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217 Cards in this Set

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What are the 3 approaches to provocation
1) catagorical test (early CL)
2) modern reasonable person (majority)
3) extreme mental or emotional disturbance defense MPC)
Provocation
CL/Catagorical test
1) an aggravated assault or battery
2) the observation of a serious crime against a close relative
3)an illegal arrest
4) mutual combat
5) catching ones wife in the act of adultery
Mere words rule
mere words are never enough to constitute legally adaquate provocation (CL)
How is reasonableness determined when using the MPC Extreme mental or emotional disturbance approach?
from the point of view of a person in the D's situation under the circumstances as the D believed them to be
malum in se
bad thing in itself
malum prohibitum
bad only because it has been defined as illegal aka a manmade crime
is speeding Malum prohibitum or malum in se?
Malum prohibitum
Is murder malum in se or malum prohibitum?
Malum in se
Judges use the following to interpret statutes that are ambiguous..
1. Rule of lenienty in favor of the D (last resort)
2. look at the rest of the statute
3. look at overlapping statutes
4. legislative intent
5. amendment history
6. plain meaning
Judges MUST use the following to interpret UNAMBIGUOUS language..
Plain Meaning Rule

Exception: if the plain meaning will lead to injustice, oppression, or an absurd consequence
What are the exceptions to the application of the Plain meaning rule in statutory interpretation?
Ct does not have to apply if they believe that would lead to injustice, oppression or an absurd consequence
Plain Meaning Rule
When statutory language is plain and meaning is clear the ct must give effect to it even if they think the law is unwise or undesirable. UNLESS they feel application will lead to injustice, oppression or absurd consequence.
Rule of Lenity
Ambiguity in a criminal statute must be strictly construed in favor of the D (last resort)
The Due Process Clause reuires that there be ___ ___ that the conduct is forbiden in order to apply a criminal penalty
FAIR NOTICE
Void-for-vagueness doctrine
There must be fair warning/notice that the conduct is forbidden by the statute (actual knowledge not required just noitice)

Arbitraibrary & discriminatory enforcement must be avoided
Ex Post Facto
Law which operates retroactively to
1. make criminal an act that was not criminal when it was committed
2. agravate/increase punishment therefor
3. change rules of evidence to be a detrimement
4. alter law of crim. procedure to deprive a substantial right
Bill of attainder
conviction without a trial.
This is prohibited by the constitution
Expressio Unis, Exclusio Alterius
looking to the rest of the statute to see if there which can help interpret an area of ambiguity
Will a repealed law set free someone who has been prosecuted and convicted with a final judgement?
No
when is there a legal duty to act?
1. under statute (ex. income tax)
2. contract (ex. nurse/lifeguard)
3. relationship (parent, spouse)
4. voluntary assumption of care
5. you created the peril
In order to be guilty of ommission
1. there must be a legal duty to act
2. must have knowledge of the facts giving rise to the duty (parent must know it is his kid drowning)
3. must be reasonably able to perform duty or obtain help
ALI/MPC test for insanity
1. lacks SUBSTANTIAL capacity to appreciate wrongfulness
OR
2. lacks ability to conform conduct to the requirements of the law
M'naughten rule
D lacks ability at the time to know wrongfulness OR understand nature & quality of actions
Irrisistible Impulse test
unable to control his actions OR conform conduct to the law
Durham test aka New Hampshire test
But for the disease would the crime have been committed?
Under the Durham test how does one determine if the crime was "a prodcuct of the mental disease or defect"?
As BUT FOR the mental disease or defect would the crime have been committed?
Common law rape elements
1.) forcibly
2.) by means of deception;
3.) while the female is asleep or unconscious; or
4.) under circumstances in which the female is not competent to give consent (e.g., she is drugged, mentally disabled, or underage).
Under common law what is the mens rea for rape?
general-intent offense.
Mens rea for rape under MPC
acting purposely, knowingly, or recklessly regarding each of the material elements of the offense
MPC rape elements
1.) the female is less than 10 years of age;
2.) the female is unconscious;
3.) force or by threatening her or another person with imminent death, grievous bodily harm, extreme pain or kidnapping; or
4.) he administers or employs drugs or intoxicants
"Diminished capacity"
refers to a defendant’s abnormal mental condition, short of insanity
Requirements of the Necessity Defense (CL)
1.) clear and imminent danger.
