CRIMINAL LAW CHARLOW I. JUSTIFICATION FOR PUNISHMENT a. Blame and Punishment i. Regina v.

Dudley and Stephens Stranded boat, no food/water, ate boy Never a justification for killing an innocent; the only justification would be necessity (ex. Selfdefense), but there is no absolute necessity to save your own life. II. WHY PUNISH? a. Theories of Punishment i. Retribution backward looking; seek to justify punishment on the basis of the offender s past behavior (punishment because the offender deserves it); ii. Utilitarian forward looking; Punishment serves useful purpose to prevent crime; 1. Deterrence; Rehabilitation; Incapacitation III. CULPABILITY a. Every crime consists of three types of elements 1) Criminal conduct; 2) attendant circumstances; 3) Result; IV. ACTUS REUS A voluntary act or omission; a. POLICY: Rational for voluntary act requirement: people whose involuntary movements threaten harm to others may present a public health or safety concern, but they do not present a problem of correction. b. The requirement of Voluntary Action i. Martin v. State Drunk on a public highway statute: while intoxicated, appears in any public place P claims brought to public place by police If the act is involuntary, then there is no crime. ii. People v. Newton Officer pulls over D, D shoots officer while unconscious (Unconsciousness is a complete defense. Exception: incapacitated, self-induced impairment) If unconscious not a crime. c. Acts cannot be regarded as involuntary simply because 1) doer does not remember it, 2) doer cannot control his impulse to do it and 3) it is unintentional or consequences are unforeseen. d. Omissions i. Jones v. United States P failed to take care of baby baby dies - Inaction (omission) can be a crime if you have a legal duty. 1. Duty to Act can be established when: 1) statute imposes a duty; 2) one stands in a certain status relationship to another; 3) one assumed a contractual duty to care for another; 4) one has voluntarily assumed the care of a helpless person / secluded the helpless person from others who could aid; 5) If by your criminal act you cause a danger then you have a duty to rescue. ii. Pope v. State bystander observed mother (who had mental illness) kill her baby Failure to act, not crime - A moral duty does not supersede a legal duty. 1. Moral duty alone is not enough to establish a legal duty. 2. POLICY: Bystanders are not liable so that we don t discourage people from assisting due to fear of being liable. iii. MPC 2.01(3) Liability for the commission of an offense may not be based on an omission unaccompanied by an offense unless: 1. The omission is expressly made sufficient by the law defining the offense; or 1

CRIMINAL LAW CHARLOW 2. A duty to perform the omitted act is otherwise imposed by law V. ATTENDANT CIRCUMSTANCES Certain circumstances that must have existed at the time of the act. Absent of showing of these circumstances the conduct will not constitute a crime. a. IE: Statute says: It is an offense to injure a federal officer while that officer is performing his duty i. Attendant Circumstances: 1) Victim is a federal officer; and 2) the officer was engaging in his official duties at the time of his injury. VI. MENS REA Culpable mental state; the kind of awareness or intention that must accompany the prohibited act, under the terms of the statute defining the offense. a. Model Penal Code On Mens Rea i. MPC 2.02 - General Categories of Culpable Mental States; one of these mens rea is required for each material element of an offense; (look at each element, decide the mens rea) 1. Purposely (aim or intend) a person acts purposely with respect to a material element of an 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 that they exist 2. Knowingly (awareness of conduct/intended circumstances and practically certain of result) 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 3. Recklessly (awareness of substantial and unjustifiable risk) 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 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 a gross deviation from the standard of conduct that a law-abiding person would observe in the actor s situation 4. Negligently (reasonable person would ve been aware of the risk) 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 ii. MPC 2.02(3): Culpability Required Unless Otherwise Provided If the mens rea for an element is not prescribed by law, element is established if act is done purposely, knowingly, recklessly. 2

CRIMINAL LAW CHARLOW iii. MPC 2.02(4): Prescribed Culpability Requirement Applies to All Material Elements If the law defines mens rea as sufficient for an offense, then that provision applies to all material elements. b. Motive v. Mens Rea: Motive is irrelevant to criminal liability; may establish reliable evidence that defendant committed a crime. c. Malicious Defined - minimum mens rea of reckless. i. Regina v. Cunningham D stole gas meter from basement; gas released through rubble wall; caused asphyxiation of women next door; - To prove a mens rea you must prove a mens rea for each element of the crime. ii. Regina v. Faulkner D tries to steal rum from ship; ship catches on fire; did not intend to set fire; - Intent to commit one crime does not transfer to unforeseen unintended acts. d. Specific Intent vs. General Intent i. General Intent The intent to commit the act; does not need to have intended to violate the law, nor be aware that the law made his act criminal. (Must have just intended the act in general) ii. Specific Intent Certain crimes require, in addition to general intent, intent to do some further act or cause some additional consequence beyond what was required to commit the crime. 1. IE: Burglary requires intent to commit a felony on the premises although actual commission of the felony is not part of the actus reus. e. State v. Hazelwood Exxon Valdez; Tanker spilled gross amount of oil after hitting reef; Ordinary negligence is negligence; may hold to civil negligence; - Negligence does not require the party to be aware of the risk. f. Santillanes v. New Mexico D cut the neck of a 7 year old during an alteration; - Criminal negligence is something more than ordinary negligence. i. Criminal Negligence - Failed to perceive a risk that a reasonable person would see; g. United States v. Jewel convicted for transporting marijuana from Mexico; D did not know drugs were in car; should have known, chose to avoid knowing - Deliberate ignorance is not a defense. i. Willful blindness Aware of the high probability of an existence of fact ii. MPC 2.02(7) - 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 exists h. Strict Liability Criminal liability without a mens rea requirement. Whether a crime imposes a strict liability turns upon legislature s intent. i. Public Welfare 1. United States v. Balint - Ds indicted for selling drugs w/o required order form D argued that indictment failed to charge that they knew that they were selling prohibited drugs proof of knowledge was not required by statute - If emphasis of legislative intent of statute was upon social betterment rather than the punishment of the crimes, mens rea may not be required. i. POLICY: Overriding need for deterrence because you want people who produce the product to be responsible. 2. United States v. Dotterweich - 2 occasions Pharma. Company received mislabeled meds from manufacturer and thus they mislabeled the drugs they sent to doctors statute required no mens rea (different than Regina v. Prince) - In the interest of the larger good the burden of not acting hazardously 3

CRIMINAL LAW CHARLOW should be placed upon the person who is responsible for the danger even if that person did not have knowledge of the hazard 3. POLICY: Courts are more likely to impose strict liability for regulatory or public welfare offenses when they regulate crimes that are potentially dangerous to the public (establishing an individual s mens reas, thus culpability, is less important when protecting the public) ii. Morissette v. United States - D took spent bomb casings from air field that have been rusting; flattened and sold them; D thought casings abandoned - crime to knowingly convert government property - Common law offenses that were generally known to have an intent element or mens rea should continue to have that element even if not expressly required by a statute. iii. Staples v. United States - D claims did not know weapon could fire automatically; Gvt. says regulation of dangerous weapons falls in line with public welfare and regulatory offenses (strict liability/no mens rea) Mens rea is required if strict liability would create a risk of convicting innocent people who do not even know that their actions constitute a criminal act. 1. POLICY: Courts are unlikely to find strict liability and a mens rea is likely to be read into the statute because of the we don t want to harshly punish individuals without proving blameworthiness. i. POLICY: Mens rea establishes the blameworthiness of the actor. j. POLICY: Mens rea filters out those most dangerous to society. Requirement of mens rea narrows the focus on people that intentionally engage in dangerous conduct and to ensure society is protected from them. VII. CAUSATION Relationship between the actus reus/mens rea and the result. Mens Rea/Actus Reus ----[ Causation ] ---- Result y But for = Factual Causation y Proximate Cause = Sufficiently direct cause (Foreseeability Test) y Subsequent Human Actions a. MPC 2.03: Causal Relationship Between Conduct and Result; i. MPC 2.03 (1): Conduct is the cause of a result when: (a) It is an antecedent but for which the result in question would not have occurred ii. MPC 2.03 (2): When purposely or knowingly causing a result is an element of an offense, the element is not established if it is done purposely or knowingly unless (a) Actual result differs only in the respect that a different person/property is injured; OR injury or harm would have been more serious or more extensive than that caused; OR (b) actual result involves the same kind of injury or harm as that designed or contemplated and is not too remote or accidental in its occurrence to have a just bearing on the actor s liability or on the gravity of his offense. iii. MPC 2.03 (3): When recklessly or negligently causing a particular result is an element of the offense, element not established if actual result is not within the risk of which the actor is aware unless: (a) actual result d8fferes from the probable result only in that a different person/property is injured or affected; OR that the probable injury or harm would have been more serious or more extensive than that caused; OR (b) actual result involves the same kind of injury or harm as the 4

