CRIMINAL LAW - FALL 2009 - FAIRFAX
I. “Building Blocks”
A. The basics
1) Theories of punishment
-Retributivism: punishment is justified because people deserve it
Grounded in notions of moral desert,backward looking
-Utilitarianism: punishment is justified by the useful purposes it serves
Concerned with broader benefits derived by society from imposition of punishment, forward looking
Characteristics of punishment (according to Greenawalt):
1)Performed by, and directed at, agents who are responsible in some sense
2)Involves “designedly” harmful or unpleasant consequences
3)The unpleasant consequences are usually preceded by “a judgment of condemnation”
4)Imposed by one who has authority to do so
5)Imposed on an actual or supposed violator of the rule of behavior
2) Proportionality: Ewing v. California
-Does the Eighth Amendment prohibit the state of California from sentencing a repeat felon to a prison term of 25 years to life (under the “three strike” rule)
Court (O’Connor) says no, states can use various penological rationales
Dissent (Breyer) says yes, punishment was “grossly disproportionate”
3) The Criminal Process
-Complaint of a crime (detection/report/suspicion)
-Investigation
-Arrest
-Charge
-Preliminary hearing
-Discovery (most discovery obligations run from the State to the defense)
-Motions
-Trial (bench or jury)
-Sentencing/Punishment
-Appeal (State cannot appeal an acquittal b/c of “double jeopardy” clause)
-Collateral Review
4) Jury Nullification– when a jury acquits in the face of overwhelming evidence to the contrary (they have the power to do this; people argue about whether they have the right)
-Double Jeopardy clause: “no person shall…be subject for the same offense to be twice put in jeopardy”
5) Construction/Interpretation of criminal statutes
Principles of legality in dealing with criminal statutes:
Legality: no judicial criminal lawmaking (Keeler v. Superior Court)
Void-for-vagueness: legislatures cannot delegate lawmaking to the courts (In re Banks)
Lenity/Strict construction: ambiguity should be resolved in favor of the defendant
United States v. Foster - what does it mean to “carry a gun”?
In re Banks: void-for-vagueness/overbreadth claims against “PeepingTom” statute
Keeler v. Superior Court - the court assumes legislators from 1850 were codifying contemporary common law; they review “born alive” rule (w/ regard to fetus)
Court’s reasoning:It is beyond the court’s authority to define crimes and fix penalties
It would violate due process because of the lack of notice to defendant
Dissent arguments:The majority ignored the common law
The majority misconstrued the intent of the legislature
B. Actusreus– the external or physical part of the crime: the “action”
“Voluntary act” - volition is required for actusreus (involuntary acts are not “acts”)
-Possession: Section 2.01(4) of the MPC: “possession is an act…if the possessor knowingly procured or received the thing possessed or was aware of his control thereof for a sufficient period to have been able to terminate his possession.”
-Omission: Section 2.01(3) of the MPC: liability for the commission of an offense may not be based on an omission unaccompanied by action unless:
(a) the omission is expressly made sufficient by the law defining the offense; or
(b) a duty to perform the omitted act is otherwise imposed by law.
