civil liability != criminal liability, there’s a different standard of proof.

·         There’s little doubt victim would’ve frozen to death if he hadn’t been hit. The intervening truck driver wasn’t negligent.

Shabazz CT 1988

·         Stabbing à surgery à dies of liver bleeding. Hospital was grossly negligent, but not the sole cause.

·         **Courts are split on whether gross negligence can be intervening cause.

U.S. v. Maine

·         Does cop’s failure to do anything and remove passenger break the causal chain?

o    Court says possibly yes!

Stephenson v. State p530 (yes prox cause)

·         D rapes victim, victim commits suicide, court holds D caused victim to commit suicide.

People v. Campbell MI 1983 p523 (Suicide means not murder)

·         Campbell and Basnaw were drinking heavily. Campbell encouraged Basnaw to kill himself because Basnaw had slept with Campbell’s wife.

·         Gave him the gun, and Basnaw did it.

·         Holding: Suicide excludes by definition homicide.

·         Hoping victim will kill himself != intent to kill. 

On Assisted Suicide:

Few jurisdictions, if any, have retained the common law view that assisting in a suicide is murder.

The majority of states treat assisted suicide as a separate, less serious crime.  Recent decisions draw a distinction between active participation in a suicide and involvement in the events leading up to the suicide, such as providing the means.  A conviction of murder is proper if a defendant participates in the final overt act that causes death, such as firing a gun or pushing the plunger on a needle, but not where a defendant is involved merely in the events leading up to the commission of the final overt act, such as furnishing the means.

People v. Kevorkian MI 1994

·         Victim in great pain, Kevorkian assisted their suicides.

·         Holding: In Roberts, D was convicted for giving his wife access to poison.

·         Overruling Roberts, only where there is probable cause to believe the death was natural and direct result of D’s act can D be charged with murder.

·         Dissent: the loose standard adopted by the court could head to abuse.

B. Attempt

·         At common law, attempts were misdemeanors

·         Since MPC §5.05(1), a substantial minority of states (1/4) have made punishment for the attempt the same as the crime attempted, except for crimes punishable by death or life imprisonment.

**Cannot be prosecuted for both attempted and completed crimes.

** Can be predicate for felony-murder prosecution

Policy Considerations:

Why attempt should get lesser punishment:

·         Retributive function of punishment is not served when no harm is done. Appropriate that one who causes harm punished more.

·         Unsuccessful criminals are less dangerous – less incapacitation? weak

Why attempt should get same punishment:

·         Punishment should be based on the antisocial acts of the criminal, that the criminal plan failed is irrelevant.

Punishments were traditionally less than completed crimes, though many jurisdictions have begun to impose full sentences for attempts since MPC proposals were introduced. MPC applies equal penalties for attempted and completed crimes on theory that sentencing depends on antisocial disposition and the demonstrated need for corrective sanction

·         To what extent should the law limit penalties for attempted homicide, simply because the miraculously survives?

·         What is the purpose of punishing an attempted crime if harm does not result? Do we punish acts or intentions?

1. Mens Rea

Common law: must have purpose as to results, (Need purpose even though you do not necessarily need purpose to impose liability for a completed crime). Requires purpose even when a lesser mens rea such as recklessness or negligence would suffice for the completed offense

·         No such thing such as attempted involuntary manslaughter; if death does not result, assailant may have committed no crime at all!

MPC: requires only knowledge unless the underlying completed crime requires purpose (has not caught on).

MPC 5.01 Attempt: need to 1) act with kind of culpability required for commission of crime and 2) purposefully engages in conduct that would constitute the crime if the attendant circumstances were what he believed them to be (conduct element). Usually result element is more important in attempt.

·         Circumstance element? Sufficient for attempt e.g. attempted statutory rape (based on age)—culpability is same as far statute—don’t elevate

·         Commonwealth v. Dunne 1985 p553 – 18 y/o high school senior, trying to have sex with 17 y/o girlfriend. Even if parents break it up à still attempted statutory rape.

Specific Intent

In crimes lacking specific intent (Kraft: road rage, Thacker: shooting at tent), defendant may not be subject to murder or attempted murder charge since actor lacked proper mens rea and requisite harm did no result.

When crime is nearly identical with the intent , it is necessary to prove that defendant a

People v. Kraft IL 1985 AM100

·         Road rage à shoots at other car, then at cops. D found guilty of 2 counts of attempted murder.

