Elements of a Just Punishment in Criminal Law

Elements of a Just Punishment

A. Legislative Definition of Crime: Idea of Legality

·         Legality Principle: No punishment w/o law. The court’s job is to enforce law and legislature’s job is to make law.

·         Question: How much can courts change the law? (Make it retroactive? What if the law is too vague?)

1.  Retroactivity/Fair Notice

·         Keeler and Bouie prohibit retroactive active expansion as a violation of the D.P. clause (unforeseeable). Requires advanced specification by the legislature, with adequate clarity.

·         Rogers makes small exception in advanced specification--allowed retroactive expansion as long as not “indefensible and unexpected”

Keeler v. Superior Court CA 1970 p146

·         Ex-husband sees pregnant ex-wife and attacks. Fetus delivered stillborn with a fractured head.

·         Is fetus “human being” for purposes of murder statute?

·         Legislature of 1850 intended murder to refer to someone born alive, not feticide.

·         Even if we did count feticide as murder, we couldn’t make it retroactive.

·         Jurisdictional: no common law crimes in CA, so power to set crimes rests only w/ legislature

·         Constitutional: retroactive denies due process b/c no fair warning of what is a crime (unforeseeability problem with ex post facto laws)

·         Relies on rule from Bouie – When is an enlargement foreseeable? African Americans can’t be arrested for trespass for sitting at lunch counter when crime was only to get served at a lunch counter (lack of notice of crime violates D.P).

·         Point: changing law would require: 1) advance specification 2) by the legislature 2) with adequate clarity

Rogers v. Tennessee US 2001 p150

·         D stabbed victim, who died more than a year and a day after the stabbing.

·         Tennessee followed common law rule that victim must die in year +1 day to be murder.

·         But SCOTUS allows retroactive abolition of this rule, upheld conviction, so long as court’s decision is not “unexpected and indefensible.”  Wide, growing consensus among states vs. very controversial issue in Keeler

2. Void for Vagueness/Fair Notice/Different Standard for Antitrust etc.

·         Unconstitutional, b/c statute to vague to give adequate notice what is a crime—D.P. violation

A statute must: (1) provide adequate notice of what conduct is forbidden, and (2) sufficiently constrain the discretion of law enforcement officials. Plus, examine whether those concerns are implicated by the language of the statute, as applied to this case.

·          

Papachristou v. City of Jacksonville US 1972  (Vagrancy Laws)

·         SCOTUS struck down broadly worded vagrancy ordinance because it failed to give fair notice of forbidden conduct, and it gave police “unfettered discretion” in enforcement.

·         The D’s challenging were all racial minorities, and evidence that enforcement was racially disparate.

City of Chicago v. Morales US 1999 p154

·         Ordinance that prohibited 2+ people loitering with no apparent purpose in public places were police suspected at least one person was a gang member, and group failed to obey order to disperse

·         overturned for being unconstitutionally vague, violated D.P., arbitrarily restricts liberties. Also gives too much discretion to police, lacks guidelines

·         Some minority communities had actually wanted this to help with the gang problem. SCOTUS invited Chicago to revise the statute and try again.

How to determine is too vague?

·         Nash v. US: convicted of “unduly obstructing trade,”  but court is more comfortable with this vagueness than in Papachristou

·         Does law regulate favored activities; liberties everyone likes

·         Is it possible (w/o excessive costs) to avoid coming to close the line? (Anti-trust in Nash, can always consult lawyer).

·         Is imprecision likely to be abused by those charged w/ enforcing the law? Antitrust laws v. beat cop?

·         Does statute enforce / deal with an important social problem?

·         Are there better alternatives—i.e. was it poorly drafted by the legislature?

Rule of Lenity

·         Rule: if there is ambiguity in the statute, rule in favor of the ∆,

·         1) Look at the text à if it’s unclear, apply lenity 2) Look at the text, legislative history, purpose, etc.

·         Not commonly used, a last resort

McBoyle v. United States US 1931 p138

o    D was transporting an airplane he knew was stolen.

o    Prosecuted under National Motor Vehicle Theft Act, “…or any other self-propelled vehicle not designed for running on rails”. Vague—does this apply to airplanes?

o    SCOTUS reversed conviction under lenity rule, statute strictly construed statute to apply to cars.

B. Act Requirement

Actus Reus = commission of a voluntary act prohibited by law. Crime must include at least one voluntary act (conduct element).

MPC §2.01(2) laws out things actions that aren’t voluntary (gives e.g, doesn’t define):

o   Reflexes

o   Movement during unconsciousness or sleep

o   Hypnosis

o   Something that is other than an effort or determination of the actor (catch-all)

Note: not remembering (e.g. b/c intoxicated) is not an excuse

·         Need a step more than thoughts (conspiracy or attempt)

Codgon: acquitted for killing her daughter while dreaming

People v. Decina

D who knows he is subject to epileptic seizures voluntarily (purposefully) drives a car and subsequently kills four people when he loses control of the car during seizure can be convicted of negligent vehicular homicide, even though the actual “act” that killed was itself involuntary (seizure).

·   Conduct elements: Operating a car (in a negligent manner)

·   Result element: death occurs

·   But how far back is the conduct?

Martin v. State of Alabama AL 1944 p182

·         Martin is arrested in his home, taken by cops to public highway, and then manifests drunken boisterous condition à convicted of public drunkenness.

·         Elements: Appears, intoxicated, in public, manifests drunken condition, in front of others. All elements must be voluntary.

·         Holding: statute presupposes voluntary appearance in a public place. ∆ did not appear voluntarily, so no voluntary conduct element. Note: Decina has a voluntary conduct element of driving the car.

·         MPC note: requires “a voluntary act,” so not every element needs to be voluntary and M could be convicted on another conduct element like manifest drunken condition

People v. Newton CA 1970 p184

·         Newton is shot by police during struggle. Goes into shock, testifies he’s unconscious, shoots two officers, crawls to hospital.

·         Jury chooses to believe his testimony / expert.

·         Holding: where not self-induced (like voluntary intoxication), unconsciousness is complete defense to charge of criminal homicide. Note: CA statute specified unconsciousness is a defense, not clear in MPC

Problems AM p 8

C. Culpability Requirement

MPS § 2.02 – General Requirements of culpability p1082

·         Purposely (specific intent)

1.      Conscious object to engage in conduct or cause result AND awareness of circumstances

·         Knowingly

a.       Aware of conduct or circumstances AND practically certain that conduct will cause the result.