-criminal liability for omission can only attach where there is a legal duty
-when an omission may create criminal liability:
1) where a statute imposes a duty
2) a status relationship (i.e. spousal or parental)
3) contractual duty
4) voluntarily assumed duty
5) creation of a risk of harm
C. Mensrea– the mental or internal part of the crime: the “intent”
-under the common law, intent includes both purpose and knowledge
-General intent – requires only the intent to commit the act (any moral blameworthiness)
-Specific intent – requires intent to inflict the specific harm of the act (specific defined state of mind)
MPC 2.02: Requirements of culpability: A person is not guilty of an offense unless he acted purposely, knowingly, recklessly, or negligently
(2)(a) Purposely – conscious object to engage in conduct…or to cause such a result; awareness of the existence of attendant circumstances
(2)(b) Knowingly – awareness of the existence of attendant circumstances, awareness of practical certainty that conduct will cause result
(2)(c) Recklessly – conscious disregard of a substantial and unjustifiable risk that the material element exists or will result; involves gross deviation from standard of law-abiding person
(2)(d) Negligently – should be (but are not) aware of risk that the material element exists or will result; involves gross deviation from standard of reasonable person
-attendant circumstances – a condition that must be present, in conjunction with the prohibited conduct or result, to constitute the crime (i.e. statutory rape: consensual sex with a female under the age of 16)
-A prosecutor can establish knowledge by demonstrating willful blindness
State v. Nations–State attempted to show willful blindness through the “high probability” standard of MPC 2.02(7); however, MO did not adopt the MPC statute, so the State had to show actual knowledge, instead of simply a high probability that Δ was aware that the girl was 17”
-“willful” means that someone did something either
(1) deliberately and intentionally or (2) in bad faith
D. Strict liability offenses – offenses for which mensrea is not required
-often the element that does not require mensrea is an attendant circumstance (i.e. statutory rape)
- The MPC rejects strict liability for crimes
Staples v. United States– Thomas says the Court requires “some indication of congressional intent…to dispense with mensrea” (it would be unjust to extend strict liability to these firearms)
Justice Stevens dissent: gives 3 characteristics of “public welfare” offenses (for strict liability):
1) “Regulate dangerous/deleterious devices or products or obnoxious waste”
2) “heighten the duties of those in control of particular industries, trades, properties, or activities that affect public health, safety, or welfare”
3) “no mental element, but consist only of forbidden acts or omissions”
E. Ignorance or Mistake
Mistake of fact:
-For General Intent crimes, only a reasonable mistake of fact provides a defense. (2 exceptions)
“moral wrong doctrine” – reasonable mistake is no good in circumstances where your actions were morally wrong even if you had not been mistaken (through Δ’s eyes)
“legal wrong doctrine” – reasonable mistake is no good in circumstances where your actions were illegal even if you had not been mistaken (through Δ’s eyes)
-For Specific Intent crimes, a reasonable or unreasonable mistake, as long as it is genuine and negates the specific mental element of the crime
-Strict liability offenses do not allow mistake of fact defenses (no mensrea element)
Mistake of law: The general rule is ignorance of the law is no excuse
Common law three exceptions:
1) Mistake negating mensrea
“same law” mistake: mistake about law with which being charged (not a defense)
“different law” mistake: mistake about law different from one with which being charged (a defense)
2) Reasonable reliance – if an individual reasonably relies upon an “official” statement of the law that is wrong
3) Fair Notice – not having reasonably “fair notice” of legal requirements may be a defense (Lambert v. California, a felon registration act in L.A.)
MPC Exceptions to “ignorance is no excuse”:MPC 2.04
-ignorance or mistake is a defense if
(a) the ignorance or mistake negates the purpose, knowledge, recklessness, or negligence required for a material element, or
(b) the law provides that the state of mind established by such mistake constitutes a defense
-the defense is not available if Δ would be guilty of another offense had situation been as he believed; in that case, the ignorance or mistake will reduce the grade and degree to the offense which he would have been guilty of had the situation been as he believed
F. Causation
-MPC causation: scope of liability (note 10, p222)
-Actual cause (cause-in-fact): two theories
1) “But-for” causation: prohibited result would not have occurred but for the actor’s conduct
2) “Substantial factor” causation: two or more actors commit separate acts, each of which is sufficient to bring about prohibited result
-Proximate cause (“legal cause”): involves intervening but-for occurrence after actor’s conduct and prior to prohibited result; analyzing proximate cause involves considerations of fairness