CRIMINAL LAW CHARLOW probable result and is not too remote or accidental in its occurrence to have a [just] bearing on the actor s liability or on the gravity of his offense. iv. MPC 2.03 (4): (strict liability) When causing a particular result is a material element of an offense for which absolute liability is imposed by law, the element is not established unless the actual result is a probable consequence of the actor s conduct. b. Two Types of Causation: (both must be proved to impose liability) i. Factual Causation ( but for ) but for the defendants acts the result would not have happened as, and when it did. Does not require that D s acts alone caused the result. ii. Proximate Causation D s act must bear sufficiently close relationship to the resulting harm. (Foreseeability is the measure (test) of proximate cause) 1. General Rule: D will be considered the proximate cause if the result occurred as a natural and probable consequence of his act and no intervening factor sufficient to break the chain of causation affected the events. 2. POLICY: foreseeability is required because you have to show sufficient blameworthiness; it is unjust to blame D for something that is not foreseeable. Courts should require foreseeability in order to deter the criminal act. c. Direct Causation: Ds act caused the result without involvement of an intervening factor. d. Causation through Intervening Causes: Other factors such as actions of others people intervene and contribute to the result. e. Foreseeability i. People v. Acosta Recklessly fleeing from police in stolen car; two police helicopters collide in air; D convicted of murder D claims deaths in air not foreseeable; - Court held D was but-for cause and there was proximate cause - If risk of death is foreseeable (not the manner they occur, only that death in general is foreseeable), then D s act is proximate cause. 1. Dissent: You have to foresee the manner in which the person dies, rather then just foresee that death can occur and that a helicopter crash is not foreseeable because it is a highly extraordinary event. ii. People v. Arzon - D starts fire on 5th floor abandoned building; another fire started by someone else on 2nd floor; smoke makes evacuation nearly impossible; fireman injured then dies; D claims that murder requires a causal link b/w underlying crime and death Court held D s conduct was a sufficiently direct cause of D s death and that it was foreseeable that firemen would respond and be put in danger 1. If D s act sufficiently direct cause of death and ultimate harm should have been foreseen as being reasonably related to D s acts, then liable. 2. If D s act actively participated in the death and left victim where he was particularly vulnerable to separate and independent force than proximate cause. iii. People v. Warner-Lambert Co. (Exception) D must have foreseen the specific event that triggered the explosion, but b/c specific event that triggered explosion was unknown, D not liable. iv. People v. Kibbe - D s conduct was sufficiently direct cause of the ensuing death to warrant criminal liability and that it is not necessary that the ultimate harm be intended by the actor. It is sufficient that the ultimate harm is foreseeable and reasonably related to the act of the accused. 5

CRIMINAL LAW CHARLOW f. Subsequent Human Actions - Subsequent Actions Intended to Produce the Result i. Superseding intervening human act breaks the chain of causation. Where intervening factor that causes the result is a human agent, then we do not use foreseeability as the test for proximate cause. 1. Superseding Act - An additional act or occurrence that will supersede the D s act as the legally significant casual factor. The superseding act must be intervening and is set in motion after D s act. A pre-existing condition cannot be a superseding factor and will not break the chain of causation. ii. People v. Campbell - D/victim drinking; victim slept w/D s wife; D encouraged victim to kill himself; D sold victim gun; victim killed himself D charged w/murder Court held that suicide by definition excludes homicide and D had not intent Hope alone does not create the intent required for homicide. iii. People v. Kevorkian D allegedly assisted in suicide of 2 individuals before MI enacted statute prohibiting assisted suicide; indicted on two counts of murder Court held that there is a distinction between active participation and involvement in the events leading up to suicide 1. D can be charged with murder if death was a direct and natural result of D s act. 2. If D merely participated in the events leadings up to the commission of the final act, such as furnishing the means, than its not murder 3. General Rule on assisted suicide: One who successfully urges/assists another to commit suicide is not guilty of murder, at least so long as the deceased was mentally responsible and was not forced, deceived, or otherwise subject to pressures rendered his action partially involuntary. 4. MPC 210.5: Permits convicting a person of criminal homicide for causing another to take his life but only if he purposely causes such suicide by force, duress or deception. iv. Stephenson v. State - D kidnapped victim; bit/wounded her w/intent to rape; victim took poison in attempt to commit suicide; became sick, D took her to her parents house; later died due to combination of shock, loss of food and rest, poison, infection and lack of early treatment (none of which would have killed her singly) Court held D was proximate cause of D s death - If D inflicts both physical and mental injuries, the natural and probable result of which would render the deceased mentally irresponsible and suicide followed, then D guilty of murder. 1. The voluntary action of a responsible human agent breaks the chain of causation 2. Hypo: she never takes the poison, gets to go home, gets depressed over the next few months (2-3 months later) but would Ds be responsible for her death? When she kills herself she is not subject to his will (while at the time she killed herself w/the poison in the actual case she was subject to his will). Here, D would not be liable (even though it may be foreseeable) - Free will of intervening agent breaks the chain of causation. 3. Test to determine if intervening act breaks chain of causation: If D s act (of which the probable consequence is death) renders victim mentally irresponsible, then victim s act is not an intervening cause (no break in chain of causation). v. Rex v. Valade - D rapes girl and she jumps out a window to get away from him and dies Suicide is not foreseeable act (not the natural and probable consequence of 6

CRIMINAL LAW CHARLOW rape) but D rendered victim mentally irresponsible, thus, he is liable. vi. State v. Preselar husband not liable for wife s death when they had a fight, she left and slept outside her father s house and died from exposure. 1. Hypo: she sleeps outside the house three times and on the third-time she dies now it s foreseeable but whether the actions were foreseeable, court would not find D liable for her death b/c her act was an intervening act 2. Hypo: husband tells him that he loves his wife and that if she leaves him, he will kill himself, and when she told him that she didn t love him in the past, he tried to kill himself wife serves him with divorce papers and he kills himself Is she liable for his death? But-for and proximate cause (foreseeable) but husband s act was superseding act (she did not render the victim mentally irresponsible) g. Subsequent Human Actions - Subsequent Actions That Recklessly Risk the Result i. Commonwealth v. Root - Deceased challenged D to engage in car race; deceased attempted to avoid D, swerved, went into oncoming traffic and was killed Court held D not a direct cause of death - If victim is aware of D s reckless conduct that may cause serious harm or death and participates anyway, not murder by D. 1. Dissent: D s recklessness was a substantial factor (fulfilled the proximate cause test) victim s death; D s conduct was direct cause of resulting collision. 2. POLICY: Criminal D s should not be held to the proximate cause standard of civil liability because criminals could be held liable for unlawful or reckless conduct in circumstances not generally considered to present the likelihood of death. ii. People v. Kern D s actions were sufficiently direct cause of victim s death Ds cannot complain that in feeing their assault, deceased chose the wrong escape route. iii. State v. McFadden Drag racing Sulgrove lost control of car; hit a third car; D claimed that court used civil standard of proximate cause not direct causal connection ; did not agree with Root Court held Decedent s voluntary and reckless participation in drag race does not absolve D from being convicted; - No direct causal connection standard is required for proximate cause; foreseeability and recklessness are sufficient. iv. Commonwealth v. Atencio - Indicted for manslaughter Played Russian Roulette w/victim - Ds both pulled trigger and nothing happened deceased pull trigger and died Court held that D s conduct was a concerted action and their cooperation helped bring about victim s act - If D s conduct helped to bring about deceased s foolish act, then a proximate cause. 1. Different than drag racing because drag racing requires a certain amount of skill, while Russian Roulette is pure luck. (Charlow doesn t agree) v. Exception to Superseding Human Act: 1. General Rule: Courts hold that drug dealers are responsible for foreseeable, through freely chosen, acts of purchaser (ignore intervening-act doctrine) VIII. DEFENSES a. Mistake of Fact An unintentional mistake in knowing or recalling a fact without the will to deceive; Mistake must negate the mens rea (MPC). i. Generally: Mistake of fact must be reasonable. ii. POLICY: D should not be convicted if he did not have the necessary mens rea. iii. MPC 2.04: Ignorance or mistake as to a matter of fact or law is a defense if: 7

CRIMINAL LAW CHARLOW 1. Ignorance negates mens rea; required to establish material element; 2. Statute permits; 3. MPC 2.04(2) Defense not available if the D would be guilty of another defense, had there been no mistake of fact, but ignorance or mistake reduces the greater degree of the defense. iv. Regina v. Prince - D convicted of taking an unmarred girl, under 16, out of the possession of her father without consent; D claimed girl said she was 18 Mistake of fact is not a defense for committing a criminal act. 1. Moral-Wrong Approach: If you are morally wrong, you are guilty. 2. Lesser-crime principle: If D knowingly commits one crime, he runs the risk of being convicted of a greater crime, even if he does not knowingly commit the greater crime. 3. Tender Age Presumption: the law wants to encourage extreme care in how we deal with the young (often strict liability for age) v. People v. Olsen - D was convicted of lewd conduct with a child under the age of 14; Victim told D she was over 16, Victim has sexual relations; D claims good faith belief as to age of victim; reasonable mistake of age defense can t be used; - Mistake of fact relating only to the gravity of an offense will not shield a deliberate offender from the full consequences of the wrong actually committed. 1. Majority opinion is that since the under 14 statute has a much greater penalty (because it s a much greater harm) it justifies strict liability 2. Dissent says they ve got it backwards: harsher punishment should not have strict liability because the penalty is so great; should not have punishment without a culpable mental state (a higher mens rea) 3. POLICY: The harsher the penalty, there is more of a need to prove blameworthiness to justify the penalty. vi. B (A Minor) v. Director of Public Prosecutions B (a minor) repeatedly asked 13 y/o girl for oral sex; she refused; accepted that B had honestly believed that the girl was over 14 honest belief matters, not reasonable belief (not US standard) Age is just an element of the crime and should not be treaded differently from the other elements (overruled Regina v. Prince for strict liability for tender age crime) - The more serious the offense, the greater weight must be attached to requiring proof of mens rea. vii. Garnett v. State - D (20 y/o retarded man) had sex w/13 y/o; D claims victim/friends told him victim was 16; trial court refused this evidence If the statute does not provide a mens rea, courts generally use the historical mens rea for the crime; any provision introducing a mens rea should come from legislature not the judge. 1. Dissent: Not allowing D to argue that there was a required mens rea, destroys concept of fault (correlation between blameworthiness and crime). 2. Generally American Courts uphold strict liability for rape. 3. POLICY: Protecting a child from risk outweighs any interest an individual may have when engaging in sexual relationshisp with children around the age of consent. b. Mistake of Law: i. Purpose of Mistake of Law: Encourage the public to read and rely on official statements of the law and not to have individuals to conveniently question the validity and interpret the law and act on their interpretation. 8

