UIM Criminal Law Outline Fall 2024 PDF
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2024
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This document is an outline for a criminal law course for the fall of 2024. It covers theories of punishment, elements of a crime, homicide, and various criminal offenses. The outline appears to be a detailed summary of the key topics and concepts for students in a criminal law course.
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reen= Mens rea G Orange=Actus Reus Pink= Attendant Circumstances Fall 2024 Criminal Law Outline THEORIESOFPUNISHMENT.................................................................................................................
reen= Mens rea G Orange=Actus Reus Pink= Attendant Circumstances Fall 2024 Criminal Law Outline THEORIESOFPUNISHMENT................................................................................................................2 RetributiveTheory...................................................................................................................................2 UtilitarianTheory....................................................................................................................................3 Mixed-Theory..........................................................................................................................................5 CRIMINALJUSTICESYSTEMANDDECISIONMAKING...............................................................5 RestorativeJustice...................................................................................................................................5 Abolition..................................................................................................................................................5 TransformativeJustice.............................................................................................................................6 DecisionMakingandDiscretion.............................................................................................................6 Prosecutors...............................................................................................................................................6 VictimParticipation.................................................................................................................................8 Juries........................................................................................................................................................9 JudgesandJudicialSentencing.............................................................................................................12 ELEMENTSOFACRIME......................................................................................................................13 ActusReus.............................................................................................................................................14 MensRea...............................................................................................................................................17 StrictLiability........................................................................................................................................20 MistakeofFact......................................................................................................................................22 Causation...............................................................................................................................................24 HOMICIDE................................................................................................................................................30 FlowChart.............................................................................................................................................30 Murder...................................................................................................................................................31 MitigatingMurdertoManslaughter......................................................................................................39 SEXUALASSULT(RAPE).......................................................................................................................45 Background............................................................................................................................................45 LegalReform.........................................................................................................................................45 PolicyArguments..................................................................................................................................49 CRIMINALATTEMPT............................................................................................................................50 Background............................................................................................................................................50 Elements................................................................................................................................................51 Defenses.................................................................................................................................................53 PolicyArguments:WhyPunishAttemptedCrimes?............................................................................54 AFFIRMATIVEDEFENSES....................................................................................................................54 Types......................................................................................................................................................54 SelfDefense...........................................................................................................................................54 InsanityDefense....................................................................................................................................57 1 THEORIES OF PUNISHMENT Retributivism Utilitarianism About wrongdoers and what they did About society and the greater good Looks backward @ past wrong Looks forward @ future benefit Punishment as an end in itself Punishment as a means to an end Assumes people have free will ssumes people make a rationale