Criminal Law - LSE F23 PDF

WHAT IS CRIMINAL BEHAVIOR? MENS REA - INTENT Types of Intent: 1. Conduct (not just thoughts) 2. With a specific mental state (mens rea)...

WHAT IS CRIMINAL BEHAVIOR? MENS REA - INTENT Types of Intent: 1. Conduct (not just thoughts) 2. With a specific mental state (mens rea) ♦ Purposely (it is the purpose or goal to achieve a result) 3. That inflicts or threatens (causation) ♦ Knowingly (consciously aware that the result is likely; subjective and objective; result substantially certain to occur) 4. Harm to i n d ivid ual or p u b l i c i nterests ♦ Recklessly (aware of substantial and unjustifiable risk) 5. Without justification or excuse ♦ Negligence (should have been aware of substantial and unjustifiable risk; gross deviation from reasonable person) ACTUS REUS - CONDUCT ♦ Intentionally (purposely or knowingly) ♦ Maliciously (purposely or recklessly; probably also knowingly) 1. Conduct ♦ Willfully (intentionally, knowingly, "evil purpose;' and sometimes 2. Causation intent to violate law) 3. Social Harm ♦ Corruptly, feloniously, fraudulently, designedly, wantonly ♦ Conduct itself ♦ Strict liability (liability without regard to fault) ◊Must involve an act (brain moving the body; outside force, Proving Intent: thoughts, status - not acts) ♦ Scope ◊Act must be voluntary (involves the mind, not just the brain; ◊Must be proven as to behavior and result involuntary acts are unauthorized by the mind; habit acts ◊Attendant circumstance elements are often strict liability are voluntary) ◊ Intent does not equal motive $ Martin v. State (drunk at home and then taken into public place by police; not responsible because he was not voluntarily in public) ♦ Evidence ◊Confession or admission Martin v. State variations Act? Vol u ntary? ◊Circumstantial evidence (inferring intent from conduct and attitude) Sober person who walks outside and drinks heavily; acts disorderly Yes Yes ◊Motive Drunk person who walks outside and then acts disorderly Yes Yes $ Regina v. Cunningham (removal of gas meter caused gas leak and near asphyxiation of neighbor) Drunk person who has a seizure, falling outside Yes No Specific v. General Intent: Drunk person carried outside at his request Yes Yes ♦ General intent: intent as to the basic conduct in the statute Drunk person carries outside against his will No No ♦ Specific intent: extra layer of intent, express or implied Walks outside; remains quiet; hypnotized by police and ◊Acting to do a specific wrong in the future Yes No becomes disorderly ◊Acting with a specific motive or purpose ◊Timing: act and mental state must occur together (concurrence of ◊Acting with knowledge of certain attendant circumstances the elements) Transferred Intent: ◊Omissions: Common law (CL) imposes no duty to help Defendant's acts cause harm to a different victim, of a different type, ♦ Exceptions ( very similar under MPC): or to a different degree 1. Statute ♦ Intent does transfer to different victims 2. Status- or relationship-based duty ♦ Intent does not transfer to different types of harm (harm to people, 3. Contract property, or security) ♦ Liability attaches to the lesser degree crime 4. Voluntary assumption of care and seclusion 5. Creation of risk or danger MODEL PENAL CODE CULPABILITY LEVELS ♦ Attendant circumstances (conditions that must be present in Hierarchy of culpability levels: conjunction with conduct that constitute the crime) 1. Pu rpose 3. Rec kl essness ◊Objective facts only (e.g., whether a building is a residence; 2. Kn owledge 4. N egl igence whether it's nighttime, etc.) ThemisBar.com 1.888.843.6476 i nfo@T h e m i s Bar.com CRIMINAL LAW Themis Bar Review *Strict Liability (implied) ◊ Specific Intent - negated by honest mistake of fact, even unreasonable ♦ Evidence proving higher levels also proves lower ◊ General Intent - mistake must be honest and reasonable ♦ Each material element has its own culpability level ◊ Strict Liability - mistake has no effect ♦ Strict liability can only result in fines, not jail time $ People v. Navarro ( D took wooden beams from construction site that he thought were abandoned; negated specific intent) Culpability Conduct Attendant Circ. Result ♦ MPC: mistake of fact is a defense when it negates degree