CRIMINAL LAW CHARLOW ii. Occurs in Two Different Contexts: 1. Because of the mistake D lacked the mens rea required. 2. D had the mens rea, but claims was mistaken about the applicable law and believed the law did not prescribe his conduct. iii. Ignorance to the law: 1. D passively ignorant regarding certain matters. 2. D reviewed the law, reached an affirmative but mistaken conclusion. iv. MPC 2.04(3): Mistake of law is defense when: 1. Statute or other enactment defining the offense is not known to the actor and has not been published or otherwise reasonable made available prior to the conduct alleged; or 2. He acts in reasonable reliance upon an official statement of the law, afterward determined to be invalid or erroneous (statute, judicial decision, administrative order, official interpretation of the public officer or body charged by law with responsibility for the interpretation) i. United States v. Albertini D convicted of trespass during protest; ruling overturned, waiting for certiorari; relied on judges reading, engages in another protest; - It is unreasonable to rely on an official statement of law if there is reason to believe it will be overturned. ii. Hopkins v. State State Attorney told D that he could erect signs so he did; prosecuted for putting up the signs State Attorney General was not reliable because they were not the one responsible for interpreting that particular law and it was unclear whether the advice was given in the Attorney General s official capacity. v. People v. Marrero D (fed correction officer) arrested in nightclub for having unlicensed gun; Mistake was definition of peace officer in CPL - D argued he was a peace officer therefore exempted from violation No mistake of fact def. because did not negate mens rea (no mens rea for peace officer element of crime) - Mistake of law not def. 1. Mistake of law is only a defense if D acts in reasonable reliance upon the law and afterward the law was determined to be invalid 2. Mistake of law is only a defense if a good faith belief in the legality of the law would negate an express and necessary element of the crime vi. POLICY: If we allowed Mistake of law defense would encourage people to be ignorant of the law. vii. POLICY: (for mistake of law defense) People shouldn t be punished if they made a reasonable mistake and did not intend to violate the law. No need for punishment to deter for future unlawful conduct. viii. Cheek v. United States - P convicted of willfully failing to file a federal income tax return; D argues tax laws are unconstitutional and under law did not think he was required to pay taxes; - willfulness requirement in criminal provision of the code requires proof of knowledge of the law - Good faith belief, if it is to negate willingness, does not need to be objectively reasonable. Duty under the law that you are violated has to have been known to you. 1. POLICY: Duty read into tax laws because they are complex and legislature only intends to penalize people who purposely do not pay taxes, not people who believe they do not have to pay taxes. ix. State v. Woods - woman incorrectly thought divorce decree was valid and was 9

CRIMINAL LAW CHARLOW charged for being found in bed with another woman s husband If the mens rea is not listed in the statute, the minimum requirement is recklessness. x. Lampert v. California - Appellant was arrested for another crime and charged w/violation of registration law; P had no knowledge of requirement Actual knowledge of the duty to register was necessary - Notice is required where a person, wholly passive and unaware of any wrongdoing is charged with a crime. 1. Would not be a defense under MPC 2.04(3)(a) b/c the law was published. IX. RAPE a. Elements of Rape: 1) Sexual intercourse; 2) By Force or Threat; 3) Without consent. b. Model Penal Code: i. MPC 213.1 Rape: (a): He compels her to submit by force or by threat of imminent death, serious bodily injury, extreme pain or kidnapping, to be inflicted on anyone; ii. MPC 213.2 Gross Sexual Imposition (a): he compels her to submit by any threat that would prevent resistance by a woman of ordinary resolution; c. Two Types of Rape i. Forcible Rape unlawful vaginal intercourse by means of force or threat against a person s will or without consent. 1. Common Law: Force is essential element of rape (No force, no rape): i. State v. Rusk - Victim met D at bar; D takes upstairs of victim s house; resists then complies; D lightly chokes; - light choking was objective force Force or Threat (Reasonable Fear) by the victim and against the will/consent of the victim must be established for rape. a. Force may prove the knowing element of consent (b/c he used force it proves that he knew that she did not consent) b. POLICY: Should be focusing the D s mens rea in order to determine his blameworthiness, and not on the victims mens rea (if she was fearful, how reasonable was fear, ect.) ii. State v. Alston - No fight, no force. Fear is not sufficient to establish force. iii. State v. Thompson - Force has to do w/bodily harm not w/compelling someone to submit to the act for another reason iv. Commonwealth v. Mlinarich - Force when it comes to rape, means physical force or violence. 2. Eliminating the Force Requirement: i. State in the Interest of M.T.S. MTS (minor) engaged in unconsented sexual penetration; no evidence of unusual/extra force or threats to accomplish penetration Exception: rape requiring mens rea and non consent only - Sexual penetration is sufficient force, no additional force is required. ii. Statutory Rape maybe consensual, but consent is ineffective because of the victim s age. (Mistake of Fact) d. Absence of Consent - Most Statutes require force and consent (except MTS) i. Schools of Thought on Consent: 1. Verbal resistance (saying no ) and behavior that makes it clear 2. Verbal resistance alone ( no always means no) 3. Verbal resistance or passivity, silence or ambivalence (anything other than affirmative permission by words or conduct) 10

CRIMINAL LAW CHARLOW 4. All words and actions other than express verbal permission (everything other than saying yes ) ii. Defective Consent (lacks capacity to give consent) 1. Age or Mental Retardation 2. Drugs and Alcohol i. People v. Giardino - Effect of intoxicants on victim s powers of judgment, rather than on victim s powers of resistance. e. Mens Rea: Minimum mens rea required: negligence i. Commonwealth v. Sherry Victim traveled to location with Ds; each D separately had intercourse; P claims was physically numb and could not resist; Ds claim that she consented In the case of rape; a reasonable mistake of fact is a defense. 1. Mistake of fact is based on reasonableness and must negate the mens rea required for the crime. If he was aware of mistake of fact than D was reckless; if he should of known of no consent, than D was negligent. (Easier to prove mens rea) ii. Judge in Lefkowitz case - If the woman says no, then there is no consent. 1. No means no Similar to School of Thought on Consent: Verbal resistance alone ( no always means no) iii. Commonwealth v. Fischer P didn t consent to 2nd sexual encounter; D relied on previous experiences w/ victim; D s beliefs that victim consented was reasonable and his actions could not be deemed forcible compulsion; D tries to link victim s consent and defendant s mens rea - D s belief of victim s consent is a defense if the law includes mens rea in one of the elements strict liability. iv. Commonwealth v. Simcock: Even if D does not know there is no consent, if even reasonable, there is no mistake of fact defense - have to have an affirmative consent strict liability. v. POLICY: The circumstances you have to prove for negligence or reckless are generally the same. In most cases choosing to prove one over the other wont produce a different result. X. HOMICIDE - Killing of one human being by another human being. INTENTIONAL KILLING Murder = Malice Aforethought Malice Aforethought y Intent to Kill Voluntary Manslaughter = y Gross Recklessness (depraved Intentional Killing with provocation indifference to the value of life) y Felony Murder UNINTENTIONAL KILLING Murder = Gross Recklessness Manslaughter = Gross Negligence y Knowledge of a substantial and y Reasonable person would unjustifiable risk know of a substantial and y Depraved indifference to the unjustifiable risk. value of life a. MPC 210: Criminal Homicide 11

CRIMINAL LAW CHARLOW i. MPC 210.1 Criminal Homicide 1. MPC 210.1 (1): A person is guilty of criminal homicide if he purposely, knowingly, recklessly or negligently causes the death of another human being. ii. MPC 210.2 Murder (first degree) 1. MPC 210.2 (1): Except as provided in 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. iii. MPC 210.3 Manslaughter (second degree) 1. MPC 210.3 (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. iv. MPC 210.4 Negligent Homicide (third degree) 1. MPC 210.4 (1): Criminal homicide constitutes negligent homicide when it is committed negligently. b. Premeditation/Deliberation i. Premeditation Can Be Instant (No Premeditation) 1. Commonwealth v. Carroll - turbulent marriage; D had a fight w/ wife; shot her with loaded gun that was on the windowsill; D argues there was insufficient time for premeditation - No time is too short for premeditation. i. Premeditation: the instant you formulate the intent to kill. ii. POLICY: By removing the requirement of premeditation you are removing the grading of murder, making them all of 1st degree. ii. Murder With Premeditation 1. State v. Guthrie - D stabbed co-worker in the neck after being made fun of at work Court held must be a period of time from the formation of the intent to kill and the actual killing to indicate the killing was calculated and designed. (mens rea = purposely) - 1st degree murder requires a period of reflection between the intent to kill and the actual killing (premeditation). i. Proof of Reflection/Premeditation requires (any or all): 1) relationship of the accused to the victim and the condition of the relationship at time; OR 2) planning activity; OR 3) reason to deliberately take life. 2. People v. Anderson - Man kills girl w/knife, 60 stab wounds, some done after her death Court held not planned/designed b/c explosion of violence Brutality, in this case, proves that it was 2nd not 1st degree because there was no premeditation. i. POLICY: Using reflective vs. impulse crimes may not get you the best result (See Anderson) 12