on A cost-benefit of their actions Retributive Theory A. Characteristics a. Punishment is only for those who deserve it and should be punished i. If it deters punishment, that is just a benefit b. Focused on the offender and theirmoral blameworthinessbased on the harm they caused c. Punishment is not to promote others to do god but simply to punish those who have done wrong d. Backward-looking because emphasizes past behavior e. Proportionality B. Types a. Positive Retributive- punishment should be = to the crime comitted b. Negative Retributive- the serverity of the crime sets the upper limit of punishment but it does not need to be that high C. Benefits a. People don’t/shouldn’t get more punishment than they deserve D. Critiques a. Unnecessarily punitive: sees punishment as an end in itself b. Inefficient: doesn’t have any utilitarian or deterrence effect c. Thin line between retribution and vengeance (and vengeance shouldn’t be manifested by the state) d. Difficult to define moral blameworthiness E. Assumptions a. Free will F. Ex:Regina v. Dudley and Stephens (Eng. 1884): Dudley and Stephens,lost at seawithout food or water, decided to kill a young and weakened Parker and eat him in order to live. 2 udley killed Parker. Jury found Dudley and Stephens guilty of felony and murder; Queen D commuted their sentence to 6 months of imprisonment rather than death penalty. a. Retributivearguments: they took a life and deserve to be punished because there is a standard of morality b. Retributivecounterarguments: they were desperateand they weren’t actually morally culpable Utilitarian Theory A. Characteristics a. Maximizes societal wellbeing b. Forward-looking: punishment is justified by its future benefit c. Sometimes the end justifies the means (Punishment) B. Three benefits a. Deterrence i. Specific: deterring this specific offender from futurewrongdoing ii. General: serving as an example to deter other would-beoffenders from future wrongdoing b. Incapacitation: preventing offender from being ableto commit any future wrongdoing for a period of time i. Physically restricting someone so they can’t do it again 1. This is what the prison system does successfully achieve but at a very high financial cost ii. Policy arguments: 1. Benefits (DiIulio): a. Allows offenders to get drug treatment and education b. Provides time and space for offenders to “learn their lesson” 2. Critiques: a. Expensive b. Hardens criminals, making recidivism more likely c. Doesn’t make sense for low-level, first-time drug offenders d. Bi-paritsan agreement that cost of incarceration outway their benefits i. Overlooks the fact that organized crime groups will just replace on member with a new 1. Also that people are less likely to commit such crimes when older e. Rational actor? Does everyone calculate their decisions? f. Disproportionate punishment g. People don’t usually consult statutes and case law before doing a crime h. Somethings are criminalized that people do not know are criminalized i. Bad incentives? 3 i. Die or go to prison? Most would choose prison. j. Income effect-> more expensive = more crime c. Rehabilitation i. Help the offender to be a contributing member of society so they then will not need to steal again ii. Forsociety: makes criminals safe to return to thestreets iii. Forindividual: allows criminals to live successful,better lives iv. Policy arguments: 1. Benefits: reduces offenses by addressing underlying issues 2. Critiques: a. Wastes resources b. Paternalistic/coercive c. Leads to longer confinement d. Ineffective v. Theories 1. Kant a. Punishment is not to promote others to do god but simply to punish those who have done wrong b. What you do to another person is what you do to yourself i. If you kill you must be killed (but humainly) 2. Moore a. Retributive punishes only because the punisher deserves it 3. Danielle Sered a. Retribution is more complicated when it is taken into account that the people being punished are the one’s that society failed to protect i. Most people who do violence are victims of violence C. General critiques a. Might encourage longer sentences by unmooring punishment from moral blame b. Doesn’t work for crimes of passion or irrational behaviors D. Assumptions a. Offender and societyknow the rulesand the penaltiesfor breaking the rules b. Offender thinks the cost of punishment outweighs the benefit of the crime c. Offender must actuallyengage in the cost-benefitanalysis d. Rationality E. Ex:Regina v. Dudley and Stephens(Eng. 1884): Dudleyand Stephens,lost at seawithout food or water, decided to kill a young and weakened Parker and eat him in order to live. Dudley killed Parker. Jury found Dudley and Stephens guilty of felony and murder; Queen commuted their sentence to 6 months of imprisonment rather than death penalty. a. Utilitarianarguments: they discussed and calculatedthe decision; general deterrence to encourage other shipwrecked people not to do this b. Utilitariancounterarguments: more lives saved is better than fewer lives saved; general deterrence won’t work because people will act out of desperation 4 Mixed-Theory A. H.L.A. Hart proposed a solution to balance out the ultiliarian theory and retribution a. CalledClassic Mix theory i. Need to distinguish bw the aim of punishment and the limits on its permissible use B. Exp:State v. Chaney(Alaska, 1970): Defendant robbedan raped a woman. However the trial judge convitcted with the minimum sentence and told the defendant he was sorry that he could not stay in the military bc it would be better for everyone if he was there instead of jail and that he would see no problem with the defendant being paroled on his very first day if the parole board was ok with that. CRIMINAL JUSTICE SYSTEM AND DECISION MAKING Criminal System:Focused on punishing crime through utilitarian and retribution theory Restorative Justice A. Centered around victim needs a. a community based approached to resolving harm i. Figure out how to build support for person harmed, context on how they became harmed, and how that can be changed so it does not happen again B. Accountability focused C. Crime is a violation of people and relationship D. Violations create obligations E. Justice involves all community members involved trying to make a difference F. Usually used in minor offence cases a. Not for perpetrators who do not own up to crimes or reapeat offenders G. Also