WEEK 1
Class Notes Crim Law 05/03/06
Professor Blumer
Career state prosecutor Chief Assistant prosecutor in Jackson, MI
Be able to identify both sides of case. Criminal Law is different because it is essentially a statutory learning. Still have to know common law but in modern criminal law 99% of everything we deal with is statutory. Some crimes are purely statutory.
In a criminal law class it is essential that you:
1) Read and understand statutes
2) More than any other field in the law the crim law is fact dependent. In any kind civil law you can bend the facts and make assumptions that just don’t hold. Res ipsa loquitur- nothing speaks for itself in crim law. You have to have the facts on your side if you are the prosecutor. Must understand the facts of your case first and then learn to plug those facts in to the statutory requirements in order to make a case. You first have the statute, that’s the form, then you have the facts and you have to plug those facts into the form and in the criminal law never allows you pound a square peg into a round hole. You have to have the required facts or you just don’t have that crime. First thing, whether called on in class or on an exam is explain to prof. how facts of this case relate to the required law we are dealing with. If you can’t do that you have missed the most important simple point in criminal law ALWAYS TRUE
3) Crim law has highest standard of proof than any area of the law. Beyond a reasonable doubt. Not so much the concepts that we are dealing with here.
*Test: There will be questions on the exam where I will say, “Here is a fact scenario, if you are defense attorney, what will you identify as the best defense in the case?” I want you to identify both sides of the problem.
When I give you a test, (talk about that later) the most important thing that you will get in law school is not a finite amount of knowledge more than anything else you will acquire a method of understanding the law and a method of legal reasoning. There are no absolute answers. If you get the answer I’m looking for you will be on my A list. If you come up with an alternate answer you will get credit for it. I want an explanation of how you got there. Legal logic.
You will get a factual scenario, you will tell me from those facts what crime you believe the facts demonstrate. Then you will tell me the law that is required to analyze those facts and then you will tell me how those facts in this case satisfy those requirements and then you will reach a conclusion. It’s a very logical profession. I want to see how you get there. That’s the same thing a judge ought to do in real life.
Practice questions. One bank of prior questions from last term. Final Exam will be ½ multiple choice, ½ essay. 10/90 Pattern after Prof. Corbett
Testing comes from class discussion.
Word of advice for freshman: Study groups, gather notes and discuss.
Trial concept, oral form of law. Talk it out-compared notes and prepared one outline.
Midterm week 6 exclusively multiple choice 10% of grade
June 12 murder case in Jackson
Case Briefing:
What I expect: The way I expect you to analyze an answer to an essay question is the same way I expect you to brief cases when you read them. If you get into the habit of doing that then you will have no problem with my essay question.
When you brief a case:
Read the case completely first then go back and take notes and outline the facts of the case. Tell me what the critical facts of the case are.
Then I want you to identify the issue of the case. What is being litigated here? Why are we in court? Almost every case that you read will be an appellate level case-the prosecutor won. A prosecutor cannot appeal an acquittal. You get a jaundiced view of what you are reading right off the bat. And then the issue is should the prosecutor have won? Read and take notes and identify the issue.
1. Understand the facts that led up to the case.
2. Identify issues of the case, why are we litigating this? What is the issue the court is concerned with?
3. Identify the law that the court applied to resolve the issue. How did the court analyze the problem?
4. Tell me what the conclusion was and why the court reached that conclusion. Sometimes the court gives a conclusion and the rationale for why that happened is hidden under the table and you have to start thinking about what’s going on in the background to truly understand why the court reached the decision it did.
Appellate courts and more certainly trial courts are preachers of their surroundings. There is a difference in the way a trial court would have ruled in 1949 Mississippi from the way they rule in 2005 Massachusetts. The differences are worlds apart and you will see that those differences do make a tremendous impact on how cases are resolved. Some cases look identical and the only difference is the date.
Look for those subtleties because they will frequently tell you what is really going on here. That’s briefing the case. Briefing the case is not just telling me what happened in the case and who won. You are missing the boat if that’s all you do. I want you to be able to analyze why the judges reached the conclusion that they reached in this case. In order to do that, first you have to understand the facts. After you’ve reached that point, then the real focus of the case briefing and answering an essay question is being able to analyze and tell me why did it come out this way?
Precedent means that: The case becomes a guiding principle for future cases. The reason why lawyers make the big bucks that they do is because they learn how to read these cases and figure out what the guiding principal is and then they can tell their clients what to do and what not to do avoid getting into a clutch.
The only way you can do that is to be able to read a case and figure out why your client should not do something if you’re a defense attorney.
Statutory interpretation: Virtually all criminal law is statutory. Almost all criminal law in almost all jurisdictions is statutory. Statutes incorporate common law but do not explain it.
For example, under MI law the second degree murder statute says, “anyone who shall kill another person shall be guilty of the crime of murder” and they don’t explain what it means.
In order to understand what goes into it you have to go back to the common law and find out what the elements of second degree or what’s also known as common law murder R.
The problem with common law is that it requires historical definition.
5 year felony for crime that was common law but not replaced by statute.
We follow what’s known as the Pennsylvania model for 1st degree murder. It essentially says that if you commit murder by poison or lying in wait or other premeditated murder is first degree murder. Felony murder is a type of first degree murder. Murder committed in the perpetration of first degree child abuse is first degree murder. Vulnerable adult abuse is first degree murder.
Course is divided into three main areas:
1. Concepts of criminal law. Why we have criminal law at all. Generalized requirements of law. Mens Rea and Actus Reus. Theories of punishment.
2. Specific crimes-definitions of the crimes, statutory make up of them and their historical development and how they’ve changed over time. Ex.: Burglary is now known as home invasion
3. Discuss defenses. How they come into play and what a D has to do to establish his defenses.
The prosecution always as the burden to prove the crime. Prosecutor must prove the elements of crime beyond a reasonable doubt. Prosecutor does not have to prove the facts. Ex.: An affirmative defense - D has burden to prove. Needs to raise doubt. Screw the jury’s mind up D wins case.
Utilitarianism-make the criminal useful to society. Sometimes take opposite perspective. May be worth more with a slap on the wrist. How do we make this person the most valuable.
Retributive-How serious was the crime and what is the best outcome.
Mousssaoui-more valuable alive. Utilitarian.
Homicide simply means the killing of a human being. Does not translate in into criminality.
Element of the crime
Has to be proven to win the case.
1. Death
2. Intentional
3. If it’s premeditated
All must have mental element-Mens Rea- the guilty or criminal mind.
Where there is a mental element 90% of crimes except- No defense to statutory rape
No crime for bad thoughts
Identify actus reus
Ident. If had appr mental element
Concurrence doctrine guilty mind aspect occurs first- mental then do the crime
Raincoat- go into coat room, pick out coat but is wrong coat but keep it, added criminal element. Must prove mental aspect to prove crime.
Parent locking child in room without food, guilty of murder and child abuse. Touchy concept-events in life that are clearly morally wrong but are not criminal bec. Have not been defined.
Restore car for 10k, give sales pitch, gives check loads flatbed, cash check take car, leaves car until rusts and do it 50 times. BREACH OF CONTRACT not a crime.
Need to make a statement regarding false past or present. Legislators changed law –if never intended to do it, statutory fraud.
Common law is what we brought over from England. Gradually changed to American common law. By 1860s English common law had ended. Failure to act is an Actus Rea
Inchoate Crimes: Attempts (attempted murder), conspiracy (agreeing to commit a crime) (crimes in planning, development), Preparation to burn (pre-Arson)
Strict liability: crime of pollution, selling alcohol or cigarettes to a minor, (don’t care if looked older)
Transferred Intent- intend to do a crime but hit another target.
Motive-not intentional crime. Intent is deliberate. Motive is the reason why. Never, ever a required element. Prosecutor does not have to prove it but is relevant and admissible. Prosecutor who doesn’t know motive does have a hole in his case cause jury wants to know (creates doubt).
Terminology:
Prelim. Examination: an early state of a crim process. Get arrested, arraignment (magistrate) inform D and set a date, make sure has representation. Next stage probable cause hearing. Lower level judge is presented case, prosecutor establish that crime occurred and have arrested the right person. Then indictment rare in MI. cannot bring felony in NY without it. If use Grand Jury, they decide. Bound over, Fed gov uses grand jury
Presumption to a jury trial. D can waive jury trial and prosc. Ok’s decision then have bench trial.
Jury determines the facts of the case. The judge decides all the other legal issues. Bench trial judge decides everything.
If you plan to practice criminal law you need to learn and apply the concept of lesser included offenses. A mandatorily lesser included offense is crime where every element of that crime is included in a larger crime and the larger crime has additional elements that you have to prove.
Classic example of a lesser included offense: Armed robbery and unarmed robbery. 0 difference except that you have a weapon. All other elements are same. Armed robbery is harsher.
Cognate lesser offenses. Almost a lesser included offense but may have one slightly different element. In order for it to be a mandatory lesser included offense you have to go thru the smaller one to get to the bigger one. Everything that is in the smaller crime is in the bigger one. In a cognate, not necessary to prove: ex.: Manslaughter- not a lesser included offense of murder. Elements are different. Don’t have to go thru manslaughter to get to murder.
What’s the big deal about lesser included offenses? In most jurisdictions, if the crime is a lesser included offense, the D or the prosecutor can have the option of requesting the juryto return a verdict on the lower offense. As a tactical matter, sometimes you don’t want less included offenses if you’re the defense attorney. If you know the prosecutor’s case is not the strongest in the world, you can force the jury into a corner. Find my client guilty or we’re all going home.
Ex.: Nanny case in MA. Defense attorney did not want a lesser included offense. Because they wanted to force the jury to put up or shut up. Jury did convict of first degree murder. Judge summarily reduced to lesser charge.
Ineffective assistance of counsel
Common Law
Developed over 800 to 1000 years. Reason: almost no statutes at all (a statute is a written approved law). Law made by decree and ruled on by judges and they way they interpreted became the common law of the land. Developed slowly but as a cohesive body of law. We spread out and had to make changes to laws due to different economic needs. Because we had a written constitution so early it developed a new kind of written law and expanded into statutory law.
There are some concepts that we still have in modern law that are dependent on common law even though they are now statutes.
Best example is murder. Not defined. Arson also not defined. Have to know from common law to define. Fraud statutes were originally common law but due to in large part computerization and eco factors, must be specific. If statute is not defined, look at common law.
If statute is properly done, definitions first.
Ex.: Child abuse: a child is someone under age 18. If done for no good reason. A person under child abuse laws has to have a legal relationship-a person who can violate the law. If slugged a 15 year old that you didn’t know – assault. If knew and had legal relationship, could be charged with child abuse. MUST prove this element.
Constitutional Concepts
When it comes to criminal law, the Constitution restricts the power of the government. The constitution does not grant the government to do anything. We were rebelling against an excessively powerful crown and it was foremost in the minds of the drafters of the constitution.
Three branches:
Executive
Judicial
Legislative
Tells what a police officers and prosecutors what they cannot do. Cannot search without probable cause, etc. Due process=Fairness in the application of the law. 5th and 14th amendment. Double jeopardy-cannot be prosecuted twice for the same crime and is exclusively criminal.
Once jury is empanelled or sworn in and dismisses, double jeopardy locks in.
Model Penal Code:..Didn’t discuss.
Can try in state court and may try case in Federal court because they are different jurisdictions. Mississippi Burning case, tried under violation of civil rights instead of murder. They took their lives without due process. Cho case in Detroit, beaten to death by father and son. Tried in MI, acquitted of murder and convicted of something insultingly low. FBI came in and prosecuted in violation of civil rights, different crime and were given 40 years.
Coker v. Georgia
Based on retributive-seriousness of the crime and the seriousness of the punishment did not fit. Getting even with the criminal for society’s sake is what it’s all about.
Two states passed statutes to reinstate death penalty for rape of victim under 14 year old.
Coker v. Georgia is still the binding precedent. Cannot give death penalty for raping an adult.
Prosecuted Dr. for manslaughter (killed patient) herbal tea mixture injected mixture and went into shock. Shock lung secondary effect, rushed to hos. On lung machine for 10 days. Took tube out of lungs, not processing, “I can’t stand that machine, let Lord have his way” Four hours later she was dead. We didn’t kill her, she killed herself.
Defense was a form of suicide, judge ruled “foreseeable that she would do this.”
Unbroken chain of cases from England since the 1500s-Causation essential element to crimes.
The Queen v. Dudley and Stephens
Necessity is a defense ex breaking into a cabin. No other option to save self.
Open ended application? No, we have to draw the line at murder to prevent death.
Morissette v. United States
Knowningly-Telling you that intent is an element of the crime. A Standard. Unforgivable. If trial judge was upheld then strict liability. Better do it
Tennessee v. Hall
Procedure Prove elements of crime based on circumstantial evidence. Court being the 13th juror.
WEEK 2
Class notes May 10, 2006
CAUSATION
Most states recognize two degrees of murder.
Negligent Homicide in MI exclusively a vehicular situation.
Remember: Anytime we are talking about any type of criminal homicide, i.e., murder, manslaughter, involuntary manslaughter-any crime that is a result crime (you did this and the result is the following), we’re talking about Causation. Causation is an issue that has to be dealt with in these cases. You have to show specifically that the action of the suspect, specifically, that the action of the suspect caused the illegal and un-permitted death of the victim. That’s step number one. If you can’t show causation in a homicide case, then pack up and go home because the rest of the case is useless. The most fundamental issue that you will have to deal with in any type of result oriented crime and most particularly, in any criminal homicide.
The most graphic example that we talk about this term of criminal intent changing the nature of the crime will be in homicide cases.
Example:
Construction hypo*
1. Accidentally kick hammer, falls off seven story beam and kills someone below. What crime is that? Is there causation? Yes, no question worker is the cause of that person’s death. Causation is a given. In all criminal homicide cases, there is an intent element. Was there criminal intent involved in this action? No. Was there negligence? Yes. Was it simple negligence or gross negligence? Simple negligence (Oops!-a technical term I want you to remember for the final exam). Chances are worker would have no crime at all and at worst have involuntary manslaughter.
2. Up on beams, tossing the hammer back and forth between co-workers, worker makes bad throw and hits someone and kills someone. What’s the difference? Gross negligence. Very similar to torts.
Simple Negligence: Failure to take appropriate steps to avoid injuring or harming others.
Gross Negligence: Failure to take appropriate steps when you have knowledge of the danger. You perceive the danger and you fail to take appropriate steps to avoid that danger and somebody is injured because of it. It’s a higher level of knowledge required, therefore it’s a higher level of responsibility.
With gross negligence we are in the realm of involuntary manslaughter. In the first example we probably have no crime at all but may have a civil action.
As in the second example, when you start screwing around and somebody gets killed because of it we are now we are into gross negligence and in the realm of involuntary manslaughter.
3. Worker sees wife below walking hand-in-hand with your best friend, with the hammer in hand, takes careful aim, drops the and bashes the guy in the head and kills him. What’s the charge? Voluntary manslaughter.
4. Same scenario but worker thinks about walking back and forth, sees them hugging and kissing and thinks, “He’s gotta die”, drops the hammer and kills him. What is it now? Premeditated Murder. He had a cool down period and then decided to kill him. First degree homicide.
In every case, the action is the same. The worker caused a hammer to fall and killed someone. The only difference is the intent behind the action.
Know for exam.
Opera hypo*
1. You have a fight with your neighbor and you decide tonight’s the night. Look thru window, see him lying in bed, take your trusty .45 and put three rounds into the body. Police arrest you and the autopsy reveals that neighbor had a heart-attack 20 minutes prior and was already dead. Can you be charged with murder? No, cannot be prosecuted for murder, he was already dead. Causation element not met.
Being Technically Competent on definitions:
When a person just simply says murder without a qualification to it, they are presumptively talking about second degree murder.
First degree murder is an aggravated form of murder. Common law murder or just murder is second degree murder.
COMMON LAW MURDER
Common law definition of murder: The illegal killing of another human being with malice aforethought. I say illegal killing to get us away from legitimate executions and self-defense. So it is the illegal killing without excuse or justification of a human being with malice aforethought. The killing of a human being either intentionally or with a depraved heart.
Malice is an ancient term of art. It does not mean modern day malice. Does not mean that you have an evil or hateful mind. Translates into two different formats for second degree murder or murder under common law. It is either:
The intention to kill or;
It is the intentional creation of a situation likely to result in death or severe bodily injury. That’s what malice aforethought meant.
In the 1930s many jurisdictions dropped the aforethought and just talked about malice.
Nowadays we refer to the second part of that as “depraved heart” murder.
Depraved Heart Murder: It is the intentional doing of an act that has an extreme likelihood of resulting in death or great bodily injury that could result in death.
Example: You are a striker at a factory and you see a bunch of scabs taking your job. You drive into the crowd and kill three people. Driving into a pedestrian intentionally is an action that is extremely likely to result in death, great bodily injury that could result in death. Under those circumstances a prosecutor would most likely charge you second degree murder.
This form of murder is a reckless disregard for the safety of life. Willful and wanton means the same thing. Some jurisdictions use different titles, i.e. Reckless Endangerment Murder.
In order for there to be a murder there has to be no justification (self defense is a justification) Necessity is not a justification (Dudley case) Insanity is an excuse not a justification. It eliminates one of the central elements of the crime itself.
Terminology to be familiar with: If we are talking about second degree murder that is based on an actual intention to kill: Express Malice. Depraved Heart: Implied Malice. So if you actually did intend to kill someone, that’s Express Malice. If you did it because of a Depraved Heart action, that’s Implied Malice.
Second degree murder can be an intentional killing but it doesn’t have premeditation and deliberation. The difference between first degree murder and second degree murder is you add premeditation and deliberation.
Morrisette case. The concept of when you have an ancient definition to a crime, one of the original gross crimes like murder, arson, rape, theft, kidnapping. When you have one of those crimes that has always been known in Anglo-American law, if the statute uses the ancient term, then all the definitions are carried with it-all the requirements.
So if the statute you are reading in your jurisdiction just says if a person does this and it shall be murder.
Circumstantial Evidence: Cannot prosecute criminal cases without reference to and reliance on circumstantial evidence. Circumstantial evidence is nothing other than common sense evidence. That’s all it is, it’s not a big deal. I go out of my way to let juries now that it is absolutely valid evidence. Defense attorneys try to make the equation that circumstantial evidence is inferior evidence. They say that the prosecutor’s evidence is “merely or nothing but” circumstantial evidence. Circumstantial evidence is sometimes more compelling than direct evidence. Example: A gun goes off and a man runs thru the room and you ask five different people what the suspect looked like and you get five different descriptions. Eyewitness testimony is somewhat suspect depending on the circumstances. On the other hand, if I walk into a room and I have a rain coat on and I’ve got water all over the shoulders of the raincoat, everybody will understand that it’s raining outside. Circumstantial evidence can on occasion be more compelling than direct evidence, so there’s nothing wrong with it.
Why am I talking about circumstantial evidence in the middle of a discussion about murder? If we acknowledge that the intent element is of critical importance in any prosecution, particularly in a criminal homicide prosecution, how are you going to prove a person’s intent? Unless the person specifically announces what he or she was thinking before they do it, how are you going to prove intent? How do you ever prove what someone is thinking? You prove it based on circumstantial evidence of what they did at around the time that they’re intent is of significance. You examine the behavior of the suspect to derive circumstantial evidence of their intent. It’s they only way you can do it under any foreseeable circumstances.
In any case that you have, almost by definition, unless you’ve got a signed confession, you’re going to be talking about circumstantial evidence.
Understand that circumstantial evidence is:
Absolutely valid evidence and;
Get used to using it and finding it when it’s there.
Circumstantial Evidence is a logical inference that you derive from other evidence in the record. It’s Common sense evidence.
Once the inference arises, then you can argue it to the jury. And who says the inference has arisen? You do when you are arguing the case. That’s what an attorney does when he’s arguing a case before the jury. He says, “Ladies and gentleman, we’ve got this, we’ve got this, we’ve got this”, any fool knows that when you have those three things, the fourth thing is the logical conclusion.
I use the following example to relax the jury:
My wife and I had a cocktail party. At the time I had a 90 pound golden retriever. My wife prepared a beautiful cheese ball on a platter with crackers. I pushed my way thru the crowd of people standing around the platter where the cheese ball had been. My dog was sitting there with a grin on his face and a few wisps of crumbs on his whiskers. Any doubt as to what happened to that cheese ball? Common sense evidence. Is the dog guilty or innocent?
A depraved heart murder is the creation of circumstances where someone is likely to die. A great likelihood of death or extreme bodily injury. Under most circumstances we are talking about a specific victim, but not always. Driving into a crowd of scabs, you don’t know which one is going to die if any. But you sure know that driving your car into a crowd at 40 MPH is likely to kill someone. So, depraved heart murder is not dependent, in some cases, on a specific victim. You can have a random victim and still have a murder.
Banks v. State
Depraved heart common law murder. The court is concerned with whether or not there is sufficient evidence based on these actions to justify a finding of depraved heart murder. The death penalty is what we are talking about here. Did race have anything to do with the outcome of this case? 1919 Texas. We know that D did not specifically intend to kill anyone-there was no intention to kill anyone. But his actions of shooting into a train were deemed to be special to justify a depraved heart murder. What kind of train was this? A passenger train. That dramatically increased the possibility that you were going to hit somebody if you shot randomly into the train. Do you think the result might have been altered if it had been a freight train? If you were a juror, would you have voted differently if it had been a freight train? What about a hobo and you killed him? Think about how you would present this to a jury. A jury verdict must be unanimous.
The cases are a little misleading on the term Reckless. The bottom level is negligence. Then you’ve got recklessness which is the failure to take appropriate steps to avoid a perceived danger. Recklessness in a homicide context will give you manslaughter. When the courts are using reckless, what they really mean to say is extreme recklessness. Even though you will see courts use the term reckless in the context of a murder case, really what we are talking about is extreme recklessness or extreme indifference. Because mere recklessness will give you a manslaughter under normal circumstances.
Drunk driving example that was prosecuted for second degree murder. In Michigan we have a specific statute, OWI (Operating While Intoxicated) resulting in death. That is functionally the equivalent of manslaughter, punishable up to 15 years in prison. The next level is murder and in order to get that you have to show what is depraved heart murder. It’s not a first degree murder because it was not premeditated.
25 MPH zone, D was traveling 55 MPH. If he had only doubled the speed limit, we wouldn’t have charged him with murder. .08% is the legal limit. D was .165%. D also had marijuana and cocaine in system. Plus he ran a red light. All of these things are synergistic-they build on each other. We thought it was murder, the judge and the jury agreed and D was given a life sentence.
He didn’t intend to kill anybody but it was murder.
Edwards v. TN
Not only was D drunk and speeding, he crossed the “fog” line. Is there enough evidence to convict D of murder? What are the other factors that compounded his guilt? Are there factors in his driving? It was in a heavy traffic situation so that adds to the factor. He should have known that under the traffic conditions that existed, driving in his condition and driving faster than the speed limit would enhance the likelihood of death. He left the roadway which means that the officer who thought he was standing in a safe zone was in a target range. Drunk driving and reckless driving. What is it that made this case special that took it out of the ordinary? A murder case in a situation like this is unusual.
Look for the reasons why the court justified a higher charge. If you can’t justify a higher charge as a prosecutor, you’re going to be driven back to the proper crime which is specifically designed to fit the bill (drunk driving statutes).