·         Recklessly

b.      Consciously disregards a substantial and unjustifiable risk that result will come from his conduct. (Note: Consciousness must be inferred from circumstances)

c.       Gross deviation from standard of conduct that law-abiding person would use.

·         Negligently – (Greater than tort negligence, but see Hazelwood  below)

d.      Should be aware of substantial and unjustifiable risk that result will come from his conduct. (Note: sub & unj are two separate criteria. Whether “unjustified” is up to legal system, ∆ doesn’t have to think it is

e.       Gross deviation from standard of conduct that law-abiding person would use.

(3) - Default when culpability isn’t specified is recklessness and up.

(4) - Prescribed culpability in statute applies to all material elements of the crime.

(6) – Purpose is satisfied if purpose is conditional (wanted to steal one thing, left empty-handed, still guilty of burglary)

(7) - Knowledge is satisfied by high probability.

(9) - Mistake of law - Knowledge of the law is not required as element of offense unless statute says otherwise.

1. Intro to Mental States

·        When mental state is identified for one material element of a crime, regarded as applying to all material elements

·        Prescribed culpability in statute applies to all material elements of the crime, unless obviously written otherwise. Need culpability for each element.

·         Material elements of a crime: 

o    Conduct (always needed)

o    Circumstance (def of crime may include)

o    Results  (def of crime may include)

·         Statute determines culpability, default is at least recklessness if none listed (get off if just negligent).

Problems on the MPC § 2.02 p 32

·         Exceptions for if ∏ should have known and strict liability

a. Lesser Crime Theory

Regina v. Cunningham

·         D steals gas meter from duplex to take $ inside it. Doesn’t turn off gas à women in other half of duplex nearly asphyxiates. Convicted of larceny and endangering her life by poisoning.

·         Elements: harm occurs (results), from causing poison to be administered (conduct), to a person.

·         Culpability: maliciously and unlawfully

·         Malice in case = intention to do the particular harm OR recklessness when one could foresee harm as possible consequence.

·         Court imputes culpability from lesser crime to greater crime, to find that he also “maliciously and unlawfully” poisoned women.

b. Negligence Standard

State v. Hazelwood AK 1997 p 221

·         Captain of Exxon Valdez charged for negligent discharge of petroleum

·         Difference between gross negligence (criminal) and ordinary negligence (civil)

·         AK accepts ordinary negligence for criminal proceedings (contrary to MPC—gross required)

Santillanes v. New Mexico 1993 p222

·         D cut nephews neck with knife during altercation. Convicted under child abuse statute that used negligence.

·         Holding: Criminal negligence requires more culpable mental state than civil negligence.

c. Willful Blindness

United States v. Jewell 9^th Cir. 1976 p229 (Willful Blindness)

·         D convicted for knowingly transporting marijuana.

·         Deliberately avoided positive knowledge that car was full of marijuana, although he knew about secret compartment.

·         Court finds willful blindness can still be culpable, cites MPC 2.02(7): knowledge if ∆ is aware of a high probability, unless actually believes it does not exist.

·         Rule: Most Fed. Courts give willful blindness instructions to jury only if (1) defendant was subjectively aware of high probability of illegal conduct (MPC) and (2) defendant purposely contrived to avoid learning about that illegal conduct (ostrich).

US v Giovanni (Not Willful Blindness)

·         Reversed conviction for “aiding and abetting gamblers,” b/c had to do so knowingly. Not willful blindness, b/c did not intentionally avoid checking up on the house.  Didn’t fulfill #2 (ostrich)

2. Strict Liability

S.L.—held liable w/o culpability for at least one material element of the offense

MPC recognizes in §2.05 only for statutory violations, not common law crimes

Characteristics of strict liability offenses:

·         “New” statutory offense- non traditional common law crime, have no mens rea requirement, so ∆ convicted w/o e.g. knowledge  

·         Exception: some traditional common law crimes (moral crimes) that are generally strict liability offenses, ex: statutory rape

·         Does not involve direct infringement on rights of others

·         Part of regulatory scheme – a “public welfare” offense, general public harm (malum prohibitum) vs. malum in se (wrong in itself) common law, specific harm

·         Relatively light penalty

·         Requiring proof of culpability would impede implementation of legislative purpose

·         Rule: read in culpability into silent statute if echoes common law offense, but S.L. if public welfare offense

Sum: Morrisette, Staples require culpability (common law), but Blint/Dotterweich (drugs/pharma) don’t, even though all statutes are silent.

Morrisette v. United States US 1952 p250  No SL must be knowledge

·         D goes onto airforce practice range and takes spent bomb casings that had been there for 4 years and sells them.

·         Convicted for “knowingly converting” government property.

·         Important that theft is common law crime, which has traditionally required mens rea

·         Holding: Omission of intent from statute will be construed to require mens rea.

Staples v. United States US 1944 p254 No SL must be knowledge

·         D had unregistered rifle, and trigger mechanism filed down so it could fire automatically.

·         D testified he didn’t know gun would fire automatically.

·         Firearms statute is silent on mens rea consideration, but based on common law.

·         Holding: Unlike registering hand grenades (cf. United States v. Freed, knows that grenades are potentially dangerous) or drugs, there’s history of gun ownership in USA—don’t want to criminalize seemingly innocent activity (***not about common law, about being common)

·         Silent statute requires D knew he possessed a machine gun. Unthinkable Congress intended SL.

United States v. Balint US 1922 p248 S.L

·         D were indicted for selling derivatives of opium and coca, violating narcotics act.

·         D’s said they didn’t know they were selling prohibited drugs.

·         Holding: proof of knowledge isn’t required by the statute (convicted-SL)

·         Every person dealing drugs must ascertain at his peril if drugs are prohibited.

United States v. Dotterweich US 1943 p249  S.L.

·         Pharma bought drugs, repackaged, & shipped to physicians.

·         On 2 occasions, manufacturer’s labels were in error, and therefore Dotterweich’s.

