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226 Cards in this Set
- Front
- Back
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Goals of Criminal Punishment:
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1.Deterrence – generally of society and specifically of the criminal
2.Retribution – tag the criminal and bring balance to society 3.Rehabilitation – give the criminal an attitude change 4.Incapacitation – separate criminals from society 5.Education - to inform society |
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Actus Reus
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voluntary act, omission, or possession
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Texas Penal Code §6.01 – Requirement of Voluntary Act or Omission
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a) A person commits an offense only if he voluntarily engages in conduct, including an act, an omission, or possession.
b) Possession is a voluntary act if the possessor knowingly obtains or receives the thing possessed or is aware of his control of the thing for a sufficient time to permit him to terminate his control. c) A person who omits to perform an act does not commit an offense unless a law as defined by section 1.07 provides that the omission is an offense or otherwise provides that he has a duty to perform the act. |
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Possession
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Possession - (1) Possessor knowingly obtains; OR (2) Person is aware of his control of the thing for a sufficient time to permit him to terminate his control. You don’t have voluntary control at the time of arrest, just sometime in the past.
Rule: A person has to knowingly obtain OR have control over the thing to be in voluntary possession. |
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Guilt by association
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If you are not aware of your control of the thing but are aware of your control of the place where the thing is, this is guilt by association.
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Weed Hypo Serr in car
Valot - weed in hotel |
Serr controls car but not weed
Valot controls hotel room but says not weed Rule: If you are aware of your control over the thing even though you don’t physically touch it, you may still be in possession. |
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Voluntary acts
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Voluntary Act – a conscious, willed choice to perform an act.
If an act is involuntary, none of the reasons for criminal punishment apply. |
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Voluntary Act Examples:
Martin v. State (1944) – Crime to be (1) drunk (2) in a public place (3) engaging in loud and boisterious conduct OR loud and profane discourse. Martin is arrested in his home and he has to be dragged to the police car. He was drunk and cussed at the police on the way to the car and they arrested him for public intoxication. |
Martin cannot check the actus reus box for getting drunk in his home because this is legal. He crossed the line from legal -> illegal when he engaged in loud and profane discourse.
Rule: Only some unlawful act needs to be voluntary, not every act. |
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People v. Grant (1977) – Grant was at a club and there was a riot. Grant went to the riot and then jumped on an officer and attacked him. After his arrest, he had a grand mal seizure. He has a medical history of psychomotor epilepsy, where blackouts couple with great strength usually precede seizures
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Rule: If there is an involuntary act defense, the burden is on the government to prove beyond a reasonable doubt that the act was voluntary. In an insanity defense, the defendant has to prove by a preponderance of evidence that he lacked the capacity to appreciate his criminality or conform his conduct to the law
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Omissions – Criminal Liability for Failure to Act
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Failure to act is not an actus reus unless there is a legal duty.
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omission ex.
people v beardsley dude' s mistress od's |
court ruled that he did not assume care b/c he gave her to scoba and also would not enforce the relationship of a mistress - not a husband and wife relationship
Rule: The only punishment for a person under a moral duty, but not a legal duty, is social condemnation. There is no criminal liability. |
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Types of Legal Duties
WHY ME? |
1.Statutory Duty
-----a.Statute can announce a duty. ------b.Statute can define a crime in terms of failure to act (usual). 2.Status Relationship ----a.Parent to child ----b.Husband to wife ----c.People on a joint inherently dangerous venture 3.Contractual duty 4.Voluntary Assumption of Care of a Helpless Person (Rescue Doctrine) 5.Creation of the Peril |
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omissions - duty to act examples
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statute - tx care of elderly or children; child support
status - hisband and wiffe, parent and child; 2 engaged in inherently dang acts. contractual - abysitter; lifegaurd; nurse Vol Assumtion- serr swims out to rescue bates but turns around creation of the peril- commonwealth v cali - he started fire |
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Is a duty enought to make it criminally liable for you not to act?