CRIMINAL LAW CHARLOW POLICY: In the case of a mitigated sentence of a conviction of murder should not depend on a distinction between impulse and deliberation (See MPC) c. Provocation Justification to mitigate murder. i. Cooling Time common law view that too long a lapse between the provocation and the act of killing renders the provocation inadequate as a matter of law (issue of provocation would not go to the jury) ii. Girouard v. State - D murdered wife after verbal altercation stabbed her and then tried to kill himself - To mitigate murder to manslaughter, must have adequate provocation. 1. Common law rule: Provoking words are not enough; something more is required. 2. POLICY: Cannot allow domestic altercations to lead to death. iii. Maher v. People D saw victim go in woods w/ wife; evidence of adulterous intercourse; D goes in bar; shot victim in the ear Jury decides what adequate provocation (sufficient or reasonable) to mitigate murder to manslaughter. 1. POLICY: Mitigation permitted because it was reasonable for the person to be provoked into a jealous rage, even though it is never reasonable to kill. 2. POLICY: It is retributive to mitigate murder to manslaughter with provocation because a reasonable person would be provoked in those circumstances. 3. POLICY: Partial Justification Rationale: To allow provocation as a partial excuse concedes to the frailty of human nature. An individual is to some extent morally justified in making a punitive return against someone who intentionally causes him serious offense. 1. POLICY: Provocation takes into the account the blameworthiness of the victim. 2. Transferred Intent for Mitigating Murder to Manslaughter i. Hypo: Maher saw wife have affair, he then shoots Hunt and kills someone else when bullet went through Hunt and hit them (manslaughter for murder of Hunt) killing of innocent bystander (transferred intent) no defense of provocation b/c you did not kill the provoker. iv. State v. Mauricio - Bouncer throws guy out of bar; waits in parking lot; shoots wrong person, thinking it was the provoker; - Reasonably provoked and it does not matter as long as you intended to kill the provoker. v. Rex v. Scriva and People v. Spurlin both Ds killed non-provoker Courts held that no provocation defense was available w/respect to charges of murdering nonprovoking persons Courts will call it murder. vi. People v. Casassa D stalked woman after break up; brought gift to victim, victim refused; D stabbed victim and submerged her body in bathtub; D claims EED at time of killing; Reasonableness in Extreme Emotional Disturbance defense is determined from the viewpoint of a person in D s situation under the circumstances as believed by D. (subjective) 1. D can get to jury without evidence of provocation on EED defense. 2. EED is a form of Provocation according to MPC 210.3(1)(b) 3. MPC s reasonableness from the actor s circumstances or situation: i. Do account for personal handicaps and external circumstances. ii. 13

CRIMINAL LAW CHARLOW ii. Do NOT account for idiosyncratic moral values. vii. D.P.P v. Camplin D (15 y/o boy) killed sexual abuse and taunting about sexual abuse Individualized: age of D and invariant: do not look at it from the point of view of any of the characteristics of D 1. POLICY: A child has no self-control over being a child and we cannot expect him to act like a man in terms of self-control. d. Unintended Killings - Distinguishing Civil and Criminal Liability i. Civil vs. Criminal Liability (Ordinary vs. Gross Negligence) 1. Three factors to distinguish b/w criminal negligence and ordinary negligence: 1) high likelihood of harm; 2) seriousness of harm; (nature/severity or magnitude) 3) D s awareness of risk. ii. Four Levels of Punishment 1. 1) No liability, 2) Civil Liability (didn t mean it but have to pay for it); 3) Manslaughter (didn t mean it but created a risk of death); 4) Murder (you created a risk and killed someone) iii. Situations where you do not mean to kill but created risk of death that resulted in someone being killed: 1. Commonwealth v. Welanksy - D charged w/involuntary manslaughter based on overcrowding, installation of flammable decorations, absence of fire doors and failure to maintain proper means of escape; Court held 1) grave danger should have been apparent but D chose to run the risk rather than alter his conduct and must have been apparent means that it would have been apparent to a reasonable person (not particular D) and 2) intentional act and (if fire happens) high likelihood substantial harm (serious harm or magnitude) will result - Wanton or reckless conduct does not become criminal unless it passed negligence and gross negligence. 2. Hypo: Woman was driving to try and get away from husband who tried to kill her; kills pedestrian She would be guilty of negligent homicide (substantial risk of death but not justified in risking someone else s life to risk your own) 3. MPC (210.3 - Manslaughter) and (210.4 Negligent Homicide): distinction is whether the actor was aware of the unwarranted risk he was committing 1) Manslaughter: reckless (consciously disregarded risk) 2) Negligent homicide: negligent (should ve known risk & failed to perceive it) 4. People v. Hall - D skiing and collided w/Cobb Cobb died D charged w/felony reckless manslaughter Jury likely to have found that D was not aware of the risk b/c D was cocky and was not aware of the risk - If reckless, must consciously create substantial and unjustifiable risk of death that is a gross deviation from standard of care. 5. State v. Williams - D convicted of manslaughter for negligently failing to supply 17 m/o baby w/medical attention and he died had duty, and breached it - If negligence proximately causes the death of the victim, D is guilty of statutory manslaughter. i. Guilty under ordinary negligence and MPC because it considers external factors, not internal factors. e. Murder vs. Manslaughter i. Factors to distinguish between Murder and Manslaughter: 1. Likelihood: high likelihood does not mean that it is likely (probable to 14

CRIMINAL LAW CHARLOW occur) Does not distinguish Murder from Manslaughter i. IE: Welanksy had a low likelihood of fire (death), but Malone had a high likelihood. 2. Gravity: Number of lives risked is not relevant nor is the type of injury (serious bodily harm and death) Does not distinguish Murder from Manslaughter i. IE: Malone killed one person, while Welanksy killed many. 3. Justification: Does not seem to distinguish murder from manslaughter i. IE: Malone was for thrill, Welansky was for money. 4. Awareness: Seems to be what distinguishes murder from manslaughter (because manslaughter does not require awareness of the risk, unlike murder which does) i. IE: Malone knew that spinning the chamber, therefore he knew of the risk, Walasky was not taking the risk intentionally; he should have known that he was taking the risk by locking the door. ii. Commonwealth v. Malone D/victim played Russian Roulette; D pulled trigger 3 times; 3rd time, shot victim The court held malice does not necessarily malevolence towards victim; gross recklessness exhibits the type of state of mind needed for malice Malice is an act with the conscious disregard for life. iii. United States v. Fleming D speeding; driving in the opposite lanes of traffic and killed another driver - D will be held for any risk he would have been aware of had he been sober (a reasonable person would have realized the risk) f. Felony Murder-Felony i. Felony murder: a killing committed during the commission of a felony. No mens rea for the death, mens rea only for the felony. 1. Felony murder rule exists to encourage people to commit felonies more carefully. Deterrence for committing the felony dangerously. 2. People are convicted of murder without the required culpability for murder. ii. Misdemeanor manslaughter: involuntary manslaughter in the commission of an unlawful act (not a felony). Misdemeanor manslaughter can provide a basis for involuntary manslaughter conviction without proof of recklessness or negligence. The rule is unpopular and used in limited circumstances. iii. Model Penal Code: attempts to replace felony murder rule. D must prove that he is not grossly reckless in killing someone while committing the felony (shifts burden of proof from State to D). Recklessness is presumed for certain crimes. iv. Causation: Felony murder does not eliminate the causation element of the crime. It removes the mens rea required for the killing, but leaves the mens rea required for the crime itself. v. POLICY: If its not the statute, expressed inclusion implies exclusion of those not listed. vi. POLICY: Conversely, the most someone can do is sustain a person from participating in anything that may cause death, but this does not consider accidents. No amount of punishment is going to deter an accident. Strict liability for felony murder prescribes severe punishment without proof of fault and does so on unproven assumptions. vii. Regina v. Serne - D was charged w/murder of his son for willfully setting on fire his house and shop - You have to intend to commit the felony and the act must known to be dangerous and likely to cause death. 15

