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Yaffe's Crim Law

Terms in this set (138)

Theft
Taking another person's property without permission
Larceny
Taking another person's property without permission and w/intent never to return it
Robbery
Taking another person's property without permission through force or threat of force
Burglary
Unlawfully entering another's dwelling (at night) with intent to commit a felony therein [notice the intent doesn't have to be to steal]
Arson
The malicious burning of the property of another
Kidnapping
Unlawfully carrying away, seizing, or detaining another person against that person's will
Elements of a Crime
Acts, Results, Circumstances (those are the Actus Reus, and Mental States (that's the Mens Rea)
The Voluntary Act Requirement
No offense can be constructed so that the elements do not include either an act or an omission.
MPC § 2.01(1) [That's Voluntary Act]
A person is not guilty of an offense unless his liability is based on conduct which includes a voluntary act or the omission to perform an act of which he is physically capable. [This bars criminalization of status alone and thought alone]
MPC § 2.01(2) [What is NOT a voluntary act]
a) A reflex or convulsion;
b) a bodily movement during unconsciousness or sleep;
c) a conduct during hypnosis or resulting from hypnotic suggestion
d) a bodily movement that otherwise is not a product of the effort or determination of the actor, either conscious or habitual. [this means that habitual actions, like checking your phone while driving, although unconscious, are still voluntary]
Patterson v. New York [Elements and Burden-Placing]
A state must provide a mechanism by which a defendant will be treated more leniently in light of some fact about that defendant when failure to do so would [or at least could] result in disproportional punishments (disproportional punishments being loosely defined by the requirement of 8th Amendment proportionality). That's the rule for what can and can't be an affirmative defense instead of an element.
MPC 1.01(3) [Rules about Omission]
Liability for the commission of an offense may not be based on an omission unaccompanied by action unless:
A) the omission is expressly made sufficient by the law defining the offense; or
B) a duty to perform the omitted act is otherwise imposed by law
^^[Some courts interpret the phrase "otherwise imposed by law" to mean "imposed by non-criminal law" ]
Limitations on Omissions
The defendant must have been physically capable [psychological capability doesn't matter] of doing the omitted action (you can't prosecute me for not stopping a robbery in Maryland when I'm in Connecticut)
The actor who omitted an action must have had a legal duty to perform to be found guilty of omitting an action
MPC 2.01(4) [Posession]
Possession is an act, within the meaning of this Section, if the possessor [1]knowingly procured or received the thing possessed OR [2]was aware of his control [of the thing] thereof for a sufficient period to have been able to terminate possession.
^^^This rule establishes that a mental obstacle to performance undermines liability for a failure to dispossess a thing: ignorance that one had the thing is sufficient to undermine omission liability for possession, even though ignorance is a psychological capability which omission liability normally doesn't care about it (note that in 1 of the two limitations above).
Possession Incident to Dispossession Defense
It's ok for you to possess an illegal thing if you were only possessing it because you were trying to dispossess it (like carrying cocaine you found in your wife's stuff to the bathroom to flush it)
Proximate Cause Rule
For an act to be the proximate cause of a result 1) the act must be the but-for cause of the result and 2) a) the result was not be a freak accident [i.e. the result was a natural and probably consequence, or the result was a foreseeable result] and b) the result was not the product of another party's voluntary intervention.
Voluntary Intervention Principle
If R is proximately caused by the voluntary act of D1 AND D1 intended the R, then R is not proximately caused by the preceding voluntary act of D2, even if D2's act is a but-for cause of D1's.
Factual Causation/Cause in Fact
Criminal law generally requires a but-for causation test to fulfill factual causation. Courts need clear statutory language before they will endorse any alternative test to fulfill factual causation because of the principle of lenity (because other tests would tend to punish more people).
Legal Causation/Proximate Cause
Criminal law calls this "proximate cause," not legal causation. It requires "reasonable foreseeability" and the absence of "voluntary intervention," which is defined above (and can be seen in People v. Kevorkian below).
The Requirement of Correspondence/Concurrence
D/s mental state serves as a mens rea element of the crime only if it corresponds with the act or omission that serves as the act element of the crime.
^^^Generally courts will say this means that the relevant mental state needs to be at the EXACT same time as the act or omission that proximately causes the result.
People v. Decina
In this case, the court looks at the correspondence between acting to start driving and the corresponding mental state (i.e. a mental state at the same time as he started driving) that he knew he could have a seizure and kill someone if he started driving, and because it finds correspondence of knowledge of risks with the action of taking the risk the indictment is valid.
Intent Substitution Principle
If X, then for some legal purpose D intended to Act (even if D actually did not intend A). Example: "If it is shown that R is a normal consequence of D's act A, then there is sufficient evidence that D intended R when he A'd."
Intent Evidence Principle
If X, then there is evidence that D actually intended to A, which is sufficient for some legal purpose. Example: If the prosecution shows that D did something knowing it would probably cause R, then that showing is evidence that permits an inference that D intended R.
MPC 2.02(3) Culpability Required Unless Otherwise Provided
When the culpability sufficient to establish a material element of an offense is not prescribed by law, such element is established if a person acts purposely, knowingly or rec. I.e. the default rule for what mens rea is required when the statute doesn't specify, and that default rule is always reckless
2.02(4) Prescribed Culpability Requirement Applies to All Material Elements
When the law defining an offense prescribes the kind of culpability that is sufficient for the commission of an offense, without distinguishing among the material elements thereof, such provision shall apply to all the material elements of the offense, unless a contrary purpose plainly appears.