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No, There must be a legal duty plus the physical capacity to perform the duty.
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Legal duty plus capacity ex.
• Hypo: Dad took a child to the pier knowing that they both couldn’t swim. If the child drowns, the dad does not have the physical capacity to save the child. But, since there might be something that could have been done to prevent the child from drowning, the omission would be the failure to take these steps. |
Rule: Even when legal duty is not there because of lack of physical capacity, there might be another acts or omissions that give rise to this duty.
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• Hypo: Dad, who cannot swim well, is at the pier with his kids and is talking to another adult. He kids are drowning and he decides not to save the kids because his other kids need him more. He made a choice not to save his child on the fact that he could not swim well.
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Rule: The degree of risk taken should be related the legal duty. The stronger the legal duty, the more risk is expected.
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Hypo: Dad is unaware that the kid is drowning. There is no physical capacity to perform the duty because the facts leading to the duty are not known.
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Rule: There is no legal duty when the person is not aware of the facts giving rise to the legal duty.
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Hypo: Grandma is watching the kids and they drown while she is in a drunken stooper. She claims that she didn’t know that she had a legal duty to the kids.
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Rule: Failure to know of the legal duty is not a defense.
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Strict Liability
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Strict Liability – liability without fault; Actus Reus = Criminality
Industrial Revolution (“new crimes for new times”) |
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Justifications for Strict Liability:
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1.Crime is usually minor – fine as punishment; little social stigma
2.Public Good/Welfare – greater good of society is protected from situations where they cannot protect themselves 3.Defendant is in a position of control – the person is in a position to protect others from harm 4.Defendants are usually culpable but it is difficult to prove beyond a reasonable doubt – ensures government efficiency |
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Strict Liability Examples:
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• State v. Arizona Mines – the defendant tried to show the court ways that he tried to prevent pollution. This evidence did not matter because the crime was a strict liability crime and no proof of intent was needed.
• United States v. FMC Corp – the defendants took weak measures to stop their factory from killing birds. When they were ordered again to stop killing the birds, they improved there measures and the number of birds killed went down. The measures that they took were irrelevant again because of strict liability, but this case illustrates why we lump all mental states together and convict just on actus reus alone. |
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How to determine whether a crime is a strict liability crime or a true crime:
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1. Look at the statute itself.
a. If there are –ly terms, this is a true crime. b. If there are no –ly terms, this is strict liability. The statute might outright say it’s strict liability but this is rare. 2. Look at the potential victim. a. If the potential victim is an individual, it is probably a true crime. b. If the potential victim is the society, it is probably a strict liability crime. 3. Look at the justifications of strict liability – if it fits, then it is usually this type of crime. |
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people v hutchison - alcohol in hump of car?
how would this play out in texas? |
in p v h debate about whether she had to knowingly posses the alcohol.
in texas, the statute for possesion of alcohol in an open container is a a knowingly offense - the mens is knowingly. |
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Texas Penal Code §6.02 Requirement of Culpability
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(a) Except as provided in Subsection (b), a person does not commit an offense unless he intentionally, knowingly, recklessly, or with criminal negligence engages in conduct as the definition of the offense requires.
(b) If the definition of an offense does not prescribe a culpable mental state, a culpable mental state is nevertheless required unless the definition plainly dispenses with any mental element. (c) If the definition of an offense does not prescribe a culpable mental state, but one is nevertheless required under subsection (b), intent, knowledge, or recklessness suffices to establish criminal responsibility. **TX doesn't always follow B because in DWI statute ther is no mens id'd therfore should require at least recklessness but has beeb interpreted as SL |
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Mens Rea
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guilty intent or state of mind
Texas Penal Code §6.02 Requirement of Culpability (a) Except as provided in Subsection (b), a person does not commit an offense unless he intentionally, knowingly, recklessly, or with criminal negligence engages in conduct as the definition of the offense requires. |
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General Mens Rea (Old Approach)
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a person is guilty if he commits an actus reus with a vicious will, evil mind, or a morally blameworthy state of mind. Mens rea was divided into:
• General criminal culpability • General legal culpability • General moral cupability |
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General mens rea ex.