2.) direct causal relationship between the action and the harm to be averted.
3.) no effective legal way to avert the harm.
4.) it;s the lesser harm.
5.) There must be no legislative intent to penalize such conduct under the specific circumstances.
6.) "clean" hands,
Common limitations on necessity defense (CL)
1.) emergencies created by natural forces;
2.) non-homicide cases [see Regina v. Dudley and Stephens, 14 Q.B.D. 273 (1884)]
3.) protection of persons and property only, excluding for example, the protection of reputation or economic interests.
MPC necessity defense
1.) necessary to avoid harm to himself or another;
2.) the harm to be avoided by his conduct is greater than that sought to be avoided by the law prohibiting his conduct; and
3.) there is no legislative intent to exclude the conduct in such circumstances
How is the MPC approach to Necessity defense different from the CL?
does not require that the harm be imminent
no "clean hands." requirment
CL self defense
reasonable belief
imminence
proportionality
One is never permitted to use deadly force to repel a non-deadly attack.
MPC self defense
Believes (doesn't have to be reasonable)
immediately necessary
CL view of use of deadly force in self defense
only if it is to repel of deadly force by the aggressor.
MPC use of deadly force in self defense can bue used to repel
1.) death;
2.) serious bodily injury;
3.) forcible rape; or
4.) kidnapping.
CL & retreat rule in self defense
should retreat if they can in complete safety
Never have to retreat if
you are in your dwelling (castle rule)
intervening cause
something that happens between the D act and the harm that is also a cause
responsive intervening cause
an act that occurs as a result of the defendant’s prior wrongful conduct.
coincidental intervening cause
only relationship between the defendant’s conduct and the intervening cause is that the defendant placed the victim in a situation where the intervening cause could independently act upon him.
What kind of MPC mens rea is described here? (1) it was her conscious object to cause the result; or (2) if she knew that the
result was virtually certain to occur because of her conduct.
Purposefully/intentionally
What level of MPC mens rea does this describe?
(1)i s aware of the fact;
(2) correctly believes that the fact exists; or
(3)suspects that the fact exists and purposely avoids learning if her
suspicion is correct.
knowingly
Willfull blindness
person suspects that the fact exists and purposely avoids learning if her
suspicion is correct.
A person suspects that the fact exists and purposely avoids learning if her
suspicion is correct.
Willfull blindness
A person act in a Criminal Negligent manner if
should be aware that conduct creates a substantial and unjustifiable risk of harm.
Synonyms for criminal negligence
“gross negligence”
and “culpable negligence.”
malum prohibitum
bad b/c it has been defined as illegal, a manmade crime
malum in se
bad in and of itself
who gets the benefit of the doubt in an insufficiency appeal
the prosecutor
When should a judge grant a directed verdict
if no reasonable jury could find that the prosecution proved thier case beyond a reasonable doubt.
What must a prosecutioner prove?
all the elements beyond a reasonable doubt
What should a D show to win
That at least one element was not proven
what is required to punish for omission
legal duty
physical capablity
omission is the cause
mens rea
what are situations where there is a legal duty to act
special relationship
contractual duty
statutory duty
D created the risk of harm
voluntary assumption of care
what types of relationships have been found to constitute legal duty in regards to liablity for ommission
husband-wife
parent-child
grandparent-grandchild
aunt-niece
master-seamen
master-servant
Definition of knowledge from notes
awareness of a fact or willfull blindness
What does the court look at first for statuory interpretation
plain language meaning of the term
What does the court look at when interpreting a statute?
plain language
cannons of construction
lists & associated terms
statuory structure
statuory amendment
avoiding abusurdity
legislative history
case law
how does the mpc handle ignorance or mistake
1. it negates the purpose, knowledge , belief, recklessnes or negligence required to establish a material element
2. state of mind established by the ignorance or mistake constitutes a defense.