Voluntary Intoxication whether by drugs or alcohol is not going to be a defense to the intent element of the crime. Public policy: We are not going to allow intoxicated people to escape culpability.
Gang informant execution story-contact high or secondary inhalation to marijuana.
Two ways to attack a statute if you are a defense attorney:
1. That the statute is inherently unconstitutional. That is there is no way you could read the statute to make it valid. 99% of the time you will lose on that argument. The courts do not like to declare a statute unconstitutional. They bend over backwards to save the validity of statutes once they are passed.
2. Another and far more successful way is to say that the statute was applied in an unconstitutional way. The statute itself is ok but it was used in an unconstitutional manner against my client. The most common way to argue that is that it was applied discriminatorily or improperly.
Commonwealth v. Drum
What was the jury instruction in contest? What were they really arguing about? Is this case a common law murder or a new animal?
PA model gave us the modern day definition of murder which is accompanied by premeditation and deliberation. What is the difference between first and second degree? The difference is premeditation and deliberation. Why did they decide it was necessary to develop the concept of first degree murder? Common law-all murder was murder. There are different degrees of culpability within murder because there is a difference between a contract murder and a drunk driver killing someone. They’re both murder if you’re stuck with one category of murder but don’t you think hiring someone to kill another has a higher degree of culpability? A higher degree of culpability, a higher penalty.
Second degree murder is a lesser included offense. What’s the difference?
Premeditation: You thought about it before you did it. Is there a time limit? Do you have to have five minutes to premeditate? No. There is no established time limit in the law for either one. You can have instantaneous premeditation and it frequently comes about in prosecutions. If you shoot somebody the first time it may not be premeditated but if you decide that you need to finish the job and you pull the trigger a second time, in the time it took you to pull the trigger a second time, it becomes first degree murder. There is no time limit.
Deliberation: You weighed the consequences of your intended action. You understood the implications of what you were about to do.
So how do we decide whether there was enough time to premeditate and deliberate?
In second degree murder we’ve talked about two different types-Express Malice and Implied Malice or Depraved Heart murder. If you have a depraved heart murder, you cannot have premeditation. The two are incompatible concepts. In order to build to first degree murder, the intent of the malice element must be an intentional action because it’s logically inconsistent-you can’t have a depraved heart murder that you’ve premeditated.
Bottom of page 35
Three necessary elements for first degree murder under the Pennsylvania model.
1. Intention to kill or express malice
2. Deliberation
3. Premeditation
For first degree murder you have to have a death that is not legally excusable or justified, the killing has to be intentional deliberate and premeditated.
The test to determine whether there was sufficient time for the premeditation and deliberation to come into effect is called the Second Look Doctrine. It asks was there sufficient time to take a second look at your actions or what you are about to do. In other words it wasn’t impulsive.
People v. Perez
Extraordinarily brutal murder. Frenzy killing. The D was arguing that the evidence rather than showing premeditation shows that he was out of control and killing in a frenzy. It’s not so much that he’s saying there wasn’t premeditation; he’s saying that the evidence tends to show that this was a blind rage act. For those going into defense law, always look at the other side of the same crime. A single bullet hole in the back of the head is an execution. That is generally considered to be pretty darn good evidence of a premeditated or preplanned murder. If you’ve got somebody who was stabbed 37 times and beaten before the stabbing occurred, that’s an out of control killer. The two tend to be mutually exclusive killings. You don’t have premeditation when you’ve got a frenzy. A defense argument would be that my client did not premeditate this, he was crazy. If you’re in a jurisdiction that recognizes the concept of temporary insanity, you’ve got the groundwork for an argument there.
Why was this premeditated murder? One of the classic indicia of premeditation is bringing the weapon to the crime. If you come to kill somebody and you’ve already got your own gun to do it, that’s a strong indication that you’ve been premeditating the crime. A weapon of opportunity is a strong indication of lack of premeditation.
Where did the knife come from in this case? Why did he want to kill her? Motive is a fantastic piece of evidence of premeditation or deliberation or both. If you can’t find a motive there is a serious hole in your case. A defense attorney would argue why would he want to kill her?
What the court was doing in this case was saying that there are elements that describe frenzy here but what else do we look to? Remember, when you are analyzing a crime and you’re trying to find circumstantial evidence to help you understand what happened, you have to analyze the crime itself, the actual criminal event, but you also have to analyze the events that lead up to and the aftermath.
Second look theory.
MANSLAUGHTER
The overall distinction between manslaughter and murder is that murder is an intentional killing or a depraved heart killing that serves the same purpose as the intent to kill.
Manslaughter whether it’s voluntary or involuntary is not an intentional killing. It is an illegal killing that is not intentional.
Voluntary Manslaughter is a crime that would have been murder but for the fact that it occurred in the heat and under the impact of extreme passion. You no longer have control of yourself and your intent to kill has been overridden by the passion.
Involuntary Manslaughter is the unlawful killing of another as a result of gross negligence resulting in death.
Polluting industrial company hypo*-polluted ground water and killed someone would be a manslaughter.
It has to be a passion recognized and excusable by society. A Neo-Nazi killing a Jew is not an excusable passion. A KKK member who sees an African-American and looses control and kills him will not result in manslaughter in court. Not because he wasn’t driven by overwhelming passion but because it’s a passion that society and our legal system is not prepared to recognize as an excuse.
The classic voluntary manslaughter that we still do recognize is finding your wife in bed with someone else and you grab a gun and shoot them both. Did you want them dead? Absolutely. Was it an intentional killing? Yes it was. What are you going to be convicted of? Voluntary manslaughter. You acted in the heat of passion without a cooling off period.
If you can prove in court that you never did cool down the jury might buy it.
WEEK 3
Week 3 Lecture, Crim Law
In modern times we have abandoned the use of the word, malice. Almost all jurisdictions have abandoned the old-fashioned common law phrase, malice aforethought. Intent to kill, malice and malice aforethought all mean the same thing. Malice was used up until the 1970s. Most jurisdictions are going to just intent.
An intentional killing or a killing with malice is a murder.
An illegal killing without malice (intent) is manslaughter, under common law and modern terminology.
Manslaughter is generally, broadly divided into two categories:
Voluntary
Involuntary
The most difficult thing I think for law students to grasp is the distinction between Voluntary Manslaughter and Depraved Heart Second Degree Murder. They are just a gradient of each other; there really is no sharp distinction.
Involuntary manslaughter (Criminal Stupidity): Gross negligence resulting in death. It’s when you fail to take appropriate steps to avoid a known or perceived danger and that results in a death.
Depraved Heart Murder: A Gross indifference to the great likelihood that your actions will result in death or great bodily harm that could result in death.
The doctor injecting his patient with tea example was involuntary manslaughter.
State v. Hardy page 41
No intent. The issue at law here is the degree of certainty that had or should have known which brings up an issue that you will see over and over again and that’s the difference between subjective and objective testing.
Objective Testing: Asks the question what any reasonable person would have done under the circumstances. It’s a reasonable person test. Everyone should behave to a known standard.
Subjective Testing: Asks the question of what was going thru this D’s mind at the time and how does that effect the case.
When dealing with manslaughter cases the general rule is we are dealing with an objective test to determine whether there was negligence or gross negligence. When I say to you the test for involuntary manslaughter is the failure to take appropriate steps, that’s an objective testing standard because it says, “What would any other reasonable person have done under the circumstances to avoid that danger? It’s an objective test because it’s outside the mind of the suspect.
In a murder case if you say the person had to have the intent to kill, that’s a subjective test because you are looking into the mind of the suspect and saying, “What did this person really think when he pulled the trigger?” If you’re going into the mind of the suspect and examining what was actually there, it’s subjective.
If you are saying, we don’t care what they were actually thinking, we’re talking about what they should’ve been thinking, that’s an objective standard. And sometimes they make a huge difference. We’ll see that again and again. One of the areas where it’s most blatantly described is when we start talking about the different forms of entrapment testing near the end of the course
Remember when we are testing for manslaughter it’s an objective test. What we’re saying is, I don’t really care what this guy was thinking at the time, he may have thought that the gun was not functional but the test is, what would any rational person under those circumstances have done to avoid the injury? And the answer is, if you know the gun’s loaded then, you don’t point it at anybody. And if you’ve been highly trained with weapons you don’t point a gun at anybody whether it’s loaded or not, you simply presume it’s loaded.
If we say that the court was correct in convicting this man, is the court applying a utilitarian or retributive type of goal or both, in reaching this decision? Murder would be overcharging in this case because he didn’t really think the gun was useful. We’re giving him credit. However he still didn’t behave in a rational and protective way so we’re going to make an example out of him, we’re just not going to hang him.
Curry v. State page 17
In the context of manslaughter. What he did in this case was failure to check his brakes before driving a heavy dump truck. Having studied both depraved heart murder and manslaughter, how many of you would’ve voted that this was an involuntary manslaughter rather than a murder? The most telling fact that makes this a murder case is his prior convictions for reckless driving. Jury convicted of involuntary manslaughter
404b Evidence: Evidence of similar and other bad acts. Usually closely controlled by the judge because of its ordinarily prejudicial effects. The basic reason is to show a pattern of behavior to eliminate accident or to show intent, establish identity, eliminate mistake or error in the commission of a crime. It has to relate to the case. Cannot use to show he’s a bad person.
VOLUNTARY MANSLAUGHTER
Voluntary manslaughter: Essentially murder that has been mitigated. For all practical purposes, it is a murder. It is intense passion that we find understandable if not socially acceptable. We don’t approve it but we understand it (Dressler). Typically what we’re talking about is the provocation issue. Judge killed by husband example-he was provoked into killing wife. However, it also has to be a legally adequate provocation and by legally adequate what I’m generally referring to is that it has to be the type of
33 min
provocation that we as a society are prepared to recognize and to accept as a defense. When I say accept as a defense, under normal circumstances, prosecutors rarely ever charge voluntary manslaughter. It comes about as a defense. The prosecutor usually charges murder. In the example where guy comes home and finds wife in bed with best friend and kills them, the prosecutor is going to take the position that it was a cold blooded murder and charge that. What happens in actual practice is that the defense attorney will say, wait a second, he was provoked and acting out of the heat of passion, he didn’t stop to think about it, there was no cooling off period and he’s going to demand that the judge give the jury the option of coming back with a manslaughter. It is actually taking the form of a defense for the defendant. It’s kind of an affirmative defense. What that means in practice is the defendant is going to have the burden of proving that he was acting in the heat of passion. The prosecutor’s case is laid out in front of him. If the defendant wants to be successful in making this a manslaughter case rather than a murder case, then he has to convince the jury that he had no time to cool down and he was acting under this explosive passion that he experienced. D must meet his burden. The question is not did he do it but rather what was he thinking at the time he did it?
Fighting words for provocation
Old rule: Never. It is changing. The MPC seems to recognize fighting words as a provocation defense.
State v. Grugin
Asked the jury be given the option to come back with manslaughter, judge denied, D appealed. Confronted ravisher, and killed him. Great insult makes words provocation. This case does not establish the precedent that nasty words are sufficient for provocation. This level of insult will recognize provocation. Normally fighting words not sufficient for provocation.
FELONY MURDER
Open murder is a nebulous term under Michigan law that basically means that you’ve been charged with all forms of murder in one indictment. Prosecutor asks jury to convict on any type of murder the facts support. Used as a holding charge.
Felony murder is different because it eliminates one of the elements that the prosecutor has to show. We are talking about traditional felony murder here.
Felony murder: A death that occurs in the course of committing one of the enumerated predicate felonies.
Felony murder doctrine is a statutory concept. Usually includes arson, rape, robbery, larceny, kidnapping and violent sexual assault.
Now is a statutory crime in most states and have augmented the list of crimes. In MI, we’ve added an inmate killing a prison guard, killing a police officer in the line of duty, killing an elder person and killing a child during child abuse in the first degree.
In first degree murder we have to show it was intentional, prove malice aforethought, and that it was accompanied by premeditation and deliberation.
With felony murder you have a death that is caused by some act of the defendant during the course of commission or attempted commission of one of the enumerated felonies.
Where’s the malice? I didn’t say anything about an intentional killing. Traditionally, the underlying felony substitutes for the malice requirement for murder. You do not have to show there was an intentional killing. All you have to show is that the person was in the act or the attempt of committing one of the predicate felonies. That becomes a substitute for malice. The person is still convicted of first degree murder. You have to show that there was a causal relationship between the death and the actions of the suspect.
Example: Walk into a bank intending to commit an armed robbery, pull out your shotgun and shoot into ceiling of bank. Man dies of heart attack from fright of the gun going off. Didn’t hit or aim at him, he died of fright. It was a heart attack that was caused by you shooting inside the bank-first degree (felony) murder. It’s a powerful tool for the prosecution.
Aaron case
Critical importance: The court did not like felony murder and was looking for an excuse to lessen the impact of the felony murder doctrine. The rationale that they used to get there is important. They went back to the statute where it says that felony murder is a murder committed in the course of one of these predicate felonies but they latched on to the fact that the statute uses the word, “murder”. Two things going on here:
1. The court didn’t like felony murder doctrine and the way it was applied. They were looking for a way to change it but they couldn’t just say, throw it out. That would be too high handed of the court.
2. They looked for a way to hang their hat on the change and here they went back to the statute. Murder is when you intentionally kill somebody. The statute doesn’t allow the elimination of the intent element. Aaron is a minority in the law. Everywhere else, substitute malice.
Drug addict example: Felt he was cheated on amount of heroin, returned to house where purchased and demanded to see the drug dealer. Drug dealer didn’t live there, addict was so incensed, he waited for everyone to go back to sleep and burned the house down. Two children died in fire.
Did he intend to kill anybody? Probably not. But he committed arson. It was also a gross indifference to the great likelihood that if you burn down a house in the nighttime, you’re going to kill somebody. So he didn’t premeditate, it wasn’t an intentional killing, he certainly didn’t intend to kill those children in their beds. But it was certainly a depraved heart murder because he burned down a house he knew people were sleeping in. The great likelihood is that if you do that, you are going to kill somebody or you’ll injure them so badly they will die. That’s a very good example of depraved heart murder.
It also happened to be arson, one of the predicate felonies for felony murder. So instead of this guy being convicted of two counts of second degree murder, he was convicted of two counts of first degree murder under the felony murder rule and that’s exactly what happened.
In any other state it can be an accident and it’s still a felony murder. Get away car after robbery, kill a pedestrian-felony murder. In MI, it’s not murder. In MI can only be used to boost to first degree murder from second degree.
People v. Ireland
There is a limitation on the felony murder rule.
Merger Doctrine/Limitation:
What the court is saying here in the merger doctrine, is that when you’re talking about felony murder, if the underlying felony that you’re using to establish the felony actually became part of the murder itself, you can’t separate it out. If you can’t separate it out, then it’s not going to support the felony murder doctrine.
So assault with a deadly weapon is an integral part of the murder. It’s what you do to commit the murder. It’s not actually a separate felony. What the court is saying is that if you’re going to follow that line of reasoning, then virtually every violent crime will end up being a first degree murder because you can’t really separate them out. The assault with a deadly weapon is an integral part of the murder itself. It’s what you do to get to murder. So if you have what should have been a second degree murder, a non-premeditated murder, the prosecutor is bootstrapping by saying, yeah this was a second degree murder that was an assault with a deadly weapon and therefore we’re going to make it a first degree murder. The court is saying that you can’t eliminate the need to present premeditation and deliberation simply by trying to turn this into a felony murder. That’s what is happening here.
The Merger Doctrine means: If you’re going to use felony murder as a chargeable crime, the underlying felony has to be a recognized independent crime of the murder itself, not an inherent part of the original crime of murder. So assault with a deadly weapon (same as felonious assault) is an inherent part of a murder, you can’t separate it out. It’s what you do when you try to kill somebody. So you can’t automatically turn what should have been a second degree murder into a first degree murder simply by saying he assaulted her, otherwise everything is going to end up as first degree murder.
If you have one of the predicate felonies that are recognized like kidnapping or arson or rape, something that wouldn’t automatically lead to death but did lead to death in this case, then you’ve got a felony murder. So what the court is trying to do is keep the prosecutor from bootstrapping every assault into a murder case.
It’s a limitation of the extent to which you can apply the felony murder doctrine.
When dealing with a felony murder there still are requirements of causality. You have to show a causal linkage between the action of the D and the death of the V. If you can’t establish that causal linkage, you’ve got a major problem in your case. You don’t have to show the intent to kill, you don’t have to show premeditation when you’re dealing with a traditional felony murder rule, but you still have to show causality. You will need a witness to say that the little old man died of a heart attack induced by fear.
A lesser form of the felony murder rule is Misdemeanor Manslaughter.
Misdemeanor Manslaughter: Accidental homicide that occurs during the commission of an unlawful act which is not a felony. In other words, if you commit a misdemeanor and somebody accidentally dies because of your misdemeanor, that’s misdemeanor manslaughter. It functions very much the same as felony murder except on a lower level.
CAUSATION
Basketball case:
Two guys committed an armed robbery and stabbed the victim in the heart. V did not die. Prosecutor waited to see if V would die (attempted murder vs. murder). V warned by doctor that he had a heart of an 80 year old as a result of attack and cannot stress your heart. A year after the armed robbery V plays basketball and dies.
1. Pulled back out of prison and charged with murder. Defense attorneys argued double jeopardy-already convicted of a crime. Murder was not a possibility, V was still alive. Court said no because they couldn’t have charged you with murder at the time.
2. Convicted of murder the second time around. Dropped assault charge and intent to murder because now we have an actual murder. The defense attorneys argued that he killed himself by stressing his heart-Causation. Why? Because he didn’t listen to his doctor’s instructions/warning that if you stress your heart, you are going to die. Argument was causation.
The court rejected defense argument. There was no question that these guys were responsible for his death.
The general rule in the law is you take your victims as you find them and if they happen to do something this moronic, that’s your problem not theirs. Foreseeability is the issue, it could have happened if he’d ran up a flight of stairs too.
Year and a day rule. Defunct. Medical science at the time couldn’t establish causation.
The line is generally drawn that the killing has to be an action from Furtherance of the Crime in order to be held responsible for it. There are some other states that take a But For approach. But for your action of walking into the bank intending to commit a bank robbery, that person would still be alive. And they find that you are causally connected simply because it was predictable that you would cause a gun fight inside that bank. (proximate cause)
Campbell v. State
Can you hold a suspect for murder when his own criminal partner is the victim of the killing? Getting your own partner killed in the course of the crime does nothing to help you commit the crime. The whole purpose of the felony murder doctrine is to hold you responsible for a death that occurred while you were trying to commit the crime, you’re pushing it beyond its normal bounds by holding someone responsible for something that is counterproductive to the commission to the crime. Getting your own partner killed isn’t going to get the crime done. Not allowed to go that far. If the killing was done by a third party, that’s going to absolve liability for the death to the defendant. Know your jurisdiction; it may be a but for.
MODEL PENAL CODE
It introduces a whole new set of descriptive terms that simply didn’t exist at the common law and doesn’t exist in many states. A word of caution-some states have adopted the MPC into law. In and of itself it has no impact. Rarely is it adopted in its entirety.
The reason for the MPC was for an effort to simplify common law concepts. No distinctions in different types of murder. The MPC just simply calls it murder, manslaughter and negligent homicide.
Murder under the MPC is a first degree felony. Manslaughter under the MPC is a homicide resulting in extreme emotional distress or a reckless act.
MPC Manslaughter has seriously changed one aspect of it. MPC manslaughter subparagraph b. In the MPC version, it becomes subjective. An emotional or mental disturbance for which there is a reasonable explanation or excuse. The reasonableness of such explanation or excuse shall be determined from the viewpoint of the person in the actor’s situation under circumstances as he believes them to be. That is a clearly subjective test-you are going into the mind of the actor. Does anyone perceive the danger in what the MPC is doing here? You can rationalize almost any anti-social act. That’s my story and I’m sticking with it. It is diminishing the beacon that the criminal law is supposed to stand for. Most prosecutors disagree with about the MPC. It is highly subjective.
Common law manslaughter is an objective standard. We are saying that a person has to behave in such a way that can be tested objectively. In other words, they behave in a way that we would expect any person under those circumstances to behave.
What has happened to the utilitarian function under the MPC version? It is seriously undercut. What about retributive? We are giving them credit from their perspective. How do we maintain standards?
Allowing a Klansman to say, “It seemed ok to me at the time.”
What about negligent homicide, what does the MPC say about that? If it doesn’t give you a definition then you go back to the common law understanding. Negligence hasn’t changed. It’s the failure to take reasonable and appropriate steps to avoid injuring someone else.
MPC definition of murder: Purposefully and knowingly. What are they? MPC has the impact of a statute. Purposefully under the MPC: It means that was your goal. It is your understood objective to make that happen. Knowingly under the MPC: Aware and practically certain it will occur. Recklessly: Gross deviation from a standard of conduct-a conscious disregard (refining common law gross negligence definition). Negligence: should be aware.
No first degree murder under MPC
Murder Purposefully and knowingly
Manslaughter Reckless or gross indifference to life (depraved heart)
Negligent homicide Negligent
MODEL PENAL CODE FOR EXAM: How it changes the common law. You may be asked what is the definition of first degree murder under the MPC? The answer is, there is no first degree murder under the MPC. Understand how the MPC differs from the common law.
WEEK 4
Week 4 Crim Law Lecture
MPC review
1. Murder: purposely or knowingly or it has to be recklessly manifesting an extreme indifference to the value of life. Looks an awful a lot like depraved heart
2. Manslaughter
3. Negligent Homicide
Felony Murder was an independent category of crime. It was a type of murder. In most cases it was a death causally related to the commission of one of the listed felonies. And they were the traditional listed felonies.
Under MPC felony murder does what? It’s not a separate category of crime. It sets up an evidentiary presumption. A rebuttable inference and the inference is that you were reckless so rather than becoming a separate prosecutable crime it’s now simply a means of producing evidence of your recklessness for MPC murder.
Under common law, if you commit a felony and somebody dies, you can be prosecuted for felony murder. Under the MPC there is no crime of felony murder. If you have circumstances that look like felony murder, what’s actually happening is the MPC sets up a rebuttable inference that you were reckless under the MPC. The fact that somebody died while you committed one of the violent crimes that’s listed means that you were presumptively reckless. The difference is it’s merely evidence that leads to the conclusion of recklessness. It’s not in and of itself a separate crime and a D can rebut that inference. It’s a subtle distinction but it’s real. There is no separate crime of felony murder under the MPC but they kept the concept alive in the MPC murder section and the reason they did that simply was because there were too many jurisdictions that were not prepared to give up the concept. It’s too deeply ingrained in our historical concept of murder. We weren’t prepared to give it up and the MPC drafters wanted to get rid of felony murder. They belonged to that group of legal thinkers who think that it is simply a past concept that has no place on modern legal thinking. But they met such stonewall opposition that what they did is reach a compromise and this is the compromise. The compromise is that we’ve done a [homage] to the concept of felony murder but it’s no longer an independent legal concept.
PURPOSEFULLY AND KNOWINGLY
Purposefully means that you did it with a conscious desire to do it.
Knowingly means that it was practically certain that it was going to happen.
