I. Justification of Punishment a. Theories of Punishment and Purpose of Criminal Law Sentencing i. Deterrence 1. Utilitarian concept, forward-looking, premise: humans will act in their own interest 2. Individual Deterrence: general public is protected 3. General Deterrence: helps to protect public at large, justified on grounds of 1) prevention of crime by threat of arrest, conviction, punishment 2) prevention of crime by strengthening of moral norms 3) prevention of crime by stimulating law-abiding contact based on the impulse to conform. 4. Criticisms: 1) ineffective in cases where criminal is motivated by emotional concerns 2) one person might be used as a means to an end in order to deter others and benefit society as a whole ii. Retribution 5. Premise: humans act under free will and must be punished when they choose to violate society’s norms, backward-looking 6. Based on proportionality of punishment: the evil done to the victim is paid back to the perpetrator iii. Rehabilitation/Reform 7. Criticisms: 1)allocating resources to those who least deserve them 2) remaking humans with what society deems is the best 3) assuming that humans can simply be reconditioned iv. Incapacitation 8. Renders def unable to cause further harm to society 9. Criticisms: 1) too costly 2) ineffective in reducing recidivism 3) further criminal acts might occur in prison b. Legality v. Always begin analysis with legality: is there a legality issue? vi. Person cannot be punished unless that person’s conduct was defined as criminal before def. acted. Legislature defines the law, helps to solidify separation of powers. 10. The law also cannot be too vague. vii. Rationale: provides notice as to what conduct is unlawful, confines discretion of the police in enforcement of law, prevent judges from arbitrarily creating new crimes viii. Test for Legality 11. Mandated by constitutional principles: Prohibition against ex post facto laws, principle of the due process clause 12. Laws operate prospectively—enact law, becomes law from that point on 13. Law must be specific, not vague (void for vagueness principle). ix. Constructive Notice 14. If the law is on the books, you are assumed to know it and can be prosecuted—knowing the law is your responsibility. x. Cases: 15. Commonwealth v. Mochan: Def was convicted of a common law crime of “intending to debauch and corrupt the morals of citizens.” At that time ct. allowed Pennsylvania to allow conviction on common law crime, but such doctrine has since been abolished. It is the role of the legislature to create crimes II. Elements of a Crime: (AR + MR + Circum + Result = Crime) c. Actus Reus xi. General Rule: All crimes require a defendant to have committed an actus reus, a voluntary criminal act. The actus reus might be a positive act, such as hitting another, or an omission, a failure to act when there is a legal duty to do so. 16. Ways to understand “voluntary” a. Person’s brain was engaged at the time of the act b. Person is engaged in a conscious and volitional movement xii. Purpose of the Actus Reus 17. Too much punishment if people were punished for bad thoughts alone. xiii. Actus Reus: Satisfied by Either Positive Act or Omission 18. Positive Act c. Def: A positive act is a voluntary affirmative act. If the act is not voluntary, then it is NOT a positive act and hence the act CANNOT satisfy the actus reus requirement. i. So Ask: Is the action the result of a conscious and volitional movement? d. Analyzing “Voluntary” by what is NOT “Voluntary:” ii. Key Idea: If def.’s mind is not engaged at the time of the act, then not a voluntary act. iii. MPC 2.01 Defines Involuntary Acts 1. Reflex or Convulsion a. Case (People v. Newton): Def claimed that he shot a police officer out of unconscious, reflexive action. b. Exception: Case (People v. Decina) in which an epileptic guy got into his car, doesn’t take his medicine, and has a seizure. This can be deemed a voluntary act if we take it to be voluntary that he got behind the wheel with no medication. This illustrates the importance of time frame. i. But how much knowledge do you need to have before considered voluntary? ii. Policy: Deterrence 2. Bodily Movement During Unconsciousness or Sleep c. Case (Regina v. Cogdon): Def killed her daughter while sleepwalking. 3. Hypnosis or Under Hypnotic Suggestion d. Patty Hurst example in class: Stockholm syndrome is like being hypnotized. 4. Bodily movement not otherwise the product of the effort or determination of the actor, either conscious or habitual e. Case (Martin v. State): def was physically taken from home and charged w/ being intoxicated in a public place f. Policy: There are no reasons to punish this individual. No deterrence benefits. iv. More Parameters of What is “Voluntary” 5. Habit: MPC 2.01 (2)(d) says that actions out of habit ARE considered voluntary 6. Possession: MPC 2.01 (4), Possession is not an act unless the possessor knew of his control of the item for a sufficient period to have been able to terminate his possession 7. Extending the Period of Actus Reus can dictate whether it was a voluntary action. MPC 2.01 (1) g. Epileptic Reflexes (mentioned above): Normally reflex or seizure actions don’t constitute a voluntary act but if the def is aware that she is susceptible to such problems, ct. might stretch the period of actus reus to include the time when the def knowingly took the risk of an attack. In this way, the act IS voluntary. iii. Case (People v. Decina) 19. Omissions e. General Rule: There is no legal duty to help another facing harm (omission is not an actus reus). Failure to act only constitutes an actus reus when there is a specific duty to act, and the individual was physically capable of acting. f. MPC 2.01 (3): MPC permits an omission or failure to act to satisfy the conduct element of a crime in two different types of cases: v. when the statute defining the offense expressly states that failure to act is a crime. Ex: failure to file income tax statement vi. the def has a duty to act imposed by civil law. Ex: Parent failure to provide child food. g. Rationale for General Rule of Omissions: vii. America’s tradition of individual freedom viii. Causing people not to be kind/giving because doing so might require them to act if something goes wrong. ix. possibility that Good Samaritans may face undue risk of harm h. Cases Studied in Class Illustrating Omissions x. Pope v. State (Pg. 194): Pope took a mother/baby into her house out of kindness and when the mother critically injured the baby and caused it to die, Pope did nothing about it. She was not under any duty to act; this was not an omission. xi. Jones v. US (Pg. 192): Def. didn’t care for baby when she could have and baby died of starvation. Ct. opinion emphasized that “a finding of legal duty is the critical element of the crime charged…” Case required a legal duty of care. xii. Brutal stabbing of lady in NY. xiii. Gang-rape of women in bar i. A duty to act may arise from the following sources: xiv. Statute: Either a criminal or civil statute may create a duty to act. 8. Ex: Vermont statute making it a general duty to report harm. 9. Ex: tax statutes that make it a duty to file tax returns. xv. Status Relationships 10. Parent-Child h. Parents have a duty to aid and protect their minor children, and spouses have a similar duty to each other. i. De Facto Family Members (Outside Parent-Child Realm): iv. People v. Carroll (Pg. 202): A stepmother was charged with child endangerment for failing to prevent husband from killing his daughter during a temporary visit. Ct. expanded the bounds of who is legally responsible by indicating “the functional equivalent of a parent” and justified it on approaching the situation from a modern-day reality of parenting functions. Important because ct. DID establish a duty. v. State v. Miranda (Pg. 203): Miranda was a live-in-bf and failed to protect infant from deadly beating from gf, the baby’s mother. Ct. said there was no duty. vi. Commonwealth v. Cardwell (Pg. 204): Def lived with her daughter and husband (stepfather). Husband abused daughter and daughter ran away. Mother convicted of child abuse for failing to take sufficient steps to protect her daughter. Notice here the def. failed to take “reasonable steps”and notice this case also has a different context b/c there was a violent husband who was threatening to mother. 11. Employer-Employee 12. Spouse-Spouse j. People v. Beardlsey (pg. 202), the two people weren’t married but were sleeping together. Woman takes bunch of pills, dies, guy does nothing. Ct. ruled that he had no legal duty. Duty is merely between husband-wife. vii. Non-traditional relationships don’t create duties (ie gf-gf, bf-bf, etc) 13. Owner-Customer xvi. Contractual Relationships: Examples would be babysitters, nursing contracts, and caretakers. The def. has agreed to assist another person. So if the def. fails in that agreement, the def. may have criminal exposure b/c of omission. xvii. Voluntarily Assuming Care of Another and Seclusion: If the def. indicates that she will care for the victim and then abandons that duty, the def. has an actus reus for the crim. 14. Ex: A person falls off a bike. Def takes person into her home and tells others that she will call for help. Then def. doesn’t call for help or assist the victim. The victim dies due to the def’s neglect. The def. may have criminal responsibility for the neglect. 