crimlaw in a pinch Flashcards
diff between mens rea of negligently and recklessly?
Recklessly: [Subjective, Objective] [S] Acts recklessly when Δ consciously disregards a substantial and unjustifiable risk that the material element exists or will result from Δ’s conduct; [O] disregard must involve a gross deviation from the standard of conduct that a law-abiding citizen would observe
Negligently: [Objective] Acts negligently when Δ should be aware of a substantial and unjustifiable risk; must involve a gross deviation from standard of care that a reasonable person would observe
what’s transferred intent?
• MPC §2.03: Causality
o (2)(a) transferred intent (if you accidentally kill wrong person, intent transfers)
what’s the Terrible Choice Doctrine?
Stephenson v. State (IN, 1932)
Δ abducts women and tortures her sexually; women bought poison tablets and took them; Δ delayed in getting emergency medical treatment; Δ loses for murder
• Preslar: D is not guilty for murder when his wife left without necessity and died from exposure to the cold.
• Valade: D is guilty for murder when his sexual assault victim jumped out the window out of necessity to escape him to her death.
• Holding: Women was rendered mentally irresponsible as a result of the environment that Δ created; woman’s suicide was necessary, natural, and probable cause of Δ’s abuse
• Masur: Terrible Choice Doctrine – Women was not mentally irresponsible, she just had to choose between terrible options. This does not cut off the causal chain. SEE KERN
• Discussion: Court had to rule that victim was rendered mentally irresponsible by Δ’s actions to find that her suicide did not cut off the causal chain
People v. Kern (NY 1989)
Δ and friends assaulted group of black men, Kern et al. chased the men with weapons, threatened to kill them, Griffith tried to escape by crossing parkway, was hit by a truck
• Holding: Terrible Choice Doctrine – Kern guilty because created the situation: Griffith stuck between two terrible choices (stop and be possibly killed by Kern or run across road and possibly be hit and die), Griffith’s choice and eventual harm were foreseeable
how does intoxication affect mens rea?
Voluntary intoxication may negate a mental state of purpose or knowledge but not a mental state of criminal recklessness or negligence. Voluntary intoxication may negate a specific intent but not a general intent to commit a crime.
Model Penal Code on actus reus
• MPC §2.01(1): Not guilty unless liability is based on conduct which includes a voluntary act or omission to perform an act the actor is physically capable of
• MPC §2.01(2): Acts that are not voluntary: (a) reflex / convulsions; (b) movement during sleep / unconsciousness; (c) hypnosis; (d) not from effort or determination of actor (either conscious or habitual)
o Masur: overinclusive ex: hypnosis, underinclusive ex: trauma
Contemporary Circuit Split on Martin’s application when an individual is arrested for another reason and brought to jail with a controlled substance on their person
• Possession Voluntary:
o Example: In California, Low: Δ had opportunity to avoid the prohibited act by relinquishing the controlled substance prior to arriving at jail, so guilty
o Example: In North Caroline, Barnes: necessary voluntary act occurred “when the Δ knowingly possess[ed] the controlled substance”
o Rationale: Do not want to enable the drug trade in jails or prisons
• Possession Involuntary:
o Example: In Washington, Easton: Δ’s only option to relinquish the controlled substance would result in a different prosecution, so no volitional choice
o Rationale: Do not want to force people to incriminate themselves in America
MPC on possession
• MPC §2.01(4): Possession is an act, within the meaning of this Section, 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
o Under MPC: guilty because was capable of terminating possession
a few reasons why we don’t punish thoughs?
- Cogitationis poenam nemo patitur: No one is punishable solely for their thoughts
- Blackstone: Crime requires both the will and the act because courts cannot search hearts
- Stephen: If thought crime was real crime, all men would be criminals – unadministrable
- Dworkin & Blumenfeld: Hazy continuum of indistinguishable wishes and intentions (fav)
- Williams: Individuals have the power and will to restrain from actualizing wishes
- Goldstein: excluding successfully prevented crimes key to deterrence – otherwise no point
when is omission allowed?