MPC defines knowingly
aware of thenature of the conduct/circumstance
&
practiacally certain the conduct will cause a result
MPC defines Purposefully
it is his concious object to engage in conduct & cause a specific result
&
aware or hopes that the circumstances for the element exist
MPC defines recklessly
conciously diregards a substantial and unjustifiable risk that the element will result from his conduct.
& gross deviation from the standard of conduct a law abiding citizen would follow in that situation
MPC defines negligently
he should be aware of a substantial and undustify able risk, failure to percieve it is a gross deviation from the standard of care a reasonable person would observe in that situation
MPC mental states in order are
purposefully
knowingly
recklessly
negligently
what are not material elements according to the MPC
statue of limitations, jurisdiction, venue, or other matter unconnected with harm or the justification of the conduct
When is ignorance a defense under the MPC
statute or enactment of the offense is not known & is not reasonably available prior to the conduct.
or
acting in reliance on an invalid/erroneous statement of the law, including bad interpretation by a police officer
Factors to look at when proving specific intent
surrounding circumstances
who the parties are
the relationship of the parties/prior interaction
degree of force
what was used for the act (heavy glass in the baroom brawl)
natural & probable consequences
What is an example of direct proof of specific intent
confession
Natural and probable consequences can be used
as a too to infer mens rea/specific intent
sine quo non test
but-for test for actual causation
intervening cause
cause that comes up between the act & before the harm
Superceeding cause
intervening cause that relieves D from liablity
What do juries/ct look at when deciding proximate cause
common sense
morality
notions of fairness
retributive/util. concerns
knowlege is generally defined as
is generally defined as awareness of a fact or willful blindness
Recklessly
Consciously disregards
Substantial & unjustifiable risk
Disregard is gross deviation from the standard of conduct that a law abiding person would observe in the actors situation
negligently
Should be aware
Substantial & unjustifiable risk
Failure to perceive is a gross deviation from the standard of care that a reasonable person would observe in the actors situation
MPC default Mens rea/culpablity
recklessly, knowingly or purposely
Does conditonal intent meet the requirement for purposely
yes
When is the rule of lenity used
as a last resort to determine the meaning of an ambiguous term
if the rule of lenity is used who does it favor
Defendants
what is the test for directed verdict
has the prosecution introduced sufficient evidence such that a rational jury could decide that all the elements were proved beyond a reasonable doubt
what must a D show to be sucessful in a motion to dismiss for insufficieny
must show that based on the evidence (assuming it is true) no reasonable jury could find all of the elements beyond a reasonable doubt. Just have to be missing one element.
under CL if there is a mistake of fact about a general intent crime
must be honest & reasonable mistake
States may use a moral wrong or a legal wrong test (see Bell)
Under CL if there is a mistake of fact about a specific intent crime
need not be reasonable only good faith
under MPC is D excused if he is mistaken about a fact but he would have been guilty of a crime if facts were as he thought they were ?
doesn't excuse but it can reduce the grade or degree
under MPC who has the burden for showing mistake
defendant
What is the defendants burden in mistake
production and preponderance of the evidence
What is a retribuitve argument for sentence enhancement in a hate crime
Magnified moral blameworthiness
what is a utilitarian argument for sentence enhancement in a hate crime?
More likely to provoke retribution and incite community unrest
what is a utilitarian argument against sentence enhancement in a hate crime?
Harm is the same regardless of motive
what is a utilitarian argument for strict liablity?
might incentivize greater care
what is a retributive argument against strict liablity?
Incompatible to have moral condemnation if there is no mens rea
Two kinds of intevening cause
responsive/dependant
coincidental/independent
with a responsive/dependant intervening cause the presumption is
liablity
responsive/dependant intervening cause can be rebuted if
it was highly unusual/unforseeable
with a coincidental/independent intervening casue the presumption is
not liable
with a coincidental/independent the D can be found liable if
the result was foreseeable
D leaves a guy naked on the road on a cold foggy night guy gets run over by a truck. Is D liable
even if it was independentent it was foreseeable so yes
D guy leaves a victim bleeding on the road and a beast comes out of the woods and attacks. is D liable
It was dependent because the bleeding was what attracted the beast BUT might not have been so foreseeable (debatable)
D leaves a guy bleeding on the side of the road and guy gets hit by an airplane, is D liable?
