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Criminal Law

Givelber

Mission this week: learn to log in to Westlaw. Go to TWEN, Criminal Law Givelber. Course home-page (currently has syllabus).

January 16: class will be 1:45-3:15pm.

Criminal law in this country is statutory, but instead of learning specific state law, learn the Model Penal Code (cb1165 or cs141). Need to know how model penal code applies to every situation, need to read it long before final exam. Read relevant sections through cases.

Differences between Criminal Law and Civil Law

• Criminal law is 'public law' (v. 'private law': civil procedure, property, torts). Crimes are committed against the state, not individuals. All criminal cases are State, Commonwealth, US, etc., v. Individual. Initiating party is always governmental unit.
• Government employees initiate, prosecute, investigate, sentence, etc.. Thus more of a presumption of guilt. Criminal procedure can't quite mirror civil procedure. Can't rely on 'unbridled adversariness' to get to fair conclusion. In civil procedure, settlement is a fine conclusion. Maybe not accurate, but ends case. Gave parties 'day in court'. Can't use this standard in criminal law (e.g., 'Sure the defendant didn't do it, but they were willing to accept a judgment.').
• State alone can initiate criminal case legally.
• Federal system and many states: prosecutor shares power of initiating case with grand jury.
  • Theoretically selected same way as jury. Randomly picked citizens.
  • sit on grand jury for a period of time--a few weeks.
  • Grand jury presentations tend to be short.
  • Grand jury can be viewed as shield or sword. Shield: needs to decide that the state has enough evidence that defendant committed crime before allowing person to be charged. Sword: grand jury is only investigative power that can require people to talk. Prosecutor, police officer can say 'you have to talk to me', but refusing to talk is not a crime, unless refusal is to grand jury.
  • Typically majority vote.
  • Grand jury entitled to hear evidence presented to suggest defendant committed crime.
  • One party only presentation--just prosecutor's case.
  • Grand jury issues indictment, needs to specify which law the defendant allegedly broke.
• Parallel system: bail, designed to insure defendant is present when indictment is issued.
• First big break between civil procedure and criminal procedure is in discovery: discovery is much more limited in federal criminal proceeding.
  • Defendant doesn't have to say anything ever. 5th amendment gives all citizens right to not incriminate themselves. Interpretted to mean defendant doesn't have to say anything.
  • No discovery of prosecutor; rationale is that defendant already knows anything since 'they did the crime'.
• Almost never have trials: 15 out of 16 people convicted are convicted through guilty plea. 80% of cases that go to trial end in convictions. 98% of cases that go to judgment end in guilty verdicts. 20% of those indicted don't actually make it to judgment, though.
• US criminal justice system has longest sentences in the world.
• Jury System
  • 6th amendment guarantees jury trial for those who do not plead guilty. Defendants can confront witnesses against them, can present defense, need unanimous verdict beyond reasonable doubt (does not need to unanimous in all states).
  • All evidence supposed to be public (v. military tribunal--evidence not provided to defense). Thus, some cases are dismissed because prosecution does not want to reveal where information is coming from.
  • Voir dire: explaining case to jury, finding out if they know anything about the case and if there is any reason they can't serve and do justice. Used to be that goal was to find people who were familiar with the case; now goal is to find group completely ignorant of case.
  • After case has been presented, judge tells jury 'the law'. Gives them the statute and then expands on what it means. Juries learn law very briefly in instructions.
• If jury acquits, state cannot appeal. If jury convicts, defendant can appeal. Defendant almost always appeals because state provides lawyer if necessary. This course exams appeals primarily, focusing on jury instructions.
• Civil case--goal is 'to be made whole', money damages. Criminal case--punishment. Only type of law whose purpose is punishment. Every criminal case is failure of criminal law. Criminal law has made threats as to what happens if you violate law; once law is violated need to figure out what to do.
• Assumption that all crimes are in statutes. No 'common law crimes'--can only punish those who could have found out ahead of time that their conduct was a crime.
• Can only punish someone for something they have done, not for something they have thought of doing. Criminal law is supposed to be exclusively concerned with conduct undertaken with a certain state of mind.
• Why punish? Two competing notions.
  • Prevent person from doing act again (specific deterrence), or prevent others from committing crime. Utilitaritarian justification for punishment. Not actually so important that defendant be guilty for general deterrence.
  • Retribution. Independent of utility, punishment is morally appropriate response to person's act. If you accept this justification, then all punishments can be justified, including capital punishment. Can also limit the extent of criminal punishment by calling for an appropriate response to crime committed (e.g., drug cases--low acting actors in drug war seem to receive disproportionate punishment to their harm).
  • Incapacitation. Doesn't matter whether punishment will deter anyone; if defendant is imprisoned for five years, won't commit crimes ('Rudy Guliani vision'). Not really incapacitation, actually isolation. Can still commit crimes against fellow prisoners. (also utilitaritarian justification)
  • Education. Supposed to teach all of us what is forbidden.
  • Rehabilatation. Almost never hear this justification any more--used to be common justification. "Penitentiary" -- penitent, supposed to make you think about your crime, and through thinking, become better person.

Assignment for tomorrow: read 'the criminal act' in casebook.

Thursday, January 3, 2002

(Tuesday's Row: Adam to Carrie (front left))

Requirement of an Act

• Three Topics
  • What is an act
  • What is an omission
  • Questions of voluntariness

In theory, cannot be punished for thought alone. Requirement of a voluntary act.

Material in 111-136 might be worth rereading at a later date.

Proctor v. State

[176 P. 771]

• Proctor is in possession of building, tells someone that he will sell liquor in building.
• No problem with law prohibiting sale of alcohol.
• Statement of future intention to do something may not constitute action.
• Court could have held that statute was not violated but instead held that statute was not constitutional. No difference between person thinking they will sell alcohol and saying they will sell alcohol.
• Could argue that criminal justice system should always require resulting harm; in this case, there was no result. U.S. system does not always require result, however.
  • Conspiracy, for example, does not require result. 20th alleged 9/11 bomber is on trial for agreeing to commit crime although they never did cause harm directly.
• Statute prohibits possession with intent. Court holds statute unconstitutional because it punishes thought alone, since only act is act of possession.
• Palmer case: what if police arrest someone in backyard with robbery tools (chisel and large screwdriver) in Washington under statute which prohibits possession of lock-picking tools under circumstances evincing criminal intent.
  • If this took place in Oklahoma, would it be constitutional? Does criminalizing possession of lock-picking devices equal criminalizing possession of building with intent to sell liquor?
  • Difference is in circumstances. Oklahoma Statute could be applied to thought alone. Washington Statute criminalizes possession with intent, requires objective circumstances to demonstrate what intent was.
  • Act requirement goes beyond possession, but includes possession in circumstances.
  • Under statute, someone who is not mechanic etc. who possesses tools is prima facie evidence of intent to commit crime.
  • This case holds that statute is fine because defendant can offer defense. Statute might not be legal today (for reasons of presumption).
  • Courts are more likely to come to this conclusion (possession with intent statutes are legal).

Possession

At least some courts will hold possession on premises which you control to be illegal possession. Modal Penal Code would require 'awareness of control thereof for a sufficient period to have been able to terminate his possession.' Article 2, Section 2.01 (4).

Would probably come down to how much owner of premises tried to stop person from possessing illegal substance on premises.

Omissions

Basis for illegal omissions: pre-existing relationship between defendant and victim, contract, taken action towards victim, or statutory requirement.

Jones v. US

[308 F.2d 307] 1962 US Court of Appeals

• Typical situation is woman is charged with failure to prevent man from murdering/abusing child.
• cb1201, Model Penal Code 210.1, Criminal Homicide when person purposefully, knowingly, recklessly or negligently causes death of another human being.
  • MPC does not spell out 'act portion' of crime; whatever it takes to cause death is sufficient to constitute murder. Under this standard, an omission can constitute crime when there exists a duty which is not fulfilled.
  • Question is did the omission (breach of duty) cause the effect?
  • Need to believe that failure to act is analogous to acting to cause harm in these cases.

Voluntariness

State v. Newton

[340 N.Y.S.2d 77] 1973 Supreme Court of NY (cb125)

• Defendant possessed gun on airplane, airplane landed in NY when defendant became unruly, where possession of gun was illegal.
• Defendant did not voluntarily go to New York, thus court considers this to not be an act.
• Two possible arguments for conviction:
  • One could argue that defendant voluntarily became unruly, set off chain of events that lead to presence of New York.
  • Argue that statute was violated regardless of defendant's action (don't worry about mens rea).
• Every crime carries state of mind requirement, many elements of crime carry state of mind requirement.
• Negligent state of mind: a reasonable person would have foreseen that plane would land in nearest location when starting disturbance.
• Most courts would not find Newton's unruliness to be voluntary cause of possessing firearm in New York; on the other hand, hunter who mistakenly gets on bus to New York instead of Maine and ends up in New York with firearm probably would be convicted.

Martin v. State

[17 So. 2d 427] 1944 Alabama Court of Appeals (cb127)

• Police bring drunken man outside of house and then arrest him for drunken condition and boisterous/indecent conduct in public place.
• Court holds that, since man did not appear voluntarily, he did not commit crime.
• Counterargument: although he did not appear voluntarily, he choose to commit boisterous conduct once outside.
• Police may have taken action because they were not able to arrest man for crime they did not see (domestic violence, for example).
• Court of appeals does not hold act to be voluntary.

People v. Grant

[360 N.E.2d 809] 1977 Appellate Court of Illinois (cb128)

• Man claims act of using parking meter to kick police officer in face is not voluntary act--claimed that he behaved without consciousness. Did not kick officer because of epilepsy but because was not conscious of act, thus did not commit crime.
• Similar to Huey Newton's claim that he shot police officer while in shock after being shot in stomach, no voluntariness.
• Court remands, directions should have included language about involuntary acts (not having to do with insanity).

Tuesday, January 8, 2002 (Class 3)

People v. Grant

[360 N.E.2d 809] 1977 Appellate Court of Illinois (cb128)

• Model Penal Code (cb1205): person is guilty of assault if he attempts to cause or purposely, knowingly or recklessly causes bodily injury to another.
• How do we determine intent? Grant has not testified in this case. Intuitively, we would think person intentionally acted based on what they did.
• Grant claims he suffers from psychomotor epilepsy and thus conduct is involuntary.
• Lower court judge gave jury instruction that if defendant was insane, then he can be found not guilty. Generally insanity defense does not mean the person did not intend to do what they did, but that they did it because of a mental defect.
• Grant is not claiming that he was insane under this understanding. For Grant, this was not a mental disease but a physical disease.
• Even if correct instructions were given, jury could still find defendant guilty. It is not required that every act be voluntary, but just that some act be voluntary. For example, by drinking intentionally the defendant may have provoked the epileptic attack. See MPC 2.02(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.

Robinson v. California

[370 U.S. 660] 1962 Supreme Court of the United States (cb136)

• California statute prohibiting being addicted to narcotics.
• Supreme court finds statute unconstitutional.
• One explanation: addiction is a disease, person has no control, thus cruel and unusual punishment to criminalize addiction.
• What about issue of people who became addicted involuntarily/voluntarily?
• Justice Harlan: Problem is not the status crime, but that it punishes the mere propensity to use drugs. I.e., addiction is equivalent to desire, and we can't punish desire alone.
• Lower court's instruction would convict Robinson regardless of behavior; all he had to do was be addicted to drugs while in the State of California.
• Justice White, dissents: Obvious that defendant was using drugs while in the State of California.

Powell v. Texas

[392 U.S. 514] 1968 Supreme Court (cb139)

• People had read Robinson to mean that you couldn't arrest people just for being drunk.
• One of very few cases where Marshall was writer and in favor of conviction.
• Powell not being punished just for status of being alcoholic, but for voluntarily choice of giving in to alcohol in public.

Pottinger v. City of Miami

[810 F. Supp. 1551] 1992 Southern District of Florida (cb141)

• Court held that homelessness was status, thus could not be criminalized.
• Civil Rights Action, not criminal case.
• Not compelling authority, never appealed to Fifth Circuit.

Johnson v. State

[602 So.2d 1288] 1992 Florida Supreme Court (cb143)

• Mother was accused of delivering narcotics to baby through umbilical cord after it was born but before cord was cut.
• Statute being invoked is general drug statute, legislature never considered situation of delivery through umbilical cord. Court finds later legislative history on different topic saying they don't want to criminalize mothers. Also suggests that legislature would have specified this method of delivery if they had wanted to criminalize it. Dangerous reasoning, though, to suggest that because legislature did not specifically prohibit an activity they didn't mean for it to be covered by other statutes.
• Other argument: mother had no way of knowing when 60-90 second period of transfer would occur, couldn't have intentionally timed drug use so that drug would be delivered at moment of delivery. I.e., no mens rea (no intent).
• Issue of whether person acted recklessly--could argue that although it was not intentional, it was reckless.
• Another argument: no real act. Osmosis from placenta is not voluntary, thus no act.
• Dispute over whether there was actually delivery. "Battle of the experts." No real basis for the court to know one way or the other.

Commonwealth v. Keller

[35 Pa. D & C. 2d 615] 1964 Common Pleas Court of Lebanon County, Pennsylvania (cb148)

• No statutory crime against improperly burying bury, court claims this is a common law crime.
• Why didn't legislature ever pass this statute?
• Prosecution is really trying to prosecute for murder, which they can't prove, so has come up with alternative theory.
• How do we determine what is a common law crime?
  • 'Openly outrageous and offends decency'
  • Historical precedent
• Most court systems will reject this kind of reasoning.
• In Baker case, for example, Arkansas legislature passed statute after case prohibiting indecent treatment of corpse.

Wednesday, January 9, 2002 (Class 4)

Commonwealth v. Keller

[35 Pa. D & C. 2d 615] 1964 Common Pleas Court of Lebanon County, Pennsylvania (cb148)

• Would it make a difference if Keller had known that improperly disposing of dead babies would be highly offensive?
  • Maybe she would have known it was offensive but not illegal.
  • But could she have known it was illegal?
• Other function of criminal law is to limit the state; question is then what is limit of State's power (with respect to unwritten crimes)?

Keeler v. Superior Court of Amador County

[470 p. 2d 617] 1970 Supreme Court of California (cb154)

• Case was contemporary to Roe v. Wade, abortion was highly contested political issue, court did not want to get involved in abortion discussion.
• Was not possible for court to take some position on abortion (this position favored right to choose), although this position was perhaps less overt in abortion debate.
• First reasoning: Even though courts constantly reinterpret legislation, in this case they only read the law strictly with its original intent.
• Second reasoning: person needs to have notice. Cite Bouie case [378 U.S. 347], Civil Rights case where two people are arrested for trespassing in 'white only' section. Supreme Court decided case on basis that Bouie deserved notice prior to entering that it was crime to be in restaurant; notification after entry is not sufficient to meet due process rights.
  • Is Bouie precedent for Keeler?
    • Could argue that Keeler knew he was breaking law while Bouie didn't.
    • Keeler's crime was against a person, Bouie's was "against the general welfare".
    • Courts will feel great need for bright line test for speech, mobility, i.e., constitutional rights, to distinguish between non-criminal and criminal activity, as in Bouie. Don't want vague standards to deter people from legal behavior in these cases. But in Keeler, it doesn't matter if vague law deters people from assaulting or killing others due to vagueness.

People v. Van Alstyne

[46 Cal. App. 3d 900] 1975 California Appellate Court (cb161)

• Defendant arguing that marijuana sale law prohibits sale of specific subspecies different from what he might have been selling.
• Court finds defendant guilty, perhaps because it doesn't want to open up every past conviction, even though defendant has a good argument that particular behavior is not prohibited by law.
• Not totally consistent with Keller, where the law is read exactly to excuse defendant, here there is a ggeneral interpretation of "Cannabis Sativa L." to include all types of marijuana.

City of Chicago v. Jesus Morales Et Al.

[527 U.S. 41] 1999 Supreme Court of United States (cb162)

• Supreme Court majority only agrees with certain sections, in particular the parts regarding control of police.
• Chicago enacted ordinance prohibiting loitering by or with gang members. Police officer should follow these steps:

1. Police officer identifies a gang member
2. Gang member loitering with no apparent purpose.
3. Police officer orders dispersal.
4. Those ordered must disobey.

• Additionally, internal police regulations said ordinance would only be enforced in certain areas and would only be enforced by members of the gang unit.
• One problem: too much subjectivity given to police officers.
• Other problem (not majority opinion): lack of notice/process.
• Why did ordinance specify 'no apparent purpose'? Would be difficult to describe activity of 'claiming turf'.

Thursday, January 10, 2002 (Class 5)

City of Chicago v. Jesus Morales Et Al.

