Fall 2001. Outline by Steve Abreu
1. Acts (Actus Reus)
Model Penal Code
Definition
Voluntariness
Hypnotism
Status Offenses
Omissions
Exceptions
2. Mental States
Definitions
Model Penal Code 2.02
Intention
Negligence
Recklessness
Specific Intent / General Intent
Strict Liability
Public Welfare
Statutory Rape / Felony Murder
Mistakes
Model Penal Code
Was the mistake reasonable?
When mistake of law is a defense
Reasonable Reliance
Fair Notice
3. Homicide
Model Penal Code
Malice
Murder in degrees
Reckless Murder
How to differentiate Criminal Negligence
Felony Murder
Limitations
Approaches
Manslaughter
Provocation (Voluntary)
Criminal Negligence (Involuntary)
4. Rape
Model Penal Code
Forcible Rape
Resistance Requirement
Changing Definitions of Force
Mens Rea
Rape Shield Laws
5A. Defensive Force
Model Penal Code
Definition
Necessity
Proportionality
Reasonable Belief
Aggressor
Removing the aggressor status
Deadly Force
Retreat
Retreat Exceptions
Imminence
Reasonable Person Standard
Battered Women Syndrome
Defense of Others
5B. Necessity
Model Penal Code
Definition
Regina v. Dudley and Stevens
5C. Duress
Model Penal Code
Elements of Duress
Rational of an Excuse defense
Homicide
Prison Conditions
5D. Insanity
Elements
Definitions
Tests
M’Naughten
ALI / Model Penal Code
Abolition
Model Penal Code
6. Attempt
Model Penal Code
Definition
Punishment (less or equal)
Mens Rea
Result
Conduct
Actus Reus (The tests)
Defenses
Impossibility
Abandonment
7. Complicity
Model Penal Code
First / Second Degree
Constructive Principle
An accomplice is
Psychological Influence
Amount of Assistance
Mens Rea
Abandonment
Model Penal Code
No person may be convicted of a crime in the absence of a conduct that “includes a voluntary act or the omission to perform an act which he is physically capable.” A prosecutor must prove beyond a reasonable doubt the existence of a voluntary act.
[Except if the act is only a misdemeanor “violation” and not a crime.]
Definition
The actus reus of an offense consists of voluntary act that causes social harm.
An act is simply a body movement, turning the ignition, walking, using mouth muscles to talk. However, act excludes the mental processes involved in scheming or thinking.
An act that is committed under duress can hardly be considered “voluntary” – yet under the definition of actus rea, “voluntary” is construed much more sharply. A voluntary act is any act, which is a movement of the body that follows personal volition.
Whether a hypnotized subject lacks the ability to disregard suggestions is a matter of person dispute. Also, wouldn’t the act of the suggestion be “willful” in the normal way? Dressler argues that it’s better to treat hypnotism as a potential excusing defense than as a lack of actus reus due to involuntariness.
A California statute that made it a crime to be “Addicted to the use of narcotics”. In Robinson v California the Supreme Court found that the conviction must be over turned since being an addict was not a voluntary act, but rather an illness and that the eight amendment prohibited punishment for illnesses.
Compare with Powell v Texas where a person was convicted of being drunk in public and tried to assert a Robinson like defense because he was a suffering alcoholic. A four-judge plurality found that there was an actus reus since the defendant was voluntarily out in public.
Could someone have helped but failed to do so?
“Subject to a few limited exceptions, a person has no criminal law duty to act to prevent harm to another, even if the person imperiled may lose her life in the absence of assistance.”
Exceptions
Status Relationship
Contractual Obligation
Creation of the Risk
Voluntary Assistance
Statutory Duty “Bad Samaritan”
Definition (Mens Rea)
A person is not guilty of an offense unless he performs a voluntary act or an omission + duty (actus reus), that causes social harm, with a guilty mind (mens reus).
Mens rea may be either defined as:
Section 2.02 General Requirements of Culpability
(1)
Minimum Requirements of Culpability.
Except as provided in Section 2.05, a person is not guilty of an offense
unless he acted purposely, knowingly, recklessly, or negligently, as the law
may require, with respect to each material element of the offense.
(2)
Kinds of Culpability Defined.
(a) Purposely. A person
acts purposely with respect to a material offense when:
(i) if the element
involves the nature of his conduct or a result thereof, it is his conscious
object to engage in conduct of that nature, or to cause such a result; and
(ii) if the element involves the attendant
circumstances, he is aware of the existence of such circumstances or he
believes or hopes they exist.
(b) Knowingly. A
person acts knowingly with respect to a material element of an offense when:
(i) if the element involves the nature of his
conduct or the attendant circumstances, he is aware that his conduct is of that
nature, or that such circumstances exist; and
(ii) if the element involves a result of his
conduct, he is aware that it is practically certain that his conduct will cause
such a result.
(c) Recklessly. A
person acts recklessly with respect to a material element of an offense when:
he consciously disregards a substantial and
unjustifiable risk that the material element exist 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 a gross
deviation from the standard of conduct a law-abiding person would observe in
the actor’s situation.
(d) Negligently.
A person acts negligently with respect to a material element of an offense when
he should be aware of a substantial and unjustifiable risk that the material
element exists or 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 a gross deviation from the standard of
care that a reasonable person would observe in the actor’s situation.
(3) Culpability
Required Unless Otherwise Provided. When the culpability sufficient to
establish a material element of an offense is not prescribed by law, such
element is established if a person acts purposely, knowingly or recklessly with
respect thereto.
(4) Prescribed Culpability Requirement Applies to All Material Elements.
When the law defining an offense prescribes the kind of culpability that is
sufficient for the commission of an offense, without distinguishing among the
material elements thereof, such provision shall apply to all the material
elements of the offense, unless a contrary purpose plainly appears.
(5)
Substitutes for Negligence, Recklessness and Knowledge. When the law
provides that negligence suffices to establish an element of an offense, such
element also is established if a person acts purposely, knowingly or
recklessly. When recklessness suffices to establish an element, such element
also is established if a person acts purposely or knowingly. When acting
knowingly suffices to establish an element, such element also is established if
a person acts purposely.