Probably not, coincidental and not foreseeable
De minimis contribution
in some jurisdictions if a D contribution is de minimis then the D is not considered a proximate cause
D leaves an unconcious man on the side of a road at night and he freezes to death, D liable
yes dependent cause which was foreseeable
Voluntary human intervention doctrine
if the was an opportunity to avoid the social harm but the victim doesn't take it then the D is typically absolved of liablity
if the was an opportunity to avoid the social harm but the victim doesn't take it D is absolved of liablity under....
Voluntary human intervention doctrine
Voire dire
part of jury selection, can eliminate jurors who would be partial
Case that established proof beyond a resasonable doubt standardd
in re Winship
4 circumstances where bentham (utilitarian) says punishment is not warranted
1. When there is no bad act to prevent

2. When it won’t work – won’t have a preventative effect

3. When the cost exceeds the benefit

4. When the bad act can be prevented in another, cheaper way
The elements of the duress defense
(1) an immediate threat of death or serious bodily injury,
(2) a well-grounded fear that the threat will be carried out, and
(3) no reasonable opportunity to escape the threatened harm
At common law is duress a defense to murder?
At common law, duress was not a defense to murder.
is it easier to convict under mpc or cl for attempt
MPC becase MPC looks at what has been done not what is left to do.
Common law self defense
A non-aggressor
reasonably belief
force is necessary
imminence
proportional force
One is never permitted to use deadly force to repel a non-deadly attack.
MPC self defense
belief
immediately necessary
reasonablenes for self defence belief CL v. MPC
MPC does not specifically require the defendant’s belief to be reasonable. CL requires it to be a reasonable belief
When can deadly force be used for self defense MPC
1.) death;
2.) serious bodily injury;
3.) forcible rape; or
4.) kidnapping.
factors which establish a reasonable belief for self defense
1.) the physical movements of the potential assailant;
2.) any relevant knowledge the defendant has about that person;
3.) the physical attributes of all persons involved, including the defendant;
4.) any prior experiences which could provide a reasonable basis for the belief that the use of deadly force was necessary under the circumstances.
modern trend on reasonableness for self defense belief
reasonable person in the defendant’s situation
Conditions required for necessity D
1.) The defendant must be faced with a clear and imminent danger.
2.) There must be a direct causal relationship between the action and the harm to be averted.
3.) There must be no effective legal way to avert the harm.
4.) The harm that the defendant will cause by violating the law must be less serious than the harm he seeks to avoid. The defendant’s actions are evaluated in terms of the harm that was reasonably foreseeable at the time, rather than the harm that actually occurred.
5.) There must be no legislative intent to penalize such conduct under the specific circumstances.
6.) The defendant must come to the situation with "clean" hands, i.e., he must not have wrongfully placed himself in a situation in which he would be forced to commit the criminal conduct.
The availability of the necessity defense may be further limited to:
1.) emergencies created by natural forces;
2.) non-homicide cases [see Regina v. Dudley and Stephens, 14 Q.B.D. 273 (1884)]
3.) protection of persons and property only, excluding for example, the protection of reputation or economic interests.
Indirect civil disobedience
involves violation of a law that is not the object of the protest
Necessity D for Indirect civil disobedience
necessity is not a defense to indirect civil disobedience
To use Necessity D under MPC...
1.) the defendant believes that his conduct is necessary to avoid harm to himself or another;
2.) the harm to be avoided by his conduct is greater than that sought to be avoided by the law prohibiting his conduct; and
3.) there is no legislative intent to exclude the conduct in such circumstances. [MPC 3.02(1)]
Difference between MPC & CL in necessity D
Code does not require that the harm be imminent
or that the defendant approached the situation with "clean hands."
the common law limitations regarding natural forces, homicide cases, and property and personal are inapplicable to the Code’s necessity defense.