15. Ex where there is NO duty: couple—longtime lovers, she took too many pills, died, D failed to call for help—found D had no legal duty b/c this was an informal relationship xviii. Peril 16. Once a def. has put a victim in peril, a duty to help is triggered. This is the case even if the def. didn’t realize that he was putting the victim in peril at the time. k. Jones v. State: Def’s rape of a 12 year-old girl had a duty to save her when she jumped into a creek to kill herself. l. Ex: Someone who pushes another into a deep lake must take reasonable steps to rescue him. j. Note that in class, we discussed the footnote on page 193 relating to relationships that might indicate an omission to be an actus reus: xix. Parent to Child (reiterated above) xx. Husband to Wife xxi. Master to Apprentice 17. This can’t be applied though if let’s say it’s a Lowe’s employee and his boss. 18. Arose out of the old-time practice of “giving” away your son or daughter to apprentice, who might work them to death. xxii. Ship Master’s Crew to Passengers xxiii. Bar Owner to Drunk Customer (Innkeeper to Inebriated Customer) 19. Hypo: What about a house party? Does the host have this right to a drunk person there? Argument in class centered around the idea that the bar has an monetary incentive to keep getting people drunk. k. Euthanasia: Be sure to do the reading and add this material into outline with corresponding notes from Roadmap/cases: xxiv. Roadmap: pg. 34-35 xxv. Barber v. Superior Ct. (Page 208-209) xxvi. Cruzan v. Director (Pg. 212) xxvii. Look at the Corresponding notes from class on 9/7/11 20. Status Relationships l. A defendant may NOT be convicted for merely having a status or condition. There MUST be a positive act or a failure to act when there is a duty to do so. xxviii. Cts. are wary of extending the “status” exception too far b/c it does limit society’s ability to use its criminal laws to control ongoing social problems such as alcoholism and drug addiction. d. Mens Rea xiv. Overview: The mens rea element requirement focuses on the levels of awareness and intentionality with which the defendant acted. xv. Justification of Mens Rea Requirement 21. Retribution 22. Deterrence 23. Rehabilitation 24. Incapacitation xvi. Common Law Approach 25. General Intent v. Specific Intent m. Specific Intent Crimes xxix. “with intent to” xvii. MPC Approach 26. Overview 27. Levels of Mens Rea: n. Purposely (MPC 2.02(2)(a)): A defendant acts purposely if it is his goal or aim to engage in particular conduct or achieve certain results. o. Knowingly (MPC 2.02(2)(b)): A person acts knowingly if the defendant is virtually or practically certain that his conduct will lead to a particular result. p. Recklessly (MPC 2.02(2)(c)): A defendant acts recklessly if he realizes that there is a substantial and unjustifiable risk that her conduct will cause harm but consciously disregards the risk. q. Negligently (MPC 2.02(2)(d)): A person acts negligently if she is unaware of and takes a risk that an ordinary person would not take. III. Mistake of Fact Overview e. General Rule: Ignorance or mistake of fact precludes criminal liability if the mistake means the defendant lacks a mental state essential to the crime charged. xviii. Although often claimed as a defense, mistake or ignorance of fact is essentially a claim that the D did not have the mens rea for all of the material elements of the crime. f. MPC 2.014(1): “Ignorance or mistake is a defense when it negates the existence of a state of mind that is essential to the commission of an offense…” g. One must determine what facts the D needed to know to be guilty of the crime, i.e., the material elements of the offense. xix. If the D is ignorant or mistaken as to a material element that does not require mens rea, then the defense will not apply. xx. See Roadmap Pg. 55 for good examples. IV. MOF: Determining the Material Elements h. MPC xxi. More defendant friendly than the CL xxii. Is not friendly to strict liability xxiii. Under the materiality analysis, the question under the MPC is whether it is an element that goes to the harm or evil that we seek to prevent. 28. Different factors to consider whether it goes to the harm or evil: r. Statutory Language xxx. First look to the language of the statute to see if the statute affixes a mens rea requirement to a particular fact. s. Penalty xxxi. If there’s a high penalty, then the element is likely material. t. Legistlative Intent of the Statute xxxii. Another way of determining which elements are material and whether a mistake of fact defense should be allowed is to examine the legislative history and purpose of the statute. If the purpose of the statute would be frustrated by allowing the defense, courts will find the contested element not to be material. xxxiii. People v. Olsen: A reasonable mistake as to the V’s age was not a defense to a charge of lewd or lascivious conduct with a child under the age of 14 b/c the public policy of the statutes was to prtect children as much as possible and, therefore, not allow a defense of MOF, even if it is reasonable. xxxiv. i.e. to protect minors u. Public Policy xxxv. Objectives of the Criminal Justice System xxxvi. War on Drugs xxxvii. Child Safety v. History of the Statute xxxviii. Olsen/Prince: statutory rape traditionally treated as SL xxxix. Look at surrounding circumstances in development of the statute xxiv. Under MPC 2.04(2), a MOF defense is not available if the D would have been guilty of another crime had the situation been as he had supposed. But MOF can reduce the grade of the offense to the situation as he supposed it to be. i. Common Law xxv. The CL favors immateriality and is more favorable to SL. xxvi. The main purpose is to promote public safety. xxvii. Main differences between CL and MPC approach to materiality analysis: Gravity (opposite to MPC 2.04(2) and more favorable to SL). xxviii. Factors to Consider: 29. Legislative Intent w. Favors harsher punishment to deter from future actions. 30. Penalty x. Higher punishment in Olsen majority immateriality y. The Olsen majority, however, argues that a higher punishment should warrant materiality b/c of higher punishment should demand more culpability, and the higher punishment carries more of a stigma to the D. 31. Public Policy z. Wants it to be immaterial b/c we want to deter (objectives of the CJS) {. Fairness |. Perverse Incentives 32. History 33. Language of the Statute 34. Jurisdictional Elements 35. Gravity }. Lopez: D sells drugs to a minor—minor is immaterial—no mistake defense—guilty ~. A MOF relating only to the gravity of an offense is immaterial . If D has a mens rea for one crime, but unknowingly commits a greater crime, then he is liable for the higher offense. j. Regina v. Prince, Pg. 234 xxix. D was convicted of taking an unmarried girl under 16 yrs of age out of possession and against will of father, D honestly believed the girl was 18. xxx. Age was considered immaterial in relation to the man taking the girl from her father. xxxi. The act of taking the girl was wrong in itself. 36. The “moral wrong” principle k. People v. Olsen, Pg. 239 xxxii. F: D’s were convicted of having sexual conduct with a child under 14 yo, but the Ds had reasonable belief that she was over 16 yo. xxxiii. There was a reasonable MOF as to the age of the child, but it was not considered a defense b/c the public policy of the statute was to protect children as much as possible. xxxiv. Policy here is super deterrent to protect children of “tender years” xxxv. Also legislative intent here: there was greater punishment for offensives with children under 14 and less for those over 14. 37. Thus the legislative purpose would not be served by recognizing a defense of reasonable mistake of age. xxxvi. This is a CL analysis, MPC would have been more liberal. xxxvii. Grodin Dissent, Pg. 241: 38. Feels that sending someone to prison when it appears that there is a valid MOF defense is cruel punishment. SL offenses are usually restricted to regulatory or public welfare offenses that don’t hold a high punishment. Liability for these should be saved for those who have a high degree of culpability. l. Lopez, Pg. 241 xxxviii. Act of furnishing marijuana is criminal regardless of the age of the recipient, and furnishing marijuana to a minor simply yields a greater punishment than when the substance is furnished to an adult. A MOF relating only to the gravity of an offense will not shield a deliberate offender from the full consequences of the wrong actually committed. V. Homicide m. Overview: Homicide is any unlawful killing of another human being. A killing is unlawful if no legally recognized justification or excuse exists. xxxix. Elements of Homicide: 39. Actus Reus: Killing . A killing occurs when the defendant ends a person’s life. 40. Mens Rea . The level of mens rea defines the type of homicide committed. xl. A homicide committed with malice aforethought is murder (aforethought superfluous). Malice refers to killings committed with callous disregard of human life. Malice may be proven by direct or circumstantial evidence. Malice encompasses a variety of definitions and may include one or more of the following states of mind: 20. an intention to cause death or great bodily harm 21. knowledge that death or great bodily harm almost certainly will occur 22. gross indifference to the risk of death or great bodily harm 23. an intent to commit a felony that results in a death (felony murder) 24. At common law, other terms were used to describe heinous and callous killings. A synonym for malice was a killing committed with an “abandoned and malignant heart.” xli. A killing resulting from gross negligence only constitutes manslaughter. 41. Homicide requires the killing of a human being by a human being. n. Overview: Levels of Homicide xl. Each state may adopt its own approach to grading degrees of homicide, but this is a general modern approach: 42. First-Degree Murder . Types of Mens Rea: xlii. premeditated killing, or xliii. specific types of intentional killings, or xliv. certain types of felony murder 43. Second-Degree Murder . Types of Mens Rea: xlv. malice, or xlvi. certain types of felony murder 44. Voluntary Manslaughter . Types of Mens Rea: xlvii. Provocation (no malice), or xlviii. Extreme emotional disturbance 45. Involuntary Manslaughter . Types of Mens Rea: xlix. Gross Negligence, or l. Misdeamanor-manslaughter xli. CA penal Code (CB Pgs. 375-376) 46. First-Degree Murder . Perpetrated by specific means of killing (using a destructive or explosive device, weapon of mass destruction, knowing use of ammunition designed primarily to penetrate metal or armor, poison, lying in wait, torture); . Willful, deliberate, and premeditated killing . Felony Murder: Killing during the commission of certain felonies (arson, rape, carjacking, burglary, mayhem, kidnapping, train wrecking, sex crimes including those against children) . Shooting out of a vehicle with the intent to kill (drive-by-shooting) 47. Second-Degree Murder . All other killings (other than first-degree murder) with malice. 48. Manslaughter: the unlawful killing of a human being without malice . Voluntary: Heat of passion . Involuntary: During an unlawful act not constituting a felony (misdeamanor-manslaughter doctrine) or duing a lawful act performed with gross negligence. . Vehicular: Different punishments depending on whether committed with gross negligence and/or during unlawful act o. Murder: the unlawful killing of another human being with malice aforethought xlii. Intent to kill or cause serious bodily harm or acting with gross recklessness constitute malice or malice aforethought (as discussed in the Homicide Overview above). xliii. Common Law Approach to Murder (CA Penal Code will be the Standard, though other non-CA cases will be studied and will provide CL data points, also note the Levels of Homicide Overview above). 