(6) Requirement
of Purpose Satisfied if Purpose Is Conditional. When a particular
purpose is an element of an offense, the element is established although such
purpose is conditional, unless the condition negatives the harm or evil sought
to be prevented by the law defining the offense.
(7) Requirement
of Knowledge Satisfied by Knowledge of High Probability. When knowledge
of the existence of a particular fact is an element of an offense, such
knowledge is established if a person is aware of a high probability of its
existence, unless he actually believes that it does not exist.
(8) Requirement
of Wilfulness Satisfied by Acting Knowingly. A requirement that an
offense be committed wilfully is satisfied if a person acts knowingly with
respect to the material elements of the offense, unless a purpose to impose
further requirements appears.
(9) Culpability
as to Illegality of Conduct. Neither knowledge nor recklessness or
negligence as to whether conduct constitutes an offense or as to the existence,
meaning or application of the law determining the elements of an offense is an
element of such offense, unless the definition of the offense or the Code so
provides.
(10) Culpability
as Determinant of Grade of Offense. When the grade or degree of an
offense depends on whether the offense is committed purposely, knowingly,
recklessly or negligently, its grade or degree shall be the lowest for which
the determinative kind of culpability is established with respect to any
material element of the offense.
Common Law Considerations:
At common law, a person “intentionally” causes the social harm of an offense if:
A person’s conduct is negligent when it deviates from the standard of care that a reasonable person would employ in the actor’s situation. Conduct constitutes such a deviation if the actor takes an unjustifiable risk of causing harm to another. Thus negligence constitutes an objective fault, the actor is not punished for a wrongful state of mind, but for his failure to live up to the standards of a reasonable person.
A finding of recklessness requires proof that the actor disregarded a substantial and unjustifiable risk of which he was aware.
A common law distinction, not in the MPC. “Historically, general intent referred to any offense for which the only mens rea required was a blameworthy state of mind, specific intent was meant to emphasize that the definition of the offense expressly required proof of a particular mental state.”
A strict liability crime requires no demonstration of adequate mens rea. There is generally a presumption against making a crime a strict liability crime, even in the absence of a scienter term. Judge Blackmun wrote five factors that may overcome that presumption:
Because it can comply with the five factors above, and due to the great need to protect the public from products or machinery that is dangerous, some to most public welfare ordinance are of strict liability.
Here strict liability is controversial because the punishment is great and the violators will be stigmatized. However for what ever reason these are the two non-public-welfare strict liability offense that pervade.
The model penal code only allows a strict liability requirement when the offense is a violation and not a crime.
Section 2.04 Ignorance or Mistake
(1)
Ignorance or mistake as to a matter of fact or law is a defense if:
(a) the ignorance or mistake negatives the purpose, knowledge, belief,
recklessness or negligence required to establish a material element of the
offense; or
(b)
the law provides that the state of mind established by such ignorance or
mistake constitutes a defense.
(2)
Although ignorance or mistake would otherwise afford a defense to the offense
charged, the defense is not available if the defendant would be guilty of
another offense had the situation been as he supposed. In such case, however,
the ignorance or mistake of the defendant shall reduce the grade and degree of
the offense of which he may be convicted to those of the offense of which he
would be guilty had the situation been as he supposed.
(3)
A belief that conduct does not legally constitute an offense is a defense to a
prosecution for that offense based upon such conduct when:
(a)
the statute or other enactment defining the offense is not known to the actor
and has not been published or otherwise reasonably made available prior to the
conduct alleged; or
(b)
he acts in reasonable reliance upon an official statement of the law, afterward
determined to be invalid or erroneous, contained in (i) a statute or other
enactment; (ii) a judicial decision, opinion or judgment; (iii) an
administrative order or grant of permission; or (iv) an official interpretation
of the public officer or body charged by law with responsibility for the
interpretation, administration or enforcement of the law defining the offense.
(4) The defendant must prove a defense arising under Subsection (3) of this Section
by a preponderance of evidence.
Exception: The defense is not available if the actor would be guilty of another offense, had the circumstances been as he supposed. Under the MPC a prosecution is allowed under the framework of the lower offense.
Common Law Considerations:
With specific-intent crimes, common law jurists developed the rule that a mistake of fact is exculpatory if it negates the particular element of mens rea – the specific intent in the definition of the offense.
Or with respect to general-intent crimes the jury sought to determine if the mistake negated the actor’s moral culpability for the crime.
The unreasonably mistaken actor, although perhaps responsible for conduct that would constitute no more than civil negligence, may be punished as a criminal wrongdoer. Punishment for negligence is controversial, but there must be some threshold.
One is excused for committing a crime if she reasonably relied on an official statement in the law, later determined to be erroneous, obtained from a person or public body with responsibility for the interpretation, administration, or enforcement of the law defining the offense.
For a statement of the law to be official it must be contained in:
1.a statute later declared to be invalid
2.a judicial decision of the highest court in the jurisdiction later determined to be erroneous OR
3.and official, but erroneous, interpretation of the law, secured from a public officer in charge of its interpretation, such as the Atty. Gen. of a state (when dealing with state law).
4.The statement must come in an official manner.
Under very limited circumstances, a person who is wholly unaware of a duly enacted and published criminal statute may successfully assert a constitutional defense. Lambert v California.
1. The ordinance in Lambert punished an omission
2. the duty to act was imposed on a basis of a status
3. the offense was malum prohibitum
Model Penal Code
Malice
Murder in degrees
Reckless Murder
How to differentiate Criminal Negligence
Felony Murder
Limitations
Approaches
Manslaughter
Provocation (Voluntary)
Criminal Negligence (Involuntary)
Model Penal Code
Section 210.1 Criminal Homicide
(1) A person is
guilty of criminal homicide if he purposely, knowingly, recklessly or
negligently causes the death of another human being.
(2) Criminal
homicide is murder, manslaughter or negligent homicide.