Recklessly means an extreme indifference to human life. (Very much like a depraved heart)
Punishments:
If convicted of murder it is a first degree felony under the MPC. The range of punishment available under the MPC (each state is free to setup its own punishment structure) it could be anywhere from 1 year to life and the MPC does recognize the death penalty (depending on the jurisdiction).
MANSLAUGHTER
Manslaughter under the MPC is when someone behaves recklessly. The difference here is we are no longer talking about an extreme indifference to human life, what we are talking about here is much more like what we used to call voluntary manslaughter. Here what we’re talking about are circumstances that include a conscious disregard of the likelihood of death. Not a great deal of difference between common law involuntary manslaughter.
MPC no longer looks at the straw man but now we’re looking into the mind of the suspect. Was he suffering from an extreme emotional mental disturbance? And was it reasonable from his perspective? Most prosecutors will blow a gasket with that language!
Dumlao case
Did the court discuss the reasonable man test? Unworkable for the jury. What was the purpose for the remand? From now on if presenting an emotional disturbance, we’re going to try from his perspective.
Under MPC murder, there is a reckless category-you can have reckless murder when it exhibits an extreme disregard for the value of human life. We now have reckless manslaughter which is a lower from of reckless, you don’t have to show an extreme disregard for the value of life, all you have to do is show a conscious disregard for the dangerousness of the situation. Therefore, it’s pretty clear that reckless manslaughter under the MPC is a lesser included offense of reckless murder under the MPC. And that’s another reason why Dumlao should have been allowed to have that option presented. Once you make the decision that something is a lesser included offense of a greater offense, the impact of that decision is that a D who is charged with a higher offense can almost always have the jury given an option for the lower offense. That’s the principal impact of deciding that something is a lesser included offense. If I charge you with first degree murder, you can almost always ask that the judge charge the jury with the possibility of second degree murder because they are lesser included offenses. That’s one of the major impacts of making that decision.
With the Dumlao case you cannot put finger on any provocation. He was just angry and upset at the world. Just seems like a ludicrous way of interpreting the law.
MPC NEGLIGENT HOMICIDE
MPC negligent homicide is a gross deviation from a standard of care that a person should have followed. It’s an unjustifiable risk of death.
The difference between gross negligence is that it is not a conscious disregard. MPC manslaughter which is recklessness is a conscious disregard of the danger. That’s very much like voluntary manslaughter-you have to know what is dangerous and you have to consciously disregard it. Here it’s really more of a deviation from a standard of behavior and it’s an unjustifiable and substantial risk of death.
For instance, driving 80 MPH in a residential subdivision where the speed limit is 25. If you kill somebody under those circumstances, under the MPC that would certainly be negligent homicide.
Misdemeanor manslaughter disappears as a concept under the MPC
King v. State
Looks like an MPC state. Charged with murder but they are using the extreme indifference clause under the MPC to establish the murder. Typical of appellate court language: Sufficient evidence presented to the jury to conclude…The court was walking itself up the ladder. Need to see that they stepped up two rings.
Problem on page 6 of Supplement
Exam answer: We can’t charge first degree under this statute because in the definition of intentional it shows the requirement premeditation and deliberation and there’s none of it here. We can’t charge second degree murder because that is like felony murder and he wasn’t committing a predicate crime so that leaves third degree murder and under the facts of this case I think I can show that he had an instantaneous attempt to kill or certainly hitting someone over the head with a pool cue shows a gross indifference to the value of life.
Manslaughter in the alternative. As a defense attorney, what would you suggest in the alternative? You are going to charge murder, I’m going to argue manslaughter. A good D attorney may have to say, you’re guilty but we have to see how far we can push the line.
SEXUAL OFFENSES
For Exam: Know CSC Laws
CSC laws MI is the model for the nation
Traditional: Under the English common definition of rape it was the carnal knowledge of a woman forcibly and against her will. The only victim in the traditional rape was a woman. The specifics are:
1. Had to have a female victim
2. Vaginal penetration/intercourse. Anything else was sexual battery. Later defined sodomy.
3. Forcibly AND against her will Had to say no and force had to be used to accomplish rape.
Many jurisdictions defined forcibly as the woman had to resist. If she didn’t physically resist then the rape was not forcible.
A general intent crime means that you intentionally did the action which is prohibited by the statute. In this case it was having forcible intercourse with a woman.
That is to be distinguished from a specific intent crime which means that you not only intentionally took the action prohibited by the statute but you understood and intended the injury that resulted from that action.
First degree murder is specific intent and second degree murder is general intent.
Rape is considered a general intent crime, which means that you only had to intend to do the action which was prohibited by the law. It is still a general intent crime.
Under common law it was legally impossible to have rape with a married man. It was an absolute defense.
Past sexual behavior was admissible. It went to the issue of whether or not it was against her will. Women were embarrassed and therefore didn’t want to testify.
The focus was consent. Read Dressler. The courts have always said the D must prove some form of consent and why he thought it was there.
RESISTANCE
The common law said that the woman had to resist. Force and against her will. What was the basis of this requirement? It’s a result of 13th and 14th century thinking that a woman was property of her husband. A marriage contract was essentially a property contract. The man was the owner for the woman and the children in the family. As such the woman had an obligation to protect his property which was her honor. She had to resist. If she didn’t resist she wasn’t appropriately protecting his property.
Statutory Rape: Early common law didn’t discuss sex with children. It was vaginal penetration of a female child under the age of consent which was usually 12 to 16 years of age. Modern statutes have raised age limit to 14 to 18. Statutory rape is a strict liability crime because a child cannot give consent. It’s a major crime-a capital crime. Force and consent is irrelevant because the child was legally incapable of giving consent who cares about force when they couldn’t be having sex at all. Having sex with a 15 year old that looks 23 makes you no less guilty of the crime.
Berkowitz case
Common law state-separate requirement for force
What was the issue? She testified that she was scared. She didn’t fight back, he didn’t assault her in addition to the rape. Weren’t they arguing that the act of penetration itself, when she didn’t give consent, constitute a force? Yes. What did the court say about that? The weight of his body on top of her was the only force applied. Was that enough in the courts mind? When is there sufficient force to satisfy the law? The prosecutor argued the mere act of sexual penetration without consent of the woman constitutes force and that’s enough. The appellate court said, no it’s not. All we have at this point is a woman who did not consent. But where’s the force? This is kind of like the merger doctrine. Penetration is inherent in the act of rape. If you didn’t have penetration we’d be talking about a different crime, it wouldn’t be rape. So the court is saying if penetration is inherent in the crime, then we need additional force to satisfy the requirement of force because otherwise you are using the element of the crime to satisfy itself and you can’t do that (charging the crime is proving the crime). That’s what the court is saying here. You need additional force above and beyond that which is simply sufficient to cause sexual penetration. And the prosecutor couldn’t show it in the Berkowitz case.
State in Interest of M.T.S.
Common law state
Same time period as the Berkowitz case and same issue-whether you need more force than the simple act of sexual penetration without consent to satisfy the force requirement under common law rape. What did the NJ court say? Sexual penetration in the absence of specific consent is force. The court came to what Professor Blumer calls is a more enlightened decision and that is if the woman does not affirmatively consent to having sex and she is sexually penetrated anyway, that is sufficient force to satisfy the common law requirement of force. The Berkowitz case said no, you need something in addition-you need an actual exhibition of force. There is no way to reconcile those two cases.
We also get out of this case that it’s not what the D thought, it’s what the victim did or said. You don’t actually have to say “ok” if you can behave in such a way to communicate consent but there is no evidence of that in this case. So what the court was saying was it was establishing the ground rules and saying unless the victim affirmatively consented, either by word or by deed, the D has no right to assume that that constitutes consent. So the court is saying a lack of affirmative consent is in fact a denial.
CSC
Four Classifications:
One great divide Sexual Penetration vs. Sexual Contact
Penetration: First (most serious of the penetration) and Third Degree
Contact (Surface): Second (most serious of the contact) and Fourth Degree
One of the first major changes brought about by the CSC laws is that any type of sexual penetration of the body no constitutes sexual penetration. It could be anal, oral, vaginal-it doesn’t matter. If it’s penetration for sexual purposes, it satisfies the requirement of the statute.
Another change is we no longer exclusively recognize female victims, you can now have male victims of CSC. There is no gender distinction.
CSC First degree page 106
Changed the terminology, use “Actor”. The actor is the person being accused of criminal sexual conduct
750.520(b) First degree Criminal Sexual Conduct
Notice that it says engages in sexual penetration. Also must satisfy the other elements:
The other person is under the age of 13. Statutory rape is no longer a concept under the CSC statutes.
If the actor is a member of the same household, what do we mean by that? In many cases its mom’s boyfriend who lives in the house.
Babysitter is in a position of authority.
Let’s look at c. Sexual penetration occurs under circumstances involving the commission of any other felony. What other felonies are we talking about? *Old crime example of a contract killing. He was good at raping her but not good at killing her. She was never able to identify him. So, you’ve got an assault with sexual penetration. Shouldn’t use the word rape when you are talking about CSC statutes.
Eliminated corroboration
Be familiar with the categories and aggravating factors. They are typically multi leveled.
You still have elements of violence in CSC third degree but it is not as aggravating as first degree.
Jackson county restaurant example: Not only do we have to prove that she was drugged, but we also have to prove that the actors who participated in this act knew that she was drugged because it says in the statute that the actor knew or had reason to know that she was mentally helpless. So not only do we have to prove she was drugged but who drugged her and who knew she was drugged. Now certainly the guy who drugged her, is someone that we could prosecute. I want to go after all of them, but I have to show that they also knew that she was drugged. It’s a tremendously difficult case. She wasn’t falling down drunk and without the physical evidence, I can’t prove she was drugged.
Alcohol alone is sufficient to render a woman helpless if she’s falling down drunk.
One of the differences between the CSC statutes and common law rape is common law rape makes lack of consent an element. The CSC statutes turn it around. They say that consent is a defense-that’s the way they’ve been interpreted. If you have penetration and these conditions exist, unless the D shows consent if effectively becomes an affirmative defense under the CSC statutes.
Duke lacrosse example*: Under common law you can enter evidence that she was a stripper. Under CSC it’s utterly irrelevant to the charge.
Force under the CSC is not specifically defined. It says force or coercion a number of times. Force necessary to accomplish the penetration-that’s the more modern thinking.
Third degree CSC is much more like the common law rape. A woman jogging and gets pulled aside and is sexually assaulted, that’s CSC third degree.
Other things that came along with the CSC code are of equal importance. We eliminated the necessity for corroboration. There is no requirement of physical resistance. But by far the most important additional change that was put into effect was the rape shield law.
Rape Shield Law: The victim’s sexual history or reputation for sexual behavior is irrelevant and inadmissible in a prosecution for CSC. Exception: Past sexual history between V and D as it relates to the issue of consent.
So it is both technically and practically possible under the CSC laws for a prostitute to be a victim of CSC. The V’s reputation for sexual behavior is irrelevant. Exception: prior relationship between the same two parties as that relates to the issue of consent. The rape shield law is virtually cast in stone.
Bar example: A woman was lifting her blouse and inviting men to fondle her breasts. One of the men took this as an invitation to go further and forced her to have sexual intercourse in the back room of the bar. He was prosecuted for CSC third degree. His attorney argued that her behavior immediately before the assault had to be known to the jury on the issue of whether he understood that it was consensual behavior. The trial court allowed it. It was a deviation in the rape shield law. Everyone was surprised when about a year and a half later the MI Supreme Court came out with the decision that reversed the trial court and sent it back and said no, even that behavior is out of bounds for CSC.
Now the D is the issue and not the woman. The woman is no longer the target.
WEEK 5
Week 5 Criminal Law, May 31, 2006
Review of structure of MI CSC
Four grades:
1 & 3 Penetration
2 & 4 Contact
First major distinction between CSC and Common Law rape
The CSC laws say any form of criminal penetration vs. Common law rape that was vaginal penetration.
Second distinction:
Gender is neutral. Common law did not recognize homosexual rape. Under modern CSC laws you can have a male victim.
How do you differentiate between the first degree and third degree?
When you are analyzing a CSC problem, start with CSC third. Look to see:
1. Do you have sexual penetration?
2. Do you have any of the factors that make it a criminal sexual act, i.e. force, coercion, use of a weapon, etc? Once you establish that it is at least CSC third, then look to see if there are additional aggravating factors which boost it into CSC first degree. And those aggravating factors are in the statute-things like member of a household, person over authority of the victim, sexual penetration that occurs in the commission of another felony, any of those features will boost what is otherwise CSC third degree into first degree.
CSC second degree is essentially identical to CSC first degree except that it involves contact rather than penetration. It has the same criteria as first degree; you just substitute surface contact instead of penetration.
CSC fourth degree is sexual contact but it is generally much more minor type of intrusion. Not nearly as serious, it’s a misdemeanor.
Another thing to be aware of when you’re talking about criminal sexual conduct cases is that they are general intent crimes. You do not have to prove specific intent. General intent simply means that the act of penetration or the act of causing sexual contact was an intentional act. You did not have to intend to hurt the victim, you did not have to intend to do any of the specifically aggravating factors that would create CSC first degree. But you did have to intentionally cause the penetration or the contact. It’s possible to confuse sexual contact and there are multiple ways of interpreting the same event.
Bar fight hypo*: Man and woman in a fist fight (assault and battery and not CSC) both drunk, man hits the woman’s breast, wasn’t an intentional sexually motivated contact even though he struck her on a sexually sensitive part of her body. That wasn’t the motivation behind the contact.
In a subway hypo*: Fall into a woman behind you. That’s not even an intentional act.
Some of the criteria you will look at show that there must be an injury to the victim in order for it to be CSC first degree. There has been a great deal of debate as to what constitutes injury to the victim sufficient to make it first degree. There is a strong line of cases that say if the woman gets pregnant from the sexual penetration that is considered an injury for the purposes of CSC. If a victim contracts an STD that is unquestionably an injury that would constitute an injury under CSC.
Is the mere act of penetration itself, against the victim’s will considered to be a form of injury? The answer is no. The reason for that is if it were true it would eliminate CSC third degree as a viable option. Everything then would constitute CSC first degree. You have to have something beyond the mere act of penetration for it to be considered an injury sufficient to boost it into CSC first degree.
These are the types of criteria that you have to be looking for. Remember, one of the ways that you could get into a CSC first degree is if it’s a penetration that occurs in the course of a commission of another felony. If you have a kidnapping and the kidnappers then sexually penetrate the victim, that’s CSC first degree. Look for alternate felonies. As a matter of fact there’s one of them in one of the test cases that we have to look at. Be looking for this additional criterion, if there’s a sexual penetration start at CSC third degree.
Be prepared to justify your decision based on the facts presented or reasonable inferences from those facts. Reasonable inferences are circumstantial evidence. If any reasonable person could look at the facts that you’re given and say, yes, and because of that I could reasonably conclude the following…then that’s a circumstantial piece of evidence and it is admissible
Pure circumstantial evidence if compelling enough can support a conviction under criminal law.
One exception to that is arson. In an arson case it is generally accepted that you can’t prove the case without an expert who could testify as to the specific cause of the fire.
CSC first degree sexual penetration is punishable up to life in prison. Various things that can lead to CSC first degree are:
If the victim is under the age of 13; (used to be called statutory rape)
If the victim is between 13 and 16;
If the actor is a member of the same household;
If related by blood;
Is in a position of authority and uses it to coerce;
Aided by others;
Knows or has reason to know mentally incapacitated or mentally helpless; and
Armed with a weapon or victim believes to be a weapon.
MI state trooper case. Ruled against Blumer, tried CSC first degree. Happened to have weapon with him, also was in authority but judge didn’t buy it-guilty of third degree.
Causes personal injury. Coercion
Hypo* Lets say the injury in this case is an STD, no evidence that the victim was not physically or mentally helpless-CSC third degree.
CSC second degree is substantially identical except you have contact, not penetration.
The first thing you must prove in any CSC case is whether its penetration or contact. Some of the cases are difficult, dealing with evidence especially when the victims are young. Sometimes the child cannot communicate whether it was contact or penetration. You end up falling back on medical evaluations. Same with mentally handicapped victims.
The defense will attack the credibility of the victim or competence of the witnesses. The victim is too young or too retarded to communicate the problem.
CSC third degree: Forcible sexual penetration against the will of the victim (What we used to call common law rape).
CSC fourth degree: Contact-force or coercion used to accomplish the contact. The only one where the statutes have an age spread requirement between the actor and the victim. If the victim is between 13 and 16, the defendant has to be five years older or more than the victim. Socially added for teenage sex.
13 or 14 is a different story. Will prosecute and let a jury decide.
In every criminal case there is always a moral decision and overriding that, there is a tactical decision.
Marital privilege has been abolished. The fact that a woman had to resist has been abolished.
Rape shield law: Makes the past sexual behavior of the victim and the reputation for sexual conduct to be irrelevant and inadmissible in trial. Exception: Past sexual relations between victim and same defendant as it relates to the issue of consent.
Problems in supplement…
Under CSC, each penetration constitutes a separate offense. Each count is a separate conviction.
Miscellaneous crimes on the handout
BATTERY
A battery in most jurisdictions is a battery, under common law as well. In all jurisdictions it is the offensive physical contact.
ASSAULT
In Michigan, assault and battery are one crime. In other jurisdictions, they are separate offenses.
One of two things:
Attempted battery; or
Intentional infliction of a reasonable fear of receiving an immediate battery
“Duck” rule: If you don’t feel the urge to duck, you haven’t been assaulted. Exception: In Michigan it is possible to be assaulted even though not aware.
Assault is a reasonable fear of being subjected to a battery. Verbally assaulted does not exist. It’s an immediate fear of physical harm. If I tell you, give me a thousand bucks or I’ll hurt you, that’s extortion. A threat of future harm is not an assault.
KIDNAPPING and UNLAWFUL CONFINEMENT
Kidnapping: Forcible movement of a victim, against the victim’s will and without lawful authority.
Unlawful Confinement: The unlawful locking up of a person where they don’t want to be, against the will and without lawful authority. Same crime but conceptually different in some jurisdictions.
Asportation: a legal term which means movement of the object (or another) in question unlawfully.
Domestic violence is a form of assault and battery. There is a special legal relationship between the assailant and the victim. It gives police officers special powers to make arrests otherwise not able to.
In Michigan, the categories that make it domestic violence are:
1. If the victim and the actor are members of the same household; or
2. If they are or formerly were married; or
3. If there is a child between them; or
4. If there is or was a dating relationship.
If those categories exist, could end up with a domestic violence rather than an assault and battery.
Page 20 of supplement
Another name for felonious assault is assault with a deadly weapon. Dangerous weapons can even be bricks. Have had boxers or black belts charged with felonious assault-very rare and most of it is Hollywood. It is much more common to have a construction worker who kicked somebody with a steel toed boot. Don’t always look for the brass knuckles or a gun. It could be a car or a steel toed boot-be flexible. It doesn’t have to be deadly, only dangerous.
One of the characteristics of assault pattern statutes is that they generally climb the ladder of dangerousness. All assault crimes are intent crimes.
1. Assault and Battery
2. Aggravated Assault and Battery Inflict severe injury i.e. knocking teeth out or some type of disfigurement..
3. Assault with a Dangerous Weapon
4. Assault with Intent to do Great Bodily Harm, less than Murder. They really wanted to hurt somebody but they didn’t want to kill him. Have to prove specific Intent. Use a baseball bat but stop short of killing him.
5. Assault with Intent to Commit Murder. Almost like attempted murder. You assault somebody, your goal is to kill them and you didn’t do it.
It’s practically possible to have a person much more severely injured with an Aggravated Assault than it would be with Assault GBH. Assault GBH is a much higher crime punishable by at least 10 years. Aggravated Assault is 1 year. Assault and Battery is 90 days. But you could have Assault GBH without the victim suffering any kind of injury at all. All you have to prove is the intent of the assailant was to cause Great Bodily Harm less than Murder, you don’t have to prove the victim suffered Great Bodily Harm less than Murder. Whereas with Aggravated Assault and Battery you have to prove the actual injury.
Shooting someone in the kneecaps is Assault GBH, no intent to kill victim.
The injury to the victim is not what defines most of these-it is the intention of the suspect at the time he commits the crime.
750.83 Assault with intent to commit murder.
BURGLARY
Originally defined as breaking into a dwelling, in the nighttime, with the intent to commit a larceny. It’s very restrictive and didn’t give the prosecution to charge other crimes. It later expanded from commit a larceny to commit any kind of felony. Under common law you can have burglary with intent to commit rape. Later changed building into a dwelling.
Then the name was changed to Breaking and Entering. Same crime just evolved. B&E is the breaking into any form of a building but a dwelling had a higher penalty.
10 years ago added a whole new crime called Home Invasion which is the forceful entry into a home with the intention of committing a crime. If someone was home it’s Home Invasion first degree. Similarly, if someone was injured or killed it’s also first degree.
What constitutes the breaking? You do not have to destroy anything to have a breaking.
Breaking: Any application of force to the building to obtain entry. Sliding an unlocked door or window.
What constitutes an entry?
Entry: Passing the plane of the building.
If you threw a brick and broke the glass window of jewelry store and reached in to the showcase window and took some watches, you have committed a B & E.
Stealing stuff from an old barn example: Back half of the barn was falling down. Illegal entry and larceny, not a B & E.
The crime of B & E is separate from the crime you commit once you are inside. It all has to do with your intent at the time of the crime. If you intended to steal diamonds and when you got to the vault and they weren’t there, still a guilty of a B & E even though you didn’t steal anything.
School kids hypo*: B & E of school building. Intention is to gather up files and burn them but the fire goes out. If the files had burned, also could charge arson and malicious destruction of property (3 crimes).
WILL BE TESTED ON IN ESSAY PORTIONS ON WHETHER OR NOT YOU RECOGNIZE THAT THERE ARE MULTIPLE CRIMES THAT YOU COULD CHARGE.
ARSON
Arson (modern statutes definition): The intentional and wrongful burning of someone else’s property or one’s own property (as to fraudulently collect insurance).
Common law definition: Intentional and malicious burning of a dwelling. Has been expanded in Michigan into separate crimes - arson of a dwelling, arson of real property-it depends on what jurisdiction you are in also.
Fundamentally the corpus delicti (body of the crime) is the intentional setting of a fire.
Two ways you typically end up proving arson:
1. (Strongest way) A fire investigation expert to testify (cause of fire and the point of origin) based on the evidence will look for indicia of an intentionally set fire, i.e. incendiary liquid, pour patterns, soot patterns, etc.. A trained fire investigator will be able to look at a fire after it has been put out and point out things indicative of a set fire. Fires behave in predictable ways.
2. Negative Evidence When you eliminate all natural and accidental causes, i.e. natural gas, breaker box, lightning, etc., you end up with a purely circumstantial case. When you’ve eliminated all natural or accidental causes what is left is an intentional fire.
Factors to consider: Was it a dwelling? Was the building insured?
The building does not have to be totally consumed by fire for there to be an arson case. You just have to show that fire harmed the building in some way. If the fire is on a pertinent part of the building that is attached to the building, i.e. a deck, front porch, etc., that is still common law arson. Those attached physical portions of the building for common law purposes were considered to be the dwelling.
Burning a porch of a house, but not the house itself is still common law arson because it is a pertinent part of the building.
Under common law, the burning a mailbox is not an arson but under modern law it is an arson just not an arson of a dwelling.