[527 U.S. 41] 1999 Supreme Court of United States (cb162)

• O'Connor's suggestion is that the law would be better with "no apparent purpose other than to establish control or intimidate." Is this better?
  • Generally thought to be easier to prove a positive than disprove a negative.
  • Three possibilities:
    • No apparent purpose.
    • No apparent purpose other than...
    • For the purpose of...
  • If you are prosecutor, might want the third possibility, don't have to prove 'no apparent purpose'.
  • How would you prove 'for the purpose of establishing control or intimidation'?
  • On the other hand, proving 'no apparent purpose' would just be to show they weren't doing anything. This would probably be easier.
  • The further you move towards 'for the purpose of', the more a court is likely to find statute constitutional, but the harder it is to prove for a prosecutor.
  • O'Connor was trying to 'split the difference' by using the formulation 'no apparent purpose other than...'
• Model Penal Code Loitering Law--still problem with criminalizing 'appearances'--some courts will no uphold

Punishment

• Two major rationalizations for punishment:
  • Utilitarian
  • Moral/Retributive?
• Do we punish someone for instrumental ends (we want punishment to have an effect on this person or on others) or do we punish people for moral ends (crime requires a response)?
• Utilitarianism -- associated with Jeremy Bentham (cb38)
  • Compare harm done from punishment with good that will result from it. If more good is done, then punishment should be given, otherwise not.
• Retribution -- associated with Immanuel Kant
  • If society is about to disband and there is just one person in jail for murder, that person should be killed, regardless of future results.
• Colorado Revised Statutes (lists justifications)

Alex Cabarga Case

• Cabarga was child who was 'adopted' by Tree Frog, ended up molesting Tara Burke.
• Deterrence: two questions.
  • What would have deterred Cabarga from act in advance?
    • Hard to believe Cabarga was capable of making any independent judgment at time he was turned over to Tree Frog.
  • What would deter Cabarga or others from committing act?
    • Probably any punishment would not prevent any future children in Cabarga's situation from committing act.
• Rehabilitation: questionable
• Moral: ...up for debate...
• Incapacitation (not in Colorado justifications): as long as you decide what happens to people in prison doesn't constitute violence, i.e., doesn't matter.

Federal sentencing guidelines take away rehabilitation and reform functions. No parole system.

Tuesday, January 15, 2002 (Class 6)

8th Amendment

• 8th amendment carries within it some application to duration of punishment; may limit time someone can serve for specific criminal act. Rarely applies.
• Applies in Capital Punishment; limits capital punishment in certain types of cases, etc.. Can't use Capital Punishment for rape. State Statute for death penalty must not be capricious.
• Exotic punishment: can't punish with hard labor in chains for several years for forging document. Prohibits torture. Rarely used since punishment tends not to be very creative.

Rummell v. Estelle

• If William James Rummel were convicted of the exact crime today as in the 1970's, how would you figure out what sentence he would receive today?
  • In 1970's he received life imprisonment under recidivist statute.
  • To determine punishment, start by reading the statute.
  • 1973: Whoever commits three felonies receives life imprisonment. Prior crimes:
    • 1964 Credit Card Fraud $80 3 years
    • 1968 Aggravated Assault (30 days)
    • 1969 Check forgery $28.36 (2-4 years)
    • 1973 Pool hall air conditioning fraud $130
  • Should have gone to jail for life in 1969 (third felony), but was actually sentenced to life in 1973.
• Theory: needs to be incapacitated, retribution (punishing bad character).
• 'Broken windows' theory: if you take repeat offending, even by trivial offenders, seriously, people will not take law and police powers seriously.
• Today: stealing check would be misdemeanor, 'larceny by trick' or classic theft. If Rummel were convicted of this he would only get the time of misdemeanor. Even if it were a felony, still would not get life sentence today, although Supreme Court upheld life sentence.

Solem v. Helm

[463 U.S. 277] 1983 United States Supreme Court (cb84)

• Someone was sentenced to life in prison after making bad check with criminal history.
• Claims that punishment is disproportionate to crime, violates 8th amendment cruel and unusual punishment clause.
• People were surprised that Supreme Court granted certiorari since they had just decided Rummell v. Estelle three years earlier.
• Three part test to decide fair punishment:
  • Gravity of offense vs. penalty
  • Other punishments in same jurisdiction
  • Punishments in other jurisdictions
• Harm: wrote 'no account' check for $100. Although bouncing check is not always crime, writing check on account that doesn't exist is always crime.
• Punishment: no possibility of parole in South Dakota, unlike in Rummell. Executive discretion (Gubenatorial pardon) not as good as parole for mitigating sentence. No parole in feeral system currently, however.
• Other punishments in same jurisdiction with life sentence are murder, treason, etc.. Of course, other recidivists might receive Solem's punishment, but question is more what other crimes.
• Court finds only one other state would give the same punishment (Nevada).
• Court finds law is not constitutional as applied to Solem. Recidivist whose crime is greater might still get life sentence constitutionally.

Harmelin v. Michigan

[501 U.S. 957] 1991 United States Supreme Court (cb90)

• Harmelin possessed 672 grams of cocaine, gets life imprisonment under Michigan Statute.
• 673 g is 'commercial quantity'.
• Why is this not 8th amendment violation?
  • Drugs as social problem.
  • Likely to be connecting with other crimes, helps State to 'negotiate'.
• In world of draconian sentences, prosecutor has enormous bargaining chip.
• Provides 'substantial assistance' to prosecutor in convicting others 'higher up'.

Federal Sentencing Guidlines

• Started in Minnesota with emergence of view that retribution is standard (forget, rehabilitation, deterrence, etc..). Everyone who does the same crime should do the same time.
• Not only was arbitrariness itself a bad thing, but also sentences were unfairly harsh on people of color.
• Instead of tailoring punishment to criminal, tailor punishment to crime.
• Minnesota started sentencing guidelines, tailored punishment to prison space, so it did not create a world where more and more people were going to prison.
• Federal system started on Minnesota basis. Congress appointed Sentencing Commission. Commission needed to choose between looking at "how bad is this conduct" based on Commission's review (similar to Minnesota system) or look at all sentences over past five years for particular crimes and make that the sentence. Didn't necessarily fix past mistakes but made them concrete.
• Guidelines don't allow judge to take into account person's situation for going outside sentencing range, but just within range.
• Guidelines provide means to reduce sentence: plead guilty provides a small mitigation, substantial assistance (to another conviction), can provide a much larger mitigation of punishment. Finally, if there was something in case that was not taken into account when guidelines were drafted (e.g., Rodney King case.)

Tomorrow: guest speakers at 1:45pm.

Thursday: Mark to Melissa are 'on'.

Thursday, January 17, 2002 (Class 7)

Federal Sentencing Guidelines

• Penalty for 150 KG cocaine powder is equivalent to 1.5 KG crack
• Political factors: crimes are almost never downgraded. Capital punishment appears to increase near election time.
• Vision of guidelines: equal time for an equal crime, no other factors, no parole.
• Sentencing table--offense level vs. criminal history

Koon v. United States

[518 U.S. 81] 1996 United States Supreme Court (cb104)

• Double jeopardy does not apply between sovereigns--United States and State can try person for same crime (although in this case charge is Civil Rights rather than Assault).
• For Civil Rights Statute, figure out base level--either 10 or 6 plus underyling offense level. Get total of 21 in this case.
• Departures: based on what criminal 'really did'.
• Adjusted upwards based on deadly weapon and actually injury, plus six.
• Then, adjusted downwards based on: widespread publicity, targeted abuse in prison, termination of jobs, non-violent people, victim provocation, successive prosecutions.
• Review de novo vs. review for abuse of discretion: in former, appeals court makes it own decision and substitutes it for trial court's, otherwise appeals court examines whether trial court judge make clear error.
• Surprising when standard for review under Federal Sentencing Guidelines was found to be abuse of discretion, because decision is supposed to be one of law only.
• Supreme Court finds victim provocation to be legitimate departure (even though who wouldn't expect police officer to claim victim provocation in a civil rights case?).
• Successive provocation is also legitimate (even though the history of Federal Civil Rights Cases is when State Law has failed).
• Federal criminal defense lawyer's job today has become arguing about departures in sentencing guidelines on appeal.

Currently, jury does not need to hear evidence on all aspects used in sentencing. Apprende (sp?) may change this.

State of Mind (Mens Rea)

• Pages 181-184--very dense, suggested to ready again in April

United States v. Balint

[258 U.S. 250] 1922 United States Supreme Court (cb185)

• Defendant violated Narcotics act, but claims the indictment is not valid since the crime does not require that they knew they were selling narcotics
• Court finds congressional intent was to stop people from being able to buy narcotics, even without the knowledge of the seller. Becomes a strict liability crime.
• Puts burden on potential defendant to find out whether or not what they are selling is illegal.
• Possible defense: Indictment charged 'unlawfully selling' but sale was not unlawful.
• Does this case stand for any principle of constitutional law?
  • Due process argument: when you say someone is guilty of crime when they are not even aware that they are committing acts. But there is no constitutional requirement for scienter (knowledge).
• In order to legislate against drugs, Federal government taxed criminal transactions as way to get at offenders (changed now that Federal Government can prohibit drugs directly).

United States v. Dotterweich

[320 U.S. 277] 1943 United States Supreme Court (cb189)

• Another crime without intent requirement--distributing improperly labeled drugs.
• Allows 'judges, juries, and prosecutors' to decide who should be held liable, even though statute does not specify what relationship defendant needs to have to crime.
• Very different depending on circumstances--was Dotterweich president of 3 person company or truck driver in 800 person company?

United States v. Park

[421 U.S. 658] 1975 United States Supreme Court (cb192)

• 36,000 employees, 874 retail outlets, etc..
• President of Acme Markets charged with crime of having adulterated food in warehouse in Baltimore
• Would have had to demonstrate that it was objectively impossible for him to have prevented violation

Next class: Julie to Rob are 'on'.

Tuesday, January 22, 2002 (Class 8)

State of Mind

United States v. Park

• Details of case suggest that ACME foods was not adequately following FDA rules, suggesting holding president accountable was justified, but nothing in law requires this.

Morissette v. United States

[342 U.S. 246] 1952 United States Supreme Court (cb193)

• Morissette was taking bomb shells and sold for $80, violating conversion statute.
• Government wants to prove 'you shouldn't take government property whether you know it or not and convert it'.
• Morissette believed shells were abandoned. Did not intend to convert.
• Does Balint apply to this case?
• Morisette 'knew what he was doing'.
• No state of mind--did not know the property still belonged to the government.
• Government says does not matter what his state of mind is.
• Holding: dinstinguishes between crimes that are 'evil in themselves' and those that are only bad when accompanied with state of mind (public welfare offenses). Historical crimes (going back to ten commandments) have required state of mind, thus it does not need to be included in legislation for it to be read as requirement.
• Not necessarily constitutional argument, may just be interpretative method.

U.S. v. X-Citement Video

[513 U.S. 64] 1994 United States Supreme Court (cb195)

• Requirements of crime:

1. Transport
2. in interstate or foreign commerce
3. any visual depiction if
   1. producing of video involves a minor in sexually explicit acts and
   2. depiction is of minor in sexually explicit acts

• Statute says 'knowingly'--question is how many of these elements does knowingly modify?
  • One possibility: 'knowingly transport', as long as knowledge of transporting videotape is present that is enough.
• Model penal code § 2.02(4): if statute uses word identifying state of mind, that state of mind applies to every material element of statute unless otherwise specified.
• Or if no level of culpability is specified, uses recklessly, knowingly, or purposefully standard.
• Supreme Court does not use Model Penal Code, however, so Chief Justice Rehnquist reasons:
  • Ten year felony (doesn't sound like public welfare offense)
  • Strict liability crimes are okay if public understands 'this is a highly regulated area of activity where you proceed at your own risk' (e.g., hand grenades, Freed case).
  • First amendment considerations, not discussed but do inform the judgment

U.S. v. U.S.D.C.

[858 F.2d 534] 1988 9th Circuit Court of Appeals (cb196)

• Parents assured people that child was not minor.
• First amendment requires that person's mistake was a reasonable mistake, they did everything they could have.
• Under Model Penal Code, would have to prove recklessness. Prosecutor would have to prove defendant would have to know there was a real possibility that Lords was a minor.

Whenever there is criminal statute that contains more than one element (always) there will always be problems with the state of mind requirement.

Regina v. Faulkner

[13 Cox C.C. 550] 1877 Court of Crown Cases Reserved (cb202)

• Sailor was stealing rum from hold of ship, lit match to plug up hole, burned down ship.
• Prosecuted for violating 'malicious damage act', convicted by jury.
• Judges hold that person cannot be held responsible for fire when they set out only to commit destruction of property.
• Fitzgerald: 'should have foreseen' = negligence standard. Jury was not given negligence standard, thus overturns jury conviction.
• Statute included "feloniously, unlawfully, and maliciously set for to the ship". Classically means nothing, because these adverbs have been used so much in criminal statutes historically.
• 'Felony-murder' rule in US: if you commit a certain type of felony and someone dies as a consequence, crime is murder not accidental death.
• Deterrence argument works both ways: either person always has option which is right or wrong, we want to create disincentives for further crimes; alternatively, we really want to prevent felonies, therefore felony murder rule is great disincentive.
• Although felony murder rule is vast exception, Faulkner is more the rule in United States jurisprudence.
• Model Penal Code would not find Faulkner guilty of arson because it requires person to purposefully destroy/damage property by fire.
• Causing or risking catastrophe: second degree felony if purposely or knowingly, third degree if recklessly.
• To act recklessly under model penal code, would need to have been conscious of substantial risk.
• Criminal mischief (negligence standard) -- only a misdemeanor

Other standard for model penal code culpability: knowledge.

What if person is given $200 to carry backpack with heroine, but claims they do not know what they are transporting.

United States v. Jewell

[532 F.2d 697] 1976 9th Circuit Court of Appeals (cb219)

• Court does not allow 'willful blindness' to constitute lack of knowledge
• Model penal code defines high probability of knowing something is true is equivalent to knowing something is true.

Next class: Kia to John, up to Stacy, over to Adam

Wednesay, January 23, 2002 (Class 9)

There is no generic definition of specific intent/general intent. Don't use them in this course!

United States v. Doe

[136 F.3d 631] 1998 3rd Circuit Court of Appeals (cb223)

• In this case, 'general intent' means negligence (or arguably recklessness).

State v. Neuzil

[589 N.W.2d 708] 1999 Iowa Supreme Court (cb223)

• Statute punishes "purposely engaging in a course of conduct directed at a specific person that would cause a reasonable person to fear bodily injury to, or the death of, that specific person or a family member."
• Express effort of legislature in drafting statute was to make only purpose part to be to engage in the conduct, not to cause the fear (since stalking is often not perceived as such by the defendant).
• Model Penal Code Section 2.02(4): 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.
• Argument in Model Penal Code jurisdiction would be whether or not there is a contrary purpose in statute.
• If so, the negligence standard would be applied to other elements (other than purposely engaging in conduct).
• Iowa Supreme Court probably got this exactly right in legislature's intent.

Mistake Cases

Regina v. Prince

[L.R. 2 Crim. Cas. Res. 154] 1875 Court for Crown Cases Reserved (cb223)

• 1875 equivalent of statutory rape, 12 year old and 10 year old
• Crime is defined as:

1. Taking
2. any unmarried girl
3. under sixteen
4. out of possession
5. and against will of parent/guardian

• Prince did take Annie Phillips who was under 16 years old, although he reasonably believed she was 18 years old.
• Court holds that no mens rea is required; this is a 'strict liability' crime.
• Blackburn's view: Prince did have to intend to take the girl but did not have to know girl was under sixteen. Uses analogy to other crimes: where 12 year old takes girl under 10 years old, crime goes from felony to misdemeanor. But if you let defendant's belief influence crime, then he is not guilty of the felony (didn't know he was doing it) and not guilty of the misdemeanor (didn't actually do it).
• Model Penal Code sets out rule that when person is mistaken then they are guilty of the crime they thought they were doing (in Blackburn's hypothetical, person would be guilty of misdemeanor of taking girl between 10 years old and 12 years old).
• Problem with this conception: what if it starts raining, you grab umbrella and run off with it thinking you're stealing it, but in reality it was your umbrella that you forgot you brought. Is this a crime? (problem when you let mental state be controlling).
• Bramwell's view: act is immoral, no specific state of mind requirement beyond that, since girl should have been with her father.
• Denman's view: conduct would only have justification if every element were mistake. Strict liability crime with defense possibility that what they did was completely lawful (not possible in this case since he did take an unmarried girl out of possession of father).
• Brett's view: similar to Model Penal Code. If Prince reasonably believed girl was of age then this wasn't crime.

People v. Ryan

[626 N.E.2d 51] 1993 Court of Appeals of New York (cb230)

• Statute prohibits knowingly and unlawfully possessing 625 mg of a hallucinogen.
• Ryan had two pounds of mushrooms; slice of mushrooms was found to have more than the statutorily prohibited amount of psilocybin.
• What does 'knowingly' modify--possess, or the amount you're possessing?
• If legislature had not intended for knowingly to modify the amount, this would make it a 'strict liability crime' under court's view here, which they hold not to be legislative intend.
• Model Penal Code requires state of mind for material elements (section 1.13):
  • "material element of an offense" means an element that does not relate exclusively to the statute of limitations, jurisdiction, venue, or to any other matter similarly unconnected with (i) the harm or evil, incident to conduct, sought to be prevented by the law defining the offense, or (ii) the existence of a justification or excuse for such conduct;
• In New York, strict liability crimes must be stated as such by legislature; New York has adopted this part of the Model Penal Code with respect to mens rea.
• What if chemists know that 2 pounds of mushrooms will always have more than 625 mg of hallucinogen? Does the fact that Ryan knew he had 2 pounds mean he knew he had 625 mg?

Jen to George-Marie will be 'on' tomorrow.

Thursday, January 24, 2002 (Class 10)

Mistake of Fact and Mistake of Law

Model Penal Code § 221.1: Burglary Defined

A person is guilty of burglary if he enters a building or occupied structure, or separately secured or occupied portion thereof, with purpose to commit a crime therein, unless the premises are at the time open to the public or the actor is licensed or privileged to enter. It is an affirmative defense to prosecution for burglary that the building or structure was abandoned.

In hypothetical where woman mistakenly enters other premises and takes jewelry after getting there, woman is not guilty of burglary, since she did not enter with intent to commit a crime.

Person enters what appears to be warehouse to steal for drug money, turns out it is someone's dwelling. This would be a burglary, but under Model Penal Code not of the second degree, since the same state of mind would apply to whether or not it was the dwelling of another at night (either purpose, or if that doesn't make sense, knowledge or recklessness).