of culpability Conscious Conscious pu rpose Pu rposse pu rpose or object N/A or object ◊ No general vs. specific intent Aware cond uct is of ◊ No reasonable vs. unreasonable mistake Knowledge Aware they exist Practically certain a specified nature Conscious disregard Conscious disregard CRIMINAL INTENT - MISTAKE OF LAW Recklessness N/A of sub. & unjust. risk of sub. & unjust. risk Usually, ignorance of law is no excuse. Exceptions: Negl igence N/A Un reas. lack of Unreas. lack of awareness of sub. & Traditional/Reasonable Reliance (mistake as to the definition or awareness of sub. & unjust. risk unjust. risk coverage of the law) Strict Liability N/A N/A N/A ♦ Reasonable reliance on official statement of the law that authorized behavior at the time but was later declared wrong ♦ "Official statement" sources: Ambiguities: ◊ Statute later declared invalid ♦ No culpability level - at CL, check history; in MPC, recklessness is ◊ Judicial decision of higher court later overturned the default ◊ Official interpretation from person or public body charged ♦ Multiple actus reus elements but one culpability level - single with interpreting or enforcing the law culpability level modifies all absent clear contrary purpose $ NY v. Marrero (CO. believed he was covered by peace officer Intent Issues: exception, but based only on his own interpretation; guilty) ♦ No general v. specific issues; every element needs own level Elemental Claim (no knowledge of law whose statute specifically ♦ Transferred intent: intent usually is not transferred with 2 exceptions: requires knowledge) ◊ Different victim (NOT additional victim) ♦ Only works with specific intent crimes ◊ Different degree (liability attaches to lesser harm) ♦ Reasonable mistake does not excuse general intent crime NOT different type $ Cheek v. US (not guilty of "willful" tax evasion because D didn't think he owed taxes on certain money) Due Process Claim (no fair notice of the law's existence) CRIMINAL INTENT - STRICT LIABILITY Punishment imposed without regard to D's mental state ♦ Affirmative defense $ Lambert v. California (no notice that D had to register as a felon ♦ MPC: not incarceration crimes wjin 5 days of moving, so no violation) ♦ CL: look to congressional intent (express or implied) Factors: 1. omission, not action ◊ Public welfare offenses 2. based on status, not activity $ US v. Staples ( owning an automatic weapon is not inherently 3. offense regulatory, not dangerous dangerous + severe punishment = no strict liability; holding does MPC: Mistake of Law defense if: not go so far to say that absence of mens rea requirement, default ♦ If it negates culpability required (elemental) standard is knowledge) ♦ If statute has not been made public (due process) $ Morissette v. US ("knowing conversion" of property requires ♦ If reliance on official statement (reasonable reliance) knowledge of ownership; collector who thought bomb casings were abandoned is not guilty) CAUSATION - ACTUAL CAUSE But-for Causation (the result would not have occurred when it did CRIMINAL INTENT - MISTAKE OF FACT but for the D's conduct) Honest mistake as to attendant circ. that the government must ♦ Temporal element is key prove as an element of the crime Concurrent Sufficient Causes (CSC) (two Ds, acting independently, ♦ NOT an affirmative defense; goes to prima facie case commit two separate acts, each of which is sufficient to cause the result in question) ♦ Not accomplices; both can be but-for causes Acceleration Causation (non-fatal blow accelerates death; still a but-for cause) ♦ Only one D inflicts mortal bow MPC: temporal and CSC but-for causation ThemisBar.com 1.888.843.6476 [email protected] CRIMINAL LAW Themis Bar Review CAUSATION - PROXIMATE CAUSE Intent: Two levels of intent: Once but-for cause has been found, is it fair to hold D guilty? 