·         Balancing hardships, Congress chose to put risk on those who could prevent the problem rather than the innocent public—SL b/c no mens rea required in statute

3. Mistake

ignoratia lexis non excusat – ignorance of the law is no excuse

General intent: knowing shown by performing act (conduct) (e.g. possession, rape, theft—no result element?)

Specific intent: state of mind defines the crime

Mistake like S.L. doesn’t require culpability to convict (when mistake is not a defense).

MPC §2.04 allows mistake of fact or law if:

·         ignorance or mistake negatives the purpose, knowledge, belief, recklessness, or negligence required for material element of offense.

·         Law provides that ignorance or mistake constitutes a defense.

(3) Belief that conduct is not an offense is a defense (D must prove by preponderance of the evidence) if:

·         Statute has not been published or reasonably made available.

·         D acts in reasonable reliance on official statement of law.

**Alternative is NJ rule: a belief that conduct is not illegal is a defense when:

·         Law had not been published or made available

·         Actor was relying on official advice.

·         Otherwise diligently pursued all means available to ascertain meaning of offense and in good faith concludes his conduct is not an offense using reasonably prudent person standard. (similar to Germany)

·         ***But no cases where this defense has been successfully used

Arguments about tough mistake standards:

·         PRO: Slippery slope – everyone would plead mistake and law would become subjective (what you thought the law was is fine)

·         PRO: Encourages people to learn the law.

·         CON: Gives more incentive to make effort to learn the law if trying to learn is a valid defense. Convicts w/o culpability

Mistake	Case	MPC Provision
Fact:	Olsen (strict liability) Lopez (strict liability) Hernandez (exculpatory mistake)	§2.04(1)
Legal Circumstance	Woods Smith	§2.04(1)
Governing Law/Rule	Fox	§2.02(9)
Exception (Official Advice)	Hopkins Albertino (excused)	§2.04(3)

a.  Mistake of Fact

·         Mistake as to a circumstances element (e.g. age of victim in statutory rape)

·         If no culpability mentioned, assume recklessness (was it a reckless mistake of age?)

·         Often gets ∆ off, b/c not the requisite culpability (not reckless mistake)

People v. Olsen CA 1984 p239

·         Is it reasonable to mistake a victim’s age as a defense to lewd or lascivious conduct <14?

·         Hernandez : belief that victim was >18 was an adequate defense (but minority rule)

·         However, Hernandez doesn’t apply: Other part of statute saying good faith offenders are eligible for parole earlier indicates legislature didn’t intend good faith to be a valid defense.

·         Lopez : belief that minor to whom sold pot was over 18 was no defense (selling pot to minor) b/c would have been a crime regardless, defense just would have reduced sentence. No defense.

·         Conviction affirmed

Garnett v. State MD 1993 p245 – Majority rule

·         20 yr. old mentally impaired man has sex w/ 13 yr. old.

·         D shows evidence that victim & her friends represented her to be 16. Trial court excluded that evidence, saying it was a strict liability offense.

·         Court does not consider reasonable belief that victim was over 14

·         Holding: Plain language and legislative history make clear that statutory rape is strict liability crime.

·         Up to legislature if they want to change it.

Notes: The traditional insistence on imposing strict liability for mistakes about age is beginning to erode.  More than 20 states now permit a defense at least under some circumstances, like when the parties are close in age or victim is over 14.  However, nearly all require the mistake to be reasonable, and half of states still do not permit a mistake defense at all.

b.  Mistake of Law

(legal circumstances & governing law)
Usually don’t need to know the law to be convicted—exceptions: when legal element in attending circumstances than one needs to be aware of (e.g. stuff belongs to someone else needed for theft).

·         Compare to notice in Keeler

Some mistakes of legal circumstance prevent in the imposition of punishment (MPC 2.04(1)), whereas mistakes of governing criminal law do not prevent the imposition of liability (MPC 2.02(9): neither knowledge, recklessness, or negligence towards whether something is illegal is required, unless otherwise stated. I.e. ignorance of the law is no defense!)

i) Mistake of Legal Circumstance

In Regina v. Smith England 1974 p273 (e.g. marriage status; legal ownership)

·         D damaged paneling & floorboards to remove stereo wiring that he had installed himself. Charged with willful destruction of property.

·         Holding: No offense committed under this statute if D honestly believes property being damaged is his, regardless of whether belief is justifiable.

·         ! This is mistake of legal circumstance : legal rule that characterizes circumstances attendant to the offense. Smith misinterpreted landlord / tenant law, not the criminal law.

State v. Woods

·         Woman goes with married man to Nevada, he gets divorced, they get married.

·         Except divorce wasn’t valid – woman is then prosecuted for bigamy

·         Hold: Not criminally liable – mistake of legal circumstance

ii) Mistake of Governing Law

General Rule:

State v. Fox ID 1993 AM p37

·         Fox charged w/ possession of ephedrine – controlled substance in Idaho. Bought it by mail order from another state.

·         Culpability was knowledge of possession (conduct), not knowledge of the law

·         Holding: Offense requires only general intent (knowing shown by performing act vs specific: state of mind defines the crime) à Fox intended to take possession of ephedrine.

·         Mistake of law is not a defense.

Cheak v. US:

S.C. “willful” in statute like knowing, letting ∆ off for not filing his taxes, b/c had to prove that he knew he had to file. (But this is strange minority case…)

·         Federal income tax that needs proof of intent for “willful” & knowledge

Exeception for Relying on Official Advice:

United States v. Albertini (reliance on official advice)

·         Protest₁ à Conviction₁ à Conviction₁ overturned by 9^th Circuit à Protest₂ & SCOTUS reinstates conviction₁ à  Conviction₂ à 9^th Cir. reverses conviction₂ on notice grounds à SCOTUS says in United States v. Rodgers existence of circuit conflicts makes review of issue and ruling against respondent reasonably foreseeable.

·         9^th Cir reversed protesting conviction, so ∆ protested again before SCOTUS convicted.

·         SCOTUS says the second protest was ok, b/c reasonably relying on the 9^th Cir

·         2.04(3)(b)(iii) reasonable reliance on an administrative order or grant of permission

Reverend Hopkins

·         Advertises himself as licensed to perform marriages in reliance on advice of state’s attorney, but then prosecuted and convicted.

·         Probably would’ve gotten off under MPC.

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What is punishment Criminal Law ?