• MPC §2.01(3): Liability may not be based on omissions unless: (a) omission is expressly made sufficient by the law defining the offense, or (b) Δ has a duty to perform the omitted act otherwise imposed by law
when do relationships mandate a duty of care?
• Special relationships
o 1 way: Parents to minor child; Captain to crew/passenger; bartender to drunk
o 2 way: Spouses to each other; not siblings (only enforce relationships chosen)
• De Facto Special Relationships Circuit split:
o Beardsley: Man lets mistress overdoes in his presence. NL – not de facto spouse
o Carol: Stepmother fails to stop dad from killing his child. L – de facto mom
o Miranda: Live-in bf fails to stop gf from killing her child. NL – not de facto dad
o Difference: (1) gender bias (2) Do not want to disincentivize third parties from taking an interest in an at-risk child for fear of liability via special relationship (Masur disagrees: no one considers liability in forming relationships) (3) Carol married, so some form of legal relationship unlike Miranda and Beardsley
• Additional duty to aid from torts: MPC §2.01(3)(b)
o If one has put another in a dangerous position, she owes that person a duty to aid
Omitting aid establishes a higher mens rea, and greater penalty
E.g., if A recklessly runs into B and B falls into the water. A has a duty to save B. If A chooses not to, this implies a much more culpable state of mind, enabling the prosecutor to increase A’s level of liability
what happens when a law doesn’t describe the level of culpability required?
o §2.02(3): Culpability of purposefully, knowingly, or recklessly is required if the law does not prescribe the required level of culpability
what culpability is required for each element?
o §2.02(4): If law prescribes culpability and does not distinguish among material elements, MPC assumes it applies that level of culpability to all elements
what level of culpability suffices based on which is listed in an act?
o §2.02(5): Substitutes; each higher level of culpability is valid if statute only requires a lower level
what diff MR exist in the Model Penal Code?
Purposefully: [Subjective] Acts purposefully when: (i) if element involves nature of conduct or result thereof, Δ’s conscious object is to engage in conduct of that nature or cause that result; or (ii) if element involves attendant circumstances, Δ is aware of such circumstances or hopes/believes that they exist
Knowingly: [Subjective] Acts knowingly when: (i) if element involves conduct or attendant circumstances, Δ is aware that Δ’s conduct is of that nature or that such circumstances exist; or (ii) if element involves result of conduct, Δ is aware that it is practically certain Δ’s (2.02(7)) conduct will cause such a result
Recklessly: [Subjective, Objective] [S] Acts recklessly when Δ consciously disregards a substantial and unjustifiable risk that the material element exists or will result from Δ’s conduct; [O] disregard must involve a gross deviation from the standard of conduct that a law-abiding citizen would observe
Negligently: [Objective] Acts negligently when Δ should be aware of a substantial and unjustifiable risk; must involve a gross deviation from standard of care that a reasonable person would observe
what’s a mens rea of knowledge in the Model Penal Code?
o §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 exist.
what’s a mens rea of knowingly?
o §2.02(8): Offense is committed willfully if Δ committed it knowingly
what if you don’t know the law?
o §2.02(9): Not knowing the law is not a defense unless so provided
what happens when your mens rea is diff for diff material elements of the crime?
o §2.02(10): When grade or degree depends on whether offense is purposefully, knowingly, recklessly, or negligently, its grade or degree is the lowest for any material element
what happens when your mens rea is conditional?
o §2.02(5): Substitutes; each higher level of culpability is valid if statute only requires a lower level
commentaries:
Subsection (5) makes it unnecessary to state in the definition of an offense that the defendant can be convicted if it is proved that he was more culpable than the definition of the offense requires. Thus, if the crime can be committed recklessly, it is no less committed if the actor acted purposely.
what do you do when a statute has no mens rea listed?
Steps of Analysis for Statutes without Mens Rea requirements
- Determine what mens rea the statute calls for
- Apply mistake of fact principles to the statute
when is it appropriate to not have a mens rea for a crime in common law?