very costly and resource heavy a. Usually only found in wealthy areas H. Transformative justice a. Focuses on drivers of crime i. Poverty, failing schools, discrimination I. Criminal Justice in Contra focuses on a. Offender’s getting what they deserve, punishment, crime, guilt, punishment Abolition A. Prisons a. Moratorium b. Decraceration 5 c. Exarceration . Police B a. Defunding b. Reform c. Abolish Transformative Justice A. Fixing the overall social system that gives rise to violence Decision Making and Discretion Legal Actors During Trials Pretrial Trial Bench Trial Post Trial P olice/federal law P rosecutors J udge makes the J udges: enforcement Defense decision (NO sentencing agencies attorneys JURY) Prison/ jail Prosecutors: Judges officers charging & Juries: Parole and plea-bargaining determining Probation officers Defense Attorneys liability Judges Trends in Discretion . Prosecutorsas “de facto adjudicators” havemore discretionthan ever A B. Jurieshavedecreasing discretiondue to fewer jurytrials, more strict liability crimes, and efforts to stamp out nullification C. Judgeshavecurtaileddiscretiondue to guidelines(both suggested and mandatory, including mandatory minimums) and appellate review Prosecutors A. Chargingdecisions a. Rationales i. Regulated by the ABA ii. Prosecutors typically only charge those who they have evidence to show guilty BARD, since that is the standard they will face at trial (note: bar to bring a charge is really only probable cause) iii. Can make charge proportional to harm caused – allows for individualized treatment iv. Can reward a defendant’s willingness to cooperate v. Can decline to charge if punishment would be disproportionate to crime vi. Makes efficient use of resources in face of constraints b. Critiques 6 i. Racist/biased ii. Incentive to be harsh . Why they maynotpress charges B a. Resource constraints b. The law is flawed c. Future political campaign motives i. Many positions are elected d. Because they don’t want to confuse the jury i. To many charges can get confusing 1. Usually they are more inclined to charged more to incite people to agree to a plea deal C. Over-Criminalization/ Under-Criminalization a. Biases have pushed overcharging on people of color and undercharging white people and police Plea Bargaining A. Reason whydefendants would choose to plea a. Protect someone else b. Do not want to go before a public trial c. Want a shorter sentence d. Want to avoid a sentence all together e. Shorter range of sentencing options f. Certain pleas that you state you plead guilty but it can’t be used against you in a further civil case (Alpha plea) g. Education barriers h. Psychological issues i. Pressured B. Why defense might tell client to take plea a. Cost b. Reputation in front of judge C. Involuntary Pleas a. If you arethreatenedwith things not related to futurepunishment b. Misrepresentation c. Inappropriateexchange (monetary bribe) d. Plea to avoid death sentence is not involuntary plea D. Rationales a. Players know therange of acceptable resultsso theybargain for something within that range preemptively (Specter) b. Allows for moreintermediate results(whereas a jurycan only choose between guilty of the crime of the highest degree or not guilty) 7 c. H owever, prosecutors and defenders can bemore biasedthan juries/judges, who are restrained by courtroom procedures d. “Shadow of trial:” same result is reached as would be reached in trial e. Can lead to more lenient sentences f. Gives the defendant a choice in the matter g. Gives parties the opportunity to come to right decision as some times juries and trials can go very unexpectedly E. Critiques a. Undiagnosed mental health issues may affect defendant's ability to make an informed choice about a plea b. Bargaining power is very different between defendant and the State - coerced pleas c. Can take away the voice of the community (jurors) d. State depends on plea bargaining because if everyone opted for a full jury trial the system couldn't support it e. Forgos the discovery of truth from the trial process f. Prosecutor can be biased and discriminate a specific group F. JudgesRole a. Judges are not bound to the charges agreed on in the plea deal i. They are just a recommendation (not common) b. State judges cannot initiate plea discussions but can later enter if asked too with both parties c. Federal judges can neither initiate nor get involved in plea negotiations d. Certain offenses have mandatory minimum sentences G. Generalpolicyarguments: a. In favor: i. Prosecutors are democratically accountable ii. Prosecutors can match public opinion b. Against i. Racist/biased ii. Incentive to be harsh H. Exp:Brodenkircher v Hayes(SCOTUS, 1978): Defendant,who had to prior felonies, who was charged with forging a check, was told by the prosecutor that if he did plead guilty he would be charged with 5 years, if not he would be charged with life in prison, due to the prior felonies. He went to trial and was found guilty. Judges believed that prosecutors discretion in charging should not be limited. Overall the right to plea is up to the defendant and that does not involve racism. (manystates have 3 strike rules) Victim Participation A. Victims have the right to be kept informed about the course of the investigation and to discuss the case with the prosecutor a. Can testify at trial b. Can deliver victim impact statement B. Private parties do not have a right to determinewhether or not a case is prosecuted C. Reasoning: 8 a. P rivate concerns could overtake public concerns, and goal of criminal justice system is to enforce societal values as a whole b. We need to respect the autonomy of prosecutors, who have more information about the case than do private citizens c. Victims can use the civil legal system . Counterargument: they were the ones affected, so they should be able to determine the course D of the investigation/prosecution Juries A. Juryright a. General rule: 12 jurors i. Smallest possible: 6 b. Verdicts must be unanimous in both federal and state court i. 2020 Fed government stopped allowing the nonunanimous 10-2 rule in Lousiana (Ramos v. Louisiana 2020) c. If there is a mistrial the defendant can be charged again i. This is up to the prosecutor d. Defendants have a jury right forserious, non-pettyoffenses(D uncan v. Louisiana) i. Non-petty means imprisonment for more than six months is authorized (Baldwin