^^^ If there is a specified mens rea in the statute, then that usually applies to every element, UNLESS we have a good reason not to apply it (i.e. a contrary purpose appears, or it's clear that a mens rea requirement clearly only goes to one element in the statute grammatically, with commas usually pausing the carrying over of mens rea)
2.02 (5) Substitutes for Negligence, Recklessness, and Knowledge
When the law provides that negligence suffices to establish an element of an offense, such element also is established if a person acts purposely, knowingly or recklessly. When recklessness suffices to establish an element, such element also is established if a person acts purposely or knowingly. When acting knowingly suffices to establish an element, such element also is established if a person acts purposely.
2.02(7) Requirement of Knowledge Satisfied by Knowledge of High Probability
When knowledge of the existence of a particular fact is an element of an offense, such knowledge is established if a person is aware of a high probability of its existence, unless he actually believes that it does not exist.
^^^MPC Substitution principle for knowledge, used in willful ignorance case. Written easier as follows: The prosecution can show knowledge with respect to an element by showing that 1) D was aware of a high probability that E and 2) it was not the case that D believed E to be absent.
2.02(8) Requirement of Willfulness Satisfied by Acting Knowingly
A requirement that an offense be committed willfully is satisfied if a person acts knowingly with respect to the material elements of the offense, unless a purpose to impose further requirements appears. [Also, if the statute calls for a person to act "maliciously," that is translated as recklessly in MPC terms—however, many jurisdictions don't follow the "willingly" and "maliciously" rules of thumb, so be careful with those words in statutes.]
US v. Jewell (9th Cir. 1976)
First pre-SCOTUS willful ignorance case, in which the Court establishes that the prosecution's burden to show defendant had knowledge with respect to an element can be met by showing that D was ignorant thanks to 1) D's omitting inquiry 2) with the intention of remaining ignorant. The court claims that this is the same as MPC 2.07, but it totally just isn't.
Global-Tech Appliances v. SEB S.A. (SCOTUS 2011)
Establishes the modern test for willful ignorance from SCOTUS: 1) the defendant must subjectively believe that there is a high probability that a fact exists and 2) the defendant must take deliberate actions to avoid learning that fact. But deliberate is so difficult to define!
US v. Giovannetti (7th Cir. 1990)
Tells us that "deliberate" does not include negligent failures to inquire in willful ignorance cases.
US v. Heredia (8th Cir. 2007)
Tells us that "deliberate" failure to inquire DOES include reckless failure to inquire in willful ignorance cases. (this is woman driving across Mexico border unknowingly with pot case)
2.02 Test for Purposefully/Intentionally
A person acts XXX with respect to a material element of an offense when:
(i) if the element involves the nature of his conduct or a result thereof, it is his conscious object to engage in conduct of that nature or to cause such a result; and
^^^This is for acts and results elements
(ii) if the element involves the attendant circumstances, he is aware of the existence of such circumstances or he believes or hopes that they exist.
^^^This is for circumstance elements
2.02 Test for Knowingly
A person acts XXX with respect to a material element of an offense when:
(i) if the element involves the nature of his conduct or the attendant circumstances, he is aware that his conduct is of that nature or that such circumstances exist; and
^^^This is for acts and circumstances elements
(ii) if the element involves a result of his conduct, he is aware that it is practically certain that his conduct will cause such a result.
^^^This is for results elements
2.02 Test for Recklessly
A person acts XXX with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and purpose of the actor's conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a law-abiding person would observe in the actor's situation.
Four part test for recklessness
1-First figure out subjective risk: the probability that the defendant consciously assigned to the element's presence (i.e. did the defendant think that there was a chance this element would be fulfilled).
2-For substantiality sk "is the expected harm great enough to warrant criminal penalty, with expected harm = magnitude of the harm x the probability that it will occur." An unsubstantial harm is a de minimis ham: harm too small to warrant state coercive action aimed at preventing it.
3-For unjustifiability consider if the defendant's reasons for his conduct were in fact insufficiently important to warrant causing a harm of the magnitude of the expected harm. A justified harm is a harm inflicted for good enough reasons that the state is unwarranted in coercing people into not inflicting them.
4 For gross deviation: given did D's reason for acting, the expected harm would have had to have been much lower than it was for the risk to have been justifiable. This is the equivalent of asking was the act of imposing the risk a lot worse than the acts of those who are civilly liable for this kind of act?
2.02 Test for Negligence
A person acts XXX with respect to a material element of an offense when he should be aware of a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that the actor's failure to perceive it, considering the nature and purpose of his conduct and the circumstances known to him, involves a gross deviation from the standard of care that a reasonable person would observe in the actor's situation.
Different between recklessness and negligence inquiry:
In negligence, what sets the risk level is not the defendant's beliefs about the risk (as in recklessness) but instead the reasonable person's beliefs about the risk. Also, in negligence the gross deviation is from "the standard of care that a reasonable person would observe in the actor's situation," not in reference to civil standards of liability as in recklessness.
2.04(1) Ignorance or Mistake
Ignorance or mistake as to a matter of fact or law is a defense [is a defense means is a bar to liability] if:
(a) the ignorance or mistake negatives the purpose, knowledge, belief, recklessness or negligence required to establish a material element of the offense; or
(b) the law provides that the state of mind established by such ignorance or mistake constitutes a defense.
2.04(2) Ignorance or Mistake's Lesser Crimes Doctrine
Although ignorance or mistake would otherwise afford a defense to the offense charged, the defense is not available if the defendant would be guilty of another offense had the situation been as he supposed. In such case, however, the ignorance or mistake of the defendant shall reduce the grade and degree of the offense of which he may be convicted to those of the offense of which he would be guilty had the situation been as he supposed.