CRIMINAL LAW CHARLOW viii. People v. Stamp - victim was a 60 y/o obese man who suffered a heart attack shortly after being robbed at gun point by D Foreseeability was not required; Strict interpretation of felony murder (minority view) - There is a strict liability for killings that are a direct causal result of a felony. ix. Inherently Dangerous Felony Limitation (Limit Serne) 1. People v. Phillips - Victim (8 y/o) had cancer; hospital said remove eye; D (chiropractor) said could cure victim w/o surgery; victim died 6 months later If felony is not inherently dangerous, then no felony-murder. i. Looked at the felony in the abstract and there are ways to commit the felony without killing. It does not look at the felony as committed. ii. People v. Henderson Kidnapping; because there was two nonviolent ways, D would be not guilty - Felony should be viewed as a whole. 2. People v. Stewart - Mother of infant went on crack binge and did not feed child; child died of dehydration; D claims child neglect statute is not an inherently dangerous felony and cannot serve as the predicate felony for felony murder charges If a felony is inherently dangerous in the manner and the circumstances in which is was committed, then felony murder. (typical standard) 3. Hines v. State - While hunting, D mistook his friend for a turkey and shot him; D claims that possession of a firearm by a convicted felon while turkey hunting is not inherently dangerous; - Court held that because of the circumstances, (D drinking, shot in heavy foliage, knew others were around) D should have foreseen the inherent risk of death (negligence) - If violation of the felony created a foreseeable risk of death, then it is an inherently dangerous felony that could support a felony-murder conviction. i. Standard of foreseeable risk of death is lower than standard of high probability of death (dissent) 4. Three Approaches to Inherently Dangerous Standard i. Felony as defined (abstract) ii. Felony as committed created a foreseeable risk of death iii. Felony as committed created a high probability that a person would be killed. x. The Merger Doctrine 1. Merger Doctrine Tests i. Ireland - assault w/deadly weapon merged w/murder (integral part of the felony and therefore merges) - There is more to a robbery than just force there is a taking robbery would not be included-in-fact under Ireland. a. Is the felony included in fact of murder? (Yes, Merger) ii. Burton - no merger and can be felony-murder (independent felonious purpose) problem: if purpose is to hurt someone, you are less liable then someone who is less culpable a. Does the felony have an independent felonious purpose? (Yes, No Merger) iii. Hansen If for the most part the felony does not cause death, it will not bootstrap all violations to murder, if felony murder rule is applied. 2. People v. Burton - D killed person while committing robbery; D claims that 16

CRIMINAL LAW CHARLOW armed robbery is an offense included in fact within the offense of murder and such offense cannot support a felony-murder instruction If the purpose of the underlying felony was to assault, then cannot use the predicate felony. If there is an independent felonious purpose (other than to commit homicide), then felony-murder instruction is appropriate. i. Problem with Burton Test: If your purpose was to hurt someone you are less liable then someone who committed a felony with an independent felonious purpose because that person cane be charged with felony murder. 3. POLICY: Courts are looking to inject fairness into the felony rule (merger doctrine) and are trying to bring back culpability back into a scheme that does not require culpability. 4. Issue With Merger Doctrine: Where malice is most likely has to be proved and where most unlikely it s assumed. xi. Killings Not In Furtherance of the Felon 1. Three situations where felony-murder requirement (act of killing must have been done in furtherance of felony) makes liability problematic: i. Lethal act occurs after felony has terminated. ii. Co-felon causes the death by an act unconnected to the felony and not in service of it (felony was on a frolic of his own ) iii. Act immediately responsible for causing the death is committed by a person opposing the felony (other than the felon) 2. Different rules in jurisdictions for whether D is liable for a killing done by a co-felon: i. Agency Theory: 1) D and co-felon were complicit, 2) killing done in furtherance of joint common plan a. Exception: Shield Cases D liable for felony murder if a police officer shoots someone while the D uses victim as shield (expressed malice and D was gross reckless) ii. Proximate Cause: death has to be result of unlawful activity 3. State v. Canola D/co-felons were in the process of robbing store; victim of the robbery, in resistance, shot a co-felons and killed him; D did not kill anyone - Felony murder does not apply to murders committed by third-parties during the commission of the felony (agency theory) 4. POLICY: Assumption of the risk theory not used in criminal law because we value human life and each life, even that of felons, means something. 5. Gilbert Rule: If you are engaging in a felony that there is a foreseeable danger that someone will be killed, and you are conscious of that danger, court will assume gross recklessness and you will be responsible for death even if someone else committed the killing (not just co-felon, third party). State would have to prove D was aware he was committing a felony that knew risked death. 6. Model Penal Code does not provide for felony murder, but allows for implied malice. Where a killing by a non-felon occurs during a highly dangerous felony, the felons may be held for implied malice or depraved heart murder without resorting to the felony murder doctrine on the ground that the felonious actions were taken with a conscious disregard for life. 17

CRIMINAL LAW CHARLOW XI. ATTEMPT a. Model Penal Code on Attempt: i. MPC 5.01 (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; i. Mens Rea Element: Mens rea the same as the crime intended. 2. MPC 5.01 (1) (a) purposely engages in conduct which would constitute the crime if the attendant circumstances were as he believes them to be; or i. Covers impossible attempts. (Guilty in factual legal and hybrid impossibility) 3. MPC 5.01 (1) (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 4. Result Element: Purpose to cause the result. 5. MPC 5.01 (1) (c) purposely does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting step in a course of conduct planned to culminate in his commission of the crime. ii. MPC 5.01 (2) Conduct Which 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. 1. MPC 5.01 (2) (g) soliciting an innocent agent to engage in conduct constituting an element of the crime (also common law rule) iii. MPC 5.01 (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 which 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. iv. MPC 5.01 (4) 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. 1. Not voluntary if its motivated by fear of apprehension. b. Common Law: i. At common law: attempts are misdemeanors. ii. Modern View: Usual punishment is a reduced factor of punishment for completed crime (half of punishment of actual crime). iii. No actual harm results from attempt. c. POLICY: For Attempt: i. Deterrence: MPC indicates that you do not need additional deterrence for attempt (when you are attempting a crime, you already know the penalty for the crime and you are doing it any way) not a strong argument for punishing attempt. ii. Retribution: blameworthy to attempt a crime culpable mental state to commit the crime (coupled w/some action) punishing the moral blameworthiness of trying to commit a crime. 1. Make the punishment levels generally the same or nearly the same for 18

CRIMINAL LAW CHARLOW solicitations, attempts, and completed offenses based upon the badness of the actor, not upon the fortuitousness of the results makes the consequence of soliciting premeditated murder punishable by a penalty for soliciting the making of a check of $101 w/o sufficient funds (analogy) iii. Retaliation for harm done: not usually the rationale for criminal law but we are punishing for the harm done (more punishment for actually committing the crime and half the punishment for the attempt) d. POLICY: Punish attempt less severely: i. No harm actually done but blameworthiness is not less. ii. Provides incentive not to commit the crime (if attempt was punished the same as regular crime, then someone having second thoughts would just go through with it at that point you have nothing to lose) iii. Locis penitentiae (room or opportunity to repent) can give them the defense of abandonment, provide information about other Ds reduce penalties. Most courts reject this standard because it is to close to the act. e. POLICY: Ideal attempt policy i. Use law enforcement notion as setting attempt at an early stage, but allow those who abandon attempt 1) voluntarily with a 2) complete renunciation of criminal purpose to use this as a defense. ii. Crime has been committed (all preparatory acts), you do not want to let crimes go unpunished. f. Mens Rea for attempt: i. Smallwood v. State Rapist has HIV and knew he was HIV positive. P did not wear condoms during intercourse. - An attempt requires a purpose (or specific intent) to produce the proscribed result, even when recklessness or some lesser mens rea would suffice for conviction of completed offense. 1. Because the victims did not die the mens rea required is purpose. Under the same circumstances if the victims died the minimum mens rea requirement is gross recklessness. ii. Murder vs. attempted murder (intent and specific intent): attempted murder requires a specific intent to kill, but it is sufficient for murder that D engages in conduct knowing of a high probability that in doing so he will kill someone. iii. Attempted Felony Murder: No attempted felony murder. 1. POLICY: Because every time you commit a felony with a weapon it would be considered attempted felony murder. g. Preparation vs. Attempt i. Proximity Test 1. King v. Barker - In order to constitute a criminal attempt, as opposed to mere preparation, the accused must have taken the last step which he was able to take along the road of criminal intent he must have done all that he intended to do and was able to do for the purpose of effectuating his criminal purpose. 2. R. v. White - The completion or attempted completion of one of a series of acts intended by a man to result in killing is attempt to murder, even though the completed act would not, unless followed by other acts, result in killing. 3. General Rule: To constitute a criminal attempt, the first step along the way of criminal intent is not necessarily sufficient and the final step is not necessarily required. 4. People v. Rizzo Ds were looking for the payroll man, but had not found or 19