Section 210.2 Murder
(1) Except as
provided in Section 210.3(1)(b), criminal homicide constitutes murder when:
(a) it is committed purposely or knowingly; or
(b) it is committed recklessly under circumstances manifesting extreme
indifference to the value of human life. Such recklessness and indifference are
presumed if the actor is engaged or is an accomplice in the commission of, or
an attempt to commit, or flight after committing or attempting to commit
robbery, rape or deviate sexual intercourse by force or threat of force, arson,
burglary, kidnapping or felonious escape.
(2) Murder is a
felony of the first degree [but a person convicted of murder may be sentenced
to death, as provided in Section 210.6].
Section 210.3 Manslaughter
(1) Criminal
homicide constitutes manslaughter when:
(a) it is committed recklessly; or
(b) a homicide which would otherwise be murder is committed under the influence
of extreme mental or emotional disturbance for which there is reasonable
explanation or excuse. The reasonableness of such explanation or excuse shall
be determined from the viewpoint of a person in the actor's situation under the
circumstances as he believes them to be.
(2) Manslaughter
is a felony of the second degree.
Section 210.4 Negligent Homicide
(1) Criminal
homicide constitutes negligent homicide when it is committed negligently.
(2) Negligent homicide is a felony of the third degree.
Common Law Considerations:
Murder is the killing of a human being by another human being with malice aforethought.
Manslaughter is the killing of a human being by another human being without malice aforethought.
Aforethought has always been superfluous to the definition of murder in America, and therefore, unless a statute modifies common law by requiring premeditation, a spur of the moment killing may constitute murder.
Malice can be shown by any of the following four states of mind:
In the absence of justification, excuse, or mitigating circumstance, each mental state involves an extreme difference to the value of human life.
Murder in Degrees (Pennsylvania Model)
Once a prosecutor has determined that murder has occurred (with requisite malicious mental state) then he must find which category (Degree) is appropriate.
First-Degree
Murder
1. Murders that are committed in a statutorily specified manner or
2. A willful deliberate and premeditated killing
3. A homicide that occurs during the commission of a statutorily enumerated felony (arson, rape, burglary, robbery, etc…)
All other murders
Typically a murder involving the specific intent to kill is first-degree murder in jurisdictions that grade the offense by degrees if the homicide was also “deliberate” and “pre-meditated”.
Reckless Murder (Depraved Heart Murder)
Malice aforethought is implied if a person’s conduct manifests an extreme indifference to the value of human life. (Almost always a second-degree murder in states that separate into degrees.) At common law the descriptions include: an abandoned heart, an abandoned and malignant heart, a depraved heart, or a depravity of mind.
The accused does not intend to kill but malice is implied because there is a wanton and willful disregard of the likelihood that the natural tendency of the defendant’s behavior is to cause death or great bodily harm.
The line between unjustified risk-taking that constitutes involuntary manslaughter and that which constitutes murder has never been drawn with clarity. Although some courts apply this language as a test:
· The deliberate perpetration of a knowingly dangerous act with … unconcern and indifference as to whether anyone is harmed or not.
· A person kills recklessly if she consciously disregards a substantial and unjustifiable risk to human life.
· In contrast when a person should be but is not aware that her conduct is very risky, - the risk taking is inadvertent – her behavior may justify the appellation of criminal negligence.
The felony murder rule exists only in this country after having been abolished in England In 1957. “A person is guilty of murder if she kills another person during the commission or attempted commission of any felony.”
The felony murder rule applies whether a felon kills the victim intentionally, recklessly, negligently, or accidentally and unforeseeably. (Strict Liability) à though the intent to commit the felony must remain.
Limitations
1. Inherently-Dangerous-Felony limitation: many states limit the felony murder rule to homicides that occur during the commission of felonies dangerous to human life.
2. The independent felony (or merger) limitation: If the felony is not independent to the homicide, then the felony merges with the homicide and cannot serve as the basis for a felony-murder conviction.
à Stamp, Gladman. The most far-reaching doctrine, only asks whether the defendant was the proximate cause of the death.
à the court will focus on whether or not the person directly responsible for causing the death falls within the agency relationship of an unlawful venture. Is one of the co-felons the killer – when one of them is, all of the other co-felons can be held responsible. When it is a victim or a police officer who kills then the felony murder doctrine will not apply.
à Only where the person who is killed is essentially a protected person that we could hold the co-felons responsible for the death. Protected people are innocents, essentially all non-co-felons. If a co-felon dies there is no felony murder liability.
Provocation
(that constitutes Manslaughter)
1. The actor must have been in the heat of passion
2. The passion must have been the result of adequate provocation
3. The actor must not have had a reasonable opportunity to cool off, and
4. There must be a causal link between the provocation, the passion, and the homicide
May include any “violent, intense, high-wrought, or enthusiastic emotion” this term includes: “a wide range of emotions, including fear, jealousy and wild desperation.”
The modern view is that this should be left for the jury to decide. One such instruction is: “if it would render any ordinary prudent person for the time being incapable of that cool reflection that otherwise makes it murder;” or if it “might render ordinary men, of fair average disposition, liable to act rashly or without due deliberation or reflection, and from passion rather than judgment.”
Can words alone constitute adequate provocation?
à In some non-MPC jurisdiction it does not.
To the extent that one seeks to determine the nature of the “reasonable/ordinary” person we can say that they are of “average disposition, not exceptionally belligerent, sober at the time of provocation, and of normal mental capacity.”
Due to the MPC juries are now apt to test the defendant’s actions against another in “the actor’s situations”.
1. But what does that mean? Generally age and sex are permitted.
2. Background including trauma may also be permitted, but there is a slippery slope argument against inclusion.
A matter typically left to the jury. The amount of time passing and the suddenness or prolonged nature of the provocation can be taken into account.
Criminal
Negligence
Criminal Negligence is involuntary manslaughter that involves a gross deviation from the standard of care that reasonable people would exercise in the same situation.
One who is aware that she is taking a substantial and unjustifiable risk to human life, but proceeds anyway, manifests an indifference to the value of human life that constitutes malice aforethought. One who should be aware of the risk, but is not, is negligent.