Regina v. Prince (1875)
An old case that serves as the basis for Conduct Rules (the rule that the statute tells ordinary people to follow) and Decision Rules theory (the rule that the statute tells legal officials (like judges and prosecutors) to follow when prosecuting and convicting), which states that only mistakes about the facts relating to the conduct rule should serve as acceptable legal mistakes.
What is the availability of mistakes of fact under common law?
In general intent statutes, if the mistake is reasonable, then defendants can raise an affirmative defense. In specific intent statutes, the fact can rebut the prima facia case regardless of reasonability (which means the burden is on the prosecution).
A Legal Mistake About What's Prohibited
False belief to the effect that a particular set of material elements do not constitute a crime when, in fact, they do. I.e. believing there is a merciful euthanasia exception to murder when there isn't, or believing you aren't committing a crime by having weed in Utah since you bought it legally in Colorado.
A Legal Mistake About a Legally Defined Element
False belief that a particular element of a crime is absent predicated on a false belief about a legal definition. I.e. a boxer gets in a fist fight not believing that his fists are a deadly weapon because he believes falsely that the legal standard for that can only be met by a standard weapon like a gun. Often these mistakes are about non-criminal law, BUT NOT ALWAYS.
What is the common law rule for when legal mistakes excuse?
Only: 1) if the crime is mala in se and 2) if the mens rea with respect to the legally-defined element is explicit in the statute. If there's no explicitly specific intent mens rea element with respect to the element in question, then there's no mistake.
MPC 2.04(3): Legal Mistakes Affirmative Defense (publication and official reliance)
(X) A belief that conduct does not legally constitute an offense is a defense to a prosecution for that offense based upon such conduct when:
(a) the statute or other enactment defining the offense is not known to the actor and has not been published or otherwise reasonably made available prior to the conduct alleged; or
(b) he acts in reasonable reliance upon an official statement of the law, afterward determined to be invalid or erroneous, contained in (i) a statute or other enactment; (ii) a judicial decision, opinion or judgment; (iii) an administrative order or grant of permission; or (iv) an official interpretation of the public officer or body charged by law with responsibility for the interpretation, administration or enforcement of the law defining the offense.
MPC 2.02(9) Culpability as to Illegality of Conduct.
Neither knowledge nor recklessness or negligence as to whether conduct constitutes an offense or as to the existence, meaning or application of the law determining the elements of an offense is an element of such offense, unless the definition of the offense or the Code so provides. ^^^This last clause allows for some laws to specifically require knowledge of illegality, like what some tax law does. However, the rest of statutes—which are silent on mens rea with respect to illegality—are to be read as not requiring a mens rea with respect to illegality.
Entrapment by Estoppel
Affirmative defense in which D commits the crime thanks to the fact that a government official (falsely) told D that it was legal for D to do it, and (in some jurisdictions) in order to then prosecute him for committing it.
Struct Liability
The assignment of criminal liability for a particular crime in the absence of a showing that the defendant met any mens rea standard with respect to one or more of the material elements of the crime.
Absolute Liability
No mens rea elements at all need be fulfilled
MPC2.05(1): Offenses for which the requirements of culpability are not applied (i.e. strict liability offenses)
(a) offenses which constitute violations [violations equals mala prohibita, roughly], unless the requirement involved is included in the definition of the offense or the Court determines that its application is consistent with effective enforcement of the law defining the offense; or
(b) offenses defined by statutes other than the Code, insofar as a legislative purpose to impose absolute liability for such offenses or with respect to any material element thereof plainly appears
MPC 1.4: Crimes and Violations
X(X): An offense defined by this Code or by any other statute of this State, for which a sentence of [death or of] imprisonment is authorized, constitutes a crime. Crimes are classified as felonies, misdemeanors or petty misdemeanors.
X(X): An offense defined by this Code or by any other statute of this State constitutes a violation if it is so designated in this Code or in the law defining the offense or if no other sentence than a fine, or fine and forfeiture or other civil penalty is authorized upon conviction or if it is defined by a statute other than this Code that now provides that the offense shall not constitute a crime. A violation does not constitute a crime and conviction of a violation shall not give rise to any disability or legal disadvantage based on conviction or a criminal offense.
^^^This last sentence means that there can't be downstream consequences of the conviction, like you can't also lose your medical license for being convicted of a violation.
So really this looks like the MPC only allows strict liability when the government essentially launches a tort suit where only punitive damages are available.
Justifications for strict liability crimes
Strong deterrence for public welfare offenses and administrative efficiency (i.e. it's cheaper to prosecute without proving mens rea)
United States v. Dotterweich (SCOTUS 1943)
This accidental mislabelling of drugs case establishes that strict liability is acceptable for public welfare offenses. But what's a public welfare offense, you might ask!
Morissette v. US (SCOTUS 1952)
Yaffe thinks that this case about a man stealing unused ammo casings means that Due Process always requires proof of mens rea, except in public welfare offense cases, which would mean the states would have to abide by that rule (which would strike down a lot of state crimes). However, the Court also takes a statutory interpretation tact with this offense, and if only the federal statute is being interpreted then the interpretation can't apply to the states.
Federal Law rules about what is sufficient to allow for strict liability for public welfare offenses (as defined in Staples):
The legislature expressly intends to dispense with mens rea (e.g. the statute says "This crime is strict liability with respect to the age of the victim" OR
(a) the activity in which the defendant was engaged was such as to alert him to the possibility of legal regulation (e.g. the activity was dangerous) AND (b) the activity in which the defendant engaged was such that people engaged in it who fail to take steps to inform themselves about the facts are not wholly innocent, AND (c) the crime is not a felony
Under federal law, misdemeanors that can be punished by imprisonment can still trigger strict liability (which is not true under the MPC). Also, under federal law, the actus reus must be such as to provide sufficient evidence of at least negligence (that's the a and b requirements) which isn't required under the MPC at all.