v. New York) e. Defendant can waive right to jury trial if prosecutor and trial judge consent f. Ex:Duncan v. Louisiana (U.S. 1968): Duncan (who isBlack) convicted of simple battery in Louisiana, punishable by 2 years’ imprisonment and $300 fine after touching Landry (who is white) on the elbow. Duncan wasdenied jury trial. Court found it was fundamentally unfair and therefore violative of 14th Amd. due process to deny Duncan a jury trial. Emphasized the importance of jury trial as a safeguard against individual corruption or bias. B. Voir Dire a. Process of selecting the jury b. For Cause challenges or peremptory challenge i. For cause: is for a reason (statement, mental issues) ii. Peremptory Challenge: needs no reason (cannot be based on race of gender) a. AlthoughBatsonhelps by ruling thatexclusion can’t be based on race or gender, the problem obviously stillexists b. Even “for cause” strikes can be biased c. In Fed court judge runs voir dire process and in states the prosecutor runs it C. Obstacles of Jury Diversity a. How people are called (usually via voter registration) b. Administrative errors (ex. of Black people being deleted from jury roll through removing their zipcodes) c. “Jury of your peers” does not necessarily mean representative of the community i. Low-income people tend to be excused because they can’t afford to participate d. Peremptory strikes 9 D. Death-Qualified Jury a. In death penalty juries decide guilty or not guilty and sentence to life in prison or they can choose the death penalty b. Cannot be categorically opposed to capital punishment-i.e., must be willing to consider the death penalty c. But must also willing to consider life punishment as possible penalty, instead of death E. Advantagesof the jury (Kalven&Zeisel) a. Civic experience: educates jurors and allows for community participation in the justice system b. Popular participation makes tolerable certain otherwise too stringent decisions c. Diverts criticism away from judge d. Guarantees integrity e. Brings common sense and experience to the courtroom f. Can represent community norms g. 12 heads are better than 1 h. Ensures we're governed by the spirit, not letter of the law F. Disadvantagesof the jury (Kalven&Zeisel) a. Jury duty makes citizens lose faith in the government (but some think that it's a ritual that restores faith in civics) b. Expensive c. Unfair on those who have to serve: takes a mental toll d. Less trained in law than judges - might be more difficult for them to understand and apply the law e. Jurors might be influenced by impermissible factors (ex. inadmissible evidence, race/gender/class/etc) f. Jury might not follow the law, creating uneven administration of justice G. Jurynullification a. Nullification:Jury can disregard the law and makedecisions based on their beliefs/fairness i. This is not a right that the defendant has or jury has ii. This is a power not a right b. Judges can release a juror if they find out they would nullify prior to decision i. Would do this because acquittal can not be reversed c. Courts do not let jurors be told about this d. Majorityrule: no right to a jury instruction on the power to nullify (United States v. Dougherty) 1. Only 3 states let jurors be the judge of both fact and law: GA, IN, MD ii. Common viewof nullification: jury nullification isan unfortunate but unavoidable power. It should not be advertised, and, to the extent constitutionally permissible, it should be limited (State v. Ragland) 1. “Jury nullification is an unfortunate but unavoidable power {that} should be limited” 10 iii. J ury Oath (CA exp):Do you agree to render verdict “according only to the evidence to you and to the instructions of the court?” iv. Judge can say noif jury asks whether it can acquit(or convict on a lesser crime) when the charged crime has been proven (Fernandez) 1. Cannot dismiss juror if there is some/reasonable possibility that their position is based on legal reasons (Thomas) 2. But cannot coerce verdict (Smith-Parker) v. The Constitution permitsremovalof a juror wheneverthere is unambiguous evidence of a juror's refusal to follow the judge's instructions (United States v. Thomas) e. Argumentsfornullification:Democratizes criminallaw, helps defendants i. "Process" view of jury - political role of providing feedback to the three branches of government (Nancy Marder) ii. “Moral responsibility" to nullify in some cases against Black defendants (Paul Butler) f. Argumentsagainstnullification:Undermines rule oflaw, discriminates against victims i. This isn't the right tool for racial equality/feedback (Randall Kennedy) ii. "Discriminatory acquittals" violate equal protection rights of victims (Tania Tetlow) iii. Should only occur in exceptional cases, hence the rule against instructing jurors of its use iv. Power is unreviewable since it usually results in an acquittal (which can’t be appealed) v. Can also result in convictions (ex. jury is racist so convicts an innocent Black person) g. Ex:United States v. Dougherty (D.C. Cir. 1972): Defendantsprotested Vietnam Warby entering and destroying property at Dow Chemical,who was manufacturing Agent Orange and napalm. Judge refused to instruct jury of its right to nullify and refused to let defendants argue that issue to the jury. Court held thatjury instruction shouldn’t include nullificationbecause (1) it’s aslippery slope leading to anarchy, (2) it would be too overwhelming for jurors to take on an even greater responsibility, and (3) since nullification is an old tradition, jurors probably already know about it. Concurrence/dissentargued that not instructing jurors about nullification power made it only usable by educated people who are likely to know about it. H. Jury Sentencing a. Determine sentences in i. Death penalty cases ii. Non-capital criminal cases in six states iii. Bifurcated proceedings b. Asked to pick a sentence within the statutory range i. They usually give worse sentences than judges as they do not have the guide of past sentencings of others and no guidelines ii. This is used to induce guilty pleas c. Judges also dont usually tell jury of the mandatory minimums defendants face 11 d. A bsent unusual circumstances, it is an abuse of discretion for a trial judge to inform the jury of the sentencing consequences of its verdict(United States v. Polizza) Judges and Judicial Sentencing A. Judges originally had a lot of free