Regina v Prince also remember regina v faulkner - light a match to steal some rum - fire in the hole! |
Regina v. Prince (1875) – Crime was taking a girl under 16 without parental consent. The defendant reasonably believed that the girl was 18 because of her looks and she told him (jury found this to be reasonably true).
Outcome: The court found the defendant guilty because Judge Blackburn interpreted the crime to be a strict liability offense. • Judge Bramwell stated that the defendant was guilty because he committed a morally wrong act because he thought the girl was 18 (general moral culpability). • Judge Denman stated the defendant was guilty because he violated the father’s legal right to custody, until the girl was 21 (general legal culpability). • Judge Brett stated that the defendant was not guilty because he didn’t commit the crime that the statute stated and morality doesn’t need to be considered (general criminal culpability). o Rule: Under modern mens rea, the defendant would not be guilty because he didn’t intentionally, knowingly, recklessly or negligenty take a girl under 16 without the consent of her parents. |
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Mental States and Modern Mens Rea
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Modern Mens Rea – matching one’s liability and punishment to their particular degree of mental culpability or blameworthiness.
4 stages of mental culpability: 1. Intentionally – intended to do the very act with which he is charged. 2. Knowingly – aware of the necessary consequences of his act. 3. Recklessly – probable result which is foreseen, but act anyway 4. Negligently – probable result which should have been forseen. |
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Intentionally (purposely)
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Circumstance
He is aware of such circumstances or hopes they exist Result It is his conscious objective to cause such a result Conduct It is his conscious objective to engage in conduct of that nature |
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Knowingly
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Cricumstance
He is aware that such circumstances exist Result He is aware that it is practically certain that his conduct will cause such a result Conduct He is aware that his conduct is of that nature |
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Recklessly
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Circumstance
He consciously disregards a substantial and unjustifiable risk that the material element exists Result He consciously disregards a substantial and unjustifiable risk that the material element will result from his conduct AND THAT DISREGARD WAS A GROSS DEVIATION FROM an OP standard of care |
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Negligently
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Circumstances
He should be aware of a substantial and unjustifiable risk that the material element exists Result He should be aware of a substantial and unjustifiable risk that the material element will result from his conduct THE RISK MUST BE OF SUCH A NATURE THAT HIS FAILURE TO PERCIEVE IT IS A GROSS DEVIATION from the OP standard of care |
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mental state Hypos based on murder
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o Intentionally (Murder) – Serr sees Bates on a distant hill and no one else is around. He makes a one in a million shot and kills him. He didn’t knowingly kill him because he wasn’t sure his shot would be one but his consicious will or desire to kill Bates was there.
o Knowingly (Murder) – Serr tries to shoot a deer but Bates gets in the way. He shoots the deer anyway. Serr didn’t intentionally kill Bates but he was aware that his conduct was reasonably certain to cause Bates death. *usually these hypos are silly so both mental states are included for murder. o Recklessly (Manslaughter) – Serr tries to shoot a deer and Bates appears but he is a couple inches away from the deer. He shoots and Bates moves and is killed. The degree of risk wasn’t certain but it was he still is aware and consciously disregards a substantial and unjustifiable risk that he will kill Bates (that a reasonable person would perceive). o Negligently (Criminally Negligent Homicide) – Serr shoots through brush to kill a deer. Bates happened to be in the brush and was killed by the shot. Serr was not aware of the substantial risk of killing Bates but he ought be aware of the substantial and justifiable risk of killing Bates (that a reasonably person would perceive) |
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• Hypo: Kids leaned over an overpass and threw a watermelon at a car, that killed the passenger.