Need to know distinction between B & E and common law burglary
Know overall distinctions for CSC
Problems from supplement (pages 25 and 26)
For essay purposes: Describe and analyze the evidence that’s in a fact pattern. Don’t get lost describing the injury without describing the intent.
In problem 2, intent to commit a larceny was most evident by the fact he had gathered up CD’s. Intent at the time of entering the building. It might be an illegal entry of opportunity (could be homeless) in that case a criminal trespass.
Read the statutes.
WEEK 6
Week 6 Crim Law, June 7, 2006
THEFT OFFENSES
Under Common Law to be convicted of a felony was a death sentence. All felonies were punishable by hanging or beheading. Because of that the judges started openly creating loop holes so that a person would not be convicted of the death penalty offense. Larceny is a specific intent crime.
COMMON LAW LARCENY
Elements are on page 144
Actus reus
1. The trespassory taking (obtaining possession)
2. And carrying away (asportation)
3. Of personal property
4. In the possession of another and
Mens rea
5. With the intent to permanent deprive the possessor of the property
Didn’t matter the amount of stolen goods.
Larceny: Illegal interference with a superior right of possession. A crime that violates a right of lawful possession.
In common law it only applies to tangible and movable property, not real estate.
The fundamental element of common law larceny was known as a trespassory taking. We’re not talking about walking onto someone’s land without permission. A trespass is a term of art in the common criminal law that means that it was a taking that was against the will and without permission of a person with a superior possessory right. Whoever had the lawful right of possession at the time of the taking is the person who is the victim. And it is also the person who is responsible for whether or not the case will be brought. The prosecutor was the victim who brought the case to court. They were represented by the crown attorney.
Example:
You rent your car to your best friend for a hot and heavy date for $50. He agrees and you literally lease your car to your friend. One day into the weekend you need your car back for your hot and heavy date. You don’t negotiate with your friend to get the car back you simply go to his house and get in your car with your spare key and drive the car off. You have just committed larceny of that vehicle. Even though you are the owner of that vehicle, you have given up the right of possession for that period of time. Your friend has the superior right of possession of the vehicle. His right is superior to yours even though you are the titled owner.
Trespassory Taking
It has to be trespassory which means it has to be an illegal taking. The illegality that we’re talking about is that it must be against the interest of the person with that right of possession. You are depriving the victim of the right of possession to that property without the victim’s consent or legal permission.
Under the common law, trespassory taking and the timing of the trespassory taking is of critical importance. You can have two different forms of trespassory taking:
1. An outright theft. Taking without the permission (traditional stealing).
2. By tricking a person into giving possession (larceny by trick). If the person had known the truth, they would not have transferred possession.
Under the common law, at the time of the trespassory taking you had to have felonious intent. It is the intent to permanently deprive the owner of his property.
Two mechanic brothers example: One brother went to jail and the other brother safeguarded his tools for him. He needed to use some tools and broke the lock on the toolbox. The girlfriend of the brother in jail was a junkie. The brother in possession of the tools hid the tools so she wouldn’t sell them. He gets out, sees the tools are missing and files a complaint for larceny against the other brother. Police officer didn’t interview the other brother. Warrant denied. Was there a taking? Yes. No felonious intent. Did not have the intent to permanently deprive.
It’s the same difference between the crime of auto theft and joy riding. Joy riding is the illegal use of an automobile with no intent to permanently deprive. Auto theft is a larceny of an automobile. It is the illegal taking of an automobile with the intention to permanently deprive the owner.
Ab initio: From the beginning. You have to have a trespassory taking ab initio which means when you took it, it had to be a trespassory taking. If it became trespassory down the road and the original taking was legal, you do not have a larceny.
Asportation
One more thing we need here: Asportation: criminal movement of the item in order to sustain a larceny. Asportation is a necessary element for larceny. It is an illegal (trespassory) taking which was illegal at the time you took the item from its place. You have to have asportation (actual movement without permission) and at the time of the taking you must have criminal intent to permanently deprive the owner (superior right to possession) of its property.
Owner: superior right to yours.
Taking of the coat example: Under common law, taking of the coat and the criminal intent must correspond.
The King v. Pear
The owner of the horse voluntarily parted with the animal. The D tricked owner into renting him the horse. If can prove that had intent at the time to deprive, consent is ineffective. What evidence did the court rely on to prove his intent ab initio? He gave a false address, sold horse immediately.
Rex v. Banks
Under common law, felonious intent must occur simultaneously while you’re taking the property. If it’s developed later on, it’s not larceny. He did not lie when taking the animal and that’s the major difference between this case and The King v. Pear
Cooper v. Commonwealth
Bank voluntarily but accidentally gave them a roll of $5 gold coins. The instruction that got them convicted was they had to have the intention to commit a crime of theft at the time they received the roll of coins. Either that or they had to know at the time they were given the roll of gold coins and they took advantage of it. There was no evidence of that here. They didn’t realize until they went around the corner. The court gave erroneous instructions at trial. Can’t have unjust enrichment-have to give the money back.
State v. Coombs
No permanent intent to deprive however it was a continuing trespass. There was a felonious intent to use property for longer than originally stated. He borrowed under false pretenses and without the consent of the owner. He stated that he wanted to drive to one place for a short time but actually intended to drive a longer distance for a longer time and subsequently converted the property to his own use. Now we’re seeing the courts trying to patch the gaps.
EMBEZZLEMENT
The fraudulent appropriation of property lawfully in one’s possession with intent to deprive.
Elements:
From the book:
Actus Reus
1. The person receives Lawful Possession of property;
2. That person is in a trust relationship as to that property (sometimes the positions of trust are enumerated);
3. That person Breaches Trust and uses the property in a manner inconsistent with that position of trust
Mens Rea
4. Conversion. The person intends to use the property inconsistent with that trust. [“fraudulently Converts”]
From an outline:
1. Conversion Converts the property for own use.
2. Of personal property
3. Of another
4. By someone in lawful possession. Possession comes into the hands of the suspect because of his position of trust with respect to the lawful owner’s property.
5. With intent to permanently deprive
A bank teller takes money from clients (position of trust) and takes money for herself. An attorney settles case and keeps some or all of the money. He was acting as the agent. You must have a breach of trust in order for an embezzlement to occur. Embezzlement is a statutory crime and not a common law crime.
The King v. Bazeley
The taking of the money was not illegal. The bank never received it as he put it directly into his pocket. If he had put it in the drawer and then taken it, it would have been a larceny. He was acquitted because it violated the rules or larceny and subsequently Parliament passed first embezzlement law.
Morgan v. Commonwealth
D was in lawful custody of cash in box. There was an asportation and therefore the prosecutor thought there was a larceny. The taking was not trespassory at the time.
Custody is control over an item. It is a lower form of control.
Possession is lawful control over an item.
State v. Stahl (page 164)
Couldn’t prove elements of embezzlement, wasn’t entrusted with the money inside the drop box. It wasn’t committed to his care or disposal He had no keys or permission to open box and had to pry open the box to get to the money. He did not have a position of trust to breach.
WEEK 7
Week 7 Crim Law Lecture, June 14, 2006
THEFT OFFENSES
False Pretenses
There is a fundamental distinction between false pretenses and the other crimes we’ve talked about thus far. In larceny, larceny by trick and embezzlement, you either have a taking without authority or you have someone being tricked into giving possession illegally but there is intent to transfer title. In other words the person expects at the end of the transfer to get it back. So if you have a larceny, they have no right to touch it at all. A larceny by trick someone is talked into giving the property and they expected to get it back and they didn’t.
Illegal transfer or title. The person who intended to part with it permanently, they got screwed.
False pretense: A falsehood that is used to cause someone to transfer property to you.
Must be a past or present state of facts. You don’t see future because traditionally if you promise something to happen in the future and it doesn’t happen, it’s not a crime it’s a breach of contract.
If I sell you a puppy, and tell you that this dog has a pedigree and I show you the pedigree that shows that and you give me $5000 because you think you are buying champion stock and it turns out the pedigree is bogus and the puppy is actually a mutt, that’s false pretenses.
If I tell you, give me $5000 and I’ll get you a puppy from the next litter of this champion even though I have no ability to do that and you give me the money, that’s a breach of contract.
MI up until a year and a half ago followed that rule. Car restorer example. We can prosecute for the failure to produce on a future promise if we can prove at the time of making the promise that the person had no intention or capability to complete the promise.
The common law rule and the majority rule is that the false pretense must be as to a past or present fact. There must be detrimental reliance by the victim on the false statement. If the V doesn’t believe the falsehood but gives you money anyway it’s not a crime it’s stupidity.
1. Must have transfer of possession of the property (money or actual physical property)
2. The transfer must be the result of detrimental reliance on a falsehood (false pretenses) as to a past or present situation.
DeWitt school system example: Hired a school teacher because he had outstanding credentials. They gave him the job, taught for 2 years until it was discovered that he never went to college. Fired teacher and prosecuted him for false pretenses for presenting false credentials to the school board. He was convicted, went to the court of appeals, reversed because the injury was that they paid him and he taught. The detrimental reliance is not what caused them to part with their money, reversed because he earned his money.
Chopper invention example: Greatest invention ever, works for 5 minutes and falls apart. Puffery. Do not prosecute for opinion. Can only prosecute for intentionally false statements that were made with a felonious intent. This is a specific intent crime and there must be a felonious intent to steal.
The difference between larceny by trick and false pretenses:
Larceny by trick the owner of the property thought he was going to get it back. The owner did not intend to transfer title.
With false pretenses there was an intention to permanently transfer the property to the other person.
The Queen v. Prince page 165
A willing transfer of funds. There are a number of crimes that look alike. An NSF check is essentially a false pretense. Usually cannot sue for false pretenses because the general rule is that if there’s a specific statute on a topic, it takes precedence over a general statute that covers the same topic. NSF check cases statutes are more specific to the offense.
Casenote: Cases of fraud. The crime of false pretenses occurs when the owner of property is induced by some representation of fact (false pretense) to give up his property, with the intent to pass title to that property
Wilkinson v. State page 153
Issue: Whether D acquiring cows under false pretenses was grand larceny?
Convicted of grand larceny. The great distinction is whether there was intention or ability to transfer title is critical.
The court said: At common law, for a person to pretend that he was the owner of the property in order to get possession of it with the felonious intent of converting it to his own use constituted larceny. Accordingly convictions of larceny have been sustained where a person has fraudulently claimed an estray from the person taking it up, and where a person has claimed to the owner of lost property from the finder.
Consolidation of theft offenses: Combine the ability to charge embezzlement, false pretenses and larceny as one theft offense.
If I charge you with an embezzlement and it turns out to be a larceny, it wouldn’t make a difference in a consolidated is charge one crime. Just can’t surprise D. Prosecutor charges theft, theft by fraud or deception in a consolidation state. It makes the job of the prosecutor easier. Still have to show the facts that make the taking illegal. If it turns out that it’s one and not the other, it’s not fatal to your case.
MPC approach. Page 173
Conduct denominated theft. The MPC has adopted the consolidation concept. The only place you get into a problem is when your state is in a transition.
Casenote: Cases of fraud. The crime of “larceny by trick” occurs when the owner or holder of property is induced by some misrepresentation of fact (trick) to give up his property, with the intent merely to part with possession but not with title.
State v. Saylor page 167
D attorney not current with law (changed to consolidated offenses). Somebody got deceived (cashier). She wouldn’t have let him out the door. K-mart knew what was going on but the cashier didn’t. This is what happens when the law shifts gears on you. Be aware of that. Have to know what the law is right now.
Rule: To establish theft by deception, it must be shown the victim was actually deceived and relied on the false representation.
Issue: To establish theft by deception, must it be shown that the V was actually deceived and relied on the perpetrator’s false representation?
Holding: Yes, they only had a suspicion; they didn’t know and therefore couldn’t rely on false representation.
Casenote: Theft. To establish theft by deception, it must be shown that the victim was actually deceived and relied on the false representation.
ROBBERY
Robbery is a larceny on steroids. It has all the elements necessary to make a larceny but it has additional elements on top of that. Robbery is a taking in the V’s presence (not a distinction because you can have a larceny in the presence of the V also but in a robbery the victim MUST be present) and the taking must be by accompanied by the actual use of force or the realistic offer force. Robbery is a crime of violence. You can’t have a robbery if the V isn’t home.
If you come home and notice that someone has stolen everything that you own. You run out and say, “I’ve been robbed. You couldn’t possibly have been robbed because you weren’t there. After you graduate you are no longer entitled to say I’ve been robbed, what you must say is, “I’ve been larcened!”
Use a weapon to accompany force-armed robbery. In larceny the V could be present but doesn’t have to be. The real distinction is in larceny there is no necessity to show force.
People v. Butler page 171
Casenote: Robbery. A bona fide belief, even though mistakenly held, that one has a right or claim to property, negates felonious intent.
D believed in good faith that the V owed him money. V has shot and killed when he reached for D’s gun. What was the underlying felony?
Rule: A bona fide belief, even though mistakenly held, that one has a right or claim to property, negates felonious intent.
Issue: Can there be a robbery without an attempt to steal?
Holding: No felonious intent to steal.
Claim of right is a viable defense to almost any theft case including robbery, even if it turns out you were wrong. What it means is that there wasn’t even a robbery. There was a taking but no felonious intent. He didn’t commit felony murder. You have to prove the predicate felony first before you charge felony murder.
This type of case encourages someone to take back property with a gun.
REVIEW FOR ELEMENTS OF CRIMES
We’ve been talking about the necessity of a specific act prohibited by law, the actus reus. This can get kind of confusing. When the law provides that you must act in a certain way, if it’s to be deemed criminal, it’s an element to the crime that you actually prove that there was an act that did that. There are some crimes that can be accomplished by the failure to act but the law must specify that there’s failure to act that will trigger this crime but you have to show it. Once in a while you can squeak by.
Foster care tragic case: severely retarded child, woman adopted her. Daughter stayed in home while she raised other children. Reached the legal age of the maturity 21 years old. Woman stopped feeding her. Never a guardianship established, no legal requirement of care. She starved to death. We decided to try something that had never been done before. The concept of Constructive Trust-that is if you behave in a certain way, the law will create a fictitious trust arrangement. Because this woman cared for her and knew that she was so retarded that she couldn’t take care of herself, that this woman assumed the responsibility of guardianship. She was estopped from denying the guardianship. We charged her with involuntary manslaughter. Grossly negligent failure to care. Had to create a factious legal event. The case ended with a plea agreement and she plead guilty to attempted manslaughter. If you’re going to prosecute someone for a failure to act, there has to be a legal obligation to act.
Moreland v. State page 181
A relatively unusual case in the criminal law and more unusual today than it was back in the 1920s. Vicarious liability (torts): you as an employer are responsible for your employee’s actions. This case seems to say that but there is no such thing as vicarious liability in the criminal law. You can’t have it, it’s a tort. The reason the owner of the limo was held liable was because the court found that he was actively aware of what was going on and he let it happen in his presence. They said that he should’ve stopped his chauffer from driving like a lunatic. They essentially said that he had a legal obligation to stop his chauffer from driving that way and he didn’t do it so they allowed the conviction to stand. This is not the same as vicarious liability. Here the court is saying, yeah he’s the boss but he had the power to stop it.
Giving your child the car key’s and he kills someone example: May be guilty of second degree murder. You used your child to kill someone else.
State v. Quick page 176
We’ve got a guy who wanted to produce moonshine but never got around to it. They were prosecuting him for his guilty intention to break the law. But he hadn’t done anything. Must have a prohibited action. We don’t punish people merely for thoughts.
There are a number of statutes that have been designed to catch people in the preparation of doing something illegal. In MI there are a whole set of statutes dealing with methamphetamine components. The illegal act is the possession of the components.
Rule: Criminal liability must be based upon some overt act by the criminal actor.
Issue: Is a crime committed when the actor has committed no overt act in the furtherance of his otherwise clear criminal intent?
People v. Decina Page 178
Prosecuted for manslaughter. A failure to prevent a perceived danger. Here the issue is not whether it happened or was intentional. What they’re saying is you should’ve known that you had the potential to kill someone if you got behind the wheel of a car and that was your negligence. The appellate court in this case upheld the conviction. The question of what constitutes an illegal act that led to his conviction was the knowing or the assumption the assumption of knowing that he suffered from a dangerous disorder that could end up killing somebody. It was an understanding that he could at any time blackout and have an epileptic seizure which would allow the vehicle to become a dangerous weapon.
Remember that when the statutes are talking about an illegal act actus reus, sometimes it’s not as hard as you would expect it to be. The failure to act could be a non act, act like mere possession or in a case like this one it could be the failure to take the appropriate steps to protect the public from your own possible danger. This guy made a mistake, not because he was an epileptic but because he was an epileptic who got behind the wheel of a car.
Rule: Criminal liability may be based upon an otherwise involuntary act where the voluntariness element is provided by the actor’s prior knowledge that the condition causing this act presented a threat of harm under the circumstances.
WEEK 8
Week 8 Crim Law Lecture, June 21, 2006
Jones v. United States page 180
In order to establish criminal responsibility for a failure to act, there has to be a legal responsibility to act in the first place. You can’t just impose a requirement that somebody act unless the law backs that position up. So what they were really looking for was a legal handle on who had the responsibility to care for the children and the D was saying it wasn’t his responsibility it was the parent’s responsibility.
The court wasn’t going to convict somebody based on a moral duty, it had to be a legal duty. There was no established legal duty as a basis for this prosecution.
Rule: If you are going to prosecute on a theory of a failure to act, must establish the legal duty to act in the first place or before you prosecute for the failure to do it. Most states do not extend that doctrine any further than we’ve just said.
If you are a certified EMT and you see someone drowning and the lifeguard was distracted, you have no legal duty to rescue a person unless you are the lifeguard. Even if you are specially trained in that area.
Rex v. Huggins page 182
There is no such thing as respondeat superior in criminal court and that’s exactly what they were talking about in this case.
Rule: Criminality is only imputable to one who either (1) immediately does a criminal act, or (2) permits it to be done by an agent with his consent or at his direction.
Issue: May criminality be imputed for the acts of an agent on the strict liability standard of respondeat superior?
This rule has not changed in 300 years
Holding: No.
INCHOATE CRIMES
Inchoate means almost there, you’ve gotten up to the point where the crime could occur – a crime in the making.
Even though the crime that was developing didn’t occur, there are some crimes where they become the crime themselves. Attempt, solicitation and conspiracy. These are all matters that are separately prosecutable even though the crime that was developing underneath them never had to happen but it can happen also.
Some of these crimes are subject to the merger rule. If you have an attempt and then you have a completed crime, the attempt is merged into the completed crime and you can’t prosecute it separately.
If you have a solicitation crime (making an offer to someone to have them commit a crime or join you in the commission of a crime). If they agree to the solicitation, you’ve got conspiracy. The crime may change its nature.
All of these crimes are Intent specific crimes. They all imply that you were thinking of the crime you were trying to commit.
ATTEMPT
Attempt: It is the crime that is committed when you go beyond mere preparation and have the intent to commit a specific crime.
Every jurisdiction that I’m aware of includes in its definition of attempt that a person that took the steps that went beyond mere preparation to commit the underlying crime. The actions went beyond mere preparation.
One thing we need to know when we are prosecuting attempt:
There was an intent to commit the crime. The D had that intent to commit the crime at the time he/she took the steps that demonstrate that there was an effort to commit the crime (and how far those steps have to be is what we’ll argue about) and that effort went beyond mere preparation.
Example: If you wanted to commit arson and you simply went to the store and bought a can of lighter fluid and rags and then went home – that’s not an attempt. All that is, is preparation for the crime. You haven’t done anything yet which is a step that demonstrates that you’ve tried to commit the crime. On the other hand if you pile the rags up and squirt lighter fluid all over them in a corner of a building and then strike a match and the match goes out before you can light the fluid, there’s no question that is an attempt. You have now taken steps that are unequivocally an effort to commit that crime.
A few of the tests:
Last Act Test: Did the D do everything that he/she could and is the result now beyond the D’s control? (Shoot someone, they bend over example) Utterly beyond control that it didn’t occur.
Equivocality Test: Would reasonable people agree that by looking at the actions of the D, has he taken steps to commit the crime?
Dangerous Proximity Test: Did the D’s actions come dangerously close in space and time to completing the offense.
MPC Test: (Blumer: A much better test) Did the D take a substantial step toward the perpetration of the crime. This is the “substantial step” test.
Whatever test your jurisdiction uses for attempts, it really comes down to a matter of policy. What is it you are trying to protect society from?
Two Directions:
Pro defendant: Unequivocally demonstrate a criminal mind. A tough test for a prosecutor to deal with. Must wait for the last second to stop crime.
Pro police/prosecutor: Substantial step test. All we have to do is wait sufficiently long to see if there was a substantial step and then stop if from happening.
How these come about:
Attempt: It is someone who has tried to commit a crime and for one reason or another, the crime didn’t come about. In these cases, frequently the police intervened and stopped it from happening.
The courts have to do this balancing act.
Young v. State page 191
Eye patch defendant.
A much more rational approach, this court adopted the MPC.
Facts: Many things lumped together could constitute a substantial step
Rule: A person is guilty of attempting to commit a crime where he purposely acts in such a way as to constitute a substantial step in a course of conduct planned to culminate in the commission of the crime
Issue: Is a person guilty of an attempted crime if he acts so as to constitute a substantial step in a course of conduct planned to culminate in the commission of the crime?
Holding: Yes
Read and understand the MPC section 5.01 paragraphs 1 and 2. Blumer agrees with the MPC’s approach to this area.
US v. Harper Page 194
Attempted bank robbery (Jammed ATM) Preparing to victimize somebody but he didn’t go far enough for it to be a substantial step in the commission of a crime (didn’t have a victim).
Rule: To obtain a conviction for attempted bank robbery, the prosecution must prove (1) culpable intent; and (2) conduct constituting a substantial step toward the commission of the crime.
Tax fraud case: sold property, reported lesser amount, jury acquitted him – he didn’t get away with it so there was no crime. You have to convince people that the effort to commit the crime, is a crime even if you don’t get away with it. It’s difficult to prosecute an attempt case.
People v. Rizzo
Drove around looking for V (payroll clerk)
There is no question that this was a conspiracy and that was a mistake by the prosecutor.
Think of the public policy implications. Wait until the robbery actually happens and then you’ll have a case.
Rule: An attempt is committed when an act is performed which is so physically close to the contemplated V or scene of the crime that completion of the offense is very likely but for timely interference.
Thacker v. Commonwealth
Woman camping with her family had a light on in her tent and one of the drunks decided to shoot the light out. He was charged with attempted murder. The appellate court reversed the conviction and there was an interesting discussion on the history of attempts and what is always necessary with an attempt. The reason why it’s an important case is that it reminds us that action alone is not sufficient. When you have an attempt case, it is a specific attempt charge and you must prove that the person that committed the attempt had the intent to commit the underlying crime. Here they charged him with attempted murder so you must prove as part of the case. The prosecutor had to prove that the D had the intent to commit murder. They couldn’t prove it. Here, he was trying to shoot out the light. And he was drunk which may have been a defense. Remember, intoxication is not a defense to a general intent crime but it could reduce a specific intent crime down to the next lower general intent crime. He most likely should have been charged with reckless discharge of a firearm. There may be some statutory crimes that specifically apply to the situation but it wasn’t an assault either because an assault is a specific intent to harm someone. There was no evidence that he intended to harm someone. He did something incredibly stupid but there was no obvious intent to harm.