Is it a traditional common law crime? Then mens rea should be required, unless (1) it’s a lesser legal wrong; (2) it’s a public welfare offense; (3) the statute explicitly rejects mens rea requirement
what does the Model Penal Code say about strict liability crimes?
MPC §2.05:
(1) Culpability requirements don’t apply to:
• offenses that are violations o (b) offenses defined by statutes and legislative purposes
(2) Notwithstanding other provisions and unless a statute so provides:
• (a) When SL is imposed for any material element, if conviction is based on that, offense is a violation only
• (b) Although SL imposed by law, culpable commission of offense may be charged / proven when negligence is sufficient to establish liability
o Superimposes no strict liability on entire penal system
MPC §1.04(5): Offense is a violation if:
(1) statute explicitly says; (2) no punishment other than a fine / civil penalty; (3) is defined by a non-MPC statute re: offense is not a crime. Violation =/ crime. No civil disability.
when is mistake of fact or law a defense according to the MPC?
• §2.04(1): Ignorance or mistake of matter of fact or law is defense if: (a) ignorance or mistake negates the purpose, knowledge, belief, recklessness, or negligence required; or (b) the law provides that such ignorance or mistake is a valid defense
what’s the lesser crime principal and what’s its status?
• When one knowing commits a crime, they run the risk of committing a greater crime
o Dissent in Prince + some states
• Most states + MPC disavow this principle:
o §2.04(2): Even if ignorance or mistake is a defense, is invalid if Δ would have been guilty of another offense if the situation was as Δ had thought; however, degree / grade of offense is lowered to the one that the Δ thought Δ was guilty of
o Only 1-way: If you accidentally committed a lesser crime, held accountable for it
when does mistake of law matter?
- §2.04(3): Belief that conduct does not legally constitute an offense is a defense when: (a) statute defining the offense is not known to the actor, has not been published, and has not been otherwise reasonably made available, or (b) acts in reasonable reliance on official statement of law, later determined to be invalid or erroneous, from certain authorities
- §2.04(4): Δ must prove a §2.04(3) defense by POE
what does the Model Penal Code say about causality?
o (1)(a) “but for” cause (1)(b) proximate cause rules specific to state
o (2) purposely or knowingly proximate cause rules
o (2)(a) transferred intent (if you accidentally kill wrong person, intent transfers)
o (3) recklessly or negligently proximate cause rules
o (4) when offense has absolute liability, element not established unless result is a “probable consequence” of the actor’s conduct
what are the important requirements for proximate cause?
o Retributivists use this to ensure punishment is proportional to blameworthiness
o Requirements: (1) foreseeability; (2) within the zone of danger; (3) no intervening act of free will that breaks chain of causation
o Note: could be seen as test of whether actus reus is “legally sufficient” – use policy arguments to justify line drawing in close cases – uncertain fact finding/jury verdicts
deal w/intervening actors?
Generally: Intervening causes do not break the causal chain—must be seriously outlandish
Generally: When proximate cause of death was individual independent action, they are liable
Exception: Terrible Choice Doctrine
intervening acts that don’t break chain of causation?
