Class Notes

Presumption of Innocence

In NYPL and MPC this is implicit in burden of proof.

Owens v. State (1992) Man sitting in non-moving car in private driveway while intoxicated Rule: If circumstances are inconsistent with any reasonable hypothesis of innocence, then a conviction upon circumstantial evidence may be sustained. While this may not prove guilt, it makes one of the two alternative inferences (guilty/not guilty) less reasonable. Note: Teaches me about legal sufficiency in enforcing the presumption of innocence.

Principles of Legality

No punishment without law.

Commonwealth v. Mochan (1955) Man phoned woman in “lewd, immoral and lascivious” manner and asked her in profane language to commit adultery (p. 91); convicted under common law of “violating public morality”. Rule: The court cannot create a crime; only the legislature can create a crime. Also falls under violation of due process because it is vague

Burden of Proof

The prosecution must prove each element of a crime beyond a reasonable doubt.

EXAM TIP: Be alert to a problem where the evidence fails to prove one of these essential elements. Remember that a missing element = not guilty.

EXAM TIP: The Model Penal Code (MPC) is a minority rule. You should only apply it if the question directs you to do so. Otherwise, you should apply the majority rule, which is often the modern rule, or the common law (CL) rule if there is no modern majority rule.

From class notes:

The due process clause requires that the burden be on the prosecution. Thus, guilt must be proved beyond a reasonable doubt. The burden of proof for proving guilt is much higher than the burden of proof for proving innocence.

Most courts won’t say – courts won’t say 100% because that would be without any doubt. But society has a strong concern about punishing someone who is innocent for something they didn’t do. So if we say 90% than if the jury is 89% sure the person would go free. Because in criminal law we are talking about punishing people.

Statute may not be vague or overbroad

Vague

Commonwealth v. Mochan (1955) Mochan said obscene and sexually suggestive things to Mrs. Zivkovich. Appellant is arguing that saying obscene and sexually suggestive things to Mrs. Zivkovich was not a misdemeanor under common law. The State is arguing that blackening the reputation of Louise Zivkovich was an act which “injuriously affect[ed] public morality” (92). The state is arguing that “Christianity is a part of the common law” and that the appellant had scandalously affected Christian morality (92). Also falls under legality and previously defined conduct. Holding: Violation of due process because vague; there was no specific statute or law; D convicted under common law, which said that If an act “scandalously affects the morals or health of the community,” then it can be indicted at common law (92). The dissent says that the legislature writes the law and the court enforces it. The dissent ultimately wins out here; most states effectively abolish common law crimes.

In Re Banks (1978) Peeping Tom. Court reads “secretly” as “the wrongful spying upon a female with the intent of violating the female’s legitimate expectation of privacy” Important principle that comes out is that a court may narrow and thus save a statute from being unconstitutional, because of this prior judicial interpretation.

• Interpret statute
• Does statute violate due process?
• Is statute too vague or not definite enough or overbroad?
• If it is too vague, can it be saved by judicial interpretation? If a statute is too vague or indefinite or too broad, it violates due process. Holding: The court held that the statute is not unconstitutional because it is sufficiently definitive and does not meet the doctrine of overbreadth. It also gives an individual fair notice of the conduct prohibited, to guide the judge in its application and a law in defending one charged with its violation.

Hypo Criminal impersonation (ignorance of the law would not be a defense because the statute is written/enacted therefore there is notice); however, the law as stated here is vague and does not specify impersonation of whom of what.

Overbroad

Keeler v. Superior Court 1970 Struck pregnant ex-wife in belly intending to kill fetus, charged with murder Rule: It is not for the court to define murder. Once legislature defined murder the court can interpret it Holding: The court held that the CA murder statute was not intended to include fetuses in the definition of human being because to apply it as if it did, would broaden the definition and exceed judicial power. It would also not provide fair warning to the defendant regarding the illegality of the said acts and would violate his constitutional right due process. Dissent argues definition of corpse has changed and definition of human being has changed; in Keeler the court applied some kind of lenity doctrine so that they wouldn’t expand the definition of human being. Legislature did not change the definition of human being but changed the law to include fetuses as well. ======= Owens v. State 1992 Man sitting in non-moving car in private driveway while intoxicated Rule: If circumstances are inconsistent with any reasonable hypothesis of innocence, then a conviction upon circumstantial evidence may be sustained. While this may not prove guilt, it makes one of the two alternative inferences (guilty/not guilty) less reasonable. Note: Teaches me about legal sufficiency in enforcing the presumption of innocence =======

Owens v. State (1992) (man sitting in non-moving car in private driveway while intoxicated)

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Rule: If circumstances are inconsistent with any reasonable hypothesis of innocence, then a conviction upon circumstantial evidence may be sustained. While this may not prove guilt, it makes one of the two alternative inferences (guilty/not guilty) less reasonable.

Due process

Burden of proof The preponderance of evidence is that whoever has the burden of proof has to prove how likely or not it is.

Rule: In criminal law, the constitution in the due process clause requires that the burden be on the prosecution. Thus, guilt must be proved beyond a reasonable doubt. The burden of proof for proving guilt is much higher than the burden of proof for proving innocence.

NYPL S 25.00 Defenses; burden of proof. (1) When a “defense, “ other than an “affirmative defense, “ defined by statute is raised at a trial, the people have the burden of disproving such defense beyond a reasonable doubt. (2) When a defense declared by statute to be an “affirmative defense” is raised at a trial, the defendant has the burden of establishing such defense by a preponderance of the evidence.

MPC Sec. 2.01. PROOF BEYOND A REASONABLE DOUBT: All persons are presumed to be innocent and no person may be convicted of an offense unless each element of the offense is proved beyond a reasonable doubt. The fact that he has been arrested, confined, or indicted for, or otherwise charged with, the offense gives rise to no inference of guilt at his trial.

Theories of Punishment

General: (1) Why (and whether) the social institution of punishment is warranted; (2) What are the necessary conditions for criminal liability and punishment in particular cases; (3) What form and severity of punishment is appropriate for particular offenses and offender (p. 33).

Retributive Justifications

• The moral desert of an offender is a sufficient and necessary condition of liability to punitive sanctions
• Other reasons for punishment (such as crime prevention reasons) must be added to moral desert
• We have a moral duty to punish offenders
• The offender should be punished not more nor less than they deserve (punishment should fit the crime; an eye for an eye)

Utilitarian justifications

• General deterrence
• Individual deterrence
• Incapacitation and other forms of risk management
• Reform

Principles of Legality

Legality and previously defined conduct

Commonwealth v. Mochan (1955) (Mochan said obscene and sexually suggestive things to Mrs. Zivkovich; convicted under common law of “violating public morality” [p.91]) Also falls under violation of due process because vague

Rule: The court cannot create a crime; only the legislature can create a crime.

No punishment without law: NYPL § 5.05 (3) “The provisions of this chapter do not apply to or govern the construction of and punishment for any offense committed prior to the effective date of this chapter, or the construction and application of any defense to a prosecution for such an offense. Such an offense must be construed and punished according to the provisions of law existing at the time of the commission thereof in the same manner as if this chapter had not been enacted.”

Statute may not be vague or overbroad

Vague

Commonwealth v. Mochan (1955) (Mochan said obscene and sexually suggestive things to Mrs. Zivkovich; convicted under common law of “violating public morality” [p.91]) Also falls under legality and previously defined conduct

Holding: Violation of due process because vague (there was no specific statute or law; the state is arguing that “Christianity is a part of the common law” and that if an act “scandalously affects the morals or health of the community,” then it can be indicted at common law (92). The dissent says that the legislature writes the law and the court enforces it. The court cannot create a crime; only the legislature can create a crime).

In Re Banks (1978) (Peeping Tom)

Rule: If a statute is too vague or indefinite or too broad, it violates due process.

Notes: In In Re Banks the court held that the statute is not unconstitutional because it is sufficiently definitive and does not meet the doctrine of overbreadth. Here, court reads “secretly” as “the wrongful spying upon a female with the intent of violating the female’s legitimate expectation of privacy.” Important principle that comes out is that a court may narrow and thus save a statute from being unconstitutional, because of this prior judicial interpretation. Steps: (1) Interpret statute (Does statute violate due process?); (2) is statute too vague or not definite enough or overbroad?; (3) if it is too vague, can it be saved by judicial interpretation?

Hypo: Criminal impersonation (ignorance of the law would not be a defense because the statute is written/enacted therefore there is notice); however, the law as stated here is vague and does not specify impersonation of whom of what.

Overbroad

Keeler v. Superior Court (1970) (struck pregnant ex-wife in belly intending to kill fetus, charged with murder)

Rule: It is not for the court to define murder. Once legislature defined murder the court can interpret it.

«««< HEAD Keeler v. Superior Court 1970 Struck pregnant ex-wife in belly intending to kill fetus, charged with murder Rule: It is not for the court to define murder. Once legislature defined murder the court can interpret it Holding: The court held that the CA murder statute was not intended to include fetuses in the definition of human being because to apply it as if it did, would broaden the definition and exceed judicial power. It would also not provide fair warning to the defendant regarding the illegality of the said acts and would violate his constitutional right due process. Dissent argues definition of corpse has changed and definition of human being has changed; in Keeler the court applied some kind of lenity doctrine so that they wouldn’t expand the definition of human being. Legislature did not change the definition of human being but changed the law to include fetuses as well.

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Notes: The court held that the CA murder statute was not intended to include fetuses in the definition of human being because to apply it as if it did, would broaden the definition and exceed judicial power. (including fetuses in the definition of human being would also not provide fair warning to the defendant and would thus violate his constitutional right to due process). Dissent argued that definitions of corpse and human being have changed; in Keeler the court applied some kind of lenity doctrine so that they wouldn’t expand the definition of human being. Legislature did not change the definition of human being but changed the law to include fetuses as well.

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In Re Banks (Peeping Tom law not overbroad)

Statutory interpretation

Courts must interpret ambiguous statutory terms according to legislative intent. In doing so, courts may consider the ordinary definition of the term, any special definitions, definitions at the time of writing the statute, the purpose of the statute, and the legislative history.

Garnett v. State (1993) (20-year old D with cognitive disabilities had sexual intercourse with 13-year old, who became pregnant; charged with statutory rape) legislative intent not to include mens rea

Rule: Courts should only read a mens rea requirement into a statutory rape law if the legislature clearly intended for one.

Notes: Defendant was found guilty of second degree rape under the “statutory rape” law of Maryland. No mens rea was required, and the statute did not allow for the affirmative defense of mistake of fact. The Court found that the statute omits mens rea in (a)(3) by legislative design, because it includes mens rea in (a)(2) of the statute.

Mens rea modifying terms: look at NYPL 15.15 last sentence – “When one and only one of such terms appears in a statute defining an offense, it is presumed to apply to every element of the offense unless an intent to limit its application clearly appears.”

Also look at MPC 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.”

Lenity doctrine

If a statute is vague or overbroad or if it can be interpreted equally to favor both parties (defendant and prosecution), it should be read and interpreted in the light most favorable to defendant.

“Criminal statutes must be strictly construed” (page 106 of Banks) (also, page 97 of Keeler (“human being” case)). Banks and Keeler mention the lenity doctrine, but it doesn’t carry much weight in those cases. It doesn’t necessarily mean that the defendant wins. It just puts a little more weight on the side of the defendant.

NYPL Section 5.00 is the NON-INCLUSION of the lenity doctrine!
NYPL § 5.00 Penal law not strictly construed. “The general rule that a penal statute is to be strictly construed does not apply to this chapter, but the provisions herein must be construed according to the fair import of their terms to promote justice and effect the objects of the law.””

Muscarello v. United States (1998) (drug dealer with firearm in glove compartment of car)

Rule: If a person knowingly possesses and conveys firearms in a vehicle, including in the locked glove compartment or trunk of a car, which the person accompanies, then they are guilty of “carrying” the firearm.

Three elements of a crime

To sustain a conviction/establish criminal culpability in any criminal case, the prosecution must prove (1) actus reus, (2) mens rea, and (3) causation beyond a reasonable doubt.

If it is a result crime, we do not need to prove causation.

Actus Reus

General rule: Actus reus is a required element of every crime. Actus reus requires (1) the satisfaction of all statutory actus reus elements, and (2) either a voluntary act or an omission of duty.

1. Statutory Actus Reus Elements

Steps of Analysis:

1. Elementize the statute
2. Categorize each element (conduct, result, attendant circumstances)
3. Write a law-because-facts sentence analyzing each element

People v. Rizzo (1927) (Rizzo and others driving around trying to find Rao to rob him of payroll. Never found Rao.)

Rule: A defendant may not be convicted of attempt unless the defendant intentionally commits an act tending to the commission of a crime, which is so near to accomplishment of the crime that in all reasonable probability the crime itself would have been committed but for timely interference. (This becomes the dangerous proximity test)

State v. Jack Sawyer (2018) (planned a shooting at former high school; question is whether was attempting to commit a crime) (No dangerous proximity [see Rizzo])

Rule: Intent to commit a crime is not sufficient for conviction of attempt to commit a crime; if there is no actus reus there is no crime (my rule)

2. Voluntary Act OR Omission of Duty

NYPL Section 15.00: Voluntary Act

“Voluntary act” means a bodily movement performed consciously as a result of effort or determination and includes the possession of property if the actor was aware of his physical possession or control thereof for a sufficient period to have been able to terminate it.

MPC Section 2.01 (1) Requirement of Voluntary Act (1) 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. (2) The following are not voluntary acts within the meaning of this Section:

(a) a reflex or convulsion;

(b) a bodily movement during unconsciousness or sleep;

(c) 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.

Coercion does not make something involuntary. If someone said, “I’m going to shoot you unless you punch Prof K in the face” and you punched prof K, your act in punching him would be a voluntary act.

Martin v State (1944) (involuntarily and forcibly taken onto public highway by law enforcement officers after being arrested)

Rule: Voluntary appearance in a public place is required to convict a person of intoxication in a public place.

People v. Decina (NY) (1956) (Decina voluntarily got in the car but did not voluntarily have a seizure)

Rule: The definition of voluntary does not have any knowledge requirement.

Hypo: Person was knocked unconscious, kidnapped and brought to the United States. Person is arrested and charged with entering or being in the United States without proper documentation.

Rule: If a person is not voluntarily in a public place that person cannot be unlawfully in a public place (my rule, I think).

Hypo: Defendant is charged with “intending to assassinate the President.” Defendant confesses to intending to assassinate the President.

Rule: If a person expressed intent in a way that signifies harm to society, is not deterred by threat of sanction, and has demonstrated an identifiable occurrence of acts following from thoughts, the person should be punished for intending to assassinate the President.

Hypo: California had a statute that permitted a person to be convicted for the “status” of being an addict, without requiring proof of any act whereby that person became an addict. Issue is whether someone can be criminalized for being an addict.

Rule: The U.S. Constitution forbids punishment for a mere status

Reasoning: Person cannot be criminalized for being something. Criminal law only punishes conduct, more precisely voluntary conduct.

Omission + Duty

Law/statute imposes duty when a person:

• has a certain status relationship with the victim (i.e., child, elderly parent, maybe spouse; if adult sibling, no duty to care)
• assumed contractual duty of care
• voluntarily assumed duty of care
• creates risk of harm to another

MPC Section 2.01 (3) Omission as Basis of Liability

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.

People v. Beardsley (1907) (married bartender went on drinking binge with Blanche Burns, who took morphine tablets and died)

Rule: In order to punish a person for an omission, the person must owe a legal duty to the victim, not just a moral duty. (The duty may be imposed by law or contract, or a person may have a duty from a domestic relationship, public duty, voluntary choice).

Pope v. State (1979) (three-month-old Demiko Lee Norris died as a result of physical injuries inflicted by his mother Melissa Vera Norris at the house of Pope and witnessed by Pope)

Rule: If there is no status relationship there is no duty to act to protect an infant or child unless there is (1) assumed contractual duty of care, (2) voluntarily assumed duty of care, or (3) the risk of harm to another created by the defendant.

Hypo: David Cash walked into a restroom and saw his close friend Jeffrey Strohmeyer struggling with a seven-year-old girl in a bathroom stall. Cash walked away. Strohmeyer raped and killed the girl. Las Vegas police said Cash did nothing wrong by failing to stop the crime or report it to a nearby casino security guard. (p. 146)

Hypo: If I burned down my house I would have a duty to rescue people

Rule: If a person creates a risk of harm to another, the person who created the risk has a duty to care for the person at risk

Hypo: Prof K drowning; illustrates the bystander effect, and also if you try to save them you might drown too. You can’t be penalized for not acting.

Rule:In order to punish a person for an omission, the person must owe a legal duty to the victim.

Hypo: Barry was walking on the Coney Island boardwalk around 8 pm. No lifeguards were on duty. Suddenly, he heard frantic splashing and yelling. To his horror, a swimmer seemed to be floundering badly about 100 yards out in the water. A crowd of stricken onlookers were beginning to approach, several grumbling about having no cellphone service this far out on the beach. Seeing that he had full cell service, Barry loudly announced to the crowd, “Don’t worry, everyone, I’m calling 911 right now!” But before he could place the call, he was hit with an unstoppable craving for a hot dog. Barry left the scene, went to Nathan’s, and ordered a chili dog. While he was waiting for his food, the swimmer in the ocean drowned.

Narrow Rule: In New York, Barry would not satisfy the second element (voluntary act/omission plus legal duty)of actus reus

Justifications for the common law approach to punishing people for omissions (pp. 146-7)

• Punishing people for omission increases the risk of convicting morally innocent persons
• Difficult line-drawing questions arise: for example, if a person is dying of a knife wound in a city street and 100 people walk by, who should be punished for omission?
• Bystander effect: everyone thinks someone else is going to help
• Issue of freedom: A penal law that prohibits an individual from X (i.e. killing another person) permits that individual to do anything other than X. In contrast, a law that requires a person to do Y (e.g. help a bystander) bars that person from doing anything other than Y.

Kitty Genovese case (young woman coming home late at night, attacked, neighbors yelled, walked away)

Hypo:Person in hallway shouting help vicious dog. Prof K in apartment, does want to get up and stop watching TV. Is Prof K legally responsible? No, he’s not.)

Rule: There is no criminal liability for failure to act unless there is a legal duty to act.

Hypo:Same situation, but Prof K is standing with door open and looking. Person is running towards the open door chased by vicious dog, and Prof K slams the door closed. Is Prof K legally responsible? Yes, because slamming the door was a voluntary act.

Rule: If a person performs a voluntary act that results in harm to another person, the voluntary act element of actus reus is satisfied. (This doesn’t mean that there’s a crime)

Distinguishing Acts from omissions

Barber v. Superior Court (1983) (man suffered cardio-respiratory arrest during surgery resulting in severe brain damage; doctors withdrew life support)

Rule: There is no criminal liability for failure to act unless there is a legal duty to act.