1. Intent to assist principal Intervening Events: 2. Intent for underlying offense to occur: ♦ Act of God ◊ Intent for principal to commit actus reus ♦ Act of independent third party that aggravates or accelerates ◊ Intent for principal's acts to produce results harm, or unexpected manner of harm ◊ Intent as to attendant circumstances ♦ Act or omission of victim Factors in Assessing Liability: ♦ Intent re: actus reus ◊ Purpose, not just knowledge ♦ De minimis contribution (D's conduct insubstantial compared to intervening event) ◊CL and MPC ♦ Omissions (rarely to negative acts cut off responsibility for $ People v. Lauria (phone service used by prostitutes; owner knew affirmative act) of but had no real interest in prostitution) ♦ Intended consequences (if result wrongdoer intends comes about, ♦ Intent re: results even in a roundabout way, D is guilty; actual manner must match) ◊ If reckless or negligence required for underlying crime, MPC and ♦ Apparent safety (if victim reaches position of apparent safety, D majority require only recklessness or negligence from accomplice should no longer be liable) Minority requires purpose or knowledge ♦ Free, deliberate, and informed human intervention (after D's ◊ If purpose or knowledge for principal, then purpose or attack on victim, chain of causation won't go back to D) knowledge for accomplice ♦ Reasonable foreseeability (D can't escape liability if intervening act was reasonably foreseeable) ♦ Intent re: attendant circumstances MPC: asks whether result is "too remote or accidental" ◊ Little caselaw and MPC is silent Extent of Accomplice Liability PARTICIPANTS IN CRIME Liability extends to any crime that is the natural & probable Traditionally consequence of the crime the accomplice wanted to result ♦ Principal in the first degree ( "triggerman") ♦ MPC rejects that rule; only accomplice's own mental state ♦ Principal in the second degree (present and participates, e.g., lookout) ♦ Accessory before or after (not present, but gives assistance) HOMICIDE Homicide: Killing of a person without justification or excuse Modern ♦ Principal (person who commits the crime) Murder: Killing of a person with malice aforethought ♦ Accomplices (principals in the second degree, accessories before Manslaughter: Killing of a person w/o malice aforethought the fact ) Four Main Types of Murder: ◊ Principals and accomplices subject to full liability 1. Intent to kill (purposely or knowingly causing death) ♦ Accessories after the fact (lower liability) 2. Intent to cause great bodily injury (GBI) (wanting or knowing actions will cause GB/, and death results) ACCOMPLICE 3. Depraved heart ( acting with extremely reckless disregard for Conduct: assistance, aid, encouragement human life, and death results) ♦ Physical conduct (providing equipment, casing scene, signaling/ 4. Felony murder (acting with intent to commit a felony, and death results) lookout, getaway driver, blocking victim's escape) ♦ Psychological influence (counseling, soliciting, encouraging) Two Types of Manslaughter: ◊Mere presence, uncommunicated intent, acquiescence - not enough 1. Voluntary (intentional) (intent to kill developed in the heat of passion, during that heat, result of reasonable provocation) ◊ Presence + support - enough (low bar) 2. Involuntary (unintentional) (death results from act done w/o due ♦ Omission ( duty to act but fails w/ desire for crime to occur) caution; negligent homicide; misdemeanor manslaughter) ◊ Unsuccessful attempt to aid is not enough MPC Conduct: Murder (Ma/ice) Manslaughter (No Malice) ◊Soliciting principal ◊Aiding, agreeing to aid, or attempting to aid principal Voluntary intent to Kill Intent-to-kill murder manslaughter ◊ Having a legal duty but failing to take action ◊ Unsuccessful aid IS enough (CL minority, too) lntent-to-cause-GBI Involuntary manslaughter, No Intent to Kill murder, depravedheart negligent homicide, murder, felony murder misdemeanor manslaughter ThemisBar.com 1.888.843.6476 [email protected] CRIMINAL LAW Themis Bar Review MPC Homicide: Extreme Emotional Heat of Passion (CL) Disturbance (MPC) No degrees of murder No "malice aforethought" Must victim be Yes. If another kill ed, No l i n k betwee n source of provoker? Criminal homicide is the purposely, knowingly, recklessly, or must be accidental. EED and victim. negligently causing the death of another Can't claim provocation Cooling-off time EED can build over time Three types of MPC Homicide: after cooling off. 1.Murder 2. Manslaughter Proportionality Response intensity :: provocation intensity Not relevant 3. Negligent homicide UNINTENTIONAL KILLINGS FROM INTENTIONAL MURDER RISKY