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o Intentionally (Murder) – NO – it was not their conscious objective to kill the passenger.
o Knowingly (Murder) – NO – it was not reasonably certain that throwing the watermelon would kill the passenger. o Recklessly (Manslaugther) – MAYBE – could argue that the kids were aware of a substantial risk that throwing the watermelon would kill the passenger. o Negligent (Criminally Negligent Homicide) – YES – the kids ought to be aware of a substantial risk that throwing the watermelon would kill the passenger. |
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• Hypo: Serr arrives at the airport and starts driving to Waco but is tired. He stops to get a latte but he is still tired. He has the option of finding a hotel, stopping at a rest stop, or continuing driving. He continues to drive and kills someone in an accident when he falls asleep.
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o Intentionally – NO – it was not his conscious objective to kill the person.
o Knowingly – NO – he was not aware that continuing to drive was would make it reasonably certain to kill the person. o Recklessly – MAYBE – he was possibly aware that driving while tired could result in killing a person and he consciously disregarded this substantial risk. The question would be is this a gross deviation from the standard of care that an ordinary person would exercise (defense would argue that this behavior is not grossly deviant; everyone drives when they are tired). o Negligent – YES – he ought to be aware of the substantial risk that driving while tired could possibly kill someone in an accident. A reasonable person would perceive this risk. |
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Rule: Transfer of intent only applies when the actual result is the same or substantially similar to the intended result.S
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Example:
• Hypo: Serr want to throw a brick through Bates window. He hits Bates instead and kills him. He would only be guilty of manslaughter or criminally negligent homicide because he did not have the intentionally or knowingly “vicious will” to kill Bates • Hypo: Serr sees what he thinks is Bates outside of his house. He shoots the person and kills them and then finds out that it is Bate’s brother. Serr did not intend to kill Bate’s brother but will still be guilty of murder because the intentionally or knowingly “vicious will” that was present for Bates. |
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Mistake of fact
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Mistake of Fact – is a defense if (1) the defendant was reasonably mistaken and (2) the mistake of fact negates the culpable mens rea.
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Texas Penal Code §8.02 Mistake of Fact
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Texas Penal Code §8.02 Mistake of Fact
(a) It is a defense to prosecution that the actor through mistake formed a reasonable belief about a matter of fact if his mistaken belief negated the kind of culpability required for commission of the offense. (b) Although an actor’s mistake of fact may constitute a defense to the offense charged, he may nevertheless be convicted of any lesser included offense of which he would be guilty if the fact were as if he believed. |
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MOF examples
• State v. Guest – Crime was having sex with a girl under the age of 16. Guest said that he thought that the girl he had sex with was 16 but she was only 15. o Issue: Is this a crime of strict liability or does it include a mens rea? |
o Rule: If the statute is silent, you have to look to the justifications of strict liability to determine whether it is a true crime or a new crime. The default liability under the Texas Penal Code and Modern Penal Code is at least recklessly.
• This is the Majority View on Mistake of Fact but the Minority view (Texas View) on statutory rape (usually viewed as strict liability). • Under Texas Penal Code § 8.02, his mistake of fact was reasonable and it did negate the mental state required but in TX he would have been guilty of the lesser crime of indecency with a minor. • Texas Penal Code § 22.011 Sexual Assault (a) intentionally or knowingly engage in sex without consent (b) intentionally or knowingly engage in sex with consent with a child under the age of 17. • There is a lack of clarity about this language because the last case tried in the Texas Court of Appeals treated statutory rape as a strict liability crime. • There are not many cases for statutory rape because prosecutors are sensitive to tagging minors with felonies. They are only tried in relationships of a power difference. E.g. Teacher-student. |
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MOF
• Regina v. Morgan – Crime is to intentionally or knowingly engage in sexual conduct without consent. The defendants were told by the husband that the wife like kinky sex and would rebel but this was all part of the act. The defendants had sex with her through her kicking and screaming. |
The mistake of fact defense would not work here because there was evidence that she did not consent. The “I didn’t do it” defense would suffice – I had sex but I didn’t knowingly do it without her consent (it wasn’t their conscious objective or desire to have sex without the wife’s consent and they were not aware to a reasonable certainty that the wife didn’t consent). The court held that the defendant were not honestly mistaken because the circumstances were so unreasonable. Rule: There are other defenses besides mistake of fact. The “I didn’t do it” defense.