49. Also refer to the list above under the CA Penal Code 50. Elements of Murder One by “premeditation and deliberation”: First-degree murder, other than by the felony-murder doctrine, requires that the defendant act with premeditation. . Mens Rea: malice plus premeditation and deliberation, except for FM1. li. Premeditation requires that a defendant kill with cool, deliberate thought. The following discusses the two approaches studied. lii. Jurisdictions agree that first-degree murder requires proof of premeditation, but they differ in their interpretations of what that term requires. In the exam, use the two approaches (Carroll/Guthrie) to determine whether there was premeditation. Go through a discussion of how Carrol would relate, and also discuss the Guthrie/Anderson approach. Include the best approach, and address it in the conclusion, explaining why. Anderson and Carrol represent the ends of a continuum describing how much deliberation a defendant must engage in to be guilty of premeditated murder. 25. Carrol Approach: Under the Carrol standard, premeditation only requires that the defendant acted deliberately or with purposeful conduct (no time is too short). m. Facts: D shot and killed his wife after a thought that lasted several hours, only a 5 minute response time. n. Any cool, deliberate thought, even if formed in a matter of seconds, is sufficient to demonstrate premeditation. o. Premeditation is determined from the circumstances: viii. Look to the defendant’s words or conduct, use of a deadly weapon upon a vital part of the body. p. Implications: The Carrol approach makes it easier for the prosecution to prove premeditation. As long as the prosecution proves that the defendant acted with the conscious purpose to kill the victim, the jury can find premeditation. 26. Guthrie/Anderson Approach (purposeful plus preconceived design): Under the Guthrie/Anderson standard, there is a higher proof for premeditation. q. Anderson presents three evidentiary factors to support evidence of premeditation: ix. Motive x. Method xi. Planning r. Notice how compared to the Carroll approach, this creates a high level of mens rea for murder one. Courts might be hesitant of adopting this approach b/c it narrowly constrains the prosecution’s ability to prove premeditation. s. Analysis of Anderson Factors in Forrest (pg. 390): xii. Def was convicted of M1: planning (took gun to hospital), motive (came with pistol to kill father), method (shot father in head) 51. Second Degree Murder: All killings committed with malice and without premeditation constitute “murder.” Depending on the jurisdiction, killings with malice may be classified as second-degree or third-degree or plain murder. “Malice” is the standard that separates murder from manslaughter. . Brief Overview of Three types of M2: intentional killing w/o premeditation, depraved heart, FM2 . Malice is the intent to kill, cause great bodily harm, or act with gross recklessness toward human life. liii. Intent to kill may be inferred from the defendant’s actions or statements, as well as from all other circumstances of the case. 27. Example: Shooting a gun directly at a person or stabbing a person in a vital organ demonstrates an intent to kill. 28. Deadly Weapon Presumption: Use of a deadly weapon may create a presumption that the defendant intended to kill. liv. Intent to cause serious body harm also demonstrates malice. The intended injury must be serious, not trivial, although it need not pose an immediate threat of death. Serious bodily harm includes: loss of consciousness, bone fracture, disfigurement, a wound requiring extensive suturing or other medical treatment. 29. Rationale: Willingness to seriously injure another reflects a callous disregard for human life and creates a high and unacceptable risk of a resulting death. 30. Ex: Defendant swings with a baseball bat, intending to hit the victim in the chest. Instead, the bat hits the victim’s head and the victim dies. lv. Gross/Extreme Recklessness (depraved heart) murder: CL also defined “malice” as “wanton indifference,” “depraved mind,” or “abandoned and malignant heart.” A modern understanding is that the defendant acted with gross recklessness. A defendant who creates an unusually high and unjustifiable risk of death has acted with malice. lvi. Felony Murder that’s not one of the enumerated felonies . Malone, Pg. 426 lvii. Facts: D shoots and kills the victim during a game of Russian roulette. D believed he took precautions. D convicted of M2. lviii. The D didn’t have intent to kill, but malice can be shown by “gross recklessness:” an intentional act in wanton disregard of human life. 31. It is sufficient that the D knew that his conduct involved an unacceptably high risk of death. 32. So the takeaway is that gross recklessness does not require subjective awareness of the risk. lix. Note the blurry distinction that can sometimes arise between M2 and involuntary MS. lx. Exam: If a D is acting in a super dangerous way that would indicate gross recklessness, M2 is a strong possibility, even if there was no subjective awareness from the D. . Fleming, Pg. 431 lxi. F: D drives down the wrong side of the road while speeding and intoxicated. 33. D was driving very dangerously: here 70-110 mph on the wrong side of the road lxii. Ct. ruled there was malice and a gross deviation from the standard of care. In the case, the ct. says that the difference between malice and GCN is one of “degree rather than kind.” In addition to driving drunk here, the D drove in a manner that could be taken to indicate “depraved disregard of human life, particularly in light of the fact that b/c he was drunk his reckless behavior was all the more dangerous.” . Pears, Pg. 432 lxiii. F: D drove drunk even though three different people warned him that he was too drunk to drive. lxiv. The court affirmed an M2 conviction b/c of indication of “extreme indifference to the value of human life” b/c the people warning him had provided him knowledge of his dangerous conduct, and thus his actions were not merely inadvertent. . Watson, Pg. 43 lxv. F: D drove to bar, drank, then left. Ct. affirmed M2 conviction. lxvi. Ct. found sufficient evidence of actual awareness of the danger merely b/c the D had driven his car to the establishment where he had been drinking, and he must have known that he would have to drive it later. lxvii. Note the potential problems with this: this is very expansive for arguing for M2. 34. Dissent argues that this ruling can lead to support a finding of implied malice in order to support M2 in every case in which a person drives to a bar, a friend’s home, or a party, drinks alcohol so that he is under its influence, drives away and is involved in a fatal accident. . Roe, Pg. 430: D was a 15 and a half year old boy who was tried as an adult for killing his friend during a game of Russian roulette. He was extremely emotional after the death. The majority affirmed an M2 conviction lxviii. Helps to provide a strong point that he had awareness of the risk and can still be guilty of M2. lxix. The dissent argues that the sorrow expressed by the D after the killing provide evidence that this did not involve malice. . Overview of Relevant Cases lxx. Depraved Heart 35. Malone/Fleming: Extreme 36. Pears/Watson: Less Extreme lxxi. Exam: Analysis with a drunk driving Case to Argue for M2 37. Argue using the four above cases 38. Also can use the Watson dissent 39. Watson is an outlier where D was charged w/ M2 even though there was a strong showing of malignant heart; Pears, Fleming, Malone can be used to indicate a malignant heart. 40. Example Analysis of a hypo with a guy who simply goes to a bar, leaves, then is involved in a fatal crash: In Watson, we could argue for M2 because… (Describe facts in Watson, form relationship). However, we also have the cases of Pears, Fleming, and Mallone, where the requirement to affirm a murder conviction was “extreme indifference to the value of human life.” These cases help to indicate that Watson is an outlier, and hence might help to show that Watson should be disregarded in the analysis. The type of malignancy we should be looking for is…because of (POLICY) retribution, deterrence, etc. However, it is true that establishing a strong deterrence policy can be argued. However, proportionality in the criminal justice system requires… . Study Tip: Second degree murder can be considered the “catchall category” for intentional killings that have insufficient evidence of premeditation to be considered first-degree murder and insufficient evidence of provocation to be excused as voluntary MS. If the jury finds that the D knowingly killed another, by default the D will be guilty of second-degree murder. xliv. MPC Approach: Under the MPC, all intentional killings are murder. Criminal homicide constitutes murder when 1) it is committed purposely or knowingly, or 2) it is committed recklessly under circumstances manifesting extreme indifference to the value of human life (recklessness plus). MPC 210.2 The facts underlying the killing are used as aggravating and mitigating circumstances for sentencing MPC 210.6. 52. In (2), ask whether the D was reckless, then whether he disregarded the value of human life. . Malone would probably qualify as recklessness plus . Recklessness plus and “depraved heart murder” are very similar 53. For MPC recklessness plus, the cases (Malone, Fleming, Pears, Watson, Roe, Dunfield) will also suffice for data points. . Dunfield, Pg. 434: D convicted of reckless murder on whom we inflicted brutal injuries during a drunken orgy. D argued that his voluntary intoxication was material to the finding of extreme indifference required for murder. However, the court upheld his conviction for murder. Intoxication did not negate recklessness plus. p. A Homicide Hypo (needs completion) : A lawyer went his friend, a Doctor, to a mountain, and the Doctor gave him heroin. The lawyer ended up dying. The doctor didn’t call authorities for fear of losing his license. xlv. First, CL Analysis: 54. AR: going to the room, supplying the heroin, not calling authorizes, maybe creating peril, positive act and omissions analysis 55. MR . First Test is M1: This requires premeditation and deliberation. We can quickly dispose of this b/c there’s no motive, premeditation, etc. . M2: Is there malice? We’re looking for an “abandoned and malignant heart.” We can use Malone, Fleming, Watson, Pears, Roe. First thing we do is go to the cases. Do these cases support M2? lxxii. Go over the analysis of this with Murray . Involuntary MS is going to require GCN lxxiii. Some factors include where there was inherent dangerousness, violation of codes or other laws (Welansky) 56. For MPC recklessness plus, these cases (Malone, Fleming, Pears, Watson, Roe) will also suffice for data points. 