CL & Duress in homicide
duress is not a defense to an intentional killing. A very few states recognize an "imperfect" duress defense, which reduces the offense to manslaughter. Courts are split on the availability of the duress defense in felony-murder prosecutions.
CL duress requirements
1.) Another person issued a specific threat to kill or grievously injure the defendant or a third party, particularly a near relative, unless he committed the offense;
2.) The defendant reasonably believed that the threat was genuine;
3.) The threat was "present, imminent, and impending" at the time of the criminal act;
4.) There was no reasonable escape from the threat except through compliance with the demands of the coercer; and
5.) The defendant was not at fault in exposing himself to the threat.
MPC duress requirements
1) he was compelled to commit the offense by the use, or threatened use, of unlawful force by the coercer upon his or another person; and
(2) a person of reasonable firmness in his situation would have been unable to resist the coercion
(3) unavailable if they recklessly placed themselves in that situation
(4) unavailable for crimes with negligence mens rea if they were negligent in puting themselves in that situation
Difference between MPC & CL in duress
MPC duress can be raised in murder prosecution
MPC abandons immency requirement
MPC & CL share the following elements of duress defense
neither allow it unless bodily injury is threatened
both limit it to threats or use of UNLAWFUL force
Federal test for insanity
excused based on insanity if he proves by clear and convincing evidence that, at the time of the offense, as the result of a severe mental disease or defect, he was unable to appreciate: (1) the nature and quality of his conduct; or (2) the wrongfulness of his conduct. This test requires complete cognitive incapacity.
Durham/product test for insanity
may be excused if he was suffering from a mental disease or defect at the time of the offense and the criminal conduct was the product of the mental disease or defect
MPC insanity test
not responsible for his criminal conduct if, at the time of the conduct, as the result of a mental disease or defect, he lacked substantial capacity to:



1.) appreciate the "criminality" (or "wrongfulness") of his conduct; or
2.) to conform his conduct to the requirements of the law.



This test does not require total mental incapacity.
Irresistible impulse test for insanity
at the time of the offense:



1.) he acted from an "irresistible and uncontrollable impulse";
2.) he was unable to choose between the right and wrong behavior;
3.) his will was destroyed such that his actions were beyond his control.
M'naughten test for insanity
at the time of the criminal act, he was laboring under such a defect of reason, arising from a disease of the mind, that he (1) did not know the nature and quality of the act that he was doing; or (2) if he did know it, he did not know that what he was doing was wrong.
MPC extreme mental or emotional disturbance" (EMED) standard of reasonableness
determined from the viewpoint of a person in the defendant’s situation under the circumstances as he believes them to be.
Under MPC murder can be mitigated down to manslaugher if
it is committed as the result of "extreme mental or emotional disturbance for which there is a reasonable explanation or excuse."
CL mistake of fact for strict liability crime
If the crime is one of strict liability, a mistake of fact is irrelevant.
MPC mistake
mistake is a defense if it negates the mental state required to establish any element of the offense.
CL & MPC mistake of law
excused for committing a criminal offense if he reasonably relies on an official statement of the law, later determined to be erroneous, obtained from a person or public body with responsibility for the interpretation, administration, or enforcement of the law defining the offense.
Can a person be excused for a crime if he missunderstands the law?
not excused for committing a crime if he relies on his own erroneous reading of the law, even if a reasonable person – even a reasonable law–trained person – would have similarly misunderstood the law
complete, but imperfect, attempt
occurs when the defendant performs all of the acts that he set out to do, but fails to attain his criminal goal
incomplete attempt occurs when
defendant does some of the acts necessary to achieve the criminal goal, but he quits or is prevented from continuing
Mens rea for attempt
An attempt is a specific-intent offense, even if the substantive crime is a general-intent offense.
Actus reus for attemp tests
1.) "Last act" test – an attempt occurs at least by the time of the last act but this test does not necessarily require that each and every act be performed on every occasion.
2.) "Physical proximity" test – the defendant’s conduct need not reach the last act but must be "proximate" to the completed crime.
3.) "Dangerous proximity" test – an attempt occurs when the defendant’s conduct is in "dangerous proximity to success," or when an act "is so near to the result that the danger of success is very great."