Person notices open window to what appears to be a dwelling, breaks in, but discovers it is yarn factory and leaves empty handed. Probably guilty of burglary of the third degree and attempted burglary of the second degree.

If there is no state of mind associated with any element of a crime, then you need to move to rules of construction. Under Model Penal Code if there is any state of mind in any element of crime, then that applies to all elements. If there is no state of mind, then recklessness applies. Presumption against Strict Liability rules.

Mistake of Fact v. Mistake of Law: Model Penal Code draws no such distinction. § 2.04:

1. Ignorance or mistake as to a matter of fact or law is a defense if:
   1. the ignorance or mistake negatives the purpose, knowledge, belief, recklessness or negligence required to establish a material element of the offense; or
   2. the law provides that the state of mind established by such ignorance or mistake constitutes a defense.

United States v. Learned

[26 F. Cas. 893] 1870 East Michigan District Court (cb245)

• Defendants were issuing contracts without stamps, although they claimed not to know the papers were contracts.
• Court finds defendants still guilty: mistake of law is no excuse.
• Model Penal Code would not distinguish between Fact and Law. If you don't know document is a contract then you are not guilty.
• Current conception is mistake of governing law vs. mistake of non-governing law.
• 'I didn't know what I was doing was a crime' -- mistake of governing law, no excuse.
• Mistake about civil concept called contract which is element of crime -- mistake of non-governing law, may exonerate defendant.
• Learned is not the result the Model Penal Code would give--it is traditional approach which has generated a lot of confusion.

People v. Bray

[52 Cal. App. 3d 494] 1975 Court of Appeal of California (cb248)

• Defendant accused of possessing firearm as felon, but did not necessarily know he was a felon.
• Mistake of 'law', but seems to be mistake of non-governing law.
• Needed to call a lawyer from Kansas to determine whether Bray was felon or not.

Julio Marrero Case

• Accused of carrying loaded gun without New York permit.
• Exception in statute for corrections officer. If we assume state accepts definition of correctional officer requires officer to be employee of New York (not Federal), does New York allow for 'mistake of law' defense?
• Question is whether State has to prove he doesn't have a defense or if defendant has to prove he does have a defense?
• Statute seems to list all peace officers they want exempted, Marrero is not on the list even though he might reasonably believe he would be.
• This becomes a 'strict liability' law under New York Statutes as interpreted by the court.

United States v. Baker

[807 F.2d 427] 1986 Fifth Circuit Court of Appeals (cb252)

• Defendant was counterfeiting Rolex watches, claims he didn't know counterfeiting was crime.
• Classic mistake of governing law. No excuse to not know something was a crime.

Smith case: tenant took and damaged electrical equipment he had installed in apartment, not knowing that property belonged to landlord. Mistake of non-governing law, exonerates defendant.

Cheek v. United States

[498 U.S. 192] 1991 United States Supreme Court (cb255)

• Defendant did not pay income taxes after deciding that his wages were not income.
• Also believes income tax law is unconstitutional.
• Unlike other areas of the law, court interprets willfully to mean that not only did you have to know you were doing illegal act, but that you knew act was illegal.
• Even though defendant's idea that he didn't have to pay taxes was somewhat 'loony', criminal law is subjective. Doesn't matter that this is unreasonable mistake.
• Court finds defendant's claim about unconstitutionality of tax law not to be valid defense--this is 'mistake of governing law' somehow (even though tax law mistake is not).

Cathleen through Darren for next class.

Tuesday, January 29, 2002 (Class 11)

Julio Marrero Case

• Ultimately, Marrero got 3 years suspended sentence and $500 fine, after 10 years of prosecution.

Ratzslaff Case

• Defendant runs up debt at casinos, comes in with $100K in cash to pay most of debt.
• Problem with reporting requirement: all transactions over $10K must be reported. Casino tells Ratzslaff if he goes to several banks and gets several $10K cashier's checks, money will not be reported.
• Rationale for reporting requirement: this is primary means for controlling money laundering.
• Because statute has wilful condition and because it is a reporting requirement (like a tax code), court holds that not only does prosecution need to show that defendant broke the law but also that he intended to break the law by doing so.
• Congress later amended statute to eliminate need for willfull action; now only need to prove that structuring was done for the purpose of evading reporting requirement.
• Model Penal Code equates wilful with knowing:
  • 2.02(8) Requirement of Wilfulness Satisfied by Acting Knowingly. A requirement that an offense be committed wilfully is satisfied if a person acts knowingly with respect to the material elements of the offense, unless a purpose to impose further requirements appears.

Lambert v. California

[355 U.S. 225] 1957 United States Supreme Court

• Lambert is accused of violating California statute which required ex-felons to register upon arrival in city of California.
• Lambert shows up in Los Angeles and does not register.
• Lambert did not have fair notice, is not found guilty.
• Compare situation with law requiring dog registration; would court also find violation of this statute without knowledge to be not liable?
• Only case where Supreme Court has violated a statute on the grounds that the statute did not require some form of mens rea for statute to be valid.

Long v. State

[65 A.2d 489] 1949 Delaware Supreme Court

• Issue of right to be divorced except under laws of primary residence; enforced through active prosecution of bigamy laws
• Under statute, if marriage is 'legally dissolved', then person can remarry without penalty.
• Affirmative Defense--even though there is a 'complete crime'--because defendant did everything he could to determine if he was breaking the law.
• Delaware is prepared to recognize an affirmative defense that when he has done everything legally possible, he is not guilty.
• Model Penal Code does not recognize this sort of defense. § 2.04 does not allow you to make mistake of law defense when you spoke with lawyer; must be official source.

Commonwealth v. Twitchell

[617 N.E.2d 609] 1993 Massachusetts Supreme Judicial Court

• Twitchells understand Attorney General's opinion as allowing them to follow spiritual practice and not be criminally liable for child's death.
• Law is actually that spiritual practices will not constitute neglect; does not apply to manslaughter.
• Twitchells may have been aware of risk, since they inquired as to the legality.
• Attorney General is not only one at fault--people who wrote Church document also failed to accurately describe law.
• Anomalous result is that if they had not consulted the Church, they probably would have been guilty.

Hendershott v. The People

[653 P.2d 385] 1982 Colorado Supreme Court

• Hendershott, defendant, was heavy drinker, assaulted girlfriend.
• Defense was that he had 'adult minimal brain dysfunction', impairs his ability to control his impulses.
• Distinction between one's ability to control one's behavior and one's awareness of what one is doing: addiction is common example.
• Not a defense for addict getting a hit to say she didn't realize what she was doing, rather that her addiction made her incapable of controlling her behavior.
• Separation of 'cognition' and 'will'. Hendershott's argument is that he was incapable of forming intention (because he was never conscious of risk) or in this case he wasn't able to form the prohibited state of mind.
• Prosecution claims this defense is only valid for specific intent crimes, but not for general intent crimes.
• Colorado would draw line between purpose/knowledge and recklessness/negligence. Crime Hendershott is accused of has recklessness as requirement.
• Constitution won't let you convict somebody of having a certain mental state if the jury is precluded from receiving relevant evidence as to whether the person has the capacity of having mental state.
• When the state is obligated to prove that the defendant acted recklessly, need to allow evidence to prove/disprove this state.
• Hendershott is claiming fundamental psychiatric condition that he is not capable of forming requisite mental state. Cannot consider risk and ignore it, as is required for recklessness.
• Under Model Penal Code § 4.02, this sort of evidence is always admissible. Most states do not like this section of Model Penal Code.

Wednesday, January 30, 2002 (Class 11)

• Case where psychiatrist testifies that woman accused of cashing fraudulent checks had personality that required her to believe whatever men told her.
• Major disagreement in common law: do you trust the jury to apply 'common sense' in determining credibility, or do you allow the defense to explain why something that looks straightforward is fairly complex?
• Model Penal Code says mental disability is always relevant to capacity of Mens Rea. Most states have rejected this conception, instead find it relevant only for 'specific intent' crimes: generally, crimes involving purpose and knowledge rather than recklessness and negligence; alternatively, 'crimes within crimes', i.e., assault with intent to kill.

State v. Cameron

[514 A.2d 1302] 1986 New Jersey Supreme Court

• Defendant, while voluntarily intoxicated, assaulted group playing cards.
• Court allows for evidence of voluntarily intoxication to be introduced if there is possibility for person to be sufficiently intoxicated to not have capacity to form requisite mens rea.
• This would not be an affirmative defense; rather it would negate mental state element of crime.
• Rule in New Jersey and most places is that voluntarily intoxication can negate purpose or knowledge, but can not negate recklessness.

Law does not want inhibition-reudcing activity to become reason for limiting seriousness of what someone does. Thus mental condition may be admissible, but inhibition may not. Intoxication as a defense would 'swallow' all of criminal law.

Montana v. Egelhoff

[518 U.S. 37] 1996 United States Supreme Court

• Montana takes position that it is never relevant to determination of State of Mind that defendant was drunk.
• United States Supreme Court takes same view as in Hendershott: can't deprive defendant of opportunity to establish non-existence of element of States' prima facie case.
• Justice Ginsburg: you commit first degree murder either by acting purposefully, knowingly, or while drunk if it would have been purposeful or knowing if the person had been sober.
• Case troubled commentators and courts greatly.
• If you could find a way to write it, this case suggests that legislatures could find a way to eliminate intoxication as defense for any crime.

Hypotheticals:

• A drunk person is driving, blacks out, and runs over someone. Is this murder in Montana?
  • Ordinarily, no purpose and no knowledge. Certainly recklessness. But under Ginsburg's model, this would appear to be first degree murder since this would have been seen as purposeful or knowing if they had been sober.
• Drunk person is in bar with gun in waistband. He trips and falls, gun goes off and kills someone.
  • If sober, the person wouldn't have tripped and fallen, therefore death wouldn't have occurred.

Under Egelhoff could have crime of 'drunken murder'. But this is unstable area of law now.

Causation

• Unlike in torts, goal is not making person whole, but punishing culpability, this would suggest a narrow construction of causation. On the other hand, in criminal law usually deals with reckless, knowing, or purposeful conduct, which suggests having broader view of causation.
• Ultimately, morality and justice prevail in arguments concerning causation.
• Start with but-for causation (similar to torts), and move on to proximate cause.

Regina v. Martin Dyos

• People fighting outside club, one got hit on head by brick, and ultimately died.
• Not certain that brick killed person. Unknown injury/injurer also could have killed victim, also uncertain.
• Would be easy if we know the other blow was from someone in Martin Dyos' group. When there are two known causes, usually they are both guilty.
• In this case, Martin Dyos is not guilty because they could not prove that he caused death.
• Would be guilty of attempted murder (if they were trying to kill him) or aggravated assault

Joseph Wood Case

(Robinson 65-69)

• Alma and Luman, married couple, fight frequently.
• Disagreement about ownership of horse, Wood (Alma's father) shoots Luman, wounding him. Luman attacks Alma, who shoots him, ultimately he dies.
• Can Wood be guilty of murder, when Alma's shot kills him?
• If act is last-in-time and it shortens life, then that is murder.
• The most Wood can be guilty of is attempted murder or aggravated assault.

Jenny to Tarah for tomorrow.

Tuesday, February 5, 2002 (Class 13) (Assignments 13)

Lesson from Dyos case: can't hold someone criminally liable for death where multiple actors may have caused death but can't identify other actor. But if identities of all simultaneously contributing actors are known, then they can all be guilty of murder. They are then all substantially contributing cause of death (traditional doctrine).

On the other hand, if Dyos strikes with intent to kill, and then Tom strikes with intent to kill one minute later and speeds death, than Dyos is only guilty of attempted murder and then Tom is guilty to murder.

Dyos would have been liable in torts. Criminal law in this case comes to different result: if you don't know for sure that defendant's action caused injury then can't hold them liable.

Interaction of mens rea and causation. In torts, law will sometimes carry causation further in intentional torts than in unintentional torts. In criminal law, situation is reversed: crimes with higher mens rea standards may not allow for as long as chain of causation. Rationale: want to punish people for what they set out to do less than what they actually they did.

Commonwealth v. Rhoades

[401 N.E.2d 342] 1980 Massachusetts Supreme Judicial Court (cb300)

• Defendant set fire in building, leading to fireman's death from combination of cold weather, smoke inhalation, etc..
• On appeal, defendant is challenging jury instrutions which may have led to his conviction, allowing jury to find Rhoades guilty if he "contributed to hasten, or was part of the proximate cause" of fireman's death," he could be found guilty of second degree murder. Very broad definition of causation.
• Supreme Judicial Court finds that Rhoades must be "efficient cause" (the cause that necessarily sets in operation the factors which caused the death.)
• Under Model Penal Code § 2.03:
  • First need to ask what state of mind is defendant charged with. Is the harm the harm defendant intended? No.
  • Need to ask whether actual results differs from that contemplated or only if it differs in degrees.
• In many jurisdictions, arson is component of felony murder, thus this question never needs to be asked.

Hypotheticals (cb303)

• Robber knocks person over, leave, later they are run over in parking lot. Under felony murder rule (or reckless/negligent homicide), then robber is guilty. But under Model Penal Code felon is not liable, since the result was not within contemplation of actor.

Commonwealth v. Root

[170 A.2d 310] 1961 Pennsylvania Supreme Court

• Root was in car race, other party crashed into truck dying.
• Prosecution contends Root's behavior is proximate cause of other person's death because they recklessly engaged in race which would foreseeably lead to person's death.
• Pennsylvania Supreme Court overrules lower court, although they would be less likely to allow this if it had been a third party who was killed.

People v. Kevorkian

[527 N.W.2d 714] 1994 Michigan Supreme Court

• Issue of physician-assisted suicide. Court finds Kevorkian's lack of direct action to kill patient not to constitute murder; later, Michigan passed statute making assisted suicide illegal.

For tomorrow nobody in particular is 'on', but will cover murder and some of manslaughter.

Wednesday, February 6, 2002 (Class 14) (Assignments 13-14)

People v. Kevorkian

[527 N.W.2d 714] 1994 Michigan Supreme Court

• When actual act that caused harm is commited by someone other than defendant, you have two alternative ways of thinking about whether defendant committed crime:
  • Did defendant's act cause the actual harm that the law prohibits? Causation of defendant's act by itself is sufficient to constitute the crime for which the person is being punished.
    • Kevorkian's act of operating the machine is sufficient to constitute the crime of murder; simply providing the machine is not sufficient.
  • Accomplice Liability: Defendant's act is not sufficient by itself to cause a crime, but defendant is behaving in a way that encourages another to commit a crime, therefore defendant is responsible as an accomplice to crime.
• Does criminal law really need both doctrines? Or are they really duplicative? (for purposes of bar exam, they are very different concepts.)
• Cannot convict Kevorkian on either basis, since Michigan does not recognize suicide as a crime, thus he is not an accomplice. On causation basis, his act is not sufficient to cause death.
• Distinguish between Kevorkian's situation and People v. Duffy: Duffy was charged with manslaughter, thus is not an accomplice but is independently committing another crime. Person was intoxicated and Duffy encouraged them to shoot themselves, thus he at least recklessly caused death--involuntary manslaughter.
• In Kevorkian, Court finds this is a rational act of free will that takes the life; in Duffy we have vulnerale victim.

People v. Beardsley

[113 N.W. 1128] 1907 Michigan Supreme Court

• Case where woman took morphine after drinking all weekend with man and died; man is accused of manslaughter.
• Question of whether man had duty under criminal law--probably would under Tort Law.

Palmer (cb343) and Leg (cb344) cases:

• Cases where child is beaten to death, where person who beats child is charged as well as other caretaker, who fails to stop it.
• In Palmer, criminal act is failing to intervene when her lover's acts would make a reasonable person realize that the child was in danger. Act was not purposeful; was not person's purpose to cause her child to die; thus possible mens rea include knowledge or recklessness/negligence. Court in this case is using language of negligence.
• In Legg, does it matter whether defendant knew or should have known child was in danger? No, because foreseeability standard takes over--negligence is state of mind. If Legg says and jury believes that she had no idea that Steven might die, and that a reasonable person would not foresee that the child might die. Legg is guilty of felony of failure to protect child, therefore she is guilty of child's death, even though she could not have foreseen that failure to protect would lead to death.

Murder

• Readings on voluntary manslaughter are not designed to 'make you feel good' about gender-neutrality of law.

Francis v. Franklin

United States Supreme Court

• Franklin is prisoner, taken to dental clinic with group of other prisoners. As they are unshackling another prisoner, Franklin grabbed gun from guard, took dental assistant hostage and escaped. Description of facts in this case emphasizes people Franklin didn't kill. If dissent had prevailed, facts would certainly have been less favorable to Franklin.
• Defendant is accused of first-degree murder.
• Contests jury instructions as requiring them to find intent.
• To determine mental state in the absence of a confession, jury is permitted to find state of mind based on what a reasonable person's state of mind would be given the evidence.
• Supreme Court reverses conviction, however, because jury instruction shifts burden of proof against defendant.
• Once defendant claims different state of mind then reasonable person, burden of proving otherwise shifts back to prosecution.
• State can't tell jury that they are to presume certain state of mind.
• State can't say: 'If you use a gun, we are going to presume that you intended to kill.'
• Under Alabama murder statute, Franklin is guilty.
• Under California murder statute, probably not:
  • Under first degree murder, must be wilful, deliberate, premeditated standard. Could argue that Franklin's act was not deliberate or premeditated, thus it must be second degree murder.
• Traditional distinction is that first degree murder is capital -- can face death penalty; second degree murder is not.
• Historcially, all murders were capital. In latter part of 18th century, Pennsylvania became first state to try to distinguish among murders. Only people to be executed would be those who were premeditated and deliberate. Others would be second-degree murder. This distinction would then emerge in the law of virtually every state.
• Later established that jury would decide on capital punishment.
• Original purpose of distinction between murders was specifically for deciding death penalty.
• This distinction criticized on two bases:
  • Why punish person who has struggled with whether or not to commit murder more than someone who does it without thinking much?
  • If there is enough time for human being to form intent to kill, and any time follows, then the jury can find that premeditation occurred.
• By mid-1950's and 1960's, movement started to question capital punishment on these criticisms, convinced Supreme Court that distinction between first- and second-degree murder was ephermal.
• Model Penal Code came up with capital statute that does not include distinction between premeditation and non-premeditation.