Mens Rea

“Culpability” meaning of mens rea A defendant is guilty of a crime if she commits the social harm of the offense with any morally blameworthy state of mind; … not significant whether she cause the social harm intentionally or … with some other blameworthy intent (e.g. recklessly) (158). (I’m not sure if this “culpability” meaning of mens rea is only in common law)

“Elemental” meaning of mens rea Refers to the mental state the defendant must have had with regard to the “social harm” elements set out in the definition of the offense. Using this meaning, a defendant is not guilty of an offense, even if she has a culpable frame of mind, if she lacks any mental state specified in the definition of the crime (158).

Common Law Mens Rea

The term “mens rea,” meaning “a guilty mind; a guilty or wrongful purpose; a criminal intent,” is shorthand for a broad network of concepts encompassing much of the relationship between the individual and the criminal law. English common law; Roman law; “moral blameworthiness.” (“Once the ‘exceedingly vague’ concept of moral blameworthiness was recognized the law embarked upon the long journey of refinement and development of culpability distinctions that continues to this day.” (U.S. v. Cordoba-Hincapie, U.S. District Court, New York 1993 [p.158])

Model Penal Code Mens Rea

MPC Section 2.02 General Requirements of Culpability

(1) Minimum Requirements of Culpability. Except as provided in Section 2.05, a person is not guilty of an offense unless he acted purposely, knowingly, recklessly or negligently, as the law may require, with respect to each material element of the offense.

(2) Kinds of Culpability Defined.

(a) Purposely.

A person acts purposely 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

(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.

(b) Knowingly.

A person acts knowingly 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

(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.

(c) Recklessly.

A person acts recklessly 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. Conley!

(d) Negligently.

A person acts negligently 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.

American Law Institute comments to MPC section 2.02: (pp. 169-70)

Offense Silent as to Culpability: unless the kind of culpability sufficient to establish a material element of an offense has been prescribed by law, it is established if a person acted purposely, knowingly or recklessly with respect thereto; … since negligence is an exceptional basis of liability, it should be excluded as a basis unless explicitly prescribed (p. 172).

Note: MPC Section 2.02 (7) proposes that “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 believes that it does not actually exist].” The MPC definition of “knowingly” is similar to its definition of “recklessly” in that both require awareness. Under NYPL, knowledge requires awareness. If the NY legislature wanted to make someone guilty of a crime but didn’t want to adopt the broad definition of “knowingly,” how might they write the definition of a crime without changing the definition of knowingly? They could use “recklessly.”

New York Penal Law Mens Rea

NYPL Section 15.05: Culpability; definitions of culpable mental states The following definitions are applicable to this chapter:

(1) Intentionally

A person acts intentionally with respect to a result or to conduct described by a statute defining an offense when his conscious objective is to cause such result or to engage in such conduct.

(2) Knowingly

A person acts knowingly with respect to conduct or to a circumstance described by a statute defining an offense when he is aware that his conduct is of such nature or that such circumstances exist.

(3) Recklessly

A person acts recklessly with respect to a result or to a circumstance described by a statute defining an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur or that such circumstance exists.  The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation.  A person who creates such a risk but is unaware thereof solely by reason of voluntary intoxication also acts recklessly with respect thereto. Conley! Natural and probable consequences doctrine - for defense when recklessness mens rea

(4) Criminal Negligence

A person acts with criminal negligence with respect to a result or to a circumstance described by a statute defining an offense when he fails to perceive a substantial and unjustifiable risk that such result will occur or that such circumstance exists.  The risk must be of such nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation.

State v. Nations (1984)(adult dance club owner unaware of age of sixteen-year-old dancer)

Rule: If the statute requires that a person acts “knowingly,” or with knowledge of attendant circumstances, the person must be aware that those circumstances exist to be found culpable of the crime. If the statute contains the mens rea term “knowingly” but does not contain “recklessly,” the defendant cannot be convicted of a crime whose mens rea is “recklessly.” when he is aware … that those circumstances exist.”

Note: Under Missouri law, endangering welfare of a child is if a person “knowingly encourages, aids or causes a child less than 17 years old to engage in any conduct [which tends to injure a child’s welfare].” (Here, Nations was found not guilty because she was not aware of the age of the dancer; in NY she also would have been found not guilty).

State v. Miles (2017) (Appellant said he did not know there were more than four grams of oxycodone in the package he picked up)

Narrow Rule: Knowing the specific kind of illegal drug being transported when transporting more than four grams of oxycodone is not required for conviction of the crime of illegal drug trafficking as defined by section 44-53-370(e) of the South Carolina Code (179).

Presumptions of interpretation (that may be rebutted): Mens rea modifying terms:

Presume modify all terms: NYPL 15.15 last sentence – “When one and only one of such terms appears in a statute defining an offense, it is presumed to apply to every element of the offense unless an intent to limit its application clearly appears”

Maybe not modify attendant circumstances: MPC 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.”

Hypo:Going back to the burglary statute, “intentionally breaking and entering the dwelling house of another.” Suppose I were going to break into a dwelling house of another, but I thought it was a shed. I have the actus reus elements – I broke, I entered, it was a dwelling house, but I didn’t know it was a dwelling house.

Analysis:A lot of courts would say that “intentionally” does not modify dwelling house; that it only modifies breaking and entering. In the Miles case, the morphine etc. was not modified by knowingly. Dwelling house and morphine are attendant circumstances. See NYPL 220.20 subsection 4: Mens rea and Attendant Circumstances: “It is a felony to cause …. “ (drat! Switched slide)

General and Specific Intent

“Few distinctions In criminal law are more perplexing and difficult to define; … the terms … do not have universally accepted definitions.” (p. 167)

General intent: Any mental state that relates solely to the acts that constitute the criminal offense (in Common Law, a general intent crime would be only to show that someone was acting wickedly in the general sense; that was sufficient).

How to recognize general intent in a statute/sentence: mens rea term + conduct; for example, “knowingly break,” “intentionally steal.””

Specific intent: This is not used by NYPL; this is history (different courts applied different definitions for “specific intent;” no universal definition). Specific intent crimes were ones which required a a special mental element (these elevate the crime) of intent or purposely or knowingly or with recklessness or negligence or something like that, required beyond the mental state for the act of the offense. For example:

• Intent to commit a future act (i.e. assault with intent to kill);
• A special motive or purpose (i.e. humiliation – we see this in hate crimes); or
• Awareness of attendant circumstance (i.e. knowing that someone is under 18)

If the statute has any of these, the idea is that those crimes were to be punished more severely.

Battery statute: General intent would be to cause battery (grievous bodily harm), but specific intent would be to disfigure (check this)

Regina v. Cunningham (1957) (Man ripped gas meter off wall to steal coins and caused noxious coal gas to go into Sarah Wade’s home and partially asphyxiate her)

Rule: The term “malice” in a criminal statute does not mean general wickedness; it means either (1) an actual intention to do the particular kind of harm that was in fact done or (2) reckless disregard of a foreseeable risk that the harm would result.

Holding: Did not have general intent to hurt a person; intent was to steal money.

People v. Conley (1989) (Conley threw bottle at person, hit another person who suffered injuries resulting in permanent disability)(p.163).This should go under specific intent and transferred intent

Rule: Natural and probable consequences doctrine: problems of proof are alleviated [by] the ordinary presumption that one intends the natural and probable consequences of his actions. … Intent can be inferred from the surrounding circumstances, the offender’s words, the weapon used, and the force of the blow. (163)

Application: Here, intent was inferred by “[T]he surrounding circumstances, the use of a bottle, the absence of warning and the force of the blow are facts from which the jury could reasonably infer the intent to cause permanent disability.”

People v. Navarro (1979) (defendant took four beams of wood from a construction site) This case is also in Mistake of Fact(Note: This is a case where the common law approach to mens rea is gone into.)

Rule: General intent: any mental state that relates solely to the acts that constitute the criminal offense, i.e. “knowingly hit.” Specific intent: Contains a special mental element required beyond the element required beyond the mental state.

Transferred intent

Only applies in Model Penal Code jurisdictions! Transferred intent is built into NY second-degree murder statute NYPL Section 125.25

Definition: When a D intends to cause harm to one person but accidentally causes the same harm to another, courts typically rely on a “legal fiction” known as the “transferred intent” doctrine. Under classic formulation of common law doctrine of transferred intent, D’s guilt is “exactly what it would have been had the blow fallen upon the intended victim instead of the bystander.” (p. 165) “Peculiarly mischievous legal fiction” because it assumes D (1) could escape liability for murder if there were no transferred intent doctrine, and (2) had mens rea in relation to intended V (there is no requirement of an unlawful attempt to kill an intended victim; here, Common law speaks in terms of an unlawful attempt to kill a person, not the person intended to be killed). Also, result of crime can change. For example,

Hypo: P threw rock at X, intending to strike him with it. P missed X, but rock hit a window and broke it. If P charged with “intentional injury to property,” should prosecutor be able to transfer intent to hit X to the window? Answer:

Hypo: What happens if bullet hits intended victim and another victim? Answer: Courts have applied doctrine to two counts of murder based on one intent to kill. (lots more hypos on pp 166-167)

Strict Liability

Factors to consider for finding strict liability (factors that may lead a court to conclude that a statute does not require mens rea):

• statutory interpretation principles;
• congressional purpose;
• statute omits mention of mens rea;
• policy (i.e. public welfare offense);
• the standard is reasonable and proper to expect people to follow;
• the penalty is relatively small;
• the crime does not carry a heavy stigma.
• common law treatment of the crime – sometimes the court will look at how the courts handled the crime in the past.

Morisette v. United States (U.S. Supreme Court 1952) (Morisette took spent bomb casings from a bombing range, which he flattened and sold)

Rule: Mens rea is “universal and persistent in mature systems of law,” except in public welfare offenses typified only by “neglect where the law requires care, or inaction where it imposes a duty” (i.e. public health laws, building codes, or food and drug safety laws).

Narrow Rule: Intent to convert government property is not required by a federal statute prohibiting conversion of government property that is silent on mens rea.

Staples v. United States (U.S. Supreme Court, 1994) (Staples had an unregistered AR-15 semi-automatic which had been filed down/modified so that it fired automatically)

Rule: Absent a clear statement from Congress that there is no mens rea requirement, federal felony statutes should be interpreted to eliminate the mens rea element.

MPC Section 2.02 (3): If there is no mens rea in the statute, the court leaves out negligently and reads in either purposely, knowingly or recklessly. 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 recklessly with respect thereto.”

NYPL Section 15.15 (2): “A statute defining a crime, unless clearly indicating a legislative intent to impose strict liability, should be construed as defining a crime of mental culpability.”

Garnett v. State (1993) (20-year old D with cognitive disabilities had sexual intercourse with 13-year old, who became pregnant; charged with statutory rape)

Rule: Courts should only read a mens rea requirement into a statutory rape law if the legislature clearly intended one.

Note: The Court finds that Maryland’s rape statute omits mens rea in (a)(3) by legislative design, because it includes mens rea in (a)(2) of the statute.

Mistake of Fact

Common Law Mistake of Fact

(1) If no specific intent or other special mental element is required for guilt of the offense (general intent), a mistake of fact will not be recognized as an excuse unless it was based upon reasonable grounds. (2) If the offense is a specific intent crime, a good faith mistake of fact can be a defense when it negates the mens rea requirement.


People v. Navarro (1979) (convicted of petty theft for stealing four beams from a construction site) (p. 205)

Rule:If no specific intent or other special mental element is required for guilt of the offense charged, a mistake of fact will not be recognized as an excuse unless it was based upon reasonable grounds. (p. 207)

Note: Larceny is a specific intent crime because it requires that you trespass with the intent of in the future stealing the personal property of another person. Larceny: “trespassory taking and carrying away of the personal property of another with the intent to steal the property.”

Model Penal Code Section 2.04. Ignorance or Mistake. (Mistake of fact is not an affirmative defense in New York!)

(1) Ignorance or mistake as to a matter of fact or law is a defense 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) 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. (3) 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. (4) The defendant must prove a defense arising under Subsection (3) of this Section by a preponderance of evidence.

NYPL Section 15.20 Effect of ignorance or mistake upon liability (says in negative so a little harder we have to flip around)

(1) A person is not relieved of criminal liability for conduct because he engages in such conduct under a mistaken belief of fact, unless:

(a) Such factual mistake negatives the culpable mental state required for the commission of an offense; or

(b) The statute defining the offense or a statute related thereto expressly provides that such factual mistake constitutes a defense or exemption; or

(c) Such factual mistake is of a kind that supports a defense of justification as defined in article thirty-five of this chapter.

(2) A person is not relieved of criminal liability for conduct because he engages in such conduct under a mistaken belief that it does not, as a matter of law, constitute an offense, unless such mistaken belief is founded upon an official statement of the law contained in (a) a statute or other enactment, or (b) an administrative order or grant of permission, or (c) a judicial decision of a state or federal court, or (d) an interpretation of the statute or law relating to the offense, officially made or issued by a public servant, agency or body legally charged or empowered with the responsibility or privilege of administering, enforcing or interpreting such statute or law.

(3) Notwithstanding the use of the term “knowingly” in any provision of this chapter defining an offense in which the age of a child is an element thereof, knowledge by the defendant of the age of such child is not an element of any such offense and it is not, unless expressly so provided, a defense to a prosecution therefor that the defendant did not know the age of the child or believed such age to be the same as or greater than that specified in the statute.

(4) Notwithstanding the use of the term “knowingly” in any provision of this chapter defining an offense in which the aggregate weight of a controlled substance or marihuana is an element, knowledge by the defendant of the aggregate weight of such controlled substance or marihuana is not an element of any such offense and it is not, unless expressly so provided, a defense to a prosecution therefor that the defendant did not know the aggregate weight of the controlled substance or marihuana.

Hypo: If I were out walking in the week of Halloween with my baseball bat and I really truly believe in ghosts, and someone says “who” and I think they said “boo” so I hit the ghost but it turns out to be a person. It was my mistaken belief that the person who was before me was a ghost. I didn’t have the intent to kill a human being. Remember the Nations case where she thought the dancer was not underage; the firearm case; the statutory rape case; these are mistake of fact cases; they didn’t know.

Rule: If no specific intent or other special mental element is required for guilt of the offense charged, a mistake of fact will not be recognized as an excuse unless it was based upon reasonable grounds. (p. 207)

Note: If I truly believe the person I killed was not a human being but a ghost and did not have the awareness that the person is a human being, then I am not guilty because I don’t have the mens rea. Supposing the jury believes that I really believed it was a ghost. In NY you don’t have to look for specific intent because you just look at the mens rea – the definition of knowingly sec 15.05. How do you know what somebody actually knew? It is essentially up to the jury.

Perjury Hypo:A government official is guilty of a crime if “she or he knowingly makes a false statement to the public about a hurricane”

Hint: use definition of “knowingly”

Hypo: R charged with “recklessly causing serious physical injury to another by means of a deadly weapon” after he shot and wounded V with a rifle. Defendant claims did not know gun was loaded. What would you need to define to determine if a defendant has a mistake of fact defense?

Analysis: Look at NYPL definition of recklessly. Did I know there was a risk? Was this a gross deviation from what a reasonable person could be expected to believe? You’d have to analyze and see. In NYPL and MPC all you have to look at is whether the offense satisfies the mens rea terms. Here, it would focus largely on whether I was aware there was a risk that the gun was loaded – defense could say there’s always a risk with a gun.

Strict liability crimes and mistake of fact

Mistake of fact is an affirmative defense (an affirmative defense where the ).

Garnett case: 20-year old defendant with cognitive disabilities had sexual intercourse with 13-year old, who became pregnant) See also Garnett under statutory interpretation, where there is a different rule.

Rule: A defendant cannot have a mistake of fact defense to a strict liability crime because there is no mens rea to negate.

Notes: Defendant was found guilty of second degree rape under the “statutory rape” law of Maryland. Defendant argued that there was a mens rea requirement in the statute so he could say he didn’t know and argue mistake of fact. Court determined that the legislative intent was not to include mens rea. Therefore, the offense was strict liability. No mens rea was required, and the statute did not allow for the affirmative defense of mistake of fact.

Mistake of Law

Three types of mistake of law issues:

1. Mistake/ignorance of law as penal law exception (Marrero)
2. Mistake/ignorance of law as a constitutional claim (Lambert)
3. Mistake/ignorance of law as a mens rea issue (Cheek)

QUESTION 4 2016 EXAM!!!! Tax code – mistake of law - Donny

People v. Marrero | Court of appeals of NY 1987(Federal corrections officer arrested at a Manhattan social club for carrying a gun which he believed he was legally allowed to carry in NY)

Rule:You do NOT have a mistake of law defense if you read the law wrong based on good faith and/or consultation with a lawyer, a professor, or a prosecutor. A mistake of law defense is only allowable if it is based on a statement officially made.

Statute:NYPL Section 15.20</b>(2) A person is not relieved of criminal liability for conduct because he engages in such conduct under a mistaken belief that it does not, as a matter of law, constitute an offense, unless such mistaken belief is founded upon an official statement of the law contained in (a) a statute or other enactment, or (b) an administrative order or grant of permission, or (c) a judicial decision of a state or federal court, or (d) an interpretation of the statute or law relating to the offense, officially made or issued by a public servant, agency or body legally charged or empowered with the responsibility or privilege of administering, enforcing or interpreting such statute or law.

Statutory interpretation:NY court reads MPC into NYPL, because otherwise NYPL would be too broad. Even though the NYPL had different language than the MPC, it must have meant what the MPC meant as a matter of policy because if anyone in NY who read the statute would have had such a big defense, then this big defense would be written into the statute. NYPL has very similar language to MPC but MPC has an extra requirement that the defendant “acts in reasonable reliance upon an official statement of the law, afterward determined to be invalid or erroneous”

Lambert v. California (1957)(Lambert arrested for failing to register as a felon in Los Angeles. She had been in jail for two years. Said she did not know about the felon registration requirement.)

Rule: A strict liability offense violates due process if it criminalizes wholly passive conduct.

Note:These three elements were required to override the rule that ignorance of law is no defense:

(1) It was a malum prohibitum offense (only a crime because something prohibited by statute, i.e. jaywalking and running a stoplight); and

(2) It punished an omission; and

(3) The duty to act was based on a status that wouldn’t alert an ordinary law-abiding person to the need to register (they didn’t create the duty to act)

Lambert is a kind of unique case, but this is good to know; this is one instance where ignorance of the law is a defense.

Cheek v. United States (1991) (tax case)

Rule: To satisfy the element of knowledge of a willfulness requirement in a tax law, the government must prove that the defendant had actual knowledge of the legal duty imposed by the tax law. The mens rea of tax laws do not require that a defendant’s interpretation of tax laws be reasonable. The mens rea of tax laws require knowledge of law (this is because tax laws are complex so there is a higher threshold).


