Short Review:
- Year and a day rule: According to common law, a death that occurred more than a year and a day after the act that appeared to cause it is not a homicide, or at least not a homicide for which the actor can be held criminally responsible. This rule is followed by about half the states. It is distinct from the statute of limitations, which does not ordinarily apply to homicide. If a state has a year and a day rule, you can typically still prosecute the assailant for some other offense, like assault, arising out of the same facts.
- Murder Elements:
o Unlawful killing (no legal justification or excuse)
o Intentional killing
§ Transferred intent: When a defendant’s conduct would make him guilty of some form of intentional homicide except for the fact that the wrong person wound up dead, the homicide takes the quality of the original act so that the guilt of the accused is exactly what it would have been had the intended victim been killed.
o Of a human being
o With “malice aforethought”-refers collectively to the states of mind that characterized the homicide as murder- “a criminal mind.” Malice aforethought can be satisfied by (demonstrated through):
§ The intention to kill- can be negated by adequate provocation
§ Intention to grievously injure (omitted from the MPC)
§ Extreme recklessness- depraved indifference to human life + recklessness
§ Felony murder- death accompanying the commission of a felony that results the furtherance of that felony. If the lethal act is in the furtherance of their common purpose, a co-felon can be guilty even if there is an express agreement not to kill and even if he attempts to stop the killing.
· Merger Doctrine: The death has to be independent from the underlying felony, otherwise all manslaughter would be murder.
§ Resistance to lawful arrest
- Degrees of Murder:
o 1st Degree: requires premeditation (thinking about the crime beforehand) and deliberation (mature and meaningful reflection). To characterize a homicide as first degree murder, the court often looks at: the actor’s actions prior to the killing, the prior relationship with the victim, and facts about the nature of the killing from which the jury could infer a preconceived design. (Note: no requirement of motive.)
o 2nd Degree: This is the charge that we presume in the presence of the homicide elements and in the absence of any evidence of premeditation or provocation.
o Voluntary Manslaughter: Unlawful, intentional killing of a human being as a result of adequate provocation (no malice aforethought). The provocation must be calculated to inflame the passion of a reasonable man and tend to cause him to act for the moment from passion rather than reason. For the provocation to qualify, it must have the following characteristics:
§ Raises the heat of passion
§ No cooling period-would a reasonable person have brought himself under control?
§ There must be causal connection between the provocation and the homicide
§ “Mere words rule”-words alone, no matter how abusive, can never be adequate provocation. However, they can be adequate when they:
· Indicate a present ability to do harm
· Are accompanied by provocative conduct/gestures
· Convey information (in some jurisdictions)
§ The MPC conceives of “provocation” as not limited to acts of the person killed. It states reasonableness should be determined from the viewpoint of the person in the actor’s situation under the circumstances as he believes them to be-deliberately ambiguous so that the legislature can determine what is relevant for claims of adequate provocation. Physical characteristics are appropriate for consideration, but not emotional ones. The ultimate question is how much sympathy we have for the defendant.
§ Traditional examples: extreme assault or battery on the defendant, mutual combat, defendant’s illegal arrest, injury or serious abuse of a close relative of the defendant’s; the sudden discovery of a spouse’s adultery.
- Defenses: Justifications and Excuse
o Self-Defense:
§ Defendant actually believes he/she is in grave danger
§ The defense must be proportional
§ That belief is reasonable
§ The defendant believes that there is no possibility to escape/prevent such harm
§ The threat is imminent
§ The MPC requires that a person believe that the use of force is “immediately necessary” to protect himself on the present occasion.
§ Imperfect self-defense: when self-defense is used as a defense but fails because the response was excessive or the fear unreasonable.
§ There is no requirement that a person retreat before using non-deadly force to prevent an attack. Retreat is only necessitated if you have a safe, obvious means. With the exception of your home and work, the MPC does not recognize this if the defendant knows he can escape with complete safety.
o Defense of Others: Distinct from adequate provocation, the MPC allows you to come to the aid, even using deadly force, to help anyone who reasonably seems to be in peril. A minority of jurisdictions determines culpability by putting the defendant in the shoes of the person they were attempting to aid.
o Defense of Property: cannot typically use deadly force to protect property and it can never be used to recover property, though you can attempt to prevent the felony from being committed.
o Prevention of felony/prevention of escape: only permissible to prevent escape by felons who are threatening death/grave harm. The suspicion that the person committed the felony must be correct.
o Duress and necessity: the defenses of duress and necessity are not available for murder. The MPC rejects this rule and allows both, with duress if a person is coerced to kill, based on their rule regarding the “choice of evils.”
- Unintentional Injury (Involuntary Manslaughter): “The killing of one accidentally, contrary to the intention of the parties, in the prosecution of some unlawful but not felonious act, or the improper performance of a lawful act.”
o Elements:
§ Unlawful killing
§ That is unintentional
§ As a result of gross negligence (in place of mens rea)
o Misdemeanor manslaughter: In theory, any homicide that results from the commission of an unlawful, non-felonious act. In practice, proximate causation (the defendant’s act must have been a proximate cause of the injury) is required-mere violation of the statute is insufficient.
o Failure to Act: The duty of care ordinarily imposed/implied in manslaughter is a legal duty, not a mere moral obligation. It is a duty that is imposed by law other than the law of homicide or contract, and the omission to perform that duty must be the immediate and direct cause of death for a charge of manslaughter (voluntary or involuntary) to follow. The failure to act constitutes a breach of a legal duty (sustaining liability for homicide if death occurs) in four situations:
· Statute imposes a duty of care: where the duty is otherwise imposed by law, failure to meet that duty is evidence of negligence
· There is a special relationship between the deceased and the accused: typically, there is no duty of a child to a parent. A spousal duty of care is presumed to exist, though few cases exist in practice.