BEHAVIOR E.g., firing gun into crowd, driving drunk, Russian roulette, not First-Degree Murder - premeditated and deliberate OR statutory feeding child, unsecure dangerous animals, dropping heavy items criteria (e.g., lying in wait, police officer) off a tall building Second-Degree Murder - intentional, but not premeditated Second-Degree Murder (Depraved-Heart Murder) (death resulting Premeditation & Deliberation - heightened intent; planned from acting with extreme recklessness and manifesting extreme indifference to the value of human life) Premeditation Deliberation ♦ Wanton, arrogant, conscious disregard for life ♦ Objective components (e.g., risk of death); subjective Forethought Refl ection components (e.g., knew behavior put human life at risk) Involuntary Manslaughter (consciously disregards risk to human Does not req uire deliberation Req u ires premeditation life (but not extreme disregard) or gross negligence - gross deviation from standard of care) Takes time Takes time MPC: ♦ Extreme Reckless Murder (almost purpose or knowledge) Evidence: planning, motive, manner of killing, provocation, ♦ Manslaughter (ordinary recklessness) conduct/statements, ill will, additional blows, nature of wounds ♦ Negligent Homicide (gross deviation) MPC murder: homicide committed purposely or knowingly $ Midgett v. State (father who killed son in drunken rage showed FELONY MURDER no premeditation) Homicide caused during the commission or attempted commission of a felony $ State v. Forrest ( mercy killing of father constituted premeditation) ♦ No mens rea as to homicide; only felony needs to be intended ♦ MPC: commission of listed felonies creates a presumption VOLUNTARY MANSLAUGHTER supporting "extreme recklessness" murder charge Intentional killing done in the heat of passion, produced by adequate provocation, before D has had time to cool off; need causal ♦ Even without felony-murder statute, almost any felony-murder connection between provocation, passion, and fatal act charge could also be filed as intent-to-cause-GBI murder or Traditionally limited categories (e.g., finding spouse in bed with depraved-heart murder another); now anything that could cause reasonable person to act Limitations in an uncontrolled emotional state 1. Inherently dangerous felony (I DF) (only /OF give rise to ♦ Issue for the jury felony murder) ♦ Words are not enough ♦ Abstract approach: precedent or statutory elements (i.e., can the ♦ Reasonable person is average, sober, and "normal" mental crime be performed without substantial risk to life?) capacity; psychological issues not considered ♦ Facts of the case approach: was the manner in which D MPC: murder under extreme mental or emotional disturbance committed the felony inherently dangerous? ♦ MPC: a list of felonies (like abstract approach) but both D and Prosecutor can argue, based on the facts of the case, that felony-murder charge is not/is appropriate 2. Independent felony (no merger) (felony must be independent of the homicide; is the felony assaultive?) ThemisBar.com 1.888.843.6476 [email protected] CRIMINAL LAW Themis Bar Review ♦ Abstract approach: low-level homicides are always assaultive, MPC attempt: p u rpose or knowledge of target crime; broad non-assau ltive crimes can be used, assau ltive crimes can not be used ♦ No attem pted felony m u rder at CL (need specific i ntent) ♦ Pu rpose approach: facts of the case; what was the defendant's ♦ No attem pted depraved-heart m u rder (u n i ntentional by def.) pu rpose? If on ly to cause harm, not a predicate felony; if another ♦ Yes attem pted vol u ntary manslaughter pu rpose, can be used ♦ No attem pted i nvol u ntary manslaughter 3. In furtherance... (killing must be part of the felony itself) Attempt Liability ♦ Tem poral con nection: d u ring com m ission, attem pt, or escape Target Offense Possible? ♦ Causal con nection: but-for and proxi mate causation ◊ Agency ru le (majority) - responsible for deaths caused by I ntentional Crime Yes felon and accom p lices; not by pol ice officers Non-intentional Crime No ◊ Proximate cause ru le (m i nority) - responsible for any ki l l i ng by felon, accom plice, or anyone else if the act was set i n motion Attendant Circumstances by behavior of felon