Clark v. Arizona (SCOTUS 2006)
This police-shooting due to mental illness case shows us how about a quarter of the states bar defendants from introducing evidence of mental illness to negate mens rea for elements of the crime (which really goes against the MPC)
M'Naghten Rule
To establish a defense on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, the party accused was [1] laboring under such a defect of reason, from disease of the mind as [2] not to know the nature and quality of the act he was doing or [3] if he did know it that he did not know he was doing what was wrong.
Mistakes of fact and mistakes about legally-defined elements fall under [2], subject to lesser-wrongs/lesser-crimes limitations
Mistakes about what's prohibited and mistakes about moral wrongness fall under [3]
MPC 4.01 Mental Disease or Defect Excluding Responsibility
A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he [this is called the cognitive prong] lacks substantial capacity either to appreciate the criminality [wrongfulness] of his conduct or [this is called the volitional prong] to conform his conduct to the requirements of law.
The Irresistible Impulse Test
Insane if (a) Insane by M'Naghten standards or (b) Due to mental illness, incapable of choosing otherwise than to commit the time.
A are generally called the cognitive tests and B are generally called the volitional tests
Blake v. US (5th Cir. 1969)
This bank-robbing-on-a-whim case applies the MPC test requiring substantial capacity to conform one's conduct to the requirements of law, which is more lenient than the irresistible impulse test. However, this standard was pretty much abandoned after somebody who tried to assassinate Ronald Reagan got acquitted under this standard.
US v. Lyons (5th Cir. 1984)
This prosecution for possession of controlled narcotics case shows us that the MPC does not extend the insanity defense to addicts, regardless of the fact that an addict suffers from a lack of substantial capacity to conform his behavior to the law.
Kahler v. Kansas (SCOTUS 2020)
This murder-during-depression case shows us that a state is not required to offer any kind of affirmative defense of insanity (this is a jurisdiction where mental illness can still negate mens rea). There's an interesting open question of law caused by this case: what happens for strict liability crimes, where no mens rea is required? If no mens rea is required then under this regime—where evidence of insanity can only be introduced in regards to forming mens rea about the elements—it seems that evidence of insanity could never be introduced during the trial. Is that allowed under Due Process? We sure don't know!
Under the MPC (and under common law), how does intoxication affect a mens rea requirement of recklessness (and negligence)?
Section 2.08 (2): When recklessness establishes an element of the offense, if the actor, due to self-induced intoxication, is unaware of a risk of which he would have been aware had he been sober, such unawareness is immaterial.
^^^This lack of a defense of intoxication in reckless crimes extends even to cases in which the person has voluntarily intoxicated themselves even when their self-induced intoxication is pathological.
When does intoxication create an affirmative defense to a crime?
2.08(4) Intoxication which (a) is not self-induced or (b) is pathological is an affirmative defense if by reason of such intoxication the actor at the time of his conduct lacks substantial capacity either to appreciate its criminality [wrongfulness] or to conform his conduct to the requirements of law.
^^^This essentially reads "If (a) D is involuntarily intoxicated or (b) thanks to his intoxication D met criteria for an insanity defense at the time of the crime, then D has an affirmative defense at the time of the crim.
How is intoxication defined under the MPC?
A disturbance of mental or physical capacities resulting from the introduction of substances into the body.
^^^Notice, that doesn't mean it has to be alcohol! You could be intoxicated from prescription drugs
How is self induced intoxication defined under the MPC?
Intoxication caused by substances which the actor knowingly introduces into his body, the tendency of which to cause intoxication he knows or ought to know, unless he introduces them pursuant to medical advice or under such circumstances as would afford a defense to a charge of crime;
^^^So, involuntary is when (1) D does not know that he's ingested the substance, (2) D knows that he's ingested the substance, but has no reason to believe it's intoxication, (3) D ingests something on medical advice, (4) D ingests something under duress (or similar).
(2) can be understood as: If D is tort negligent about the intoxicating effects of the substance he knowingly ingests, then his intoxication is "voluntary" under this rule. So like if D is given a pill at a party that he believes to be an aspirin, but that a reasonable person would know it's likely to be an intoxicating drug, then D is not going to be given an involuntary intoxication defense.
How is pathological intoxication defined under the MPC?
Intoxication grossly excessive in degree, given the amount of the intoxicant, to which the actor does not know he is susceptible.
^^^I.e. If you take something knowing it will make you high, but not knowing that it will mess you up as much as it does, then that aspect of your intoxication counts in your favor. These are often drug-mixing cases (where you don't know that a drug is going to interact with something else in your system the way it does)
What two things constitute involuntary intoxication, under the MPC?
Bot non-self-induced intoxication AND pathological intoxication.
Common Law Involuntary Intoxication Affirmative Defense
If (a) D is involuntarily intoxicated, and (b) thanks to his intoxication D met criteria for an insanity defense at the time of the crime, then D has an affirmative defense to the crime.
Traditional Common Law Voluntary Intoxication Defense
A defendant can appeal to the psychological effect of voluntary intoxication to negate mens rea only if the pertinent mens rea element is explicitly mentioned in the statute defining the crime.
Common Law "Later Rule" for Voluntary Intoxication Defense
A defendant can appeal to the psychological effect of voluntary intoxication to negate mens rea only if the pertinent mens rea element is an intent element (that's an element that requires intent/purpose as opposed to knowingness or recklessness).
Common Law "Hood Rule" (From People v. Hood) for Voluntary Intoxication Defense
A defendant can appeal to the psychological effect of voluntary intoxication to negate mens rea only if the pertinent mens rea element is a future-directed intention element.