CRIMINAL LAW CHARLOW seen the man they intended to rob. Arrested by police officers - The act or acts must come or advance very near to the accomplishment of the intended crime. i. Dangerous Proximity Test (common law): requires that act come very near (physically close spatial sense) to the accomplishment of the intended crime act was dangerously close to commission of the crime. a. POLICY: Dangerous proximity test discourages good police work. You want police officers to step in early. If you want to encourage Ds ability to repent (change his mind) then you make the criminality closer to the actual crime, and vise versa, if you want to encourage maximum protection of the victim you set the criminality further from the actual crime. b. POLICY: Conversely, you do not want to arrest people for merely driving around aimlessly. 5. Piesely case: D had a business, burnt his business down for insurance money. Set up combustibles, was going to set the place on fire (a block away from business, turns around and goes home) items found, arrested, and found guilty under dangerous proximity test, guilty ii. Abandonment 1. General Rule: No defense of voluntary abandonment once an attempt is completed. 2. McQuirter v. State Attempted rape acquisition of a black man following a white women and her children in the south, during the 1950s Evidence can be used to infer the mens rea of the crime. i. Unequivocal intent test: Intent is ambiguous (problem) need an act that is dangerous in some way ii. Unequivocal act test: When D s act demonstrates his attempt to commit the crime (an innocent or ambiguous act does not corroborate criminal intent) the act speak for itself the act itself tells you what the actor s intent is. iii. Under MPC: Act does not strongly corroborate actor s criminal intent. iii. Substantive crimes of preparation: 1. Burglary: Common law burglary was defined as breaking and entering a dwelling of another at night with the intent to commit some felony inside. Under common law of attempt, person apprehended while breaking into a dwelling with intent to commit a felony would not be guilty of attempt b/c he would not have arrived at the scene of projected felony. Cases and statutes today have enlarged the offense. 2. Assualt: Infliction of harm upon another (MPC) or an attempt to commit a battery. h. United States v. Jackson Attempted robbery. Ds went into bank twice, first time interfered with due to crowds. The second time was interfered with due to the FBI. i. To distinguish preparation from attempt (combines unequivocal act test and proximity test - similar act/close): 1. In addition to having the culpability for the crime, the act must be a substantial step towards the commission of the crime. i. Substantial Step: Designed to accomplish a criminal result and must 20

CRIMINAL LAW CHARLOW be strongly corroborative of criminal purpose. Strongly Corroborative: Is similar to the unequivocal act test and substantial step is similar to the proximity test. ii. Bill Trap Case: United States v. Harper - Ds took $20 from ATM so that when technical person came, they could steal the $ from the ATM had guns under push near bank Court held that Ds had not taken a step of substantiality unless frustrated crime would have occurred - Under MPC, this should have been a conviction too strict an interpretation of MPC. Solicitation i. State v. Davis - D hired an undercover police officer to kill his lover s husband to collect insurance money and live with lover. After several conferences and one aborted plan, the cop agreed to appear at the woman s home, kill the husband, rough up the lover and take her jewels. Cop arrived at husband s home, revealed his identity and went to D s home to arrest him Mere solicitation, unaccompanied by an act moving directly toward the commission of the intended crime, is not an overt act constituting an element of the crime of attempt. 1. If an innocent agent is used the defendant is responsible for the agents actions. The agent must get close enough. ii. MPC Criminal Solicitation: 1. United States v. Church Hitman hired to kill wife. Hitman was a cop, cop faked the death of the wife. D paid the cop after the fact, expressed satisfaction after death and identified his wife s body. i. The extent of the preparation of the crime can exceed mere preparation and become sufficient to establish the requisite overt act for attempt. ii. Evidence in the case constitutes a substantial step establishing the requisite overt act, amounting to more than mere preparation. Impossibility Intent to commit the crime, but under the circumstances, it was impossible to do. i. Factually impossible --> still guilty of attempt occurs when D s intended end or goal constitutes a crime but he fails to consummate the crime because of a factual circumstance unknown to him or beyond his control Policy: blameworthiness for the crime and D took every step possible (actus reus of the crime) mens rea and actus reus all there 1. Ex: empty pickpocket D puts his hand into an empty pocket intended end is to take someone else s property intended end is a crime but fails to consummate the crime because of fact (pocket was empty) it was impossible because of facts guilty 2. Ex: D tries to rape someone but impotent intended end is to commit a crime failed b/c of factual circumstance that is beyond his control ii. Legally impossible --> not guilty of attempt common law defense (not MPC) 1. 1) pure legal impossibility: situation in which the criminal law does not prohibit D s conduct nor whatever result he was trying to achieve i. Ex: prohibition D sells liquor, D did not hear about repeal of prohibition thinks he is selling illegal liquor sold liquor and not illegal to sell legal anymore criminal law does not prohibit his conduct or the result he was intending to achieve (selling illegal liquor) 2. 2) hybrid legal impossibility: situation that occurs where D s goal or aim is ii. 21

i.

j.

CRIMINAL LAW CHARLOW illegal but the commission of that crime is impossible due to a factual mistake made by D regarding the legal status of some factor relevant to the criminality of D s conduct 2 elements legal and factual aspects to the mistake (could be subset of factual impossibility) but consequences are different 2/3 of American jurisdictions no longer follow this rule old common law rule if you had the mens rea and actus reus for the crime, you should be guilty (MPC) i. Ex: bribing a juror set out to bribe a juror for my friend bribe a person you think is a juror goal is illegal (bribery) but made a factual mistake (not juror) gave him $50 and the guy takes it (the guy is not a juror) mistake regarding the legal status of some factor relevant to the criminality of D s conduct (the status as a juror or not a juror) the status of that person is relevant to whether conduct is criminal if person is not a juror, you are just giving someone $50 iii. MPC Criminal Attempt 1(a): 1. Intended to cover legal impossibility purposely engage in conduct which would constitute the crime if the attendant circumstances were as he believes them to be iv. People v. Jaffe man bought goods he thought were stolen, but the goods were actually not stolen. The act could not be a crime if committed, since D was mistaken as to the legal status of the goods. v. People v. Dlugash - Victim shot by 3rd party. D then shot victim. D claims that victim looked dead when he shot him. - A person is guilty of an attempt when, with intent to commit a crime, he engages in conduct which tends to effect the commission of such crime. (MPC 5.01 (1)(a): hybrid legal impossibility does not exist) vi. The Case of Lady Eldon s French Lace (Hypothetical) 1. Facts: Lady Eldon bought what she believed was French lace, hid it on the train to avoid paying the duty lace turned out to be an English manufactured article, of little value, and not subject to duty D believed it be to be genuine and intended to smuggle it into England i. Keedy Rule: What people intend to do is determined by what they do in fact, rather than by what they thought they were doing there was no intent on the part of D to smuggle dutiable French lace into the country and there could be no conviction of the crime of attempt to do so, since what she intended to do on this view, was not a crime (b/c lace turned out to be legal, she cannot be convicted since what she intended to do is reflected by her act bringing in legal lace) ii. Kadish, Schulhofer Rule: intent should be judged by what she believed she was doing, rather than what she did in fact Lady Eldon did not just think about smuggling French lace (not punishable since we do not punish mere thoughts) but she did everything in her power and all she thought necessary to smuggle French lace (she is not less blameworthy just because to her fortune, the lace turned out to be legal) what actually happened (bringing in legal lace) will not save D her from an attempt conviction if she believed that the circumstances were otherwise, and, had her belief been correct, what she set out to do would constitute a crime iii. Comment Rule: A person is guilty of attempt to commit a crime, if, 22

CRIMINAL LAW CHARLOW acting with the kind of culpability otherwise required for commission of the crime, he: a) purposely engages in conduct that strongly corroborates the required culpability and would constitute the crime if the attendant circumstances were as he believes them to be XII. GROUP CRIMINALITY a. MPC 2.06: Liability for Conduct of Another; Complicity i. MPC 2.06 (2) legally accountable when: 1. (a): acting with the long of culpability sufficient for crime causes an innocent or irresponsible person to engage in such conduct; or 2. (b): he is made accountable for the conduct of such other person by the Code or by the law defining the offense; or 3. (c): he is an accomplice of such other person in the commission of the offense ii. MPC 2.06 (3): A person is an accomplice of another person in the commission of an offense if: 1. (a) With the purpose of promoting or facilitating the commission of the offense, he i. (i) Solicits such other person to commit it; or ii. (ii) Aids or agrees or attempts to aid such other person in planning or committing it; or iii. (iii) Having a legal duty to prevent the commission of offense, fails to make proper effort so to do; or 2. (b) his conduct is expressly declared by law to establish his complicity iii. MPC 2.06 (4): When there is a result element. If D acts with the kind of culpability sufficient for the commission of the offense. (parallel rule) iv. MPC 2.06 (6): Not an accomplice if: 1. (a) Victim of offense 2. (b) Offense defined so that conduct inevitably incident to commission 3. (c) Terminates complicity and: i. (i) Wholly deprives if of effectiveness ii. (ii) Gives timely warning to law enforcement or makes other proper effort. v. MPC 2.06 (7): Accomplice s conviction is not contingent on prosecution of the principal (principal can be prosecuted for a different offense). b. Accomplice Liability: D is accountable for the conduct of another person if D assist or encourage that person to commit a crime. i. Principal: One who engages in conduct ii. Accomplice: One who assists or encourages the conduct of another. iii. When taking about accomplice liability: 1. Accomplice liability is derivative derives from the liability of the principal. At common law, this required a guilty principal. Liability derives upon someone else being liable. (does not require a convicted principal) 2. Accomplice is guilty of the substantive guilty of the substantive crime committed by the principal. There is no crime of accomplice liability There is no such thing as being guilty of accomplice, but instead it is a principle for holding you liable for substantive crime. 3. Does not matter what person (potential accomplice) does AFTER the crime 23