Model Penal Code
Forcible Rape
Resistance Requirement
Changing Definitions of Force
Mens Rea
Rape Shield Laws
Section 213
A male is guilty
of rape if, acting purposefully, knowingly, or recklessly regarding each of the
material elements of the offense, he has sexual intercourse with a female under
any of the following circumstances:
Sexual intercourse under the code is defined broadly to include genital, oral, and anal sexual penetration by the male of the female.
The code defines rape in terms of the male, rather than of the female’s lack of consent.
Common Law Considerations:
Definition
Traditional (non-reformed) rape statutes define the offense as sexual intercourse achieved “forcibly”, “against the will” of the female, or “without her consent”. Many states now prohibit specified forms of non-forcible, but nonconsensual sexual intercourse. An increasingly statutes have been written in gender neutral terms.
Generally speaking sexual intercourse by D, a male, with V, a female not his wife, constitutes rape if it committed:
The traditional rule is that a successful prosecution of forcible rape requires proof that the female did not consent to intercourse AND that the sexual act was “by force” or “against her will”.
Nonconsensual sex is forcible if the make uses or threatens to use force likely to cause serious bodily harm to the female or a third person.
A few jurisdictions by statute or common law interpretation have abolished the resistance requirement. In most states the trend is to reduce the significance of the rule by lowering the barrier: sometimes “resistance reasonable under the circumstances”.
However resistance can remain critical to the fact finders job as to determining whether rape took place.
Under an autonomy approach the only real issue should be whether the female wanted the intercourse or not. In that way a male’s use of force should only be a part of the fact finder’s calculus to determine whether the sex was consensual.
See MTS where the NJ Supreme Court found that the mere act of sexual penetration itself satisfied the “force” prong of the state’s rape law.
Rape is a general-intent offense. And therefore a specific intent to have nonconsensual intercourse is not an essential element of the crime. The general rule is that a person is not guilty of rape if he entertained a genuine and reasonable belief that the female voluntarily consented to intercourse with him.
Though in recent years a number of jurisdictions have ruled that even a defendant’s reasonable mistake of fact regarding the females lack of consent is not a defense.
Three classes of evidence regarding the complainant might be proffered:
There is a balancing test inherent then between the defendant’s constitutional rights to confront the witnesses against him and to present his own exculpatory evidence. But in general, courts have ruled that the probativeness of the evidence is so minuscule when weighed against the potential prejudice to the complaining witness that the 6th Amendment rights must bend to protect the innocent victims.
Model Penal Code
Definition
Necessity
Proportionality
Reasonable Belief
Aggressor
Removing the aggressor status
Deadly Force
Retreat
Retreat Exceptions
Imminence
Reasonable Person Standard
Battered Women Syndrome
Defense of Others
Article 3: General Principles of Justification
3.04 Use of Force in Self-Protection
(1) Use of
Force Justifiable for Protection of the Person. Subject to the
provisions of this Section and of Section 3.09, the use of force upon or toward
another person is justifiable when the actor believes that such force is
immediately necessary for the purpose of protecting himself against the use of
unlawful force by such other person on the present occasion.
(2) Limitations on Justifying Necessity for Use of Force.
(a) The use of
force is not justifiable under this Section:
(i) to resist an
arrest that the actor knows is being made by a peace officer, although the
arrest is unlawful; or
(ii) to resist
force used by the occupier or possessor of property or by another person on his
behalf, where the actor knows that the person using the force is doing so under
a claim of right to protect the property, except that this limitation shall not
apply if:
(A) the actor is
a public officer acting in the performance of his duties or a person lawfully
assisting him therein or a person making or assisting in a lawful arrest; or
(B) the actor
has been unlawfully dispossessed of the property and is making a re-entry or
recaption justified by Section 3.06; or
(C) the actor
believes that such force is necessary to protect himself against death or
serious bodily injury.
(b) The use of
deadly force is not justifiable under this Section unless the actor believes
that such force is necessary to protect himself against death, serious bodily
injury, kidnapping or sexual intercourse compelled by force or threat; nor is
it justifiable if:
(i) the actor,
with the purpose of causing death or serious bodily injury, provoked the use of
force against himself in the same encounter; or
(ii) the actor knows that he can avoid the necessity of using such force with
complete safety by retreating or by surrendering possession of a thing to a
person asserting a claim of right thereto or by complying with a demand that he
abstain from any action that he has no duty to take, except that:
(A) the actor is
not obliged to retreat from his dwelling or place of work, unless he was the
initial aggressor or is assailed in his place of work by another person whose
place of work the actor knows it to be; and
(B) a public
officer justified in using force in the performance of his duties or a person
justified in using force in his assistance or a person justified in using force
in making an arrest or preventing an escape is not obliged to desist from
efforts to perform such duty, effect such arrest or prevent such escape because
of resistance or threatened resistance by or on behalf of the person against
whom such action is directed.
(c) Except as
required by paragraphs (a) and (b) of this Subsection, a person employing
protective force may estimate the necessity thereof under the circumstances as
he believes them to be when the force is used, without retreating, surrendering
possession, doing any other act that he has no legal duty to do or abstaining
from any lawful action.
(3) Use of
Confinement as Protective Force. The justification afforded by this Section
extends to the use of confinement as protective force only if the actor takes
all reasonable measures to terminate the confinement as soon as he knows that
he safely can, unless the person confined has been arrested on a charge of
crime.
3.05 Use of Force for the Protection of Other Persons
3.06 Use of Force for the Protection of Property
3.09 Reckless or Negligent Use of Otherwise Justifiable
Force
The model penal code diverges from common law on two noteworthy issues.
Also, a person may not use force to resist an arrest he knows is being made by a police officer even if the arrest is unlawful. (Unless that person believes the police officer intends to use excessive force)
Common Law Distinctions:
A non-aggressor is justified in using force upon another if he reasonably believes that such force is necessary to protect himself from imminent use of unlawful force by the other person. Deadly force is only justified in self-protection when the actor reasonably believes that its use is necessary to prevent imminent and unlawful use of deadly force by the aggressor.
As with other justification defenses, self-defense contains
Force should not be used against another person unless, and only to the extent that it is necessary. Self-defense at common law is limited to imminent threats.