MPC 210.2 Murder
1. Except as provided in Section 120.3(1)(b), criminal homicide constitutes murder when:
a. it is committed purposely or knowingly; or
b. it is committed recklessly under circumstances manifesting extreme indifference to the value of human life. Such recklessness and indifference are presumed if the actor is engaged or is an accomplice int he commission of, or an attempt to commit, or flight after committing or attempting to commit robbery, rape, or deviate sexual intercourse by force or threat of force, arson, burglary, kidnapping, or felonious escape.
2. Murder is a felony of the first degree [but a person convicted or murder may be sentenced to death, as provided in Section 210.6].
Common Law Definition of Murder
The unlawful killing of a human being with malice aforethought. Malice aforethought is defined traditionally in the common law as
Intent to kill, OR
Knowledge that one's act will kill, OR
Intent to seriously injure (e.g. mail) OR
Recklessness that manifests a "depraved heart" or a "wanton disregard for human life."
AND without provocation [a showing of the absence of provocation is required for the four conditions above—which are called express malice murders—but not for felony murder below]
OR The death occurred as a result of the perpetration of a felony (typically a bad felony, like robbery rape or arson). This is called implied malice murder, or felony murder.
Common Law Definition of Manslaughter
Manslaughter = The unlawful killing without malice aforethought
What is the Carroll rule for how you determine whether there was intent to kill in a murder case?
Whether the intention to kill and the killing, that is, the premeditation and the fatal act, were within a brief space of time or a long space of time is immaterial if the killing was in fact intentional, willful, deliberate, and premeditated. I.e. ONLY INTENT TO KILL IS REQUIRED FOR 1ST DEGREE WDP MURDER—NO TIME GAP BETWEEN DECISION TO KILL AND KILLING IS REQUIRED.
Willful Deliberate and Premeditated = Intent to kill
What is the Guthrie rule for how you determine whether there was intent to kill in a murder case?
"There must be an opportunity for some reflection on the intention to kill after it is formed. The accused must kill purposefully after contemplating the intent to kill." THAT MEANS A TIME GAP IS REQUIRED BETWEEN INTENT TO KILL AND KILLING
Willful Deliberate Premeditated = Intent to kill + Reflection on the intent to kill prior to action.
What kind of evidence can be used to prove Guthrie's reflection requirements in murder cases?
1) [planning activity] facts regarding the defendant's behavior prior to the killing that might indicate a design to take life, 2) [motive to kill] facts about the defendant's prior relationship with the victim that might indicate a reason to kill, and 3) evidence that the manner of killing was so particular and exacting that the defendant must have intentionally killed according to a preconceived design. These kinds of evidence don't include post-killing evidence, because that kind of evidence can go towards or against a showing of premeditation.
MPC 210.3(a) Manslaughter
a. [the homicide] is committed recklessly [without being under circumstances manifesting extreme indifference to the value of human life, because that makes it murder under 210.2]; or
b. a homicide which would otherwise be murder is committed under the influence of extreme mental or emotional disturbance for which there is reasonable explanation or excuse [the absence of a cooling down time period that is element 3 of provocation of the common law is worked into the reasonable explanation or excuse requirement]. The reasonableness of such explanation or excuse shall be determined from the viewpoint of a person in the actor's situation under the circumstances as he believes them to be.
Who can be the cause of extreme emotional disturbance sufficient to downgrade murder to manslaughter?
Anyone! The extreme emotional disturbance doesn't have to be caused by the victim of homicide. The reasonable person standard for the EED inquiry is individualized, which means the qualities of the defendant that are not shared by all reasonable persons are assigned to the hypothetical reasonable person when asking what the reasonable person would have felt. Normally this would mean like, when a defendant is a blind person, the reasonable person standard is a reasonable blind person standard.
Elements of a Non-MPC Approach to Provocation & Heat of Passion
1) Strong emotion
2) Provocative acts performed by the victim sufficient to cause a reasonable person to have the emotion [provocative acts used to be a really specific list and set of rules, but now courts are more squishy about what counts]
3) No reasonable cooling off period from the onset of the emotion to the formation of the intention to kill (or seriously injure, or be reckless with depravity of heart)
4) Causation: The intention to kill (or "same as above") was caused by the emotion
What counts as a provocative act under common law?
Definitely directly observed spousal infidelity, definitely not just-words. However, remember that modern common law jurisdictions have eased these requirements and often do a fact-driven inquiry, so now direct observance isn't often required, and mere words sometimes can be enough (like a bad racial slur).
People v. Casassa (NY COA 1980)
This case has a defendant who is extremely emotionally disturbed, and the case turns on whether or not the defendant had a reasonable explanation or excuse for that extreme emotional disturbance. Under the MPC, the reasonable person standard for this kind of inquiry is "individualized," which means the qualities of the defendant that are not shared by all reasonable persons are assigned to the hypothetical reasonable person when asking what the reasonable person would have felt. It is completely left to the jury to decide what things to subjectivize to the individual though, so it's completely unclear if the jury should subjectivize this defendant's obsession with the victim.
Doctrine of Transferred Intent
If D intents to kill V1 and, acting on that intention, kills V2, then for legal purposes D intended to kill V2. This doctrine, which is not restricted to cases with provocation, triggers ONLY IN HOMICIDE, and is often seen in cases of mistaken identity, and of accidental bystander death, like if D intends to shoot V1 but misses and hits V2.
State v. Mauricio (NJ 1990)
This case is a combination of the doctrine of transferred intent and the MPC's extreme emotional disturbance provocation law. So because the bouncer provoked the defendant, the defendant has provocation defense against the murder charge if he had murdered the bouncer, but defendant mistook the victim for the bouncer! So does the provocation transfer with the intent? This court said yes.