Statute: Any person “who willfully attempts in any manner to evade or defeat any tax imposed by this title or the payment thereof … shall be guilty of a felony.” (Title 26, 7201 of the USC)

Statutory interpretation: Willfulness is the “voluntary, intentional violation of a known legal duty” so the language in the statute actually requires a knowledge of the law; in Cheek, the court uses a definition of “willfully” from precedent U.S. v. Bishop (p. 224). The court held that even if unreasonable, an objective belief could negate the mens rea requirement of the willfulness element of the statute. Therefore, the court reversed case because the statute has the word “willfully” that serves a mens rea purpose, needed to find guilt.

Note: This is very rare; but the legislature can make a law require knowledge of law in, for example, the cases of tax codes. (Marrero was told that his reading of the law was unreasonable, but here we have Cheek who got information from the internet; Cheek does not depend on MPC)

Mistake of law mens rea example

Jurisdiction A statute: A person is guilty of murder if she/he intentionally kills a human being. Jurisdiction B statute: A person is guilty of murder if she/he intentionally kills a human being and knows that the killing is unlawful.

Defund the police hypo: Suppose we were in a room together, and Prof M told Prof K that because of the defund the police movement professors have the authority to arrest people, so K arrests everyone.

Statute: “A person who willfully seizes, confines, inveigles, or kidnaps another, with intent to cause him, without authority of law, to be confined or imprisoned … within the stater … against his will … is guilty of kidnapping.””

Statutory interpretation: Willfully is the key word – Prof K did not willfully (“voluntary, intentional violation of a known legal duty”) violate the law – did not willfully ignore a known legal duty – did not know that he was without authority of law. Prosecution would have said that “without authority of law” is not modified by “willfully.”

Hypo C page 221: On July 1, a state law requiring pharmacists to compile records of the names and addresses of all purchasers of Viagra, a prescription drug for erectile dysfunction. A pharmacist, unaware of the law (she was on an around-the-world vacation from January 1 until July 15), is prosecuted for her week-long recordkeeping omissions after she returned to work. Does Lambert protect her?

Answer: Court would probably have upheld it because someone who is in a specialized field like a pharmacist would have been expected to know the regulations. It relates to having a duty; even though it’s an omission, it relates to people having a duty.

Causation

Causation is important when the statute is prohibiting a result, not a conduct. If the statute prohibits a result, for fairness purposes, there has to be a connection established between the cause and the result.

Hypo: Suppose a neighborhood not much traffic A B C D E driving around. E gets hit by a car. Nobody sees. Even E doesn’t see who hit him. Would it be fair to punish all of them? No. Retributive reason: only one person deserves to be punished. Utilitarian reason could be that if we punish everyone they will all be more careful; but that would not be ok if punishment is severe for retributive reasons.

Causation: steps of analysis

ONE DEFENDANT AT A TIME: 1 defendant, 1 crime, 1 analysis. Then go on to the next. If one of the two big elements is not satisfied, causation is not satisfied.

1. Actual causation (cause-in-fact)

a. But-for test

Rule: A defendant’s conduct is a cause-in-fact of the prohibited result if the said result would not have occurred “but for” (in the absence of) the defendant’s conduct (if satisfied move on to proximate cause)

1. If the harm would not have occurred “but for” the defendant’s conduct, the defendant is the actual cause (note that there may be more than 1 actual cause)
2. If the harm would have occurred but for the defendant’s conduct, the defendant is not the actual cause

b. Substantial factor test

Rule: Where two defendant’s are acting independently and not in concert AND commit two separate acts each of which alone is sufficient to bring about the prohibited result, if the defendant was a substantial factor in bringing about the result, then the defendant is an actual cause. (for analysis number and think through the pieces)

(a) If the defendant was a substantial factor in bringing about the result, then the defendant is an actual cause. (move on to proximate cause)

(b) If the defendant was not a substantial factor in bringing about the result, then the defendant is not an actual cause.

c. Acceleration test (variation on but-for test)

Rule: If one person brings about an act sufficient to bring about a prohibited result, and the defendant performs an act that accelerates the prohibited result, the defendant is the actual cause.

Example: A nonlethal injury inflicted by the defendant after a lethal injury inflicted by someone else is a cause in fact of the victim’s death if it accelerates the victims’s death.

Sometimes use substantial factor test first the before but-for test (Velazquez case) Part 1 (when it applies)

Rule/steps of analysis: Where two D’s are acting independently and not in concert AND commit two separate acts, each of which alone is sufficient to bring about the prohibited result … Then, you apply the substantial factor/inquiry test instead of the but-for test … Under this specific situation, if the defendant was a substantial factor in bringing about the result, then the defendant is an actual cause. (Velasquez v. State)

Hypo: Suppose both M and R shot K at the exact same time. But for M shooting K, would he not have died? K would have died anyway – same with R. This is when the substantial factor test would apply. Each act is sufficient to bring about K’s death.

2. Proximate cause

Proximate Cause analysis: are there any intervening cause(s)?

Rule: Proximate cause is a fairness limitation for determining who among those that satisfy the but-for standard should be held accountable for resulting harm. If there are no intervening causes, the defendant that is an actual cause is also said to be the proximate cause.

Coincidental/responsive test: steps: If there was an intervening cause, analyze the chain of causation.

Rule A coincidental intervening cause is something that would have happened anyway. A coincidental intervening cause will break the chain of causation if it was unforeseeable. If the chain of causation is broken, the defendant’s act is not a proximate cause of the resulting harm.

1. identify intervening causes
2. determine whether each intervening cause is coincidental or responsive in relation to defendant’s act(s).
3. then,

(a) for coincidental, the defendant is not a proximate cause if the intervening cause is unforeseeable.

(b) for responsive intervening causes, the defendant is not a proximate cause if the intervening cause is unforeseeable AND abnormal

Reasonable foreseeability: An intervening cause supersedes if the intervening cause was foreseeable based on an objective standard of reasonableness.

Responsive intervening cause: Causes that happen in response to the defendant’s conduct.

Rule: A responsive intervening cause is something that happens in response to the defendant’s conduct. A responsive intervening cause will break the chain of causation if it was unforeseeable and abnormal.

First step of analysis: Was the responsive intervening cause unforeseeable and abnormal?

Rule: If a responsive intervening cause is unforeseeable and abnormal, it supersedes the defendant’s conduct as the proximate cause of the prohibited result.

Definition of abnormal: Abnormal would be an exception to whatever happened every single time in the past 99.9 percent of the rule; it would have to fall way outside the expected result.

Coincidental intervening cause: A coincidental intervening cause would have happened anyway.

First step of analysis: Was the coincidental intervening cause unforeseeable?

Rule: If a coincidental intervening cause is unforeseeable, it breaks the chain of causation.(unforeseeable is a pretty difficult test; coincidental intervening cause tends to break the chain of more easily than responsive ones)

Proximate Cause factors/tests

Factors that weigh in favor of finding defendant was NOT a proximate cause (these break the chain of causation)

Apparent safety doctrine: When a defendant’s active force has come to rest in a position of apparent safety, the court will follow it no longer.

People v. Rideout (2006) (the victim had come to rest in a position of apparent safety on the side of the road when he decided to go turn on the car’s emergency lights)

Rule: The Victim’s injury must be “a direct and natural result” of the defendant’s actions (236)

Holding: The court found that there was insufficient evidence to establish proximate cause (whether intervening cause was responsive or coincidental in this case is arguable at best). (238)

Facts: Rideout driving SUV. Turns and drives into path of oncoming car driven by Reichelt. Reichelt’s car hits D’s SUV and comes to rest in the middle of the road. SUV came to rest on the side of the road. Reichelt and passenger Jonathan Kaiser not injured. They walk to D’s SUV on the side of the road to check on D. Spoke with D. Walked back to Reichalt’s car. Reichalt said he wanted to turn on the flashers and was standing next to his car when oncoming car driven by Tony Welch hit Keiser and killed him. D tested positive for alcohol. D was charged with operating a motor vehicle while intoxicated (OWI) or while visibly impaired (OWVI) and thereby causing death.

Voluntary human intervention: Free, deliberate and informed human intervention by interventor.

State v. Presler (1856) (woman who flees abusive partner and freezes to death because chooses not to go to father’s house. Voluntary human intervention (page 238 and note 7 on page 242)

Rule: If a doctor offers medical assistance to a person injured by another person, but the injured person refuses treatment and dies, then the injured person’s free, deliberate and informed human intervention broke the chain of causation, and the person who caused the injuries is not the proximate cause of the injured person’s death.

Factors that weigh in favor of finding defendant WAS a proximate cause: These generally do not break the chain of causation.

• De minimis contribution by intervening cause (if only a few seconds difference, courts can say not superseding)
• Intended consequences of defendant doctrine (mother wanting to poison someone) (p. 241)
• Omissions by interventor – note 5 on page 241 (omissions are less likely to break the chain of causation)

Oxendine v. State (1987) (convicted of manslaughter in the beating death of his six-year-old son)

Rule: If a person suffers a lethal injury, and the defendant subsequently inflicts a non-lethal injury that accelerates the death of the person, the defendant is an actual cause.

Facts: Oxendine’s girlfriend had pushed Oxendine’s son into the bathtub causing microscopic tears in intestines which led to peritonitis (inflammation of the peritoneum [membrane lining the cavity of the abdomen and folded over the viscera]). When Oxendine got home he saw Jeffrey had bruises. Early next morning Oxendine beat Jeffrey. Later that day Jeffrey’s abdomen became swollen. At 5 PM Oxendine got home, and Tyree urged him to take Jeffrey to the hospital. Instead, Oxendine went out and bought a newspaper. When Oxendine returned home, Tyree had got Jeffrey ready to go to the hospital. On the way to the hospital Jeffrey stopped breathing and when they got to the hospital he was dead. (228-9) The jury returned verdicts of manslaughter against Oxendine and Tyree. (230) The defense argued that the State’s medical testimony was too vague and uncertain to show which of the codefendant’s repeated beatings caused the death. (228). The court asked expert witness doctors whether but for the infliction of the second injury Jeffrey would have died when he did. The doctors were unclear. The case didn’t pass the “but-for” test.

Velazquez v. State (1990) (two men had a drag race in Florida and one died)

Rule: Even where a defendant’s conduct was a cause-in-fact of a particular result, a court in Florida declines to impose criminal liability (1) where the prohibited result of the defendant’s conduct is beyond the scope of any fair assessment created by the defendant’s conduct; or (2) where it would otherwise be unjust, based on fairness and policy considerations, to hold the defendant criminally responsible for the prohibited result (p. 245)

Common Law: “Vehicular homicide” is the killing of a human being by the operation of a motor vehicle by another in a reckless manner likely to cause the death of, or great bodily harm to, another.”

Facts: Velazquez met Alvarez at a restaurant in Florida. They decided to have a drag race with their respective cars. They “set up” the race together. They raced a quarter mile. Alvarez turned the car around and went back down the public road. Velazquez followed him. After the race, they drove back to the starting line at 123 mphh. At the end of road both drivers braked but could not stop. Alvarez crashed and died. The issue was whether a driver of a motor vehicle who participates in a reckless and illegal “drag race” on a public road may be properly convicted of vehicular homicide for the death of a co-participant in the race if the sole basis for imposing liability is the defendant’s participation in said race.

State v. Rose (1973) (Henry Rose charged with leaving the scene of an accident, death resulting, in violation of General Law of Rhode Island 1956 Section 31-26-1; negligent manslaughter)

Rule: Where the evidence adduced by the state and the reasonable inferences to be drawn therefrom, even when viewed in a light most favorable to the state, are insufficient to establish actus reus, mens rea and causation, the court must grant the defendant’s motion for acquittal.

NYPL Section 125.10 Criminally negligent homicide: “A person is guilty of criminally negligent homicide when, with criminal negligence, he causes the death of another person. Criminally negligent homicide is a class E felony.” Analogize with State v. Williams

Facts: V was a pedestrian crossing a road at 6:30 pm. D drove a car towards V, hit the victim with the car, causing the V’s body to be thrown up over the hood of the car. D stopped the car momentarily. Body of V rolled off hood. D drove off again. Bus driver witnessed it all but was unable to find V’s body. At 6:40 pm police found D’s car, parked on a street about 610 feet from scene of accident. Police found body of V wedged beneath the car. D argued that could not be negligent manslaughter if V died upon impact. If V died upon impact, the conduct of the D in driving with V wedged under his car did not constitute culpable negligence. Medical evidence says V “could have” died immediately on impact. Court unable to conclude time of death on medical evidence. Guilty when: with criminal negligence he causes the death of another person. The timing is important because Rose was not negligent at the time he hit the person. Rose was negligent when he dragged the body, but if the person was already dead when he dragged him he did not cause the death when negligent.

Seinfeld hypo: Jerry and Elaine on speedboat, Jerry driving. Crashes speedboat. Jerry drives her to hospital. Doctor operates. Does some medical malpractice that causes elaine to die. Elaine was in the hospital getting surgery in response to jerry’s crashing the boat and injuring her. This doctor was usually a really good surgeon and never messed up. Doctor’s malpractice was unforeseeable, so it breaks the chain of causation. BUT if a bunch of gunmen go into the hospital and shoot Elaine, or if the hospital is struck by lightning and burns down and Elaine dies in the fire, it breaks the chain of causation.

Can the lion wander? Hypo: Prof M released a lion that killed Prof K. Does the lion have the right to wander? Yes, well, if Prof M hadn’t released the lion the lion wouldn’t have killed Prof K. Is it fair to hold Prof M responsible for Prof K’s death because she released the lion?

Butterfly effect: Does the flap of a butterfly’s wings in Brazil set off a tornado in Texas? (Page 233 footnote A)

The chocolate chip cookie rule: If I said I had some chocolate chip cookies for breakfast, and I said I ate some flour, some butter, and all the ingredients at different times.

Wanton Endangerment (Kentucky) (not sure why this is here) In Kentucky, wanton endangerment is defined as “a person, under circumstances manifesting extreme indifference to the value of human life, who deliberately engages in conduct which creates a substantial danger of death or serious physical injury to another person.”

Criminal Homicide

Types of Criminal Homicide

England common law four types of murder:

• Intent-to-kill;
• Intent to cause grievous bodily harm;
• Depraved heart murder;
• Intent to commit a felony.

Manslaughter (review casebook description pp 253-54). Types of killings involved:

• Homicide in heat of passion;
• From act unduly dangerous to life or limb;
• Misdemeanor manslaughter.

I.Intended killings

A. Murder

• Common Law Murder. “Malice aforethought.” “Premeditation” development in some jurisdictions.
• NYPL 1st Degree Murder § 125.27 (general categories)
• NYPL 2nd Degree Murder § 125.25 (1)
• MPC Murder § 210.2

B. Manslaughter

• Common Law Manslaughter “Heat of Passion”
• NYPL 1st Degree Man. § 125.20
• MPC Manslaughter § 210.3

II.Unintended killings: Unjustified risk-taking

A. Murder

• Common Law Murder “abandoned and malignant heart”
• NYPL 2nd Degree Murder § 125.25
• MPC Murder § 210.2

B. Manslaughter

• Common Law Manslaughter
• NYPL 1st Degree Manslaughter § 125.20 (1)(a) Intent to Cause Serious Physical Injury
• NYPL 2nd Degree Manslaughter § 125.15
• NYPL Criminally negligent homicide § 125.10
• MPC Manslaughter and Negligent Homicide

III.Unintented killings: unlawful conduct (felony murder: to be covered)

Common Law origins

At common law, murder was defined as the unlawful killing of another human being “with malice aforethought.” “Malice aforethought” became an arbitrary symbol used by judges to signify any number of mental states deemed sufficient to support liability for murder. Generally, four states of mind:

1. Intent to kill, including awareness that the death of another would result from one’s actions, was sufficient for murder except when death of another was caused in the heat of passion.
2. Intent to cause grievous bodily harm, including awareness that the grievous bodily harm of another would result from one’s actions was sufficient for murder if death resulted.
3. Depraved heart murder was unintentional homicide under circumstances evincing a “depraved mind” or an “abandoned and malignant heart.” Essential concept was one of extreme recklessness regarding homicidal risk. Thus, a person might be liable for murder without intent if he caused the death of another in a manner exhibiting a “wanton and wilful disregard of an unreasonable human risk.”
4. Murder based on intent to commit a felony: strict liability.

The protected interest: “human being”

People v. Eulo (New York, 1984) (accused shot victim in head; victim taken to hospital in unconscious state and placed on respirator; doctors found that victim’s brain had irreversibly ceased to function; with consent of next of kin victim declared dead; artificial respirator “terminated” (cardiorespiratory machine removed/turned off); organs removed for transplantation.)

Rule: If deaths were prematurely diagnosed due to a doctor’s gross negligence or intentional wrongdoing, the intervening medical procedure would interrupt the chain of causation and become the legal cause of death.

Statutory interpretation: In NY, the term “death” is used in many statutes but has never been defined by the legislature. Therefore, the term must be read in accordance with the apparent purpose of the statute in which it is found. (266). Legislative void: NY Legislature could have expressly recognized brain-based criteria for recognizing death (there were bills on the table) but did not. Court held that recognition of brain-based criteria for death is “not unfaithful” in prior judicial definitions of death. (267).

NYPL Section 1.05 the general purposes of penal law include (1) “To proscribe conduct which unjustifiably and inexcusably causes substantial harm to individual or public interests;” Therefore, here, to construe homicide statute to provide for criminal responsibility for homicide when a defendant’s conduct causes injury leading to the victim’s total loss of brain functions, is entirely consistent with the Legislature’s concept of death” (268).

Analysis: Brain-based criteria for determining death are supplemental to traditional criteria: OR, not AND. Death is determined by either criteria. However, medical testimony diagnosing victims as dead before medical intervention is highly relevant in chain of causation, because that testimony is what caused the victims to be removed from cardiorespiratory machines. But if Vs were properly diagnosed as dead, organ removal would not have caused death. If V not dead until heart stopped V not dead when doctors surgically intervened, so surgical intervention was an intervening cause. If deaths were prematurely diagnosed due to a doctor’s negligence, that negligence would not be a superseding cause relieving Ds of liability for death.

Year-and-a-day rule: (common law) If Prof M shot Prof K in chest and Prof K died more than a year and a day after, then Prof M cannot be convicted of murder. Could be convicted of attempted murder or something else. (note 3 p.269)

Intentional Killings

Our casebook organizes around: intentional homicides versus unintentional homicides. We should follow the text book in terms of outlining – because this helps us see if it was an intended death or an accidental death and that will take us in different ways – and then heat of passion which are manslaughters but they are intentional too; same with unintentional; is this a depraved indifference killing, or is this a reckless manslaughter type killing or is this a criminally negligent death.

Intentional killings: murder

State v. Guthrie (1995) (dishwashers who generally got along well, but Guthrie was in a bad mood when Farley poked fun at him and snapped him with a dishtowel several times. The dishtowel touched Guthrie on the nose (Guthrie was obsessed with his nose – body dysmorphic disorder). Guthrie pulled knife out of pocket and stabbed Farley to death. Guthrie suffered from panic attacks, chronic depression and borderline personality disorder.)