A person may not use deadly force to combat an imminent deadly assault if some non-deadly response will apparently suffice. And, in some jurisdictions, a person may not use deadly force against an aggressor if he knows that he has a completely safe avenue of retreat.
A person is never permitted to use deadly force against a non-deadly attack, even if deadly force is necessary to prevent the battery.
Reasonable Belief Component
A person is justified in using force to protect himself if he subjectively believes, and has objectively reasonable grounds for believing that such force is necessary to repel an imminent unlawful attack, even if appearances prove to be false.
The defense is unavailable, however, to one whose belief in this regard was genuine but unreasonable. However an increasing number of jurisdictions now permit an unreasonably mistaken actor to assert an “imperfect” claim of self-defense which mitigates an offense down in grade.
An aggressor has no right to a claim of self-defense.
Four concepts of aggression merit discussion:
Who was the aggressor at the time the defensive force was used?
To answer we must distinguish between “deadly” and “non-deadly” aggressors.
The only way a “Deadly” aggressor can regain the right of self-defense is by withdrawing from the conflict and successfully communicating this fact, either expressly or impliedly, to his intended victim.
Many courts provide that when the victim of a non-deadly assault responds with deadly force, the original “non-deadly” aggressor retains his right to self-defense.
Deadly force is intended or likely to cause death or grievous bodily injury, even if this is not the actor’s intention or the actual result. On the other hand, a minor battery does not constitute deadly force, even if death unexpectedly results. However, a battery can constitute deadly force if the person being struck is an infirm individual likely to die or be grievously harmed.
Retreat
If a person can safely retreat and, therefore, avoid killing the aggressor, deadly force is unnecessary. Though the jurisdictions are split, and that when confronted with deadly force a respondent can use deadly force in response even if he is aware of a place to which he can retreat in complete safety, in a slim majority of jurisdictions.
Castle
Exception to the Retreat Rule
Jurisdictions where retreat is required have developed an exception. A non-aggressor need not ordinarily retreat if he is attacked in his own dwelling place or within its curtilage even though he could do so in complete safety.
What if the dwelling is also the aggressor’s dwelling? Most jurisdictions adopt the rule that retreat is still not necessary, but a few states disagree.
In the context of self-defense, force is imminent if it will occur immediately or at once. The danger must be pressing and urgent.
Force is not imminent is an aggressor threatens to harm another person at a later time. Even if it seems clear that the harm is at another’s hands is inevitable, use of force is premature until the threat is immediate.
Though in recent years there has been a move, especially in wake of battered women’s cases that the response does not have to be imminent as long as the s-d is “necessary”
According to the court in Goetz the defendant is entitled to consider, “more than the physical movements of the potential assailant … the terms ‘situation’ and ‘circumstances’ include any relevant knowledge the defendant has about that person. They also necessarily bring in the physical attributes of all the people involved, including the defendant. Furthermore, the defendant’s circumstances encompass any prior experiences he had which could provide a reasonable basis for the belief that another person’s intentions were to harm him or that deadly force was necessary under the circumstances.”
“This remains a difficult and sensitive issue, one that the ‘designedly ambiguous’ standard of the ‘reasonable person in the actor’s situation’ leaves to the jurors to resolve for themselves.”
A defendant is entitled to an instruction on a defense of BWS if she presents some credible evidence in support of the claim. Courts are divided on whether self-defense may be claimed if there is no evidence of threatening conduct by the abuser at the time of the homicide. (State v. Liedholm in our text, permitted the instruction)
The intervenor’s right to use force to defend another parallels the second party’s right to self-defense. A modern trend, and under the model penal code, states that an intervenor may use deadly of non-deadly force to the extent that such force reasonably appears to the intervenor to be justified in defense of the third party.
What if
the intervenor defends the aggressor?
The reasonable-appearance rule ensures that people who act reasonably, albeit mistakenly, are not punished for their good motives.
Model Penal Code
Definition
Regina v. Dudley and Stevens
Section 3.02 Justification Generally: Choice of Evils
(1) Conduct that
the actor believes to be necessary to avoid a harm or evil to himself or to
another is justifiable, provided that:
(a) the harm or
evil sought to be avoided by such conduct is greater than that sought to be
prevented by the law defining the offense charged; and
(b) neither the
Code nor other law defining the offense provides exceptions or defenses dealing
with the specific situation involved; and
(c) a
legislative purpose to exclude the justification claimed does not otherwise
plainly appear.
(2) When the
actor was reckless or negligent in bringing about the situation requiring a
choice of harms or evils or in appraising the necessity for his conduct, the
justification afforded by this Section is unavailable in a prosecution for any
offense for which recklessness or negligence, as the case may be, suffices to
establish culpability.
The MPC is broader than the common law in certain respects. First, the code rejects the requirement of imminence, second, a person does not automatically lose the defense because they put themselves at the peril. Third all amount of emergencies, and not just natural disasters can trigger the protection.
Common Law Considerations:
The defense of necessity can arise in a myriad of circumstances. But it is more often invoked successfully when an actor encounters the following dilemma: as a result of some force or condition he must choose between violating a relatively minor offense, on the one hand, and suffering (or allowing others to suffer) substantial harm to person or property on the other hand.
Generally speaking, “necessity” is a defense of last-resort: it technically legitimizes conduct that is technically illegal that common sense, principles of justice, or utilitarian concerns convince us is justifiable. It comes into play in unique instances in which it may be fairly assumed lawmakers would have authorized the conduct had the considered the matter in advance.
The parameters of the common law defense a person is justified in violating a criminal law if the following sex conditions are met:
Even if a defendant meets all six of these elements there are three limitations:
There exists a debate as to whether the Dudley and Stevens decision means that homicide is never justifiable, however there are situations where it can be. Also the case is one where the defendants chose to kill the victim and the danger was not or could not be proven to be imminent.
Model Penal Code
Elements of Duress
Rational of an Excuse defense
Homicide
Prison Conditions
Section 2.09 Duress
(1) It is an
affirmative defense that the actor engaged in the conduct charged to constitute
an offense because he was coerced to do so by the use of, or a threat to use,
unlawful force against his person or the person of another, that a person of
reasonable firmness in his situation would have been unable to resist.