Some intervening acts that do not break the causal chain:
• When one acts out of self-defense and misses assailant
• When one is confused on fact and targets the incorrect party
• When one is acting pursuant of public duty
• When one acts instinctively, especially on account of fear
common law murder
Murder: Killing with malice aforethought
• Aforethought: Premeditation; subjective, but determined through objective evidence
• Malice: Either: intention to kill another, intention to inflict grievous bodily injury, extreme reckless disregard for value of human life
(depraved heart), intention to commit a felony during the commission, or FMR
common law murder defenses
: Self-defense, provocation (reduce), intoxication, insanity, mistake of fact, negation of mens rea, causation, involuntary act
• No duress / necessity defense
Model Penal Code murder
MPC §210.2: Murder
• (1) Except as in §210.3(1)(b), criminal homicide is murder when:
(a) Committed P/K; or (b) Committed R if extreme indifference to human life; presumed if during robbery, rape, arson, burglary, kidnapping, or felon escape
• (2) Murder is 1st degree felony (can have death sentence under §210.6)
Model Penal Code murder defenses
Possible defenses: Self-defense, EMED (reduce), intoxication (reduce), duress, necessity, insanity, mistake of fact, causation, negation of mens rea, involuntary act
common law manslaughter
Manslaughter: Unlawful killing without malice aforethought
• Voluntary: Intentional killing committed in: heat of passion, as the result of adequate provocation, no cooling off time, and a causal link between provocation, passion, and
homicide
• Involuntary: Unintentional killing that is a gross deviation from reasonable standard of care (looking to degree, justification, and awareness of risk)
common law manslaughter defenses
Possible defenses: Insanity, diminished capacity, self-defense, imperfect self-defense (mitigating), involuntary intoxication, mistake of fact, causation, involuntary act
• No duress / necessity defense
Model Penal Code manslaughter
MPC §210.3: Manslaughter
• (1) Criminal homicide is manslaughter when it’s:
o (a) Committed recklessly; or (b) If it would otherwise be murder, but if committed under influence of extreme mental or emotional disturbance (EMED-subjective) for which there is reasonable explanation (objective); if objective standard is used, whether reasonable in actor’s situation as he believes them to be
• (2) Manslaughter is 2nd degree felony
Model Penal Code manslaughter defense
Possible defenses: Insanity, self-defense, causation, necessity, duress, involuntary act
Girouard v. Maher provocation doctrines
- Both: attain evidence of their s/o cheating of them without directly witnessing it
- Girouard: Only a select set of circumstances previously recognized by precedent may suffice to assess objective provocation. NO direct witnessing—only oral testimony
- Maher: Provocation need not conform to any preexisting categories and is a question of fact that is best left to the jury to decide if the circumstances were sufficient to induce the ordinary man to act by passion rather than reason
- Girouard’s rules are the majority view, but some jurisdictions opt for Maher’s standards
- Masur: Mixed approach is possible (judge decides admissibility, jury decides fact)
sexual infidelity as impetus
• Courts tend to interpret the boundaries of sexual infidelity category very narrowly
o Simonovich: Talking about previous infidelities=/witnessing intercourse
o Dennis: Sexual contact =/ sexual intercourse
o Turner: Long term couple were not married
• Tide is shifting against using one’s witnessing adultery as sufficient basis to mitigate murder to manslaughter because the rule is largely protecting homicidal men
same sex provocation?
no - Same-sex advances as provocative acts (tide turns against this)
what’s cooling time?
common law only
• Significant lapses in time between the provocation and the assault renders the provocation defense inadequate as a matter of law
o Bordeaux: D assaulted his mom’s rapist several hours after learning about it at an all-day drinking party. D left and came back to kill him. Court did not permit provocation defense.
what’s common law rekindling?
• Cooling-time limitation may be overcome by arguing that an event immediately prior to the killing “rekindled” the provocation
o Judges may not permit the rekindling defense as a matter of law if the rekindling event is not legally sufficient
Gounagias: D was sodomized by a man. He was repeatedly teased for it. The accumulative effects of the teasing led him to kill the man. Court did not permit rekindling because teasing was not legally sufficient rekindling and the provocation occurred weeks earlier.
o LeClair: Judge did not permit rekindling defense since pre-existing suspicions were there and sudden events confirmed them
Man suspected wife of infidelity for weeks, his suspicions were suddenly confirmed and he killed her.
who can provoke?
Non-provoking Victims and Provoking Defendants
• Misdirected reaction:
o Mauricio: Bouncer forcefully removed man. Man later shot who he thought to be bouncer but was not. Murder charge reversed.
o Mitigation to manslaughter is thought about from the perspective of the killer
• Intentionally killing a non-provoking victim
o Scriva: Man killed bystander who tried to restrain him from going after a provoker. Court did not permit provocation defense.
Distinguished from Mauricio b/c of knowledge of who you harmed
• Intentionally killing a victim who you provoked
o Welsh: D threatened man. Man pinned him to the wall and punched him. D drew a knife and killed him. CoA held that jury should be given the manslaughter instruction on account of provocation.
o Masur: Courts don’t dig too deeply into how the fight began
what’s the eed defense?