57. For MPC plain recklessness, we also have Hall. q. Manslaughter under the Common Law xlvi. Manslaughter is the killing of another human being without malice. xlvii. Voluntary Manslaughter 58. Voluntary manslaughter is an intentional killing w/o malice. 59. A killing that may otherwise be considered murder b/c the defendant acted with the intent to kill may constitute only voluntary manslaughter if the defendant killed in a “sudden heat of passion” in response to legally adequate provocation. 60. Under common law, provocation reduces murder to manslaughter. Legal provocation requires proof of the following three elements: 1) actual heat of passion, 2) legally adequate provocation, and 3) absence of cooling time (it must have occurred before a reasonable person in the situation would have “cooled off.”) . Actual Heat of Passion: The defendant must be actually provoked, i.e., in the actual heat of passion at the time of the killing. If the defendant is not enraged at that point, even though someone else in the same situation might have been, the partial defense of provocation does not apply. This is a subjective test. lxxiv. Ex: Defendant returns home to find his wife in bed with another man. He laughs at his discovery and then decides to shoot them both dead. The defendant has not acted in the actual heat of passion. lxxv. Ex: In Maher, the D had a “much agitated manner,” “great perspiration.” Some other outward signs might be like crying, screaming, etc. (Be aware on the exam of these outward manifestations of agitation). . Legally Adequate Provocation: Because the doctrine is designed to provide leniency to individuals who act as another might in the same situation, it is limited to those situations in which a reasonable person might have been similarly provoked. This is an objective test. lxxvi. Focus on: Think about whether the evidence “so clearly” would excite an ordinary man. This is a question for the jury. lxxvii. Tradition Common Law: A defendant could claim provocation under certain circumstances, factors from Girouard v. State (Pg. 390). Under common law, and in a majority of jurisdictions today, words alone, no matter how insulting or inflammatory, are insufficient provocation. 41. extreme assault or battery upon the defendant 42. mutual combat 43. defendant’s illegal arrest 44. injury or serious abuse of a close relative 45. the sudden discovery of a spouse’s adultery lxxviii. Modern Objective Standard: There has been a trend away from specific categories of legally recognized provocation. Instead, the jury can determine whether the provocation might inflame a reasonable person w/o idiosyncracies (Maher v. People). A general objective standard measures the defendant by societal norms but does not limit the defense to rigid, predetermined categories. 46. Ex: In Maher, the court felt that words are admissible to the jury to determine whether there was “heat of passion.” lxxix. Adequate Provocation Examples Involving Sexual Infidelity: 47. Dennis v. State (Pg. 398): The ct. held that it was proper to instruct the jury that circumstances could qualify as legally adequate provocation only if the defendant had suddenly discovered sexual intercourse taking place (here seeing his wife’s dress raised was not enough). 48. State v. Turner (Pg. 398): Ct. required that vol. MS were not required b/c D and her victim were not legally married. . Insufficient Cooling Time: Too much time cannot have elapsed between the time of provocation and the act of killing. If it has, the defendant is not entitled to a provocation mitigation. lxxx. The prevailing view today is that the jury must determine whether sufficient cooling time has elapsed, making the D’s reaction not an immediate response to the provocation. lxxxi. For voluntary manslaughter, the D must show that there was inadequate cooling time between the provocation and the D’s response. Prosecution will argue that there was sufficient cooling time. lxxxii. This is a subjective and an objective test. The D must not have cooled down, and a reasonable person would not have cooled down either. lxxxiii. Other Cases Mentioned: 49. Gounagias: Two weeks after the assault, D was repeatedely provoked in his community. The D argues for “rekindling” and the court says that the facts are insufficient for rekindling arguments. t. Two weeks after the event is sufficient cooling time. u. Rekindling Doctrine: Remainders of the provocation may rekindle the D’s passion, thereby justifying a reaction even after substantial time has passed. 50. Berry (Pg. 400): Outlier case. D waited for the victim for 20 hrs in her apt. before killing her. 20 Hrs of “simmering” time was okay for MS; passage of time served to aggravate rather than cool. v. This can be argued as dangerous to use, based on the possibility of perverse incentives and because he could have had time to think. w. Long-Smoldering Reaction: Even if considerable time has elapsed since the provoking act, the defendant may still be entitled to a MS instruction if the heat of passion has been building up since the provocation. 51. LeClair (Pg. 400): A man for several weeks suspected his wife of infidelity and strangled her in a rage. Ct. ruled there was adequate cooling time and therefore no MS. 52. Bordeaux (Pg. 399): D has a revelation at a party that the victim raped D’s mother 20 years ago. “Well after” the revelation there’s an assault on the victim, the D leaves, then the D comes back several hours later and kills the victim. Court considers several hours too much time for cooling time. 61. Homophobic/Gay Panic Defense: . Most courts do not permit evidence of homosexual advances as sufficient to warrant provocation claims (Pierce, Garcia, Pg. 399). . However, the recent Larry King case seems to be a datapoint that weighs in the other direction from Pierce, Garcia. . Allowing a provocation defense for these could result in more hate-crimes. 62. Major Cases Discussed: . Maher, CB Pgs. 392-395 lxxxiv. D suspected that V had sex with his wife, and he saw them disappear into the woods together one night. He was told by a friend that his wife and V had sex. He arrived in a saloon sweaty and excited, shot the V through the ear. lxxxv. Majority Rule: In determining whether an assault was committed with intent to murder, a jury may examine words uttered in the D’s presence as well as conduct that the D witnessed. lxxxvi. Dissent: Provocation should require that it occur in the D’s presence. Maher did not catch his wife and Hunt in the act of sexual intercourse, and by allowing mere gossip to provide sufficient provocation could set a dangerous precedent. 63. Other Notes/Cases on Adequate Provocation . In an exam situation, pay attention if a D killed someone else after being provoked. We have Shriva, Spurlin, and TX to argue against MS, and Mauricio as a data point to argue for manslaughter rather than M1. lxxxvii. Schriva: D kills a bystander when he tries to kill the man who ran over his daughter; court lxxxviii. Spurline: D kills his sleeping son b/c he is mad with his wife. lxxxix. Maruicio (Contra case to TX/Schriva/Spurlin): D mistook an innocent person to be a bouncer that provoked him and killed the person. 53. Conflict w/ Schriva/Spurlin b/c they D killed innocent person and is getting a HOP defense. On the other hand, Schriva/Spurlin had Ds who knew that they killed the wrong person, whereas here the D thought the person was a bouncer. xc. TX absolutely prohibits MS where an innocent person is killed. xci. Where a nonprovoker is illed, classic CL jurisdictions prohibit voluntary MS instructions. xcii. Can think about argument for defense/no defense on retribution/deterrence principles. . Camplin (Pg. 408-409): xciii. 15 yo boy was sexually abused and taunted by older man, 15 yo boy killed him. xciv. Provides a datapoint to add age/sex into the analysis of how a reasonable person would act in the D’s position. xcv. Also allows for arguments to be made to extend characteristics of a D in allowing a HOP defense (see Native American hypo below): such as race, gender, personality type, etc… . Klimas (Pg. 408) xcvi. D, after many months of intense conflict with his wife, shot and killed her. xcvii. Ct. ruled that psychiatric evidence irrelevant and inadmissible . Steele (Pg. 408) xcviii. D was a traumatized Vietman veteran who snapped when he heard the sound of an approaching helicopter. xcix. Ct. again ruled psychiatric evidence inadmissible. . Morhall (Pg. 409): c. Gluesniffer kills person for taunting him about his addiction. ci. Consider addiction in judging provocation. Ct. ruled this was important aspect to consider in thinking about a reasonable person. . Battered Women’s Syndrome (Pg. 408) cii. Most courts have rejected BWS as providing adequate provocation (Mcclain agrees with this). ciii. Felton, however, supports this and believes it should be part of the reasonable person test. civ. Might be more of a defense under the MPC or possibly under a Camplin analysis. . Culture (Pg. 407): cv. There is very little authority permitting considerations of culture in the analysis of adequate provocation, but the dissent in Masiantonio on Pg. 407 would allow this. . Most jurisdictions forbid voluntary MS in the event that the D causes the provocation. cvi. Johnson (Pg. 401), however permits it: D initiates fight, V punches, D stabs V. D claims a HOP defense to reduce from murder to manslaughter. 54. Consider, however, that there might be a MS instruction if there was only a minor insult and the V then acts crazy cvii. Comparing this to the MPC, the MPC doesn’t require the D to kill the proker in for a MS defense. MPC might still permit someone to get a MS defense even though the D starts the fight because there has been evidence of reasonable distress from the D’s point of view. 64. Hypo: Def. knew that his gf was cheating on him, so he breaks into her apt and then he sits there. He has a blunt object with him. He strikes her on the head with this blunt object. He’s there for 20 hrs. . Is there good evidence for M1? Yes, base this on the Carrol, Guthrie/Anderson test. Analyze motive, method, planning: he gathered a blunt object, killed her with a blunt object, and he struck her head (a vital part of the body). . What about M2 vs. Voluntary MS? Look at the three elements of provocation: 1) actual heat of passion, 2) legally adequate provocation, and 3) absence of cooling time. cviii. Actual: This is a subjective test and is satisfied here b/c there were signs he was agitated. cix. Adequate: Be aware when there are only words. As Girouard shows, words are inadequate support for provocation. Also, notice that the D and victim were not married (cite Turner and Dennis). cx. Cooling Time: Berry is really the only case we have to show that there was insufficient cooling time for a period of this length (20 hrs). 