How/when does intent transfer in different jurisdictions?
In theory, whether or not mistaken identity that transferred intent should also transfer provocation depends on why provocation mitigates. If provocation mitigates because it creates a partial justification for homicide, or if provocation mitigates because it somewhat excuses one's unreasonable actions, then there are different considerations as to why provocation should transfer. Provocation transfers loosely around these lines, in the chart below.
Involuntary Manslaughter
When death is "voluntarily risked," which is if (1) D was aware of a high probability of death at the time of the act, or (2) A reasonable person would have been aware of it.
^^^Important: the probability need not be "high" to warrant a finding of recklessness or negligence under the MPC definitions of those terms
Commonwealth v. Welansky (Mass SC 1944)
This nightclub fire case tells us that the essence of wanton or reckless conduct (for involuntary manslaughter) requires (1) an objectively high probability of substantial harm (though high probability is far below practical certainty) and (2) a voluntary taking of risk, which requires (a) that D was actually aware of a high probability of death at the time of the act OR (b) that a reasonable person would have been aware of it.
State v. Williams (Wash. COA 1971)
This case applies a regular negligence standard as the standard to fulfill involuntary manslaughter. That standard turns on whether or not the defendants had a reasonable mental state or a negligent mental state, and that mental state is subjectivized (but how much to subjectivize negligence is really hard to determine). Regular tort negligence, for this class, is just MPC negligence, but without a gross deviation prong.
How should we subjectivize reasonable person behavior to manslaughter defendants?
One theorist says that we should subjectivize with respect to a feature of a person when the feature is compatible with appreciation of the values that the community aims to protect through the statutory prohibition being charged. So, if you're oblivious to risks of hurting another person because you don't care about other people, then we don't subjectivize to your obliviousness. But if you are fulfilling the values of the community, then we should subjectivize to your mental state.
Depraved Heart/Extreme Indifference
A reckless homicide + some sort of plus factor
MPC 210.2(1)(b) [Depraved Heart Murder]
Criminal homicide constitutes murder when . . . it is committed recklessly under circumstances manifesting extreme indifference to the value of human life.
How can depraved heart murder be mitigated?
Depraved Heart Murder can be mitigated to (voluntary) manslaughter on prov-passion or EED grounds
How can depraved heart murder be aggravated?
Depraved heart murders cannot be elevated to first degree under willful deliberate premeditation doctrine (which requires intent to kill, which DHM don't have), although some jurisdictions have additional plus factors (e.g. multiple victims, involved explosives) that allow for such an upgrade.
What counts as the something extra that creates Depraved Heart Recklessness?
Courts definitely consider the actual probability that death would result when determining depraved heart recklessness, and they're also more likely to characterize homicide as "depraved heart" if there is a child victim or if the act risked but did not cause serious harm to other people who luckily escaped (like setting off a bomb).
Commonwealth v. Malone (PA SC 1946)
This Russian Roulette case shows us a court asserting that the actual probability of death (not the defendant's assessment of probability) is what should be used to determine depraved heart recklessness. The way this court determines actual probability is kinda crazy though, considering the gun had to malfunction to have hurt someone in this case.
US v. Fleming (4th Cir. COA 1984)
This extreme drunk driving case shows us a jurisdiction in which the court—when determining if the defendant's recklessness met the depraved heart standard—asks if the defendant was aware of a "serious risk" of death (which probably means high probability). In this case, the defendant is barred by rules governing intoxication from appealing to his intoxication to support the claim that he was oblivious to the risks. Some jurisdictions have passed statutes under which intoxication can be used to rebut a charge of depraved heart recklessness, specifically, as opposed to other forms of recklessness.
How does causation work with felony murders?
But for causation of the felony that contributed to its being felonious, the death was a normal-foreseeable-non freakish result of the felony, and there was no voluntary intervention of a sort that would defeat proximate causation of the usual sort (and remember that conduct by the victims that causes the death during the felony doesn't count as voluntary intervention problems).
People v. Phillips (SC Cali 1966)
This chiropractor defrauding a family to cause the death of a child case teaches us the Abstract Approach test to determining whether a felony is inherently dangerous: the felony is not inherently dangerous if it can be committed in a way that is not dangerous to human life. However, this court's view is a minority view—most courts hold that facts about how the felony was committed are relevant to the causation question.
Hines v. State (SC Ga 2003)
This felon in possession accidental hunting shooting case applies the much more common fact-dependent "As Committed" test for determining whether a felony (murder) is inherently dangerous: the felony is inherently dangerous if it was in fact committed in a way that was normally/foreseeably dangerous to human life.
State v. Canola (SC NJ 1977)
This jewelry store robbery gone wrong case lays out the Agency Theory of whether a death was in furtherance of a felony for felony murder proceedings: if the death that occurs runs counter to the success of the felony, and the death is NOT attributable to the agency that drove the predicate felony (as when a co-felon dies), then that death isn't in furtherance of the felony. Often this standard is just applied as meaning deaths of co-felons don't count as felony murders.
Proximate Cause Theory of the "In Furtherance" Requirement for Felony Murder
Whether the death is attributable to the agency that drove the predicate felony is asked, but these theorists say that it is possible for the agency driving the predicate felony to extend to the deaths of the co-felons in a self-inflicted death kind of way. This theory says if but-for and inherent dangerousness are met, then the defendant is the agent of the death, even if the victim is a co-felon.
People v. Burton (SC Cali 1971)
This killing during an armed robbery case teaches us the Independent Felonious Purpose Test for merger in felony murder: If the predicate felony was committed only for the purpose of physically harming V, then that felony merges with felony murder and cannot be prosecuted as a felony murder.