rain on sentencing, but after opposition from both parties, guidelines for sentencing were formed B. Constraintson trial judge’s power a. Guidelines by Sentencing Commission b. Attorney General Memos c. Prosecutor’s charging power d. Legislatures make mandatory sentencing minimums and statutory ranges e. The public with judicial elections C. Mandatory minimums a. Enacted by legislature b. Sets a minimum threshold for sentencing c. Goal was to eliminate race-based discrimination, but mandatory minimums have worsened disparities d. Doesn’t constrain prosecutors, who can use this in plea bargaining e. Majority are for drug charges f. Sentencing exceptions i. Statutory safety valve (legislators made) 1. Only if the defendant does not have a substantial criminal history 2. If they did not injur someone else 3. If they were not the organizer of the criminal offense 4. If they cooperated with the government ii. Substantial assistance 1. If the defendant significantly helped with the investigation g. Dissporotianetly effects black defendants i. Who are less likely to get granted exceptions h. 2010 Obama signed the Fair Sentencing Act D. Statutory Ranges a. limits on sentences that specify minimum and maximum sentences b. Enacted by legislatures c. Mandatory for judges E. Sentencing guidelines a. Put forth by United States Sentencing Commission i. Ongoing task where experts look at empirical data to set sentencing rules ii. Independent commission to insulate members from political influence iii. To avoid infringing upon the jury right, federal guidelines are "advisory" (United States v. Booker) b. Based on combinations of offense and offender characteristics, with objective factors (amount of money, weight of drugs, etc.) weighted higher than subjective factors (motives, family circumstances, etc.) i. 2 Key Factors 12 1. Seriousness of offense(vertical) anddefendant history(horizontal) a. 258 possible verdicts b. There adjustments such as victim related judgmenets which allows the judge to increase the sentence and vice versa if the defendant’s role was minor c. Set a range of punishments, including minimums and maximums d. Objectives i. Abandoning open-ended rehabilitative model of punishment ii. Bringing more rule of law, notice, and due process to sentencing by making the guidelines more clear, legally-binding, and enforceable iii. Addressing unwanted disparities by reducing discretion and making sentencing more formulaic and mechanical iv. Sentencing should be more uniform, predictable, transparent, and reviewable e. Problemsof guidelines i. Bakes in discrepancies - if people are more likely to be pulled over and get smaller offenses, then those offenses will count against them later if they are accused of an additional offense ii. If judges sentence within guidelines, they are largely free of appellate review iii. Can lead to unfair sentences due to the Prosecutor’s thoughts iv. Is very mechanical v. Factors are limited to things that are quantifiable so soft factors are not being taken into account as much vi. Judges are sometimes looking at questions of facts from the guidelines and that is the jury’s job F. Appellate review a. Not a strong constraint if judge is within the statutory range b. Appellate court can set aside the decision of the sentencing judge only when the sentence is "unreasonable” (United States v. Booker) G. Bench Trial vs. Juries argument a. Judges can have bias and or be to harsh with sentencing b. Judges can be focused to much on the law sometimes to much where the jury can be more open (fresh perspective) c. Jurors bring community ideals to the court room and making decisions based in the publics interest H. Other sources of judicial discretion: a. Pretrial (bail, motions, plea) b. Voir dire (for cause, preemptory, Batson challenges) c. Trial (rules of evidence and procedures) d. Jury charge (legal instructions and verdict format) e. Acquittal (MJOA/JNOV) ELEMENTS OF A CRIME 13 Attendant Circumstances A. Facts surrounding an act that are relevant to determining whether it is criminal a. Exp: Statute on Bigamy i. Every person having a a husband or wife living, who marries any other person is guilty of bigamy. 1. Marrying is the conduct (AR (actus reus) 2. Crime: Is marrying another person while already being married 3. AC: Prosecutor has to prove that the person has a living wife or husband b. Statue on Burgluary i. Breaking and entering of a dwelling place of another person in the nighttime 1. AR: Breaking and entering 2. AC: Prosecutor has to prove that the person did it in a residence of another person at night time Actus Reus Aculpable act A. Types of crime a. DUI: Driving a vehicle while under the influence of drugs/alchool i. Conduct crime ii. AR= prohibited conduct b. Homicide: causing the death of another person i. Result crime ii. AR= prohibitied result c. Prosecution must prove each element upon a reasonable doubt B. Voluntary Act Requirements a. In order for something to be a crime it has to bevoluntary and prohibited by law i. Also could be omission if there is legal duty to act b. Result c. Causation of harm d. MPC§2.01 i. 1)A person is not guilty of an offense unless his liability is based on conduct that includes a voluntary act or the omission to perform an act of which he is physically capable ii. 2)The following are not voluntary acts within the meaning of this Section: 1. A reflex or convulsion 2. A bodily movement during unconsciousness or sleep 3. Conduct during hypnosis or resulting from hypnotic suggestion 4. A bodily movement that otherwise is not a product of the effort or determination of the actor, either conscious or habitual 14 iii. 2.01-1-2 (Voluntary Act) e. Voulntary and involuntary: are intentional and unintentional C. Rationalefor requirement a. We only want to criminalize actual conduct, not thoughts b. Conduct must be voluntary so as to not undermine rationales for punishment i. Won’t deter if they’re unlikely to do it again ii. Nothing to rehabilitate iii. No moral blameworthiness iv. Incapacitation might make more sense D. Omissionsonly lead to liability if there’s a legalduty to act a. American Bystander Rule: failure to act isn’t a crimeunless the law specifically imposes a duty of care on the defendant i. Bystander Effect 1. Psychology proves people are less likely to give assistance when other people are around a. Pluralistic ignorance i. “Nobody else