If he had killed her, that puts it in a whole different ballpark because then it would have been some form of negligent homicide or second degree murder based on depraved heart indifference. But the fact that he didn’t kill her means you’re in the attempt area and attempt is a specific intent crime.
Rule: Criminal attempt requires that the act be done with the specific intent to commit the particular crime allegedly attempted.
Impossibility is a defense.
A D comes to court and says it was impossible for the crime to occur. It comes up as a defense to attempt. The crime didn’t happen for one reason or another and the D is trying to take advantage of that by saying it didn’t occur because it was impossible and therefore you can’t really charge me for that.
There are two ways that the Common Law understood that impossibility could come up as a defense. Under common law there were two impossibilities: Factual and Legal.
FACTUAL IMPOSSIBILITY
Def: Whatever method you chose to commit the crime simply didn’t work. You picked up a gun and fired but no bullet was in the chamber. Tried to pickpocket someone and the pocket didn’t have a wallet in it. What you tried to do didn’t work because of facts out of your control. It has never been a valid defense. The court will not give you credit for being incompetent.
Attempted manslaughter is an impossibility. You can’t have a specific intent crime to commit a non-intent crime. A person could plead guilty to it as part of a plea bargain.
LEGAL IMPOSSIBILITY
Used to be recognized under common law as a situation where even if had accomplished what you were trying to do, the courts would not have recognized it as a crime because of some legal status in the case itself.
Classic example: Opera hypo revisited. Legally impossible to kill a corpse. It’s not a factual impossibility because everything you did worked. His legal status wasn’t what you thought it was. His legal status was not a human being at the time, it was a corpse.
Running moonshine and they repeal prohibition that morning. You think you are selling illegal whisky when in fact it is no longer illegal.
Legal impossibility means that even if you did everything you wanted to do, the courts would not recognize what you did as a criminal act. Under the common law factual impossibility was never a defense, legal impossibility was. The modern trend however is no impossibility is a defense.
Ex: Drug enforcement used to want to catch people by pretending to be drug dealers. A Reverse buy: Police officer sells dope and then arrests for possession of dope. The police didn’t like selling real dope so they would use talcum powder and arrest for attempted possession of cocaine (can’t arrest for possession of real cocaine) but he tried/wanted to. The courts ruled that you could not prosecute for attempted possession if all he ever had a chance of buying was talcum powder.
New Case: People v. Thousand, MI case. Pervert soliciting sex from a 14 year old girl but in fact was a police officer. Attempted sexual exploitation of a child. D’s defense was that it wasn’t a child but a 40 year old cop. Up until that case, illegal impossibility had been accepted as a defense in MI. Most jurisdictions have a solicitation of a minor charge.
Modern Way of Thinking:
If the person had the criminal intent to specifically commit a crime and took steps to complete crime, it doesn’t matter if they couldn’t actually complete crime because of legal or factual impossibility. As long as you can prove criminal intent specifically to commit the crime and in addition they took steps to complete the crime, that’s it – they’ve abandoned the defense of legal or factual impossibility. If you understand that the attempt is an effort to prosecute someone because of taking steps with the intention of violating a law, why should we give them credit for a technicality that is beyond their control? They still have all the evil intent and have demonstrated a willingness to take the steps to violate the law, why should we give them credit for a technicality?
State v. Mitchell page 197
D shot into room where he thought the V to be but in fact he was upstairs
Rule of Law: A criminal attempt may be committed even though, unknown to the accused, completion was impossible.
Booth v. State page 199
There was a prearranged deal. Booth steals the coat, calls the buyer but in the meantime the cops get there first. The only thing that changed was that the coat lost its status as stolen. What difference did that make to the court? This was an attempt charge – attempted purchase of stolen property. But according to the court, the property wasn’t stolen anymore. The legal status changed. This was under the common law. A legal impossibility is a defense. (Blumer doesn’t like this case)
Rule of Law: Legal impossibility prevents attempt where, even though the accused has committed all acts and achieved all consequences he intended, he still has not committed an attempt.
People v. Rojas page 198
Compare Rojas to Booth
Is there any functional difference between Rojas and Booth? In this case, the coat did not lose its stolen status. Charged with attempt of receiving stolen property. Just a difference of court opinion. Blumer thinks this case is more correct and better on public policy grounds. Factual impossibility.
Rule of Law: An attempt is not prevented by impossibility merely because, unknown to the accused, the completion of the crime has become impossible.
ABANDONMENT page 205
Attempts to commit a crime but before the police intervene, but after the person has taken all the steps necessary to successfully prosecute them for attempt, they turn off the switch and stop the crime from occurring. This is a defense that’s raised in court after the person has been charged.
I changed my mind. That’s what’s known as the defense of abandonment to the crime of attempt.
As a premise, the crime didn’t actually occur. The question then becomes, why didn’t it occur? Was it because something intervened that stopped it from happening that was beyond your control or was it you did something to stop the crime from happening because you changed your mind? The difference between those two concepts is critical.
What stopped the crime from happening? In those jurisdictions that accept abandonment as a defense, it’s only an effective defense before (1) any harm/damage to the victim and (2) the result of a true change of heart by the defendant. The D called off the crime because he didn’t want it to occur. If the crime was called off because it turned out to be more difficult than anticipated, or because the risk of detection was greater than anticipated, postponing crime, etc. – that is not an abandonment.
Bank robbery hypo*: You go to rob bank because bank guard is elderly and can’t see but on the day of the robbery you see two young guards and you decide not to rob bank and leave but get caught, you didn’t change your mind, only left because it was more difficult. That’s not abandonment. It’s a question for the jury and they must be convinced by D that the calling off of the crime was by a true change of heart. True under MPC and in MI.
Stewart v. State page 205
Rule of Law: Abandonment of an attempted crime does not prevent conviction for attempt where intent has been formed and overt acts toward completion committed.
The court in Nevada is not going to accept the abandonment defense here. The court holds him to a strict standard that if you’re going to try and use abandonment, it has to be a voluntary change of heart. And here the change of heart was forced on him by the appearance of a cop.
SOLICITATION
Nowadays is a statutory crime and it originated as a common law crime. It’s an inchoate offense. The general principal under common law was that solicitation occurs when a person invites, requests, commands, hires or encourages another person to engage in conduct constituting a felony. That’s pretty close to the modern law too. Solicitation is in itself a separate crime. The crime doesn’t have to occur.
Hit man example: 3 out of 4 are to kill spouse.
If the person agrees to commit the crime, the solicitation disappears and you have conspiracy. Conspiracy has become a statutory crime in most jurisdictions.
Solicitation for murder is punishable nowadays for life in prison. Solicitation is punished the same as the crime you were soliciting. If the statute is removed, fallback to the common law.
Wharton’s Rule (common law rule). A crime that inherently requires two people to commit (dueling, adultery, etc.) you can’t charge as a conspiracy unless you have more than the minimum allowed.
State v. Blechman
Solicitation of an arson. The arson didn’t actually happen. The defense was if you’re going to prosecute a solicitation the underlying crime has to occur and the appellate court said no it doesn’t. It is a separate crime and a violation of public interest.
The crime that you’re asking to be committed does not have to occur in order for there to be a solicitation.
Distinct from attempt. Attempt requires an overt act which is unequivocally taken in furtherance of the crime. Solicitation doesn’t require any act at all other than inviting someone to commit the crime. It requires no overt act toward the commission of the crime.
Page 209 MPC – does not have to be communicated.
Rule of Law: Solicitation occurs when the accused is shown to have counseled, incited, or solicited another to commit a felony.
CONSPIRACY
Def.: The meeting of minds agreeing to a common criminal purpose.
Multiple criminals. There are some jurisdictions that allow criminal prosecution of one person if the person thinks he has entered into an agreement with another (undercover cop).
Many jurisdictions require two guilty minds.
When looking to find a conspiracy you must find that everyone who has these guilty minds we’ve been talking about agrees to the common purpose of the conspiracy. Everyone has to be in agreement with the ultimate criminal goal. You don’t have to prove that everyone knew all the intimate details of the conspiracy, only that they agreed to the ultimate goal. You don’t have to prove that they knew who the other conspirators were.
Why is conspiracy such a good tool for prosecutors? A number of things flow from the existence of a conspiracy.
1. Everyone in the conspiracy is guilty of the conspiracy.
2. If the underlying crime is attempted or accomplished, then you are also guilty of underlying crime or the attempt to commit it. If you have a conspiracy to commit bank robbery, everybody in the conspiracy is guilty of conspiracy to commit robbery and if attempt to commit the robbery and complete it, everybody is guilty of the crime of robbery even if you didn’t participate in the crime itself.
If part of the agreement but didn’t participate (criminal partnership) makes you responsible for all the acts of your partners.
Pinkerton Rule: When in a conspiracy, also criminally responsible for all crimes carried out in the furtherance of the other crimes as well as conspiracy.
Bank robbery hypo*: everyone in the conspiracy is guilty is auto theft even though they didn’t know it was part of the plan. Using above example, all would be guilty of conspiracy to commit robbery, robbery and all also guilty of auto theft even if they didn’t know it was part of the plan.
Blumer: Powerful tool.
EXAM QUESTION: Bank robbers guilty of rape also when one of the robbers rapes a teller? No because it did nothing for the furtherance of the crime (ultra vires* act). Stealing a getaway car is in furtherance of the project.
*ultra vires: Unauthorized; beyond the scope of power allowed or granted by a corporate charter or by law.
What forms to conspiracies take?
Three different forms:
Pizza, wheel spoke and chain.
WEEK 9
Week 9 Crim Law Lecture, June 28, 2006
Continuing on Conspiracy – a dual specific intent crime:
In order to prove a conspiracy case there are two specific intents you must show:
1. Intent to form or enter into an agreement or an understanding to commit an illegal act.
2. Have the intent that the illegal act actually be committed.
Rosado v. United States page 214
Chain link conspiracy.
Are these independent conspiracies or are they a one unit conspiracy? Here the court said that it was one conspiracy and all these guys are in it. Were they all dependent on each other for the completion of the goal? If they’re dependent on each other for the goal, then it’s one conspiracy. RICO is conspiracy on steroids. If you can look at outer rim defendants and say if they were all dependent on each other for the success of this mission whether or not they all knew each other, then it is one conspiracy. If each one of them stands alone, then you may have separate conspiracies.
Once you are in a conspiracy, you don’t have to know all of the intimate details of how the conspiracy is going to occur. You don’t even have to know who all the other conspirators are in your conspiracy. All you have to know is what the ultimate goal is and are these other people helping you accomplish that goal.
At common law and in many jurisdictions, no overt act was required to establish a conspiracy. That’s different from an attempt. In conspiracy the crime is the agreement.
You can have a conspiracy and an attempt if one of your conspirators shoots a gun and it misses someone, it’s conspiracy and attempted murder.
Remember the Pinkerton Rule – the conspirators are responsible not only for the conspiracy but all of the crimes that committed in furtherance of the conspiracy goal that were foreseeable as part of the conspiracy. If one goes out and steals a car, then all are guilty of car theft. Furtherance of the conspiracy.
Under common law you must have more than one guilty mind. The MPC allows a one guilty mind conspiracy MPC 5.03(1). Ex: one person conspiring with an undercover officer.
EXAM: Explain how conspiracy would be different under common v. MPC
Can prove conspiracy by behavior if you don’t have their word.
Kotteakos v. US 220
Spokes of a wheel conspiracy.
The issue the court was concerned with was whether you had one big conspiracy or 32 small conspiracies. Multiple conspiracies, each one of these 32 conspiracies could stand on their own, not co-dependent. Each loan was a separate transaction.
Electrician example: Jimmied the meters to read 1/5 of the electricity used at auto dealership. The auto dealer, for $1000, sent him to see other dealers and did it six times so there were seven dealerships altogether. You have original agreement between electrician and auto dealer and then the auto dealer acting as an agent for the services of the electrician. Do we have one conspiracy or seven? Seven, the conspiracies don’t need the other conspiracies to survive – they were independent.
If the electrician had given the pitch to all seven dealers at the same time, then it might have been one conspiracy.
Pinkerton v. US
Pinkerton Rule: Remember it!
Two brothers, one in prison at the time. They agreed to commit a crime. The other brother went out and did it. The brother in prison’s argument was why are you prosecuting me for this, I couldn’t have anything to do with the commission of these crimes because I was in prison.
The court said that if you enter into an agreement you are essentially forming a criminal partnership. All partners are responsible for all of the actions of the partnership in furtherance of the partnership goals. Just because you didn’t participate doesn’t mean that you weren’t equally criminally responsible once you entered into the agreement.
What about withdrawal from a conspiracy? First you have to communicate your desire to withdraw. Second, you have to take steps from preventing the crime from occurring.
Common law: Once the conspiracy is entered into can no longer withdraw. The crime has been committed. The judge will take that into account for sentencing. Abandonment is not an effective defense.
MPC and more modern thinking: Abandonment is an effective defense ONLY if:
1. At the point you abandon there has been no injury to the victim;
2. You communicate a clear and unequivocal desire to withdraw; and
3. You take steps to prevent the crime from occurring. Going to the cops or interfering with the plan.
MPC 5.03(6)
When does the use of violence turn a larceny into a robbery? The crime is complete when the thief reaches a point of safety. If he has to use violence at any time before he reaches safety, then it becomes a robbery. Violence to perfect your getaway may turn a larceny into a robbery.
Good Humor truck hypo*: During the first conspiracy my client conspires with others to rob ice cream trucks and he does and shares in the profits. My client had no contact for 6 months but the others go out and rob 5 more trucks. Technically my client can be charged for the other five trucks. Once you join a conspiracy you are responsible for all the all crimes and lots of case law that says once you join a conspiracy you are responsible for crimes committed before you joined – adopted the crimes. Not all jurisdictions follow that rule however.
In order to not be hit with those additional 5 robberies would have to show that he no longer was participating for the money. Another argument you might try and make is that the original fell apart after he left and anything that happened after he left was a new partnership and a new conspiracy. Think of it as a partnership – they can last a long time. You could argue that this was a partnership for money and he has removed himself from it.
How can you tell it’s over? When the goal has been accomplished, the conspiracy is over.
Ex.: Conspiracy to distribute drugs in Lansing for well over 20 years.
FREQUENTLY CONSPIRACY IS FOUND ON FINAL EXAM!
MPC does not recognize the Pinkerton Rule. Have to actively facilitate the crime in order to be convicted under the MPC.
ACCOMPLICE LIABILITY
IT IS NOT A CRIME. It is a theory of how a person becomes involved in criminal liability. It’s just a theoretical method by which somebody can be brought into criminal responsibility. If a person is an accomplice, they are responsible for the crime. Once you establish accomplice liability, then you are talking about being responsible for the crime whatever it was.
Blumer: Conspirator liability is one form of accomplice liability.
Under the Common law, there were a whole mess of accomplices. Confusing but technically important to get it right because when you charged someone under the common law it had to be a specific degree of accomplice status.
Principle in first degree: Hands on criminal who actually committed the crime. Ex.: the person inside the bank with the gun.
Principle in the second degree (first level of accomplice liability): The person who actively assisted at the crime. Ex.: the getaway driver.
Accessory before the fact: Assisted before the crime was committed. Ex.: Got the blueprints to the bank.
Accessory after the fact: A person who knowing that a crime has been committed assists a criminal in evading the police or concealing evidence of the crime. You have to also know that the crime was committed.
Most jurisdictions abandoned common law divisions of principle liability. The only one that has persisted is accessory after the fact.
Now, anyone who used to be called a principle, principle in the second degree, accessory before the fact are all treated as principals and they are directly responsible for the crime. There are no longer legal distinctions between those levels.
If this is a rape, both are guilty of rape. The person who holds the arms down of a victim is every bit as guilty.
In virtually every jurisdiction has now eliminated the distinction between principals. The person who holds the victim’s arms down during a rape is every bit as guilty of the crime of rape as the person who actually violates the victim.
Accessory after the fact is the one exception. It has persisted as a recognized separate category. It is chargeable as a separate crime. In MI it is recognized as a common law crime or a 5 year felony.
What happens when you are found to be an accessory to a crime? You have now become a principle. So the person who gets the blueprints is now chargeable with bank robbery.
MODERN VERSION OF ACCESSORY LIABILITY
Aiding and abetting: A person, who encourages, aids, assists, or in any other way facilitates the commission of the crime. It can include simply encouraging the crime to occur. Is treated as a principle to the crime.
Example: A crowd cheers an assailant resisting arrest from an officer. All are guilty of aiding and abetting the resisting of an officer (encouraging).
The general rule is the crime that you are aiding and abetting is:
1. It has to actually occur: and
2. You have to know that the specific crime that you are aiding and abetting has been committed.
People v. Robinson, a MI case. A and B went to beat up C and left him lying in the doorway. A went back to his car, hears a bang and realizes the B shot C. A used to have a valid defense saying he didn’t know that B was going to shoot C. But now A can be charged if it was a reasonably foreseeable result of the original crime that he agreed to commit. A could be charged with aiding and abetting murder.
As it stands right now, you must know about the other crime. This new case makes it coextensive with conspiracy law (like the Pinkerton Rule).
When you analyze a problem, if it is a conspiracy problem, then tell me that the people are responsible and liable because they were involved in the conspiracy and that gets us back to the Pinkerton rule. If you don’t find a conspiracy but just an independent aiding in the commission of a crime without an actual conspiracy then you’ve got an aider and abetter situation, you’ve got an accessory then I want you to tell me about accessory theories of liability.
An accessory after the fact cannot be a principal to the crime.
If the conspirators are tried together and all but one of the conspirators is acquitted of conspiracy, the last one has to be acquitted by law because he is the only one left and if you are in a common law jurisdiction you have to have multiple guilty minds.
If you try them separately, each one rises and falls on his own (can have only one conviction if the other two are acquitted).
MPC does not follow Pinkerton rule in conspiracy. Action is the basis for criminal liability.
MPC 2.06. Not liable for a criminal partner unless you approved of his act. Page 237
SUPPLEMENT HYPO page 27
Criminal Responsibility
D1 is the Principle
D2 at common law principle in the second degree
D3 Aiding and Abetting by encouraging – charged with rape
D4 None
D5 bartender – had a legal obligation to do something
D6 owner – none
D7 no mens rea.
D8 accessory after the fact.
The difference between motive and intent:
Intent (mens rea): necessary mental state. You committed the prohibited act purposefully.
Specific intent is a refined form of intent: You not only committed the act that was prohibited and it you did it purposefully but you also wanted the ultimate harm that occurred. You anticipated the particular harm and you wanted it to occur.
General intent: You purposefully took the action which was prohibited by law.
Motive is an evidentiary concept.
Motive: Always relevant but never required. The motive is why you committed the crime not did you commit the crime intentionally but why did you commit the crime.
CONCURRENCE DOCTRINE
There must be in any crime a coexistence of criminal intent with a prohibited legal act.
Hypo*: Shoot neighbor by accident and kill him. But the next day I think the bastard deserved it. No crime, the guilty mind developed later after the fact. Must come before.
Hypo*: I decided to kill neighbor and drive over his house to do it, he darts in front of my car and is killed, no crime. Crime does not depend on coincidence:
Cooper v. People
This case fits within the concurrent doctrine. When you break in you must have the intent at the moment you enter. The judge expanded that and said once he entered improperly he then developed the intent to commit this crime.
Realize how important jury instructions are. 75 to 80 percent of all appeals involve jury instructions. It is a major issue on appeal. Defense attorney must object before the jury goes into the jury room. Unless it was a constitutional error.
Bottom line: Can’t expand the concurrence doctrine when the statute sets it up. If the statute says that you must have criminal intent at the time of breaking into the building then that’s what the prosecutor has to prove. You will get a reversible error if you try to expand beyond that.
Jackson v. Commonwealth
PROCEDURAL POSTURE: Defendant appealed his conviction, after a jury trial, from the Campbell Circuit Court (Kentucky) for the murder of the victim, and his sentence to be hanged. Following the court's decision, defendant petitioned for rehearing.
OVERVIEW: The victim, who was pregnant, had been decapitated. Defendant had a valise belonging to the victim on which were blood stains and in which was found hair believed to have come off of her head. After defendant was convicted and sentenced, he appealed. Affirming and overruling the petition for rehearing, the court was convinced that defendant had a fair and impartial trial. After examining the testimony, the court saw no error to the prejudice of any substantial right of defendant. The indictment was sufficient. The statements of both defendant and a codefendant, made during a conversation after their arrest, were made voluntarily and were free from the suspicion of having been procured by promises or threats. Defendant's statements were competent. Without the corresponding portions of the conversation, as made up by the codefendant's statements, it would have been unintelligible. The whole had to be taken in order to get the sense of it. Cocaine had been found in the victim's stomach. Defendant had inquired into its effects. Thus, a witness was properly allowed to state the drug's use in the production of abortion and its effects on the system.
OUTCOME: The court affirmed defendant's conviction and sentence and overruled his petition for a rehearing.
Substance over form. The court dismissed D’s argument.
Concurrence doctrine at play here. Was there someplace where both the intent to kill and the action of killing came together. What the court in Kentucky is saying is we’re going to cut the Gordian knot and we’re going to get you no matter what.
Mob example: Chicago mob helped Wisconsin find his kid’s body. The conspiracy was hatched in MI so you could prosecute the kidnapping (Indiana) and murder (Wisconsin) in MI.
In order to successfully prosecute, you are going to have to find the coexistence of the prohibited act and the criminal intent. If the statute requires that they coexist at the time of the act, then that is as far as you can go. If you have a modified statute like Michigan’s home invasion statute, then you can find the mens rea coming in after the prohibited act but be careful or you will end up with a reversible error.
STRICT LIABILITY
Strict liability is one of those crimes where it doesn’t matter what your intent was. It is the prohibited act and that’s it. There is no defense of I didn’t mean to or I didn’t know that. If you do the prohibited act, you are guilty of the crime. They are rare because the court actively resists them. The best example is statutory rape. The consent is legally ineffective. Serving alcohol to under age drinkers is more common. The judge may take pity upon you at sentencing only.
Staples v. United States
Nature of Case: Review of conviction for unlawful possession of an unregistered machinegun.
Fact Summary: Upon executing a search warrant, local police and BATF recovered an AR-15 that they suspected of being modified to fire automatically. It was in fact modified with M-16 parts and the metal stop on the receiver had been filed away. Staples argued that his alleged ignorance of any automatic firing capability should have shielded him from criminal liability for failure to register the weapon. When charged with violation of National Firearms Act, Staples claimed that the rifle had never fired automatically while it was in his possession.
He requested the District Court to instruct the jury that to establish a violation of section 5861(d)., the government must prove beyond a reasonable doubt that the D knew that the gun would fire fully automatically.
The DC rejected the instruction and charged the jury with…
Issue: Whether the penalty imposed under a statute has been a significant consideration in determining whether the statute should be construed as dispensing with mens rea?
In Criminal statutes which appear to impose strict liability by requiring a D to know whether his conduct is actually lawful, does a severe penalty show that strict liability should not be applied?
These statutes are sometimes referred to as "strict liability" offenses. As the Court notes, because the defendant must know that he is engaged in the type of dangerous conduct that is likely to be regulated, the use of the term "strict liability" to describe these offenses is inaccurate. Ante, at 607-608, n. 3. I therefore use the term "public welfare offense" to describe this type of statute.