Narrow rule: Under Virginia law, any interval of time between the forming of the intent to kill and the execution of that intent, which is of sufficient duration for the accused to be fully conscious of what he intended, is sufficient to support a conviction of first degree murder. (273)

Morrin (note 3): a reasonable person would have time to contemplate what they are doing; to premeditate is to think about beforehand; to deliberate is to measure and evaluate the major facets of a choice or problem … [although the time in not exact,] the interval between initial thought and ultimate actions should be long enough to afford a reasonable [person] time to subject the nature of his response to a “second look” (I think this is footnote 3 to Guthrie)

Midgett v. State (Arkansas 1987) (Midgett physically abused his eight-year-old son regularly. One day after beating the child in the stomach, Midgett caused abdominal hemorrhage. Took son to hospital. Child died. Charged with murder in the first degree. Court found that the father did not premeditate killing the child; he intended to keep him alive so he could keep on abusing him.)

Rule: The crime of first degree murder generally requires the killing to be premeditated and deliberate.

State v. Forrest (North Carolina 1987) (Son killed his dying father in hospital by shooting him four times in the head.)

Rule:Under North Carolina Law, to find a defendant guilty of first-degree murder, premeditation and deliberation must be proved by circumstantial evidence.

Note: This case was ruled under the North Carolina murder statute. With the MPC the outcome would have been different because the MPC does not have degrees of murder, and the MPC has the extreme emotional disturbance defense (EED). No murder provisions of the NYPL or MPC require premeditation and deliberation. NYPL has first degree but does not have the words premeditation and deliberation; MPC does not have degrees of murder; The old common law did not have premeditation and deliberation either; it had malice aforethought but not premeditation and deliberation.

Sundance hypo: (quiz question 2 put by K on twen) The D would argue that knowingly modifies the phrase “deadly weapon” under NYPL. Therefore, he does not satisfy the mens Rea requirements because he did not know that the phone was also a gun.

Model Penal Code Sections 210.1 - 210.4

Model Penal Code § 210.1. Criminal Homicide.

(1) A person is guilty of criminal homicide if he purposely, knowingly, recklessly or negligently causes the death of another human being. (2) Criminal homicide is murder, manslaughter or negligent homicide.

Note: MPC § 210.1 Criminal homicide defines murder similarly to common law.

Model Penal Code § 210.2. Murder.

(1) Except as provided in Section 210.3(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 in the 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 of murder may be sentenced to death, as provided in Section 210.6].

Note: MPC § 210.2 (b) “recklessly with extreme indifference to human life” is the MPC version of “depraved heart”/”malignant heart” in common law; also 210.2 (b) similar in some ways to felony murder but not identical to felony murder; common law felony murder is strict liability; MPC while attempting to commit robbery, etc., does require mens rea.

Model Penal Code § 210.3. Manslaughter.

(1) Criminal homicide constitutes manslaughter when:

(a) it is committed recklessly; 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 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.

(2) Manslaughter is a felony of the second degree.

Note: MPC § 210.3 manslaughter again has some similarities to common law – homicide in heat of passion – MPC under the influence of extreme mental or emotional disturbance for which there is reasonable explanation or excuse.

Model Penal Code § 210.4. Negligent Homicide.

(1) Criminal homicide constitutes negligent homicide when it is committed negligently. (2) Negligent homicide is a felony of the third degree.

New York Penal Law: Homicide

New York Penal Law § 125.00 Homicide defined Homicide means conduct which causes the death of a person under circumstances constituting murder, manslaughter in the first degree, manslaughter in the second degree, or criminally negligent homicide.

New York Penal Law § 125.05 Homicide and related offenses; definition The following definition is applicable to this article: “Person,” when referring to the victim of a homicide, means a human being who has been born and is alive.

New York Penal Law § 125.10 Criminally negligent homicide A person is guilty of criminally negligent homicide when, with criminal negligence, he causes the death of another person. Criminally negligent homicide is a class E felony.

New York Penal Law § 125.15 Manslaughter in the second degree A person is guilty of manslaughter in the second degree when:

(1) He recklessly causes the death of another person; or (2) Repealed by L.2019, c. 1, § 8, eff. Jan. 22, 2019. (3) He intentionally causes or aids another person to commit suicide. Manslaughter in the second degree is a class C felony.

New York Penal Law § 125.20 Manslaughter in the first degree A person is guilty of manslaughter in the first degree when:

(1) With intent to cause serious physical injury to another person, he causes the death of such person or of a third person; or

(2) With intent to cause the death of another person, he causes the death of such person or of a third person under circumstances which do not constitute murder because he acts under the influence of extreme emotional disturbance, as defined in paragraph (a) of subdivision one of section 125.25. The fact that homicide was committed under the influence of extreme emotional disturbance constitutes a mitigating circumstance reducing murder to manslaughter in the first degree and need not be proved in any prosecution initiated under this subdivision; or

(3) Repealed by L.2019, c. 1, § 9, eff. Jan. 22, 2019.

(4) Being eighteen years old or more and with intent to cause physical injury to a person less than eleven years old, the defendant recklessly engages in conduct which creates a grave risk of serious physical injury to such person and thereby causes the death of such person. Manslaughter in the first degree is a class B felony.

New York Penal Law § 125.25 Murder in the second degree A person is guilty of murder in the second degree when:

(1) With intent to cause the death of another person, he causes the death of such person or of a third person; except that in any prosecution under this subdivision, it is an affirmative defense that:

(a)(i) The defendant acted under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant’s situation under the circumstances as the defendant believed them to be. Nothing contained in this paragraph shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the first degree or any other crime.

(ii) It shall not be a “reasonable explanation or excuse” pursuant to subparagraph (i) of this paragraph when the defendant’s conduct resulted from the discovery, knowledge or disclosure of the victim’s sexual orientation, sex, gender, gender identity, gender expression or sex assigned at birth; or

(b) The defendant’s conduct consisted of causing or aiding, without the use of duress or deception, another person to commit suicide. Nothing contained in this paragraph shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the second degree or any other crime; or

(2) Under circumstances evincing a depraved indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person; or

(3) Acting either alone or with one or more other persons, he commits or attempts to commit robbery, burglary, kidnapping, arson, rape in the first degree, criminal sexual act in the first degree, sexual abuse in the first degree, aggravated sexual abuse, escape in the first degree, or escape in the second degree, and, in the course of and in furtherance of such crime or of immediate flight therefrom, he, or another participant, if there be any, causes the death of a person other than one of the participants; except that in any prosecution under this subdivision, in which the defendant was not the only participant in the underlying crime, it is an affirmative defense that the defendant:

(a) Did not commit the homicidal act or in any way solicit, request, command, importune, cause or aid the commission thereof; and

(b) Was not armed with a deadly weapon, or any instrument, article or substance readily capable of causing death or serious physical injury and of a sort not ordinarily carried in public places by law-abiding persons; and

(c) Had no reasonable ground to believe that any other participant was armed with such a weapon, instrument, article or substance; and

(d) Had no reasonable ground to believe that any other participant intended to engage in conduct likely to result in death or serious physical injury; or

(4) Under circumstances evincing a depraved indifference to human life, and being eighteen years old or more the defendant recklessly engages in conduct which creates a grave risk of serious physical injury or death to another person less than eleven years old and thereby causes the death of such person; or

(5) Being eighteen years old or more, while in the course of committing rape in the first, second or third degree, criminal sexual act in the first, second or third degree, sexual abuse in the first degree, aggravated sexual abuse in the first, second, third or fourth degree, or incest in the first, second or third degree, against a person less than fourteen years old, he or she intentionally causes the death of such person. Murder in the second degree is a class A-I felony.

New York Penal Law § 125.27 Murder in the first degree A person is guilty of murder in the first degree when:

(1) With intent to cause the death of another person, he causes the death of such person or of a third person; and

(a) Either:

(i) the intended victim was a police officer as defined in subdivision 34 of section 1.20 of the criminal procedure law who was at the time of the killing engaged in the course of performing his official duties, and the defendant knew or reasonably should have known that the intended victim was a police officer; or

(ii) the intended victim was a peace officer as defined in paragraph a of subdivision twenty-one, subdivision twenty-three, twenty-four or sixty-two (employees of the division for youth) of section 2.10 of the criminal procedure law who was at the time of the killing engaged in the course of performing his official duties, and the defendant knew or reasonably should have known that the intended victim was such a uniformed court officer, parole officer, probation officer, or employee of the division for youth; or

(ii-a) the intended victim was a firefighter, emergency medical technician, ambulance driver, paramedic, physician or registered nurse involved in a first response team, or any other individual who, in the course of official duties, performs emergency response activities and was engaged in such activities at the time of killing and the defendant knew or reasonably should have known that the intended victim was such firefighter, emergency medical technician, ambulance driver, paramedic, physician or registered nurse; or

(iii) the intended victim was an employee of a state correctional institution or was an employee of a local correctional facility as defined in subdivision two of section forty of the correction law, who was at the time of the killing engaged in the course of performing his official duties, and the defendant knew or reasonably should have known that the intended victim was an employee of a state correctional institution or a local correctional facility; or

(iv) at the time of the commission of the killing, the defendant was confined in a state correctional institution or was otherwise in custody upon a sentence for the term of his natural life, or upon a sentence commuted to one of natural life, or upon a sentence for an indeterminate term the minimum of which was at least fifteen years and the maximum of which was natural life, or at the time of the commission of the killing, the defendant had escaped from such confinement or custody while serving such a sentence and had not yet been returned to such confinement or custody; or

(v) the intended victim was a witness to a crime committed on a prior occasion and the death was caused for the purpose of preventing the intended victim’s testimony in any criminal action or proceeding whether or not such action or proceeding had been commenced, or the intended victim had previously testified in a criminal action or proceeding and the killing was committed for the purpose of exacting retribution for such prior testimony, or the intended victim was an immediate family member of a witness to a crime committed on a prior occasion and the killing was committed for the purpose of preventing or influencing the testimony of such witness, or the intended victim was an immediate family member of a witness who had previously testified in a criminal action or proceeding and the killing was committed for the purpose of exacting retribution upon such witness for such prior testimony. As used in this subparagraph “immediate family member” means a husband, wife, father, mother, daughter, son, brother, sister, stepparent, grandparent, stepchild or grandchild; or

(vi) the defendant committed the killing or procured commission of the killing pursuant to an agreement with a person other than the intended victim to commit the same for the receipt, or in expectation of the receipt, of anything of pecuniary value from a party to the agreement or from a person other than the intended victim acting at the direction of a party to such agreement; or

(vii) the victim was killed while the defendant was in the course of committing or attempting to commit and in furtherance of robbery, burglary in the first degree or second degree, kidnapping in the first degree, arson in the first degree or second degree, rape in the first degree, criminal sexual act in the first degree, sexual abuse in the first degree, aggravated sexual abuse in the first degree or escape in the first degree, or in the course of and furtherance of immediate flight after committing or attempting to commit any such crime or in the course of and furtherance of immediate flight after attempting to commit the crime of murder in the second degree; provided however, the victim is not a participant in one of the aforementioned crimes and, provided further that, unless the defendant’s criminal liability under this subparagraph is based upon the defendant having commanded another person to cause the death of the victim or intended victim pursuant to section 20.00 of this chapter, this subparagraph shall not apply where the defendant’s criminal liability is based upon the conduct of another pursuant to section 20.00 of this chapter; or

(viii) as part of the same criminal transaction, the defendant, with intent to cause serious physical injury to or the death of an additional person or persons, causes the death of an additional person or persons; provided, however, the victim is not a participant in the criminal transaction; or

(ix) prior to committing the killing, the defendant had been convicted of murder as defined in this section or section 125.25 of this article, or had been convicted in another jurisdiction of an offense which, if committed in this state, would constitute a violation of either of such sections; or

(x) the defendant acted in an especially cruel and wanton manner pursuant to a course of conduct intended to inflict and inflicting torture upon the victim prior to the victim’s death. As used in this subparagraph, “torture” means the intentional and depraved infliction of extreme physical pain; “depraved” means the defendant relished the infliction of extreme physical pain upon the victim evidencing debasement or perversion or that the defendant evidenced a sense of pleasure in the infliction of extreme physical pain; or

(xi) the defendant intentionally caused the death of two or more additional persons within the state in separate criminal transactions within a period of twenty-four months when committed in a similar fashion or pursuant to a common scheme or plan; or

(xii) the intended victim was a judge as defined in subdivision twenty-three of section 1.20 of the criminal procedure law and the defendant killed such victim because such victim was, at the time of the killing, a judge; or

(xiii) the victim was killed in furtherance of an act of terrorism, as defined in paragraph (b) of subdivision one of section 490.05 of this chapter; and

(b) The defendant was more than eighteen years old at the time of the commission of the crime.

(2) In any prosecution under subdivision one, it is an affirmative defense that:

(a)(i) The defendant acted under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant’s situation under the circumstances as the defendant believed them to be. Nothing contained in this paragraph shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the first degree or any other crime except murder in the second degree. (ii) It shall not be a “reasonable explanation or excuse” pursuant to subparagraph (i) of this paragraph when the defendant’s conduct resulted from the discovery, knowledge or disclosure of the victim’s sexual orientation, sex, gender, gender identity, gender expression or sex assigned at birth; or

(b) The defendant’s conduct consisted of causing or aiding, without the use of duress or deception, another person to commit suicide. Nothing contained in this paragraph shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the second degree or any other crime except murder in the second degree. Murder in the first degree is a class A-I felony.

Notes: Felony murder or depraved indifference murder or intent to kill murder in new York are all second-degree murder. NYPL manslaughter also similarities with MPC and common law. NY aggravated homicides – certain individuals are entitled to more protection, so killing a police officer or a peace officer. NY first-degree murder – this is new York’s death penalty statute – basically second degree intent to kill plus aggravating factor, which can include various categories – killing a child, killing by torture, but we are not going to focus on those but I should glance at them.

Note on felony murder: Felony murder or depraved indifference murder or intent to kill murder in new York are all second-degree murder. NYPL manslaughter also similarities with MPC and common law. NY aggravated homicides – certain individuals are entitled to more protection, so killing a police officer or a peace officer. NY first-degree murder – this is new York’s death penalty statute – basically second degree intent to kill plus aggravating factor, which can include various categories – killing a child, killing by torture, but we are not going to focus on those but I should glance at them.

Intentional Killings: Manslaughter: Heat of Passion

Common law Heat of Passion (voluntary manslaughter) Intentional homicide done in a (1) sudden heat of passion caused by (2) adequate provocation, (3) before there has been a reasonable opportunity for the passion to cool; (4) causal connection between provocation and act. (1)Excuse (2) justification (3) justification

Excuse and justification defenses Justification defenses (approval of actor’s conduct, as in self-defense). Excuse defenses (defendant did wrong act but is not morally blameworthy, as in insanity defense).

Hypo: a situation where a D is Aaron, and Ben drives up and kills Aaron’s daughter Sue, and Ralph steps in and tries to get past Ralph to kill Ben, and kills Ralph. Should that be an excuse defense or a justification defense? If excuse, not morally blameworthy because very upset. If justification, then we’re saying it’s ok to do that.

Girouard v. State (Maryland 1991) (Steven and Joyce Girouard married in the army, argue, she follows him into bedroom, taunts him, he goes into kitchen, gets knife and stabs her 19 times)

Rule: Under common law, words alone are not adequate provocation to mitigate second-degree murder to voluntary manslaughter.

Common law: voluntary manslaughter: “an intentional homicide, done in a sudden heat of passion, caused by adequate provocation, before there has been a reasonable opportunity for the passion to cool” (285). Difference between murder and manslaughter is the presence or absence of malice.

Who is the reasonable person? The book doesn’t really tell us. Historically in common law, if you’re thinking of the reasonable person are we thinking about an objective sort of blank person, or do we give the reasonable person some of the characteristics of the defendant? Courts generally have said that if a characteristic is related to the provocation, it should be considered in the reasonable person standard. (See note 4 p. 298)

Director of Public Prosecutions v. Camplin (House of Lords 1978) (Khan, a middle-aged man, sodomized Camplin, a 15-year-old boy, in Khan’s home, and then laughed at him. Camplin took a heavy kitchen pan and killed Khan. Camplin was charged with murder. Appealed, arguing that conviction should be reduced to manslaughter.)

Rule: A “reasonable man” is a person having the power of self-control to be expected of an ordinary person of the sex and age of the accused, but in other respects sharing such of the accused’s characteristics as they think would affect the gravity of the provocation (p. 299)

MPC and NYPL do it a little differently, but generally juries are less likely to raise issues about sex or age.

Extreme emotional disturbance

MPC takes a little different approach from NYPL (see MPC and NYPL laws above)

People v. Cassassa (New York, 1980) (man obsessively in love wiith woman living in the same building, ends up killing her because she rejected him)

Rule: Under New York law, if a defendant had a mental infirmity that did not rise to the level of insanity, and within that mental state, from his subjective point of view, his reaction to a series of events causing him to kill the victim was reasonable, he may have an extreme emotional disturbance defense. NYPL Section 125.25 (1)(a) provides that it is an affirmative defense to the crime of murder in the second degree where “the defendant acted under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse.” (301) The extreme emotional disturbance defense is an outgrowth of the heat of passion defense.

Note: In People v. Cassassa court accepted the first prong, that D was sincerely really emotionally disturbed because he had been rejected; but court said that his conduct was not reasonable even if seen from his subjective viewpoint.

Facts: Victoria Le Consolo (Victim) and Victor Cassassa (Defendant) lived in the same building. After dating for 3 or 4 months, Ms. Le Consolo told the D she was not in falling in love with him. D became obsessed with Ms. Le Consolo. On one occasion the D broke into the apartment below Ms. Le Consolo’s to eavesdrop, and on another occasion broke into her apartment and lay in her bed. One evening D went to Ms. Le Consolo’s apartment with bottles of wine and liquor which he wanted to give to Ms. Le Consolo. Ms. Le Consolo refused to accept the wine and liquor. D pulled out a steak knife and stabbed Ms. Le Consolo several times in the throat, then dragged her body to the bathroom and submerged it in water “to make sure she was dead.” At trial, D did not contest the facts, but argued that at the time of the killing he was experiencing extreme emotional disturbance. At trial, D had one witness, a psychiatrist, who testified that Ms. Le Consolo’s rejection of D combined with his “personality attributes” caused him to be under the influence of extreme emotional disturbance at the time of the killing (301). The People had several witnesses including a psychiatrist, who testified that in his opinion D was not under the influence of extreme emotional disturbance for the purposes of mitigation, because the disturbed state was due to internal factors, not external ones.

In heat of passion defense, response to provocation; a cooling off period completely negates the mitigating effect of the response to provocation.

In extreme emotional disturbance defense, it may be that significant mental trauma has affected D’s mind for a substantial period of time. The standard by which the reasonableness of the D’s reaction is tested is entirely subjective (302).