Row including Angela to April for tomorrow. Only responsible for Berry and Woo. Will get through all of provocation tomorrow.

Thursday, February 7, 2002 (Class 15) (Assignments 15-16)

History of Murder

• Historically, all felonies were capital in England. By end of 18th century, differentiations began in degrees of murder (starting in Pennsylvania), to determine which cases would be capital and which would not be. Premeditation and deliberation formula became basis for differentiating between first and second degree murder. Later, doctrine began to distinguish between murder and voluntary manslaughter.
• Following World War II, England appointed a 'Royal Commission on Capital Punishement'. Even those people who couldn't qualify for voluntary manslaughter, home office was commuting most death penalty sentences to life sentences, they became concerned that this was discretionary.
• Commission recommended England adopt degrees of murder like the United States; before this could be done, labor party came to power and abolished capital punishment.

People v. Walker

[204 N.E.2d 594] 1965 Illinois Court of Appeals (cb380)

• Defendant is sitting on porch when Stenneth approaches with knife and demands that others gamble with him. Walker throws brick at victim, knocks him down, then kills him with his knife.
• Issue on appeal: should this be murder or manslaughter?
• Case was decided by judge, no jury. Appeals court reverses conviction for murder, holds death was manslaughter.
• If case had been tried by jury, would have either had to challenge the jury verdict, or shown that no reasonable jury would have convicted based on the facts.

Distinction between justification and excuse (both are partial):

• Justification
  • Conduct that would otherwise be criminal is justified when person's reaction is socially approved--what we would want to happen. Self defense is the classical example of justified use of deadly force. Law enforcement another example.
  • Provocation would have to come from the victim.
• Excuse
  • Excuse does not mean the conduct was desirable, but does excuse the person from liability.
  • Doesn't matter whether victim caused provocation.
• "Honor" defense: men killing their wives or wives' lovers in adultery situations.

Rowland v. State

[35 So. 826] 1904 Mississippi Supreme Court (cb386)

• Defendant discovered wife having affair, was convicted of murder and given life sentence by jury.
• Supreme Court reverses conviction, adultery was justification for defendant's act.

In 20th century, questions began to arise as to why there were only a few situations that could count as justificitino or excuse.

People v. Berry

[556 P.2d 777] 1976 California Supreme Court (cb402)

• Defendant married woman, she left for Israel and fell in love with someone else, teased defendant who attempted to strangle her.
• Finally, defendant strangled woman to death, after extensive 'incitements'.
• Under psychiatrist's analysis, woman was attempting suicide--but this was based entirely on conversation with the defendant, since psychiatrist never met victim.
• Seems to suggest that any domestic violence case should be entitled to a jury instruction of manslaughter.
• Court reverses jury judgment (which found defendant guilty of murder).

People v. Wu

[235 Cal. App. 3d 614] 1991 California Court of Appeal (cb415)

• Wu was going to commit suicide, and due to 'cultural background' thought no one would want her son, killed her son but failed in her own suicide.
• Defense wanted jury instruction concerning defendant's cultural background, appealing this issue.

For next time, everyone from Jeanette back is 'on'.

Tuesday, February 12, 2002 (Class 16) (Assignments 16-17)

People v. Wu

[235 Cal. App. 3d 614] 1991 California Court of Appeal (cb415)

• Would defendant's requested jury instructions have given different result? (That her cultural background should be taken into account).
• What is provocation standard?
  • Standard can be on 'spectrum' from 17th century objective view (adultery, etc., situations) to subjective standard (any situation where defendant is very upset).
  • California's standard is much more towards subjective standard, similiar to Model Penal Code:
    • § 210.3: (1)(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.
• Problem with reasonable person standard--reasonable tend not to be violent. Model Penal Code solves this by allowing the act to be reasonable when viewed from the perspective of someone in actor's situation.
• Cooling time: can't nurse grudge over extended period of time and then erupt. (see Berry case, where defendant waited over long period of time before killing victim.)

Intentional killings are either murder or voluntary manslaughter--problems with voluntary manslaughter category, though.

Commonwealth v. Welansky

[55 N.E.2d 902] 1944 Massachusetts Supreme Judicial Court

• 492 people died in Cocoanut Grove fire (resulted in a revolution in fire safety regulationsand practices).
• Welansky, proprietor of club, is accused of involuntary manslaughter.
• Welansky was in hospital night of fire.
• Exits in club were either locked or hidden or opened inward.
• Court is focused on difference between 'recklessness and wantonness' and 'negligence'.
• Wilful refers to conduct rather than resultant harm. (quite rare that someone actually does not intend their conduct).
• Even if a person is so stupid or heedless, cannot escape imputation of wanton or reckless conduct if reasonable person would have recognized gravity of situation.
• Holding in this case reduces manslaughter to a negligence standard, although one might expect jury would have found against defendant even under recklessness standard.
• "Hard cases make bad law"--should standard have been lowered to negligence?

Case of father who accidentally left child in car, who then died. Maybe no utilitaritarian justification for punishment, but what about retribution?

State v. Williams

[484 P.2d 1167] 1971 Washington Court of Appeals

• Parents did not take their child to doctor after it had a toothache (which eventually turn gangrenous, and then child died).
• Parents were worried that State would take away their child if they took it to doctor. Had rational concern that child would be taken away because they were Indians.
• Court finds parents did not exercise 'ordinary caution'. Reasonable person standard.
• Odor from gangrene would have made reasonable person take child to doctor, before September 5 (after which it would have been too late to save baby).

For next time, Christina to Larry, and over to Anna (are 'on').

Wednesday, February 13, 2002 (Class 17) (Assignments 17-18)

State v. Williams

[484 P.2d 1167] 1971 Washington Court of Appeals

• Standard in Washington seems to be ordinary caution--similar to common law negligence rule.
• Did parents not exercise ordinary caution between September 1 and September 5, when they could still have saved child's life, and gangrenous odor became apparent? If so, under Washington standard, it would appears they were guilty of manslaughter.
• Should defendant's Native American background effect standard of ordinary caution? Can't tell from trial judge's decision.
• Model Penal Code does not suggest that in negligence cases reasonable person standard should take into account person's specific ethnic background.
• Is this case consistent with Commonwealth v. Twitchell, where parents were found not guilty after failing to get medical care for their child on advice from Christian Science authority who had read Attorney General's opinion? Christian Science is white, upper middle-class religion (unlike Native Americans).
• Williams were ultimately sentenced to three years suspended sentence.

Reckless Homicide

• Unintentional killings: start with manslaughter and 'move up' to murder.

Mayes v. People

[106 Ill. 306] 1883 Illiniois Supreme Court

• Mayes was intoxicated but not unconscious; threw beer bottle at wife which ignited the lamp she was carrying and killed her.
• Court gave jury instructions that if defendant had abandoned and malignant heart, he would be guilty.
• Resembles convicting someone because of their bad character. Is this fair?

Commonwealth v. Malone

[47 A.2d 445] 1946 Pennsylvania Supreme Court

• Two teenagers were playing 'Russian poker' where one put gun up to other's head and pulled trigger three times, killing him. Malone thought bullet was in chamber that would not have caused gun to fire.
• Malone claims murder was not intentional, since he thought there was no chance gun would fire. Everyone would agree, though, that behavior was reckless.
• Is it moral character of behavior that is driving court's conviction?

Commonwealth v. Woodward

[1997 WL 694119] 1997 Massachusetts Superior Court (cb455)

• Child in care of nanny died from being shaken.
• Prosecutor charged defendant with second degree murder (apparently thinking he could get plea bargain for manslaughter).
• Nanny went on trial, question of whether jury should have option of convicting of lesser offense. Defense decided not to ask for instruction of option of lesser offense; jury was given only second-degree murder or not guilty.
• Jury convicted defendant of second-degree murder. Judge reversed jury verdict and entered judgment of involuntary manslaughter.
• Extraordinarily unusual for judge to bail out defendant this way (would never happen in State where judges are elected).

Dog Cases

• Does owning a dangerous dog constitute recklessness? Abandoned and malignant heart? Should dog owners be found guilty of murder? Then should anyone who leaves a gun around their house guilty of second-degree murder on abandoned and malignant heart theory? If it is loaded?
• California (like Massachusetts) has low standard for murder: if it is illegal to have attack dog under these circumstances, therefore it's murder.

People v. Stamp

[2 Cal. App. 3d 203] 1969 California Court of Appeal

• Defendant and accomplice robbed store; after robbery, one of employees died of heart attack. Employee had heart disease but medical testimony was offered that robbery precipitated attack.
• Defendant is accused of felony murder. State of mind required for murder (purpose, intent, 'abandoned and malignant heart') is replaced with state of mind required for underlying felony.
• In some jurisdictions, defendants would be guilty of capital murder.
• Under Model Penal Code (no felony murder), might be guilty of negligent homicide, if prosecution could show that a reasonable person in defendant's position could hav foreseen victim's death.

Max to Ariel are 'on' tomorrow.

Thursday, February 14, 2002 (Class 18) (Assignments 18-19)

People v. Stamp

[2 Cal. App. 3d 203] 1969 California Court of Appeal

• Under Model Penal Code, what crime would Stamp has committed?
  • Murder
  • Voluntary Manslaughter
  • Involuntary Manslaughter
  • Negligent Homicide
• Empirically, there is only a 0.59% risk of homicide in armed robbery.
• Model Penal Code requires, for negligent homicide, substantial and unjustifiable risk.
• For involuntary manslaughter--requires recklessness--the defendant needed to be aware of substantial and unjustifiable risk.
• Under California law, Stamp's act becomes First Degree Murder (in many states--e.g., Georgia--Capital Offense), even though without the Felony Murder Rule, act might not even be criminal:
  • California Penal Code §189: All murder which is perpetrated by means of a destructive device...or which is committed in the perpetration of, or attempt to perpetrate, arson, rape, carjacking, robbery, burglary, mayhem, or any acts punishable under...is murder in the first degree.

Why felony murder rule?

1. Extreme recklessness
2. Bad people should be strictly liable
3. Safer felonies
4. Deter felony to begin with

• Compare Regina v. Faulkner, where sailor lit match while stealing rum, burned ship down. Faulkner was not held liable for burning down ship.
• Limiting predicate felonies: question of whether felony is inherently dangerous. Model Penal Code labels felonies as either predicate felony or not at all.
• Misdemeanor-manslaughter: In some states, where someone commits a misdemeanor and in the course someone dies, this becomes manslaughter.
  • Case where person shot at hunting decoy, killing hunter. Committed misdemeanor in that migratory birds may only be taken with shotgun and not shotgun. Was found guilty of manslaughter.

People v. Gladman

[359 N.E.2d 420] 1976 New York Court of Appeals

• Defendant entered delicatessen, robbed them, went to bowling alley. Later, when police officer was exiting car, defendant shot and killed him (15 minutes after committing felony).
• Need to determine whether homicide was part of felony murder or independent crime.

Bethany to Michelle are 'on' for Tuesday.

Tuesday, February 19, 2002 (Class 19) (Assignment 19)

• Burglar runs stop sign, pursued by cop, eventually kills someone in car crash. Oklahoma Court holds that there isn't a sufficient nexus between the felony (burglary) and the homicide (the car crash).
• On the other hand: Court in case where driver with fraudulent license plate kills someone in crash, court finds he is guilty of felony murder.
• Model Penal Code is silent on duration between felony and murder.

People v. Hickman

[297 N.E.2d 582] 1973 Illinois 3d District Appellate Court

• Hickman and Rock, unarmed, are fleeing a robbery. Cop kills another cop accidentally, thinking it is one of the burglars.
• Holding: Hickman is guilty of felony murder, as murder occurred in course of escape, even though Hickman did not shoot the victim.
• Court looks at two cases: People v. Payne--victim dies, killer is either victim or defendant. Morris: co-defendant dies, victim fires fatal shot.
• Illinois Supreme Court found Payne to be felony murder, although Morris was not felony murder.
• Court focuses on identity of deceased: in Payne, deceased is innocent, whereas in Morris, deceased was felon.
• Morris: justifiable homicide--no crime at all--this is killing that the law 'authorizes' (where robber is killed).
• Payne: at best, excusable homicide. Police officer would have excuse for homicide, even though it is not desirable behavior.
• Illinois court decides case is more similar to Payne than to Morris, since victim was innocent.
• New York, however, provides exceptions for felony murder. In particular, on facts of Hickman, defendants were not armed.
• In absence of felony murder rule, what could Hickman be guilty of?
  • Burglary, obviously.
  • Possibly involuntary manslaughter--recklessly ignored danger of which he was aware, when cop yelled 'halt police.'

DeSean? McCarthy?

• Andre borrows car, turns it over to McCarthy? for a couple of dime bags of cocaine.
• After a week, car has not been reported as stolen. McCarthy? sees police car following him, starts to flee. Eventually McCarthy? jumps out of car, starts running. Pursuing police officer eventually hit by car of cop aiding in chase.
• Question is whether McCarthy? can be convicted of felony murder.
• McCarthy? waived right to jury trial, hoping for better verdict from judge.
• Ultimately received 40 year sentence, although given first-degree murder conviction should have been life sentence. Case is on appeal.

People v. Washington

[402 P.2d 130] 1965 California Supreme Court

• California rule: in order to be convicted of felony murder, actual killing must be committed by the felon.
• Washington is not guilty, since burglary victim killed co-burglar.

Taylor v. People

[477 P.2d 131] 1970 California Supreme Court

• Taylor is outside in escape car. Smith and Daniels are robbing Jax Liquors, when Mrs. Smith shots robbers. Then Mr. Smith grabs gun and shots robbers. Smith died and Daniels was wounded.
• Can Taylor be convicted of murder?
• Under California law, from Washington, we know that this cannot be felony murder, since the murder was not actually committed by the defendant.
• But under vicarious liability, Taylor can be liable for Daniels and Smith's abandoned and malignant heart, in waving gun around. Defendants had mens rea (abandoned and malignant heart), did act (held up liquor store), that caused a death.
• Degree of murder--California Penal Code § 189 provides for first degree murder when murder is perpetrated by means of a destructive device or which is committed in perpetration of felony (i.e., felony murder).
• Paradox: Taylor's crime cannot be felony murder, since he didn't pull the trigger, but since it was committed in course of felony, it is first degree murder.

Hypothetical Question

• A and B commit burglary, escape in Cadillac. Police approach B who fires on cop, another cop then kills B. Is A guilty of felony murder?

Adam to Carrie are 'on' for tomorrow (on death penalty material).

Wednesday, February 20, 2002 (Class 20) (Assignments 20-21)

Merger

• Although Model Penal Code abolished felony-murder, § 210.2 (1)(b) allows for circumstances manifesting extreme indifference to value of human life to be presumed under enumerated felonies.
• Merger is only an issue in jurisdictions where non-named felonies can contribute to felony-murder (second degree murder).
• Without the doctrine of merger, almost every intentional killing could be felony-murder, since when the criminal draws the gun and fires, he is guilty of attempted murder, assault with a deadly weapon, etc.. But this is not what felony murder is trying to capture.

People v. Moran

[158 N.E. 35] 1927 New York Court of Appeals (cb501)

• If charge was felony-murder, State would not have to prove any mens rea apart from that required for the felony; also, doesn't give the jury any other options other than first-degree murder and acquittal.
• Other alternatives would include premeditated and deliberate murder or second-degree murder (all intentional killings which are neither felony-murder nor premeditated murder in New York).
• For felony-murder, first need to decide what sort of predicate felony you have (what sort of felony is it in the abstract) and then merger­-does the felony merge into the murder?

• Courts come up with doctrines of felony-murder, merger, etc., in order to limit reach of felony-murder.
• Model Penal Code does not recognize felony-murder.
• Need to know that no court will allow the immediate preceding act of 'starting' the murder will never be a predicate felony (except possibly Illinois).

History of Capital Punishment

• Roots of Capital Punishment go back to roots of punishment itself
• Modern move against capital punishment started in 18th century by Italian Biccardi, picked up by Hume.
• Arguments against capital punishment: moral/religious, utilitarian.
• Historically, in England, nearly everything was capital crime; but very few were actually executed.
• Pennsylvania, latter part of 18th century, developed idea of degrees of murder, in order to give juries the choice to convict someone and know they wouldn't be executed.
• Tennessee, mid-19th century, idea that juries had discretion about whether death was imposed or not.
• By middle of 20th century, jury discretion was widespread.
• After World War II, movement against capital punishment began; now effectively all of Europe has renounced Capital Punishment and new countries must abolish Capital Punishment in order to join European Union.
• NAACP turned its attention towards capital punishment, from 1967 on, there were no executions; all executions were stayed, waiting for issue to get to Supreme Court.
• If capital punishment was arbitrary and capricious because it was discretionary, some states moved to make it mandatory; others moved towards model penal code approach. Irony is that people who drafted model penal code were all imposing capital punishment, but they thought they would come up with a fair way of imposing capital punishment if it were imposed.
• Every state that currently has capital punishment, first need to be convicted of most serious form of murder, followed by separate proceeding. Typical requirement to be death eligible is aggravating circumstance beyond most serious form of murder. Then jury needs to weigh aggravating circumstances against mitigating circumstances, to decide whether defendant can live.
• Separate out guilt phase from sentencing phase: pragmatic reason is that defendant might want sentencer to have some information he would not want guilt phase jury to have because it might prejudice his case. Most important mitigating evidence for sentencer is that defendant takes responsibility (and is sorry), but wouldn't want guilt phase jury to hear this.
• 1976 Supreme Court case approving current system: Greg v. Georgia: Can't have mandatory death sentences, but can have structured discretion.
• Biggest variable in death penalty numbers is how many cases are charged as death penalty cases (i.e., the prosecutor).
• #1 aggravating circumstance for capital case is felony-murder.