They refer to the Morrissette case – a strict liability crime. They didn’t want to go as far as Morrissette. Not going to allow the government to turn what should have been a criminal intent crime (theft) into a strict liability crime.
What you see here is the clear reluctance of the court to find strict liability. You see a bit of overreaching by the government by the prosecution in trying to make it a strict liability case.
There is a clear trend among courts that they will not freely and easily find a crime to be strict liability. It is a disfavored concept.
WEEK 10
Week 10 Crim Law, July 5, 2006
Strict Liability Offenses: A crime provable without the intent of the actor.
1. Clearly disfavored by the courts. When in doubt assume that there is a mental aspect of the crime that you have to prove an intent.
2. With a few major exceptions (statutory rape) it is rare.
Where you find them they are most likely going to be governmental management i.e. parking enforcement, illegal dumping, etc. They don’t carry big social stigmas like the traditional heavy duty crimes. From the Morrissette case, the SC said that the stigma of being labeled a thief has such a heavy social meaning that it’s not proper for the government to just arbitrarily remove the intent element that has traditionally been attached to that crime. Because the social stigma is so heavy, you make the proofs heavy.
Malum in se: bad or evil in and of itself. Common law bad crimes – kidnapping, murder, rape, arson, etc.
Malum prohibitum – bad because it’s prohibited by law. Not found in common law, need a statute.
Strict liability crimes although they don’t carry the same social stigma and they almost never have jail penalties, they do carry some hefty fines. Overweight trucks are a major source of revenue and heavily regulated. It is so common that they assume paying overweight fines as a part of doing business. Those are clearly malum prohibitum, strict liability.
Page 245 Commonwealth v. Olshefski
He relied on the weigh in but was 265 lbs. over. No social stigma but a substantial fine or jail. This is a typical strict liability case. It doesn’t matter whether you knew or not. Almost have an entrapment situation here. This is a harsh result but a typical strict liability. If you notice, there are scales 50 miles apart and checking for loads.
The Morrissette case: The legislature wrote a statute and didn’t put in specifically whether intent was required or not. The SC said intent is implicit in the crime itself because it is a theft crime.
Grand larceny example: If you’re messing around with a traditional heavyweight crime and you want to eliminate the intent element to prove that crime, it is within the authority and the power of the legislature to do it. It’s not a due process violation. But, two things:
1. Must be explicit
2. Openly available to the public so they can’t be taken by surprise
If the legislature wants to remove a major element from a crime, they can do it but they must be explicit. The Morrissette case proved that if you are going to change a common law or a notorious crime, it must be explicit.
Staples case
The government tried to claim that the mere possession of a weapon irrespective of your intent is a crime. They analogized it to a hand grenade. The Supreme Court said that a hand grenade is an obvious illegal weapon. They required the government to prove knowledge which in this case equates with intent.
Stepniewski page 250
Strict liability crime. Builder’s trust fund act. Any time you are building a home and you pay the general K money to build the home, he is required by law to pay all costs of materials and subcontractors before he takes his profits.
LEGAL ANALYSIS: This case presents the due process analysis for strict liability statutes. However, due process should include the three tests under Morissette because they describe a crime that is malum prohibitum; the very basis for strict liability.
It doesn’t matter if you had criminal intent. It doesn’t eliminate the criminal aspect. The courts will hold these types of crimes – a regulatory crime where the government has power to create a law that does not require criminal intent as part of its proofs. All you have to show is the prohibitive action.
Koczwara Page 253
A twist on the subject. Liquor law violation. What the court said was we’ll let you impose vicarious liability in a strict liability sense but you can’t put the guy in jail. It’s not a true criminal case because there is no prospect of a jail sentence but they make it more of an administrative fine. It’s your bar and your responsibility but since you had no hands on responsibility we’re not going to send you to jail but we will allow the fine to go thru. Vicarious liability is a tort crime.
TRANSFERRED INTENT
Two different kinds of transferred intent:
1. Where the government tries to prove that because the D started off to commit one crime he had a criminal intent which then transferred to another crime which was the result of his actions even if he didn’t intend to commit it.
Ex.: Let’s say you intend to steal something and in the course of stealing something you knock over a lamp causing a fire which burns down the house. Arson requires an intent to burn. You had no intent to cause a fire, you had an intent to steal. This is not felony murder. Felony murder is the only one where you can have a true transferred intent like that. The rest of the time you have to independently show the intent to commit the particular crime that you are prosecuting for. So if the thief accidentally starts a fire and burns down the building he is not responsible for arson.
2. Substituted Victims
You want to kill someone, carefully lie and wait for this person but you bumped the scope so the rifle’s aim is off. You put your intended victim in the sites and kill the wrong person. Transferred intent – unintended victims. We don’t give you credit for being a lousy shot. Murder has in it the intent to kill, it doesn’t have to be a particular victim, it just has the requirement of intent to kill. That type of transferred intent is not a defense. An unintended victim is not a defense. You may have two crimes – assault with intent to murder or attempted murder and murder for the actual victim.
EXAM QUESTION: INSANITY
Mens rea defenses. The intent aspect of the crime. In MI there are only two affirmative defenses (must be raised and proven by the D) that require advance notice to the prosecutor:
1. Alibi
2. Insanity defense
Very easy to fabricate, fairly difficult to disprove and in the case of mental defenses the prosecutor has to bring in experts to rebut the defense. Check your jurisdictions, may require advance notice for insanity defense. The courts have said for violating that rule is to prohibit witnesses to establish that defense. The D can testify but barred from bringing in psyche doctors. Can delay trial
Some of the things that you must absolutely recognize when you are talking about insanity defense is that we are dealing with the legal definition of insanity not the psychiatric term. Psychiatrists’ diagnose for the purposes of treatment. The court defines it in such a way to establish personal responsibility for actions taken that violated the law. We are not so much concerned in court with treatment as we are with can this person be held responsible for his or her actions. There is a wide gulf.
There is a tug of war going on between utilitarianism and retributive points of view. The utilitarians want to put all these people behind walls to protect society. The retributive view is usually harsher on the D’s says, no we believe in punishing someone for making specific choices that are anti-social. It’s recognized that a person, who is insane, is incapable of making these kinds of choices we are talking about.
When the concept of mental defenses was developed, the pendulum was fairly conservative. There was a wide swing in the other direction that peaked just before President Reagan was shot. When Hinckley was acquitted for insanity it started to swing back in the other direction. Four states have eliminated the insanity defense altogether.
MI does not have diminished capacity.
INSANITY IS RAISED IN COURTS BUT HARDLY EVER SUCCESSFUL
Study done in NJ that showed not guilty by reason of insanity verdicts were successful in 1/20th of 1 percent of all cases.
Should be aware of in this type of defense is the distinction between insanity as a defense to a crime and the issue of competence to stand trial. They are both concerned with the mental status of the D but they are very different. Do not confuse them. Competence to stand trial is an issue for criminal procedure class. It does not affect criminal law, it simply asks the question, is the D suffering from a mental defect that prohibits him from understanding the nature of the court proceedings or in the alternative does his mental defect prohibit him from communicating with his defense attorney so that he could work out a defense.
What happens then if the jury finds that you were insane at the time of the crime? There are four possible verdicts that a jury can come up with:
1. Not Guilty
2. Guilt As Charged or Guilty of a Lesser Included Offense
3. Not Guilty by Reason of Insanity if you are found insane at the time of the crime, you are acquitted.
4. Guilty But Mentally Ill The jury is convinced that you have mental problems that need treatment but you’re still guilty of the crime. Functionally same as a conviction. The DOC is instructed to give you treatment while you are behind bars.
Do not confuse 3 and 4. There is a difference between clinical insanity and legal insanity.
How much does the D have to prove? When a D raised the insanity defense it was generally accepted that the D had to present sufficient evidence to justify the issue. A person is assumed to be sane unless otherwise proven in court. The prosecution never has the burden of raising the issue of insanity and testing that in court. It remains the burden of the D to prove his insanity. Must be proven by either a preponderance of the evidence or clear and convincing evidence depending on the jurisdiction.
The federal test is by a preponderance of the evidence. Two reasons to not raise insanity defense:
1. If found insane they place you in a mental institution and you may be there a long time – potentially a life sentence.
2. D’s don’t want to admit that they are mentally ill.
Four states that have abandoned the insanity defense: UT KS ID MT
MI does not recognize temporary insanity.
DIFFERENT INSANITY TESTS
1. M’Naghten Rule: The toughest standard from D’s perspective. Very straight forward and inflexible. Frequently referred to as the right and wrong test. It asks the following questions:
(a) Did the D due to a mental defect or disease, not know the nature and quality of his or her act or even if he or she understood the nature and quality of the act did they not know right from wrong?
i. Mental retardation
ii. Schizophrenia
Muskegon case: Devil coming that weekend and burned his children to save them. Complete fruitcake.
Yates case: Two part M’Naghten test – not understand her actions or the nature of her actions
2. Irresistible Impulse Rule: Due to a mental defect or disease the D could not control his or her actions. You simply couldn’t stop yourself. When you combine the M’Naghten rule and the Irresistible Impulse rule, you have almost exactly what the MPC test is. Rare to see IIR existing on its own – usually combined with M’Naghten
3. Product of Mental Illness Rule: The criminal actions were a product of the D’s insanity. This test has almost completely disappeared.
Durham case example.
4. MPC: As a result of a disease or mental defect, the D lacked substantial capacity to appreciate the wrongfulness of his conduct OR lacked substantial capacity to conform his or her conduct to the requirements of the law.
(a) Rather than saying that the D didn’t know right from wrong, they say he lacked substantial capacity.
5. New Federal Test: It’s a Modified M’Naghten test and that is that the D did not appreciate the wrongfulness of his or her conduct or the nature and quality of the conduct.
(a) It’s an effort to slightly soften the impact of the test. The federal government has gone back to the M’Naghten test.
Durham v. US 265
The court made up a new test irrespective of the legislature behind it. It was overruled years later. The result of this test: is there a problem with this case from a practical standpoint?
1. If you assume that all criminal D’s have a mental disorder (anti-social or other pathological problem), every one of them can say, I steal because I have a problem. It’s all gray with no black or white distinction.
2. It turns the courtroom over to the psychiatrists. It doesn’t define what an acceptable mental disorder by legal standards is. It simply says if his actions were the product of a mental disorder. A psychiatrist would have to decide. There is no way to tell what the boundaries are with this type of test.
Page 268 People v. Drew
The argument was that he should not use M’Naghten. Page 269. The purpose of an insanity test is to weed out people who were not in control of themselves mentally at the time they broke the law. We are not going to hold those people responsible if they couldn’t abide by the law. The D’s defense was the irresistible impulse prong of the MPC test. In other words he couldn’t stop himself from fighting with the cops. Not that he didn’t appreciate the wrongfulness of what he was doing, he couldn’t stop himself – he was uncontrollably violent.
The court is saying if the goal of the insanity test is to identify people who make criminal decisions and punish them accordingly and weed out and treat people who did actions against the law simply because they were unable to stop themselves, then the M’Naghten test is inadequate to do that.
They adopted the MPC test (ALI). There must be a causal connection between the probative action and the mental defect or disease.
Law
School
Pre
Exam
Stress
Disorder
Just because you are pissed off, you can’t take it out on the guy next to you. It has to be a true mental disorder that’s recognized to be the cause of your disease. Anti social behavior isn’t going to cut it.
State v. White
The court gave the M’Naghten test and he was unhappy about that. The D wanted MPC test (the second prong). The court did not accept his argument . For social reasons the M’Naghten test restricts access to the insanity defense (utilitarian view). Blumer takes issue with this ruling.
A pyromaniac knows that it’s wrong to burn down a building but they can’t stop themselves.
A social impact is there if we broaden the impact of an insanity defense. The court is saying that the impact of knowing that you may get away with a crime is an anti-social result and we don’t want to encourage that.
272 US v. Freeman
Save the children case.
There are two things that are going to go on in a courtroom when you’ve got mental issues in a case especially when talking about an insanity defense, you’re going to have professionals who probably have examined the D and reached some kind of conclusion.
Remember this insanity contest is going to the jury and they don’t have to rely exclusively on ideas of the health professionals. They also have the facts of the case.
In this case the D’s actions belied his claim. He tried to evade the police and wore a mask. The jury didn’t buy it.
These cases become battles of experts and they belong to camps (defense & prosecution)
Criminal law is fact dependant.
Page 276 People v. Ramsey
MI case - GBMI
The purpose of the statute was to narrow the focus of the insanity defense to prevent people who were improperly relieved of criminal responsibility. There is nothing impermissible about such a purpose. It is well within the legislature to cure what it sees as a misuse of the law. But our job here is to see if it deprives the D of a constitutional right.
DIMINISHED CAPACITY
Diminished Capacity: A defense that does not acquit you but lowers the level of your culpability. Voluntary Manslaughter is a diminished capacity form of murder because you are acting out of the heat of passion. Check your jurisdiction. MI created diminished capacity by a court of appeals in the early 1980s. Two years ago MI threw it out.
Specific Intent Crime: You wanted the specific harm that resulted from your actions. If the person had diminished capacity that may mitigate the defense to the point where you fall back to the next general intent crime.
State v. Smith page 282
The court did accept diminished capacity as a defense. If the D has available the defense of insanity, why would he want diminished capacity? It’s a fallback position. Maybe the jury isn’t going to buy my insanity defense so let’s give them a second thing to think about.
INTOXICATION
In most jurisdictions cannot be used as a form of insanity. In some cases you can use alcoholism as a form of diminished capacity to reduce from 1st degree murder to 2nd degree murder. Intoxication is not a defense in those jurisdictions where diminished capacity is a viable defense. It might reduce from a specific intent crime to a general intent crime.
People v Langworthy and People v. Lundy
Rape is a general intent crime – you simply had to do the act on purpose.
Second degree murder is a general intent crime.
Voluntary intoxication is a form of diminished capacity. CSC is a general intent crime so fit doesn’t get a lower therefore the defense of voluntary intoxication became useless.
Second degree murder is an intentional killing but without understanding necessarily the consequences of your actions.
State v. Cooper page 303
AZ case. His insanity was based upon voluntary intoxication. The trial court refused to instruct on insanity. No court allows voluntary intoxication to be used as insanity.
WEEK 11
Week 11 Crim Law, July 12, 2006
IGNORANCE OR MISTAKE OF THE LAW
Ignorance: You didn’t know
Mistake: You had a misunderstanding of a situation
Common Law rule and overwhelming majority:
Ignorance or mistake in the law is not a defense. “Everyone is presumed to know the law” – that is a legal fiction. There is a policy reason behind it because we would be inviting people to break the law. It would be too easy to say I misunderstood – I thought I could do that. By requiring people even if it’s a fiction, to know the law, we are encouraging people to study the law.
The other thing that this rule tries to avoid is subjectivity. We don’t want everyone to have their own interpretation of the law. The goal is to be objective – one understanding of the law. If we allowed ignorance or misunderstanding of the law then we would be encouraging a subjective view and everybody would be marching to their own drum with no ability to enforce the law.
There are some recognized exceptions. The first one is founded in the constitutional principal of due process (fair notice). If the law is so obscure then no know one could know that it’s there or if it’s so new it hasn’t been published, then it’s a violation of due process. A very rarely applied rule.
LAMBERT V. CALIFORNIA
355 U.S. 225 (1957) page 320
This is a status crime. Her status was the she was a felon living in L.A. Because of her status, she was in violation of the law (no registering).
1. Clearly a status crime. She didn’t have to do anything active to violate the law.
2. A very obscure rule, nobody knew it existed.
3. Had consequential punishment.
Due process translates into fairness in court. This is as far as the court goes on this concept. The court is saying that this would be different if she had done something or if she had a legal obligation to do something.
NATURE OF THE CASE: Lambert (D) appealed her conviction for violation of a criminal registration statute.
FACTS: In Los Angeles, there is an ordinance requiring that a person must report any previous felony convictions to the Chief of Police if he is in the city for more than five days (Code 52.39) or if the person comes into the city five times of more within a 30-day period. The statute makes each day's failure to register a separate offense. Lambert (D) was arrested on suspicion of another act, and was also charged with not registering with the police station. P had been in Los Angeles for more than seven years. During that time, she had been convicted of forgery. D asserted a denial of due process of law. The trial court denied this objection. The case was tried to a jury which found D guilty. The court fined her $250 and placed her on probation for three years. D moved for arrest of judgment and a new trial. This motion was denied. D appealed. The Appellate Department of the Superior Court affirmed the judgment, holding there was no merit to the claim that the ordinance was unconstitutional.
ISSUE: Does a registration act violate due process when it is applied to a person who has no actual knowledge of her duty to register, and where no showing is made of the probability of such knowledge?
RULE OF LAW: A registration act violates due process when it is applied to a person who has no actual knowledge of her duty to register, and where no showing is made of the probability of such knowledge.
LEGAL ANALYSIS: Notice is required when the omission to act is part of passive conduct that no one would reasonably deem to be criminal. There was no clear definition of the standard to determine what reasonable should be under the knowledge requirement. The holding in this case is very narrow. Ignorance of the law will be a defense only when there is an omission to act or when the omission to act is under circumstances which would not move one to inquire to act. A defendant would not be able to use his ignorance of the law whenever an omission runs counter to the established notions of morality and common sense. Even in a strict liability crime there must be some form of notice that you are doing something wrong.
Sex offenders are legally required to register and are under a continuing obligation to do it.
ENTRAPMENT BY ESTOPPEL (REASONABLE RELIANCE DOCTRINE)
Estoppel: A party to a lawsuit is barred from making a particular claim because of equitable reasons.
Classic Government estoppel – entrapment. That means you cannot prosecute somebody when you entrapped them.
If a government agent says it’s ok to do something (statute), you are entitled to rely on that when you do it.
PEOPLE V. MARRERO
69 N.Y.2d 382, 507 N.E.2d 1068 (1987) page 311
Prison guard in CT at a nightclub in NY. He interpreted the statute at his own risk (CCW for peace officers). No official said that he was right – he interpreted the statute himself and he was wrong.
Common Law and NY statute: It is not an excuse that you misunderstood the law unless you were relying on a statute or other enactment that gave you that privilege or the interpretation of a statue or law made by an official agency charged with the responsibility of enforcing that statute before a court.
Rule from Blumer: If you are wrong, you are not entitled to that defense. The AG interpretation of a statute is binding. A person is entitled to rely. What is the entrapment? If the AG interprets law allowing prison guards to carry concealed weapons and then tries to prosecute him, the government would be estopped from doing it.
NATURE OF THE CASE: This was an appeal from a conviction for possession of a handgun.
FACTS: Marrero (D) was a federal corrections officer. D carried a loaded .38 caliber automatic pistol, but he was not licensed to do so. D claimed that he was exempt from the law because of his status. By the terms of the law, it did not apply to "peace officers," which was defined to include corrections officers. The trial court dismissed the indictment. The appellate court reversed and reinstated the indictment. At trial, D requested that the trial court instruct the jury on mistake of law, because he reasonably believed that the exemption applied to him. The court rejected D's argument that his personal misunderstanding of the statutory definition of a peace officer is enough to excuse him from criminal liability under New York's mistake of law statute (Penal Law § 15.20). The court refused to charge the jury on this issue and D was convicted of criminal possession of a weapon in the third degree. D appealed.
ISSUE: Is a mistake of law a valid defense to a statute that does not require an intent to violate it?
RULE OF LAW: Mistake of law about a penal law that does not require intent to violate it is not a defense unless the mistake is based upon reliance on an official interpretation.
3. Failure of Proof.
Whether or not your mistake of the law actually negated the criminal intent element of the crime you are being charged with. In order to understand how to distinguish a valid failure of proof scenario where the defense is a valid defense (like in Marrero) the court said we’re not going to let you do that – you are talking about another law that interacts with the criminal law. Where you have a mistake of law that is not a mistake of the criminal law that you’re charged with violating but has an interaction with that law, then that can become a valid defense because what it’s doing is negating your criminal intent.
Bigamy: He recently married someone thinking he was divorced because she ran away. He went to NV to get divorced and went back to his home state. But in his home state the law was that the spouse had to be personally served. His misunderstanding of law had nothing to do with a misunderstanding of what it is to be a bigamist. His misunderstanding was to the divorce laws in his state. If the bigamy laws require intent, then he has a valid defense because he thought legitimately that he was divorced. If the statute you are dealing with is a strict liability crime, then mistake of law is no defense.
Dressler: Mistake of another law as long as you honestly made that mistake even if it was unreasonable you have successfully negated the intent element in the crime (failure of proof defense).
Utilitarian point of view. Mistake is no defense.
PEOPLE V. WEISS 316
276 N.Y. 384, 12 N.E.2d 514 (1938).
Mistake of law. The D (police officer) was charged with kidnapping. He thought he was deputized and had legal authority. Mistake if law is not a defense but didn’t have the criminal intent.
NATURE OF THE CASE: This was an appeal from a conviction for kidnapping.
FACTS: Weiss (D) and others assisted a New Jersey detective in the investigation of the Lindbergh murder case. D helped the detective seize a defendant in order to extort a confession from him. D claimed that the detective had assured D that all of this activity was within the law. D was charged with kidnapping. At trial, the court excluded evidence that the detective had told D that he had the authority to make the arrest. The trial judge held that good faith was no defense to the charge of kidnapping. D was convicted and appealed.
ISSUE: Must D be allowed to prove that he honestly thought that he was acting within the law as part of his defense if kidnapping requires an intent to act without authority of law?
RULE OF LAW: Kidnapping requires an intent to act without authority of law, and a party must be allowed to prove that he honestly thought he was acting within the law.
HOLDING AND DECISION: (O'Brien, J.) Must D be allowed to prove that he honestly thought that he was acting within the law as part of his defense if kidnapping requires an intent to act without authority of law? Yes. Kidnapping requires an intent to act without authority of law, and a party must be allowed to prove that he honestly thought he was acting within the law. The essential mental element of kidnapping is the intent to act without authority of law. If D can successfully show that he had no such intent, he is not guilty of kidnapping. If this court were to hold otherwise, then every time a policeman violated someone's constitutional rights he would be guilty of kidnapping. Judgment reversed.
DISSENT: (Crane, J.) The law does not require intent to act without authority of law. The law requires an intent to do the act of confining a person.
LEGAL ANALYSIS: A mistake of law or fact is a defense if, and only if, it negates the mental state needed to find a material element of the crime. The dissent and the majority differ over the essential elements of the crime of kidnapping, and not over the mistake of law or fact defense.
RATZLAF V. UNITED STATES
114 S.Ct. 655 (1994)
Structuring
Money laundering: Taking money earned illegally and you hide that money from the government by investing it in a lawful way or buying something that is not illegal. putting it into a legitimate business.
Any transaction that involves $10K or more must be reported. It’s an anti money laundering law.
NATURE OF THE CASE: This was an appeal from a conviction for violating structuring laws to avoid reporting transactions over $10,000.