What is punishment?

Kennedy v. Mendoza Martinez (1963): To determine whether a nominally civil measure is really punishment and thus whether criminal law safeguards apply courts must consider: “whether the sanction involves an affirmative disability or restraint, whether it has historically been regarded as punishment, whether it comes into play only on a finding of scienter (intent/culpability to commit a crime), whether its operation will promote the traditional aims of punishment- retribution and deterrence, whether the behavior to which it applies is already a crime, whether an alternative purpose to which it may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned.”

·         One key distinction between civil and criminal: paradigmatically the criminal justice system is backward looking – it punishes for what has been done. Civil punishment is forward looking because it fears that that individual will inflict harm in the future.

·         Criminal punishment includes a conviction, social stigma

·         Crim has greater safeguards, higher burden of proof

·         When one is detained civilly there is not necessarily a fixed term, it’s regulation not punishment (like committing mentally ill)

·         E.g. Sexually violent predator laws -- > lower burden of proof/less formal requirements

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Purposes of Criminal Law

Supplemental Reading 9-11

A.  Retributive

Backward looking

Kant: penal law is categorical imperative.

·         Justice can only be served through punishment.

·         Right of retaliation: just penalty is equal e.g. whoever committed murder must die.

·         Utilitarian values undermine justice: it ceases to be justice if it can be bartered like any other commodity.

Moore: retributivist—punish only b/c the offender deserves it. Moral culpability of offender gives society a duty to punish

Hart: punishment is return of suffering for moral evil voluntarily done – punishment itself is thus a good thing.

            -but how does evil (offense) + evil (punishment) = good?

Morris: punishment restores just distribution of benefits and burdens – exacts debt.

-Murphy Marxist response: many criminals come from terrible socioeconomic backgrounds – “debt” to society? For what, when poor man never benefitted from society? No reciprocity of benefits

-Mackie response: why do you “repay” evil with evil? Doesn’t wipe out existing crime. Punish to eliminate advantage criminal got by trying to get ahead. Not to punish.

1. Vengeance

Fitzjames – Stephen: notion that punishment should be based on amount of resentment and outrage generated by the crime. Punishment is expression and solemn ratification of the hatred that is excited by the actor’s offense.

·         Problem: sentence may not be adequate for the family/community (e.g. less for negligent homicide, but family wants defendant’s life to be equally ruined)

·         Problem: victim impact statements—S.C. ruled they could be used in trial (blameworthiness of defendant) b/c murder has foreseeable consequences, like hurting a family.

2. Social Functions

Hart: public expression of condemnation is value in and of itself (close to utilitarian deterrence)

Durkheim: function of punishment is really to maintain cohesion of society by sustaining common consciousness. Punishment heals wounds inflicted on collective sentiments.

3. Mixed Theory

Hart: most system are retributive b/c punish murder more than robbery, even though an equal punish may deter both. However, by setting a max penalty the system is also utilitarian

Moore: Paternalistic utilitarian theory of punishment is bad because moral blindness is bad.

B.  Utilitarian

Forward looking

1. Deterrence Value

Rational Actor model:

Bentham: Criminals consciously or unconsciously calculate costs and benefits. Thus, must make the costs from punishment higher than the gains of committing the crime

-Many argue this doesn’t apply especially for crimes of passion.

-Robinson & Darley: criminals aren’t rational. May apply broadly, but not for minor changes in sentences

-May have perverse effects – severe punishment raises cost of addict buying drugs so the addict will commit robbery to finance his habit OR criminal has already hit max sentence, so no incentive to stop committing crimes/worse crimes

How to increase deterrent effect of punishment:

·         Increase risk/certainty of conviction, Increase severity of punishment

·         Note: Increased certainty has greater deterrent effect than increased severity

*some evidence that excessive penalties cause conviction rates to decline because juries are less willing to convict when they know penalties are huge.

·         Moral influence: don’t comply from rational cost/benefit but from external/communal norms and internal norms. So needs to educate public

2. Rehabilitation

Martinson: research on effectiveness is mixed: first said rehabilitation programs had not impact on recidivism. Later said they could reduce recidivism for some offenders under certain circumstances.

·         Notion became fixed in public mind that rehabilitation doesn’t work.

Von-Hirsh and Maher: rehabilitation programs will only work if more drastic.

Cullen and Gilbert: argue for return to treatment model, but worry there is potential problem with fairness / discretion of treatment providers.

3. Incapacitation

Zimring & Hawkins: prison meant to restrain those under its control – all other objectives are ancillary.

Diulio: incarceration is cost effective solution to restrain known criminals from murdering / raping / robbing. **doesn’t make sense for low-level, first time drug offenders.

            -Later honed his perspective, said nation maxed out value of incarceration in 90’s.

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Insanity and Diminished Capacity in Criminal Law,

Insanity and Diminished Capacity



Insanity

General Principles
Two ways which insanity can be used
Negate Mens Rea
The prosecution failed to prove that the defendant had the required mens rea to commit the offense
Burden rests on the prosecution to prove mental state
Verdict = not guilty
Civil commitment will not result automatically
Present an affirmative defense of insanity
Even though the prosecution proved all of the elements of the crime charged, the defendant was legally insane at the time of the crime
Burden (in most states) rests on defendant to prove insanity by a preponderance of evidence (some jurisdictions require clear and convincing evidence)
Verdict = Not guilty by reason for insanity
Generally results in automatic civil commitment
Insanity Tests
Tests only come into play when you are asserting insanity as an affirmative defense. (NGRI).
All of these tests require a mental disease or defect at the time of the offense, but most courts fail to define that term.
The M’Naghten Test (17 states, 11 states use one of the prongs)
A person is insane if, at the time of her act, she was laboring under such a defect of reason, arising from a mental disease that:
She did not know the nature and quality of the act she was doing OR
If she did know it, she did not know that what she was doing was wrong.
The Irresistible Impulse Test
Adds a third prong to the M’Naghten test
A person is insane if, at the time of her act, she was laboring under such a defect of reason, arising from a mental disease that:
She did not know the nature and quality of the act she was doing OR
If she did know it, she did not know that what she was doing was wrong OR
At the time of the offense, she acted from an irresistible and uncontrollable impulse.
The Product Test (Only in New Hampshire)
An accused is not criminally responsible if her unlawful act was the product of mental disease or defect.
A defendant is entitled to acquittal if:
She is suffering from a mental disease or defect at the time of the crime AND
The disease was the but-for cause of the criminal conduct
The MPC Test
A person is not responsible for criminal conduct if, at the time of such conduct, as a result of mental disease or defect, she lacks substantial capacity either to:
Appreciate the criminality [wrongfulness] of her conduct OR
Cognitive Prong
Conform her conduct to the requirements of the law
Volition Prong (basically the irresistible impulse prong)
Differences from M’Naghten:
Substantial incapacity instead of total incapacity
Appreciate instead of “know”. Makes test more defendant friendly, harder to appreciate rather than just know
Insanity and Mens Rea
The MPC allows evidence of mental illness to negate any mens rea element of any crime.
Some jurisdictions allow evidence of mental illness to show that the defendant did not form a specific intent specified in the offense, but not for general intent offense.
Some jurisdictions allow evidence of mental illness only to establish an affirmative defense of legal insanity, but completely prohibit such evidence to negate the mens rea of the offense charged.