Under the MPC Sec. 210.3, defense of EED: the D must have acted under the influence of extreme emotional disturbance; and there must have been a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant’s situation as the D believed the situation to be. Note that MPC says that extreme emotional disturbance can be a defense to all types of murder, including recklessness. Test is in part subjective, and in part objective. The intention of the statute is to give the jury the opportunity to weigh facts and exercise mercy.

NYPL Secs 125.25; 125.27 – NYPL says only applies to intentional murder, not recklessness. NYPL Sec 125.20 (2) mentions EED in the manslaughter statute because it refers back to second degree murder in 125.25 – so EED does not apply to 125.20(1) but it does apply to 125.20(2) because 125.20(2) is second degree murder reduced to manslaughter (125.20(2) and 125.25 EED are basically the same thing).

Model Penal Code § 210.3. Manslaughter.

(1) Criminal homicide constitutes manslaughter when:

(a) it is committed recklessly; 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 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.

NYPL § 125.25 Murder in the second degree (1) “it is an affirmative defense that:(a)(i) The defendant acted under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant’s situation under the circumstances as the defendant believed them to be.”

Compare with common Law: Heat of passion only applied to intentional murders. MPC makes some distinctions from common law; MPC is trying to incorporate more modern understandings of psychology, trying to understand that in certain circumstances words might be enough; in common law words were not enough, but MPC recognizes that words may be enough, and also says well, as a general matter, it should be a general rule that time makes everything better, but actually this is not a general rule in EED because sometimes time makes things worse; some people might become extremely disturbed in different circumstances;

The word provocation does not appear in NYPL or in MPC. There are no elements of justification; it doesn’t have a provocation requirement. EED is more of an excuse defense than a justification defense.

Unintentional Killings

People v. Knoller (California, 2007) (Bane, a dog owned by two sleazy attorneys killed Diane Whipple in the hallway of an apartment building in San Francisco)

Statute: Under CA Penal Code Section 187 subdivision (a), murder is “the unlawful killing of a human being, or a fetus, with malice aforethought.” Under CAPC Section 188, “Malice may be either express or implied. It is express when there is manifested a deliberate intention to take away the life of a fellow creature. It is implied, when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart.” (At issue here is the definition of “implied malice” (317); Implied malice requires a D’s awareness of the risk of death to another (317))

Rule: Under California law (common law?), Malice is implied when the killing is proximately caused by “an act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life” (317)

Analysis: By the act of failing to keep Bane in the apartment (omission + duty) D proximately caused the death of the V by deliberately disregarding the danger that the dog leave the apartment. Court used People v Thomas test and People v. Philips test. (p. 317). Court prefers Philips – they like both but prefer Philips.

People v. Philips test: Malice is implied when the killing is proximately caused by “an act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life.”

People v. Thomas test: Malice is implied when “the defendant for a base, antisocial motive and with wanton disregard for human like, does an act that involves a high probability that it will result in death.”

Facts: Bane was one of four huge presa canario dogs Ds wanted to breed and sell as guard dogs/attack dogs. D had been warned that dogs had killed sheep. When D had dogs vaccinated vet said dogs weighed around 100 pounds each and had had no training or discipline of any sort; are therefore “a liability in any household.” Over about 8 months there were 30 episodes of dogs being out of control and threatening humans and other dogs. V lived across lobby from Ds. V on way home. In hallway, Bane attacked her. Neighbor called 911. When police arrived V naked and bleeding and dying. Bled to death. 77 discrete injuries covering body from head to toe. At trial, D said she did not know dog was dangerous. Said people who had said they were threatened by dogs had been lying. Said she had no idea that Bane would ever do that to anybody.

NYPL 125.25(2) says a depraved indifference to human life – second degree murder – similar to malignant and depraved heart in common law. Remember that from our definition of recklessness (see NYPL sec 15.05) have to be aware of the risk and consciously take that risk. Depraved indifference is a step higher because one simply does not care.

People v. Suarez (NY) (Defendant, who stabbed her former boyfriend in the chest during an argument, and then immediately called 911 and requested an ambulance, was not, as a matter of law, guilty of depraved indifference murder. Defendant’s conduct may have reflected recklessness but did not fall within the small, and finite, category of cases evidencing utter depravity, uncommon brutality and inhuman cruelty required for depraved indifference murder.)

Rule: Depraved indifference is best understood as an utter disregard for the value of human life – a willingness to act not because one intends harm but because one simply doesn’t care whether grievous harm results or not. (note 4 p. 319)

NY Depraved indifference murder (Penal Law § 125.25 [2]) properly applies only to a small, and finite, category of cases where the defendant’s conduct is at least as morally reprehensible as intentional murder. The use of a weapon can never result in depraved indifference murder when there is a manifest intent to kill because indifference to the victim’s life contrasts with the intent to take it. Further, a defendant may be convicted of depraved indifference murder when but a single person is endangered in only a few rare circumstances. To constitute depraved indifference, the defendant’s conduct must be so wanton, so deficient in a moral sense of concern, so devoid of regard of the life or lives of others, and so blameworthy as to warrant the same criminal liability as that which the law imposes upon a person who intentionally causes the death of another. The statutory provision that a defendant act “[u]nder circumstances evincing a depraved indifference to human life” constitutes an additional requirement of the crime, which in turn comprises both depravity and indifference, that has meaning independent of the gravity of the risk of death.</p>

Manslaughter in the first degree NY 125.20 (1) “with intent to cause” note difference with NY 120.20:

NYPL § 125.20 Manslaughter in the first degree A person is guilty of manslaughter in the first degree when: (1) With intent to cause serious physical injury to another person, he causes the death of such person or of a third person;

NYPL § 120.20 Reckless endangerment in the second degree A person is guilty of reckless endangerment in the second degree when he recklessly engages in conduct which creates a substantial risk of serious physical injury to another person.

State v. Williams (Washington, 1971) (Native American people. Didn’t take child to doctor. Court is saying that they should have known how serious the illness was. Convicted of negligently causing the death of the child.)

Rule: If a person commits ordinary negligence, i.e. fails to exercise ordinary caution that a reasonable man would exercise under the same or similar circumstances, and such negligence proximately causes the death of another, the person is guilty of homicide.

Law: Washington court uses definition of negligence RCW 9.48.150 which requires ordinary deviation from reasonable standard of care (court finds that Ds deviate from what reasonable behavior would be). Compare to NYPL 15.05 which requires gross deviation from standard of care.

NYPL § 15.05 (4) ““Criminal negligence.” A person acts with criminal negligence with respect to a result or to a circumstance described by a statute defining an offense when he fails to perceive a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation.”

Note: Here, the prosecutor did not have to show that the Ds had knowledge that they were doing anything wrong. MPC struggled with this; negligent homicide is problematic.

Felony murder

Rule Under NYPL Section 125.25 (3), a person is guilty of murder in the second degree when acting either alone or with one or more other persons, he commits or attempts to commit robbery, burglary, kidnapping, arson, rape in the first degree, criminal sexual act in the first degree, sexual abuse in the first degree, aggravated sexual abuse, escape in the first degree, or escape in the second degree, and, in the course of and in furtherance of such crime or of immediate flight therefrom, he, or another participant, if there be any, causes the death of a person other than one of the participants.

Under NYPL, the victim in a felony murder cannot be a co-felon under the second-degree murder statute.

New York Penal Law § 125.25 Murder in the second degree A person is guilty of murder in the second degree when: (3) Acting either alone or with one or more other persons, he commits or attempts to commit robbery, burglary, kidnapping, arson, rape in the first degree, criminal sexual act in the first degree, sexual abuse in the first degree, aggravated sexual abuse, escape in the first degree, or escape in the second degree, and, in the course of and in furtherance of such crime or of immediate flight therefrom, he, or another participant, if there be any, causes the death of a person other than one of the participants; except that in any prosecution under this subdivision, in which the defendant was not the only participant in the underlying crime, it is an affirmative defense that the defendant: (see full statute for defenses)

Note: difference between NYPL murder in the first degree and murder in the second degree: NYPL 125.27 murder in the first degree subsection 7 is NOT felony murder because in beginning of statute it states that “a person is guilty of murder in the first degree when: (1) with intent to cause the death of another person, he causes the death of such person or of a third person; AND (a) Either … (vii) the victim was killed while the defendant was in the course of committing or attempting to commit and in furtherance of [certain felonies], or in the course of and furtherance of immediate flight after committing or attempting to commit any such crime …”” In the second degree provision it was with an “or” not an “and”: First degree is intent to kill AND; Second degree is intent to kill OR.

New York has the careful felon defense – if you commit a murder while committing a felony if you can show that there was no recklessness with extreme indifference when committing the felony that is a defense; to some degree NY is trying to mitigate the felony murder rule, but it does allow a very narrow defense;

MPC 210.2 Drafters of MPC thought felony murder rule was not great in terms of policy, so they didn’t get rid of it completely; not a felony muRder because the MPC does not have felony murder; You can create a presumption of mens rea if you can prove recklessness with extreme indifference when committing a felony; mens rea is still an issue, and it makes it easier for the prosecutor but does not make the mens rea irrelevant.

Inherently dangerous felony limitation: Originally, felony murder applied to all felonies, but then courts started limiting the felonies where the doctrine applied. Some jurisdictions apply this doctrine so that only felonies that are inherently dangerous may be used for felony murder. Courts start knocking out some felonies from the felony murder rule.

People v Fuller (California 1978) (burglars stole spare tyres from parked cars; police showed up; when fleeing from police, burglars ran a red light and hit another car, causing the other driver’s death. Fuller was charged with murder under the felony-murder rule. The trial court struck the murder charges. The appeals court was bound by precedent and overturned, and Fuller was convicted of first-degree murder under the felony murder rule)

Rule: Under the California felony-murder rule, a death resulting from the commission of a dangerous felony, including burglary, is murder.

Justification of felony murder: Main policies behind it is this idea of deterrence and of making felons more careful. Book mentions other justifications; could make a retributive argument that people are more deserving; but main justification is deterrence; consistent with thus being so punitive in this area. To summarize, main justifications are (1) Deterrence of committing felony in the first place; (2) the idea is that if someone does decide to do a felony they will be more careful.

People v. Howard (California 2005) (police tried to pull over Howard because his car was missing a license plate; Howard was on crystal meth and had a suspended license; fled from police; police pursued; high speed chase; Howard burned red light and crashed into another car, killing the driver)

Rule: In some jurisdictions, courts only apply the felony murder rule to felonies that are inherently dangerous to human life.

Analysis: Sometimes in some jurisdictions they look at facts. In others, they look in the abstract. Looking in the abstract is looking at the statute. Here, the requirement for inherently dangerous felony in this case was three traffic violations.If someone is driving without a license with lights off and a little over the speed limit, they are not posing a substantial risk to human life, so this statute is crossed off the felony murder list forever in California.

Hypo: If Prof M says “let’s go rob a bank” Prof K will say “no, that’s an inherently dangerous felony; if someone dies, we’ll be charged with felony murder.” Or he might say “ok let’s do it but we have to be really careful.” Basically the inherently dangerous felony rule for felony murder is for purposes of deterrence.

Limitations to felony murder rule

In general, for a death to be felony murder, the act that resulted in the death must be in furtherance of a felony or during perpetration, the res gestae requirement of time, distance and causal relationship must be satisfied, and the policy must be the agency approach or proximate cause (a jurisdiction will never use both). The courts have placed limitations on felonies for the felony-murder rule. These are (1) the inherently dangerous felony limitation (fact v abstract), and (2) the merger or “independent felony” doctrine.

Inherently dangerous felony rule (fact v. abstract) In some jurisdictions, courts only apply the felony-murder rule to felonies that are inherently dangerous to human life. Most jurisdictions apply the inherently dangerous felony rule in the abstract - that is, based on the statutory description of the offense - rather than on the facts of the case. This is because if you apply it on the facts the inherently dangerous felony murder rule will be applied quite often, because felonies are often inherently dangerous in their facts. This is why most courts reject the facts-based analysis and apply the rule in the abstract. Once a court has applied the rule in the abstract, that statute can never be applied in felony murder. If the court applies facts, the statute can be applied sometimes.

Rule for merger (or “independent felony”) limitation: The felony-murder rule does not apply to felonies that are an integral part of and included in fact within the homicide. However, felony-murder does apply to the felony (i.e. felony-murder does not merge with the felony) if the underlying felony was committed with an “independent felonious purpose”.

Inherently dangerous felony notes:

• Firing a firearm at an inhabited dwelling – yes, inherently dangerous.
• False imprisonment: no, not inherently dangerous (you can lock someone up for a short time so no, not always substantial risk to human life) (we’re looking at the statute, not the crime, so we’re looking in the abstract).
• Child abuse – depends how it is defined in the statute – if it is defined in the state in a way that does not always create a substantial risk that someone will die, then felony murder does not apply because statute is not inherently dangerous when interpreted in the abstract.
• Every person having the custody of a child - No, not inherently dangerous because someone could have the custody of a fifteen-year old and have drunk people in the house all the time; not substantial risk that someone will die.

A question is whether the felony-murder rule is necessary in these cases. In all these cases the prosecutor would have the option of convicting defendants with manslaughter or second-degree murder. Should all deaths that occur in the course of a felony be felony murder? This would be illogical; felony murder should not be applied to manslaughter crimes; manslaughter is a felony and is inherently dangerous, so this would elevate all manslaughters to murder.

Merger doctrine notes:

If the prosecution could charge felony murder every time someone shot someone with a gun, they would never have to prove that there was mens rea, because if assault with a deadly weapon could be the felony then a prosecutor could always charge someone with assault with a deadly weapon and then boost that up to felony murder.

Again, the idea is deterrence; the policy reason for not applying the felony murder rule to these is that if someone is going to commit murder we can’t make them more careful, but if someone is going to commit robbery and kills someone, we can deter other robbers from being reckless when they rob. Felony murder applies to:

• Robbery – YES
• Burglary – breaking and entering with intent to assault with a deadly weapon – NO, because intent to assault
• Burglary second degree – breaking and entering with intent to steal – YES, you can apply felony murder to this
• Child abuse of assaultive nature? – NO, because assault is an integral part of the felony

People v. Smith (California 1984) (woman assaulted her two-year old daughter by hitting her when the daughter wouldn’t listen; as a result of injuries daughter died in hospital)

Rule: Under California law, a felony that is assaultive in nature cannot serve as the basis of a felony-murder charge unless the felony was committed with an independent felonious purpose.

Ireland case: Don’t know what this is!

Res gestae doctrine

Res Gestae doctrine rule: Following the res gestae doctrine for determining whether the killing occurred during the course of a felony, the courts must look at time, distance, and the causal relation between the felony and the killing.

Different jurisdictions take different approaches when the defendant did not actually do the killing.

1. Agency approach – limits felony murder to homicides committed by the felon or the felon’s agent; any killing by the felons is implicated to their co-felons. Prof K and Prof M robbing bank; if prof K kills someone prof M can also be criminally liable. In Sosophone case, the lower court used the agency approach but the higher court overruled and used proximate cause approach.
2. Proximate cause approach allows liabiility for any death caused by the unlawful activity, even when it isn’t caused by the felon. Defendant can be held liable for a killing if the defendant merely sets in action the events that cause the death. (p. 356)

State v. Sophophone (Kansas 2001) (Sophophone and three other men broke into a residence. The resident was home and called the police. One officer arrested Sophophone. Another shot and killed Sysoumphone. Trial court convicted Sophophone of felony murder based on the officer’s killing of Sysoumphone. Supreme Court of Kansas reversed, and used agency approach instead of proximate cause approach.)

Rule: Under Kansas law, where a killing is the lawful act of a non-felon, the felony-murder rule is inapplicable.

Hypo: Agency theory jurisdiction. Felons A, B, C. Police officer D. If A kills police officer D during robbery, B and C are guilty of felony murder. They are each an agent of the other so if one person does the killing, they are all guilty by agency.

If officer D kills robbers A and B during the robbery, is C is guilty of felony murder? No. (similar to Sophophone case).

A, B and C are felons. Police officer D bystander E. If police officer D accidentally kills E during the robbery, is A guilty of felony murder? No.

NYPL sec. 125.25 subsection 3 is felony murder rule in New York. New York applies the proximate cause approach; if felons are the proximate cause of death, they can be convicted of felony murder. A jurisdiction will apply either agency approach or proximate cause approach; a jurisdiction will not bounce back and forth.

Hypo: NY jurisdiction. Robbers A, B and C. Police officer D. If D police officer D kills robbers A and B during the robbery, is C guilty of felony murder? Yes.

NY has an additional requirement – ASK PROF K ABOUT THIS –

Same as above, but with bystander E. If police officer D accidentally kills E during the robbery, is A guilty of felony murder? In NY, yes.

Hypo: If prof K robs a bank and someone dies several days later in an accident he causes. If Prof K robs a bank and an hour later someone dies in an accident he causes. If he sees the police and is driving away and that’s when he had the accident.

Affirmative defense in NY: NY has a very narrow defense; if the defendant can prove all four factors, the defendant is not guilty of felony murder. Factors: (a) not aid in homicide, (b) not armed, (c) no reasonable ground to believe others armed, and (d) no reasonable ground to believe other participant would kill.

Capital Punishment

The death penalty originated before there were prisons. Common Law murder: murders done with malice aforethought and done without malice aforethought. In the United States, murders by degrees tries to limit the death penalty.

Relevant to the constitutionality of the death penalty, (1) Option. Mandatory death penalty for certain crimes. (2) Starting in 1837-1838 option – sentencer (judge or jury) has complete discretion. Mostly southern states. The way this was used was that with all white juries in the south, they would choose to sentence Blacks to death. U.S. Supreme Court: the Bill of Rights initially didn’t apply to the states, only to the Federal government. So many death penalty cases didn’t go the supreme court. There was a death by firing squad.

The electric chair was invented before toasters and things like that; the electric chair there was competition between Thomas Edison, who pushed for the electric chair because he hoped people would see how dangerous electricity was. Leading up to the 60s and 70s, the NAACP Legal Defense Fund, lawyers working with social justice advocates on a social justice issue, initially began challenging the death penalty on equal protection grounds, but eventually thought it should be struck down for other reasons and began challenging it on constitutional grounds – 14th Amendment due process, 8th Amendment cruel and unusual punishment; largely based on how death penalty was applied. Furman v. Georgia 1972 – giving jurors complete discretion to apply the death penalty made the death penalty capricious; at this time there was a trend around the world which had started in the 1940s – capital punishment was abolished in France, Israel except for nazis, England, Austria Denmark, Sweden, Portugal, - meanwhile in the U.S. the death penalty was dwindling in the 60s and 70s during civil rights era – man wrote books on death row in CA – NAACP had coordinated attorneys nationwide to challenge the death penalty – ended up going to the USC in Furman v Georgia 1972 – majority found that the death penalty was unconstitutional because the jurors had too much discretion so arbitrary so violated the 8th Amendment. Many people thought that was the end to the death penalty in the U.S. States responded to Furman by writing new laws – became a political issue, states’ rights; new death penalty laws gave jurors factors to weigh – aggravating factors which are similar to what is in NYs aggravating murder factors. So, these new statues went to the supreme court and the USC upheld these new death penalty laws.