FACTS: Ratzlaf (D) ran up a debt of $160,000 playing blackjack at the High Sierra Casino in Reno. D was given one week to pay and returned with $100,000 cash the next week. A casino official informed D that all transactions involving over $10,000 cash had to be reported to state and federal authorities. The official stated that a cashier's check for the full amount due would not trigger the reporting requirement. D then went to local banks and bought cashier's checks for under $10,000 and then gave the casino all the checks. D was charged with a structuring transaction under 31 U.S.C. ¤5324. The judge instructed the jury that the government had to prove D's knowledge of the banks' reporting obligations and his attempt to evade that obligation but did not have to prove that D knew that structuring was unlawful. D was convicted and appealed. The Court of Appeals affirmed.
ISSUE: May the term willful carry many different meanings in a criminal context one of which is that the statute requires proof of an intentional violation of a known legal duty?
RULE OF LAW: The term willful may carry many different meanings in a criminal context one of which is that the statute requires proof of an intentional violation of a known legal duty.
HOLDING AND DECISION: (Ginsburg, Justice) May the term willful carry many different meanings in a criminal context one of which is that the statute requires proof of an intentional violation of a known legal duty? Yes The government's contends that structuring is not the kind of activity that an ordinary person would engage in innocently and therefore it is reasonable to hold a structurrer responsible for evading the reporting requirements without the need to prove specific knowledge or intent that such evasion is unlawful. We cannot agree. Currency structuring is not inevitably nefarious. We can think of many activities engaged in lawful parties to avoid such reporting such as a small business man who avoids such reporting by merely making more trips to the bank with cash to avoid the possibility of an audit by the IRS. We cannot accept the contention that a person who structures is motivated by a nefarious desire to keep the Government in the dark. Under this type of situation when the act is not nefarious in and of itself, we cannot accept the contention that the willfulness requirement is satisfied by something less than a showing of specific intent. This does not dishonor the principle that ignorance of the law is no defense to a criminal charge by requiring that the government prove D knew not only of the bank's duty but also of his duty not to avoid triggering such a report. Reversed.
Dissent: (Blackmum, Justice) Ignorance of the law or mistake of the law is no defense to criminal prosecution. Willfully applies to the consciousness of the act but not to the consciousness that the act is unlawful.
LEGAL ANALYSIS: This was a statute and Congress changed the law making the dissent correct by adding liability for whoever violates this section. This then makes the small business person guilty of structuring by just going to the bank on more occasions to avoid the reporting requirement; keep up the good work Congress!
CHEEK V. UNITED STATES
498 U.S. 192 (1991).
Mistake of law defense. The SC treated this as a mistake of proof argument that he was so mistaken that he didn’t have the criminal intent to violate the tax evasion laws.
NATURE OF CASE: This was an appeal from a conviction for nonpayment of income taxes.
FACTS: Cheek (D) concluded that wages were not income under the Tax Code and that the income tax laws could not constitutionally require him to pay a tax. D ceased to file any income tax returns. D was charged with willfully failing to file a federal income tax for six years and with willfully attempting to evade his income tax. D had been involved in at least four civil cases, which unsuccessfully challenged various aspects of the federal income tax system. An attorney had also advised D that the courts had rejected as frivolous the claim that wages are not income. The jury returned a verdict of guilty on all counts. The court of appeals affirmed. D appealed.
ISSUE: Does a good-faith misunderstanding or belief that one is not violating the law negate willfulness?
RULE OF LAW: A good-faith misunderstanding of the law or a good-faith belief that one is not violating the law negates willfulness.
HOLDING AND DECISION: (White, J.) Does a good-faith misunderstanding or belief that one is not violating the law negate willfulness? Yes. A good-faith misunderstanding of the law or a good-faith belief that one is not violating the law negates willfulness. Willfulness requires proof that the law imposed a duty on a defendant, that the defendant knew of this duty, and that he voluntarily and intentionally violated that duty. A party cannot be aware of a duty imposed by law if he misunderstands the law or believes the duty does not exist. It was error to instruct the jury to disregard evidence of D's understanding and interpretation of the tax laws no matter how incredible those beliefs may seem. Claims that some of the provisions of the Tax Code are unconstitutional do not arise from innocent mistakes caused by the complexity of the Internal Revenue Code. These types of claims reveal full knowledge of the provisions at issue. D cannot claim that his good-faith belief about the actual validity of the Code negates willfulness or provides a defense to criminal prosecution. The district judge correctly instructed the jury not to consider D's claims that the tax laws were unconstitutional. Vacated and remanded.
CONCURRENCE: (Scalia, J.) It is impossible to say that a statute that one believes to be unconstitutional represents a "known legal duty."
LEGAL ANALYSIS: D was charged with a specific-intent crime that required the defendant to have acted willfully. Income tax statutes are phrased this way so that individuals would not become criminals because they misunderstood the intricacies of the Tax Code. D was claiming conscious ignorance of the law (rather like if you don't tell me that these goods are stolen there is no way I can be convicted of knowingly receiving stolen property). That myth also follows the myth that when you ask if someone is a police officer they must tell you or they cannot subsequently arrest you because they didn't tell you the truth.
Note: A good faith misunderstanding will negate the scienter required for any specific intent crime.
MISTAKE OF FACT
Common Law:
Can be a defense (unlike mistake of law) where it negates an element of the crime. That is generally true with specific intent crimes. It doesn’t matter as a general if the mistake was reasonable or unreasonable but it must be a true mistake.
Common Law (must be reasonable):
General Intent crimes: If you have a mistake of fact that was reasonable, then it will be a defense. Reasonable is tested by an objective standard that anybody else would have made the same mistake under the same circumstances.
Common Law:
If it’s a strict liability crime, mistake of fact is useless defense. Ex.: statutory rape.
Whenever mistake of fact is being used as a defense, in order for it to be valid, you have to convince the jury that you actually did have that mistake in mind.
7:22P
PEOPLE V. VOGEL
46 Cal.2d 798, 299 P.2d 850 (1956) page 326
NATURE OF THE CASE: This was an appeal from a bigamy conviction.
FACTS: Vogel (D) was told by his wife that she was going to divorce him and marry Earl Heck. D's wife said she had married Heck and lived as Mrs. Heck. D believed he was divorced. D then remarried. D was arrested for bigamy. At trial, D tried to admit evidence of his good faith belief in the divorce but was denied. D was convicted and appealed.
ISSUE: Is a good faith belief in a prior divorce a defense to bigamy?
RULE OF LAW: A person who remarries under a reasonable good faith belief that he is single is not guilty of bigamy.
HOLDING AND DECISION: (Traynor, J.) Is a good faith belief in a prior divorce a defense to bigamy? Yes. A person who remarries under a reasonable good faith belief that he is single is not guilty of bigamy. Bigamy is a crime of moral turpitude. It is unlikely that the legislature wanted to hold the morally innocent liable for this crime. Knowledge of multiple marriages is an essential element of the crime of bigamy. D should have been allowed to show that his wife told him that she was divorced and married to another. Reversed.
DISSENT: (Shenk, J.) The statute does not recognize good faith as an exception to culpability.
LEGAL ANALYSIS: Under this statutory scheme, the element of intent was not excluded from the statute. Therefore, to find guilt there must be union of the act and the wrongful intent.
They were trying to turn it into a strict liability crime. Recognize that instructions to the jury are the single most reason on appeal. If the mistake of fact negated the intent, should be able to make that argument.
1. The court imposed an intent element. It’s not strict liability, it has an intent element.
2. Where there’s an intent element in a general intent crime (like bigamy), if you have an honest mistake of fact, and it was reasonable, then the jury should be allowed to consider that as a defense to the crime. If he could prove that it was reasonable, it would be a total defense to this crime.
Deer Hunting hypo: Accidentally shoots another hunter. No first degree murder because mistake of fact will kill off intent whether it’s reasonable or unreasonable. What about second degree murder – a general intent crime? Now we have to decide whether it was reasonable or not.
Three things have to happen (second degree murder)
1. It has to negate an element of the crime (intent to kill). You can’t intend to kill a human being if you don’t know it’s a human being behind the bush.
2. It has to be an honestly held mistake. He honestly thought it was a deer behind the bush.
3. It has to be reasonable under the circumstances. For the jury. He shot at a rustling bush – is that reasonable? What if they guy was wearing hunter orange?
Manslaughter: An illegal killing but no intentional element. Is his mistake of fact a defense? It becomes an irrelevant defense because it has to negate intent and no intent required for manslaughter.
If you’re dealing with a crime based on negligence, the mistake of fact probably will not be effective as a defense because you are being negligent or careless anyway. Shooting into a bush without knowing what it is, is gross negligence resulting in death or manslaughter. The mistake ends up convicting you.
PEOPLE V. HERNANDEZ
61 Cal.2d 529, 393 P.2d 673 (1964)
Blumer: Here, CA broke the rule. Mistake of fact can be a defense in this case.
NATURE OF THE CASE: Hernandez (D) appealed from a conviction of statutory rape contending that the court erred in refusing to permit evidence showing he believed the girl was of age to consent.
FACTS: D and the victim were not married and had been companions for several months. D and the victim had consensual sex when she was 17 years and 9 months of age. D reasonably believed that she was 18. D was tried for statutory rape. The trial court refused evidence about D's reasonable belief that she was 18. D was convicted and appealed.
ISSUE: Is a reasonable mistake of fact as to the age of the girl a defense to a charge of statutory rape?
RULE OF LAW: A reasonable mistake of fact as to the age of the girl is a defense to a charge of statutory rape.
LEGAL ANALYSIS: This is a very small minority rule, but one that is long overdue. The crime of statutory rape is a strict liability crime in most states. This has produced extreme and inequitable results in a great deal of cases. We don't like the analogy to bigamy as with bigamy the people can easily call up the court house to see if they are divorced but we do like the analogy when people used to go to Mexico to get divorces and then finding out that they were not valid divorces. If the young lady is not a virgin, strict liability statutory rape should not apply. If the young lady consents and is not pregnant, the strict liability statutory rape should not apply. If the young lady has not contracted any diseases from the encounter, statutory rape should not apply. If money is exchanged strict liability should always apply. We agree with the Model Penal Code but not with its cut off of 10. A better cut off would be 12 or 13 as is done in England. This is the only place in the law that a person can lie and get away with it. We like the public policy behind these laws but not how they are implemented.
PEOPLE V. CASH
419 Mich. 230, 351 N.W.2d 822 (1984).
NATURE OF THE CASE: This was an appeal from a statutory rape conviction.
FACTS: Cash (D) was 30 and picked up a runaway girl who was 15 years and 11 months. She told D that she was 17. They engaged in sexual intercourse. D was charged with statutory rape. D sought a jury instruction about his good faith belief in her age. That was denied. D was convicted and appealed.
ISSUE: Is reasonable mistake of age a defense to the crime of statutory rape?
RULE OF LAW: A reasonable mistake of age is not a defense to a statutory rape charge.
HOLDING AND DECISION: (Williams, C.J.) Is reasonable mistake of age a defense to the crime of statutory rape? No. A reasonable mistake of age is not a defense to a statutory rape charge. The statute is a general intent crime. The purpose of the statute is to protect girls who are too young from giving the requisite consent. The conviction was proper.
LEGAL ANALYSIS: This result is very difficult to defend. It is the majority position.
MPC: In dealing with mistake of fact or law, the MPC recognizes it if it negates one of the elements of the crime. The MPC abandons the distinction between specific intent and general intent crimes.
Impact of actions by the victim. Consent of the victim is not a defense because It’s society or the government against the defendant.
We saw this in a big way with Kevorkian. Had consent of the victim but was convicted anyway. Consent is ineffective as a defense. It only has an impact on sentencing.
Kidnapping is the moving of someone against their will. If they give consent, that negates an element of the crime.
Hockey hypo*: Consent up to a point. Hockey players have been convicted of assault and battery. Intentional high sticking or slicing violates the rules of the game. There is a limited consent to assault and battery. It’s where you exceed the rules or the norms of society.
Common Law definition of Mayhem: biting on the face of an opponent.
Condenation: What happens if the V forgives D after the crime? Or the V agrees to take a monetary settlement and call it even. It simply is not a legal defense. It may lessen the sentence but will not eliminate the criminality.
WEEK 12
Week 12 Crim Law, July 19, 2006
Midterm Review:
Know Morrissette. Know concurrent doctrine.
For Final: Looking for IRAC. Cut to the jugular. Do not parrot back the facts that I gave you in the fact pattern. I do want to see the facts but only as they relate to the elements of the crime. The issue may be, why can’t I prosecute this case? The rule may be the rule of law you are dealing with in the case. Whether it is an affirmative defense or if it’s common law, it’s the elements. The analysis (most important part) is where you link the facts to the rule or to the elements of the crime or elements of the defense. The most important thing you can learn from this class is your ability to relate facts to the crime or to the defense (issue). I want to see how well you make the argument. Outline dumping does not work. There will be a maximum of 2 essay questions, one worth more than the other.
Midterm:
Common law is the reasonable person test.
We’ve discussed various circumstances that can negate Mens Rea and provide the D with a complete or partial defense.
Decriminalizing the act because of some external cause. It has nothing to do with the mental state of the D.
Two categories:
Justification: The law allowed it for some social purpose. A police officer does something that is allowed by the law as part of his job (aiming or shooting at someone).
Excuse: Not prepared to punish. It doesn’t mean there wasn’t criminal behavior, it just means that we’re not prepared to punish a person because of it.
Justification and Excuse can apply to any crime.
EXCUSE
Classic example of an excused crime: When you are acting under compulsion (duress). It doesn’t mean that what you did was right. It means that you were left with no choice and you had to do it.
Example: Aiding and Abetting example – Bank CEO was told that he will never see his family again if he doesn’t open the bank vault. Your behavior is excused because you acted under duress.
Compulsion – human created duress
Necessity – natural created duress
Necessity example: Break in a cabin in order not to freeze to death. Guilty of B&E but it is excused because of the defense of necessity.
The actor has done something wrong but because of the circumstances we are prepared to excuse it
United States v. Haney
AMW case
Haney was trying to help Francis by trying to get caught escaping for protection. Both charged with attempted escape and possession of escape paraphernalia. The duress defense only applies to the person being threatened. A third party unrelated to the V does not have the right to rely on a duress defense. Sending a utilitarian message to encourage behavior. Haney was helping someone in danger
The elements of a duress defense page 336:
1. Has to be an immediate reasonable threat
2. D must actually fear that it will be carried out
3. There must be no reasonable opportunity to get away from the harm
Duress frequently comes up in prison escape cases. Duress is a defense if you turn yourself in after you get away from the danger.
You cannot take an innocent life and use duress as a defense.
Necessity defense example: Cliff hanging with several other climbers, one falls over and drags all the others with him. You cut the rope to save the others but the one climber dies. You have committed murder but it was a necessity (natural) defense. Jurisdictions are split – some say under no circumstances can you take a life, others say necessity is an exception to that rule. You have not created the danger and it was beyond your control.
The threat must be an immediate harm much like self defense. If you don’t do this right now I’m going to kill you later is not good enough. The harm must be right now.
Toops v. State
Jump in the back seat while driving case.
The defense was necessity. The elements are:
1. Immediate harm (car with no driver);
2. No time or reasonable alternative (he was the only one available to stop the car);
3. The act that you took was no worse than the act that would have happened if you hadn’t broken the law (driving drunk long enough to get the car under control was no worse than crashing); and
4. Your response to the duress should be proportional and that you didn’t substantially contribute to the creation of the emergency (Blumer takes issue with this).
The court reversed and remanded saying he should have been able to make the necessity argument.
Blumer: Upon remand the defense will not be successful – he substantially contributed. This is like a clean hands doctrine in torts.
Cabbie Hypo: Two men with handguns force their way into a cab and threaten to kill the cab driver unless he drives them to a liquor store which they tell him they intend to rob. The cab driver complies. While one stays in the cab the other one goes in and robs the store. He returns and the cabbie drives them to safety.
Did the cab driver engage in any acts that aided the robbers? Yes. At the time did he know what the robbers were doing? Remember, knowing what is going to happen is common law aiding and abetting. His defense is duress. It was an immediate harm, his response was reasonable, not responsible for killing somebody and no reasonable alternative but to comply.
Liquor store hypo: Same scenario but the robbers tell him to wait outside or we’re not going to pay you. If he knew what they were doing and he voluntarily drove them away or if the threat wasn’t sufficient, he joined the conspiracy and cannot use duress.
For common law and most jurisdictions: It must be threat of bodily harm or death
What if the cabbie is an alcoholic? The robbers know that and they threaten to tell his boss to get him fired. Has to be an immediate threat of death or bodily harm.
May be able to use duress as a defense in felony murder if you are not the actual killer.
Remember the sixth element: The D should not have been involved in the creation of the condition that leads to the duress. If you are, then you don’t have clean hands. This is an equitable doctrine. It’s based on social policy and it’s based on fairness of the application of court power.
MPC page 337: MPC does recognize duress and necessity as a defense. It’s an affirmative defense. D must have been coerced into doing it by threat or by the use of unlawful force against his person or the person of another. And that a person of reasonable firmness in his situation would have been unable to resist. It’s an easier test to apply. It does recognize the same restriction as common law – the defense is unavailable if the actor recklessly placed himself in a situation in which it was probable that he would be subjected to duress. It is also unavailable if he was negligent in placing himself in such a situation wherever negligence suffices to establish culpability. It doesn’t say death or great bodily harm, just a threat of force that a reasonable person would not have been able to resist – much more liberal.
JUSTIFICATION
The acting in the way you did is legitimized. When can a police officer or a private citizen use deadly force? To prevent a crime or apprehend a fleeing felon or to protect a home.
If you establish them, it eliminates the criminality. When and under what circumstances is it justified to use deadly force? The jurisdictions are divided. “Castle” doctrine – an extension of self defense. The use if fatal force is justified when it is reasonably necessary to protect life.
COMMONWEALTH V. EMMONS page 353
157 Pa.Super. 495, 43 A.2d 568 (1945).
A private citizen using deadly force. She reached out her window and fired at the guys down below. Cannot use deadly force in a property crime.
NATURE OF THE CASE: This was an appeal from a conviction for aggravated assault and battery.
FACTS: Emmons (D) failed to keep current with installment payments on her car. The finance company sent Earl Gray to repossess the car. He knocked on D's door and got no response. D then proceeded to push the car out of the driveway into the street to repossess it. D fired a .22 caliber rifle at Gray and seriously wounded him. D believed that Gray was stealing the car. D was convicted and appealed. D's only defense at her trial was one of prevention of a felony.
ISSUE: Is deadly force justified in order to prevent any felony?
RULE OF LAW: The use of deadly force in order to prevent any felony is not permitted in the absence of use of force by the supposed felon.
HOLDING AND DECISION: (Arnold, J.) Is deadly force justified in order to prevent any felony? No. The use of deadly force in order to prevent any felony is not permitted in the absence of use of force by the supposed felon. We value the preservation of human life more than the protection of property interests. A threat to the physical well being of D herself would allow her to use the defense of prevention. Even if the facts would have been as D supposed, deadly force would not have been permitted to be used. D is guilty of assault and battery. Affirmed.
LEGAL ANALYSIS: D was using deadly force to protect property. That is not permitted. Unless it reasonably appears that there is some danger to a person or habitation, deadly force is not permitted.
STATE V. BARR
565 P.2d 526 (1977)
The court said that there was no burglary because there was no enclosure. He stepped over a low spot on a fence. This was petty larceny, no felony – can’t use statute. Blumer: prosecutor was on his toes.
NATURE OF THE CASE: This was an appeal from a conviction of voluntary manslaughter.
FACTS: The owner of an antique business asked Barr (D) to keep an eye on his yard wherein that owner kept old chairs used to repair other furniture for sale. One night, D was awoken by a noise and got up and saw tow mend standing by his home and urinating on a wall. D looked out another window and saw three more men milling about the in the antique yard. D took his pistol, left his house and confronted two of the men who were told that D did not appreciate their urinating on his wall. D then confronted two men in the antique business yard who when told to, dropped a couple of chairs and then walked up the alley ignoring D's orders to stop. D fired warning shots and then felt a rock whiz by his head. D then lowered his aim thinking the bullet would fly over their heads but in fact struck one of them in the head and leg and killing the 19 year old youth. D was tried and convicted and appealed. The trial court refused to allow his defense that the killing was justified because he was attempting to apprehend a fleeing felon.
RULE OF LAW: The justification of a homicide committed while attempting to apprehend a fleeing felon does not depend on whether the party reasonably believed a felony was being committed.
HOLDING AND DECISION: (Howard, Chief Judge) Does the justification of a homicide committed while attempting to apprehend a fleeing felon depend on whether the party reasonably believed a felony was being committed? No. A private person does not stand in the shoes of a police officer. If no felony was committed, an arrest by a private person is illegal and therefore since a homicide is justified only when the arrest is attempted by lawful means a private person is not authorized to shoot or kill another in an attempt to arrest merely on suspicion that a felony has been committed. In order for D to prevail in his defense he must show that the overt elements of a felony were in fact present and the taking of a life was or appeared to be reasonably necessary in order to apprehend the fleeing felon. The trial court found that the elements of burglary were not present and we agree. Affirmed.
LEGAL ANALYSIS: This is bad law; as a minimum a private citizen should stand in the shoes of a police officer under such circumstances. This case says otherwise.
PEOPLE V. CEBALLOS
12 Cal.3d 470, 116 Cal.Rptr. 233, 526 P.2d 241 (1974)
The D had been victimized in the past with kids breaking into his garage and stealing. So he decided to take of that problem by setting up a trap gun.
NATURE OF THE CASE: Ceballos (D) appealed his conviction for assault with a deadly weapon.
FACTS: D lived alone in living quarters were above a garage. D sometimes slept in the garage and had about $2,500 worth of property there. In March 1970 some tools were stolen from defendant's home. On May 12, 1970, D noticed the lock on his garage doors was bent and pry marks were on one of the doors. The next day he mounted a loaded .22 caliber pistol in the garage aimed at the center of the garage doors and connected by a wire to one of the doors so that the pistol would discharge if the door was opened several inches. The two culprits were 15 and 16. They returned to the house when D was away and When the 16 year old, Stephen, removed the lock on the garage and opened the door, he was hit in the face with a bullet from the pistol. Stephen admitted he was there to steal from D. D was indicted for assault with a deadly weapon. D admitted to setting up the trap gun. D was found guilty. D appealed. D claims that his conduct was not unlawful because the alleged victim was attempting to commit burglary.
ISSUE: Is a person allowed to protect his property in his absence with the potential deadly force of a mechanical device, when he would not have been justified to use deadly force if he was present?
RULE OF LAW: There is no privilege to use a deadly mechanical device to prevent a burglary of a dwelling house in which no one is present.
HOLDING AND DECISION: (Burke, J.) Is a person allowed to protect his property in his absence with the potential deadly force of a mechanical device, when he would not have been justified to use deadly force if he was present? No.