65. Hypo: A small Native American woman just moved out to the country dominated by white people. She was married and had a kid; at the time she also had a broken leg. One day a member of the community, a large retarded white man, came into her house, and started touching the baby and eating the food. She went to get a rifle, came back, and shot/killed the man with one shot in the head. . Under CL, we can push for M1 since she went to get the gun. . For M2, there was an intentional killing, so a showing of malice; she shot the V in the head. . Under CL, how about voluntary MS (HOP)? cxi. Actual? Yes, she was agitated, scared. cxii. Adequate provocation? 55. Under the classic test, we analyze it from an ordinary person w/o idiosyncrasies. x. So under the CL, can we put in psychology about Mother/Child dynamics? No, the analysis is restricted to a reasonable person. Can we put in the fact that she was Native American? No. How about that she had a broken leg? No. y. Could make an argument based on a Camplin analysis that we should consider gender based on “the reasonable women.” We could also try extending race, using a Camplin analysis, to be considered into the reasonable person test. xiii. Pros for arguing race: Race is just as finite and defined as gender/age, which themselves contain elements of culture. xiv. Const for Arguing It: Stereotyping? And radically expanding out of the HOP defense? xlviii. Involuntary Manslaughter under the CL 66. Involuntary manslaughter involves a defendant acting with gross criminal negligence, i.e., the D is not aware of the risk his conduct poses, but a reasonable would have been, and that risk is substantial and unjustifiable. . Bateman/Barnett (Pgs. 413-414) help to support that GCN is the traditional bottom-line requirement for involuntary manslaughter. 67. If a reasonable person would not pose the same risk to human life, then the D has acted negligently. Negligence rises to the level of GCN when there is either a high likelihood of harm or risk of severe harm, or little or no social utility to the D’s risky actions. 68. Typical examples of GCN are based on courts finding that the use of a dangerous instrument automatically elevates behavior from mere negligence to criminally culpable negligence. . Some examples of inherently dangerous instrumentality are knives, guns, corrosive chemicals. 69. Also, if there are safety code violations, and the D didn’t abide by them, then this indicates that the D is far below the standard, so he is taking risks that the legislature has already deemed as substantial and unjustifiable. 70. One way of determining whether there was gross criminal negligence is to apply a four factor test (below). Note that we DO NOT need all four factors. This is a balancing test. Use this test unless we are given other legislative guidance. . Was there a great risk of harm from the D’s conduct? cxiii. If there is great effort needed weigh against GCN and weaken case cxiv. If easy to stop the risk bad for D . What was the foreseeability of the harm? cxv. It must be foreseeable cxvi. Objective test . What was the effort required to alleviate the harm? . Does society benefit from punishing the D? 71. Hypo of the four factor test (above): An 8 foot couple dies in a club. Is there GCN? . Great risk of harm? No . Effort required to alleviate harm? Quite great (do we have to change the door height?) . Foreseeability? Not very foreseeable that this would happen . Does society benefit from D’s conduct? This is an isolated case 72. Welansky, Pg. 411 . A nightclub had inadequate emergency exits and was generally crowded and unsafe (there were also flammable materials). One night a fire started, killing many patrons. The court ruled that he was grossly negligent, and he was convicted of involuntary manslaughter, even though the D did not have awareness of the risk and was not present at the time. . The court held that even if the D did not realize the grave danger posed by his conduct, he is responsible if an ordinary person would have been aware of the grave danger. The court’s statement reflects a “gross negligence” standard. cxvii. Doesn’t appear that D realized the danger posed by his conduct; afterall, he ate dinner there every night. cxviii. Court does not require subjective awareness of the risk: if D is so stupid/heedless that he did not realize grate danger, then this counts as wanton/reckless conduct if an ordinary man would realize danger. . Exam Tip: If a D violates business and safety codes, think GCN based on Welansky. . Homicide Analysis of Welansky: cxix. AR: This was an omissions case; he owes a duty as a bar owner to his customers, but he failed to abide by it. cxx. MR: Wanton/reckless conduct is the mens rea used by the court cxxi. Under the CL, can Welansky be convicted of M1? No, this requires motive/method/planning, and this is not an intentional killing, so this M1 is not an option. cxxii. What about M2 under the CL? This requires malice, an abandoned/malignant heart, but does not appear any here. cxxiii. Voluntary MS under the CL? There’s not intent, no heat of passion, so this is not n/a. cxxiv. Involuntary MS under the CL? This requires GCN; failing to comply with a reasonable person standard; substantial and unjustifiable risk (exits blocked/fire hazard); gross deviation from the standard of care that a reasonable person would exercise in the same situation. cxxv. Under an MPC Analysis (210.2): (purpose, knowledge, reckless and manifesting extreme indifference to the value of human life; this is analalous to a “malignant heart”) 56. Could base this on a subjective standard, lay this out on the exam 57. Counter argument is that he wasn’t actually present at the time. cxxvi. Under an MPC Analysis 210.3: There are two types of MPC Manslaughter 58. Plain Recklessness: (Notes: 3rd prong analysis, he was there every night, but why would he be there if he thought he could die?) (Me: It doesn’t seem like he knew of the risk if he was eating there all the time, so based on the four factors of plain recklessness (see above), doesn’t seem like he knew about it or disregarded it). Is this the correct analysis? 59. EED: n/a 73. Williams, Pg. 418(Clarify what I have for this case) . Facts: Defs failed to seek medical attention for their child who had a serious tooth infection b/c they didn’t realize how ill the child was and were afraid that authorities might try to take the child away from them. The child died, and Ds were charged with involuntary MS. . The court upheld the conviction because it found that a reasonable person in the D’s situation would have taken the child to the doctor. . Williams is a data point for civil negligence in involuntary MS. If the legislature does not specifically say that civil negligence will be the standard, then presume GCN in a homicide statute. In addition, consider Williams as a datapoint for considering specific surrounding circumstances of the D in a negligence analysis. . Even though the Ds loved their child and did not knowingly risk his life, they still acted negligently and were therefore guilty of MS. This case highlights the problems in trying to identify who is the “reasonable person” and punishing under an objective standard. r. MPC: Negligent Homicide xlix. MPC 210.4: “Criminal homicide constitutes negligent homicide when it is committed negligently.” 74. D acts w/o awareness of risk 75. So if a D has subjective awareness, then he will not be a candidate for negligent homicide. 76. The MPC drafters appear to forbid considerations of ethnicity, gender, and class in determinations of negligence. So, the MPC’s defn of negligence rejects a fully individualized standard. The MPC will consider such things as the actor was blind or he just received a blow or had a heart attack, but the MPC drafters forbid considerations of intelligence, heredity, temperament (CB Pg. 425). l. So, negligent homicide is a separate, lesser offense compared to manslaughter, and it is defined as a failure to appreciate a risk of death of with the actor should be aware. li. Go through the same four-part test as in gross criminal negligence for the CL 77. Note that in the exam, if we have a same test already done, mention this and say “see above”, etc. lii. Ex: Unaware of the risk their conduct poses, a group of fraternity students decide to drop large appliances out of a fourth story window as a prank. One of the appliances hits and kills a passerby. Under the MPC, defendants are guilty of negligent homicide because they should have been aware of the unjustifiable risk their conduct posed. liii. Ex: Consider Hall again. If the defendant was skiing in a dangerous way but didn’t realize the risk, but a reasonable person would have, D would be guilty of negligent homicide. s. Manslaughter: MPC Approach liv. Under the MPC, no specific act of provocation is necessary and the reasonableness of the D’s response must be determined from the perspective of a person in the D’s situation under the circumstances as D believes them to be. lv. There a few main differences between the traditional provocation doctrine and the MPC: 78. No triggering event is required for the provocation. It is sufficient if the D was acting under EED. . Ex: if a D killed V, his brother, under the influence of EED, brought on by a combination of factors, a jury instruction on manslaughter is warranted 79. More subjective: An act of provocation is analyzed from the point of view of a reasonable person in the D’s situation. Combines both subjective and objective elements but takes into more consideration of the D’s viewpoint compared to the traditional viewpoint. 