· There is a contractual duty of care-requires more than just a breach of contract, there must be some sort of assumption of duty/care
· The accused voluntarily assumed care and isolated the helpless person as to prevent others from rendering aid-if you have a duty and don’t perform it with the intention the person dies, you can be liable for murder.
- Causation: An element of both intentional and unintentional killings. In most criminal situations, the problem of causation does not arise because the defendant either intended by his conduct to produce the harm that occurred or there is a direct causal link between the act and its harm. A person is held liable for all consequences proximately caused by his criminal conduct. However, fortuitous situations that result in death are more problematic. If there is an intervening cause, the defendant is not liable for the death. In sum:
o Take the victim as you find him
o If the defendant’s act causes death, it is irrelevant that the victim might have avoided death unless his negligence involved a high degree of recklessness
o If a defendant’s act creates a chain of causes, he is liable
o If an intervening cause kills the victim, the defendant is likely not liable for the death
- Punishment: Two General Approaches:
o Retributive: Punishment as retrospective and in return for what you deserve (as a result of your actions)
§ Your right a wrong by punishing someone (Hegel)
§ By punishing, you treat the person as a full human-you are not punishing to reform, but rather giving them their just desert. (Kant)
§ Criticism: Why does justice kick in at this point? If the person did not deserve circumstances/initial situation, how can they deserve the result? If punishment produces no social good, why do it?
o Utilitarian: Punishment is forward-looking and good for society.
§ Justify punishment for the good that it does the community-not necessarily the criminal
§ Punishment is the lesser of two evil-it promises to exclude some future evil (harm to society, etc.) (Bentham)
§ The MPC primarily takes this position.
o While these theories disagree on the purpose of punishment and how punitive the law is, there is general agreement that there must be punishment and that there are those who should be punished. (Greenwalt). Typically, our laws are utilitarian but our application is retributive
o Capital Punishment: The U.S. is one of the few remaining countries that still allows this punishment, though it is prohibited for a person who committed their crime when they were younger than 18. It is also prohibited for rape.
§ Aggravating factors: death during commission of another crime, previous conviction, grave risk of death to others, heinous manner of killing, payment, substantial planning, vulnerable victim (child or elder), drug offenses.
§ Mitigating factors: impaired capacity, duress, minor, equally culpable defendants, no prior record, severe mental/emotional disturbance, victim consent.
- Theft, Fraud, and Breach of Trust
o Theft: larceny, robbery, extortion, blackmail, and embezzlement.
o Fraud: obtaining valuable property from the possession of another with his consent and will, by means of some artful device, against the subtlety of which common prudence and caution are not sufficient safeguards (false pretenses, larceny by trick)
o Breach of trust: The abuse or misuse of property which the owner has, without any fraudulent seducement, and with his own free will and consent, put or permitted to be put, either for particular or general purposes, into the possession of the trustee.
o Larceny: The taking (and carrying away) of valuable property from the possession (actual or constructive) of another without his consent and against his will with the intent to permanently deprive the person of property. Elements:
§ Intentional taking and carrying away (asportation)
§ Of personal property
§ In the possession of another (MPC says this includes anything of value)
§ Without consent
§ With intent to permanently deprive
o Robbery:
§ Taking of property
§ From the victim’s presence or person
§ By force or intimidation
§ With intent to permanently deprive
o False pretenses: Defendant obtains title to goods or money through acts of deceit or misrepresentation.
§ Taking title and possession of property of another
§ By knowingly making false representations with regard to material facts
§ With the intent to defraud
o Larceny by trick (theft by stealth): defendant obtains possession, but not title, because of misrepresentations of acts or deceit. Elements:
§ Taking of possession of the property of another
§ By knowingly making false representations with regard to material facts or making false promises.
§ With an intent to defraud.
o Defenses:
§ The property taken does not qualify as property under the law
§ Owner consented to the taking
§ No intention permanently to deprive (simply borrowing without permission)
§ Claim of right: an affirmative defense in which the defendant claims he is the true owner of the good or money. Generally, not a valid defense if possession involved violence or threat of violence, but works if you believed property belonged to you (under the MPC)
- Rape Elements:
o Intercourse
o By force or threat of force (previously required resistance, now the law only requires compulsion and non-consent by the female, though the MPC maintains the old definition.)
o Against the will and without the consent of the victim
o Defenses: some jurisdictions allow the defense of mistake.
- (See full outline for insanity, attempt, and impossibility)
- Conspiracy: There must be a meeting of the minds/agreement to commit a crime. Each player does not have to know the other players or the details, so long as they are aware of a common goal. It is not limited temporally.
o Pinkerton rule: The Supreme Court held that all the participants are liable as principals for the substantive crimes committed by each in furtherance of the conspiracy. (Knowledge of your co-conspirators actions not required). The rule has been accepted in some but not all states.
o Overton act: Under the common law rule, the prohibited agreement is all that is required to constitute the crime of conspiracy. The statute is not considered violated until the conspirator does an act in furtherance of the conspiratorial objective. The required “overt act” may be that of only a single one of the conspirators and need not itself be a crime.
o Termination: The extent of a conspiracy is defined not only by its scope or conspiratorial objective, but also by its duration. Since the agreement constitutes the crime, a conspiracy ends when the agreement ends. It does not necessarily end when the crime is completed or a co-conspirator is arrested. Completion of the object of the conspiracy, however, may complete the conspiracy (a conspiracy involving a bank robbery that results in someone investing in your company would be completed when the robbery was, not when the investment was completed.).
o Withdrawal: A conspirator must communicate his withdrawal in a manner reasonably expected to reach its co-conspirators. He is still responsible/liable for the actions of his co-conspirators up until his withdrawal.