Basic Doctrine of Felony Murder
The defendant has malice aforethought sufficient to cause a killing to be murder if: the defendant commits a felony and the felony's commission causes a death. This is a strict liability doctrine! No mental state with respect to the death is necessary.
Standard Causation for Felony Murder
The prosecution only has to prove that the felony D committed caused V's death. The prosecution does NOT have to show that the acts that D performed while committing the felony caused V's death. That means that for example if D1 and D2 are robbing a bank together and D2 shoots a clerk dead just on his own, D1 is still guilty of felony murder even if D2 would have killed the clerk even if D1 had not been involved. Similarly, if a clerk shoots D2 dead during the robbery, D1 is guilty o felony murder even if the clerk intended to kill D2.
King v. Commonwealth (VA COA 1988)
This plane crash case shows how sometimes a felony doesn't "cause" a felony murder, because the felony itself (which was the transporting of a drug) didn't cause the death (the flying in fog caused the death, and the flying itself wasn't felonious).
What are the elements of a self-defense defense against murder/attempted murder/manslaughter.
Unlawful, Imminence, Necessity, Proportionality, Reasonableness
Imperfect Self Defense (knocks a homicide down to voluntary manslaughter, usually)
All the conditions involved in self-defense other than the reasonableness requirement are met. So like if you unreasonably but actually believed that an attack was imminent, or that an attack was going to be with deadly force.
People v. Goetz (NY COA 1986)
This subway shooting case shows us how we really don't know what juries subjectivize to when determining what's a "reasonable" reaction that constitutes self-defense.
State v. Kelly (SC NJ 1984)
This battered woman case shows us that although a minority of jurisdictions just subjectivize to battered woman's syndrome, most jurisdictions only allow BWS testimony to come in to affect objective reasonableness (like the BWS helping the jury to understand that the defendant believed her husband had made credible threats of deadly force in the past, the existence of which makes it objectively reasonable for her to have believed that he was making a deadly force threat in this instance).
State v. Norman (SC NC 1989)
This battered wife kills her husband case ays that there isn't imminence of threat in this instance, so they don't allow for a self-defense defense, but man that seems so wrong (why do we have imminence anyways? is it just a proxy for necessity? is it supposed to help the government have time/space to do their job to help people?)
MPC § 3.04(1): Imminence Requirement for Self Defense
Subject to the provisions of this Section [which impose proportionality and reasonableness requirements], the use of force upon or toward another person is justifiable when the actor believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by such a person on the present occasion.
People v. Elmore (SC Cali 2014)
In this schizophrenic murder case, the court attempts to distinguish between people who are "delusional" and people who are "merely mistaken," but Yaffe thinks that distinction is trash, and thinks delusional people should get access to both the insanity defense and the imperfect self-defense defense, instead of the delusional people only getting the insanity defense and the merely mistaken getting imperfect self-defense. It's unclear what the majority rule is when a defendant asks for both the insanity defense and the imperfect self defense defense.
US v. Peterson (DC COA 1973)
This robbery-turned-murder case shows us the test for who started the fight in considering the unlawfulness requirement for self defense claims: (1) An affirmative (2) unlawful act (3) reasonably calculated [a reasonable person would have understand they were going] to produce an affray foreboding injurious or fatal consequences is an aggression which, (4) unless renounced, nullifies the right of homicidal self-defense.
(1) requires that someone started the fight with an action, not an omission. (2) requires that the act was not an acceptable response to someone else's act of aggress, (3) requires that the act was such that a reasonable person would have known that the act might produce a fight where someone would be badly hurt or die, and (4) requires that the person never renounced their act say by retreating or crying uncle after they did the act.
MPC § 3/04(2)(b)(i) MPC Test for Initial Aggressor in Self-Defense Cases
The use of deadly force is not . . . justifiable if: the actor, with the purpose of causing death or serious bodily harm, provoked the use of force against himself in the same encounter.
How does the "necessity" element work in self-defense claims?
If less than deadly force would have sufficed to repel the threat, then deadly force was not necessary.
Jurisdictions are split on retreat: some require retreat when it's possible, others don't. Even those that do require retreat generally, don't require it from a person's own home (the castle exception).
State v. Abbott (SC NJ 1961)
This fist fight turned hatchet fight case asks two questions:
1) Are the standards of necessity different depending on whether D used deadly or non-deadly force?
This court says: non-deadly force can be necessary even though retreat is possible, but deadly force cannot be necessary if retreat is possible (that's actually the MPC approach).
2) How confident does D need to be that he can retreat in order to be required to retreat?
This court says: D needs to know that retreat is possible
Traditional Common Law Rule for Police Use of Force: D (typically a police officer) is justified in using force against V if:
1. D is lawfully performing a police duty
2. The force D uses on V is necessary
3. The force D uses on V is proportional
What must a police officer's use of force be proportional to in order for the cop to have a justification of his actions?
When Bringing Suspects in and Keeping Them In: Predicate Offense—i.e. The severity of the crime for which V is being arrested
When Preventing Future Crimes: Future Offense—i.e. the severity of crimes that V is prevented from committing by arrest (and also under the MPC there can be no risk to bystanders if using force to prevent future crimes)
Tennessee v. Garner (SCOTUS 1985)
This shooting of a fleeing boy case essentially sets the MPC proportionality requirements as the minimum proportionality requirements for all states (found w/in the 4th Amendment protection against unreasonable seizure). That means that if a predicate for arrest is very serious, then deadly force can be used, or if you think that a person is a danger to others if they are allowed to go free, then deadly force is allowed.