Gregg v. Georgia. Plurality. Procedures: the discretion to be exercised is controlled by clear and objective standards so as to produce non-discriminatory application of death penalty. Justices William Brennan and Thurgood Marshall: dissented; said they were against the death penalty in all cases and continued to dissent after that.

Executions and the death penalty

McCleskey v. Kemp (“This case presents, as we know, an attack on capital punishment itself.” - Justice Powell in interoffice memo duringg McClesky v. Kemp considerations) (McCleskey was convicted of murdering a white police officer in Georgia. In his appeal he raised 18 claims.)

Challenge: Fourteenth Amendment: purposeful discrimination (court said that McClensky had to show not just discrimination in general); Eighth Amendment: arbitrariness (McClesky lost Eighth Amendment challenge). At the time of his trial Georgia had the confederate flag flying over the courthouse and in the courthouse. McClesky was executed on September 25, 1991.

New York legislature passed death penalty law in 1995 (but see People v. Lavalle [2004])

State v. Gregory (“we hold that Washington’s death penalty is unconstitutional, as administered, because it is imposed in an arbitrary and racially biased manner. Given the manner in which it is imposed, the death penalty also fails to serve any legitimate penological goals” - Washington Supreme Court 2018)

Most compelling argument against death penalty: Innocent people. Shows the arbitrary nature of the death penalty; who gets the death penalty even if they get the death penalty.

General Defenses to Crimes

Major Categories of Defenses

• Failure of proof defenses – burden of proof on defense - Mistake of fact
• Justifications – defenses where we condone what a defendant did; we say there are special justifying circumstances; even though they committed a crime the wrong would have been worse had they not committed the crime; for example, if a person burns corn field to create a fire break because huge forest fire threatening town, they could claim self-defense; if someone is shooting at me and I shoot them to save my life, it could be said that I was justified.
• Excuses – what the person did was wrong but they are not responsible for what they did; insanity; partial excuse defenses which mitigate crimes are heat of passion and EED
• Non-exculpatory public policy defenses – do not make a person not morally responsible for the crime, but makes them not be punished; for example, statute of limitations; the idea is that there is certain policy not to punish someone if the crime was done so long ago; another example would be diplomatic immunity – diplomats are immune from a lot of crimes because we want to maintain good relationships with diplomats from other countries, so we don’t want to punish them for crimes.

Burden of Proof

Patterson v. New York (U.S. Supreme Court 1977) (Patterson became estranged from wife Roberta, who resumed prior engagement with neighbor John Northrup. Patterson borrowed a rifle from an acquaintance, then went to his father-in-law’s house, looked through a window, saw his wife partly undressed with Northrop, went into the house and killed Northrop by shooting him twice in the head. Patterson was charged with second-degree murder. He raised the defense of EED.)

Rule: Under NYS law, if the prosecution can prove beyond reasonable doubt (1) the death, (2) the intent to kill, and (3) causation, then the burden of proving the defense of extreme emotional disturbance with a preponderance of evidence rests upon the defendant. The affirmative defense of extreme emotional disturbance does not negate any facts of the crime.

Burden of production: The burden of production is a small burden to get the court to talk about an issue. Sometimes it is called a burden of going forward with the issue. Whoever has this burden has the burden to provide at least more than a scintilla of evidence that there was there is enough evidence to go forward with this.

Burden of persuasion: The burden of persuasion is the burden of convincing the fact finder that something may be true. The questions here are (1) what is the burden, and (2) who has the burden. In other words, what is the legislature doing, and what is the constitution doing?

Extreme emotional disturbance defense to Second Degree Murder (NYPL) “(1) Intent to cause death of another person; (2) Causing death of such person or of a third person. Defense: acted under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse.

Common law: Malice aforethought is with no provocation. In Maine, malice aforethought is in the statute, so they overlap (in NYPL, mens rea is not part of the elements of the crime in the statute, so they do not overlap at all).

Hypo: Judge instructs jury that defendant must prove by preponderance of evidence the defense of self-defense. How would you argue that the burden for disproving self-defense should be on prosecutor? Because self-defense overlaps with the definition of the crime, so the burden should be on the prosecutor to prove it.

Rule: In some jurisdictions, if the definition of the defense overlaps with the definition of the crime, the burden of disproving the defense rests on the prosecution.

New York Burdens See NYPL Section 25.00. SEE NYPL SECTION 35.15 Self defense.

Justification Defenses

Self-defense rule: In a justification of self-defense, an objective standard of reasonableness must be based on the “circumstances” facing a defendant or his “situation,” including any relevant knowledge the defendant had about the potential assailant, the physical attributes of all persons involved, any prior experiences the defendant had which could provide a reasonable basis for a belief that another person’s intentions were to injure or rob him or that the use of deadly force was necessary under the circumstances. (532)

New York Self-Defense

NY non-deadly self-defense:

In New Yok, a person may use physical force upon another person when and to extent he or she reasonably believes (1) such to be necessary to defend self or third person (2) from use or imminent use of unlawful physical force by the other person. There is no defense of self-defense where (a) the other person was provoked by the defendant with intent to cause physical injury to another; or (b) the defendant was the initial aggressor; (i) However, the initial aggressor may use defense of self-defense if she has withdrawn and effectively communicated that she withdrew to the other person but the other person persists; or (c) combat by agreement not authorized by law.

NY deadly self-defense:

In New Yok, a person may use deadly physical force upon another person when and to extent he, she or they reasonably believes (1) that the other person is using or about to use deadly force; or (2) that the other person is committing or attempting to commit kidnapping, forcible rape, forcible criminal sexual act or robbery; or (3) that such other person is committing or attempting to commit burglary and the Defendant is in control of the building. (See § 35.20) An exception to (1) is the retreat doctrine, which provides that there is no deadly force self-defense where the defendant “knows [she] can with complete personal safety as to oneself and others he … she [or they] may avoid the necessity of” using deadly physical force by retreating. Another exception is the castle doctrine, which provides that (a) there is no duty to retreat if the defendant is in their own dwelling and is not the initial aggressor; or a police or peace officer or assisting an officer.

Hypo: Note 3 page 523 Jim throws a punch at Frank. Frank pulls a gun on Jim. Jim pulls out his gun and shoots Frank. Self-defense? Difficulty here is that although Jim was the initial aggressor, he used non-deadly force. When Frank pulled out the gun it escalated to deadly force so there’s a new crime now so Jim would be able to use self-defense. Tricky because statute says you do not have self-defense if you are the initial aggressor. The answer is maybe, it depends. A question is are the police allowed to use disproportionate deadly force.

MPC drafters position was that any culpability which arises from a mistaken belief in the need to use [deadly] force should be no greater than the culpability such a mistake would give rise to if it were made with respect to an element of a crime. Under MPC Section 3.04, if a person mistakenly believed that they were justified in using deadly force, if the belief were recklessly or negligently formed, the person could be convicted of the homicide requiring only a reckless or negligent mens rea. MPC test is wholly subjective; differed from law in most states by its omission of any requirement of reasonableness. NYPL Section 35.15 chose to use a single statutory section which would provide either a complete defense or no defense. Drafters of NYPL crucially inserted word “reasonably” before “believes.” Plurality agreed that drafters of NYPL 35.15 evinced a legislative intent to conform to the subjective standard in MPC. However, the Court of Appeals finds that if this had been their intent, drafters of NYPL 35.15 would have simply used the language from MPC 3.04.

Self-defense and defense of others: NYPL Section 35.15 Justification; use of physical force in defense of a person. (1) A person may, subject to the provisions of subdivision two, use physical force upon another person when and to the extent he or she reasonably believes such to be necessary to defend himself, herself or a third person from what he or she reasonably believes to be the use or imminent use of unlawful physical force by such other person, unless: (a) The latter’s conduct was provoked by the actor with intent to cause physical injury to another person; or (b) The actor was the initial aggressor; except that in such case the use of physical force is nevertheless justifiable if the actor has withdrawn from the encounter and effectively communicated such withdrawal to such other person but the latter persists in continuing the incident by the use or threatened imminent use of unlawful physical force; or (c) The physical force involved is the product of a combat by agreement not specifically authorized by law. (2) A person may not use deadly physical force upon another person under circumstances specified in subdivision one unless: (a) The actor reasonably believes that such other person is using or about to use deadly physical force. Even in such case, however, the actor may not use deadly physical force if he or she knows that with complete personal safety, to oneself and others he or she may avoid the necessity of so doing by retreating; except that the actor is under no duty to retreat if he or she is: (i) in his or her dwelling and not the initial aggressor; or (ii) a police officer or peace officer or a person assisting a police officer or a peace officer at the latter’s direction, acting pursuant to section 35.30; or (b) He or she reasonably believes that such other person is committing or attempting to commit a kidnapping, forcible rape, forcible criminal sexual act or robbery; or (c) He or she reasonably believes that such other person is committing or attempting to commit a burglary, and the circumstances are such that the use of deadly physical force is authorized by subdivision three of section 35.20.

State v. Wanrow (Washington 1977) (Native American woman, child molester neighbor)

RULE: the justification of self-defense is to be evaluated in light of all circumstances known to the defendant, including those know substantially before the killing.

Facts: Yvonne Wanrow convicted of second degree murder. Wanrow’s two children were staying with Ms. Hooper. Months before, Hooper’s 7 year old daughter had got a venereal disease but had not told her mother who had raped her. Wanrow’s son came in and said a man had tried to pull him off bike and take him into a house. Minutes later William Wesler, who was probably mentally ill, appeared on the porch and said through the door I didn’t touch the kid, I didn’t touch the kid. Hooper’s daughter saw Wesler and told her mother that was the man who had molested her. Hooper’s landlord saw Wesler leaving and told Hooper that Wesler had tried to molest a boy who used to live in her house. Hooper called the police. Police said they couldn’t arrest Wesler until Monday morning. Fah suggested Hooper get a baseball bat. Cop said yes but wait until he gets into the house before you hit him with it. Two days before the shooting someone had tried to get into Hooper’s bedroom and slashed the window screen. Hooper called Wanrow and told her what was up and asked her to stay the night. Wanrow’s sister and brother-in law Chuck Michel also went to stay over. 4 adults 8 children. Did not sleep. At 5 AM Michel went to Wesler’s house and accused him off molesting children, then brought him back to Hooper’s house and let him in. Not good. Wanrow went to the door looking for Michel. Turned around, saw Wesler, and shot him. Wanrow convicted of second-degree murder. In appeal, asks for charges to be dismissed because of jury was erroneously instructed to consider only those acts and circumstances occurring “at or immediately before the killing.” (544). Judgement: Conviction reversed, case remanded for a new trial. Notes from class: it could factor in that Wanrow knew that the decedent was dangerous to children; reasonable woman in this situation a woman knowing the decedent’s history

Notes: Objective standard, but allowed the jury to consider a person who knew what she knew in the circumstances. On page 545 the court refers to the jury instruction where the jury was to factor in not only the circumstances of the crime but also that the jury should bring in considerations of the d’s perceptions which “were the product of our nation’s ‘long and ….” – is the court trying to introduce a reasonable woman standard? And is this standard fair or does it ocnsisst in a higher standard for women? Reasonable person. What does the court hold about time? About a person’s gender? About wanrow’s native American culture? The court rejected that her native American identity. Question is could she use the force as she knew the circumstances; where her experience factors in is how much force can she use that would be reasonable; it would affect the amound of force she would be able to use, but wouldn’t necessarily change what she can reasonably do. The jury would make these detrminations of reasonableness

Self-defense of battered spouse syndrome

State v. Norman (North Carolina, 1988) (JT Norman physically and psychologically abused his wife and forced her to prostitute herself every day. On the day he died he had been beating his wife all day. His wife Norman went to her mother’s house, got a gun, returned to her house, loaded the gun and shot him twice in the head while he slept.)

RULE: With the battered spouse there can be, under certain circumstances, killing of a passive victim that does not preclude the defense of self-defense. (555) To determine whether a homicide was self-defense, both subjective and objective standards are to be applied, including the inability of a defendant to withdraw from the hostile situation and the vulnerability of a defendant. (554)

Holding: Self-defense admitted. “The defendant’s act was not without the provocation required for … self-defense [and] the defendant did not use more force than reasonably appeared necessary to her under the circumstances to protect herself from death or great bodily harm” (555)

State v. Norman (North Carolina, 1989) (A year later) (Court of Appeals granted new trial citing as evidence of the trial court’s refusal to submit a possible verdict of acquittal by reason of self-defense. Judgment: reversed)

RULE: Even when there is BWS, an actual attack or threat of attack by the husband at the moment the wife uses deadly force is required to justify self-defense.

Reasoning: The Court finds that the evidence of BWS does not support a finding that the D killed her husband “due to a reasonable fear of imminent death or great bodily harm, as is required before a defendant is entitled to jury instructions concerning self-defense.” Court found that (1) Evidence showed that the threat was not imminent (“All” of the evidence showed that the D had “ample time and opportunity to resort to other means of preventing further abuse of her husband.”); (2) D’s “speculative beliefs concerning her remote and indefinite future” showed that she did not believe threat was imminent (556-7); (3) As a matter of policy, if a person who kills their spouse without immediate provocation can recourse to the defense of self-defense, women would kill their husbands all the time. (556-7)

Battered spouse defense is not a defense; the defense attorneys took bsd and took the self-defense defense and used it with the expert testimony to support the claim that she reasonably believed that her husband posed an imminent deadly threat to her person. There was enough for the jury to weigh the expert testimony to derernmine if she reasonabley believed that threat was imminent.

Note: Attorneys often prefer to try to make an argument under self-defense because EED is a partial defense – it would just reduce the crime to manslaughter. Another reason is that self-defense is a justification defense; the burden of proof is on the prosecution; because saying someone is justified is given more weight than if you are saying someone is excused; a policy reason for trying to make the argument for … There are still critiques of this defense from other perspectives – the successful woman as opposed to the a victim – scholars have argued that – in some ways its progressive to bring up these arguments but there are also questions of who the law excludes.

Hypos & policy

• Withdrawal
• Necessity
• Retreat
• Castle Doctrine
• Proportionality
• Imminency

State v. Dill (LA 1984) (Exchange of words; d got out of car and shot decedent; Car doesn’t count for castle doctrine because car can drive away. If you can retreat with complete safety. If they could have driven away safely then thy would be required to retreat.

Both MPC and NYPL use this retreat requirement; lots of other states, such as Florida, do not have a retreat requirement. In NY it is to safeguard the sanctity of life; it is only a requirement in situations where there is deadly force; Zimmerman; Trayvon Martin. In Trayvon Martin case, initial aggressor maybe but following Trayvon might not have been an initial act. The castle exception is the exception to the retreat doctrine; the MPC 3.04.

If both people live in same house and domestic violence situation neither have to retreat. Definition of dwelling is where you actually live but depends on jurisdiction; if you are a tenant of a hotel for a night you could make an argument. If somebody lightly shoves you you probably can’t use deadly force; the other requirement is that the use of deadly force is imminent; if I say I’m going to punch you tomorrow you can’t punch me today to prevent that. George Bush rule? Yeah. Would have done better if they had used this before going to war. The only way that you can know that something is imminent is if it’s about to happen.

The MPC doesn’t use the word “imminent.” It uses “immediately necessary;” if you believet he use of force is immediately necessary to prevent …

Hypo: Page 534. Two persons speeding through the desert, one person says I’ll go up ahead and poison the well; the next day; NYPL would not see murdering the person who is going to poison the well self defense because no imminent danger; but if only chance to stop the person from poisoning the well then maybe justified; is poisoning a well deadly force?

Defense of others

People v. Kurr (Michigan, 2002) (Kurr was sixteen or seventeen months pregnant. Following an argument with her boyfriend Antonio Peña, he punched her in the stomach twice. Kurr warned him not to hit her again because she was carrying his babies. Peña came towards her again and she killed him by stabbing him in the chest.)

RULE: in Michigan, the defense of others theory is admissible in cases where a D kills an aggressor to defend an unviable fetus or embryo when the D reasonably believes that the decedent is threatening death or great bodily harm to the embryo or unviable fetus.

Defense of others in NYPL 35.15 subsection 2, “third person” – in ny you can use deadly force to defend a person and you can use non-deadly force to defend a third person – so we have to look at the definition of a “person” in the penal law. If we look at homicide in section 125.25 … of NYPL – a human being is a person who was born and is alive. Section 125.25 says definition only for this statute; MPC does exclude fetuses from definition of person.

Hypo: Suppose somebody comes along and sees prof M is threatening to use unlawful force against prof k – third person steps in to stop her – but turns out that prof k started the fight; in ny we DON’T use the alter ego rule (BUT ANALOGIZE - say that iin other jurisdictions they look at the situation from the shoes of the person in peril); a person aiding another person only has the right of self defense to the extent that the v has the same right to self-defense of the person they are defending.

Alter ego rule

NY does not have the alter ego rule; NY looks at what the person reasonably believes. Policy: If you want people to help each other, you should give them a good defense

MPC Section 3.05. Use of Force for the Protection of Other Persons. (1) Subject to the provisions of this Section and of Section 3.09, the use of force upon or toward the person of another is justifiable to protect a third person when: (a) the actor would be justified under Section 3.04 in using such force to protect himself against the injury he believes to be threatened to the person whom he seeks to protect; and (b) under the circumstances as the actor believes them to be, the person whom he seeks to protect would be justified in using such protective force; and (c) the actor believes that his intervention is necessary for the protection of such other person. (2) Notwithstanding Subsection (1) of this Section: (a) when the actor would be obliged under Section 3.04 to retreat, to surrender the possession of a thing or to comply with a demand before using force in self-protection, he is not obliged to do so before using force for the protection of another person, unless he knows that he can thereby secure the complete safety of such other person; and (b) when the person whom the actor seeks to protect would be obliged under Section 3.04 to retreat, to surrender the possession of a thing or to comply with a demand if he knew that he could obtain complete safety by so doing, the actor is obliged to try to cause him to do so before using force in his protection if the actor knows that he can obtain complete safety in that way; and (c) neither the actor nor the person whom he seeks to protect is obliged to retreat when in the other’s dwelling or place of work to any greater extent than in his own.