CRIMINAL LAW CHARLOW (cannot aid and abet a crime after the fact) iv. POLICY: Parties are guilty of the same crime, however extent of culpability is taken into account when sentencing punishment. v. Mens Rea 1. The accomplice must have the 1) purpose for the principal to engage in the act and 2) the purpose to assist or encourage (actus reas of accomplice) the principle to engage in the act. i. For some jurisdictions, more serious crimes only require mens rea of knowledge. ii. If attendant circumstances or result element are required the accomplice needs the parallel mens rea for the applicable element. a. Mens rea could be different for each element. 2. Hicks v. United States - Colvard shot by Rowe while D was present. D had instructed Colvard to remove his hat before he died. Both D and shooter left scene of crime together. D claims that he did not encourage Rowe to shoot, rather, he tried to persuade him not to shoot i. D must intend to encourage the act, not just intend the act that he committed (using words, etc.) ii. Evidence can be used to prove purpose, but simple being present is not sufficient. 3. State v. Gladstone - Thompson was hired to purchase marijuana from D D did not have enough to sell him but directed him to Kent No evidence that D and Kent had communicated regarding marijuana D must have purpose to assist and encourage and knowledge is not enough. 4. People v. Luparello - D wanted to locate his former lover. D thought that Martin would have information about her location. D told his friends he wanted information at any cost. Friends went to Martin s house and killed him - Accomplice is liable not only for those crimes committed by a co-felon which he intended or agreed to facilitate but also for any additional crimes which are reasonably foreseeable. i. POLICY: Liable for conduct that you did not have a culpable mental state for, only because he did a bad act ii. POLICY: Foreseeable consequence doctrine: aiders and abettors should be responsible for the criminal harms they have naturally, probably, and foreseeably put in motion. vi. Mens Rea for Results and Attendant Circumstances 1. State v. McVay D knew the dangerous condition of the boiler room and instructed the principals to fire up the boiler anyway. i. D needs the purpose for the principal to commit the crime ii. D needs the purpose to assist or encourage the principle in committing the crime iii. D s mens rea for the result element is the same mens rea as required for the commission of the offense. a. In this case involuntary manslaughter requires gross negligence, so the mens rea required for the accomplice with regard to the result element is only gross negligence. 2. Hypo: Pharmacist asks his assistant to get drug from the back, then pharmacist labels drug, drug is contaminated (unknowing) and gives drug to 24

CRIMINAL LAW CHARLOW victim i. ii. iii. iv.

is the assistant an accomplice to the sale of that drug? Assistant intended to give drug to pharmacist Attendant circumstance: adulterated drug Assistant what mens rea w/regard to attendant circumstance? Pharmacist is liable for selling the adulterated drug b/c of strict liability 3. Xavier: may need to know about attendant circumstance that is material to criminality (general common law rule) 4. Canon: parallel rule same mens rea for attendant circumstance for principal and accomplice 5. MPC (2.06): Assistant had the purpose to sell the drug and to assist with the sale of the drug (MR for AR of principal) MR for attendant circumstance: no specific mens rea required (court decides what is appropriate under the circumstances) 6. State v. McVay - Ds engaged in a gun battle. Victim was shot by stray bullet. People could not determine whose bullet struck victim in the chest If multiple parties act with the same mens rea towards the act and with the purpose to aid and encourage each other then they are all accomplices of each other. Therefore, if one person commits a crime, all parties are liable for the crime. vii. Actus Reas for Accomplice Liability 1. Actus Reus of Accomplice Liability: actually, in fact, assist or contribute to the crime i. Common law rule: Even if you mean (attempt) to assist, does not matter, must in fact assist (act is ineffective) ii. MPC: aids or attempts to aid as good as aiding 2. Wilcox v. Jeffrey - D attended a concert where Hawkins played and reported about the concert in his magazine D was charged w/aiding and abetting a criminal concert. - Where presence is not accidental and presence is to encourage, then sufficient for actus reus of aiding and abetting. 3. State ex rel. Attorney General v. Tally, Judge - If D facilitates a crime, even if his act is not a but-for cause of the crime, his efforts assist the criminal and therefore D is guilty of aiding and abetting. viii. Relationship Between the Liability of the Parties 1. Accomplice liability is derivative: there must be a crime committed. 2. State v. Hayes - D asked Hill to burglarize a store w/him. Hill knew the owners and participated so that he could obtain the arrest of D. D and Hill arrived at the store. D helped Hill climb through window of store and shortly, they were apprehended D cannot be guilty as an accomplice if no crime committed by principal i. Would D be guilty of attempted burglary? a. Common law required substantial step towards the commission of the burglary, however, since no crime, there was no substantial step toward a crime b. MPC 5.01(3) Conduct Designed to Aid Another in the Commission of a Crime: An exception to the common law rule can be guilty of crime without a guilty principal 3. Hypo: Wife had enough of husband, want to get rid of him gardener is 25

CRIMINAL LAW CHARLOW cleaning leaves off the line husband is behind the truck and gardener backs up over husband D stands and watches gardener may be convicted of involuntary manslaughter (gross negligence), mens rea: either negligence (negligent homicide) or gross negligence, actus reus is killing someone (running someone over thereby causing death), result is death (all elements) i. Accomplice: mens rea: intent for principal to engage in criminal act and purpose to assist, actus reus: encouraged him to back up over husband; since result element, result element (need same mens rea for commission of crime involuntary manslaughter): gross negligence (D had a purpose that he be killed) can accomplice be liable for murder? No b/c no murder committed and accomplice liability is derivative 4. Regina v. Richards Wife hired men to beat up husband, however, husband escaped without injuries. D may have had intent to commit graver crime, however, only liable for actual crime committed. i. MPC 2.06(7): Accomplice can be convicted of a different level or different offence than the principal. 5. Queen v. Tyrell Minor has sex with D willingly. D convicted of statuary rape. Person cannot be an accomplice if they are the victim of the crime. (MPC 2.06(6)(a) and common law) 6. Hypo: A buys heroin from B A has assisted B in sale of heroin i. MPC 2.06(7)(b): D is not an accomplice if the offense is so defined that your conduct is inevitably incident to commission ii. POLICY: the legislator when writing a law, knows that others will be involved in the crime, and would have included others in the crime if they wanted to make their conduct criminal. ix. Failure to abandon 1. Oklahoma City Bombing case: Nichols was accompilce to McVeigh. Nichols got cold feet and told McVeigh is changed his mind and not going to assist. McVeigh carried out attack and convicted. Nichols tried and convicted as accomplice. i. Why is he an accomplice? Had purpose for McVeigh to commit crime and purpose to assist (necessary mens rea towards the act of principal) a. Common law: abandonment b. MPC 2.06(7)(c): terminate participation and wholly deprive assistance of effectiveness or gives timely warning to law enforcement or make proper effort to prevent commission of the crime c. Conspiracy i. Conspiracy: an agreement between two or more people to commit an unlawful act 1. As with attempt, crime not fully completed, but a wider range of preparatory conduct is criminal 2. POLICY: Why punish conspiracy? i. Special danger in group activity: once you agree w/someone else that you will commit a crime, more likely that you will commit the crime, someone there to encourage you, someone is counting on you ii. More complex crimes are possible 26

CRIMINAL LAW CHARLOW iii. Prosecution advantages: it extends venue and statute of limitations (even though object crime is over may be charged for conspiracy because conspiracy did not end) and more evidence permitted at trial (co-conspirator statements, normally hearsay, may be used in court) iv. Added penalty: separate crime so D can be charged and convicted of conspiracy and object crime 3. Common law: may be charged and convicted of both crimes in many jurisdictions 4. MPC 1.07(1)(b): can be charged and tried for both conspiracy and object crime but can only be convicted of one crime i. Comment to MPC: D can be charged and convicted for both if object of conspiracy is broader than single crime charged with (Ex: charged w/conspiracy of bombing WTC and charged w/bombing WTC and object crime was to bomb multiple landmarks, can be convicted of both conspiracy and object crime b/c object crime was broader: bombing of landmarks) ii. Actus Reus of Conspiracy 1. Actus Reus i. Common law: agreement is the act itself ii. MPC: over act required for less serious crimes and no overt act required for more serious crimes a. Over act: any act toward commission of the offense (very minimal) iii. Agreement: need not be express agreement and may prove agreement based on circumstantial evidence 2. Interstate Circuit Inc. v. United States - 2 theatre chains convicted of entering a conspiracy w/8 film distributors 8 film distributors agreed w/theatres to follow agreement w/o knowledge that other distributors also agreed (tacit understanding same as an agreement). Explicit agreement is not required for conspiracy and a tacit agreement can be inferred from the evidence. iii. Mens Rea for Conspiracy 1. Mens Rea i. With regard to agreement: purpose to agree (insignificant) ii. With regard to object crime: purpose to further the criminal act 2. People v. Lauria - D and 3 prostitutes were indicted for conspiracy to commit prostitution. D provided the telephone services and had knowledge that the 3 prostitutes used the service to turn tricks. D agreed to answer phones and take messages. Purpose is required towards commission of the object crime, however, purpose can be inferred from knowledge if: i. (1) If D has a stake in the venture (an extra benefit to D from principal s act) OR a. Regina v. Thomas -Grossly inflated rent. D gets an extra benefit (stake in the criminal venture) from her prostitution. ii. (2) If there is no legitimate use for the goods and services sold by D OR iii. (3) If D s sales are disproportionate to legitimate demand or if a high number of D s customers use service for illegal purposes a. Direct Sales - D is a wholesaler of narcotics and sold a large 27