Scott v. Harris (SCOTUS 2007)
This car chase case shows how it's difficult to determine whether police were trying to bring someone in (and therefore the proportionality of their offense is determined by the predicate offense, and the question becomes what crime) or whether the police are trying to prevent future crimes (in which case the proportionality is based on the severity/danger of future crimes). In this case, the Court is saying that the police officers were justified in their force because of the potential danger of future crimes, but that seems kinda insane because all the future crimes were kind of caused by the police chasing the defendant.
Wisconsin (very protective) Standard for Non-Consent
Sex is legally without consent for purposes of rape either if V did not assent OR did not express assent, or both.
Nebraska (very harsh to victims) Standard for Non-Consent
To show non-consent the prosecution has to show not just that V did not express assent, but also (1) V expressed refusal and (2) through resistance (including verbal resistance). This standard requires not just that a victim try to persuade the perpetrator to stop, but that the victim actually create an obstacle to what the perpetrator is doing, which can be a high standard to get over.
New York (Middle Ground) Standard for Non-Consent
Non-consent is the absence of assent + conduct of some variety that a reasonable person would interpret as expressive of refusal (and which need not amount to resistance or persuasion); silence can indeed in these jurisdictions be sometimes understood to be expressive of refusal.
Developing (in flux) MPC Definition for Rape (surprise! no consent element!)
If he or she causes another person to engage in an act of sexual penetration or oral sex by knowingly or recklessly: (a) using physical force or restraint, or making an express or implied threat of bodily injury or physically force or restraint; or (b) making an express or implied threat to inflict bodily injury on someone else.
Affirmative Consent Standard (not law anywhere, but in some college policies)
An assenting person has not consented unless they say or do something that can only be reasonably interpreted to express assent
State v. Rusk (COA Maryland 1981)
This rape case takes resistance to be implicit in force, meaning to count as resisting you have to create obstacles that interfere with D's progress even if he continues (i.e. you have to fight).
Considering rape by threat, the case also requires (A) that D caused V to be frightened, (B) V did not resist because of fear, and (C) a reasonable person would have been frightened as V was.
State in the Interest of M.T.S. (NJ SC 1992)
This rape case presents a reform in which the standard for force is changed, so that a statute which requires force for rape can be fulfilled solely by penetration. Force is implicit in penetrative sex in this reading.
How do courts set the mens rea with respect to rape as a low bar when statutes are silent?
1- They take mens rea with respect to force or threat to be implicit in the act of using or threatening to use of force, which means if threat or force is used then the mens rea with respect to the element of force or threat is fulfilled.
2- Courts also take mens rea with respect to non-consent to be implicit in the element of force or threat.
3- Most courts also take the mens rea standard with respect to non-consent to be negligence even when the relevant statute is silent about what the mens rea with respect to non-consent should be.
Commonwealth v. Lopez (SC Mass. 2001)
This case shows us the #2 way courts lower the mens rea in rape cases, in which the case says that because it was found that force/threat was used, mens rea with respect to non-consent is fulfilled, because if the defendant has used force/threat then this court says that guy is at least negligible with respect to non-consent.
Commonwealth v. Sherry (SC Mass 1982) 7 Commonwealth v. Fischer (SC Penn 1998)
These cases show us that Mass and Penn have a negligence mens rea requirement with respect to the element of non-consent, though many people misread the cases to say that Mass & Penn have strict liability with respect to the mens rea of non-consent.
Tyson v. State (Ind. Ct. App. 1993)
In this case, a reasonable mistake jury instruction wasn't given because the defendant testified that the victim was completely consenting, and the victim testified that she forcefully resisted, so there's no reason to talk about reasonable mistake because regardless of whose story you believe there was no reasonable mistake made about consent: either it was there clearly or it clearly wasn't there.
Smallwood v State (COA Maryland 1996)
This HIV positive rape case teaches us the Rule for Mens Rea Requirements of the Act Element (which is the same for the Result Element) of Attempted Crimes: If the crime requires a particular act, then the attempt of that crime requires the mens rea of intention to perform that particular act! Even though the original crime does not require intent with respect to that act, but maybe only requires knowledge or recklessness!
MPC § 5.01(1)(b) [Result Element Requirements for Attempted Crimes]
A person is guilty of an attempt to commit a crime if acting with the kind of culpability otherwise required for commission of the crime, he:
(b) when causing a particular result is an element of the crime, does or omits to do anything with the purpose of causing or with the belief that it will cause such a result without further conduct on his part.
^^^This little section allows for the mens rea with respect to a result element in an attempt to sometimes be fulfilled by knowledge instead of intent, as shown by the example below.
Regina v. Khan (1990)
This attempted rape case where the person was reckless with respect to non-consent shows us the Rule for Mens Rea Requirements of the Circumstance Element of Attempted Crimes (Variant #1): Generally, the mens rea with respect to the circumstances for the full crime carries over and becomes the mens rea with respect to the circumstances necessary for the attempt of that crime.
MPC § 5.01(1)(a) [Rule for Mens Rea Requirements of the Circumstance Element of the Attempted Crimes]
If the prosecution shows that the element is present in fact, then the carry-over rule applies for mens rea with respect to circumstance elements in attempt; but if the prosecution does not show that the circumstantial element is in place, then the mens rea standard is no lower than knowing.
Commonwealth v. Dunne (Mass. 1985)
This attempted statutory rape case in which the strict liability with respect to the circumstantial element of age carries over to attempted rape as strict liability, which courts don't really like, so instead we learn Variant #3 for Rule for Mens Rea Requirements of the Circumstance Element of the Attempted Crimes: Generally carry over the mens rea requirement, but won't carry over negligence or strict liability—courts impose recklessness instead of strict liability or negligence instead for attempt. That application is called the "modified" carryover rule.
Sets with similar terms