80. No Cooling Time: Cooling time doctrine doesn’t apply under the MPC 81. Words might be sufficient to form the basis for provocation 82. Diminished capacity might be considered 83. Mistaken victim: a defense regardless of the source of the disturbance or the intended victim lvi. Manslaughter under MPC can Exist in Two Situations: 84. Plain Recklessness . Under the MPC, homicide is manslaughter when it is committed recklessly, i.e., the defendant was conscious of the risk of death. . This was a good quote from RM Pg. 128: “If a jury believed that he consciously disregarded a substantial and unjustifiable risk, he could be convicted of manslaughter.” . Differs from murder under MPC in that the recklessness does not need to manifest extreme indifference to the value of human life. . To Determine Plain Recklessness: cxxvii. D creates a substantial and unjustifiable risk cxxviii. D is aware of the risk. cxxix. D disregards the risk cxxx. D’s conduct is a gross deviation from the standard of a reasonable person. . People v. Hall cxxxi. Hall is a data point for MPC manslaughter under plain recklessness. cxxxii. Hall was in violation of a safety code, which required actors to take reasonable steps to avoid colliding with other skiers. cxxxiii. Hall raises the issues of dangerous sports, and dangerous sports generally speaking: rock climbing, bunjee jumping, etc. cxxxiv. Homicide Overview Analysis Through Hall: 60. CL z. AR: Voluntary act? Omission? Yes, skied dangerously, not involuntary {. MR xv. M1: premeditation, deliberation, Carroll/Guthrie? No xvi. M2: intent to kill or malignant heart (Malone)? intent to kill or your behavior is so dangerous that we can infer indifference to life; abandoned and malignant heart xvii. VM? No, not intentional, no heat of passion xviii. Involuntary MS? GCN, 4 factors, great risk of harm, no benefit to society (objective test). Dangerous instrumentalities and code violations are bad for D. (objective test) 61. MPC |. Murder: same facts as malignant heart possibly only data point thus far is Malone }. Manslaughter xix. Recklessness: 4 prongs, all four factors can be made out, and they are in the case ~. Negligent Homicide: GCN, already did this in involuntary MS: 4 factors, see above analysis 85. Extreme Emotional Distress (can think of as Provocation); MPC 210.3(b) . RULE: Under the MPC, a killing which would otherwise constitute murder is reduced to manslaughter if it is committed under the influence of extreme mental or emotional disturbance for which there is a reasonable explanation of excuse (MPC 210.3(1)(b)) . Two Components: cxxxv. The D was under Extreme Emotional Distress (Subjective) cxxxvi. There was a “reasonable explanation or excuse” (Subjective/Objective) 62. The act of provocation is analyzed from the point of view of a reasonable person in the defendant’s situation under the circumstances as the defendant believes them to be. (so partially objective too). 63. Mere personality disorders—hatred, anger, or extreme reaction to embarrassment—are not sufficient as a reasonable explanation or excuse of EED. . CASE ANALYSIS(Cassasa): 64. Facts: D lives in apt building of V, disrobes in bed, etc. V didn’t accept his gift, he was upset, he stabbed V. 65. If analyzing under the traditional heat of passion doctrine, D wouldn’t of had a provocation defense b/c there wasn’t an act of provocation. 66. Under the MPC, the two factors to analyze to reduce murder to manslaughter are 1) EED? Yes, this is a subjective test and he was upset, he was breaking in, he was in love, he was surveilling her 2) Reasonable explanation? The court ruled that no reasonable basis existed even in defendant’s emotional makeup for his reaction. Ct. ultimately held that the test is not purely subjective. . Even under the MPC, we do not take the perspective of a reasonable extremist. . Regarding personality disorders, hatred/extreme reactions are not sufficient excuses for EED. . Despite Cassasa, the MPC is extremely defendant friendly due to the EED requirement. MPC relaxes the provocation requirement. . Relevant Cases: cxxxvii. Elliot (Pg. 405): D was afraid of bro for a long time, eventually killed him for no apparent reason; Good case to exhibit that under the MPC, provocation is subjective to the defendant and there doesn’t need to be a specific triggering event. Brooding is enough to cause EED. cxxxviii. Walker(NOTE: she mentioned this A LOT IN CLASS, go back for deeper study) : Drug dealer, saw enemy in restaurant, “dough in that bread,” hand on plate; Here the majority argued that words alone are not sufficient to cause EED and the judge did not allow an EED defense. However, the dissent disagrees and says that even though this is not a sympathetic case, morally speaking there should have been an instruction. t. Unlawful Act Doctrine (Misdemeanor Manslaughter) lvii. Basic Doctrine: When a D commits a homicide during the commission of a misdemeanor, the D will be guilty of involuntary MS. 86. This is a strict liability doctrine and does not require analysis of GCN. 87. This is not a doctrine adopted by the MPC, as the MPC is not a strong proponent of strict liability. 88. This is great for prosecutors. lviii. Rationale: Misdemeanor laws are implemented in order to set the basic level of care that an individual should meet in order to avoid acting negligently. As a result, a violation resulting in death shows, in a general way, that the defendant acted with at least gross negligence (though remember GCN is not explicitly proven). lix. Three Limitations on the Doctrine: 89. Causation: The doctrine only applies if there is a causal connection between the misdemeanor violation and the death that occurred. Apply the two elements of causation: “but-for” and “foreseeability” . But-for Test: But for the D’s illegal act, would the death have resulted? . Foreseeable? Must be foreseeable based on a reasonable person standard. . Williams, Pg. 444: D was in an accident, killing someone, while he didn’t have a renewed driver’s license. The court didn’t apply the misdemeanor-manslaughter doctrine because the expiration of his license had no causal connection to the accident (it had resulted from the carelessness of another driver). 90. Regulatory Offenses: Some courts restrict the unlawful-act doctrine to malum in se as opposed to malum prohibitum misdeamors. . Malum in se: “wrong in itself” . Malum prohibitum: applies to regulatory offenses and is not designed to protect the safety of others. . Exam: (Ask Murray about applying this) Good exams will argue whether or not malum in se should be applied. This also goes into the argument of strict liability. 91. Dangerousness: Some jurisdictions only apply misdeamenor-manslaughter to violations that are inherently dangerous. . This is more expansive than the Malum in Se limitation. . Cox, Pg. 444: The misdemeanor must have been dangerous to human life under the circumstances of its commission. lx. Criticism: The unlawful-act doctrine dispenses with proof of culpability and imposes liability for a serious crime, involuntary MS, w/o reference to the actor’s actual state of mind in relation to the death caused by the D’s behavior. u. Felony Murder (Note: Check out Leven’s Lect 10/3, 10/5; Leven’s Lect 10/5 @ 18:00 Leven does an overview of a felony murder problem EXCELLENT REVIEW) lxi. Common Law Doctrine 92. Doctrine: If a D causes the death of another during the commission of a felony, the D will be guilty of murder. The prosecution does not need to prove that the D acted with intent to kill. . Prosecutor only needs evidence of the felony and a causation relationship to death. 93. The D is guilty of FM1 or FM2 depending on whether the felony is enumerated. . When homicide occurs during an enumerated felony, the D is guilty of FM1. cxxxix. Enumerated Felonies: Arson, Rape, Mayhem, Carjacking, Burglarly, Kidnapping, Trainwrecking, Lewd Acts with a Minor . When homicide occurs during a non-enumerated felony, the D is guilty of FM2. cxl. There are certain limitations placed on FM2 (see below). 94. Serne, Pg. 435 . the D committed arson and was charged with the murder of his son . Case introducing the foundation of the FM rule. 95. Stamp, Pg 438 . The D robbed a victim at gunpoint, the victim was forced to lie on the floor during the robbery. Even though there was no evidence that the D intended to cause the victim’s death, the D was still responsible for murder under the FM doctrine. 96. Rationale for FM Rule . deterring felons from killing, even accidently during their crimes . vindicating a society’s loss when a felony results in death (retribution) . easing the prosecution’s burden in cases where the defendant may have killed intentionally but claims the deaths were accidental lxii. Limitations on Felony Murder: These limitations help to prevent felony murder from cannibalizing other forms of murder and manslaughter (i.e. voluntary manslaughter) and also prevent careful legislative calibration to embody various forms of culpability into varying categories with sharply different penalties from being thwarted. 97. Causation . This limitation applies to both FM1 and FM2. . Felony must be causally-related to the death. There must be both actual and proximate cause. cxli. But for the D’s felony, would death have occurred? cxlii. Proximate Cause: was the consequence foreseeable? 67. We make an exception where there is a vulnerable victim. For policy concerns, vulnerable victims are seen as foreseeable. . Make an exception where there is a vulnerable victim. Death because the person was a vulnerable victim is deemed foreseeable for policy considerations. xx. Ex is Stamp, where we “take the victim as we find him” . Critiques cxliii. a harsher punishment against a D who accidently causes a death is unfair cxliv. the felony-murder rule does not reflect the D’s actual cupability since the D had no intent to cause the death cxlv. discussion of the deterrence of accidental killings cxlvi. Exam: Bring in a discussion of policy (fairness, proportionality) discussion b/c of high punishment w/o the mens rea to indicate culpability. . Data Points cxlvii. Stamp cxlviii. King, Pg. 439: A plane crashed while King and copilot were transporting drugs. The court did not convict King of felony murder because although the “but for” requirement was met, the crash was not a foreseeable result of the felony since it was not made more likely by the fact that the plane’s cargo was contraband. 68. There was no FM b/c the underlying felony had no direct causal relation to the deaths. The facts that drugs were in the plane did not make it more likely that the crash would occur. 