seems to think anything is wrong” b. Diffusion of responsibility i. “Thirty people must have called the police by now” ii. Policy arguments: imposing duty to rescue rule 1. In favor a. MitigatesBystander Effect: when people witness an offense, they don’t necessarily do anything about it, especially if there are others around i. Potential reasons for bystander effect: 1. Fear of harm 2. Fear of legal liability 3. Fear of police/the legal system 4. Diffusion of responsibility 5. Pluralistic Ignorance: people look to one another for cues and when others don't react, you think that you might just be misinterpreting what's happening ii. Ex:Genovese case: woman was stabbed in the street with over 30 bystanders, none of whom called the police. The attacker fled and came back when they realized that the victim was still alone, then killed her. 2. Against a. Slippery slope: increased government intrusion on individual liberties b. Can be dangerous to act i. Fear of retaliation ii. Fear of specific harm (ex. someone is drowning but you can’t swim) 15 c. P rotects victims’ privacy d. Promotes vigilantism, which can have discriminatory consequences e. Can be very broad/affect many people f. Might be unduly burdensome for people who live in higher crime neighborhoods and increase criminalization in those neighborhoods g. Could require subjective assessments (ex. mental health) b. Legal duty can be imposed by: i. Statute 1. “Duty to Rescue” laws a. Only 6 states enforce imposed criminal liability for not acting b. Minor offenses with low penalties c. Prosecution is rare d. Other states have civil "good Samaritan" laws, which gives protection against civil liability for helping and are more common than duty to rescue laws ii. Status relationship 1. Family members (but mostly parents to minor children and spouses to each other) 2. De facto family members (ex. stepparents) a. People v. Carroll (NY 1999)held thatstepmotherhadduty to protect visiting child b. Live in partner do not have these duty i. State v. Miranda (CT 2005)held thatlive-in boyfrienddidn't have duty to protect child - concern about slippery slope, so drew line at legal relationship c. Lover’s dont have this duty i. People v. Beardsley (1907)held that a man who let hismistressoverdose and die had no legal duty toward her as his mistress d. Mother still has duty even if facing abuse i. Commonwealth v. Cardwell (PA 1986):if a mother and child are both victims of anabuser, a mother still owes a special duty to protect her child iii. Duty created by another area of law (contracts, torts) 1. Hypo: A accidentally (and without fault) bumps B intothe water, and then both A and bystander C watch B drown - A would have duty to intervene, but C would only have a duty if she lived in a duty to rescue state a. Intorts, a person who creates a continuing risk of physical harm to another "is under a duty to take reasonable care to 16 p revent the risk from taking effect" even if the actor has "no reason to believe that [the act] will involve such a risk" 2. Hypo:A negligently bumps B in the water and watcheshim drown - A has now exposed himself to criminal liability because this is anact and not an omission(based on mens era of criminalnegligence) iv. Assuming care and secluding v. Cases: 1. Ex:Jones v. United States (D.C. Cir. 1962): Jonesfound guilty of involuntary manslaughter when his failure to take care of a 10-month-old baby caused its death. Court remanded to determine whether there was a duty of care –not liable unlesshe had a duty. c. Policy arguments: imposing liability for omissions i. In favor 1. Supporting cooperation between members of the community 2. Detering others for omitting in the future 3. Forces people to think of alternative ways to provide assistance to those in distress 4. Can be a form of retribution for those who fail to provide assistance 5. Deter criminals who committed the crim from doing it again ii. Against 1. Might cause people who are not able to physicallyassist to feel required to assist 2. Over-criminalization (to many people to prosecute) 3. Might deter people from forming relationships with each other 4. Retribution against people who technically did not do anything legally wrong 5. If you live in a high crime neighborhood it would put a disproportionate burden on you 6. Can impede on the victims privacy (such as domestic violence) 7. Can bring harm to the bystander 8. Bystanders can be incompetent and bring more harm to the victim 9. A law that is potentially against human nature Mens Rea A. Twomeanings a. Culpability/general guilty mind (broad) b. Elemental/specific mental state (specific) B. Rationale a. Retributivist: since people get punished because they are blameworthy, it doesn’t make sense to punish if they don’t have a guilty mind/weren’t blameworthy b. Utilitarian: if the actor didn’t mean for the harm to occur, then there’s no reason to deter, rehabilitate, or incapacitate them C. Steps a. 1. Identify the material elements of the crime 17 b. 2 . Determine if the statute makes clear the mens rea required with respect to each element i. If it does make it clear, apply that mens rea ii. If not, apply the MPC default rule: purposely, knowingly, or recklessly (usually automaticallyrecklessly) (MPC §2.02(3)) a. *need to make argument if inputting a higher mensrea than recklessly if not listed 2. Should be applied to all material elements of the offense (MPC §2.02(4)) a. Ex:United States v. X-Citement Video (U.S. 1994):child porn statuteincluded “knowingly” mens rea term in oneclause, but not in clause about attendant circumstances (depiction of child), so question of whether the offender had to know the person in porn is a child. Court held that“knowingly” traveled to all elements, including attendant circumstances. 3. Hierarchy is purposely, knowingly, recklessly, then negligently (MPC §2.02(5)) – if you satisfy purposely, you satisfyeverything underneath iii. Ex:Regina v. Cunningham (Eng. 1975): Cunninghamstolegas meterfrom Wade’s building to sell because he was short on cash, but he didn’t turn off the gas, which then partially asphyxiated Wade. Statute’s mens rea was “m aliciously” and court found that it meantpurposely,knowingly, or recklessly, quashing Cunningham’s conviction becausejury instruction defined “maliciously” as “something wicked.” 