Oxendine v. State - Jury instruction: “contribution or aggravation is not acceleration”, acceleration needed for causation
Velazquez v. State -“superseding” intervening cause exculpates defendant
II. Homicide
A. Degrees
Common LawModel Penal Code
First degree murder (premeditated & deliberate)Murder (purposely or knowingly)
Second degree murder (malice aforethought)
Voluntary manslaughter (passion/provocation)Manslaughter (recklessly)
Involuntary manslaughter (criminal negligence)Negligent Homicide (negligently)
-Direct evidence – evidence of a fact
-Circumstantial evidence – evidence that requires inference to reach a fact
B. Intentional killings
First degree murder – it requires either:
(1) premeditationand deliberation; or
(2) murder in the course of committing arson, burglary, robbery, or rape
State v. Guthrie –premeditation and deliberation characterize a thought process without “hot blood” or passion (thus, “cold-blooded murder”)
Midgett v. State – court says evidence insufficient to support conviction of first degree murder which required “premeditated and deliberate purpose of causing the death of another person”
-but was sufficient to sustain second degree murder which requires “purpose of causing serious physical injury” that causes death (lesser included offense)
State v. Forrest – circumstances to be considered in determining premeditation
(1) want of provocation on part of deceased
(2) conduct and statements of defendant before and after the killing
(3) threats and declarations of the defendant before/during course of the killing
(4) ill-will or previous difficulty between the parties
(5) dealing of lethal blows after deceased has been felled and rendered helpless
(6) evidence that the killing was done in a brutal manner
Second degree murder – “the baseline murder” (can go up or down)
-it requires “malice aforethought”; four ways to prove:
(1) intent to kill
(2) intent to cause grievous bodily injury
(3) “depraved heart” – unintentional associated w/ extreme recklessness
(4) intent to commit a felony
Malice can be express or implied
-Express malice: deliberate intention unlawfully to kill or cause grievous bodily injury
-Implied malice: killing w/o provocation; killing with an “abandoned or malignant heart”; conscious disregard of risk and extreme indifference to human life
Girouard v. State - the court articulates four requirements for provocation:
(1) adequate provocation,
(2) killing in the heat of passion,
(3) heat of passion was sudden and the killing followed the provocation before there was “reasonable opportunity for the passion to cool”
(4) casual connection between provocation, passion, and fatal act
-common law: words alone do not constitute adequate provocation to mitigate crime
Under MPC:-words are adequate provocation
-victim does not have to be the one who provoked the defendant
-defendant can be mistaken about what he saw that led to the killing
-does not have to be sudden; it can be a “build-up”
Voluntary manslaughter – intentional killing, absence of malice
-Reasons for mitigating to common law voluntary manslaughter:
1)Finding one’s spouse having sex with another
2)Mutual combat
3)Assault and Battery
C. Unintentional killings
Involuntary manslaughter – killing as a result of negligent acts (“regular recklessness”)
D. Felony-murder – killing that occurs in relation to the committing of a felony
-MPC rejects the felony-murder rule
-Two varieties of common law felony-murder:
1) Statutory first degree murder rule
2) Common law second degree murder rule
Limitations on felony-murder rule:
-The felony must be an inherently dangerous felony
People v. Howard – killing occurred during high speed chase but felony as defined was not inherently dangerous (look at the abstract elements of the felony)
-Independent felony “merger” rule(if felony is an integral part of the homicide)
People v. Robertson – killing occurred while defendant was firing to scare robbers away, but not kill them and so merger rule did not apply (felony has no independent purpose)
-In perpetration/Furtherance of a felony
People v. Sophophone – killing doesn’t have to occur during the commission of a felony as long as it occurs in continuation of the action (in the “res gestae”)
-time, distance, and causal relationship to the killing are all factors
Killing by third party:
1) Agency approach – if killing was done by someone not involved in the felony, the perpetrator of the felony cannot be charged with felony-murder
2) Proximate causation approach – if act by the felon is the proximate cause of the killing by the non-felon, the felon can be charged with felony-murder
E. Capital murder – murder punishable by death
Furman v. Georgia - Court holds that states must separate conviction and sentencing phase to sustain capital punishment sentences (bifurcated trial)
-challenges to death penalty come under Eighth Amendment
Gregg v. Georgia – arguments for/against capital punishment (p342-349)
III. Rape
-Consent is a complete defense
-Limitations:
(1) consent may be withdrawn at any time prior to penetration
(2) consent cannot be induced by fear or violence
(3) prior consent is not consent for the instant act
(4) forcible persistence following post-penetration withdrawal of consent renders an offense less than rape (some degree of sexual assault)