4.) "Indispensable element" test – an attempt occurs when the defendant has obtained control of an indispensable feature of the criminal plan.
5.) "Probable desistance" test – an attempt occurs when the defendant has reached a point where it was unlikely that he would have voluntarily desisted from his effort to commit the crime.
6.) "Unequivocality" (or res ipsa loquitur) test – an attempt occurs when a person’s conduct, standing alone, unambiguously manifests his criminal intent.
"Last act" test
an attempt occurs at least by the time of the last act but this test does not necessarily require that each and every act be performed on every occasion.
"Physical proximity" test
the defendant’s conduct need not reach the last act but must be "proximate" to the completed crime.
"Dangerous proximity" test
an attempt occurs when the defendant’s conduct is in "dangerous proximity to success," or when an act "is so near to the result that the danger of success is very great."
"Indispensable element" test
an attempt occurs when the defendant has obtained control of an indispensable feature of the criminal plan.
"Probable desistance" test
an attempt occurs when the defendant has reached a point where it was unlikely that he would have voluntarily desisted from his effort to commit the crime.
"Unequivocality" (or res ipsa loquitur) test
an attempt occurs when a person’s conduct, standing alone, unambiguously manifests his criminal intent
CL impossiblity
At common law, legal impossibility is a defense; factual impossibility is not. However, today, most jurisdictions no longer recognize legal impossibility as a defense.
Factual Impossibility
"Factual impossibility" exists when a person’s intended result constitutes a crime, but he fails to consummate the offense because of an attendant circumstance unknown to him or beyond his control. Examples of factual impossibility are a pickpocket putting his hand in the victim’s empty pocket; shooting into an empty bed where the intended victim customarily sleeps; or pulling the trigger of an unloaded gun aimed at a person.
CL Abandonment must be
Where recognized, it applies only if the defendant voluntarily and completely renounces his criminal purpose

Abandonment is not voluntary if the defendant is motivated by unexpected resistance, the absence of an instrumentality essential to the completion of the crime, or some other circumstance that increases the likelihood of arrest or unsuccessful consummation of the offense, or if the defendant merely postpones the criminal endeavor until a better opportunity presents itself.
MPC attempt elements
(1) the purpose to commit the target offense; and (2) conduct constituting a "substantial step" toward the commission of the target offense.
Things that are considered a substantial step under the MPC
including lying in wait;
searching for or following the contemplated victim of the crime;
reconnoitering the contemplated scene of the crime;
unlawful entry into a structure or building in which the crime will be committed;
and possession of the materials to commit the offense, if they are specially designed for a criminal purpose.
MPC rennounciation/abandonment of an attempt must be
(1) he abandons his effort to commit the crime or prevents it from being committed; and (2) his conduct manifests a complete and voluntary renunciation of his criminal purpose. [MPC § 5.01(4)] Under this provision, renunciation is not complete if it is wholly or partially motivated "by a decision to postpone the criminal conduct until a more advantageous time or to transfer the criminal effort to another but similar objective or victim" or if motivated by "circumstances . . . that increase the probability of detection or apprehension or that make more difficult the accomplishment of the criminal purpose."
"Human Being" (cl)
The common law and majority approaches define the beginning of life as birth for purposes of interpreting the criminal homicide law. A minority of states now treat a viable – or, at times, even nonviable – fetus as a human being under the homicide statute.Regarding the end of human life, a majority of states, either by statute or judicial decision, have incorporated "brain death" in their definition of "death."
"Murder" (CL definition)
"the killing of a human being by another human being with malice aforethought."
"Manslaughter" (CL)
"an unlawful killing of a human being by another human being without malice aforethought."
"Malice" (cl)
a person kills another acts with the requisite "malice" if he possesses any one of four states of mind:



1.) the intention to kill a human being;
2.) the intention to inflict grievous bodily injury on another;
3.) an extremely reckless disregard for the value of human life; or
4.) the intention to commit a felony during the commission or attempted commission of which a death results.
3 types of criminal homicde recognized by the MPC
murder, manslaughter, and (unlike the common law) negligent homicide.