or accompl ices CL: knowledge as to attendant c i rcumstances req u i red Modern Rule 1: knowledge not req u i red; recklessness Modern Rule 2: knowledge not req u i red; proof of mens rea for ATTEMPT LIABILITY u nderlyi ng/target offense (M PC ru les) With intent to commit a su bstantive offense, D i ntentional ly performs act that brings D close to com mitting target offense Affirmative Defenses ♦ Com plete attem pt (D does everything necessary to commit Factual impossibility (not a defense at CL or M PC) target offense, but harm doesn't result) Abandonment (can D abandon after crossing attem pt l i ne? Depends on how close to com m itti ng target offense) ♦ I ncom plete attem pt (D has taken some, but not all, steps necessary for target offense) Conduct (Actus Reus) PROPERTY OFFENSES Basic Theft Crimes ♦ Com plete attem pt - same as for target offense Larceny (taking an carrying away the property of another w/o ♦ I ncom plete attem pt - more than just "mere preparation" consent and w/ intent to permanently deprive) ◊ Tem poral proxim ity b/w act and th reatened harm ♦ Vi rtually any movement = carryi ng away ◊ Seriousness of th reat (more serious = earl ier attem pt) ♦ Any personal property ◊ Strength of evidence of i ntent ♦ Specific i ntent to permanently deprive owner (borrowing Jurisdictional Actus Reus Tests doesn't cou nt, but destruction or conversion is not req.) 1. Last Act (D performed all acts believed necessary for target?) Embezzlement (theft of property given to hold temporarily) 2. I n d ispensable E l e ment (last i n d ispensable req. e l e m e nt?) ♦ Often seen in cases with cashiers or auto mechanics 3. Physical P roxi m ity (w/i n acto r's powe r to co m p l ete c ri m e Larceny by Trick (theft of propertygiven because D lies to get almost i m mediate ly?) owner's consent) 4. Dange rous P roxi mity (is D dange rously close to success?) Theft by False Pretenses (obtaining title to property-not just 5. U n e q u ivocal ity (D's co n d u ct u nam biguously man ifests possession-by fraudulent representation) cri m inal i nte nt) Burglary (breaking and entering a property with the intent to 6. P robable Desistance (what's the point of no return?) commit a theft or felony inside that property) 7. Abnormal Ste p (any step toward target beyon d where ♦ Actus reus is not the theft or the felony, but the breaking and o rd i nary person wo u l d go?) entering with intent; crime is against the property 8. M P C Su bstantial Ste p (pu rpose ly takes act that is a su bstantial ste p i n cou rse of co n d u ct c u l m i nati ng i n crime?) ♦ N ightti me m ight be an attendant circumstance Intent (Mens Rea) Robbery (not a property crime) (theft by force or threat of Two i ntents req u i red: force from the body of another) 1. D m u st intentional ly commit the acts = su bstantial ste p ♦ Cri me is against the person 2. D m ust act with specific intent to com m it the target cri me ♦ Rightfu l owner can sti l l be a robber if taki ng property by force or What did D intent as to result? th reat of force i People v. Gentry (husband pours gas on wife, who ignites by stove; attempted murder only if specific intent to kill her) Them is Bar.com 1.888.843.6476 i nfo@T h e m i s Bar.co m CRIMINAL LAW Themis Bar Review CONSPIRACY ♦ Abandonment or withdrawal: An agreement, express or implied, between two or more people to ◊CL - must communicate w/d to each coconspirator; no liability commit a criminal act or series of acts. for subsequent crimes (but not retroactive) ♦ Traditional CL: Nothing else required ◊MPC - must renounce criminal purpose and thwart success of ♦ Modern Law: Requires at least one overt act in furtherance enterprise to have a full defense ♦ MPC: Conspiracy if D agrees with others to (1) commit an offense, (2) attempt to commit an offense, (3) solicit another to RAPE AND STATUTORY RAPE commit an offense, or (4) aid another person in planning or Knowingly having sexual intercourse with another person without committing an offense that person's consent. ♦ Modern laws are gender neutral Consequences of Conspiracy ♦ Some form of marital immunity in minority of jurisdictions ♦ Pinkerton Doctrine (any member of conspiracy is responsible Actus Reus - Nonconsent for