69. Coincidence will not give rise to finding of proximate cause. . Consider hypo where person tampers w/ voting box and then a person trips and dies. Analysis: we would not be constricted by limit 1 b/c we could use the but-for test. 98. Inherent Dangerousness . Only an underlying felony that is inherently dangerous to human life will trigger the felony-murder doctrine. cxlix. This limitation is a limitation on FM2. This has already been established in the FM1 context b/c the CA legislatures have picked the most dangerous felonies as the enumerated felonies. Robbery is always inherently dangerous. cl. Purpose: Inherent dangerousness is designed to preserve involuntary MS. . To determine whether a felony is inherently dangerous, courts either 1) analyze the felony in the abstract; or 2) examine the facts of the case to ascertain how the felony was actually committed. . The key question is whether there is a way to commit the felony safely. cli. Inherent Dangerousness analyzed in the Abstract 70. A felony that can frequently be committed without creating a risk to human life is not “inherently dangerous.” 71. We look at the felony as defined in the statute. . Henderson xxi. CA statute defined false imprisonment as confinement against the will of the V by “violence, menace, fraud, or deceit.” The definition stipulates alternative ways to commit the crime which do not involve force or violence. 72. Philips: . The D was a chiropractor who faced murder charges after he defrauded a child’s parents into paying him for her treatment instead of opting for potentially life-saving surgery. . There was no FM b/c the underlying felony of grand theft was not considered inherently dangerous to human life in the abstract. clii. Inherently Dangerous analyzed on the Facts 73. Some courts will analyze the circumstances in which the felony was committed to determine whether it was “inherently dangerous.” . From this it would appear that the prosecution can show nearly every felony dangerous because a death occurred. 74. Hines, Pg. 450 . D was a felon in possession of a firearm. He was drinking, it was dusk, he was shooting. . The ct. found the felon’s possession of a firearm inherently dangerous b/c the gun was used when the D was hunting while intoxicated. . The Hines dissent requires that there be a high probability of death and a “life-threatening state of mind.” The dissent also feels that the D is being punished for more than what his actual culpability merits. 75. Stewart, Pg. 448 . This case announces the general rule for judging whether a felony is inherently dangerous by looking at the facts of the case. . D went on a crack binge for two to three days, during which she neither fed nor cared for infant. . Court rejects the CA abstract approach and bases the decision on the facts of how the felony was committed. . Nonetheless, there seems to be a possible proportionality problem with the factual analysis. FM is a judicial doctrine, rather than a legislative doctrine. . Exam: When analyzing inherent dangerousness on the exam, go through both approaches fully. The best exams will choose one approach and establish why it is better. In order to argue for one side over another, complete a policy analysis based on proportionality, fairness, public concerns, etc. . As to whether drug dealing is inherently dangerous, courts are split. If there is a hypo about drug dealing, that results in a scuffle and subsequent death, first look at causation. Although the but-for test would be satisfied, it’s true that the foreseeability element is not. One could argue that death is not a necessary result of drug dealing and so there is no causation. 99. Independent Felony Limitation (Merger Doctrine) . General Rule: If the underlying felony is an “integral part” of the homicide itself, the felony-murder doctrine is not applied. To use the felony-murder doctrine, there must be a separate purpose for punishing the underlying felony. cliii. Merger doctrine is designed to protect voluntary MS. cliv. This is a limit that applies mostly to FM2 but may apply to FM1 situations. . To qualify for the felony-murder doctrine, a felony must include a purpose independent of killing or causing grave bodily harm to the victim. If it does not, it is an “integral part of” the homicide, and the FM rule does not apply. . Two Part Test for Merger (and analyzing when a felony is independent). clv. Is the felony integral to the death? 76. If the underlying felony is integral to the homicide, it merges and there is no FM. . Ask here if showing the underlying felony requires a determination of whether the D acted under circumstances or conditions likely to produce great bodily harm or injury. . Class: “Does the felony correspond to the assault and death model?” 77. If the underlying felony is NOT integral to the death, then there is no merger, and there is the possibility of FM. 78. This is based on an “assault and death model” 79. Many aggravated assault cases are VM, and they merge to protect VM. clvi. Is there a separate felonious purpose (SFP)? 80. If there’s a SFP, then FM can apply. 81. So ask if the aim of the felony is other than killing or gravely harming the victim. 82. In most enumerated felony cases, there will be a simply felonious purpose. . Overall Merger Analysis and Cases Studied clvii. Ireland, Pg. 453 83. The D faced felony-murder charges for drawing a gun and killing his wife. The underlying felony was “assault with a deadly weapon.” Because assaulting the victim with a deadly weapon was integral to proving the murder, it could not be used as an independent felony to charge felony-murder. clviii. Wilson, Pg. 453 84. This was a domestic violence violence case, involving burglary, the felony being “burglarly (specifically entry coupled with the intent to commit assault with a deadly weapon).” 85. Note how the court had to deal with the issue of burglary, but there was still the coupling with the intent to commit assault with a deadly weapon. 86. Integral? Yes, there was assault and death… 87. SFP? The only purpose was to commit assault that led to the death. Thus, there was no SFP. 88. Thus merger and FM does not apply. The court merely excluded from the first-degree felony murder rule the special circumstances of Wilson where the entry was with the intent to commit assault with a deadly weapon. 89. The court mentions that Wilson should only be understood to merely exclude from FM one small area of conduct, which would be irrationally included, due to the unusual nature of burglary. clix. Burton, Pg. 452 90. D killed a person in the commission of armed robbery and was found guilty of FM1. D appealed that FM could not be had b/c armed robbery is an offense within the offence of murder. D tries to use cases of Ireland and Wilson. 91. The court ruled, however, that robbery has an independent felonious purpose, namely, to acquire money or property belonging to another. 92. Thus there was 1) integrity, and 2) there was a separate felonious purpose. clx. Mattison, Pg. 455 93. The D supplied methyl alcohol to a fellow prison inmate, who died from ingesting it. The D was convicted of FM2 based on the felony of furnishing the drug. The ct. affirmed, finding that the D’s act had a purpose independent of any intent to kill and that the FM rule would have a deterrent force. 94. Integral? No, SFP? Yes. clxi. Hansen, Pg. 455 95. D shot at the home of a rival drug dealer, killing V. D was convicted of FM2 based on the predicate felony of “discarging a firearm at an occupied building.” 96. The court rejected the independent-purpose test here as fundamentally misguided. 97. The court here wanted FM and wanted SL. Hansen is a CA case that is now overruled. Hanson is not as important for us as compared to Burton and Mattison. clxii. Robertson, Pg. 456 98. D claimed he was only trying to scaring the victim away when he shot and killed a person he believed was trying to steal hubcaps from his car. He was convicted of FM2 on the basis of the predicate felony of discarging a firearm in a grossly negligent manner. 99. This was a pro-FM decision, and the court determined there was a SFP (trying to frighten the victim). clxiii. Hypos 100. D hijacks plain to prevent it from going to Canada. D kills people while storming the plane. . Integral? Yes . SFP? Yes, to hijack plane. . So NO FM? 101. D slowly starves V to death for insurance proceeds. . Integral? No. Mattison is the only data point. Ireland, Wilson don’t conform b/c this situation is too drawn out. . SFP? Yes, trying to get money from the insurance proceeds . No merger, FM may be had. 102. D is upset at husband b/c he cheated and she just found out. She says “I’ll get you,” shoots, and kills him. . Integral? Yes, so we may have a FM merger problem. . SFP? Under Wilson, Ireland, there is no SFP form purpose to commit assault that led to death. However, consider Robertson. clxiv. Clarify with Murray about Mayhem clxv. Notes from Roadmap (Pg. 142) 103. Burglaries with intent to assault: In CA, burglaries based on an unlawful entry “with intent to assault” do not qualify for the FM doctrine, because the intent to kill or injure is a requirement of the underlying felony. 104. Note: The inconsistency in application of the “merger” doctrine reflects courts’ differing levels of discomfort with the FM rule. 100. In-Furtherance Limitation . Where a homicide is not committed in furtherance of a felony, there is no FM liability. . Who did the killing? clxvi. Agency Theory: Only deaths directly caused by the D or a co-felon qualify for FM. Won’t cover deaths committed by others/bystanders. 105. State v. Canola, Pg. 460 . D faced FM charges for the death of his co-felon, fatally shot by a jewely store owner trying to resist the robbery. . The court applied the “agency theory” and held that the D was not guilty b/c the death did not occur by his hand or that of one of his agents (i.e. co-felons). Rather, the death was the result of an act by the victim. clxvii. Proximate Cause Theory: This expands the FM doctrine beyond those directly caused by a co-felon. According to the “proximate cause” theory, the felon may be responsible for any death proximately resulting from the unlawful activity. The central issue is whether the killing, no matter by whose hand, is within the foreseeable risk of the commission of the felony. 106. Proximate cause is now the dominant approach. 107. Look at “but-for” and foreseeability. 108. So this is more expansive and can extend to killings caused by other persons. 109. Must be the reasonable, natural, and probable result of the felony. 110. Has also been applied to “shield cases” in which a D uses an innocent victim as a shield during a felony and law offers accidently kill the shield. 111. Almeida . Who was killed? clxviii. In many jurisdictions, even those adopting the proximate cause theory of FM, a felon is not responsible for the death of a co-felon. 112. Martinez: a counter to Canola, opinion believes that the lives of criminal D’s are not completely worthless, and thus FM should apply to the deaths of co-felons. 