Thursday, February 21, 2002 (Class 21) (Assignment 21)

Jones v. United States

[527 U.S. 373] 1999 United States Supreme Court (cb519)

• Jones, soldier on Air Force property, in Texas, sexually assaulted and murdered Tracie Joy McBride?.
• Federal Law is applied because crime occurred on federal property.
• First, Jones needs to be found to be death eligible:
  • Intent to commit the murder
  • Aggravating circumstance (need to have at least one statutory aggravating circumstance)
• Need to have some sort of narrowing function to limit capital murders from all murders
• After making determination that person is death eligible, States range greatly--Georgia allows capital punishment for anything at that point, North Carolina requires balancing aggravating and mitigating factors.
• Federal system requires jury to consider all factors, both statutory and non-statutory, that jury finds aggravating, as well as all factors that the jury finds mitigating.
• Defendant claimed that prosecutor was 'double counting' non-statutory aggravating circumstances, putting too much weight on aggravating 'side of scale' if jury is 'weighing' them.
• Court finds that even if aggravating circumstances were duplicative, they were not harmful, but they were not duplicative (this is actually minority opinion).
• Defendant also argues that aggravating circumstances are overly broad and unconstitutionally vague ('heinous, atrocious, or cruel').
• Distinction between vulnerable victim and victim impact. Supreme Court in 1980's decided it was unconstitutional for jury to look at victim impact evidence; two years later Court reversed itself in Booth v. Maryland, finding that victim impact evidence is always admissible.
• Main justification for Gregg was to eliminate capriciousness in capital sentencing, but with introduction of non-statutory aggravating and non-statutory mitigating factors (in Lockett), system seems to have returned to its pre-Gregg capriciousness.
• Defendant requested instruction that if jury deadlock occurred, judge would sentence him to life imprisonment without possibility of parole. Court finds that it is constitutionally required to tell jury that life imprisonment alternative exists, but not required to tell them that this alternative will be imposed if jury is deadlocked.

Lockett v. Ohio

[438 U.S. 586] 1978 United States Supreme Court (cb538)

• 1972 Furman abolished Capital Punishment, 1976 Gregg reinstated Capital Punishment, must be non-arbitrary.
• Lockett essentially ended effort to produce consistency in capital punishment.
• Ohio has modified balancing system, where only three mitigating factors can be considered.
• Court finds that limiting mitigating factors is unconstitutional; even information concerning prisoner's conduct since the time of his arrest may be material in determining mitigating factors.
• Under Lockett standard, sentencing hearing becomes psychological portrait of defendant. Try to humanize defendant, to make jury think he is 'one of them'.
• Most contemporary death penalty litigation focuses on whether proper mitigating and aggravating factors were allowed, whether the jury instructions were proper, or whether the person was adequately represented.

Tison v. Arizona

[481 U.S. 137] 1987 United States Supreme Court (cb546)

• Problem with 8th amendment "cruel and unusual" is that punishment may be cruel and usual--capital punishment was common when bill of rights was adopted and is arguably common today. In 1972, when there hadn't been an execution for several years, and States passed new capital statutes, proponents could use 'evolving standards of decency standard'.
• Enmund case, cited frequently in Tison, finds capital punishment under these circumstances to be quite rare, therefore cruel and unusual.
• Tisons broke father and cell-mate out of jail with guns, ended up killing people whose car they had hijacked.
• Defendant did not actually kill the people, but participated in jail break and drove car.
• Court looks at state practice with respect to situation of defendant to determine if it is common. Very odd way to determine constitutional law.
• Big current issue with respect to usualness: whether to take into account foreign jurisdictions.

McCleskey? v. Kemp

[481 U.S. 279] 1987 United States Supreme Court (cb555)

• One of the most important cases determined by Supreme Court in last thirty years.
• Victim was white police officer. Defendant denied that he committed crime.
• Case occurred in Fulton County, Atlanta, where there are relatively few capital trials.
• When trial judge denied relief on grounds of racial discrimination, granted relief on other grounds.
• After this suit, McCleskey? filed another habeas corpus petition, won at circuit level, denied again at Supreme Court on basis that claims should have been raised in first petition.
• NAACP legal defense fund commissioned 'Baldus study', massive work on racial discrimination in death penalty. Then selected McCleskey? case, since it was black defendant who was accused of killing white victim.
• Supreme Court assumes study is accurate (there is now no dispute on accuracy of Baldus study).
• Defendant raises 14th amendment (equal protection clause) and 8th amendment (cruel and unusual punishment) claims.
• For 14th amendment, need to show discriminatory intent.
• Defendant would need to show that race was a conscious factor in decision-making, either in his race or in victim's race.
• 14th amendment claim is denied because defendant can't prove he was intentionally discriminated against.
• 8th amendment claim: race is an arbitrary factor. To the extent that the system uses race as a criteria for seeking (or not seeking) death penalty, the system is unconstitutional.
• E.g., if Georgia had rule that people whose name began with A-F and committed crime on Monday, they would be eligible for death, this would be recognized as an arbitrary system, and thus unconstitutional.
• Major actor in racial disparity of death penalty is actually prosecutor, not juries or police. Yet court argues that jury discretion is essential to working of criminal justice system.

Spring Break (February 23-March 2)

Notes are continued in ClassNotesCriminalLawGivelber2, which should load faster!

Tuesday, March 5, 2002 (Class 22) (Assignments 22-23)

McCleskey? v. Kemp

(continued)

[481 U.S. 279] 1987 United States Supreme Court (cb555)

• Capital punishment discussion--United States being one of very few countries that continues to execute people. Racial basis in sentencing and executions.
• Very few executions as a proportion of death sentence. People tend not to care so much about actual executions as death sentences.
• McClesky? shows 11:1 ratio on death penalty convictions based on race of victim. Tries to argue that this violates the arbitrariness standard set forth in Furman.
• Racial basis throughout system: where police patrol, who gets stopped, who gets arrested, etc.. To fix racial problems in justice system, you'd have to rebuild the entire system from the ground up.

Rape

• No crime has undergone greater transformation over last thirty years than rape.
• As recently as 1960's, needed not only corroboration of penetration (i.e., doctor's testimony) but also corroboration of identity of defendant.
• At that time, this was considered most progressive--progressive = make it hard to convict defendant, but also, ironically, meant anti-feminist.
• No jurisdiction currently requires corroboration on identitification.
• Although could not use prior activity of defendant in case, could use prior record of victim to exonerate defendant. (now it is possible to refer to prior activity, not to prove current activity, but to prove defendant may be lying).
• Model Penal Code definition of rape:
  • Crucial element is that defendant compels by force or threat victim to have sexual intercourse.
  • No resistance nor consent requirement on part of victim in Model Penal Code definition.
  • Mens rea not defined, thus should apply purposefully, knowingly, or recklessly (Model Penal Code § 2.02(3)).
  • What does recklessness apply to?
    • Could be victim's consent, compulsion by force, etc..
    • Thus, needs to be consciousness of risk which defendant then disregards.
    • Thus: defendant needs to be conscious of risk of compulsion that he then disregards.
  • Model Penal Code is thus not an easy standard for rape convictions.

Wednesday, March 6, 2002 (Class 23) (Assignment 23)

Brown v. State

[106 N.W. 536] 1906 Wisconsin Supreme Court (cb1081)

• 16 year old girl is walking in field, starts talking with 20 year old from neighborhing farm, who forces himself upon her and has intercourse.
• Jury found for girl; Wisconsin Supreme Court overturns conviction because girl did not use utmost resistance.
• In this case, utmost resistance appears to be an element of the crime (rather than evidence of non-consent.)
• Victim's failure to inflict actual damage on defendant, to this court, means elements of crime have not been proven.
• Although this is generally thought to be the 19th century standard, it persists for the most part until the 1970's.
• Standard requiring certain behavior of victim is quite unusual: don't require victim of robbery to be shot before handing over his wallet in order for defendant to be guilty of robbery.

People v. Dorsey

[429 N.Y.S.2d 828] 1980 New York State Supreme Court (cb1087)

• Victim is on elevator with 15 year old defendant male, much heavier and larger than she, he stops elevator between floors.
• According to victim's testimony, there was no resistance at all (even if standard had moved, by change of statute by legislature, from utmost resistance to earnest resistance.)
• Court says behavior just needs to be reasonable under the circumstances--since she was in elevator lack of visible earnest resistance was reasonable.

People v. Warren

[446 N.E.2d 591] 1983 Illinois Supreme Court (cb1093)

• Case suggesting resistance requirement still be applied in stranger rape.
• Reasonable person would find defendant's act wrong--people were strangers, he compelled stranger to have sex after meeting her on top of a hill on a bicycle.
• Court finds defendant did not sufficiently resist for conviction to be upheld.

People v. Barnes

[721 P.d 110] 1986 California Supreme Court

• Victim goes to defendant's house for marijuana, long (disputed) testimony ensues concerning defendant demands victim have intercourse with him.
• Jury convicts defendant of rape.
• Intermediate appellate court concluded that rape occurs when victim resists defendant but fails to overcome defendant's force. Court seems to rely on rape case before statutory amendment was made.
• Why did appellate court rely on old standard?
  • Maybe neither side's council relied on new statute.
  • Maybe court didn't like the new standard.
• Old standard: resistance is overcome by force of violence or person is prevented from resisting by threats of great and immediate bodily harm, accompanied by apparent power of execution.
• New standard: act of sexual intercourse...accomplished against a person's will by means of force or fear of immediate and unlawful bodily injury on the person or another.
• Objective standard: even if victim was in fear, if reasonable person would not have been in fear, then crime was not committed. Thus: if defendant intended to frighten victim, and she was afraid, but a reasonable person would not have been frightened, then crime is not committed.

State v. Smith

[554 A.2d 713] 1989 Connecticut Supreme Court

• Connecticut has no requirement on resistance, little focus on force. Question is 'Was this sex against the consent of victim?'
• Acquaintance rape situation: after victim spits at and kicks defendant, is following conduct consensual as opposed to forceable?
• If test is whether reasonable person in defendant's position would have been aware that this was not consensual, then state of mind that state would need to prove vis-a-vis element of consent is negligence.
• Court concludes that no 'specific' intent is needed, only 'general' intent to do acts which cause harm, rejecting standard which requires defendant to have actual awareness or reckless disregard for nonconsenting status.
• Court contrasts with British House of Lords decision where Court found defendant innocent because he didn't believe act was non-consensual, regardless of what reasonable person would think.

Question to ask: even with these different standards, would there be actually different results in these cases?

New York holds on to word 'resistance'; unless it is totally within the eyes of jury, might make it somewhat harder to get conviction in Smith and Barnes, although you can find elements of resistance in those cases.

Would have no problem getting conviction in Dorsey in Connecticut or California, however.

Deal with MTS and Fisher tomorrow.

Tuesday, March 12, 2002 (Class 25) (Assignment 25)

• Theft: criminal law 'mirror image' of civil issues in contract law
• Mitchneck case: very formal treatment of theft. Would have been a difference if employees had receive their paycheck and handed the money back to Mitchneck (this would embezzlement), rather than him keeping it, in which case it as never 'their' property.

'Taking' Element of Theft

• 'Ancient' cases (Carrier, Chisser, Pear): all deal with problem of possession.
  • Carrier: person who was paid to carry item from point A to point B kept item for themself. In 1473, needed to actually take property from victim for this to be larceny. Court came up with doctrine that person giving package has given up package but not given up contents. When carrier 'breaks bulk' (opens the package) at that point he took possession of something that hadn't been given to him. First conceptual step towards dealing with possession.
  • Carrier case would now would be considered embezzlement.
  • Rex v. Chisser: problem of person being given item in store to look at and then absconding with. Too alternatives: one is that it was never actually out of possession of storekeeper even if it was handed over, the other is that because the defendant intended to steal from the moment he asked for it, he obtained possession by 'trick'. False motive turned into into illegal taking.
  • Second theory in Chisser now exists as false pretenses. Model Penal Code § 223.3: theft by deception.
  • Pears case: e.g., go to rent a horse, then keep it. Same problem as Carrier, is it theft by deception, or does thief only gain possession when he doesn't return the horse? Under latter case, we have modern embezzlement.
  • Theoretically, need to prove crime with which you've been charged, i.e., embezzlement or false pretenses. This is why Model Penal Code and many states combine different forms of theft into single crime.

• State of mind: taking with purpose of depriving owner of property permanently.
• Most jurisdictions have crime of 'unauthorized use of a motor vehicle', to deal with people who 'steal' cars for purpose of riding around in them and then leaving them, since they don't have purpose of depriving owner of property permanently.
• Robbery issue: what if defendant thinks he has claim of right to property, does this still constitute purposeful taking of property of another with intent to deprive?

Lund v. Commonwealth

[232 S.E.2d 745] 1977 Virginia Supreme Court (cb1034)

• Defendant Lund, graduate student at VPI, accused of stealing 'computer time'.
• Court finds that 'computer time' cannot be considered goods or chattel.
• Typically jurisdictions have separate criminal statutes for theft of electronic or telephone services, etc..

People v. Sattlekau

[140 N.Y.S. 805] 1907 New York Supreme Court (cb1037)

• Is issue that defendant didn't make misrepresentations, or is there some other element that's missing?
• Not only need to make misrepresentation of present fact, but needs to be of material fact, and victim needs to act on reliance on fact. Defendant claims victim did not rely on misrepresentation.
• What if post-dated check were given for COD payment? Is this fraud/misrepresentation of material fact, relied on in case of delivery?
• Concern that jury will interpret post-dated check as a promise rather than a misrepresentation of material fact. Model Penal Code § 223.3 says that deception will not be found on basis that defendant did not follow through on promise alone.

Mail Fraud

• Moving from common law to statutory crimes.
• Sweep of mail fraud is extremely broad.

Durland v. United States

[161 U.S. 306] 1896 United States Supreme Court (cb1043)

• Defendants sent out letter asking for $5 and promising high return on investment.
• Inchoate crime: doesn't matter whether anyone lost any money or sent them any money. Crime is committed simply by doing the act; doesn't matter if there is a victim.
• Elements of crime: need to have a scheme to defraud which is placed in mail.
• Doesn't require misstatement of present fact, doesn't require materiality, doesn't require reliance. All that is required is scheme to defraud and use of mail.
• Counts as mail as long as mail is used in almost any part of scheme.

United States v. King

[860 F.2d 54] 1988 2nd Circuit Court of Appeals (cb1045)

• Defendants entered into scheme with municipality to avoid competitive bidding requirements by splitting purchase order into smaller separate purchases. Defendants would get contract and give kickback to city officials.
• Defense: city paid a fair price.
• Court held that defense didn't matter, since mail fraud is an inchoate crime. Whether it actually cost someone money in the end doesn't matter, only whether they had purpose to cheat.

United States v. Regent Office Supply

[421 F.1d 1174] 1970 2nd Circuit Court of Appeals (cb1047)

• Defendants were charged with mail fraud because they claimed to be referred to them by a friend when trying to make telephone sale.
• Court doesn't find misrepresentation to be material--was not part of bargain that was eventually made, thus will not find defendants guilty of mail fraud.

United States v. Starr

[816 F.2d 94] 1987 2d Circuit Court of Appeals (cb1047)

• Defendant was paid to sort and send mail by clients, ended up hiding higher cost mail in bags of low cost mail.
• Court found defendant's action not to constitute mail fraud because they did not think defendant's customers were actually 'harmed'.

United States v. Walters

[997 F.2d 1219] 1993 7th Circuit Court of Appeals (cb1048)

• Defendant offered to be agent of college athletes covertly against NCAA rules, offering them money, etc..
• Who was deprived of what? Somewhat questionable that colleges lost anything.

Carpenter v. United States

[484 U.S 19] 1987 Supreme Court

• Prior to Carpenter, government brought mail fraud case against Kentucky politician (McNally?), charging him with depriving voters of Kentucky with right to honest government with insurance scheme. Court held in that case that mail fraud does not protect 'intangible rights' like honest government. Statute was then amended to include 'intangible property'.
• Defendants alleged to have defrauded Wall Street Journal by sharing information and purchasing stocks in advance of printing of stock column.
• Defense: what property was it defendant's purpose to steal?
• Court holds what defendant stole was 'intangible property rights' held by Wall Street Journal in that information.

Extortion

People v. Dioguardi

[203 N.Y.S.2d 870] 1960 New York Court of Appeals (cb1053)

• Victims run office supply business, union picket line starts outside, business is concerned that truck drivers will honor pick line and they will be put out of business.
• If you assume many facts about 'corrupt unions' that aren't actually present in case, then it is an easy extortion case; problem is that they don't prove any actual corruption.

State v. Harrington

[260 A.2d 692] 1969 (cb1059)

• Harrington hires someone to get in bed with client's husband, takes pictures to provide incriminating evidence in divorce action.
• Wife then uses photos to demand settlement, otherwise threatens to bring divorce suit.