-Rape is a general intent crime (only requirement is moral blameworthiness)
A. Common law elements of Rape
Actusreus elements of rape:
1) Intercourse (penetration)
2) Force (actual or constructive, includes threats)
3) Non-Consent and/or Against the Will (“forcible compulsion”)
-threatened force must be physical (cannot threaten non-physical, i.e. humiliation or criminal action)
State v. Alston – State did not have to show actual force; constructive force (threats of harm) is sufficient
Commonwealth v. Berkowitz – PA Supreme Court found no forcible compulsion and found simple “no’s” as insufficient for claim of nonconsent
People v. John Z. - CA Supreme Court finds that a withdrawal of consent “effectively nullifies any earlier consent and subjects the male to forcible rape charges” if he forcibly continues despite the objection
B. Rape by fraud
-Fraud in factum (vitiates/nullifies consent) vs. Fraud in inducement (does not vitiate)
C. Rape reform efforts:
-push to abolish force/resistance requirement (shift focus from force to consent)
-gender neutrality (most statutory rape statutes are not gender neutral)
-rape shield laws (most jurisdictions have them but very few are strong)
-marital immunity
IV. Defenses
A. Types
1) Failure of proof – negation of an element or elements of a crime
2) Offense modification – exculpation of an actor despite proof of elements
(i.e. paying a ransom)
3) Public policy defenses – actors are culpable, but forward-looking public policy arguments end pursuit of conviction (i.e. statute of limitations, diplom. immunity)
4) Justification – the harm of the act is justified by the need to avoid an even greater harm or further a greater societal interest (i.e. self-defense)
5) Excuse – no justification for the act, but conditions suggest a lack of moral blameworthiness
B. Self-Defense
Requirements for invoking self-defense in homicide:
1) Threat, actual or apparent, of use of deadly force
2) Threat must have been unlawful and immediate
3) Defendant must have believed he was in imminent peril of death or serious harm
4)Defendant must have believed that his use of force was necessary to save himself
(and the necessity cannot be self-created; the slayer must not have provoked)
5) The beliefs of defendant must be objectively reasonable in light of circumstances
(reasonable and proportional)
-If an individual provokes, but later communicates his withdrawal and withdraws, he again can claim self-defense if the other party continues the confrontation
United States v. Peterson - court finds that self-defense “is a law of necessity” and that “one who is the aggressor in a conflict culminating in death cannot invoke the necessities of self-preservation”
-D.C. Court adopts common law “retreat to the wall” requirement
-however, majority of American jurisdictions allow an individual to stand his ground and use deadly force “whenever it seems reasonably necessary” (subjective test)
-Common law says that deadly force may not be used to repel a non-deadly attack
MPC says deadly force may only be used to prevent death, serious injury, kidnapping, or rape
People v. Goetz– determination of “reasonableness” must be based on circumstances facing a Δ, including relevant knowledge the Δ had about the potential assailant, physical attributes of all persons involved, and prior experiences the Δ had providing a basis for belief of bad intent
-“Partial” or “Imperfect” self-defense: defendant proves only some elements of his self-defense, and so is not acquitted but charges are mitigated (not everywhere; some jurisdictions are all or nothing)
-Imperfect self-defense occurs when
(1) defendant’s genuine belief of a threat is unreasonable, or
(2) defendant uses lethal force to repel non-lethal force, or
(3) defendant provoked the confrontation
State v. Norman - Defense offered testimony of a doctor who testified that Norman suffered from Battered Woman Syndrome and so the threat of severe harm or death was essentially always imminent (response to state’s claim of absence of imminent threat)
-NC Supreme Court reverses intermediate decision and finds no basis for perfect self-defense claim; Norman is convicted of voluntary manslaughter (her sentence was later commuted)
Other common law self-defense principles:
-One may use deadly force in defense of another (even if you are reasonably mistaken)
-One may not use deadly force in defense of property (but you can threaten)
-Some jurisdictions permit use of deadly force in defense of home (to prevent intrusion)
Others only permit such use of force when there is a reasonable threat
Others further limit such use of force to defending against certain felonies
-One may not use deadly force to prevent a crime (exception: serious felonies)
MPC Self-Defense (3.04)
(1)Use of force justifiable for protection of person
(2)Limitations: resisting arrest, resisting force while on another’s property, deadly force is only justifiable to protect against serious harm (death, serious bodily harm, kidnapping, rape)
(3)A person may estimate the necessity of force, subject to the limitations of the statute
C. Necessity
-Ajustification defense: “choice of evils”
Common law elements to necessity defense:
1) Act charged must have been done to prevent a significant evil