113. Williams, Pg. 465: Contrast this with Martinez. In Williams, the court rules that FM is reserved to preserved the lives of the innocent, and so a felon should not be responsible for the death of a co-felon. . Separate Criminal Acts by Co-Felons? clxix. Unanticipated actions by a co-felon not in furtherance of the common purpose of the felony may not be charged under the felony-murder doctrine. 114. Heinlein, Pg. 459 . A co-felon stabbed a rape victim when she slapped him during a gang rape. The other rapists were not held responsible for the murder because Heinlein’s unanticipated actions were “not in furtherance of the common plan.” lxiii. MPC Felony Murder 101. The MPC rejects the traditional felony-murder rule. 102. However, under MPC 210(1)(b), when a homicide occurs during robbery, rape, burglarly, kidnapping, or felonious escape, it is presumed that the D has the requisite “recklessness and indifference,” necessary to constitute extreme reckless murder. VI. Causation v. Causation issues arise only in the context of those crimes requiring a specific result. w. Approach for determining causation: lxiv. Actual Cause (But-for Cause) 103. Was the defendant a link in the chain of causation? lxv. Proximate Cause (Legal Cause) 104. Were the D’s actions a sufficiently direct cause of the harm to warrant imposing criminal liability? x. Actual Cause (But-for Cause, Cause-in-Fact) lxvi. Test: But-for the D’s act, would the harmful result have occurred? 105. If no actual cause 106. Acosta: The threshold question for the ct. was whether the D’s act of fleeing from the police was the actual cause of the deaths. But for the D’s act (fleeing the police), would the injury have occurred? Ct. found yes, so Acosta’s actions were an actual cause of the death. 107. Muro, Pg. 514: D waited four hours before getting medical help to her daughter after she discovered that her husband had beaten her daughter, fracturing her skull, and daughter died later that night. Ct. held that because the state had proved “only the possibility of survivial with earlier treatment,” it had failed to prove but-for causation beyond a reasonable doubt. lxvii. Alternative Test: Defendant’s conduct need not be the sole and exclusive factor in the victim’s death. It only needs to be a link in the chain of causation. Accordingly, it is more precise to ask whether the D’s conduct played any role in causing the harmful result instead of whether D was the “but-for” cause. 108. Arzon, Pg. 514: . F: D set a fire on the fifth floor of a building. A separate fire broke out on the 2nd floor and trapped the responding firefighters. One firefighter died. . Actual Cause: There was actual cause here because D’s fire was a link in the chain of events that resulted in the firefighter’s death. Had the D not set the fire, the firefighters would not have been at the building. clxx. Liability will be held when the “D forged a link in the chain.” 115. Note how this is very expansive. D does not need to be the sole and exclusive factor that causes the prohibited result. y. Proximate Cause lxviii. Test: There is no specific legal formula that exists to determine proximate cause. However, courts generally consider some basic factors to determine whether proximate cause exists: 109. Was the harm foreseeable? . The most important factor in determining proximate cause is whether the resulting harm was foreseeable. A foreseeable harm means proximate cause exists. . Everything is foreseeable but the highly extraordinary result. clxxi. Acosta 116. F: Helicopters collided while the police were chasing the D. D claimed there was no proximate cause b/c such a crash had never occurred before. The ct. held that the probability was not so extraordinary as to be unforeseeable. . Dissent: The result defies common sense; the result was not within the “range of apprehension” or the zone of danger. . “Everything but the highly extraordinary result.” . Arzon, Pg. 514: It was foreseeable that firefighters would respond, exposing them to a life-threatening situation. Although technically a second fire led to the firefighter’s deah, D should have foreseen the possibility of the harm. D’s behavior was sufficiently dangerous to impose criminal responsibility. clxxii. NOTE: As Arzon demonstrates, a D does not ordinarly have to foresee the manner in which harm will result, only that there is likely to be such harm. In Arzon, it was not foreseeable that there would be a second fire, but injury from any fire was foreseeable. clxxiii. “Need not be sole and exclusive cause.” . Kibbe, RM Pgs. 172-173 . Foreseeable Harm vs. Foreseeable manner of Harm: Ordinarily defendants need not foresee the actual manner in which harm will occur, only the fact that such harm is likely to occur. However, when a D’s otherwise socially useful conduct leads to a harmful result, the ct. may require that the actual manner of the harm be foreseeable and preventable. clxxiv. There is no requirement that the D foresee the manner of the harm. clxxv. “If there is no direct evidence of a trigger, there is a split in authority.” 117. People v. Deitsh, Pg. 517 . There was a fire in the warehouse, circumstances could have been the cause but actual cause is unknown. Ds controlled the building and there was evidence that they were aware of its conditions. . The ct. held that the prosecution need not show the exact cause of a deadly fire if it proved that the Ds controlled the building and were aware of its dangerous conditions. 118. People v. Werner Lambert, Pg. 516, RM Pg. 174 . The ct. dismissed an indictment b/c the prosecution could show only that the Ds knew they had dangerous conditions in their warehouse but could not prove the exact cause of the deadly explosion . In terms of requiring foreseeability of manner of harm, this case is unusual, possibly b/c the D was engaged in socially useful conduct. . Acts of God or Nature xxii. “Werner Lambert talks about a lightning bolt—cuts off liability.” clxxvi. Vulnerability of the Victim 119. Generally, a D “takes his victim as he finds him.” Thus, a D need not foresee a victim’s peculiar frailties or vulnerabilities that may aggravate the harm in order to be criminally responsible for the result. 120. Stamp: “take victim as he finds him” 121. Lane: D fights with an alcoholic who is more susceptible to injury from blows to the head. D punched victim and face and the victim died, but if victim weren’t an alcoholic, he wouldn’t have died. D is still liable. This is a slippery sloper, however, because of self-imposed disease. 110. Were there any intervening acts or conditions? . Second part of proximate cause analysis: determine if there are any intervening acts . Factors to consider are 1) whether the intervening act was foreseeable and 2) what type of intervening act was involved. . Types of Intervening Acts clxxvii. Nature does not generally break chain of causation, unless they’re unforeseeable freak acts of nature. 122. Kibbe clxxviii. Bad medical treatment 123. Unless the bad medical treatment is intentionally or grossly incompetent, it will not break the chain of causation. . i.e. ordinary malpractice doesn’t break the chain . Shabazz, Pg. 519: D stabs victim in the lungs and liver. Anti-coagulant, not in ICU. Doesn’t cut off liability. . Main, Pg. 519: D flees traffic stop, there is a car accident, passenger is injured. Police @ scene think they should leave passenger inside the car and passenger ends up dieing b/c stayed in car. Liability might be cut off, but up to jury. clxxix. Acts of Victim 124. A victim who voluntarily brings harm upon herself may relieve the D of responsibility, even if the D provided an opportunity for that harm. 125. Assisted Suicide . MPC 210.5(1): Assisted suicide will not be homicide unless committed by force, duress, or deception. . In most jurisdictions, xxiii. D will not be guilty of homicide b/c the victims’ acts break the chain of causation xxiv. there is a separate “assisting the suicide” crime . Kevorkian, Pg. 524 (Passive Participation) xxv. Had a suicide machine for victims suffering from great pain, involves injection. Victim 2 couldn’t work machine, so he got a mask for her. xxvi. For there to be causation, the D must perform the last overt act such as pulling the trigger. xxvii. Ct. says there less behavior here than in Sexton. Active v. Passive. . Campbell: D and victim are drinking together. D hands victim a gun to kill himself with. Morally reprehensible, but not criminal. Meets all other elements basically except for cause. . Sexton, Pg. 530 (Active Participation) xxviii. Husband and wife decide to commit suicide together. H holds gun at W, she pulls string attached to trigger and dies. He freaks out and doesn’t follow through. Convicted of M1. xxix. Exam: If there’s some kind of fact pattern where the victim doesn’t do the last act that causes the death, then we should analyze it using Kevorkian, Sexton. 126. When a victim acts in response to the D’s wrongful acts, the victim’s action is not superseding. . Technically, here a victim is not choosing her actions. . Valade: V jumps out of a window in order to evade a rapist. This is a case where many—probably all—of the courts will find causation. D is responsible. Close in space and time. . Stephenson: xxx. V tried to escape abduction by taking poison. V went to buy a hat, accompanied by Shorty and bought poison. Actually died as a result of multiple things. xxxi. Takeaway: Where the V has been rendered emotionally irresponsible because of D’s conduct/crime, and commits suicide, then the D may be held for that homicide. Here there was a rape. . Preslar xxxii. V leaves her home after an argument w/ her hustband. V goes to her parent’s house and she slept outside the house, where she died at nighttime in the snow. Too far removed here. . Kern: 3 white youths chased 2 black youths, black youths struck/killed after running in road to escape, white youths were found guilty. 127. Concurrent Causes/Contributing Causes . Two Jurisdictional Approaches xxxiii. Only the D who most directly caused the result is held responsible xxxiv. All defendants who jointly participate in the enterprise are responsible xxxv. Root: A and B dragrace. B loses control and is killed trying to pass A’s car. A is not responsible b/c the victim voluntarily created the risk of his own injury. Stresses autonomy. xxxvi. McFadden: A and B dragracing. B lost control of his own car, hit a car on the other wise of the street and kills 6 yr old. xxxvii. Note that McFadden and Root stress a split authority as to causation. xxxviii. Attencio: D played Russian roulette with the victim. Vt held that the D’s mutual encouragement was sufficient to prove proximate cause.