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• Hypo: Crime to intentionally deprive the owner of property. A jogger gets bumped while running and demands that the other person give him his wallet back. He goes home to find that he left his wallet at home. If he uses mistake of fact, he could still be convicted of assault (unless he pleads self-defense). He could also use the “I didn’t do it” defense.
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If he uses mistake of fact, he could still be convicted of assault (unless he pleads self-defense). He could also use the “I didn’t do it” defense.
o Texas Penal Code §31.03 Theft (a) A person commits an offense if he unlawfully appropriates property with intent to deprive the owner of property. |
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MOF red umbrella hypo
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• Hypo: Bates is walking out of the law school and accidentally picks up the wrong red umbrella (both umbrellas were new). He could use a mistake of fact defense because it was reasonable mistake and it negated the intentionally mental state required for theft.
• Hypo: Bates is walking out of the law school and accidentally picks up a new red umbrella when his red umbrella is old and tattered. He could not use a mistake of fact defense this is an unreasonable mistake because he would have noticed that it wasn’t his. |
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• Richardson v. United States – Crime to possess property unlawfully from another person. The defendant held up his debtor to get $98 dollars back from him (he owed him more).
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In this jurisdiction, the defendant is guilty even though he took what he thought was his own property because it is defined in terms of possession. Under the Texas Penal Code 29.02, the defendant would not be guilty if the fact finder believed that he was taking his own property from the debtor because theft (31.03) is defined in the terms of property. Although he might be guilty of assault with a deadly weapon (self-defense could be used).
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• People v. Bray (1975) - Bray was convicted of a crime in the past (in Kansas) and did not know whether he was a felon or not. In CA, he was convicted of being a felon and possessing a concealable firearm.
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oRule: Bray’s mistake of fact that he didn’t know he was a felon negated his required mens rea of knowingly.
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Mistake of Law
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Mistake of law – is not a defense because there is no excuse for ignorance of the law. HOWEVER
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Texas Penal Code §8.03 – Mistake of Law
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Texas Penal Code §8.03 – Mistake of Law
(a) It is no defense to prosecution that the actor was ignorant of the provisions of any law after the law has taken effect. (b) It is an affirmative defense to prosecution that the actor reasonably believed the conduct charged did not constitute a crime and that he acted in reasonable reliance upon: (1) an official statement of the law contained in a written order or grant of permission by an administrative agency charged by law with responsibility for interpreting the law in question; or (2) a written interpretation of the law contained in an opinion of a court of record or made by a public official charged by law with responsibility for interpreting the law in question. (c) Although an actor’s mistake of law may constitute a defense to the offense charged, he may nevertheless be convicted of a lesser included offense of which he would be guilty if the law were as he believed. |
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Rule: Ignorance of the Law is no defense because the government doesn’t have to prove your conscious of wrongdoing if the actus reus box and mens rea box are checked (all elements of the crime are proved).
You cannot add or subtract elements to the crime. Justifications are: •Be true to the law – it is paramount. •Discourage ignorance of the law/encourage citizens to educate themselves. |
Crime is not actus + mens + knowing you were committing a crime)
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Mistake of law examples
Bray knew he was a felon but didn't know it was a crime to be a felon in possession |
Either way, the mens rea boxed is checked that he knew he was a felon so Actus Reus + Mens Rea = Crime.
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• U.S. v. Baker – Crime to intentionally or knowingly counterfeit and traffic goods. Baker made fake rolex watches but said that he didn’t know that it was a crime to do so.