·         History of depression & drug abuse. Wanted to commit suicide by shooting at cop.

·         Holding: knowledge that consequence of one’s act could result in death doesn’t satisfy specific intent requirement for murder. Requires purpose for result element of murder (note: usual murder state in NJ)

Reckless Endangerment

Attempt connotes purpose. Reckless endangerment statutes, found in MPC and some states, cover reckless creation of harm.

·         mpc § 211.2 Recklessly Endangering another person: a person commits a misdemeanor if he recklessly engages in conduct which places or may place another person in danger of death or s.b.i…

·         Reckless endangerment not available in all states, in some states if no crime then you get off

Thacker v. Commonwealth

drunken ∆ who shot tent would have been liable for murder if he had hit woman, but missed and is not liable for attempted murder since he did not intend to kill her. D would be liable for reckless endangerment under MPC § 211.2. Assuming didn’t have intent to kill, can charge him with depraved heart murder if she was hit and killed.

2.  Act Requirement

Incomplete Attempts

·         How far from the beginning, or how near to the end must the act reach?

·         Necessary balance between prevention and non-criminal acts of preparation, as well as opportunities for repentnece /abandonment

·         Problems with early intervention:

o   Potential for abuse and exploitation (Morales); no opportunity to repent; vagueness problem

o   State v. Duke  (FL 1998) : Police arrested suspected child molester after he flashed his headlights on arranged rendezvous; court held that overt act did not go far enough toward consummation to constitute attempt

King v. Barker: The court notes two theories of attempt, neither of which is fully accepted:

1.                  Eagleton Test: The accused must have taken the last step that he was able to take along the road of his criminal intent.  He must have done all that he intended to do and was able to do for the purpose of effectuating his criminal purpose.  If he stops short, he still has an opportunity to repent and change his mind.  On this principle, pulling the trigger is attempted murder but lying in wait isn’t.

2.                  White Test: The completion or attempted completion of one of a series of acts intended to result in killing is an attempt of murder, even though the completed act would not, unless followed by other acts, result in killing.  It might be the beginning of an attempt, but it is still an attempt.

All that can be definitely gathered is that to constitute a criminal attempt, the first step along the way of criminal intent is not necessarily sufficient and the final step is not necessarily required.  The dividing line between preparation and attempt is to be found somewhere between the two extremes.

Common law and MPC Differing Approaches

Common law focuses on how close they are to completing the crime, MPC on what has already been done.

Common Law “Dangerous Proximity Approach” (how close you are):

The conduct must come dangerously close to the commission of the crime, so that there was a reasonable likelihood of its accomplishment but for some cause. Dangerous proximity to success (Holmes).

MPC “Substantial Step Approach” (how far you’ve come):

Mpc: 5.01(2) (Used by ½ of states and 2/3 of federal circuits) Substantial Step must be strongly corroborative of criminal purpose.

Strong indicators:

1.                  lying in wait, searching for or following the contemplated victim of the crime;

2.                  enticing or seeking to entice the contemplated victim of the crime to go to the place contemplated for its commission;

3.                  reconnoitering the place contemplated for the commission of the crime;

4.                  unlawful entry of a structure, vehicle or enclosure in which it is contemplated that the crime will be committed;

5.                  possession of materials to be employed in the commission of the crime, which are specially designed for such unlawful use or which can serve no lawful purpose of the actor under the circumstances;

6.                  possession, collection or fabrication of materials to be employed in the commission of the crime, at or near the place contemplated for its commission, where such possession, collection or fabrication serves no lawful purpose of the actor under the circumstances;

7.                  soliciting an innocent agent to engage in conduct constituting an element of the crime.

Application of Common law

People v. Rizzo NY 1927 (not far enough to be attempt) **strictest standard/anti-MPC

·         Issue: Were D’s acts in preparation to commit robbery, or a criminal action of attempted robbery?

·         Rizzo was supposed to point out robbery target. They never found the target.

·         Holding: Attempt is only for acts which are so near to the accomplishment of the crime that without interference, the crime would’ve occurred.

·         Dispo: They never got the opportunity to commit the crime à not guilty of attempted robbery.