Diminished Capacity

Refers to cases where the actor’s mental illness falls short of insanity
Evidence of diminished capacity can be used for two purposes:
To negate the mens rea required for the crime (“mens rea”)
To partially excuse the defendant’s guilt even if she has the required mens rea for the crime. (“partial responsibility”)
Clark v. Arizona, SCOTUS 2006
Categories of evidence with a potential bearing on mens rea
Observation evidence: testimony from those who observed D commit the act. Also includes expert testimony about D’s tendency to think in a certain way and his behavioral characteristics.
Mental-disease evidence: opinion testimony that D suffered from a mental disease.
Capacity evidence: opinion evidence regarding defendant’s capacity for cognition and moral judgment.
Arizona has sensible reasons to assign the risks of mental disease evidence, and restrict admissible evidence for mens rea defense short of insanity to observation evidence only
Partial Responsibility
Even if the prosecution proves the elements of the crime charged, the defendant may bring evidence of mental illness, short of insanity, to show that she is less culpable than a completely sane defendant and should be convicted of a lesser crime.
Only the MPC recognizes the partial responsibility defense and where it does apply, it is only a defense to murder to mitigate the offense to manslaughter.

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Defenses in Criminal Law

Common Law - Defenses

General Principles
1. Even where the prosecution meets its burden in proving all elements of a crime, the defendant may raise one or more defenses.
2. Categories of Defenses
a. Failure of Proof Defenses
i. The defendant argues that the prosecution failed to prove an element of the crime charged.
b. Justification Defenses
i. The defendant’s conduct was not socially undesirable under the circumstances of the case. (i.e. self-defense)
c. Excuse Defenses
i. Although the defendant’s conduct was wrongful, she should not be punished because she is not morally blameworthy. (i.e. insanity)
d. Specialized Defenses
i. These are defenses that apply to just one or few crimes (i.e. abandonment, impossibility)
e. Non Exculpatory Public Policy Defenses
i. The societal benefit underlying the defense arises not from defendant’s conduct, but from foregoing his conviction.
ii. Statute of limitations, immunities, etc.

Self Defense Analysis
When force can be used in self defense:
1. There must be a threat, actual or apparent, of the use of force.
a. If deadly force is used in self-defense, the threatened harm must be death or serious bodily injury.
b. Idea of proportionality of force
2. The threat must be unlawful and imminent.
a. Imminency is emphasized by common law (no preemptive strikes)
i. Battered Women’s Syndrome
ii. “Immediate danger, such as must be instantly met, such as cannot be guarded against by calling for the assistance of others of the protection of the law.”
3. The defendant must subjectively believe that she was in imminent peril of harm and her response was necessary to protect herself.
4. The defendant’s belief must be objectively reasonable under the circumstances.
a. A determination of reasonableness must be based on the “circumstances” facing a defendant or his “situation.”
i. These circumstances/situation include:
1. Any relevant knowledge the defendant had about that person, including those known substantially before the killing
2. Physical attributes of all persons involved.
3. Prior experiences
4. Gender but not race

Exceptions to Defense of Using Deadly Force in Self-Defense
1. Exception #1 (Aggressor):
a. The right to use lethal force in self-defense is unavailable to someone who provokes a physical conflict, unless:
i. The defendant withdraws from the altercation and informs the other party of her withdrawal by words or conduct, OR
ii. The other party responds to the defendant’s use of non-lethal force with lethal force, in which case the defendant may use lethal force to defend herself.
1. Defendant would be liable for the first non-lethal threat.
2. Exception #2 (Retreat)
a. The common law forbids the use of deadly force when the defendant is subjectively aware of the existence of an avenue for completely safe retreat.
i. Under the “castle” doctrine, a defendant who, through no fault of her own, is attacked in her own home is under no duty to retreat.
b. The majority rule in the United States allows the use of deadly force to repel a lethal attack, even if she can retreat in complete safety (the “no retreat” or “stand your ground” rule)

Defense of Others
1. A person is permitted to use force to protect a third party from unlawful use of force by an aggressor.
2. The person may use force if she has reasonable grounds for believing that force is necessary to prevent imminent harm to the third party.
3. Traditional Rule: Applied solely to those persons with whom the defendant had a special relationship, such as wife or brother.
4. Modern Rule: No distinction between strangers and relatives with regards to its application.

Defense of Property/Habitation
1. Personal Property
a. Non-lethal force may be used to protect personal property if the owner reasonably believes that force is necessary to prevent imminent, unlawful possession of the property
b. Non lethal force may also be used if reasonably necessary to recapture property if the owner acts promptly
c. Lethal force is never permitted to protect personal property even if it the only means to prevent the loss.
2. Habitation
a. Lethal force may be used if the defendant reasonably believes that lethal force is necessary to prevent an imminent and unlawful entry into the home to commit a forcible felony (e.g., murder, robbery, burglary, rape, arson, etc.)