MPC "Homicide"
A person is guilty of criminal homicide under the Model Code if he unjustifiably and inexcusably takes the life of another human being [MPC § 210.0(1)] purposely, knowingly, recklessly, or negligently. [MPC § 210.1(1)]
First degree murder
[1] "Deliberate and Premeditated" – Typically, a murder involving the specific intent to kill is first-degree murder in jurisdictions that grade the offense by degrees if the homicide was also "deliberate" and "premeditated."

[2] "Wilful, Deliberate, Premeditated" – Nearly all states that grade murder by degrees provide that a "wilful, deliberate, premeditated" killing is murder in the first degree.
Malice aforethought is implied if a person intends to cause grievous bodily injury to another, but death results what degree of murder would this be
In states that grade murder by degree, this form of malice nearly always constitutes second-degree murder.
what degree of murder is Extreme Recklessness ("Depraved Heart" Murder)
this type of murder almost always constitutes second-degree murder.
CL felony murder
At common law, a person is guilty of murder if he kills another person during the commission or attempted commission of any felony. Nearly every state retains the felony-murder rule.
MPC felony murder
extreme recklessness (and, thus, murder) is presumed if the homicide occurs while the defendant is engaged in, or is an accomplice in, the commission, attempted commission, or flight from one of the dangerous felonies specified in the statute. [MPC § 210.2(1)(b)]
Inherently-Dangerous-Felony Limitation
Many states limit the rule to homicides that occur during the commission of felonies which by their nature are dangerous to human life, e.g., armed robbery.
Traditionally, three types of unlawful killings constitute manslaughter:
1.) an intentional killing committed in "sudden heat of passion" as the result of "adequate provocation" (voluntary manslaughter);
2.) an unintentional killing resulting from the commission of a lawful act done in an unlawful manner (involuntary manslaughter). This is akin to criminally negligent homicide.
3.) an unintentional killing that occurs during the commission or attempted commission of an unlawful act (involuntary manslaughter). This type of manslaughter is sometimes dubbed "unlawful-act manslaughter," or if the killing occurred during the commission of a non-felony, "misdemeanor-manslaughter."
CL heat of passion D elements
1.) The defendant must have acted in heat of passion at the moment of the homicide. "Passion" has been interpreted to include any violent or intense emotion such as fear, jealousy, and desperation.
2.) The passion must have been the result of adequate provocation. Under the modern approach, it is up to the jury to determine what constitutes adequate provocation. Juries in such cases are typically instructed to apply an objective "reasonable-person" standard.
3.) The defendant must not have had a reasonable opportunity to cool off.
4.) There must be a causal link between the provocation, the passion, and the homicide
The EMED manslaughter provision is broader than the common law provocation defense in the following ways:
1.) a specific provocative act is not required to trigger the EMED defense;
2.) even if there is a provocation, it need not involve "an injury, affront, or other provocative act perpetrated upon [the defendant] by the decedent";
3.) even if the decedent provoked the incident, it need not fall within any fixed category of provocations;
4.) words alone can warrant a manslaughter instruction;
5.) there is no rigid cooling-off rule. The suddenness requirement of the common law – that the homicide must follow almost immediately after the provocation – is absent from the EMED defense.
CL rape
1.) forcibly
2.) by means of deception;
3.) while the female is asleep or unconscious; or
4.) under circumstances in which the female is not competent to give consent (e.g., she is drugged, mentally disabled, or underage).
CL intent for rape
Rape is a general-intent offense. As such, a defendant is guilty of rape if he possessed a morally blameworthy state of mind regarding the female’s lack of consent
Modern Statutory Law on rape
non-forcible, but nonconsensual, sexual intercourse,
MPC rape
1.) the female is less than 10 years of age;
2.) the female is unconscious;
3.) he compels the female to submit by force or by threatening her or another person with imminent death, grievous bodily harm, extreme pain or kidnapping; or
4.) he administers or employs drugs or intoxicants in a manner that substantially impairs the female’s ability to appraise or control her conduct. [MPC § 213.1(1)]
Is a non physical threat force
Intercourse secured by a non-physical threat does not constitute forcible rape at common law.
modern trend on resistance for rape
resistance that was reasonable under the circumstances or that was sufficient to indicate that the sexual intercourse was without consent.
traditional common law on resisistance for rape
requires proof of non-consent
And
by force
non-physical threat does not constitute forcible rape at common law.
