Use LEFT and RIGHT arrow keys to navigate between flashcards;
Use UP and DOWN arrow keys to flip the card;
H to show hint;
A reads text to speech;
217 Cards in this Set
- Front
- Back
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 |