Necessity (Justification Defense)
1. The defendant must reasonably believe that there is a “clear and imminent danger.”
2. The defendant must reasonably believe that there are no effective legal methods to avert the danger.
3. The harm caused must be less serious than the harm avoided.
a. In balancing the harms, the defendant’s “actions should be weighed against the harm reasonably foreseeable at the time, rather than the harm that actually occurs.”
b. Given the facts as they reasonably appear, the defendant’s balancing of the harms must in fact be correct.
4. The defendant must not have been at fault for creating the emergency to be averted.
5. The balancing is not foreclosed by a legislative choice.
a. Cannot use necessity in a homicide prosecution.

Duress (Excuse Defense)
1. Elements
a. Imminent threat by another person of death or serious bodily injury against the defendant or [a member of her family - this requirement mostly gone] another if the defendant does not commit a criminal offense.
i. “A veiled threat of future unspecified harm” is insufficient
b. A well grounded fear that the threat will be carried out.
c. No reasonable opportunity to escape the threatened harm except through compliance with the demands of the coercer.
2. The defendant must not be at fault for exposing herself to the threat.
3. Cannot use duress in a homicide case

Intoxication
1. Not an affirmative defense, not applicable to strict liability offenses
2. Analysis
a. Step 1: Did the defendant becomes intoxicated voluntarily or involuntarily?
i. Intoxication is voluntary if it results from knowingly ingesting a substance that the actor knows or should know can cause her to become intoxicated, unless she was coerced to ingest it.
b. Step 2: Is the offense charged a specific intent offense or a general intent offense?
i. Voluntary intoxication is a defense to specific intent crimes if, as a result of her intoxication, the defendant did not form the specific intent required in the definition of the crime.
ii. Involuntary intoxication is a defense to both specific and general intent crimes if, as a result of her intoxication, she did not form the mental state required in the definition of the crime.
MPC - Defenses

Self Defense
1. A person is justified in using force upon another person if she believes that “such force is immediately necessary for the purpose of protecting herself against the use of unlawful force by such other person on the present occasion.” 3.04(1)
2. Two departures from the common law:
a. The actor’s subjective belief need not be reasonable.
i. Where the actor is negligent about the need to use force, she can be convicted of a negligence crime.
ii. When the actor is reckless about the need to use force, she can be convicted of a recklessness or negligence crime.
b. The MPC subs the phrase “immediately necessary” instead of “imminence”
i. Battered Women’s Syndrome
3. Deadly Force
a. The use of deadly force is authorized only to protect against death, serious bodily injury, rape, and kidnapping. MPC 3.04(2)(b)
b. Deadly force by aggressors.
i. The MPC prohibits the use of deadly force by a person who “with the purpose of causing death or serious bodily injury, provoked the use of force against himself in the same encounter,” unless he withdraws.
ii. Difference between common law - you have to be an aggressor of deadly force.
c. Retreat
i. The MPC prohibits the use of deadly force by a person who “knows that he can avoid the necessity of using such force with complete safety by retreating or by surrendering possession of a thing to a person asserting claim of right thereto or by complying with a demand that he abstain from any action,” but retreat is not required from his dwelling or place of work (unless the attacker is a co-worker)

Defense of Others
1. A person is permitted to use force to protect a third party from unlawful use of force by an aggressor.
2. The person may use force if she subjectively believes that force is necessary to prevent imminent harm to the third party.

Necessity
1. The “choice of evils” defense under MPC 3.02 is different from (and broader than) the common law in three primary respects
a. The MPC rejects the imminence requirement
b. The defendant may claim the defense even if she was at fault in bringing about the situation requiring the choice of evils or appraising the necessity for her conduct.
i. If the defendant was negligent in bringing about the necessity, she may be prosecuted for a crime of negligence.
ii. If the defendant was reckless in bringing about the necessity, she may be prosecuted for a crime of recklessness or negligence.
c. The defense is available in homicide prosecutions

Duress
1. Duress is an affirmative defense to unlawful conduct if:
a. The defendant was compelled to commit the offense by the use, or threatened use, of unlawful force by the coercer upon her or another person, AND
b. A person of “reasonable firmness” in the defendant’s situation would have been unable to resist the coercion.
2. The defense is also available if the defendant reasonably, but erroneously, believed that a threat to use unlawful force was issued.
3. The defense is unavailable if the mistake in that regard was reckless or negligent and the defendant was prosecuted for a crime of similar culpability.
4. Differences from Common Law
a. No imminency requirement in the MPC
b. The threatened harm need not be a threat of death or serious bodily injury. Must be a threat of physical harm.
c. The imperiled person need not be the defendant or a member of her family
d. The defense is available in homicide prosecutions

Intoxication
1. General Rule: Intoxication, voluntary or involuntary, is a defense to a crime if, as a result of the intoxication, the defendant lacked the mental state required for an element of the crime.
a. I.e., intoxication led you to do something without knowingly doing so.
2. Exception: When recklessness is an element of the offense, the defendant cannot negate the recklessness element with evidence of voluntary intoxication.

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Accomplice Liability in Criminal Law

Common Law - Accomplice Liability

Accomplice Liability Analysis
1. Did the primary party commit an offense?
a. A conviction of the primary party is not required since the lack of a conviction does not mean that the crime did not occur.
b. The acquittal of the primary party bars the conviction of the accomplice if the primary party was acquitted based on a justification defense (as opposed to an excuse defense).
c. Innocent Agency Doctrine: One who effects a criminal act through an innocent and unwitting agent is a principal.
2. Did the secondary party commit the actus reus of accomplice liability?
a. Solicited another person to commit the offense, assisted in its commission, encouraged its commission, or failed to perform a legal duty to prevent its commission
i. Attempting to aid is not sufficient
3. Did the secondary party have the required mens rea for accomplice liability?
a. The secondary party must have the intent to promote or facilitate the primary party to engage in conduct that forms the basis of the offense
i. The required intent can be inferred from knowledge under certain circumstances. See People v. Lauria
b. The secondary party must have whatever mental state is required -- intentionally, knowingly, recklessly, negligently, etc. -- for the commission of the substantive crime with regard to the results of the primary party’s conduct
i. The required intent can be inferred from knowledge under certain circumstances. See People v. Lauria.
4. Causation
a. A defendant can be liable as an accomplice even if the primary party would have committed the offense without the defendant’s assistance.