any reasonably foreseeable crime committed by any other ♦ Proof of force or threat of force AND/OR proof of resistance member in furtherance of that conspiracy) by victim ♦ D can be tried alone or jointly in venue of any overt act ♦ "No" ♦ Hearsay from conspirators can prove coconspirators' guilt ♦ Absence of affirmatively expressed consent ♦ Other forms (e.g., drugged, unconscious, mentally disabled) Proving Conspiracy ♦ Testimony of co-conspirators ♦ Rape by fraud? ◊ Fraud in the inducement: convincing someone to have sex by ♦ Circumstantial evidence telling lies (e.g., about willingness to marry) - NO RAPE Overt Act ◊Fraud in the facts: telling someone penetration is with a medical ♦ Any act; does not need to be illegal instrument - RAPE ♦ Liability for conspiracy is earlier on the timeline than attempt Mens Rea - D's knowledge of Nonconsent ♦ Overt act can be done by any conspirator and all are liable ♦ Recklessness (honest mistake about consen reasonable or unreasonable) ♦ MPC has dropped overt act requirement for serious offenses ♦ Negligence (honest and reasonable mistake) Intent - two specific intents required ♦ Strict liability (no mistake is permissible) 1. I ntent to agree ♦ D's will argue proof of nonconsent (actus reus) first, before 2. I ntent to successfu l ly commit the crime claiming mistake ♦ Purpose is required; can be inferred from circumstances Conspiracy with Undercover Officer? Statutory Rape (sexual intercourse with a person who is not old ♦ At CL - no two-person conspiracy with undercover officer enough to provide consent; negligence or strict liability) ♦ MPC - yes two-person conspiracy with undercover officer No Merger with Target Offense DEFENSES Strategies ♦ Can be convicted of conspiracy and target offense Procedural Bars (public policy limitations) (no ruling on the merits; ♦ Can be convicted of conspiracy even if acquitted of target case is dismissed or not filed) ♦ MPC: merger; can't be convicted of both ♦ Statute of limitations, immunity, defect in the pleading Failures of Prosecution's Proof (poking holes in the theory of Shapes of Conspiracy (Wheel v. Chain) proof on any element) Is there one big conspiracy or several small ones? ♦ Mistake of fact, mistake of law, proximate cause $ Kotteakos v. US ( one broker and 31 seekers of fraudulent loans; Defenses Specific to the Crime Charged ( after prosecution has whether there was one conspiracy with 32 participants or 31 closed its case-in-chief) conspiracies depends on awareness of other conspirators) ♦ Abandonment of an attempt crime $ Blumenthal v. US ( distillery owner, distributors, retailer or illegal Justification (O's acts were morally right) whiskey; D knows of other conspirator's involvement, also ♦ Self-defense, necessity responsible for their crimes. ) Excuses ( acknowledges crime, but D shouldn't be blamed) Defenses ♦ Infancy, insanity, duress, due process mistake of law, reasonable ♦ Impossibility is not a defense at CL or MPC reliance mistake of law ThemisBar.com 1.888.843.6476 i [email protected] CRIMINAL LAW Themis Bar Review SELF-DEFENSE AND DEFENSE OF OTHERS ♦ MPC: notable changes - no clean hands requirement (though D ♦ Reasonable amount of force could be prosecuted for recklessness or negligence); imminence ◊Can use deadly force to meet threat of deadly force, non-deadly is not required (but is considered); no distinction between natural force with non-deadly force and man-made forces ◊ Deadly force is intended or likely to cause death or GBI ♦ Not generally a defense to homicide ◊Must be proportionate i Regina v. Dudley and Stephens (lifeboat inhabitants drew ◊ MPC: deadly force may be used to prevent rape or kidnapping straws to kill and eat one to avoid starvation; court said no necessity defense; can't impose comparative value to lives) ♦ Reasonable and sincere belief necessary ◊ MPC: does not rule out choice of evils in homicide context ◊ Danger must be imminent (pressing or urgent) ◊ Non-aggressor (first aggressor-the one who "ratchets up" to deadly force-cannot later claim self-defense) EXCUSES ◊Words are not enough D acknowledges crime, but should not be blamed or punished ◊ MPC: first person who purposely provokes deadly force cannot because of circumstances Infancy (0 not old enough to understand actions) use self-defense Duress (0 acting under threat of GB!) ◊Withdrawal (retreat and communicate intent to withdraw) ♦ Threat must involve threat of serious violence (not economic or i US v. Peterson (0 who went after thief of wipers with a pistol embarrassment) by another person was not entitled to use deadly se/fdefense, even when victim had responded to pistol with lug wrench ) ♦ Use of force must be imminent (not future) ◊ Retreat - traditionally, retreat was necessary if possible ♦ Threat must be directed at D or someone close to D ♦ Slight majority: no duty to retreat ("Stand Your Ground" laws) ♦ Clean hands ♦ Minority and MPC: still a duty to retreat if safe; even in ♦ Severity (threatened force need not exceed crime committed) these jurisdictions "Castle Doctrine" says no duty to ◊ Not available as a defense to intentional homicide retreat if attacked in own home. ♦ Coerced party is acquitted; coercing party should be convicted of ◊Reasonableness is an objective standard the offense committed ♦ Unreasonable belief gives rise to voluntary manslaughter in ♦ MPC: "person of reasonable firmness" replaced CL elements; can minority of jurisdictions ("imperfect self-defense") raise in a homicide prosecution ♦ Defense of Others (right of intervenor is coextensive with Insanity Affirmative defense; D must produce evidence regarding mental victim's right to use force in selfdefense) condition (preponderance or clear and convincing evidence) ◊ Force must appear reasonably necessary (need not be correct) ♦ D must prove mental disease or defect and that because of ◊ MPC: no more force than third party would use; actually believe that defect: force is necessary; unreasonable use can give rise to ◊ M'Naughten: D did not know the nature and quality of the act reckless/negligent homicide AND/OR did not know it was wrong ◊ Irresistible Impulse: Lost power to choose b/w right and wrong OR actions were not subject to free will NECESSITY a.k.a. Choice of Evils Doctrine (D's acts, though illegal, were ◊ MPC: lacked substantial capacity to appreciate criminality of necessary to prevent an even greater harm from occurring; no the conduct or conform conduct to the law lawful alternatives) ♦ Clear and imminent danger ♦ Action will abate the danger (direct causal claim between FUNCTIONS OF PUNISHMENT action and harm) T he state's deliberate infliction of suffering an stigma on an individual who has done something wrong. ♦ No reasonable lawful alternatives Forms: fine, probation, community service, imprisonment, execution, ♦ Harm is less serious than the harm trying to prevent ancillary penalties ◊ Reasonably foreseeable harms Moral Justification (supported by good reason and proportional to ◊ Facts as they reasonably appear its purpose) ◊Harm avoided > harm caused (NOT equal to) Utilitarianism Retributivism ♦ Choice does not contradict legislative history ♦ Clean hands (D is not responsible for the situation) Justification lies in the useful pu rposes that punishment serves. Punish ment is justified because the offender deserves it. ThemisBar.com 1.888.843.6476 [email protected] CRIMINAL LAW Themis Bar Review Utilitarianism (usefu l conseq uences of p u n i s h m e nt) ♦ Deterrence (i ndivid ual and general) ♦ Rehabi l itation ♦ I n capacitation (p revention) ♦ Legiti m ization of the legal system ♦ Norm rei nforcement and exp ression ♦ Restitution and heal i ng fo r victims Retributivism (pu n itive) ♦ Symbol of hate that D should feel ♦ Treats wrongdoer with d ign ity as a fu l l h u man being responsible fo r choices ♦ Repayi ng debt to society Quantity and Type of Punishment Utilitarianism Retributivism Depends on how much punishment Depends on how bad act was, how is necessary to much harm was cause, and how bad deter/rehabilitate/incapacitate, etc. we think the actor is; can be mitigated by circu mstances Unpleasantness: ass u m ption is that p rison time wi l l be experienced as a form of pain (not always the case) Reasons Not to Punish ♦ Cost ♦ Cri m i nal education in prison ♦ Loss of ind ustry or parenting time ♦ Brutal izes offenders and society ♦ Fear of punish ment can affect i ntegrity of legal system ThemisBar.com 1.888.843.6476 [email protected]