(2) The defense
provided by this Section is unavailable if the actor recklessly placed himself
in a situation in which it was probable that he would be subjected to duress.
The defense is also unavailable if he was negligent in placing himself in such
a situation, whenever negligence suffices to establish culpability for the
offense charged.
(3) It is not a
defense that a woman acted on the command of her husband, unless she acted
under such coercion as would establish a defense under this Section. [The
presumption that a woman acting in the presence of her husband is coerced is
abolished.]
(4) When the
conduct of the actor would otherwise be justifiable under Section 3.02, this
Section does not preclude such defense
The code abandons the common law need for the threat to be imminent and deadly. A person may use the defense even as a result of prior use of non-deadly force – as long as a person of reasonable firmness would have committed the offense in the defendant’s circumstances.
The MPC defense is of general applicability – it may be raised in murder prosecutions.
Common Law Considerations:
Elements
A person will be acquitted of any offense except murder if the criminal act was committed under the following circumstances:
The harm threatened must be likely to occur so quickly that there is no realistic way for the actor to escape the situation. A threat of future harm is insufficient, as is any threat to property, economic hardship, or reputation.
Some courts threat necessity and duress the same, but they are not. In the following hypothetical only a duress defense and not a necessity defense would be available:
if C threatens to cut off D’s left arm unless D cuts off V’s left arm. The harm here is of equal severity.
This is why duress is an excuse defense and not a justification. We are not in the mood or position here to balance harms.
The common law rule expressly adopted by statute in various states, is that duress is not a defense to an intentional killing. A very few states recognize an imperfect duress defense, which reduces the offense of the coerced actor to manslaughter.
There is a division of thought regarding whether duress may be raised in felony-murder prosecutions. A person coerced to commit a felony, during which she or an accomplice unintentionally kills the victim, may raise the duress defense. Other states disallow the defense in all murder prosecutions, regardless of the defendant’s mens rea regarding the death.
Is duress available as a defense to a person charged with murder as a principle in the first degree (the actual killer)?
Lord Halisham: “I do not at all accept in relation to the defense of murder it is either good morals, good policy or good law to suggest that the ordinary man of reasonable fortitude is not supposed to be capable of heroism if he is asked to take an innocent life rather than sacrifice his own.”
A few courts have refused to recognize this defense on policy grounds that this will encourage other inmates to escape. Most modern courts, however, recognize the right of an escapee to assert and intolerable-prison-condition claim. There is a split on whether this is necessity or duress.
The most significant limitation placed on this defense is that the escapee make “a bona fide effort to surrender or return to custody as soon as the claimed duress or necessity has lost its coercive force.” Some courts do not go this far.
Elements
Definitions
Tests
M’Naughten
ALI / Model Penal Code
Abolition
Section 4.01 Mental Disease or Defect Excluding
Responsibility
(1) A person is
not responsible for criminal conduct if at the time of such conduct as a result
of mental disease or defect he lacks substantial capacity either to appreciate
the criminality [wrongfulness] of his conduct or to conform his conduct to the
requirements of law.
(2) As used in this Article, the terms "mental disease or defect" do
not include an abnormality manifested only by repeated criminal or otherwise
antisocial conduct.
The criminal trial of an incompetent defendant violated the due process clause of the US Constitution. A person is incompetent if, during the criminal proceedings she:
The issue of competency is to stand trial is independent of any insanity plea that the defendant might later raise and can be raised by the prosecutor, defense, or judge. This determination is for the judge as a matter of law. If it is determined that the defendant is incompetent to stand trial, criminal proceedings must be suspended until she is competent. MPC (4.06)
Insanity is an affirmative defense. The defendant has the initial burden of proof of producing evidence regarding her mental condition.
Until the 1980’s most states and the federal court required the prosecutor to prove the defendant’s sanity beyond a reasonable doubt. However, after the Hinckley trial a majority of states and the federal courts require the defendant to shoulder the burden (by a preponderance of the evidence) – in the federal courts (clear and convincing evidence).
The M’Naghten rule focuses exclusively on cognitive disability. Under M'Naghten a person is insane if, at the time of her act she was laboring under such a defect of reason, arising from a disease of the mind that she:
The word “know” in both prongs can be interpreted to mean “formal cognative knowledge” as in she knew what conduct she was performing and knew that it was wrong. Or it can be interpreted more broadly to require “affective knowledge” which is absent unless the actor can evaluate her conduct in terms of its impact on others and appreciate the total setting in which she acts.
Also there is discussion about whether “wrong” refers to legal or moral wrong. In England wrong means only that it was against the law and not something that the actor thought they should not do.
In People v Serravo a Colorado court noted the distinctions between the two doctrines and reported that “moral right and wrong” was the right state.
A few jurisdictions that apply the “moral right and wrong” standard also apply the deific-decree. An actor who believes she is acting under the direct command (not simply the approval) of God is deemed legally insane.
The MPC provides that a person is not responsible for her criminal conduct if at the time of her conduct she lacked substantial capacity to:
The ALI test uses “appreciate” rather than “know” to avoid narrow interpretation. Also “lacks substantial capacity” avoids the “earlier tests unrealistically required total capacity”.
Model Penal Code 2.08 Intoxication
(1) Except as provided in Subsection (4) of this Section, intoxication of the actor is not a defense unless it negatives an element of the offense.
(2) When recklessness establishes an element of the offense, if the actor, due
to self-induced intoxication, is unaware of a risk of which he would have been
aware had he been sober, such unawareness is immaterial.
(3)
Intoxication does not, in itself, constitute mental disease within the meaning
of Section 4.01.
(4)
Intoxication that (a) is not self-induced or (b) is pathological is an
affirmative defense if by reason of such intoxication the actor at the time of
his conduct lacks substantial capacity either to appreciate its criminality
[wrongfulness] or to conform his conduct to the requirements of law.