Accomplice Liability: Common Law
1. General Principles
a. A secondary party is an accomplice of the primary party if she intentionally assists the primary party in committing a crime
b. The term “assist” includes soliciting another person to commit the offense, assisting in its commission, encouraging its commission, or failing to perform a legal duty to prevent its commission
c. An accomplice may be convicted of any offense committed by the primary party with the accomplice’s intentional assistance (derivative liability).
d. Attempting to aid is not sufficient (unlike MPC)
2. Elements
a. Actus Reus
i. Secondary party’s assistance.
ii. Solicited another person to commit the offense, assisted in its commission, encouraged its commission, or failed to perform a legal duty to prevent its commission.
1. Mere presence or prior knowledge is not enough
b. Mens Rea - dual intent:
i. Intent to aid the primary party AND
1. An undisclosed intention to render aid if needed will not suffice. Nor is mental approval of the actor’s conduct.
ii. Intent that such assistance result in the commission of the offense charged.
iii. People v. Lauria
1. As in conspiracy, required intent can be inferred from knowledge under certain circumstances:
a. Knows of the crime AND
b. She has the purpose that the crime occur OR
c. The offense involved is “very serious” OR
d. She has a “stake” in the crime, meaning:
i. She charges the criminal above market price
ii. Sales for illegal use amount to a high proportion of the profits;
iii. There is no legitimate purpose for the type of goods supplied under the circumstances of the case; or
iv. There is no legitimate purpose for the volume of goods supplied under the circumstances of the case.
3. Corroboration Rule
a. Conviction may not be had upon the testimony of an accomplice unless his testimony is corroborated by such other evidence as tends to connect the D with the commission of the offense, and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof.
4. Natural and Probable Consequences Doctrine
a. A person encouraging or facilitating the commission of a crime can be held liable not only for that crime, but for any other offense that was a “natural and probable consequence” of the crime the person aided.
b. Analysis
i. Did the primary part commit the target offense?
ii. If yes, was the secondary party an accomplice in the commission of the target offense?
iii. If yes, did the the primary party commit another crime or crimes beyond the target offense?
iv. If yes, were the latter crimes, “although not necessarily contemplated at the outset, reasonably foreseeable consequences of the original criminal acts encouraged or facilitated by the aider and abettor?”
5. Liability of the Accomplice vs. the Principal
a. For an accomplice to be guilty of a crime, there must have been a crime committed by another person from whom the accomplice’s liability originates.
b. A conviction of the primary party is not required since the lack of a conviction does not mean that the crime did not occur.
6. Abandonment Defense
a. The common law didn’t recognize an abandonment defense to accomplice liability, but many jurisdictions now permit the defense
b. Defendant must voluntarily and completely renounce involvement in a crime and make a substantial efforts to prevent it.


 
MPC - Accomplice Liability

Accomplice Liability Analysis
1. Did the primary party commit an offense?
a. A conviction of the primary party is not required since the lack of a conviction does not mean that the crime did not occur.
b. The acquittal of the primary party bars the conviction of the accomplice if the primary party was acquitted based on a justification defense (as opposed to an excuse defense).
c. Innocent Agency Doctrine: One who effects a criminal act through an innocent and unwitting agent is a principal. 2.06(2)(a)
2. Did the secondary party commit the actus reus of accomplice liability?
a. Solicits such other persons to commit it; or
b. Aids or agrees or attempts to aid such other person in planning or committing it; or
c. Having a legal duty to prevent the commission of the offense, fails to make the proper effort to do so.
3. Did the secondary party have the required mens rea for accomplice liability?
a. The secondary party must have the intent to promote or facilitate the primary party to engage in conduct that forms the basis of the offense
b. The secondary party must have whatever mental state is required -- intentionally, knowingly, recklessly, negligently, etc. -- for the commission of the substantive crime with regard to the results of the primary party’s conduct
4. Causation
a. A defendant can be liable as an accomplice even if the primary party would have committed the offense without the defendant’s assistance.

Accomplice Liability: MPC
1. Elements
a. Mens Rea
i. Purpose of promoting or facilitating the commission of the offense
1. Knowledge alone is insufficient
b. Actus Reus
i. Solicits such other person to commit it; or
ii. Aids or agrees or attempts to aid such other person in planning or committing it; or
1. Aid includes common law “assist:” assisting in commission of offense, encouraging its commission
iii. Having a legal duty to prevent the commission of the offense, fails to make a proper effort to do so
2. MPC Rejects Natural and Probable Consequences Doctrine
a. Except for 210.2 presumption regarding recklessly killing while in commission of a specified crime
3. Abandonment Defense
a. MPC 2.06(6) recognizes an abandonment defense if the defendant terminates their complicity prior to the commission of the offense; and either
i. Wholly deprives it of effectiveness; or
ii. Gives timely warning to law enforcement authorities or otherwise makes proper efforts to prevent the crime

 