CRIMINAL LAW CHARLOW amount of narcotics physicians: i. Volume of sales was grossly disproportionate to the demand and D made more money by the volume of sales and ii. D s customer base was a grossly disproportionate number of doctors who engaged in illegal activity and iii. Discounts offered to physicians because of quantity purchased iv. POLICY: Courts are saying that if you make too much money, a purpose to assist can be inferred and they are also saying that if you provide a discount for a large quantity of goods, a purpose to assist can also be inferred (have to sell the perfect amount). iv. Conspiracy as a Form of Accessorial Liability 1. Pinkerton v. United States - D convicted of substantive crimes committed by brother on proof that he did no more than conspire with him to commit offenses of the same general character. There was no evidence that D had withdrawn from or revoked the agreement - Partners in crime, as long as partnership continues, all partners are responsible for the acts of the others. i. PROCESS: Pinkerton Test: Members are liable for overt actions of fellow conspirators when those action are (MPC does not agree): a. Within scope of conspiracy AND b. In furtherance of conspiracy AND c. Foreseeable / natural consequence of conspiracy ii. MPC 5.03: Criminal Conspiracy a. (1) Definition of Conspiracy: A person is guilty of conspiracy with another person or persons to commit a crime if with the prupose of promoting or facilitating its commission he: (a) agrees or (b) agrees to aid. b. (5) Overt Act: No conviction for less serious crimes, without an overt act. Conviction for serious crimes do not require an overt act. iii. POLICY: Pinkerton test is a broad standard of accomplice liability. Conspiracy has a mens rea which sounds like negligence because you are negligent towards the co-conspirator s act. 2. Hypo: A decided to organize bank robbery conspiracy gets together individually w/B and C B and C agree separately tells them he will get several people A then finds D and tells him that others will be committing bank robbery and asks him to steal car D steals car and B uses car for bank robbery use general common-law rule. i. A ring leader: accomplice to bank robbery b/c encouraged bank robbery and he had a purpose to assist/encourage and purpose that principal engage in conduct. ii. A - accomplice to car theft: A encouraged D to steal the car and his purpose was that the principal engage in conduct iii. A co-conspirator for robbery under Pinkerton: yes (agreement b/w more than 2 or more people to commit unlawful act) and has purpose for the crime (bank robbery) to be carried out iv. A co-conspirator for car theft: crime w/in the scope of the bank 28

CRIMINAL LAW CHARLOW robbery, act was in furtherance of the bank robbery and also reasonably foreseeable that car would be stolen for bank robbery v. B accomplice to C s robbery?: (actus reus missing) neither had a purpose to assist or encourage nor did they have the purpose to do so (mens rea) agreeing to be part of a conspiracy you may have encouraged general acts of bank robbery but that is different than having a purpose to engage in bank robbery (LESS BROAD) vi. B co-conspirators of C s robbery under Pinkerton: yes B and C are responsible for the acts that are committed in furtherance of the crime, w/in the scope of the conspiracy and reasonably foreseeable acts (BROAD) vii. D accomplice to B s bank robbery? Yes D had purpose that B commit bank robbery and had the purpose to assist by getting the car and actus reus was stealing the car viii. D co-conspirator to B s bank robbery? Yes conspiracy exists act of stealing the car was in furtherance of the conspiracy and w/in scope and reasonably foreseeable - even though D had nothing to do w/B s actually robbing of the bank. ix. D liable as accomplice to C s robbery? no D does not have specific purpose that C commit the crime at the specific time no actus reus he does not assist C (the car went to B) x. D liable for C s robbery as co-conspirator? Yes conspiracy exists act of stealing the car was in furtherance of the conspiracy and w/in scope and reasonably foreseeable even though D had nothing to do w/C s actually robbing of the bank. xi. Are B and C liable as accomplices for D s theft of the car? no no actus reus of assisting or encouraging. xii. Are B and C liable as co-conspirators for D s theft of the car? D s stealing the car is in furtherance of the conspiracy, w/in scope of conspiracy and reasonably foreseeable. XIII. EXCULPATION a. Justification and Excuse i. Three Defenses: 1. Prosecution has failed to establish one or more elements of the offense (refute elements of the prosecution s case) 2. Justification D is fully responsible but under the circumstances, D s act is not a bad act or a crime. i. Necessity ( choice of lesser evil ) ii. Self-Defense iii. Defense of a Third-Person iv. Defense of Property v. Law Enforcement 3. Excuse Act is considered bad under the circumstances but D is not fully responsible something about the D i. Intoxication ii. Mental Disorders iii. Duress (sometimes justification defense and sometimes excuse 29

CRIMINAL LAW CHARLOW defense) Justification and Excuse: suggest further considerations that negate culpability even when all elements of the offense are present iii. United States v. Peterson 1. Elements of self defense: i. Actual or apparent threat of use of force against D ii. Threat must have been unlawful and immediate iii. Subjective belief on part of D that he is in immediate peril and response is necessary iv. Beliefs of imminent peril must be objectively reasonable in light of circumstances iv. Rule of Self Defense: Must counter threat with equal threat because self-defense is done out of necessity. 1. Does not have to be a gun for a gun. v. People v. Goetz - D shot 4 boys on the subway that approached him and asked him for money. D was carrying a weapon for self protection b/c he had been mugged in the past 1. When the word reasonable is inserted into a statute an objective standard (belief must be a reasonable) can be read into it. 2. MPC 3.04 Use of Force in Self-Protection: i. (1) Justifiable when the actor believes that such force is immediately necessary for purpose of protecting himself against the use of unlawful force by such other person. ii. (2)(b) The use of deadly force is not justifiable unless the actor believes that such force is necessary to protect himself against death, serious bodily harm, kidnapping or sexual intercourse compelled by force or threat; nor is it justifiable if: a. (i) The actor is the aggressor and provokes use of force except when you provoke someone to use force, and they return with deadly force, than you can respond to an escalated level of force even if you started a low level. b. (ii) Actor must safely retreat (exception: if threat is made in your own home except if the threat comes from co-habitant you must retreat) 3. Overriding issue is necessity i. Cannot use self-defense unless threatened ii. Under common law, retreat was required (exception: if threat is made in your own except the threat comes from co-cohabitant) iii. Lose right of self-defense if you are the initial aggressor (exception: if you did not use deadly force to begin w/and the person responds w/deadly force, reinstates aggressor s right for self-defense) 4. POLICY: Legislature did not use a subjective standard b/c that would allow citizens to set their own standards for the permissible use of force and the legislature wanted to avoid such actions. vi. State v. Kelly - D killed her husband w/scissors. D indicted for murder but claimed self-defense due to battered-woman s syndrome. 1. Reasonableness standard: Objective Expert testimony allows the jury to consider D s situation and knowledge (established by D s testimony), which ii. 30

CRIMINAL LAW CHARLOW makes the evidence relevant, but the ultimate question is whether a reasonable person, not a reasonable battered woman, would believe in the need to kill to prevent imminent. b. Imminent Danger Requirement i. State v. Norman - D abused for 25 years by husband. D killed her husband when he was sleeping Killing in self-defense is justified when a reasonable belief that death or great bodily harm was imminent at the time of the killing. c. Defense of third persons: When you use force in defense of third person, same requirements as your own self-defense and that third-party has a right of self-defense (If third-person does not have right of self-defense, then D does not have the right) d. Excuses i. Duress: D has a defense if he is coerced to act by the use of threat or force or person which threat is such that someone of reasonable firmness in the situation would not be able to resist 1. Killing is never the lesser evil, so there is never an excuse to kill (common law) 2. Duress defense cannot be used with threat against property 3. MPC 2.09: Duress - Source of the peril is important (must be from another person, not a natural event). i. (1) MPC permits affirmative defense for murder. (common law doesn t permit murder) ii. POLICY: When peril is from person, the basic interests of the law may be satisfied by prosecution of the agent of unlawful force, but if the source of the peril is a natural event, if the actor is excused, no one is subject to the law s 4. MPC vs. common-law: Most courts have rejected MPC s flexible imminence standard and require that the harm be immediate, imminent or instant. 5. POLICY: Tension between desire of criminal law to recognize humanity and understand D with need to be normative (impose general line rules or the law becomes entirely too personalized) ii. State v. Toscano D had gambling debt to mobster s brother. Mobster pressured D false medical report and indirectly threatened D and D s wife. D gave false medical reports then D moved, changed telephone number, got gun and never heard from mobsters again. 1. Threat was not imminent and was not necessary (could have gone to the police) 2. Nature of the threat: well being of him and his wife ( you ll jump at the shadows ) not only was threat not imminent it was vague. 3. Deterrence vs. Retribution: i. Deterrence: Deterrence is not served because parties will still choose the lesser evil (it s still a choice of bad ) ii. Retribution: do not deserve punishment for an act that you are forced to do (reasonable person standard is why we can sympathize and a reasonable person would not have been able to resist) it is retributive 4. MPC 3.02: Justification Generally: Choice of Evils: It makes the duress excuse available only when the peril confronting the defendant arises from 31

CRIMINAL LAW CHARLOW the do-it-or-else command of another person, not when it arises from some other source, such as natural condition.

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