Blackmail

• Possible justification: preserve government's right to monopoly in law enforcement

For tomorrow, Heather's row is 'on'.

Thursday, March 14, 2002 (Class 27) (Assignment 27)

• Discussion of mail fraud and Carpenter case--allows federal prosecutors very wide leeway. Could not prove securities violation, instead went for mail fraud.
• Extortion: distinguished from fraud in that information may be true and is a threat.

McCormick? v. United States

[500 U.S. 257] 1991 United States Supreme Court (cb1063)

• Defendant, State Representative McCormick?, accepted money from foreign doctors and supported bill to preserve their license.
• Evidence that people thought there was something wrong: neither side reported the contribution.
• Prosecution charges defendant with Hobbs Act violation, i.e., extortion.
• Not supposed to actually make a contract in accepting money. Cannot accept money on condition of political action.

Evans v. United States

[504 U.S. 255] 1992 United States Supreme Court (cb1068)

• FBI agent goes undercover and offers a bribe to Evans, which he accepts. He then went on to help to rezone land.
• Unusual extortion claim, no threat involved. Court upheld conviction. Only promise is required, not actual performance, to constitute Hobbs Act violation.

United States v. Albertson

[971 F. Supp. 837] 1997 District Court of Delaware (cb1068)

• Defendant opposed construction project, offered to stop opposing project in return for sponsorship of football stadium.
• Court finds defendant did not violate Hobbs Act; there was a 'level playing field'.
• Deeper problem (not mentioned by court) is that defendant was not a government actor.

Robbery

• Model Penal Code does not define mental state with respect to 'inflicts serious bodily injury' in course of committing a theft, thus defendant would at least need to be reckless with respect to infliction of injury.
• Purposely is used in grading section--thus might apply to entire statute.
• Robbery can elevate crime to felony, thus to felony murder, thus to capital murder in some jurisdictions.

Burglary

• Entry into premises with intent to commit a crime--will return when we deal with attempts.

Self-Defense

• Justification v. Excuse
  • If behavior is justified, that means it is socially approved behavior--something you should do. E.g., injuring someone to protect yourself or others.
  • Excused behavior is not desirable but person has no choice, e.g., insanity defense.
• Model Penal Code does not make distinction between justification and excuse.
• Important difference whether criminal law is viewed as utilitarian or retribution.
• Utilitarian: should allow excuse up to the point where social utility will increase.
• Retribution: any response to something that is interfering with victim's right is acceptable, may not be proportional.
• Issue of person who mistakenly kills in self-defense: do we think this is appropriate since person thought their rights were being violated, or not appropriate because it doesn't increase social utility when people commit murder when they're not sure they are in danger.

People v. La Voie

[395 P.2d 1001] 1964 Colorado Supreme Court (cb576)

• Court directed jury to give verdict of not guilty. Judgment of not guilty is entered, case is appealed.
• Colorado permits prosecutor to appeal not guilty verdicts, not to overturn trial, but to get opinion of appeals court that trial court erred.
• Pharmacist was driving home from work late at night, stopped at red light, intoxicated men hit his car push it through red light. He exits car with gun, one man advances towards him and he shoots him.
• Does self-defense need to be based on both subjective and objective belief of danger? (must be sincere and reasonable belief).
• Model Penal Code self defense provision doesn't address reasonable belief--only talks about what defendant personally believed.
• But--where actor is reckless or negligent in having belief, cannot use defense.

For next class, Bob to Christina are 'on'.

Tuesday, March 19, 2002 (Class 28) (Assignments 28-29)

People v. La Voie

[395 P.2d 1001] 1964 Colorado Supreme Court (cb576)

• Should a judge, as a matter of law, decide that a defendant is entitled to self-defense justification?
• Judge in La Voie finds that defendant had right of self-defense as a matter of law.
• When Judge decides right to self-defense, suggests that act is desirable.
• Unusual for judge to make this sort of decision, since it usually reflects the moral sense of the community.

• Model Penal Code § 3.04(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 injury, kidnapping or sexual intercourse compelled by force or threat; nor is it justifiable if...
• Question is: what does deadly force mean for purposes of model penal code? What is force could have been deadly but wasn't?
• § 3.11: A threat to cause death or serious bodily injury, by the production of a weapon or otherwise, so long as the actor's purpose is limited to creating an apprehension that he will use deadly force if necessary, does not constitute deadly force.
• Thus defendant who takes out gun without intent to kill is not exerting deadly force.
• But what if victim then approaches defendant, struggle ensues, victim is shot. Is this use of deadly force justified/excused?
• Different rules in self-defense for force and deadly force, different circumstances. Lose right of self-defense if you are aggressor; once situation escalates, however, you can regain it.
• Model Penal Code prohibits self-defense when actor can avoid situation by refraining from any activity he has no duty to do. Utilitarian justification. But from a 'rights' or 'moral' perspective, this is anathema.
• Model Penal Code: only crimes that deadly force can be used to prevent are kidnapping and rape; otherwise there must be threat of serious bodily injury.
• Shift from objective to subjective standard = vision of world enforced by judge in which certain levels of physical pain inflicted were 'okay' to vision that allows victim to be one to decide risk to be stopped.
• Model Penal Code § 3.05 allows use of force to protect another when actor would be justified under § 3.04 if he were in the situation of the other person. Majority of states go with Model Penal Code that reasonable perception of person who intervenes is what matters for defense of others justification. Minority of states say you actually need to be in situation of person you're trying to help.

State v. Leidholm

[334 N.W.2d 811] 1983 North Dakota Supreme Court (cb581)

• According to North Dakota statute interpreted by Supreme Court, statute is open to subjective or objetive standard of reasonability. Court picks subjective standard for this case.
• Supreme Court says it has always held that subjective standard is appropriate for self-defense because it is 'more just'.
• Subjective standard--'evidentiary decision'--allows jury to consider more information than under objective standard.
• Jury should be able to act on defendant's subjective situation.
• Model Penal Code believes that people who kill because they genuinely believe they are about to be killed are morally quite different from other people who kill.
• Old instructions required jury to evaluate defendant's decision 'regardless of sex' -- this would generally mean male standard.
• Court holds new instructions need to be used: defendant had 'honest, reasonable ground to believe' that they were in danger of serious bodily injury.
• Doesn't hold that belief must just be 'honest', because this would allow too many situations to be justified.
• Classic argument against 'battered woman'' defense: defendant could have left--why didn't they leave if situation was so bad?
• 'Battered woman syndrome' evidence is strange in that defendant's testimony may not have been impeached yet, but evidence seems to serve to rehabilitate defendant.
• Now that battered woman testimony is admissible, court holds that no specific instruction on battered woman syndrome is needed because it would be accounted for in subjective instruction.
• Concern with giving battered woman instruction: suggests that it is a defense in and of itself, whereas really it's supposed to fit within self-defense.
• Counter-argument: doesn't fit within self-defense, should be separate defense.

Julie to Rob are 'on' for next class.

Wednesday, March 20, 2002 (Class 29) (Assignments 29-30)

• Model Penal Code requires retreat only when can be done in complete safety.
• Most jurisdictions do not require retreat, very few require retreat from one's dwelling.

People v. Goetz

[497 N.E.2d 41] 1986 New York Court of Appeals (cb610)

• Grand jury instruction gave 'objective' instruction as to reasonableness, Goetz is challenging jury instruction. Claims that standard is not whether his belief was objectively reasonable but reasonable to him.
• Court holds that standard is that person 'reasonably believes' that force is necessary; reasonable person would be in circumstances of defendant, including experiences.
• Why did judge give jury self-defense instruction?
• Person is authorized to use deadly force if he believes there is forcible robbery.
• Goetz is ultimately acquitted on all charges except carrying firearm; court found Grand Jury standard was correct statement of law, just that defendant's circumstances can be taken into account in determining 'objectively reasonable'.

People v. Abbott

(cb616)

• Case essentially ended idea of rehabilitation in prison system.
• Abbott attacked waiter from restaurant in alley, thinking the waiter was attacking him, based on his experiences in prison, although later realized this wasn't at all true.
• Under Model Penal Code would not be murder.
• Difficult to have doctrine that encompasses Leidholm without excusing Goetz and Abbott.

United States v. Peterson

[483 F.2d 1222] 1973 United States Court of Appeals DC Circuit (cb618)

• Keitt and friends were drinking, drove up to Peterson's house and started to steal windshield wipers.
• Peterson threatens Keitt with gun, Keitt gets wrench from car, Peterson tells Keitt not to take another step, then when Keitt steps forward, Peterson kills Keitt.
• Why does Court hold that Peterson does not have right to self-defense?
  • Peterson was aggressor. Could have used commensurate force but not deadly force.
• Under Model Penal Code, pointing gun is not "deadly force". Thus Peterson would have right to self-defense since he was not using deadly force and Keitt was aggressor with wrench.
• Alternatively under Model Penal Code § 3.04(b)(i) the actor, with the purpose of causing death or serious bodily injury, provoked the use of force against himself in the same encounter; thus could find that Peterson provoke the use of force against himself. Different from Court's reasoning that right to self-defense needed to bo commensurate at beginning.

Tennessee v. Garner

[471 U.S. 1] 1985 United States Supreme Court (cb624)

• Police officer shot 15 year old who was escaping from robbery but was unarmed and not dangerous.
• Tennessee law permitted police to use deadly force to prevent escape from robbery.
• Model Penal Code would permit shooting if actor had reasonable belief that victim was armed.
• Supreme Court finds law unconstitutional as applied in this case, because it doesn't meet the test of 'reasonable' search and seizure. No reason to think person is dangerous.

Tomorrow Cathleen to Darren are 'on'.

Thursday, March 21, 2002 (Class 30) (Assignments 30-31)

Tennessee v. Garner

(continued)

[471 U.S. 1] 1985 United States Supreme Court (cb624)

• When would it be acceptable for officer to shoot suspect, other than in self-defense or defense of others?
  • If the officer has cause to believe the fleeing felon poses a danger to others in his flight.
  • When officer has reason to believe the felon just committed crime of violence.
• Should our system permit officers to shoot after the crime? Is this to prevent further damage, or because we don't like the idea of felon getting away?

People v. Couch

[439 N.W.2d 354] 1989 Michigan Court of Appeals (cb629)

• Michigan law allows use of deadly force in self-defense of felonious theft--i.e., someone stealing your car.
• Does constitution force state to characterize this behavior as criminal?

People v. Ceballos

[526 P.2d 241] 1974 California Supreme Court (cb631)

• 'Spring gun' cases
• Two issues
  • Would Ceballos have been entitled to shoot had he been present?
    • No: protecting property does not justify taking life.
    • However: cases where homeowner shoots burglar are almost never prosecuted, and almost never end in conviction, because homeowner can always make argument that he thought there was danger.
  • Is there a difference between the spring gun and Ceballos hiding with gun?
    • Even if he would have been justified in firing if he had been present, might lose right to self-defense if he is sleeping, and thus not actually making decision to use force.
• Model Penal Code § 3.02: (1) Conduct that the actor believes to be necessary to avoid a harm or evil to himself or to another is justifiable, provided that: (a) the harm or evil sought to be avoided by such conduct is greater than that sought to be prevented by the law defining the offense charged.
• Is Model Penal Code requiring objective or subjective standard for choice of evils defense?

The Queen v. Dudley & Stephens

[14 Q.B.D. 273] 1884 Queen's Bench Division (cb637)

• Four men were going to sale from London to Australia, known to be risky venture.
• Accident happened, men were lost at sea for many days, were about to starve to death.
• Killed youngest person and ate him for sustenance.
• Court delivered opinion that defendants committed murder, knowing that sentences would be commuted.

Beth to Elizabeth are 'on' for next class, on 'duress'.

Tuesday, March 26, 2002 (Class 31) (Assignments 31-32)

• Model Penal Code would allow burning down someone's house to prevent entire town from burning.

People v. Unger

[362 N.E.2d 319] 1977 Illinois Supreme Court (cb649)

• Prisoner, after being assaulted and sexually molested, escapes to avoid further attacks.
• Had been serving a one- to three-year term for auto theft.
• After being caught, is sentenced to three- to nine-year term for escape.
• Supreme Court actually finds that defendant was entitled to submit defense of necessity to jury, overruling error by lower court.
• Prosecution argues that court should follow Lovercamp, California decision which required prisoner to do everything possible within prison system before escaping, and then report themselves to authorities as soon as they do escape.
• Lovercamp standard, realistically, is of little use to escapees, since most likely result of reporting oneself is to be returned to the same conditions they were escaping from.

State v. Warshaw

[410 A.2d 1000] 1980 Vermont Supreme Court (cb655)

• Defendant protestors were trying to stop a nuclear power plant from restarting, claiming necessity.
• Court rejects necessity defense:
  • Majority Opinion: Danger must be imminent/immediate, thus defense can't be presented.
  • Concurrence: Policy decision by legislature and regulatory agencies, ergo no defense.
  • Dissent: Danger might have been immediate, but defendants weren't given chance to introduce evidence on these dangers. Also, congress never intended that person who is preventing nuclear disaster to be barred from using necessity defense.

State v. Crawford

[861 P.2d 791] 1993 Kansas Supreme Court (cb664)

• Defendant committed several burglaries, forced people to help him, etc., claiming that he was under duress to pay back cocaine debt to dealer who threatened to harm him and his family.
• Defendant got duress jury instruction, but instruction said threat must be imminent.
• Myers precedent requires continuous threat as well.
• Court wants to limit duress to situations where defendant doesn't have physical ability to do anything other than criminal conduct

Michelle to April for tomorrow's class (first insanity class).

Wednesday, March 27, 2002 (Class 32) (Assignments 32-33)

United States v. Contento-Pachon

[723 F.2d 691] 1984 9th Circuit Court of Appeals (cb673)

• Contento-Pachon is threatened with death of family unless he swallows cocaine balloons for import into United States.
• Court held there was sufficient evidence for jury to consider duress defense in this case.
• Case distinguished from Crawford because Crawford put himself in position (by purchasing cocaine and accruing debt) while Contento-Pachon thought he was getting a job driving a car for someone and then was forced into smuggling cocaine.
• Reasonableness of fear may have been in question in Crawford while it was assumed in Contento-Pachon.
• Model Penal Code standard for duress: 'person of reasonable firmness'.

Williams v. State

[646 A.2d 1101] 1994 Maryland Court of Appeals (cb675)

• Defendant claimed he was abducted by three men who thought he knew about drug stash, told them drugs were at victim's house.
• Under Model Penal Code, if person was reckless is getting into situation, duress defense is unavailable. If the person was negligent, they can only be held guilty of crimes were mens rea requirement in negligence.
• Under facts of this case, defendant was convicted of attempted robbery with deadly weapon.

• English case which barred duress defense whenever charge was homicide, because if duress is 'lesser evil' defense, there homicide is always greater evil. Involved IRA bombing. House of Lords overturned, saying that duress should be available as a defense even in homicide cases, as long as defendant did not actually pull trigger.
• Model Penal Code does not say crime in question needs to be less serious than one threatened against person exerted duress defense

State v. Hunter

[740 P.2d 559] 1987 Kansas Supreme Court (cb677)

• Hunter was hitchhiking, was enlisted by driver in aiding homicide by keeping watch. Reasonable evidence that Hunter had no opportunity to escape.
• Court allows duress when only connection to homicide is felony murder, as opposed to situation where defendant actually pulls the trigger.
• Once duress is defense for homicide, it no longer becomes a 'lesser evil' defense.

• Some courts have extended Battered Woman Syndrome defense from 'self-defense' to 'duress'. Problem: suggests that woman is not 'free moral agent', simply carrying out will of the batterer.

• Hypothetical of drunks lying in road. In first case, person is in car with another person who has a gun to his head and tells him to run over people or he'll be shot. In second case, no person with gun but breaks have failed. Model Penal Code would allow duress defense in first situation. Can necessity be used in second case, where two lives are being sacrificed to save one?
• Model Penal Code: In duress case, 'at least someone is guilty', although under necessity there is no other guilty party.
• Arguably, don't need duress defense, because no jury would convict someone in these circumstances.

Insanity

People v. Serravo

[823 P.2d 128] 1992 Colorado Supreme Court (cb689)

• Prosecution is taking advantage of procedure in Colorado that allows appeal of acquittal for purposes of getting clarity on point of law.
• Defendant was found not guilty by reason of insanity.
• Serravo stabbed wife, claims he thought God told him to. Told police and wife that intruder entered house and attacked her.
• Sanity and insanity are not medical categories--but are questions of law decided by judges and lawyers.

Nicole to Helen are 'on' for tomorrow.

Thursday, March 28, 2002 (Class 33) (Assignments 33-34)

Three places in Criminal Justice system where mental situation comes into play:

• Competent to stand trial
• Insanity defense at trial
• Competent for execution

Anyone who raises NGI defense has already passed competency test. Issue of forcing defendant to take anti-psychotic drugs in order to be competent to stand trial.

People v. Serravo

(continued)

[823 P.2d 128] 1992 Colorado Supreme Court (cb689)

• Trial court gave jury instruction that if defendant was "incapable of distinguishing right from wrong" then defendant is not guilty. Question as to whether wrong means legally wrong or morally wrong.
• How to distinguish Warshaw and Terry: defendants don't believe themselves to be insane. The defendant thinks they're doing the right thing because they believe it is morally correct.
• Court holds that societal standard should be used for 'right' and 'wrong', not defendant's personal standard.
• What possible moral order would permit killing wife to open sports complex (as Serravo claimed)?
• Most jurisdictions use test like Colorado, known as M'Nagthen rule. Criticized as being cognitive but actually has large emotional component as well.
• M'Naghten imagined mind as split between feeling and thinking, where insanity only effected the latter. Criticized by psychology because it artifically divided human consciousness.
• Durham case changed doctrine to allow psychological and psychiatric evidence, allowed for irrestible impulse defense.