1. Significance: Definesmalicefor criminal statutes a. The term malice in a criminal statute does not mean general wickedness; it means either(1) an actual intentionto do the particular kind of harm that was in fact done or (2) reckless disregard of a foreseeable risk that the harm would result. 2. Section 23: Whosoever shallunlawfullyandmaliciouslyadminister or cause to be administered to or taken byany otherperson any poison or other destructive or noxious thing,so astherby toendager the life of such person, or so as thereby to inflict upon such person any grievous bodily harm,shall be guilty a. X =Actus reus b. X=Attendant Circumstances c. X=Mens Rea D. Hierarchy a. 4 manageable categories with simplified definitions 1. Purposefully:They are aware of the outcome and wantit to happen 2. Knowingly:They know there is a chance of an outcomeand even though it is not their intent for the outcome to happen they still do it a. Intent(used incommon law)= Purposeful or knowingly 3. Recklessly:Conscious disregard of substantial andunjustifiable risk 18 a. C onsciously disregard calls for internal awareness→ subjective i. Subjective risk of recklessness (know something possess high risk if done by someone not highly skilled but wronguflly believes they are highly skilled enough) b. Gross deviation calls for external comparison→ objective c. Would a reasonable person do what the defendant did i. Exp: State v Muniz 2011 shot kid in head at bbq while practice shooting at chair even though he was warned not to and he was convicted of recklessly endangering a minor 4. Negligently: No level of consciousness a. not paying attention when a reasonable person would have i. Consious awarness separates recklessness and negligence . Defining mens rea terms (MPC §2.02(2)) E a. Purposely(conscious object): "A person acts purposelywith respect to a material element of an offense when: i. (i) if the element involves thenature of his conductor a result thereof, it is hisconscious objectto engage in conduct of thatnature or to cause such a result; and ii. (ii) if the element involves theattendant circumstances,he is aware of the existence of such circumstances or he believes or hopes that they exist." b. Knowingly(practically certain): "A person acts knowinglywith respect to a material element of an offense when: i. (i) if the element involves thenature of his conductor the attendant circumstances, he isawarethat his conduct is ofthat nature or that such circumstances exist; and ii. (ii) if the element involves aresultof his conduct,he is aware that it is practically certainthat his conduct will cause sucha result." iii. To differentiate betweenpurposefully and knowingly,think about what the goal of the action is: 1. Ex: shooting a vase a. If your goal is to destroy the vase, then it's purposeful b. If your goal is target practice and you choose the vase to fire at, then it's knowing c. Recklessly(substantial and unjustifiable risk): "A person acts recklessly with respect to a material element of an offense when heconsciously disregardsa substantial and unjustifiable riskthat the materialelement exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and purpose of the actor’s conduct and the circumstances known to him, its disregard involves agross deviation from the standard of conductthat a law-abiding person would observe in the actor’s situation." i. Subjective: "consciously disregard" calls for internalawareness 19 ii. O bjective: "gross deviation" calls for external comparison iii. Comparison with knowingly: knowingly requires "practicallycertain" vs. standard for recklessly is lower d. Negligently(should be aware of): "A person acts negligentlywith respect to a material element of an offense when heshould be awareof a substantial and unjustifiable riskthat the material element existsor will result from his conduct. The risk must be of such a nature and degree that the actor’s failure to perceive it, considering the nature and purpose of his conduct and the circumstances known to him, involves agross deviation from the standardof carethat a reasonable person would observe in the actor’s situation." i. Comparison with recklessly: recklessly calls for bothsubjective and objective disregard of the risk, whereas negligently calls only for objective disregard of the risk F. Application ofMPC § 2.02Decoded a. If no MR listed for any element? i. Reckless to all elements (unless contrary purpose appears) b. If MR of Knowing listed for AR, but no MR listed for AC’s? i. Knowing to all elements (unless contrary purpose appears) c. What to apply for AC without Mr, if MR’s for two other elements are: i. Reckless & Negligent= go with Reckless ii. Reckless & Knowing/ Purposeful = Assume Reckless iii. Knowing & Purposeful= Debatable d. (6) If you conditionally intend to commit that crime “if” a certain situation occurs, that conditional intent is enough to establish criminal purpose (as long as the condition does not negate the potential harm) e. (7) MR of knowing can be satisfied with awareness of high probability (unless D actually did not believe fact existed) f. (8)MR of “willful” is generally satisfied by proving knowing (unless statute indicated that more is needed) g. (9) Ignorance of the law is not a defense (unless the statute says it is) h. (10) Grade of an offense will be base on lowest MR proven BARD G. Rationale on Mens Rea a. The utilitarianview: would be if you are trying toeffect change in future crime then you need to understand why people are doing the crime b. Retibutist: Would say they knew what they were doing therefore they should be punished for their crime Strict Liability A. General common law rule: no criminal culpability without mens rea a. Exceptions i. Morally-tinged crimes for which courts deny mistake-of-fact defenses (e.g. statutory rape) ii. Guidlines for Public Welfare Offenses vs. Old Common Law 20 1. Nature of offense a. New jurisdiction offensesvs. Conventional commonlaw crime 2. Potential Harm a. Societal/widespreadvs individual/narrower 3. Penalty & Stigma a. Lowv. High 4. Proving MR a. Hardervs easier iii. Public welfare offenses:when no MR is required at all 1. Goal is to preserve the public good (malum prohibitum) rather than punish something immoral (malum in se) 2. Usually “new” offenses rather than traditional common law crimes 3. Societal/widespread harm rather than individual/narrow harm 4. Usually comes with a lower penalty and stigma 5. Often would be difficult to prove mens