(5)
Definitions. In this Section unless a different meaning plainly is required:
(a)
"intoxication" means a disturbance of mental or physical capacities
resulting from the introduction of substances into the body;
(b)
"self-induced intoxication" means intoxication caused by substances
that the actor knowingly introduces into his body, the tendency of which to
cause intoxication he knows or ought to know, unless he introduces them
pursuant to medical advice or under such circumstances as would afford a
defense to a charge of crime;
(c)
"pathological intoxication" means intoxication grossly excessive in
degree, given the amount of the intoxicant, to which the actor does not know he
is susceptible.
Model Penal Code
Definition
Punishment (less or equal)
Mens Rea
Result
Conduct
Actus Reus (The tests)
Defenses
Impossibility
Abandonment
Section 5.01 Criminal Attempt
(1) Definition
of Attempt. A person is guilty of an attempt to commit a crime if,
acting with the kind of culpability otherwise required for commission of the
crime, he:
(a) purposely engages in conduct that would constitute the crime if the
attendant circumstances were as he believes them to be; or
(b) when causing a particular result is an element of the crime, does or omits
to do anything with the purpose of causing or with the belief that it will
cause such result without further conduct on his part; or
(c) purposely does or omits to do anything that, under the circumstances as he
believes them to be, is an act or omission constituting a substantial step in a
course of conduct planned to culminate in his commission of the crime.
(2) Conduct That May Be Held Substantial Step Under Subsection (1)(c). Conduct
shall not be held to constitute a substantial step under Subsection (1)(c) of
this Section unless it is strongly corroborative of the actor's criminal
purpose. Without negativing the sufficiency of other conduct, the following, if
strongly corroborative of the actor's criminal purpose, shall not be held
insufficient as a matter of law:
(a) lying in wait, searching for or following the contemplated victim of the
crime;
(b) enticing or seeking to entice the contemplated victim of the crime to go to
the place contemplated for its commission;
(c) reconnoitering the place contemplated for the commission of the crime;
(d) unlawful entry of a structure, vehicle or enclosure in which it is
contemplated that the crime will be committed;
(e) possession of materials to be employed in the commission of the crime, that
are specially designed for such unlawful use or that can serve no lawful
purpose of the actor under the circumstances;
(f) possession, collection or fabrication of materials to be employed in the
commission of the crime, at or near the place contemplated for its commission,
if such possession, collection or fabrication serves no lawful purpose of the
actor under the circumstances;
(g) soliciting an innocent agent to engage in conduct constituting an element
of the crime.
(3) Conduct Designed to Aid Another in Commission of a Crime. A
person who engages in conduct designed to aid another to commit a crime that
would establish his complicity under Section 2.06 if the crime were committed
by such other person, is guilty of an attempt to commit the crime, although the
crime is not committed or attempted by such other person.
(4) Renunciation
of Criminal Purpose. When the actor's conduct would otherwise
constitute an attempt under Subsection (1)(b) or (1)(c) of this Section, it is
an affirmative defense that he abandoned his effort to commit the crime or
otherwise prevented its commission, under circumstances manifesting a complete
and voluntary renunciation of his criminal purpose. The establishment of such
defense does not, however, affect the liability of an accomplice who did not
join in such abandonment or prevention.
Within the meaning of this Article, renunciation of criminal purpose is not
voluntary if it is motivated, in whole or in part, by circumstances, not
present or apparent at the inception of the actor's course of conduct, that
increase the probability of detection or apprehension or that make more
difficult the accomplishment of the criminal purpose. Renunciation is not
complete if it is motivated by a decision to postpone the criminal conduct until
a more advantageous time or to transfer the criminal effort to another but
similar objective or victim.
Does the case involve a complete or incomplete attempt?
If the case does involve a complete attempt is the target offense a “result crime” or a “conduct crime” ?
Section 2 defines a substantial step as it relates to incomplete attempts in 1(c)
The MPC was designed to expressly abolish the legal impossibility defense, yet the pure legal impossibility defense still remains.
The MPC recognizes an abandonment defense in Section (4)
Common Law Distinctions:
A criminal attempt occurs when a person, with the intent to commit an offense, performs any act that constitutes a substantial step toward the commission of the offense. A substantial step is any conduct that has passed the stage of preparation and has moved the point of perpetration of the offense.
An attempt to commit a felony is graded as a felony but typically is treated as a lesser offense than the substantive crime. Under the model penal code attempts are punished with the same grade and degree except for first degree felonies (murder, kidnapping, rape, and robbery) where the punishment for attempt is a second-degree felony.
Criminal attempt involves two “intents”: the actor,
An example: suppose D fires a gun at a target range just as V walks in front of the target. D is guilty of attempted murder if 1. she pulled the trigger of the gun intentionally (first prong) and 2. she did so intending to kill V (second prong).
Result
Crimes
The
ordinary rule is that a person is not guilty of an attempt unless her actions
in furtherance of the prohibited result ware committed with the specific
purpose of causing the unlawful result.
Attempted
Felony Murder
All but
two states the have considered this issue say that attempted felony murder is
not a cognizable offense. “This is
consistent with the principle that the offense of attempted murder requires a
specific intent to kill; the defendant’s intent to commit a felony does not
substitute for the former intent.”
Attempted
Manslaughter
If a
person in a heated emotional state attempts to kill the provoker, but fails,
the actor may properly be convicted of attempted voluntary manslaughter.
A person
may not be committed of attempted involuntary manslaughter, when the offense is
based on some other state of mind than intent-to-kill.
(Lyerla)
Conduct
Crimes
Are
crimes whose actus reus are defined in terms of conduct rather than injurious
results. “Reckless endangerment”
punishes dangerous conduct even if such conduct does not result in tangible
harm to others.
As long
as a person possesses the specific intent to engage in such a conduct that
constitutes a crime there is no logical reason why that person should not be
convicted, though there is little case law in this area.
Actus Reus
The act must be more than an act of preparation. “The difficulty of line drawing exists due
to competing social policy interests. A
court may ask whether acts of preparation when coupled with intent have reached
a point at which they pose a danger to the public so as to be worthy of the
law’s notice. On the other hand people
who might voluntarily turn back from criminal activity might be improperly or
needlessly arrested.”