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Conspiracy in Criminal Law

Common Law - Conspiracy

1. General Principles
a. Conspiracy is a mutual agreement, express or implied, between two or more persons to commit an unlawful act.
b. At common law, the crime is complete upon formation of the agreement. No overt act to further conspiracy is required.
c. Many states now require the commission of an overt act in furtherance of the conspiracy.
d. At common law, the rule of merger does not apply
i. Conspiracy is separate and distinct from the substantive crime that is its object
ii. Defendant may be convicted and punished for both conspiracy and the substantive crime. (And conspiracy and attempt)
2. Co-Conspirator Liability
a. Conspiracy vs. Accomplicity
i. Conspiracy requires agreement to participate in the commission of a crime but actual assistance in the crime is not required.
ii. Accomplice liability requires proof of assistance, but an agreement to participate is not required.
b. Pinkerton Co-Conspirator Liability (Majority Rule)
i. A conspirator is responsible for any criminal act committed by a co-conspirator if:
1. The act was committed in furtherance of the conspiracy AND
2. The act was a reasonably foreseeable consequence of the unlawful agreement
3. Elements of Conspiracy
a. Mens Rea
i. Conspiracy is a specific intent crime
ii. Conspiracy is not established unless two or more persons:
1. Intend to agree or to conspire AND
2. Intend to commit the offense which is the object of the conspiracy
iii. People v. Swain, California SC 1996
1. A conviction of conspiracy to commit murder requires a finding of intent to kill, and cannot be based on a theory of implied malice
iv. People v. Lauria, California CoA 1967
1. Under what circumstances does a supplier become part of a conspiracy when he knows his goods or services are to be used by the buyer for a criminal purpose?
2. Both the element of knowledge of the illegal use of the goods or services and the element of intent to further that use must be present in order to make the supplier a participant in a criminal conspiracy.
3. The specific intent of a supplier to further illegal use may be established by:
a. Direct evidence that he intends to participate
b. Knowledge of unlawful use PLUS
i. Stake in the venture (i.e. over charging criminals for same service);
ii. No lawful use exists for the goods or services under the circumstances;
iii. Volume of business is grossly disproportionate to any legitimate demand, or sales for illegal use are a high proportion of the seller’s total business; or
iv. The case involves a “very serious offense” in which knowledge alone may be sufficient (i.e. felony)
v. Attendant circumstances
1. Some courts hold that conspiracy cannot be proven unless the parties have knowledge of the attendant circumstances, even if such knowledge is not required for the underlying crime.
2. Other courts conclude that knowledge of attendant circumstances is not required for a conspiracy conviction, and require the same mens rea for attendant circumstances as the target crime
b. Actus Reus
i. Agreement
1. The gist of a conspiracy is the agreement to commit a criminal act or a series of criminal acts.
2. The fact finder can infer the existence of an agreement through evidence of acts, conduct, and circumstances.
3. Accomplice and conspiratorial liability are not synonymous
a. Someone can be an accomplice to an offense without conspiring to commit it.
b. Accomplice liability does not require proof of an agreement
ii. Overt act in furtherance of the conspiracy
1. Many states require an overt act
2. Any act, no matter how trivial, is sufficient to meet the overt act requirement, as long as it is performed in furtherance of the conspiracy.
3. The overt act need not be illegal
4. Unilateral vs. Bilateral Conspiracy
a. Bilateral:
i. Two or more persons must have the requisite mens rea for conspiracy (intent to agree and specific intent to commit unlawful acts)
b. Unilateral:
i. Only the defendant must have had the requisite mens rea
5. Scope of a Conspiracy
a. A conspiracy can exist even though the conspirators “do not know the identity of one another, and even though they are not all aware of the details of the operation.”
b. Defendant must have a general awareness of the “scope and objective” of the enterprise and there must be a “community of interest” among the co-conspirators or reason to know of each other’s existence
i. Community of Interest: Does the success of one conspirator depend in part on the other?
c. Wheel vs. Chain Conspiracies
i. Wheel Conspiracy
1. There is a “hub,” a person who transacts illegal dealing with other persons, who are the “spokes.”
2. The hub views the spokes as part of a broader criminal enterprise, but the spokes view the conspiracy more narrowly.
ii. Chain Conspiracy
1. Involves “successive communication or cooperation” and the various “links” in the chain have a community of interest in that the success of one member’s part depends upon the success of the whole enterprise.
iii. Wheel vs. Chain
1. It is more difficult to infer an agreement among the spokes than among the links of a chain conspiracy, because they are less likely to have a community of interest or reason to know of each other’s existence since one spoke’s success is usually not dependent on the other spokes’ success, but instead on his dealings with the hub.
d. Number of Conspiracies
i. Braverman v. United States, SCOTUS 1942
1. Whether a single agreement to commit acts in violation of several penal statutes is to be punished as one or several conspiracies?
2. Whether the object of the agreement is to commit one or many crimes, it is in either case that agreement which constitutes the conspiracy which the statute punishes.
3. The one agreement cannot be taken to be several agreements and hence several conspiracies because it envisions the violation of several statutes rather than one.
6. Defense of Abandonment
a. Once the conspiracy offense is complete (agreement + overt act), abandonment is not a defense to conspiracy
b. If a person abandons the conspiracy, she can avoid liability for any subsequent crimes committed by her former co-conspirators in furtherance of the conspiracy.
i. Courts usually require that the abandoning party communicate her withdrawal to each co-conspirator
ii. Some courts also require the abandoning party to successfully dissuade others from continuing the conspiracy.
MPC - Conspiracy

1. General Principles
a. Conspiracy is a mutual agreement, express or implied, between two or more persons to commit an unlawful act.
b. Under the MPC, the rule of merger applies
i. The defendant cannot be convicted of both conspiracy and the target crime (or attempt) unless the agreement involved the commission of additional offenses not yet committed (or attempted).
2. Co-Conspirator Liability
a. MPC rejects the Pinkerton Doctrine and only applies accomplice liability
3. Elements of Conspiracy
a. Mens Rea
i. A person is not guilty of conspiracy unless the conspiratorial agreement was made “with the purpose of promoting or facilitating” the commission of the substantive crime.”
ii. Supplier of goods or services for illegal use
1. A conspiracy does not exist if supplier is aware of, but fails to share, another person’s criminal purpose.
iii. Attendant circumstances
1. Knowledge of attendant circumstances is not required for a conspiracy conviction when knowledge of the circumstances is not required for the substantive offense.
b. Actus Reus
i. Agreement
1. Agreement to commit a criminal act or a series of criminal acts.
2. The fact finder can infer the existence of an agreement through evidence of acts, conduct, and circumstances.
ii. Overt act in furtherance of the conspiracy
1. Any act, no matter how trivial, is sufficient to meet the overt act requirement, as long as it is performed in furtherance of the conspiracy.
2. Overt act required, except for conspiracy to commit felonies in the first or second degree
4. Unilateral Conspiracy
a. MPC adopts a unilateral theory of conspiracy
b. Focuses inquiry on the culpability of the defendant, rather than on the group which they are alleged to be a part of.
5. Scope of a Conspiracy
a. Who’s part of the conspiracy?
i. If a person guilty of conspiracy … knows that a co-conspirator has conspired with another person to commit the same crime, he is guilty of conspiring with such other person, whether or not he knows their identity.
b. Number of Conspiracies
i. A person with multiple criminal objectives is guilty of one conspiracy if:
1. (Same as common law) The crimes are part of a single agreement, OR
2. Even if there are multiple agreements, the crimes are part of “a single and continuous association for criminal purposes.”
6. Defense of Abandonment
a. Abandonment is an affirmative defense if the conspirator:
i. Completely and voluntarily renounces her criminal purpose AND
ii. Thwarts the success of the conspiracy

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