Application of MPC Standard

United States v. Jackson 2^nd Cir. 1977

·         D’s prepared but then called off a bank robbery, scheduled it for a later date.

·         One D is arrested for an unrelated crime, tells police about planned robbery.

·         D’s convicted of conspiracy.

·         Holding: New test: Act must be substantial step & strongly corroborative firmness of criminal purpose. Put focus on what D has already done (variation on MPC, slighter narrowly b/c of “firmness”)

Attempt w/ Accomplice Liability

State v. Davis MO 1928

·         D was trying to hire ex-con (actually undercover cop) to kill accomplices husband and get insurance $.

·         Planned the scheme, but then undercover revealed himself.

·         Dispo: not attempted murder b/c “accomplice” had no intention of committing crime

United States v. Church 1989

·         Husband hired hitman (actually an undercover) to kill ex-wife.

·         Police staged the hit, and husband paid in full and ID’d fake body.

·         Dispo: attempted murder.

Abandonment

Common law (and many modern courts) traditionally denied defense of abandonment

·         Rationale of proximity to completion based in part on maintenance of an opportunity to renounce criminal purpose, as well as difficulty of presecuting non-criminal acts (aka walk-away is built in before criminal element)

·         Opportunity to repent is lost once Δ crosses threshold of criminality, after which he may be convicted despite attempts of repetenec. Once necessaty elements are in place, liability cannot be erased.

o   But see: In some states, renunciation affords a complete defense, if voluntary and complete, even after all of the criminal elements are in place. Courts are divided on how far attempt can go re renunciation.

MPC §5.01(4) - renunciation of criminal purpose

·         It is an affirmative defense that he abandoned his effort to commit the crime or otherwise prevented its commission, under circumstances manifesting a complete and voluntary renunciation of his criminal purpose.

·         Defense not available when:

·         Defendant abandons due to increased risk of detection or apprehension, or an circumstances which make accomplishment more difficult

·         Postponement or transfer to another, but similar objective or victim

Denial of abandonment

People v. Johnson: D entered a gas station, pulled a gun and demanded money. When the attendant produced only $50 he departed saying he was only kidding. The court denied the abandonment defense in this case.

Guilty, resist created the renunciation

People v. McNeil: D intended to rape. She pleaded and he released her promising never to do such a thing again. He was convicted of attempted sexual assault. The court noted that her unexpected resistance made his renunciation non-voluntary.

Not guilty, same as above, but found renunciation valid

Ross v. State: same facts as above court found abandonment as a matter of law, stating “D did not fail in his attack. No one prevented him from completing it. The victim did not sound an alarm. She successfully persuaded Ross, of his own free will, to abandon his attempt”

3. Substantive Crimes of Preparation

P561-565

·         Conspiracy

·         Burglary

·         Assault

·         Policing Measures (loitering)

·         Stalking

Solicitation and Attempt

·         Majority: Most states hold that acts of solicitation (for example of hiring an hitman/assassin) are not attempt because it is not his purpose to commit the acts personally.

·         Minority: Solicitation can be attempt

o   U.S. v. Church: Defendant convicted of attempted murder for soliciting killing of his wife; court held that there was nothing more he could do short of killing her himself

·         At common law, solicitation was a crime within itself. Solicitation has been codified in most jurisdictions.

4. Impossibility

Factual impossibility: not a defense.

Common Law: Legal Impossibility – Thinking you’re breaking a law when you really are not. This is a defense (can’t be convicted if no law is broken). Factual Impossibility – When D, despite his intentions, could not complete his intended crime because of facts or conditions unknown to him or beyond his control. This is not a defense. Inherent Impossibility (sticking pins in voodoo doll) –not a defense if really believe it could work (MPC)

MPC. - Eliminated defense of impossibility in virtually all situations - Does away with legal/factual impossibility distinction. - Prosecution has to prove there is a criminal statute punishing what the defendant intended to accomplish. - Evaluate crime based on facts/conditions as D believed them to be - Permits a court to dismiss a case if D’s conduct was “inherently unlikely to culminate in the commission of a crime that neither such conduct nor the actor presents a public danger.” (MPC §5.05(2)) - Modern trend is to follow the MPC

People v. Dlugash NY 1977 p577 (factual impossibility)

·         Other criminal shot and killed victim. D then shot the body.

·         Holding: because D believed the victim was alive when he shot him à attempted murder.