Under Old English law by statute it was a misdemeanor to set spring guns with intent to inflict grievous bodily injury but excluded the times between sunset and sunrise in a dwelling house for the protection thereof. In the United States, courts have concluded that a person may be held criminally liable under statutes proscribing homicides and shooting with intent to injure, or civilly liable, if he sets upon his premises a deadly mechanical device and that device kills or injures another. An exception to the rule has been recognized where the intrusion is, in fact, such that the person, were he present, would be justified in taking the life or inflicting the bodily harm with his own hands. A person may do indirectly that which he is privileged to do directly. But as a matter of public policy to allow persons, at their own risk, to employ deadly mechanical devices imperils the lives of children, firemen and policemen acting within the scope of their employment, and others. Deadly mechanical devices are without mercy or discretion. Such devices "are silent instrumentalities of death. They deal death and destruction to the innocent as well as the criminal intruder without the slightest warning. It seems clear that the use of such devices should not be encouraged. Even if we were to apply the exception to the rule, D was not justified in shooting Stephen. At common law the killing or use of deadly force to prevent a felony was justified only if the offense was a forcible and atrocious crime. Forcible and atrocious crimes are murder, mayhem, rape and robbery. Common law burglary has also been included such a crime. But, modernly the crime has been greatly expanded and differs from common law burglary in that the entry may be in the daytime and of numerous places other than a mansion house. A person who enters a store with the intent of committing theft is guilty of burglary. It would seem absurd to hold that a store detective could kill that person if necessary to prevent him from committing that offense. Where the character and manner of the burglary do not reasonably create a fear of great bodily harm, there is no cause for exaction of human life or for the use of deadly force. The character and manner of the burglary could not reasonably create such a fear unless the burglary threatened, or was reasonably believed to threaten, death or serious bodily harm. Under these facts there was no threat of death or serious bodily harm. D is not protected from liability merely by the fact that the intruder's conduct is such as would justify D, were he present, in believing that the intrusion threatened death or serious bodily injury. Restatement Second of Torts, section 85 is in accord. There is no privilege to use a deadly mechanical device to prevent a burglary of a dwelling house in which no one is present. Affirmed.
LEGAL ANALYSIS: Deadly force may never be used to protect property unless the party is present at the scene and is under a serious threat of harm to his person form what is called an atrocious crime.
Common law: Allows the use of deadly force in defense of a dwelling if it reasonably appears necessary and if a warning has first been given.
Modern view: Modern courts have limited the use of deadly force in defense of a dwelling to the prevention of a felony or the protection of someone's life.
Model penal code: Under the code, the defendant must believe that the intruder was attempting to commit a felony. He must also believe that the intruder used or threatened to use deadly or non-deadly force that would expose someone to a substantial danger of harm.
The use of spring guns or other deadly mechanical devices is not permitted for the defense of property only.
Was not at home, cannot use deadly force. Universal rule – trap guns are never justifiable. The reason is because the trap gun has no discretion (you can’t say, “Stop or I’ll shoot”, even if you’re at home). It’s presumptive that a burglar is dangerous to you and your family but not if you’re not home. If you’re not home it becomes a property crime.
A citizen is authorized to make a felony arrest and authorized to use fatal force to stop a fleeing felon if the fleeing felon is a danger to the citizen or the community.
The general difference of what a citizen can do vs. what a police officer can do is a citizen has to guess right. A police officer can reasonably believe based on the circumstances. The reason is because a police officer is expected to act/protect. They can’t wait around to have all of the necessary facts.
STATE V. MITCHESON
560 P.2d 1120 (Utah 1977)
NATURE OF THE CASE: This was an appeal from a murder conviction.
FACTS: Mitcheson's (D) father purchased a vehicle from Herrera. A dispute developed over the tires and wheels of the van. D and Herrera had several heated arguments resulting in threats of physical violence. Herrera and a friend entered the premises of D's sister's house. D's sister told them to leave but they refused. D shot and killed Herrera during the event. D was charged with second degree murder. D contended that he was justified in using force in protecting his habitat from invasion. The trial court refused to instruct on this point because D's sister's house was not his habitat. D was convicted and appealed.
ISSUE: Does a habitat include a place a person peacefully occupies as a substitute home including a home in which he is a guest?
RULE OF LAW: A habitat includes a place a person peacefully occupies as a substitute home including a home in which he is a guest.
HOLDING AND DECISION: (Crockett, J.) Does a habitat include a place a person peacefully occupies as a substitute home including a home in which he is a guest? Yes. A habitat includes a place a person peacefully occupies as a substitute home including a home in which he is a guest. A person may use force in the protection of his habitat against invasion. This justification should be interpreted to include not only the defendant's actual place of residence, but also whatever dwelling he is peacefully occupying as a substitute home. This includes occupation as a guest in the home of another or even a hotel room. D's sister's house should properly be classified as a habitat for D while he was a guest there. Reversed.
LEGAL ANALYSIS: A person may use force to protect his habitat. This is different from the justification for defense of property. Deadly force may be used to protect a home, if reasonably necessary to prevent a burglary.
TENNESSEE V. GARNER
471 U.S. 1 (1985).
This is a civil rights case. It caused shockwaves across the country.
NATURE OF THE CASE: The State and the city (Ds) appealed from a reversal by the Court of Appeals of a trial court decision which held that a statute regarding the use of deadly force to apprehend a fleeing felon was constitutional
FACTS: Police were dispatched to answer a "prowler inside call." One of the officers investigating the back of the building heard a door slam and saw someone run across the backyard. The fleeing suspect, Edward Garner, stopped at a 6-feet-high chain link fence at the edge of the yard. By using his flashlight, the officer was able to see Garner's face and hands. There was no weapon and the officer was "reasonably sure" and "figured" that Garner was unarmed. The officer thought Garner was 17 or 18 years old and about 5' 5" or 5' 7" tall. The officer called out "police, halt" and took a few steps toward Garner, who then began to climb over the fence. With the prospect that Garner would escape, the officer shot him. Garner was shot in the back of the head and died on the operating table. Ten dollars and a purse taken from the house were found on his body. Statutory law stated that "[i]f, after notice of the intention to arrest the defendant, he either flee or forcibly resist, the officer may use all the necessary means to effect the arrest." Department policy allowed the use of deadly force in cases of burglary. The incident was reviewed by the Memphis Police Firearm's Review Board and presented to a grand jury. Neither took any action. Garner's father (P) sued seeking damages under 42 U.S.C. § 1983 for asserted violations of Garner's constitutional rights. The complaint alleged that the shooting violated the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments of the United States Constitution. After a 3-day bench trial, the District Court entered judgment for all defendants. Garner had "recklessly and heedlessly attempted to vault over the fence to escape, thereby assuming the risk of being fired upon." The Court of Appeals for the Sixth Circuit affirmed with regard to the police officer, finding that he had acted in good-faith reliance on the Tennessee statute and was therefore within the scope of his qualified immunity. The District Court was directed to consider whether a city enjoyed a qualified immunity, whether the use of deadly force and hollow point bullets in these circumstances was constitutional, and whether any unconstitutional municipal conduct flowed from a "policy or custom" as required for liability under Monell. The District Court concluded that the statute, and officer's actions, were constitutional. Given this conclusion, it declined to consider the "policy or custom" question. The Court of Appeals reversed and remanded. It reasoned that the killing of a fleeing suspect is a "seizure" under the Fourth Amendment, and is therefore constitutional only if "reasonable." The Tennessee statute failed as applied to this case because it did not adequately limit the use of deadly force by distinguishing between felonies of different magnitudes - "the facts, as found, did not justify the use of deadly force under the Fourth Amendment." Officers cannot resort to deadly force unless they "have probable cause . . . to believe that the suspect [has committed a felony and] poses a threat to the safety of the officers or a danger to the community if left at large." The State of Tennessee (D), which had intervened to defend the statute, appealed to the Supreme Court. The city filed a petition for certiorari.
ISSUE: May deadly force be used to prevent the escape of an unarmed and nonviolent felon?
RULE OF LAW: Deadly force may not be used to prevent the escape of an unarmed and nonviolent felon.
HOLDING AND DECISION: (White, J.) May deadly force be used to prevent the escape of an unarmed and nonviolent felon? No. Whenever an officer restrains the freedom of a person to walk away, he has seized that person. There can be no question that apprehension by the use of deadly force is a seizure subject to the reasonableness requirement of the Fourth Amendment. A police officer may arrest a person if he has probable cause to believe that person committed a crime. To determine the constitutionality of a seizure "[w]e must balance the nature and quality of the intrusion on the individual's Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion." It is plain that reasonableness depends on not only when a seizure is made, but also how it is carried out. The question is whether in the totality of the circumstances is a particular sort of search or seizure justified. The intrusiveness of a seizure by means of deadly force is unmatched. The suspect's fundamental interest in his own life need not be elaborated upon. The use of deadly force also frustrates the interest of the individual, and of society, in judicial determination of guilt and punishment. It is argued that overall violence will be reduced by encouraging the peaceful submission of suspects who know that they may be shot if they flee. And while the meaningful threat of deadly force might be thought to lead to the arrest of more live suspects by discouraging escape attempts, there is no evidence to support this thesis. A majority of police departments in this country have forbidden the use of deadly force against nonviolent suspects. The use of deadly force to prevent the escape of all felony suspects, whatever the circumstances, is constitutionally unreasonable. It is not better that all felony suspects die than that they escape. Where the suspect poses no immediate threat to the officer and no threat to others, the harm resulting from failing to apprehend him does not justify the use of deadly force to do so. A police officer may not seize an unarmed, non-dangerous suspect by shooting him dead. The Tennessee statute is unconstitutional insofar as it authorizes the use of deadly force against such fleeing suspects. It is not, however, unconstitutional on its face. It is insisted that the Fourth Amendment must be construed in light of the common-law rule, which allowed the use of whatever force was necessary to effect the arrest of a fleeing felon, though not a misdemeanant. It is true that the Supreme Court has often looked to the common law in evaluating the reasonableness, for Fourth Amendment purposes, of police activity. On the other hand, it "has not simply frozen into constitutional law those law enforcement practices that existed at the time of the Fourth Amendment's passage." Because of sweeping change in the legal and technological context, reliance on the common-law rule in this case would be a mistaken literalism that ignores the purposes of a historical inquiry.
Under the common law all felonies were punishable by death. Almost all crimes formerly punishable by death no longer are or can be. Today the distinction between many felonies and misdemeanors is minor and often arbitrary. The common-law rule developed at a time when weapons were rudimentary. Deadly force could be inflicted almost solely in a hand-to-hand struggle during which, necessarily, the safety of the arresting officer was at risk. Handguns were not carried by police officers until the latter half of the last century. As for other state laws, the long-term movement has been away from the rule that deadly force may be used against any fleeing felon, and that remains the rule in less than half the States. The police departments themselves are overwhelmingly, more restrictive than the common-law rule. The judgment of the Court of Appeals is affirmed.
Dissent: (O'Connor, J.) Although the circumstances of this case are unquestionably tragic and unfortunate, our constitutional holdings must be sensitive both to the history of the Fourth Amendment and to the general implications of the Court's reasoning. By disregarding the serious and dangerous nature of residential burglaries and the longstanding practice of many States, the Court effectively creates a Fourth Amendment right allowing a burglary suspect to flee unimpeded from a police officer who has probable cause to arrest, who has ordered the suspect to halt, and who has no means short of firing his weapon to prevent escape. The majority ignores the split-second decisions police officers must make in these circumstances. This statute allows the use of deadly force only if a police officer has probable cause to believe that a person has committed a felony, the officer warns the person that he intends to arrest him, and the officer reasonably believes that no means less than such force will prevent the escape. Whether that seizure was reasonable and therefore permitted by the Fourth Amendment requires a careful balancing of the important public interest in crime prevention and detection and the nature and quality of the intrusion upon legitimate interests of the individual. Police use of deadly force to apprehend a fleeing criminal suspect falls within the "rubric of police conduct . . . necessarily [involving] swift action predicated upon the on-the-spot observations of the officer on the beat." Clarity of hindsight cannot provide the standard for judging the reasonableness of police decisions made in uncertain and often dangerous circumstances. I am reluctant to conclude that the Fourth Amendment prohibits a police practice that was accepted at the time of the adoption of the Bill of Rights and has continued to receive the support of many state legislatures. Limits on governmental action requires us to impose a heavy burden on those who claim that practices accepted when the Fourth Amendment was adopted are now constitutionally impermissible. Because burglary is a serious and dangerous felony, the public interest in the prevention and detection of the crime is of compelling importance. Where a police officer has probable cause to arrest a suspected burglar, the use of deadly force as a last resort might well be the only means of apprehending the suspect. The effectiveness or popularity of a particular police practice does not determine its constitutionality. Without questioning the importance of a person's interest in his life, I do not think this interest encompasses a right to flee unimpeded from the scene of a burglary. A proper balancing of the interests involved suggests that use of deadly force as a last resort to apprehend a criminal suspect fleeing from the scene of a nighttime burglary is not unreasonable within the meaning of the Fourth Amendment. The reasonableness of this action for purposes of the Fourth Amendment is not determined by the unfortunate nature of this particular case; instead, the question is whether it is constitutionally impermissible for police officers, as a last resort, to shoot a burglary suspect fleeing the scene of the crime. The Court's opinion sweeps broadly to adopt an entirely new standard for the constitutionality of the use of deadly force to apprehend fleeing felons.
LEGAL ANALYSIS: Generally speaking, when confronting a constitutional flaw in a statute, the court tries to limit the solution to the problem. It prefers, for example, to enjoin only the unconstitutional applications of a statute while leaving other applications in force or to sever its problematic portions while leaving the remainder intact. They try not to nullify more of a legislature's work than is necessary, for it knows that "[a] ruling of unconstitutionality frustrates the intent of the elected representatives of the people." Regan v. Time, Inc., 468 U. S. 641, 652 (1984) (plurality opinion). It is axiomatic that a "statute may be invalid as applied to one state of facts and yet valid as applied to another." Dahnke-Walker Milling Co. v. Bondurant, 257 U. S. 282, 289 (1921). Accordingly, the "normal rule" is that "partial, rather than facial, invalidation is the required course," such that a "statute may ... be declared invalid to the extent that it reaches too far, but otherwise left intact." Brockett v. Spokane Arcades, Inc., 472 U. S. 491, 504 (1985); see also Tennessee v. Garner, 471 U. S. 1 (1985); United States v. Grace, 461 U. S. 171, 180-183 (1983).
In Tennessee v. Garner, the Supreme Court held that an officer who determines that deadly force is necessary to protect himself or others should give a warning if it is "feasible." Garner, 471 U.S. at 10. The Supreme Court actually performs a Fourth Amendment balancing process even though there was probable cause.
The balancing inherent in any Fourth Amendment inquiry requires the court to weigh the governmental and individual interests implicated. It is of course true that in principle every Fourth Amendment case turns upon a "reasonableness" determination and involves a balancing of all relevant factors. But this ignores the fact that the result of that balancing is not in doubt where the search or seizure is based upon probable cause. When there is probable cause there is no balancing. But, where probable cause has existed, the only cases in which the Court has found it necessary actually to perform the "balancing" analysis involved searches or seizures conducted in an extraordinary manner, unusually harmful to an individual's privacy or even physical interests - such as, for example, seizure by means of deadly force, see Tennessee v. Garner, 471 U.S. 1 (1985), unannounced entry into a home, see Wilson v. Arkansas, 514 U.S. 927 (1995), entry into a home without a warrant, see Welsh v. Wisconsin, 466 U.S. 740 (1984), or physical penetration of the body, see Winston v. Lee, 470 U.S. 753 (1985).
Common law would have allowed deadly force to be used in this situation, but every felony under common law was punishable by death. The dissent has the better view. Life is precious, but no one has the right to flee from a common law inherently dangerous felony after being ordered to stop.
Blumer: The officer was authorized by his jurisdiction to use fatal force to stop a fleeing felon. The supreme court of TN affirmed and remanded. They ruled that in spite of the fact that the officer was authorized in his jurisdiction to use fatal force to stop a fleeing felon, it was an excessive use of force under the circumstances therefore it went beyond the authorization. He was a fleeing felon but there was no evidence that he was dangerous. This violated his civil rights because he was killed without the benefit of a trial (5th Amendment).
Rule by Blumer: Can shoot only if the officer believes he is in danger or the fleeing felon is a danger to others.
He would have won if he had shown that he had a reasonable belief that the child was dangerous.
WEEK 13
Week 13, Crim Law, July 26, 2006
SELF DEFENSE
Non-aggressor: Justified in using force upon another if he or she reasonably believes that such force is necessary to protect his or herself from imminent use of unlawful force from someone else. Exception: Proportionality doctrine: Can only use deadly force to repel deadly force. Use of deadly force authorized to prevent imminent unlawful use of deadly force by the aggressor.
Aggressor: One who’s affirmative unlawful act is reasonably calculated to produce an affray foreboding injurious or fatal consequences.
People v. LaVoie
The trial court allowed a directed verdict – justifiable homicide.
RULE OF LAW: Self-defense with deadly force is permitted when a person has reasonable grounds for believing, and does in fact actually believe, that there is an imminent danger of being killed or severely harmed.
Communicated Withdrawal Doctrine:
It can change the status of the aggressor if you communicate that you don’t want to fight anymore and the other party keeps coming. This is decided by the jury. Doesn’t seem fair though for one who starts a fight.
Perception of the threat – Majority view: It must be an honest and reasonable believe. It must be both subjective and objective. You must believe it is reasonable but a reasonable person must believe it also.
Felonious Assault: Assault with a deadly weapon.
Proportionality is where most people lose their self defense. Bar fight example: hit someone in the face and they break a beer bottle over someone’s head.
One must be faced with an imminent threat to claim self defense.
DUTY TO RETREAT
Brown v. United States
No duty to retreat if there’s a reasonable belief of immediate thereat of death. A party may stand his ground when in his home or place of business. The courts are split regarding other locales; half of the jurisdictions require retreat when the retreat would involve no further danger and the other half hold that there is no need for retreat.
State v. Davis
RULE OF LAW: If a person is not at a place of work or in his home, he must retreat before using deadly force in self defense if it is safe to do so.
Michigan has a castle doctrine.
People v. Goetz
Rule: His reasonable belief was not an objective one. The standard of a person being justified in using deadly force against another if he reasonably believes deadly force is necessary to defend himself is an objective standard.
Battered Women Syndrome
Confrontational Homicide: Battered woman kills her partner during a battering incident. Most cases fall under this category. The issue is whether the woman can bring in history of abuse as evidence.
Non-confrontational Homicide: Woman kills partner in a lull in the violence. The issue is if D is entitled to jury instructions of self-defense. The general rule is no.
A jury may nullify (find a D not guilty) even though the evidence shows murder.
State v. Stewart
Battered woman case. Found not guilty. RULE OF LAW: A self-defense instruction may be given only when there is imminent danger.
State v. Sety
Issue: Whether the amount of force used by D was excessive under the circumstances. At most he was guilty of excessive retaliation constituting manslaughter rather than murder.
STATE V. BERNARDY
605 P.2d 791 (Wn. Ct. App. 1980).
NATURE OF THE CASE: This was an appeal from a conviction for assault.
FACTS: Wilson initiated a fight with Harrison. Harrison knocked him to the ground. Bernardy (D), who was a friend of Harrison, then kicked Wilson in the head several times. Wilson was severely injured by the kicks. D was wearing tennis shoes. D was charged with assault. D testified that he struck Wilson because Wilson was getting up and another person was coming to Wilson's assistance. D claims he acted to protect Harrison. The trial court refused to instruct the jury on the privilege of defense of another. D was convicted and appealed.
RULE OF LAW: A person is allowed to defend another person when he believes that that person is about to receive bodily harm.
HOLDING AND DECISION: (Anderson, J.) Is a person allowed to defend another person when he believes that that person is about to receive bodily harm? Yes. A person is allowed to defend another person when he believes that that person is about to receive bodily harm. An individual who acts in the defense of another, reasonably believing him to be the innocent party and in danger of imminent injury, is justified in using force to protect that person. D's actions were taken in defending Harrison from Wilson and another. D is entitled to the instruction of defense of another. The evidence is not very strong for D, but it is reversible error not to give a properly requested instruction. If D acted with a reasonable belief that Harrison was threatened, he was justified. Reversed and remanded.
LEGAL ANALYSIS: This is the minority view. The majority view is that the person claiming the privilege of defense of others stands in the shoes of the person he is protecting. The minority allows for mistakes under a reasonable belief.
SUMMARY
It’s ok to make a mistake if it’s a reasonable mistake. The response must be reasonable to neutralize the threat and not be excessive. In a duty to retreat state (minority), must retreat rather than use deadly force if he is aware he could do so to a place of safety. In a no duty to retreat state (majority), a non-aggressor is permitted to use deadly force to repel an imminent deadly attack even if he is aware of a place he could retreat to safely.
Imperfect privilege: May reduce or mitigate a murder to involuntary manslaughter.
WEEK 14
Week 14, Crim Law, August 2, 2006
ENTRAPMENT
Entrapment is a concept in constant flux. It is a doctrine accepted in every jurisdiction in the country. It has certain aspects of due process but it is more of the court saying that there is certain governmental conduct that it will not allow.
Entrapment is the idea of did the government induce the commission of the crime. Without government involvement in one form or another, would the crime have occurred?
Threshold/First question: Did the government’s actions induce the commission of the crime?
Fork in the road and/or two different analyses:
Subjective test: Accepted in federal government and majority test. It asks as the second question – was the D predisposed to committing this crime anyway? If yes, then no entrapment. How willing was he to commit the crime? Was he very actively involved? It allows the bringing in of prior bad acts but the evidence is very prejudicial to the D. It focuses on the mind of the suspect. It goes to the jury.
Objective test: Accepted test in MI but is the minority opinion. It is different in its approach. It ignores the D altogether. Was the government’s conduct reprehensible in that it would have induced any law abiding citizen under similar circumstances to commit the crime? The test is exclusively on the conduct of the government. The court completely looses sight of the fact that the D may be a very guilty minded person and he did in fact commit the crime. Decided by the judge before the trial.
If you argue entrapment, you have to admit to the crime otherwise there is a logical inconsistency there. I committed the crime but I was forced by the government to do it.
Entrapment is a complete defense and the case dies.
The court will not tolerate cases where the government is the greater D than the D himself.
Blumer: I like the idea of couching entrapment as a due process argument. It is not fair use of government’s power for us to be prosecuting a case where the government’s behavior was such that it would cause a crime no matter who was the focus of the investigation. What are some examples?
Objective: When there are pleas to the D that overcome his or her natural reluctance to abide by the law. Any person could be induced to commit the crime.
Lobbying v. bribery case: A bill to make fuzz busters illegal, lobbyist would give money to representative if he voted her way, busted for entrapment but later acquitted. In the tape recorded conversations, every time the representative asked, “What do you want me to do?” he was inviting her to commit a crime, pushing her closer to the edge.
“There is a fundamental difference between opening the door and pushing someone thru it.”
CORPUS DELICTI
The corpus delicti rule is used in many jurisdictions.
Think of the corpus delicti as the core of the crime (body of the crime).
In any criminal homicide, the CD is the death of a human being by an illegal cause. In an arson it is a fire set by intentional human action. In a larceny it is the taking with wrongful intent with property of another.
The identity of the suspect is not part of the corpus. Crimes that have multiple levels (1st, 2nd, 3rd degree murder) the degree of the crime is not part of the corpus
The rule is where you have a confession by the D, you cannot use the confession to prove the CD. You must prove the existence of the core of the crime by evidence aluinde (without reference to the confession). Once you establish the corpus of the crime thru the use of other evidence, then the confession can be used to fill in the remaining blanks.
The CD rule states that you cannot prove the existence of the crime itself out of the mouth of the D.
Showing posts with label Criminal law. Show all posts
Showing posts with label Criminal law. Show all posts
Saturday, April 26, 2008
Criminal Law
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