NJ approach to forcible rape/resisistence
penetration without consent is enough force to be rape (extreme minority view)
MPC approach to resistence & rape
does not require proof of resistance by the victim.
Rape-Shield Statutes
limit what evidence of victims past sexuality can be allowed in as evidence
Is a D able to introduce evidence of prior consentual sex with a rape victim?
yes to show victim intended to consent
Is a D able to introduce evidence of a rape victims past sexual history with other persons?
usually no
determining if a risk is unjustified
look at the nature and purpose of the actors conduct relative to the risk
determining if a risk is substantial
look at the likelihood of the bad outcome and the magnitude of the harm
MPC judge will allow evidence of provocation if
D says they were upset (very low bar)
CL catagorical approach judge will allow evidence of provocation if
a reasonable view of the evidence would support the defense. judge decides reasonableness
Modern reasonable person approach judge will allow evidence of provocation if
there is some evidence that it was heat of passion. jury gets to decide reasonablness
what kind of mitigating factors can downgrade murder to voluntary manslaughter
imperfect self Defense (MPC only)
passion
diminished capacity
CL catagorical approach allow heat of passion for
site of adultery
agravated assault/battery
observation of a crime against a close relative
illegal arrest
mutual combat
Modern reasonable man approach
acted in heat of passion
reasonable person would have been provoked
insufficient time to cool off
& reasonable person would have found the time insufficient to cool off
which approach to heat of passion is the majority
modern reasonable man approach
MPC extreme mental or emotional disturbance approach to heat of passion
murder can be downgraded to manslaughter if the homiced was committed under the influence of extremen mental or emotional disturbance for which there is a reasonable explanation and excuse
Reasonableness under MPC extreme mental or emotional disturbance is determined from
the viewpoint of a person in the actors situation under the circumstances as he believes them to be
For reasonableness for MPC EED what types of things allowed to be part of the actors situation
personal handicaps, blindness, extreme grief, ptsd
For reasonableness for MPC EED what types of things are not allowed to be part of the actors situation
idiosyncratic moral values are not allowed b/c they would undermine the normative message of criminal law
what is the starting point for a depraved heart analysis
recklesness
mens rea for depraved heart murder
recklessness +
recklessness +
gross recklessness AND
extreme indifference to human life.
realized actions posed a significant and unjustifiable risk but did it anyway
Mens rea for depraved heart 2nd degree murder
why do some jurisdicions have resistance requirements for forcible rape
to corroborate non-consent
avenue of proof
if state is going to protect her she needs to do what she can to fight back
Why are resistance requirments for forcible rape problematic?
resistance leads to more harm
law doesnt presume what a reasonable woman would really do in that kind of situation (passiveness is common it is a survival tactic)
leads to victim blaming by focusing on victims actions instead of the perpetrators
In order for ability to resist to be overcome by fear what is the standard the ct uses
fear must be reasonable , general fear is not sufficient he needs to objectively have done something on that particular occasion to suggest force/that she would be hurt.
Progression of resisistance theories in forcible rape
actual physical force
force includes coercion
no force needed (NJ minority MTS case)
what is the common law mens rea of forcible rape
general intent (reasonable mistake of fact is excuse)
forcible compulsion includes
physical, moral, mental coercion
is charecter evidence about rape victims sexual history allowed
generally No
is charecter evidence about rape victims habitual sexual history allowed
generally yes
can consent be withdrawn post penetration
any time as long as it is communicated, at that point if it doesn't stop it is rape
excuse focuses on the
a) actor
b) act
actor
justification focuses on the
a) actor
b) act
act
Justification D
act was the right one under the circumstances
Excuse D
Actor is less blameworthy
examples of Justification D
self D
necessity
examples of excuse D
duress, insanity, diminished capacity
Self D elements
reasonable belief
immenence
proportionality