The Tests
The
attempt tests that have developed fall into two categories; (1) those that
focus how much remains to be done and those that consider how much has already
occurred.
There are
three factors that might predict which test a court may use, and when it is
more likely to find an attempt:
1. Whether the act in question appears
dangerously close to causing tangible harm (so that police intervention can not
be delayed)
2. The seriousness of the threatened harm
3. The strength of the evidence of the
actor’s mens rea – the more clearly the attempt is proven the less proximate
the acts need to be to consummation of the offense.
Most
states rarely adopt a single test as the exclusive basis for determining when
an attempt has occurred:
1. The Last Act test: an attempted murder
does not occur until the shooter pulls the trigger of the gun. (A bright line –
rarely if ever followed test)
2. The Physical Proximity Test: the actors
conduct must be proximate to the completed crime, that it must “approach
significantly near to it to stand either as the first or some subsequent step in
a direct movement towards the commission of the offense after the
preparations are made.”
3. The Dangerous Proximity Test: (Holmes, J)
A person is guilty of an attempt when her conduct is in “dangerous proximity to
success” or when an act “is so near to the result that the danger of success is
very great.” [Nearness of the danger, greatness of the harm, degree of
apprehension felt]
4. The Indispensable Element Test: An actor
is not yet guilty of an attempt if they have not yet obtained control of an
indispensable feature of the criminal plan.
5. The Probable Desistance Test: An actor is not guilty of an attempt unless
he has reached a point where it was unlikely that he would have voluntarily
desisted from his efforts to commit the crime. A fact finder must find a “point
of no return” of an ordinary person in the actor’s shoes. (But how does a jury
of law-abiding citizens determine when an ordinary criminal would desist?) Seems like the “abnormal step approach”
6. The Unequivocality Test: An attempt occurs
when a person’s conduct standing alone, unambiguously manifests her criminal
intent.
Defense of Impossibility
Pure
legal impossibility (Affirmative defense)
Arises
where the law does not proscribe the goal that the defendant sought to achieve
as illegal. The simplest case of PLI
occurs when a person performs a lawful act when she believes she is committing
a guilty act but is not.
An actors
mistaken belief that he is committing Crime X does not make him guilty of attempted
crime X even if he is guilty of Crime Y.
Factual
Impossibility (Not a defense)
Exists
when a person’s intended end constitutes a crime, buts she fails to consummate
the offense because of an attendant circumstances unknown to her or beyond her
control. [Pick-pocketing an empty
pocket is still an attempt].
Inherent
factual impossibility (may be a defense)
Applies
if the method to accomplish the crime was one that “a reasonable person would
view as completely inappropriate to the objectives sought.”
Example:
voodoo doll.
Legal
Impossibility (modern trend is that this is no longer a defense)
Where a
factual mistake of the actor relates to the legal status of the defendants
conduct. And where the act if completed
would not be criminal.
Example:
Trying to bribe a juror who in fact is not a juror. However this, as Dressler argues is merely semantic difference
between L I and F I.
Defense of Abandonment
Although there is disagreement on the matter most scholars believe that abandonment was not a common law defense to attempt and many courts today continue to decline to recognize the attempt. To the extent that the defense exists today it applies only when the defendant voluntarily and completely renounces her criminal purpose.
(1) A person is
guilty of an offense if it is committed by his own conduct or by the conduct of
another person for which he is legally accountable, or both.
(2) A person is
legally accountable for the conduct of another person when:
(A)
acting with the kind of culpability that is sufficient for the commission of the
offense he causes an innocent or irresponsible person to engage in such
conduct; or,
(B) he is made accountable for
the conduct of such other person by the Code or by the law defining the
offense; or,
(C) he is an accomplice of such
other person in the commission of the offense
(3) A person is
an accomplice of another person in the commission of an offense if:
(A) with the purpose of
promoting or facilitating the commission of the offense, he
(i)
solicits such other person to commit it, or
(ii)
aids or agrees or attempts to aid such other person in planning or committing
it; or
(iii)having
a legal duty to prevent the commission of the offense; fails to make the proper
effect so to do; or
(B) his conduct is expressly
declared by law to establish his complicity
(4) When causing
a particular result is an element of an offense, an accomplice in the conduct
causing such result is an accomplice if he acts with the kind of culpability,
if any, with respect to the result, that is sufficient for the commission of
the offense
(5) A person who is legally incapable of
committing a particular offense himself may be guilty thereof if it is
committed by the conduct of another person for which he is legally accountable
, unless such liability is inconsistent with the purpose of the provision
establishing his liability.
(6) Unless
otherwise provided by the Code or by the law defining the offense, a person is
not an accomplice in an offense committed by another person if
(A) he is a victim of that
offense, or
(B) the offense is so defined
that his conduct is inevitably incident to its commission, or;
(C) he terminates his complicity
prior to the commission of the offense and
(i)
wholly deprives it of effectiveness in the commission the offense or
(ii)
gives timely warning to the law enforcement authorities or otherwise makes
proper effort to prevent the commission of the offense.
Principle in the First Degree.
A person is the principle in the first-degree if, with the mens rea prepared for the commission of the offense, he uses a non-human agent or a non-culpable human agent to commit the crime.
A “principle in the second degree is one who is guilty of an offense by reason of having intentionally assisted in the commission thereof in the presence, either actual or constructive, of the principle in the first degree.
What is
constructive presence?
A person is constructively present if he is situated in a position to assist the principle in the first degree during the commission of the crime like a lookout or a getaway driver.
An accomplice is a person who with the requisite mens rea, assists the primary party in committing an offense. There are three basic types of assistance;
Assistance by psychological influence occurs if S incites, solicits, or encourages P to commit the crime.
While presence alone is insufficient to justify conviction as an accomplice, presence coupled with very little else will justify a finding of accomplice liability.
An intent of S to help P is sometimes broken down into dual attempts.
However when the mental state required is recklessness or negligence a problem occurs and not all courts agree.
A spontaneous and unannounced withdrawal will not avoid accountability for the criminal acts. An accomplice must communicate his withdrawal and make bona fide efforts to neutralize the effect of his prior assistance.