MPC Section 1.13 General Definitions. (8) “person,” “he” and “actor” include any natural person and, where relevant, a corporation or an unincorporated association;

MPC Section 3.04. Use of Force in Self-Protection. (1) Use of Force Justifiable for Protection of the Person. Subject to the provisions of this Section and of Section 3.09, 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 other person on the present occasion. (2) Limitations on Justifying Necessity for Use of Force. (a) The use of force is not justifiable under this Section: (i) to resist an arrest which the actor knows is being made by a peace officer, although the arrest is unlawful; or (ii) to resist force used by the occupier or possessor of property or by another person on his behalf, where the actor knows that the person using the force is doing so under a claim of right to protect the property, except that this limitation shall not apply if: (1) the actor is a public officer acting in the performance of his duties or a person lawfully assisting him therein or a person making or assisting in a lawful arrest; or (2) the actor has been unlawfully dispossessed of the property and is making a re-entry or recaption justified by Section 3.06; or (3) the actor believes that such force is necessary to protect himself against death or serious bodily harm.(b) The use of deadly force is not justifiable under this Section unless the actor believes that such force is necessary to protect himself against death, serious bodily harm, kidnapping or sexual intercourse compelled by force or threat; nor is it justifiable if: (i) the actor, with the purpose of causing death or serious bodily harm, provoked the use of force against himself in the same encounter; or (ii) the actor knows that he can avoid the necessity of using such force with complete safety by retreating or by surrendering possession of a thing to a person asserting a claim of right thereto or by complying with a demand that he abstain from any action which he has no duty to take, except that: (1) the actor is not obliged to retreat from his dwelling or place of work, unless he was the initial aggressor or is assailed in his place of work by another person whose place of work the actor knows it to be; and (2) a public officer justified in using force in the performance of his duties or a person justified in using force in his assistance or a person justified in using force in making an arrest or preventing an escape is not obliged to desist from efforts to perform such duty, effect such arrest or prevent such escape because of resistance or threatened resistance by or on behalf of the person against whom such action is directed. (c) Except as required by paragraphs (a) and (b) of this Subsection, a person employing protective force may estimate the necessity thereof under the circumstances as he believes them to be when the force is used, without retreating, surrendering possession, doing any other act which he has no legal duty to do or abstaining from any lawful action. (3) Use of Confinement as Protective Force. The justification afforded by this Section extends to the use of confinement as protective force only if the actor takes all reasonable measures to terminate the confinement as soon as he knows that he safely can, unless the person confined has been arrested on a charge of crime.

MPC Section 3.09. Mistake of Law as to Unlawfulness of Force or Legality of Arrest; Reckless or Negligent Use of Otherwise Justifiable Force; Reckless or Negligent Injury or Risk of Injury to Innocent Persons. (1) The justification afforded by Sections 3.04 to 3.07, inclusive, is unavailable when: (a) the actor’s belief in the unlawfulness of the force or conduct against which he employs protective force or his belief in the lawfulness of an arrest which he endeavors to effect by force is erroneous; and (b) his error is due to ignorance or mistake as to the provisions of the Code, any other provision of the criminal law or the law governing the legality of an arrest or search. (2) When the actor believes that the use of force upon or toward the person of another is necessary for any of the purposes for which such belief would establish a justification under Sections 3.03 to 3.08 but the actor is reckless or negligent in having such belief or in acquiring or failing to acquire any knowledge or belief which is material to the justifiability of his use of force, the justification afforded by those Sections is unavailable in a prosecution for an offense for which recklessness or negligence, as the case may be, suffices to establish culpability. (3) When the actor is justified under Sections 3.03 to 3.08 in using force upon or toward the person of another but he recklessly or negligently injures or creates a risk of injury to innocent persons, the justification afforded by those Sections is unavailable in a prosecution for such recklessness or negligence towards innocent persons.

Deadly force may be used when arson, attempted burglary, and burglary because these are harms to people. See handout that breaks down the statute a bit 35.20(1) distinguishes between when any person can use it or any person cannot. THIS STATUTE WILL NOT BE ON THE EXAM!!! IT’S TOO COMPLICATED, SAYS PROF K

Police Use of Force in Making Arrest or Preventing Escape: NYPL Section 35.30 Note that statute for police use of force is similar to self-defense statute (focusing on reasonable belief), although allows defense for arrest and preventing escape. When are police given the defense when using deadly force? Can they use deadly force for all arrests? Statute covers the criminal defense, but there are other issues, including constitutional issues regarding police use of force. The burden of proof is on the prosecution.

Nelson v. State – I DIDN’T READ THIS! SWAMP. WHY DIDN’T I READ THIS???? Page 580 – drat. Read it. Then watch video. Jury instructed on defense of necessity.

Necessity NYPL 35.05: Conduct justified if conduct is:

• a. Necessary as an emergency measure
• b. To avoid an imminent public or private injury which is about to occur
• c. By reason of a situation occasioned or developed through no fault of the actor
• d. And which is of such gravity that, according to ordinary standards of intelligence and morality, the desirability and urgency such injury clearly … (see statute)

Hypo: Prof K going to negligently start a fire. Town will burn down. Only way to create a fire break is to burn down prof M’s house. K accused of arson. Would he have defense of necessity in NY? NO, because c – “no fault of the actor” The criticism of the law is that maybe person not having recourse to necessity might deter person from saving houses from fire he had caused.

MPC 3.02

1. Does it require “imminence” like NY? No
2. “clearly outweigh” like NY? Hint: “greater than”
3. Does it require “no fault of the actor” like NY? MPC is a little different – says when tha actor was reckless or negligent does not have necessity defense if the law requires negligence or recklessness. So if you were accused of intentional arson, MPC would allow necessity defense, which (I think) would mitigate intentional arson to reckless arson. If you were accused of reckless arson, you wouldn’t have the necessity defense. Might be easier if you are talking about one house burning down or twenty houses. Ordinary standard is the objective reasonable person standard.

If people demonstrating for climate change – blocking traffic – civil disobedience. Why no necessity defense? Because climate change not imminent. Protesting against police killings of Black people, we can argue necessity because threat is imminent.

Civil disobedience for example Black peaceful sit ins at lunch counters where Blacks were prohibited. Peaceful protest. Generally didn’t raise necessity defense because were raising awareness of wrongness of law.

Someone might break a trespassing law to protest a nuclear power plant; they are not saying that the trespassing law is bad; they are breaking it to raise awareness of danger of nuclear power plant. In civil disobedience note that NY has a provision in 35.05 “the necessity and justifiability of such conduct may not rest upon considerations, pertaining only to the morality and adviseablity of the … app to a part.

So NY has a provision that says you cannot use necessity defense in the case that you are protesting the statute or law itself. Why? Because the idea is that if you want the law changed you should go through the political process as opposed to breaking the laws to protest. This is often not feasible because you want to bring attention to the law.

Necessity

Necessity (NYPL § 35.05 (2)) Under NYPL Section 35.05, conduct which would otherwise constitute an offense is justifiable and not criminal when this conduct is necessary as an emergency measure to avoid an imminent public or private injury which is about to occur by reason of a situation occasioned or developed through no fault of the actor, and which is of such gravity that, according to ordinary standards of intelligence and morality, the desirability and urgency of avoiding such injury clearly outweigh the desirability of avoiding the injury sought to be prevented by the statute defining the offense in issue.

People v. Goetz (New York 1986) (four kids in subway train. Goetz entered subway car carrying a loaded gun. Kids ask him for $5. Goetz shoots them four times. Shot Canty in the chest, Allen in the back, Ramseur in the arm and left side, Cabey in the side, severing his spinal cord and resulting in paralysis and some degree of brain damage. Goetz ran away. Surrendered to the police in Concord ten days later. Stated that he believed he was going to be robbed and/or maimed, and that he intended to “murder [the four youths], to hurt them, to make them suffer as much as possible.”) (529)

Rule: In New York, a person is justified in using deadly force in self-defense or defense of another only if she objectively and reasonably believes an attacker is either (1) using or about to use deadly force or (2) committing or attempting to commit a kidnapping, forcible rape, forcible sodomy, or robbery.

Reasoning: Because Goetz stated that he believed he was going to be maimed and/or robbed, the prosecution charged the justification defense. A grand juror asked for clarification on “reasonably believes.” The prosecutor responded by instructing the jurors to determine “whether the defendant’s conduct was that of a reasonable man in the defendant’s situation.” (530) The prosecutor’s use of “a reasonable man” was the grounds for dismissal. Because Section 35.15 says “he reasonably believes” the test should be “reasonable to him” not to a reasonable man. Goetz’s defense was that he had the subjective belief that he was in imminent danger; the defense said that under MPC – if the jury believed that goestz really believed that he was in danger but his belief was unreasonable, he could be convicted of negligence In NY if you are not reasonable you do not have self-defense, period. If you are not reasonable you do not have self defense for any crime. Under MPC if the belief is unreasonable the mens rea requirement can be reduced to negligence or recklessness. The court in Goetz says it is a reasonable person standard because the statute has reasonably believes. Goetz’s lawyer is arguing that since the statute does not say that it is a reasonable person, but a person who reasonably believes, Goetz is not being held to the standard of a reasonable person (by objective standards of reasonableness) Goetz’s defense is that past experience, physical characteristics. What were the jurors thinking – we don’t really know – maybe saying that he was more out of his mind than acting in self defense

Hypo: If Prof K were paranoid about Prof M shooting him, and Prof M pulled out a toy gun and he freaked out and killed her.

Queen v. Dudley & Stephens (Here we’re seeing some of the opinion that we didn’t see back then. Here we are looking at different aspect – necessity)

RULE: Common law principle that necessity cannot be used as a defense for murder. Under the common law, necessity and duress were not defenses to murder.

NY and MPC What about if Dudley and Stephens did this in NY. There is no specific language in NYPL 35.05 that serves as a blanket prohibition of applying necessity to murder. Nor does MPC. The challenge would be “clearly outweigh” – Dudley and Stephens would have argued 3 people or 1 person.

Hypo: Suppose you have some mountaneers climbing a mountain. One of the ppl loses footing and falls, but tied together. Person who fell is dangling. Can only hang on for so long. Will pull person on cliff down. They have a knife. So in this situation should this person cut the rope? If the person on cliff cuts the rope should they be accused of knowingly causing the death. Yes. Necessity? Yes.

Hypo: Trolley heading towards five people. One person on fork. Kills one person.

Hypo: Doctor. Going to do kidney transplant. Has no kidney. Prof K walks in for annual physical. Doctor puts him to sleep and harvests heart and kidney, saves ten people who would otherwise have died. No difference between doctor and trolley driver.

Excuse Defenses

Duress

Duress: NYPL Section 40.00 Duress. (1) In any prosecution for an offense, it is an affirmative defense that the defendant engaged in the proscribed conduct because he was coerced to do so by the use or threatened imminent use of unlawful physical force upon him or a third person, which force or threatened force a person of reasonable firmness in his situation would have been unable to resist. (2) The defense of duress as defined in subdivision one of this section is not available when a person intentionally or recklessly places himself in a situation in which it is probable that he will be subjected to duress.

In New York, the defense of duress is an affirmative defense. In an affirmtive defense, the burden of proof is on the defendant by a preponderance of evidence (if it is just a defense as opposed to an affirmative defense, the prosecution has the burden of disproving the defense by proving by a preponderance of evidence that certain conditions do not exist).

U.S. v. Contento-Pachon (Court talks about differences between necessity and duress)

Rule, sorta: Necessity negates actus reus; duress negates mens rea. If duress actually negates mens rea what do we actually not need? We would not need a defense. Because there would not be a crime.

Hypo: If someone straps a bomb to K’s body and sends him into a bank to rob the bank, prof K has the mens rea to rob the bank. We are saying in necessity and duress that if someone is threatened although they have the mens rea they are excused. So the distinction between actus reus and mens rea is really difference between excuse and justification – how necessity and duress work; not true that – we’re condoning their actions so they are justification – so necessity is justification and duress is excuse. ALSO, necessity usually involves forces of nature; duress is usually a human threat. Necessity is usually also choosing the lesser of two evils which isn’t the case of duress.

Hypo: Bailey negligently puts himself in a situation where dangerous drug dealers coerce him into transporting drugsNYPL 40.00 ( c ) says that if person recklessly puts themselves in proximity to dangerous drug dealers – recklessly places in a situation in which it is probable that will be subjected to duress, does not have defense of duress. Defense to murder? Duress – should it be used for murder?

People v. Anderson (Here, the question is can the d possibly use duress as a defense to murder. Court holds that no. cannot use duress as a defense for murder. Why not? Duress is only for certain crimes. What wrong with allowing it to be a defense for murder acc to the court? Court says where do you draw the line, we can’t let people get away with killing

RULE sorta: law should require ppl to choose to resist rather than kill an innocent person” Court also rejects reducing murder to a lesser crime; court says common law still stands.

MPC does allow duress as a defense to homicide; NYPL also allows duress as a defense to homicide; And also other countries COMMON LAW DOES NOT ALLOW DURESS AS A DEFENSE TO HOMICIDE

Interesting is concurring dissenting opinon agree with court that it doesn’t apply but provides a hypo, saying that it should be available in some situations where if robbers go into someone car and force him to drive very fast and he kills someone. The dissent says the driver should have the defense of duress in this situation. Driver charged with recklessness with depraved indifference. Even if duress defense not applicable, not necessary, because defense could be that the driver wouldn’t have the mens rea of the crime.

Inchoate Crimes: Attempt

Big Rule: Inchoate crimes are a type of crime completed by taking a punishable step towards the commission of another crime. The basic inchoate offenses are attempt, solicitation, and conspiracy. Except for conspiracy, inchoate offenses merge into the attempted (or “target” crime). This means that if the defendant is prosecuted for the attempted crime, attempt and solicitation cannot be charged as well. There are two types of attempt crimes: (1) incomplete attempt, where a person does some of what is required to commit the crime but not everything, and (2) complete attempt, where a person does everything they need to do to complete the crime but something goes wrong so they don’t complete the crime (i.e. they fire and miss). Under the Model Penal Code, the attempt versions of more severe crimes are punished less severely. Under New York law, it is the other way around, where attempts to commit less severe crimes are punished more severely than attempts to commit severe crimes such as murder. This is largely because of New York’s drug laws enacted with the 1994 Crime Bill.

Different jurisdictions have different tests to determine whether an attempt is incomplete or complete. Common law uses the Last Act Test, which rules that a person is only guilty of attempt if they do the last act necessary for the crime (i.e., if they point a gun and pull a trigger they will be guilty of attempt but if they don’t pull the trigger, they won’t). New York uses the Dangerous Proximity Test, which rules that an act amounts to an attempt when it is so near to the result that the danger of success is very great. Many jurisdictions use the res ipsa loquitur (or “unequivocality”) test where, under its strict version, an act only constitutes an attempt if the actor’s specific criminal purpose is shown from the actor’s conduct, without considering any statements the actor may have made before, during or after the incident. The Model Penal Code uses the substantial steps test, which has two parts. First, the defendant must take substantial steps toward completion of the crime. Second, the defendant’s actions must be “strongly corroborative of the actor’s criminal purpose.” (Model Penal Code § 5.01(2)). In some jurisdictions, attempt crimes have the affirmative defenses of (1) voluntary and complete renunciation, and (2) abandonment, where the defendant avoided the commission of the attempted crime attempted by abandoning it.

Shorter rule: There are two kinds of attempt crimes. Incomplete attempt, where a person does some of what is required to commit the crime but not everything, and complete attempt, where a person does everything they need to do to complete the crime but something goes wrong so they don’t complete the crime (i.e. they fire and miss). In New York, there is no definition of attempted robbery separate from the robbery statute, no separate definition of attempted murder, and so on, so the courts have to look at the attempt statute (NYPL Section 110.00) together with the statute of the attempted crime. In NYPL 110.00, which states “a person is guilty of an attempt to commit a crime when, with intent to commit a crime, he engages in conduct which tends to effect the commission of such crime,” the mens rea is intent. The actus reus is “engage in conduct which tends to effect the commission of such crime.” If the underlying crime is not a crime which requires intent, a defendant cannot be convicted of attempting a result crime which itself does not require intent towards that result.

NYPL Section 110.00 Attempt to commit a crime. A person is guilty of an attempt to commit a crime when, with intent to commit a crime, he engages in conduct which tends to effect the commission of such crime.

NYPL Section 110.05 Attempt to commit a crime; punishment. An attempt to commit a crime is a: (1) Class A-I felony when the crime attempted is the A-I felony of murder in the first degree, aggravated murder as defined in subdivision one of section 125.26 of this chapter, criminal possession of a controlled substance in the first degree, criminal sale of a controlled substance in the first degree, criminal possession of a chemical or biological weapon in the first degree or criminal use of a chemical or biological weapon in the first degree;

110.10 Attempt to commit a crime; no defense. If the conduct in which a person engages otherwise constitutes an attempt to commit a crime pursuant to section 110.00, it is no defense to a prosecution for such attempt that the crime charged to have been attempted was, under the attendant circumstances, factually or legally impossible of commission, if such crime could have been committed had the attendant circumstances been as such person believed them to be.

The merger doctrine – different from the felony murder merger we talked about The merger doctrine for attempt crimes is different from the merger that courts apply in felony murder cases. The merger doctrine in attempt crimes provides that the crime of attempt to commit a crime cannot be merged with the completed crime. In New York this merger only applies to murder (i.e. a person cannot be convicted of attempted murder and murder). In New York, a person can be convicted of conspiracy and solicitation and either the attempted crime and the completed crime. New York takes a more punitive approach than the Model Penal Code and common law, where the merger applies to attempt, conspiracy, and solicitation. MPC and common law consider that once the crime is completed, two charges are unnecessary.

Steps of analysis

MENS REA MENS REA MENS REA

You need:

1. Intent to commit the underlying crime
2. The mens rea for the Attendant Circumstances of the underlying crime (if there are any)

NOTE: It’s NOT possible to attempt a reckless/negligent result crime. You need:

1. Intent that another person commit the crime
2. Intent to solicit, request, command, importune or otherwise attempt to cause such other person to engage in such conduct

(presume that mens rea term modifies everything in the statute) You need:

1. The mental culpability required for the underlying crime
2. Intent to solicit, request, command, importune, or intentionally aid such person to engage in such conduct

NOTE: It’s possible to be an accomplice of a reckless/negligent result crime.

ACTUS REUS ACTUS REUS ACTUS REUS

Required Actus Reus elements:

1. engages in conduct which tends to effect the commission of such crime. (USE TESTS)
2. voluntary act Required Actus Reus elements: (1) solicits, requests, commands, importunes or otherwise attempts to cause such other person to engage in such conduct; (2) voluntary act
3. need to show the other person committed the underlying crime
4. Affirmative Defense: Renunciation

People v. Gentry (1987) (Couple drinking heavily, argument, man doused woman with gasoline, woman said she went to kitchen and accidentally set herself on fire.)

Rule (kinda sorta not really): Under Illinois law, a person commits the crime of [attempt] murder where he kills an individual if … he intends to kill or do great bodily harm to that individual; etc… (They were arguing that strong probability of great bodily harm should be enough for attempted murder)

Hypo: Prof k with bow and arrow, blindfolded in classroom, shoots bow and arrow at target but misses target but instead arrow kills prof M. Could be convicted of homicide with recklessy mens rea (2nd degree manslaughter, in common law depraved heart murder, in ny depraved indifference smothering). If prof M only got wounded could he be convicted of attempted 2nd degree manslatugher? No. Because attempt crimes require the intent to commit the crime. Prof k was reckless but didn’t have the intent to kill so he can’t be convicted of intent to commit manslaughter. So if we use that for 2nd degree manslaughter or reckless manslaughter prof k would have had to have the intent the death of another person. You have to have the intent to commit the underlying crime.