• Model Penal Code definition of insanity: substantial capacity to appreciate criminality and substantial capacity to conform behavior to the law. Focuses both on cognition and behavior.
• After attempted assassination of Ronald Reagan, major reform of insanity laws occurred: majority reverted to M'Naghten rule, some have 'guilty and insane', minority retain Model Penal Code rule.

Smith v. State

[614 P.2d 300] 1980 Alaska Supreme Court (cb712)

• Attempt to apply American Law Institute Insanity test
• Smith was soldier who was being dismissed for being 'non-aggressive soldier'. Got gun, took a vehicle, was trying to get out of Alaska. Pursued by police, eventually shot police officer.
• Smith was headed North, very difficult to escape from Alaska by going in that direction.
• Psychiatrist gave evidence that defendant was not mentally ill: he could drive, got a gun, drove out a gate. Comes close to sayig 'if you can function at all in the world, you are not mentally ill.'

Tuesday, April 2, 2002 (Class 34) (Assignments 34-35)

• Clear cut psychotic cases don't ever make it to trial for insanity defense--usually in these cases the dispute, if any, is in the competency hearing.
• Post-Hinckley effort to stop psychiatrists to testifying about legal effect of insanity: Federal rules of evidence: no expert witness can testify as to whether defendant had mental state that was element of crime charged.
• In close case, you may not want jury instruction on insanity, because then jury has option of sending defendant to mental institution; otherwise they may acquit rather than convict.
• As defense council, if you believe prosecution may not have strong case, you may only ask for instruction on more serious charge (i.e., murder/depraved heart).

Jordan Weaver Case

• As a result of bad acid trip, Weaver attacks his girlfriend, becomes incredibly violent.
• Options: Attempted Murder, attempted manslaughter, battery.
• Malk case: if underlying psychosis is triggered by intoxication, then intoxication does not matter in terms of insanity defense.
• Can Weaver be convicted of attempted murder if he is not conscious of what he is doing?
• Model Penal Code § 2.08:

1. Except as provided in Subsection (4) of this Section, intoxication of the actor is not a defense unless it negatives an element of the offense.
2. When recklessness establishes an element of the offense, if the actor, due to self-induced intoxication, is unaware of a risk of which he would have been aware had he been sober, such unawareness is immaterial.

• Thus, under Model Penal Code, would not be guilty of purposeful or knowledge crime.
• If 'intent' is requirement for attempted murder, can Weaver be found guilty under Model Penal Code?

Diminished Capacity

• Shouldn't existence of mental illness ameliorate seriousness of offense?
• Criminal Justice System has answered no.

Jenny to Tara are 'on' for tomorrow.

Wednesday, April 3, 2002 (Class 35) (Assignment 36)

• Retributivist vs. Deterrent Theories of Punishing Attempts
  • Prevent a form of behavior that, does not in itself produce a bad result, but has a tendency to produce a bad result
• Should attempts been punished as harshly as successes? Depends on justification for punishment.
• Majority standard, as in Lyerla, is that you can't be guilty of attempted murder unless you intend to kill them, even if you had killed them, it would have been murder. Reflected in Model Penal Code § 5.01.
• Example situation under Model Penal Code: Statutory Rape. Person believes person is 19, she is really 15. Before engaging in sexual conduct, police arrive. Is this attempted statutory rape?
  • Under § 5.01 (a), would not be guilty, because he does not believe circumstances to be such that his conduct would be a crime, even though crime itself is probably strict liability.
  • Under (c), however, might be guilty, since defendant was doing everything required for crime, including mental state, to be guilty had he succeeded (because statutory rape has no state of mind requirement).

People v. Murray

[15 Cal. 160] 1859 California Supreme Court (cb765)

• Murray made preparations to marry his niece, but never actually went through with ceremony. Question is whether this should be considered an attempt.
• Question of line between preparation and attempt.
• Standard is that if, but for the intervention of circumstances independent of the will of the defendant, crime would have occurred.
• Thus, Murray is not guilty, he only prepared but did not attempt to marry his niece.

• Model Penal Code calls for substantial step in course of conduct, must be 'strongly corroborative' of actor's criminal purpose.

• For Thursday, will start with McQuirter? v. State. Nicholas to Max are 'on'.

Thursday, April 4, 2002 (Class 36) (Assignment 36)

• Attempt Doctrines
  • Dangerous proximity
  • Indispensable element
  • Probable desistance
  • Abnormal step approach
  • Unequivocality test

McQuirter? v. State

[63 So. 2d 388] 1953 Alabama Court of Appeals (cb769)

• 'Abnormal step' theory of attempt
• Black defendant, claimed he was standing on street and walking on street. According to white "victim's" report, he got within a few feet of her, and that he attempted an assault with an intent to rape.
• Defendant is sentenced to $500 fine, hard to believe that that was punishment for attempting rape--did jury really believe defendant committed a crime?

• Evidences for attempts:
  • Confession - McQuirter?
  • Informant - Buffigton and Jackson
  • Prior record - Maas
• Can't get to conviction based just on what defendant does (in case like McQuirter?), can't get to conviction based solely on confession. If McQuirter? had been white, this would not have ended in conviction.

People v. Rizzo

[158 N.E. 888] 1927 New York Court of Appeals (cb772)

• Rizzo and companions were driving around city looking for payroll man to rob, but intended victim did not actually exist.
• Court holds that defendants were never dangerously proximate to committing crime.
• Crime defendants have committed is conspiracy--they have agreed that to work together to commit a crime.
• Defendants are charged with attempt, however, not conspiracy.
• Under Model Penal Code, defendant's actions might be considered substantial step under § 5.01 (2)(a) lying in wait, searching for or following the contemplated victim of the crime.
• Other three defendants did not appeal, however, but they have no recourse through the court, even though New York Court of Appeals is saying that they committed no crime.

• Further back in time and space that law of attempt goes, the less choice people have as to whether or not they are committing a crime.

United States v. Jackson

[520 F.2d 112] 1977 2d Circuit Court of Appeals (cb776)

• Defendants were planning on robbing a bank, ended up postponing, one person was arrested in the meantime.
• Informant testified as to intent of other defendants.

United States v. Buffington

[815 F.2d 1292] 1987 9th Circuit Court of Appeals (cb777)

• Informant case, defendants were observed with scarf over face, many layers of clothes.
• Court holds that defendants did not attempt robbery, informant did not testify.
• Under Model Penal Code, Buffington would be just as guilty as Jackson.

Walters v. Maass

[45 F.3d 1355] 1995 9th Circuit Court of Appeals (cb778)

• Defendant is accused of attempted kidnapping and sexual assault. All he has actually done is invite girl into his truck.
• Question is whether defendant's past conviction on similar sex crimes should be used in interpreting actions?
• Generally rule in criminal evidence is not to allow past evidence to establish guilt.

People v. Staples

[6 Cal. App. 3d 61] 1970 California Court of Appeals (cb780)

• At time Staples is arrested, it is clear that he had no intent to actually commit crime.
• Does it matter whether defendant desists for voluntary or involuntary reasons?
• Staples was ultimately sentenced to probation.

Rebecca to Larry are 'on' for Tuesday.

Tuesday, April 9, 2002 (Class 37) (Assignment 37)

• Indicia
  • Completed Crime
  • Attempt
  • Conspiracy
  • Solicitation
  • Bad Thought

• Prosecutions where 1st amendment is implicated are often for the crime of solicitation.

Impossibility

Booth v. State

[398 P.2d 863] 1964 Oklahoma Court of Criminal Appeals

• Defendant appealing conviction for receiving stolen property, since it was returned to him by the police, and thus was no longer 'stolen property'.
• Generally, when court finds 'legal impossibility' person is not convicted, but when it is 'factual impossibility' their convictions are usually upheld.
• If person believes that 'breathing' is illegal and they proceed to do it, this is 'legal impossibility'.
• Court holds that Booth's crime falls under legal impossibility, overturning conviction and dismissing charges.

• Fletcher's conception of legal vs. factual impossibility, e.g.:
  • Picking an empty pocket--factual impossibility, guilty of attempt.
  • Shooting an empty bed--mistake would have changed defendant's conduct.
  • Shooting stuffed deer--ditto, factual impossibility. Had you known it was stuffed, you wouldn't have engaged in the same conduct.
  • Offering bride to a nonjuror--still guilty of attempt.
  • Shooting dead body, buying talcum powder, believing it is cocaine--mistake is still germane, thus guilty of attempt, whether you use Model Penal Code or Fletcher's conception.
• Compare:
  • Receiving recovered property--legal impossibility. If your mistaken belief is that property was stolen, and it really wasn't, you still would have purchased it had it not been stolen. Thus Fletcher would hold that Booth case was correct, because mistake would not have effected defendant's willingness to engage in transaction.
  • Under Model Penal Code, however, person is guilty of attempt, because if circumstances had been as he believed them to be, he would have been committing crime.
  • Abortion of false pregnancy (assuming abortion is illegal)--if abortionist might have been willing to engage in same conduct even absent the baby, then under Fletcher, it is not attempt, but under Model Penal Code it is.
  • Selling talcum powder, believing it is cocaine--assuming the only thing seller cares about is getting money for cocaine, would have been just as willing to sell talcum powder for same amount, thus under Fletcher would not be guilty of attempt, but would be guilty under Model Penal Code. On the other hand, dealer might want to protect reputation, and thus might not have sold talcum powder had they known it was not cocaine.

• 'Absent minded professor crime'
  • Professor steals his own umbrella accidentally (having left it there a week before). Under Model Penal Code would be guilty.
• Sobrilski case (cb807)
  • Defendant thinks he is manufacturing amphetamines, but in fact hasn't manufactured anything illegal, and sells to undercover agent.
  • Sentenced to 17 years in prison.

People v. Dlugash

[363 N.E.2d 1155] 1977 New York Court of Appeals (cb809)

• In the absence of evidence that Geller was alive when Dlugash shot him, Dlugash cannot be convicted of murder. But he can be charged with attempted murder.
• If jury believes Dlugash's story that he believed Geller was dead when he fired, he can't be convicted of murder or attempted murder, because it was not his purpose to take life.
• Rather than sending case back to trial court, gives verdict of attempted murder, because jury had convicted of murder, thus they would have also found attempted murder.
• On Federal Habeas Corpus, Court found that substituting judgment was unconstitutional: mens rea for attempted murder is purpose or knowledge, while mens rea for murder purpose, knowledge, and extreme recklessness, court became persuaded that court's assumption that jury's murder verdict would have also supported attempted murder verdict was unconstitutional.

Wednesday, April 10, 2002 (Class 38) (Assignment 38)

• Crime: delivering pornographic materials to someone under 18 years of age (cb817).
• Defendant knows statutory age is 18, knows material is pornographic.
• If defendant believes recipient is 17, and she is 17, then he is guilty.
• If defendant believes recipient is 19, and she is 17, and statute specifies knowingly, then he is not guilty.
• If defendant believes she is 19, and she is really 19, then he is not guilty.
• If defendant believes she is 17 and she is really 19, classic case of impossibility, thus he will be guilty of attempt.
• What if defendant believes statutory age is 16?
  • Defendant believes she is 17, she is 17, in this case it is mistake of governing law, he is still guilty.
  • Defendant believes she is 17, she is 19, he is guilty of attempt.
  • Defendant believes she is 19, she is 17, not guilty (likewise believes she is 19, she is 19).
  • I.e., misunderstanding of law does not make any difference for these categories.
• If defendant believes statutory age is 21?
  • This is true legal impossibility--same result as before.

Accomplice Liability

• No accomplice liability 'after the fact' if this is accomplice was not part of the original plan (may be guilty of 'hindering apprehension of a criminal, etc., but not crime itself).
• Model Penal Code § 2.06: accomplice liability.

State v. Ochoa

[72 P.2d 609] 1937 New Mexico Supreme Court (cb823)

• Case background: Depression, New Mexico, Minors, riot occurs.
• Sheriff is trying to transport Navarro from Justice of Peace's office to jail.
• Gunfire ensues, sheriff is killed, two people who shoot are also shot.
• Defendants were beating and kicking deputy.
• Unclear whether defendants took action before or after sheriff was shot.
• Under Model Penal Code, requirement is 'aids, agrees, or attempts to aid', so in that case it doesn't necessarily matter whether sheriff was dead.
• Very close call in this case.

Thursday, April 11, 2002 (Class 39) (Assignment 39)

State v. Ochoa

[72 P.2d 609] 1937 New Mexico Supreme Court (cb823)

• To be consistent with law of accomplice liability, the kicking of the deputy after or immediately before sheriff was shot must allow the jury to infer that the defendants shared a purpose in the shooting prior to when it occurred.

Gains v. State

[417 So. 2d 719] 1982 Florida Appellate (cb834)

• Gains was sitting in car, companions robbed a bank, and then he drove them away.
• Court finds that Gains can not be guilty as an accomplice in that there is no evidence that he knew about the crime before it occurred.

State v. Tally

[15 So. 722] 1894 Alabama Supreme Court (cb838)

• Tally learns his in-laws (Skeltons) are chasing Ross, in order to kill him after he seduced their sister.
• Tally goes to telegraph office (not by prearrangement with Skeltons), sees Kinsman of Ross send telegram warning Ross. Tally then sells telegram advising telegraph operator to not deliver message.
• For accomplice liability, Skeltons did not need to know about Tally's acts, just that Tally played a role in facilitating killing. Does not need to be but for cause of death.
• Tally could also be guilty of murder, under Model Penal Code, if what he tried to do had absolutely no role whatsoever in what happened. I.e., if he attempted to aid and abet murder. Thus his crime is greater in this example than as if he had gone after Ross with a gun, shot at him, and missed (which would be attempted murder).
• Most jurisdictions reject liability for attempted complicity in a completed crime; but under Model Penal Code § 5.01(3) attempted complicity is attempt to commit substantive crime.
• Attempt law requires an act which confirms the criminal purpose--must be substantial step under Model Penal Code, thus simply sitting and wishing someone's death doesn't count as attempted complicity or complicity.
• Can satisfy attempt to aid crime with much less evidence than attempted murder. I.e., sending telegram would not be attempted murder on its own, but if it is construed as attempt to aid, can make him guilty of completed murder.
• Court goes to great length to find causal connection between Ross's death and Tally's action; under Model Penal Code you wouldn't need to prove this necessarily.
• Model Penal Code would allow conviction for attempt to commit crime even if crime itself was never committed; principals don't necessarily need to be guilty of attempted crime or crime.

People v. Beeman

[199 Cal. Rptr. 60] 1984 California Supreme Court (cb851)

• Beeman gave information to people who robbed his sister-in-law, had knowledge of robber's action.
• Thus had knowledge of crime and renders aid.
• Court found Beeman he was lacking purpose to aid accomplices in committing robbery in order to be guilty of robbery.
• Issue: should someone who simply knows of possible criminal activity refrain from doing something that might assist them? I.e., gun shops owner.
• Doctrine: under Model Penal Code, California law, and majority of states, it is defendant's purpose to see crime committed that makes him or her guilty as an accomplice.
• In California law, can be guilty of crimes that would follow from that which it is your purpose to aid.
• Under Model Penal Code you are only liable for crimes which you intend.
• In most jurisdictions, felony murder rule subsumes these issues.

Wilson v. People

[87 P.2d 5] 1939 Colorado Supreme Court (cb861)

• Wilson has a wristwatch, son of District Attorney.
• Wilson thinks Pierce stole his watch, so he suggests Pierce commit a crime in order to have Pierce caught.
• Wilson wanted Pierce to commit a burglary, and he helped him commit a burglary.

Tuesday, April 16, 2002 (Class 40) (Assignments 40-41)

• Givelber will be here Monday, Tuesday, and Wednesday of reading week. Will schedule office hours and review sessions.
• Review Session: Wednesday, May 1, 10am, Room 97
• Exams are available on TWEN
• Exam will be two hours long, two questions

Wilson v. People

[87 P.2d 5] 1939 Colorado Supreme Court (cb861)

• Although it was the purpose of the defendant to aid the perpetrator in the burglary, he is not guilty.
• Might this fall under Model Penal Code § 2.06 (6): person is not an accomplice if he terminates his complicity prior to the commission of the offense. But Wilson actually wanted offense to be completed before Pierce was caught.
• Possible justification: protect sting operations, private law enforcement, since Wilson's 'main' purpose was to incriminate Pierce.

State v. Hohensee

[650 S.W.2d 268] 1982 Missouri Court of Appeals (cb865)

• Three agents of the state, in order to prove defendant's criminality, set up burglary where he is just a look out.
• Court finds that State went too far; there must be some proportionality between defendant's actions as accomplice and other's actions to incriminate defendant.

State v. Etzweiler

[480 A.2d 870] 1984 New Hampshire Supreme Court (cb866)

• Etzweiler and Bailey are drunk; Etzweiler lends his car to Bailey, who ends up killing two people in traffic accident.
• Bailey is clearly guilt of negligent homicide, question is whether Etzweiler is guilty of negligent homicide.
• Defendant would have had to intend to further the crime of negligent homicide, but not possible to have the purpose to see a crime that requires lack of purpose to be committed.
• Model Penal Code § 2.06(3)-(4): Etzweiler could be guilty under (4) if accomplice acts with kind of culpability with respect to result that is sufficient for the offense.
• Act of lending car to drunk is itself potentially crime of negligent homicide (regardless of aiding and abetting theory).