rea 6. Regulates an inherently dangerous activity 7. Ex:United States v. Balint (U.S. 1922):Defendantsindicted for selling opioids. Court held that defendants didn’tneed to know they were selling drugs because statute was designed toprotect innocent buyers from the drugsand because sellers hadmanyopportunities to figure out their actions were illegal. a. *MPC § 2.05would not agree because it was punishableup to 5 years (imprisonment cannot be invovleved only civil penalties) 8. Ex:United States v. Dotterweich (U.S. 1943):Pharmaceutical company convicted ofshipping misbranded products.Court held that this was a public welfare offense and imposed strict liability since theinjury was the same regardless of the intentionof the sellerand because theburden should be on the actor in the positionto cause social harmand become aware of/rectify that situation. . SCOTUS is unwilling to assume that the legislature meant to impose strict liability merely B because the statute didn’t include a mens rea element a. Ex:Morissette v. United States (U.S. 1952): Morissettetookspent bomb castings from Air Force practice area and argued that he didn’t know that the property wasn’t abandoned. Court found that the prosecution needed to prove mens rea of “k nowingly” since this isn’t a public welfare crime andCongress needs to be explicit if they want to create a strict liability crime. C. MPClimits strict liability a. MPC § 2.05 i. When Culpability Requirements Are Inapplicable to Violations and to Offenses Defined by Other Statutes; Effect of Absolute Liability in Reducing Grade of Offense to Violation. 1. (1) The requirements of culpability prescribed by Sections 2.01 and 2.02 do not apply to: 21 2. ( a) offenses which constitute violations, unless the requirement involved is included in the definition of the offense or the Court determines that its application is consistent with effective enforcement of the law defining the offense; or 3. (b) offenses defined by statutes other than the Code, insofar as a legislative purpose to impose absolute liability for such offenses or with respect to any material element thereof plainly appears. ii. In general MPC states no criminal conviction may be obtained unless the prosecution proves cupability. This code is the exception, that violations (not crimes) punishable with a fine or foreitrure (no jail) can be convicted of strict liabilty b. Ifno mens rea is listed, default is recklessness(or above), not strict liability c. If mens rea is listed for only one element, apply it to all - no strict liability for attendant circumstances d. More serious acts with less serious mens realeads to liability for the lesser offense e. Rejects moral wrong + lesser crime principleswhichare accepted incommon law: i. Moral wrong: liability because the facts as the defendantbelieved them to be (even if that belief was factually incorrect) constituted a moral wrong 1. The conduct would be immoral, though not necessarily illegal, if the facts were as the defendant believed them to be 2. Critiques a. Heterogenous societies don't have one clear community ethic b. Runs afoul of legality/fair notice c. Usurping legislature's power to criminalize ii. Lesser crime: liability because when the defendantknowingly commits a crime, they run the risk of it resulting in a greater crime 1. Critiques a. Runs afoul of mens rea requirement/retributive rationale b. Leads to disproportionate punishment 2. Ex:State v. Benniefield (Minn. 2004): defendant arrestedfor possessing drugs in a school zone. Lesser crime waspossessing drugs, greater crime was possessing drugs in a school zone. Even though he didn't know he was in a school zone, court applied strict liability to the attendant circumstance of "school zone" and found him guilty. D. Rationale a. Difficult to justify from aretributiveperspective b. Utilitarian i. Deterrence: if the harm is really big, we need big incentives to deter it ii. However, this risks, over-deterrence and bad incentives c. Efficiency: easier than gathering evidence to prove (and proving) a certain mens rea, particularly when that mens rea would be difficult to prove Mistake of Fact When no MR is required for a particular AC A. When the statute is silent regarding MR of particular Attending circumstance that makes: 22 a. Otherwise legal conduct illegal i. E.g,. Statutory rape criminalizing sex with someone underage b. Otherwise criminal conduct a more severe crime i. E.g., Selling drugs in a school zone/ Assault a police officer c. The court has to decide what the legislature intended i. Was the defendant’s “mistake of fact” as to that AC a defense? ii. I.e, What MR, if any, did the legislature mean to impose for that AC? d. NO MR= Strict Liability + No Mistake of Fact defense (even if D was reasonably unaware of AC) B. Hypo a. If MR for AC is recklessness i. Unreasonable MOF defense (the person did not really know they did the offense so they can get off) 1. even if a reasonable person would have known if you can prove you didn’t know you can get off b. If MR for AC is negligence i. Reasonable (person) MOF defense ( a reasonable personwould not know it was an offense so they could get off) c. If strict liability of AC i. NO MOF defense (no matter what) liable if you do it C. Exp:Garnett v. State (MD, 1993): defendant who was20 years old had mental disabilities that caused him to socially beequivalent in age toan 11 or 12 year old.He had sex with a 13 year old friend of his and was found guilty of statutory rape, as the court said there could beno MOF defense for agein statutoryrape offenses due to it being a Strict Liability crime. D. Statutory Rape a. About ⅓ of states permit reasonable MOF defense in some circumstances b. Punitiveness of civil requirements (e.g sex offernder registry) are making it harder to mitigate via judicial discretion in sentencing c. No ‘lesser crime’ without age threshold because premartitalfornincation is no longer illegal i. Lesser crime principal only applies with crimes that are in the same statute ii. Lesser crime is applied to the action that causes the crime to be a crime and the rest is strict liability d. Majority of states still deny MOF defense under any circumstances i. SL as to AC of age has been uphel as constitutional ii. Even when punishments are severe e. Approaches i. Majority view= Strict Liability for AC of age 1. No MOF defense ii. Minority view (but grow
