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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.'