• EED Test (MPC §210.3)
o Subjective element: “committed under the influence of extreme mental or emotional disturbance”
o Objective element: “for which there is reasonable explanation or excuse. The reasonableness of such explanation or excuse shall be determined [by a RPP] in the actor’s situation under the circumstances as he believes them to be.”
Masur: more possibilities than common law provocative acts
unintentional killing in common law
Involuntary manslaughter: Gross deviation from standard of care a reasonable person would exercise in same situation
• Based on degree, justification, and awareness of risk
• See Welansky
Jerome Hall: Common law formulation of criminal negligence often uses a triple contradiction of terms: willful, wanton negligence
Model Penal Code unintentional killing
Levels of unintentional killing:
• Not liable: Δ acted reasonably
• Tort liability: Δ deviated from reasonable person (ordinary negligence)
• Negligent homicide: Gross deviation from reasonable person
• Manslaughter: Gross deviation from law-abiding person (recklessness)
• Murder: Recklessness manifesting extreme indifference to human life
MPC §210.4: Negligent homicide
• (1) Criminal homicide is negligent homicide (should be aware of a substantial and unjustifiable risk);
§2.02(2)(c))
• (2) Felony of the 3rd degree
MPC Criminal Negligence
• Disregard of the risk (MPC - Subjective standard)
o If you actually disregarded, then reckless and manslaughter
o If you did not actually disregard, but should have reasonably known of the risk, then that is enough for negligent homicide
o Deviation from the law-abiding person for criminal liability
o Deviation from the reasonably prudent person for tort liability
• How much risk did you create (Objective standard)
o Substantial and unjustifiable risk
o BPL analysis is used as a guide to determine how much risk was being created and therefore how gross a deviation occurred
Common Law Criminal Negligence
• Really just involuntary manslaughter – See Welansly
contributory negligence?
Contributory negligence: Not a defense in criminal law (difference civil v criminal negligence)
MPC Criminal Negligence vs Manslaughter
• MPC distinguishes criminal negligence from involuntary manslaughter on the basis of whether D was reckless or negligent
o Recklessly: [Subjective, Objective] [S] Acts recklessly when Δ consciously disregards a substantial and unjustifiable risk that the material element exists or will result from Δ’s conduct; [O] disregard must involve a gross deviation from the standard of conduct that a law-abiding citizen would observe
o Negligently: [Objective] Acts negligently when Δ should be aware of a substantial and unjustifiable risk; must involve a gross deviation from standard of care that a reasonable person would observe
• Difference in terms of subjective awareness of risk
o Negshould have known, but didn’t
o MSdid know, recklessly disregarded it
o MS also requires objectively a greater deviation from the conduct of a RPP
Model Penal Code murder v. manslaughter
• MPC §210.2(1)(b): Murder requires proof that Δ acted recklessly under the circumstances, with extreme indifference to the value of human life. Recklessness+ is assumed if committing one of the enumerated felonies.
• MPC §2.08(2): Recklessness need not be shown if the reason Δ was unaware of the risk was Δ’s voluntary intoxication [THIS INCLUDES MURDER]
• MPC §210.3(1)(a): Manslaughter is committed when a killing is done recklessly
• MPC §2.02(2): Acts recklessly when Δ consciously disregards a substantial and unjustifiable risk that the material element exists or will result from Δ’s conduct; disregard must involve a gross deviation from the standard of conduct that a law-abiding citizen would observe
• Line between recklessness and recklessness+ is “extreme indifference to human life”
o Masur: Really just the level of risk created in practice
felony murder common law
Felony murder: Elements required • Legality • Actus Reus • Felony Commission • Causation
Note: Felony murder in common law is strict liability; no mens rea requirement
• Death does not have to be foreseeable
Additional considerations: • Proximate cause • Inherently dangerous felony” • Merger doctrine • “In furtherance of the felony”