No attempted felony murder: Bruce v. State (1989) (Two people enter shoe store – point gun at shoe store owner – say we are going to kill you – store owner ducked, got shot in stomach – didn’t die. Prosecutor charged with attempted felony murder. Court said no. There’s no such crime. The court reasoned that it doesn’t make sense because if attempted felony murder was a crime, anyone committing a crime where someone dies, even from a heart attack, ppl could always be convicted of attempted felony murder all the time) Attempted reckless endangerment?

Hypo: Go back to hypo of prof k blindfolding himself to do target practice. Thinks he can blindfold himself and goes to drive his car. Hits somebody and kills them. manslaughter. If prof k does not hit anyone, what crime can he be convicted of? Reckless endangerment. Goes to car but car doesn’t start. Can he be charged with attempted reckless endangerment? YES Why yes? Because attempted is intent to commit the underlying crime. Reckless endangerment is Recklessy engages in conduct that creates a substantial risk of serious physical injury to another person. Prof k had the intent to recklessly drive his car.

RULE: The homicide requires recklessness with respect to result, while reckless endangerment requires recklessness with regard to conduct.

It makes sense to say that prof K intented to engage in reckless conduct, but it doesn’t make sense to say that he intended to recklessly cause a result. If it’s a result crime, the result has to be an intentional result crime and the d has to have that intent. The problem is created because you’re adding the intent statute in front of the other

So we talked about conduct and result, but remember there’s also attendant circumstances. How does one determine the mens rea for attendant circumstances in an attempt? NYPL Section 125.27(1) first degree murder when “with intent to cause ….police officer”

Hypo: Prof M kills prof k. prof k is an undercover police officer but prof M didn’t know that. Prof M guilty? No. But suppose prof k sometimes wore a badge and a reasonable person would have known police officer. Guilty? Yes. But suppose prof M tried to kill prof k knowing he was a police officer? Does someone have to intend the attendant circumstances? No. the mens rea for the attendant circumstance stays the same. Whatever mens rea is required for the actual crime is the same in both situations – in situation of attempt to commit the crime and in situation of committing the crime. So if Prof M tried to kill you knowing you were a police officer but didn’t manage to kill you, she could be convicted of attempted murder in the first degree? YES. How do you draw the line when the person has done some preparation for a crime?

The Mannuano case

Last act test (only completed attempts)

“he has done all that is within his power to do, but has been prevented by intervention from outside” (this came from English common law)

So if prof M pulled out a gun and shot at prof k but gun didn’t fire that would be sufficient for the actus reus. Other courts adopted different tests. Four most common:

Commonwealth v. Peaslee (1901) (man stacked up combustibles in building and left candle and paraffin nearby, then was going to get a boy to set it alight but changed his mind)

Is preparation enough for actus reus of attempt? Not here, because he was not close enough to completing the crime.

FOR OUTLINE (??!): Felony murder should recognize that the attempted versions of some crimes should be the basis for felony murder. Attempted robbery is a felony so may be the basis for felony murder; attempted escape is also a felony – attempted crime – crimes which are specified – Second degree murder subsection 3 – if he commits or attempts to commit a burglary, robbery etc. in NY the attempt is defined as the attempt to commit a crime –

Attempt mens rea

Rule: If the underlying crime is not a crime which requires intent – look at the handout on TWEN – you can’t be convicted of attempting a result crime which itself does not require intent towards that result.

Second degree manslaughter is recklessly causeing someone’s death – we do not have intended second degree manslaughter because there is no intent in the statute – you can’t intend to recklessly cause the death – but for crimes which do not require intent towards the result you cannot have attempt to commit the crime

You cannot have attempted felony murder because felony murder is strict liability; there is no mens rea; no intent

First degree murder requires knowing or should have known – so you can have attempted first degree

Attempt actus reus tests

• Last act test – only guilty of attempt if they do the last act necessary for the crime; if they point a gun and pull a trigger they will be guilty of attempt but if not not guilty of attempt
• Dangerous proximity test
• Unequivocality (res ipsa loquitur) test
• MPC (substantial step test)

Is preparation enough for actus reus of attempt? All of these tests are trying to determine where to draw the line – where should someone be guilty up to that point – at what point should someone be guilty of that crime – innocent ppl should not be punished. For example if prof k buys a gun, should he be guilty of attempted murder?

McQuirter case and racial bias p. 751 (She buys a gun, drives car, drives to v’s house, goes buys a newspaper; reads it; goes out of car with gun; is that enough? She puts her finger on trigger; is that enough? Daughter comes out and hugs father; woman puts gun down. Should she be guilty of attempted murder?)

Question is here no harm has been done; are they deserving of punishment? Are attempt crimes result crimes? No, they are incomplete. So, there are no… McQuirter – p 751 – troubling that the court has that much discretion. We have attempt crimes to prevent bad things happening.

Dangerous proximity test

People v. Rizzo Defendants had firearms, driving around in car looking for Rao. Is Rizzo guilty of attempted robbery? What test does the court apply? Dangerous proximity test. Did rizzo come very near to the completion of the crime? Court held that the conviction should be reversed because even though they planned to commit a crime he did not come dangerously close to committing it.

Dangerous proximity test rule: An act amount to an attempt when it is so near to the result that the danger of success is very great

In an attempt crime, we have actus reus, we have mens rea. Tends to affect the commission of the crime. If youre analyzing rizzo’s culpability you look at actus rea all elements, and if in ny you would do the dangerous proximity test. To establish the actus reus, you have the ar if the person

Hypo: p. 776 (1) (B) D provided burglars with diagram of warehouse – would d be guilty of attempted robbery? Attempted grand larceny because he intended to get proceeds of insurance proceeds? Could argue both ways. D still had several steps to do in order to get insurance proceeds

People v. Miller Dangerous proximity case? Def stronger ccase than rizzo – could be argued both ways. Ca applies a diff test; res ipsa loquitur test – the thing speaks for itself – court said no not guilty; only preparation Unequivocality test – acts must be unequivocal. The court said that Miller’s going into the rield with his gun did not clearly show that he intended to kill

Res ipsa loquitur (or unequivocality) test

RULE: Under strict version of the test, an act only constitutes an attempt if the actor’s specific criinal purpose is shown from the actor’s conduct, without considering any statements the actor may have made before, during or after the incident. MPC would say that this puts less reliance on confession, so convictions are not so much based on …

Girls – poison teacher – Prob didn’t come dang close

How did the statute change the law 781? Statute included a substantial step. Change the law to include that conduct include a substantial step toward the commission of the offense; so under the way the law was changed, - did they take a substantial step from the beginning? While dang proxi sees how close they got the mpc looks at how substantial a step they took towards s\commission of the crime

Model Penal Code Substantial Steps Test

The Model Penal Code developed the substantial steps test in response to the large variance between different jurisdictions in evaluating the criminal act element required for attempt. The substantial steps test is intended to clarify and simplify the attempt act analysis, to prevent arbitrary application. It is also a test that is more likely to result in a conviction because it classifies as “substantial” those acts the other tests might consider only “preparatory” (People v. Dillon, 2011).

The substantial steps test has two parts. First, the defendant must take substantial steps toward completion of the crime. As the Model Penal Code states, “[a] person is guilty of an attempt to commit a crime if…he…does…anything which…is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime” (Model Penal Code § 5.01(1)(c)). Second, the defendant’s actions must be “strongly corroborative of the actor’s criminal purpose” (Model Penal Code § 5.01(2)). To further elucidate the test, the Model Penal Code provides seven examples of actions that constitute substantial steps, as long as they are corroborative of the defendant’s intent. The seven examples are lying in wait; enticing the victim to go to the scene of the crime; investigating the potential scene of the crime; unlawfully entering a structure or vehicle where the crime is to be committed; possessing materials that are specially designed for unlawful use; possessing, collecting, or fabricating materials to be used in the crime’s commission; and soliciting an innocent agent to commit the crime (Model Penal Code § 5.01(2)).

MPC sec 5.01 – I absolutely have to watch this part of the class again

Commonwealth v. McCloskey (PA 1975) (D working in prison boiler room. Scaled a fence, cut another fence, then changed his mind and went back to work in boiler room. Alarm went off, guards found breach, charged with attempted prison breach. Found not guilty because - the majority says not guilty because only contemplating prison breach; not yet attempting; so no actus reus yet. If we’re talking about dangerous proximity test, maybe no actus reus; substantial factor probably would be found guilty.)

RULE: A defendant is not criminally liable for attempt if his plans never go beyond mere contemplation.

Concurring opinion says that here, there is no – they did do enough to do the actus reus and the mens rea of the crime, but in an attempt crime even if you do that you can have the affirmative defense of abandonment or renunciation of the crime. In common law there was no defense for abandonment, but the MPC was actually instrumental in getting a lot of jurisdictions to adopt this defense.

Renunciation and Abandonment

NYPL Section 40.10 (3): Renunciation Under section 110.00 for an attempt … it is an affirmative defense that, (1) Under circumstances manifesting a voluntary and complete renunciation of his criminal purpose, (2) The D avoided the commission of the crime attempted by abandoning his criminal effort and, if mere abandonment was insuffient to accomplish such avoidance, by taking further and affirmative steps which prevented the commission thereof.

What does “complete” mean (sec 40.10 (5)) – can’t mean oh im going to robb a different bank, or ill rob it tomorrow not today

What does “voluntary” mean? (sec 40.10 (5)) –

Policy: why don’t we punish someone who satisfies the elements of abandonment? From a retributive standpoint ….

Inchoate Crimes: Solicitation and Accomplice Liability

NYPL Section 100.00 (5th Degree Solicitation) (1) with intent that another person engage in conduct constituting a crime, (2) he solicits, requests, commands, importunes or otherwise attempts to cause such other person to engage in such conduct.

NYPL §20.00: Criminal Liability for Conduct of Another When one person engages in conduct which constitutes an offense, another person is criminally liable for such conduct when: acting with the mental culpability required for the commission thereof, he solicits, request, commands, importunes, or intentionally aids such person to engage in such conduct.

MPC SECTION 2.05. WHEN CULPABILITY REQUIREMENTS ARE INAPPLICABLE TO VIOLATIONS AND TO OFFENSES DEFINED BY OTHER STATUTES; EFFECT OF ABSOLUTE LIABILITY IN REDUCING GRADE OF OFFENSE TO VIOLATION (1) The requirements of culpability prescribed by Sections 2.01 and 2.02 do not apply to: (a) offenses which constitute violations, 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. (2) Notwithstanding any other provision of existing law and unless a subsequent statute otherwise provides: (a) when absolute liability is imposed with respect to any material element of an offense defined by a statute other than the Code and a conviction is based upon such liability, the offense constitutes a violation; and (b) although absolute liability is imposed by law with respect to one or more of the material elements of an offense defined by a statute other than the Code, the culpable commission of the offense may be charged and proved, in which event negligence with respect to such elements constitutes sufficient culpability and the classification of the offense and the sentence that may be imposed therefor upon conviction are determined by Section 1.04 and Article 6 of the Code.

MPC SECTION 2.06. LIABILITY FOR CONDUCT OF ANOTHER; COMPLICITY (1) A person is guilty of an offense if it is committed by his own conduct or by the conduct of another person for which he is legally accountable, or both. (2) A person is legally accountable for the conduct of another person when: (a) acting with the kind of culpability that is sufficient for the commission of the offense, he causes an innocent or irresponsible person to engage in such conduct; or (b) he is made accountable for the conduct of such other person by the Code or by the law defining the offense; or (c) he is an accomplice of such other person in the commission of the offense. (3) A person is an accomplice of another person in the commission of an offense if: (a) with the purpose of promoting or facilitating the commission of the offense, he (i) solicits such other person to commit it; or (ii) aids or agrees or attempts to aid such other person in planning or committing it; or having a legal duty to prevent the commission of the offense, fails to make proper effort so to do; or (b) his conduct is expressly declared by law to establish his complicity. (4) When causing a particular result is an element of an offense, an accomplice in the conduct causing such result is an accomplice in the commission of that offense, if he acts with the kind of culpability, if any, with respect to that result that is sufficient for the commission of the offense. (5) A person who is legally incapable of committing a particular offense himself may be guilty thereof if it is committed by the conduct of another person for which he is legally accountable, unless such liability is inconsistent with the purpose of the provision establishing his incapacity. (6) Unless otherwise provided by the Code or by the law defining the offense, a person is not an accomplice in an offense committed by another person if: (a) he is a victim of that offense; or (b) the offense is so defined that his conduct is inevitably incident to its commission; or (c) he terminates his complicity prior to the commission of the offense and (i) wholly deprives it of effectiveness in the commission of the offense; or (ii) gives timely warning to the law enforcement authorities or otherwise makes proper effort to prevent the commission of the offense. (7) An accomplice may be convicted on proof of the commission of the offense and of his complicity therein, though the person claimed to have committed the offense has not been prosecuted or convicted or has been convicted of a different offense or degree of offense or has an immunity to prosecution or conviction or has been acquitted.

State v. Cotton (D was in jail for sexual abuse, asked wife to ask daughter to not testify, gave letter to so else in jail, person in jail gave letter to law enforcement authorities.)

RULE: An uncommunicated solicitation is insufficient to constitute the offense of criminal solicitation.

Issue: if a d’s attempted communication does not reach the person soliciting, does it establish criminal solicitation? Under mpc 5.02 (“designed to effect”) yes. Mpc says if a person designed to commit a crime that is sufficient. In state v cotton, they say no, they left out mpc language; legislature meant not to follow mpc. Why doesn’t court follow mpc? Letter never got to daughter. It that solicitation? Does the NY statute appear to apply to a solicitation that does not reach the solicitee in the mail?) In NY, yes. If prof M attempted to solicit so – send letter – but letter wasn’t sent – if M had mens rea she is still guilty of solicitation. Does that make sense from a policy standpoint? Meh. Utilitarian: deterrence; retributive: bad thing so should be punished

Accomplices categories (common law)

Principals

• First degree (perpetrators) -Second degree (abettors)

Accessories

• Before the fact (inciters)
• After the fact (criminal protectors)

Hypo: If k and m go rob a bank, m goes in and robs bank, k waits in car and then drives m away. M is a first-degree principal. At the scene and doing crime. K is getaway driver. So at the scene. But not actually doing the elements of the crime (taking money by force). K is a second-degree principal. Prof robson gave them the plan of the bank and told them how to rob it, she’s an accessory before the fact. After robbery they came back to school, the dean gave them a hiding place and protected them, so dean is an accessory after the fact.

History: John Wilkes Booth did a killing. Mary Seurat helped plan the killing. After when Booth was running away he was helped by a doctor mudd. If Mudd knew what had happened, he was an accessory after the fact.

Accomplice after the fact from common law now generally constitutes a separate crime

Nypl 205.50 hindering a prosecution

“Accomplice” is NOT a crime itself. NYPL Section 20.00 crim liability for conduct of another (this statute is not a crime but a liability) “when one person engages in conduct which constitutes an offense, another person is criminally liable for such conduct: when, acccting with the mental ccuclpability required for the commission thereof, he solicits requests, commands, kmportunes, or intentionally aids such person to engage in such conduct” Actus reus: solicits, request, commands, importunes, or aids such person to engage in such conduct

Mens rea:

1. The mental culpability required for the underlying crime
2. Intentionally “solicits, requests, commands, importunes, or … aids such person to engage in such conduct.” the intent to solicit, request, command, importune with the mental culpability required for the commission [of the crime], or intentionally aids such person to engage in such conduct (mens rea term usually doesn’t modify things that went before, but here it makes sense that it does).

To determine the mental culpability required for the underlying crime, you look at the statute of the crime the principal is charged with; if the person meets the mens rea requirement for that statute, punished for that crime. So if k asked m to rob a bank, he could be convicged of solicitation AND of robbibng the bank – if m shot and killed so when robbing the bank, k could be convicted of solicitation, robbing a bank and murder.

State v. Hoselton: The court held that defendant was not guilty because he did not know that his friends were breaking and entering to commit robbery; therefore, he did not have the required intent to commit the robbery or aid in the commission of the robbery. Court clarified that lookouts are accomplices in the second degree but lookouts also have to have the mental culpability of the crime.

RULE: A defendant is not a principal in the second degree unless he participates in the crime while sharing the criminal intent of the principal in the first degree.

Hypos followingg Hoselten:

• A. if K believed that robbers went on boat to retrieve TV, K not guilty because no mens rea
• B. K helped them by honking the horn; guilty? No. no intent to commit crime.
• C. K’s friends did not ask K to do anything or told him they were going to rob property, but K wanted them to steal property (MR) and aided them by honking horn (AR). So in this situation he would be guilty as an accomplice.
• D. Same as C but when K honked horn friends didn’t hear him. Probably yes. Could be argued that he didn’t actually aid them; but it could be argued that just having a lookout helps the people who were committing the crime.

The difference is that a person can be guilty of reckless murder as an accomplice as but not of attempted reckless murder. For accomplice liability you have to have the mens rea in the crime, but you can’t have the conscious objective to get a reckless result. Court said you can be guilty as an accomplice to reckless manslaughter. Because you need the mens rea of the underlying crime, which is recklessly.

Ryley v. State: The court held that defendant could be guilty as an accomplice to a reckless crime but they could still be charged for reckless manslaughter because he intended to aid in the result of the acts when he discharged his weapon into the crowd with the other person. He was therefore guilty of reckless manslaughter as he possessed the intent for it.

RULE: A defendant is responsible for another person’s commission of a result crime if he shared the same mental intent regarding the result.

Reasoning: In the riley case can a person be held liable for a crime whose mens rea required sth less than intent. In riley court looked at whether so could be convicted of an accomplice to recklessly causing serious physical injury … the court said yes. Looked at their Alaska statute for accomplice liability – court said that even though statute said that accomplice liability statute contains intent and offense contains recklessly, yes

Hypo: But suppose prof M said oh that’s a great idea where you try shooting so in class even though you’ve killed so every year when you did it here ill put the blindfold on you. Could prof M also be convicted of reckless manslaughter? Yes because she would still meet the requirements of the offense. Yes, if prof M also has the mens rea required for the offense, she has all the elements – by being reckless and intentionally aiding prof k in the conduct, she could also… Here prof M had recklessness to cause death – so M had mens rea

The attempt statute contains the intent mens rea

The accomplice liability statute only contains the mens rea of the underlying crime

You can attempt a reckless conduct crime; you can’t attempt a reckless result crime

You can be an accomplice to a reckless result crime

NYPL Section 20.00 Criminal liability for conduct of another. When one person engages in conduct which constitutes an offense, another person is criminally liable for such conduct when, acting with the mental culpability required for the commission thereof, he solicits, requests, commands, importunes, or intentionally aids such person to engage in such conduct.