State v. Foster

[522 A.2d 277] 1987 Connecticut Supreme Court (cb869)

• Foster gives knife to Cannon to guard Middleton while he went to get his girlfriend. Middleton and Cannon end up fighting, Cannon kills Middleton with knife.
• Foster could be charged with negligent homicide instead of aiding and abetting; in this case, threshold issue would likely be causation. When aiding and abetting doctrine was forming, causation was interpreted much more narrowly.

United States v. Short

[493 F.2d 1170] 1974 9th Circuit Court of Appeals (cb870)

• Can't hold someone liable for highly specific crime of armed robbery if they just had intent to aid in robbery, but not necessarily robbery with gun.

Yusuf Hawkins Case

• Yusuf and friends, African-American teenagers, looking to purchase car in Bensonhurst; chased by mob who originally thinks they are someone else. Yusuf Hawkins is shot and killed by Joey Fama.
• Two cases: Keith Mondello, major organizer of group of 30, Joey Fama, pulled trigger.
• Mondello is convicted of conspiracy, Fama of abandoned and malignant heart murder.
• Should Mondello be convicted of murder on his own conduct?
• If Ochoa and Tally were guilty of aiding and abetting, Mondello must meet the act requirement of aiding and abetting.
• Criminal responsibility is same as Etzweiler issue: if the defendant's purpose needs to be to see the crime committed that they actually intended, or Model Penal Code approach where you only need same state of mind as that needed for the offense, towards the act which facilitated the offense.

• In most states, people can't be convicted of kidnapping their own children. What if someone seeks help in committing kidnapping?
• Legal incapacity: parent can't be guilty, but aider can be guilty.

• Will finish accomplice, and start conspiracy tomorrow.

Wednesday, April 17, 2002 (Class 41) (Assignments 41-42)

• Do we even need accomplice liability given current causation doctrine, which permits more steps away to still constitute causation?
• Common Law Doctrine: If there is an independent, intervening act by a third-party, that more directly brings about result, defendant cannot be responsible--causal chain is broken.
• In modern causation doctrine, intervening act by third-party does not necessarily cut off causal chain, so in many accomplice liability situations, the accomplice could simply be charged with the crime itself.
• This doesn't work, however, when the primary crime doesn't actually occur: accomplice aids parent in kidnapping their own child. Parent has not actually committed a crime, but still want to penalize accomplice.

People v. Sadacca

[489 N.Y.S.2d 824] 1985 New York Court of Appeals (cb885)

• Sadacca sets up fictitious 'Whitney Biddle' character for grand larceny.
• Witness, Benoit, testifies that dinner took place, between Whitney Biddle and jeweler.
• Sadacca is acquitted on larceny, then charged as accomplice to perjury, even though Benoit did not know he was committing perjury.
• Sadacca knows that Benoit's testimony is false, and has created circumstance in which Benoit is going to truthfully testify to something he knows is false.

United States v. Ruffin

[613 F.2d 408] 1979 2d Circuit Court of Appeals (cb886)

• Ruffin is civilian, Defreitas is government employee.
• Ruffin gets Defreitas to approve loan which is clearly inappropriate, violating federal law.
• Ruffin, by definition, can't commit crime, because he is not a government employee, but is guilty of aiding and abetting.
• No question that, if crime is actually committed by Defreitas, then Ruffin is aider and abettor. Problem here is that jury does not find that Defreitas actually committed crime.
• Model Penal Code § 2.06 (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.
• Potential under Model Penal Code of someone being guilty of crime that can only be committed by a particular type of person, even when that particular type of person is not found by jury to have committed the crime.

• Conspiracy vs. Attempt to obstruct justice
• Conspiracy:
  • Agreement to commit crime
  • Must be overt act
  • Model Penal Code § 5.03 (1):
  • A person is guilty of conspiracy with another person or persons to commit a crime if with the purpose of promoting or facilitating its commission he:
    • agrees with such other person or persons that they or one or more of them will engage in conduct that constitutes such crime or an attempt or solicitation to commit such crime; or
    • agrees to aid such other person or persons in the planning or commission of such crime or of an attempt or solicitation to commit such crime.
  • No person may be convicted of conspiracy to commit a crime, other than a felony of the first or second degree, unless an overt act in pursuance of such conspiracy is alleged and proved to have been done by him or by a person with whom he conspired.
  • Thus crime is complete, just upon existence of agreement to commit crime.
• Attempt
  • Purpose to obstruct justice
  • Substantial step
• Blockburger test: each crime must include element that other crime does not include, for them to be separate offenses.
  • Hinges on whether overt act for conspiracy is different from substantial step for attempt.
• Court holds that substantial step needed for attempt needs to come much closer to crime than what is needed for overt act.
• Takes much less to satisfy overt act for conspiracy crime than for attempt crime.
• Why is it different when more than one person agree to do something, rather than one person forming some intent all on their own own in their head?

Commonwealth v. Donoghue

[63 S.W.2d 3] 1933 Kentucky Supreme Court (cb902)

• Usury law is civil penalty, but is turned into crime when it becomes a conspiracy (i.e., where you agree with someone else to commit usury).
• Conspiracy law was the weapon of choice against unionization against late 19th and early 20th century: lawful for one person to decide they wouldn't work for proferred wages, but crime for people to get together and agree amongs themselves that they wouldn't work unless wages were raised.

Thursday, April 18, 2002 (Class 42) (Assignment 42)

• Conspiracy: the 'darling of the prosecutor's nursery'.

Griffin v. State

[455 S.W.2d 882] 1970 Arkansas Supreme Court (cb905)

• Griffin is appealing his conviction for assisting in an assault on a police officer.
• No evidence that people actually got together and decided to attack a police officer.
• Anti-trust law is also conspiracy law. Problem:
  • Movie theater in one location raises price $1, then another theater also raises price.
  • Courts have found anti-trust to occur in 'conscious parallelism', even where there is no evidence of concerted effort.
• Doctrine from anti-trust law that behaving in the same way is just as bad as deciding to behave in the same way has been taken up in conspiracy law as well.

United States v. Cepeda

[768 F.2d 1515] 1985 2d Circuit Court of Appeals (cb907)

• Cepeda had $1100, 0.41 grams of cocaine, and lactose (for cutting).
• Cepeda is charged, not just with possession or possession with intent to sell, but with conspiracy.
• Prosecution brings in expert, to put ambiguous conduct into criminal context.
• Prosecution's argument: Anyone with this much cocaine is 'in business', and thus conspiring with others.
• Appeals court overturns conspiracy conviction, however; 'there was not even evidence of a sale.' Limiting reach of conspiracy charge.

United States v. Rahman

[189 F.3d 88] 1999 2d Circuit Court of Appeals (cb909)

• Whenever there is extreme political dissent, conspiracy issues will always arise. Much of 1st amendment law is built around the problem: "What level of political exhortation can someone engage in before it becomes a crime?"

• Issue of withdrawal: what if a conspirator no longer agrees to crime? Can they still be convicted of conspiracy?
  • In most jurisdictions, once you've made an agreement and an overt act has been committed, it's virtually impossible to withdraw.
  • Model Penal Code includes provision for renunciation. Need to be able to show that you've thwarted object of conspiracy.

People v. Lauria

[251 Cal. App. 2d 471] 1967 California Court of Appeals (cb914)

United States v. Feola

[420 U.S. 671] 1974 United States Supreme Court (cb923)

• Defendant is accused of conspiracy to assault a federal officer.
• Issue is whether you have to know the person is a federal officer in order to be guilty of conspiracy.
• How can you be guilty of conspiracy to assault a federal officer (i.e., 'guilty of agreeing to assault a federal officer') if you don't even know it's a federal officer.
• Court holds that mens rea is that which is required for the underlying offense, however, so finds defendant guilty.
• Model Penal Code uses same mens rea requirement.

• Rules of evidence:
  • Witness must be testifying from personal knowledge. Hearsay not admissible.
  • Exception to hearsay rule: when defendant said something.
  • Strict rules about how many people can be tried at once, joinder of crimes, joinder of parties, etc..
  • Venue: conspiracy may expand possible venue for charge.

Tuesday, April 23, 2002 (Class 43) (Assignment 43)

• Exam Info
  • Closed book, Model Penal Code will be provided
  • Don't try to memorize Model Penal Code, but you should know where certain things are in code:
    • Attempts
    • Accomplice
    • Conspiracy
    • Mistakes
  • Also know general interpretive rules

Pinkerton Doctrine

• Pinkerton brothers were moonshining together, question is whether one brother could be convicted of substantive crime where other brother took action while first brother is in jail.
• Brother can be guilty of conspiracy, but can he be guilty of substantive crime of making moonshine while he's in jail.
• Only guilty as accomplice if it is your purpose to see the crime comitted; but under Pinkerton you are liable for any crimes committed in furtherance of the conspiracy, even if not foreseeable.
• Model Penal Code rejects Pinkerton. DO NOT USE PINKERTON ON EXAM.

United States v. Diaz

[864 F.2d 544] 1988 7th Circuit Court of Appeals (cb926)

• Drug guy delivers drugs to undercover officer, Collins, while Diaz watches. Then Collins gives signal and chaos ensues.
• Question is whether Diaz can be convicted of conspiring to sell drugs while armed, which adds 5 years to sentence, because drug guy in other car has weapon.
• Under Accomplice Liability, would have to demonstrate that it was Diaz's purpose to sell drugs while armed.
  • Model Penal Code § 2.06:
  • (3)(a) would have to have purpose of promoting or facilitating the commission of offense.
  • (4) is only designed to deal with results, not attendant circumstances. Possession of gun is element of offense.
• Thus, under Model Penal Code, Diaz could not be guilty of conspiring to sell drugs while armed under accomplice liability.

United States v. Alvarez

[755 F.2d 830] 1985 (cb930)

• Four guys involved in drug conspiracy, agent is shot. Question is whether three co-conspirators can be guilty of murder as well as shooter, Simon.
• Conspiracy, accomplice liability, felony murder, are options for liability to person who did not actually do the act.
• Felony Murder
  • In this case, drug deals are not predicate felony, thus felony murder doctrine does not apply.
• Conspiracy
  • Under Pinkerton, co-conspirators are guilty.
• Is there a theory of accomplice liability that would make defendants all guilty of murder?
  • Can't show that any of conspirators had state of mind of purpose to murder simply by owning hotel or translating. No liability under Model Penal Code § 2.06 (3).
  • Model Penal Code doesn't address question of 'what happens when two people agree to rob bank, and one decides to steal a car?' Under Pinkerton, would be guilty of car theft as well. Under Model Penal Code, was not defendant's purpose to steal a car, but could be reasonable foreseeable.
  • Could be accomplices in abandoned and malignant heart murder. Taylor v. People: where woman being robbed shoots co-robber who was waving gun around. Taylor was in car, was guilty of abandoned and malignant heart murder. Model Penal Code § 2.06 (4) result crime.
• For Review: Develop four different theories under which co-conspirators could be found guilty.

• 20th hijacker was in prison on September 11, can he be held guilty under Pinkerton doctrine?
• What if hijacker only knew he was supposed to go to the United States and learn to fly a plane and then wait for directions?

Wednesday, April 24, 2002 (Class 44) (Assignments 44-45)

• Parties to Conspiracy, Introduction to RICO
• What if person 1 thinks person 2 will help them with crime, but person 2 doesn't think they've agreed. Can someone agree when the other person doesn't actually agree?
• Model Penal Code § 5.04: Incapacity, Irresponsibility or Immunity of Party to Solicitation or Conspiracy
  • Except as provided in Subsection (2) of this Section, it is immaterial to the liability of a person who solicits or conspires with another to commit a crime that:
    • he or the person whom he solicits or with whom he conspires does not occupy a particular position or have a particular characteristic that is an element of such crime, if he believes that one of them does.
  • § 5.03: (5) Overt Act. No person may be convicted of conspiracy to commit a crime, other than a felony of the first or second degree, unless an overt act in pursuance of such conspiracy is alleged and proved to have been done by him or by a person with whom he conspired.
• Thus first person can be guilty even if second person doesn't actually agree but first person believes other person agrees, and there is still no overt act.
• Comes very close to punishing bad thought--no need even for a substantial step (attempt), just need agreement.
• Thus it is possible to have a 'unilateral conspiracy'.

• Next problem (leading to RICO): issue of who is party to conspiracy.
• Wheel and chain theories of conspiracy

Kotteakos v. United States

[328 U.S. 750] 1946 United States Supreme Court (cb949, 952)

• Wheel theory of conspiracy
• Brown ran lumber yard, knew how to get government loans for home construction.
• Kotteakos wanted government loan, not to build house, but for lawn furnishings
• Brown was charged with falsifying loan documents and conspiring with others to falsify documents
• Evidence demonstrated 23 different transactions; brought as single conspiracy.
• Anything that any of the conspirators had to say against others was admissible against others.
• Kotteakos claims he may have down something wrong with Brown, and they may have conspired with each other, but he had no idea that there were 23 other people involved.
  • Similar to Spock trial in Vietnam war era, where many of the people who signed 'call to action' had never met before.
• Question: is this 23 different conspiracies, or just one?
• Court held that trying this as 'one giant conspiracy' violated due process clause.
• Failed 'wheel conspiracy' because there's no 'rim'--nothing tying everyone all together.
• RICO doesn't require that everyone be tied together as closely.

Blumenthal

• Chain theory of conspiracy
• Parties: hidden owner, distributor, salesmen, tavern owners
• Parties were getting around price controls by agreeing down the supply train, with kickbacks.
• Each party claims they didn't know about chain, they only dealt with 'the next link in the chain'.
• Court admitted theory, allowed joinder, each party could have drawn the inference that they were party of large conspiracy.

• Amilie case: contractor was shaking people down, first in 1960, then in 1962. Prosecuted for 1960 activity, then seperately for 1962 activity, court held it was double jeopardy--it was 'one long conspiracy' rather than a series of short conspiracies.

• RICO: Racketeer Influence and Corrupt Organization
  • Goal of act, passed in 1970: to deal with a lot of the problems that conspiracy law created with issue of 'chain' or 'wheel', one conspiracy or multiple conspiracies.
  • Also has civil component.
• § 1962(C): unlawful for any person employed by or associated with any enterprise engaged in...interstate or foreign commerce...to conduct or participate...in the conduct of such enterprise's affairs through a pattern of racketeering activity...
• Has major forfeiture provisions--helps many police departments make their budgets.
• Allows cases to get to federal court, useful against local officials: police, judges; since 'enterprise' is broadly defined.
• If every criminal who deals with someone else is 'an enterprise', scope of RICO seems to be unlimited. Does committing two or more crimes, by itself, constitute an enterprise or pattern of racketeering activity? Courts have been inconsistent, but there must be an enterprise which exists independently of crimes, and there has to be something connecting the crimes.

Thursday, April 25, 2002 (Class 45) (Assignment 46)

• Is pulling a knife in a fight in a crowded bar sufficiently reckless or indicative of abandoned and malignant and heart?
• Same issue as Alvarez: any time someone pulls out a weapon in a middle of a tense situation, could be found to be reckless or indicative of abandoned and malignant heart.
• See Taylor v. Superior Court [477 P.2d 131] 1970 (cb500).
• Also argument that Riley should have retreated, and because he didn't lost his ability to plead self-defense.
• Belief has to be reasonable, and response has to be reasonable, for self-defense to work.

Armored Car (Problem 2)

• Always examine each defendant's liability individually.
• First look at Holgate:
• Conspiracy Crime
  • Under Model Penal Code § 5.03, Holgate is guilty of crime of conspiracy independent of whether there is actual agreement (unilateral conspiracy):
  • 5.03(1)(a): (a) agrees with such other person or persons that they or one or more of them will engage in conduct that constitutes such crime or an attempt or solicitation to commit such crime; or
• Attempted Larceny/Theft? vs. Attempted Robbery
  • Did Holgate attempt to commit theft by deception?
  • Model Penal Code takes subjectivist view of events were as defendant believed them to be--Holgate believed the bank to have money for pick up even if it didn't.
  • Then, did Holgate take a substantial step? Disabling car would probably count as a substantial step.
• Robbery
  • Model Penal Code defines robbery as use of force in the course of committing a theft.
  • Default mens rea requirement under Model Penal Code for robbery is recklessness.
  • Was Holgate reckless in activity that lead to the use of force?
  • Other argument is that robbery includes 'purposely' in some elements, thus 'purposely' should apply to all elements of robbery.
• What crime did Holgate commit in killing Gustave?
  • If it was attempted robbery, crime is murder, because of homicide committed in the course of robbery.
  • If crime was attempted theft, crime could be manslaughter.
• Best to start with primary actor, and then move to secondary actors'
• Look at Moe:
• Conspiracy
  • Did Moe agree to crime?
  • Was being sarcastic, thus may not have actually agreed, thus not guilty of conspiracy.
  • He gave his clothing size, however, which would suggest substantial step. Can't be guilty of conspiracy, however, if he didn't agree.
  • On the other hand, if he hadn't feigned agreement, none of this would have happened.
  • If he neither intended to agree nor intended to assist, he could not be guilty as accomplice, because he did not have requisite purpose.
  • Act of encouraging Holgate could constitute reckless conduct sufficient for manslaughter.
  • Might just be able to convict of manslaughter on broadened notions of causation.
• Then look at Curly:
  • Was drunk at time of agreement. Would have to be so drunk that he didn't have purpose to agree.
  • Under Model Penal Code, guilty of subsequent crimes to act of crime if he can be treated as accomplice in those crimes (no Pinkerton rule). Since he slept through day, hard to make the argument that he was actually an accomplice.
• Finally, look at Wanda:
  • Look to People v. Lauria. Is this a situation where knowledge plus charging more for uniforms gives person stake in venture that makes it a crime?
  • Need something more than just supplying something that is used in crime.

• On Wednesday review session, will do second question.