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Baker has the intent to knowingly counterfeit and traffic goods so the mens rea is checked. This is a mistake of law in which ignorance of this law is not a defense.
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• Yahya Example – Crime to intentionally or knowingly commit murder. The dad caught a boy in his daughter’s room and killed him because it was against his religion to mix sexes before marriage
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He still had the intent to kill so his mens rea was not negated and he is guilty.
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• State v. Hatch – Crime to have a uncased gun (strict liability). The defendant was a MA resident driving through NJ where he was pulled over. The cop noticed the uncased gun and charged him with this crime.
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The defense that he wasn’t aware of the NJ law did not negate his mens rea because there wasn’t one required (strict liability). In this case, he had already been discharged and this was an appeal on acquittal for state’s future purposes.
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Exceptions to this rule (defense of “I didn’t do it” but the defense points to the law):
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1. Ignorance of the collateral law that negates the mens rea of the governing law.
2. Reasonable reliance on the (mistaken) legal advice of (certain) public officials. (still a mistake of governing law). 3. Due Process lack of notice (Lambert) |
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Exception 1 (Mistake of Collateral Law) Examples:
The NH crime of bigamy defined the mens rea as knowingly. Larry divorced his wife ex parte in Mexico. Larry then remarried but NH law did not recognize ex parte divorce hearings. |
Either way, the mens rea box of knowingly is not checked so he is not a criminal. This is a mistake of collateral law because his mistake of law was about the legal prerequiste for divorce in NH, not the law of bigamy.
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• Regina v. Smith – Crime to intentionally or knowingly damage the owner’s property (TPC §28.03 a 1). Smith made repairs that became part of the property (now the owners), which he ripped out when he left.
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Smith did not intend or destroy the owner’s property, so the mens rea of intentionally or knowingly destroy the property of another was negated and he is not a criminal. Smith made a mistake of collateral law (property law of fixtures) not the law of property damage.
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MOL - reliance on public officials
• Hopkins v. State – Crime to intentionally hang signs to solicit performances of marriages. Hopkins hung these signs on the advice of the State’s attorney. |
Under the Model Penal Code is that he is not guilty because he reasonably relied on the State Attorney’s opinion. Under the TX Penal Code, Hopkins might be found guilty because the opinion of the public official has to be in writing.
o Difference between Model Penal Code and Texas Penal Code: • Texas Penal Code requires the opinion of the official in writing • Texas Penal Code only includes administrative agencies while the Model Penal Code includes public officers or body charged with administration, interpretation, or enforcement of the law. |
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• Lambert v. California – Crime to not register in CA if you are a felon. Lambert was convicted previously for the felony of forgery and was charged with the failure to register. The court held that Lambert had to know of the registration law before she could be held accountable for it.
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Usually, with laws that are well known (e.g. gun laws in Hatch case) the defense that you did not know about it would not suffice. In this case, felony registration laws are not common so convicting Lambert of not registering was a violation of due process because notice is required before punishment.
• Rule: If there is awareness of a type of law, the defendant is held liable to self-educate. If there is not, the defendant cannot be held liable. o Today, these felony registration laws are common so this situation has not come about since this case. |
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Diminished Capacity
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Evidence of diminished capacity is admissible to establish that a person did not have the requisite mens rea.
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• People v. Wetmore – Wetmore was released from an institution and entered into a man’s house and started to live there. Wetmore had a history of psychotic illness.
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o Issue: Is the defense of insanity permissible to prove evidence of diminished capacity for the mental state needed to be convicted of a crime?
o Prosecution: An insanity defense can only be introduced at the sentencing phase, not the guilt/innocent phase. o Defense: “I didn’t do it” because I suffer from a diminished mental capacity. o Outcome: The court reversed the conviction and held that evidence of diminished capacity could be used at the guilt/innocent phase, even if it regards insanity. o Rule: Diminished capacity can be used as a defense in the guilt/innocent phase for an “I didn’t do it” defense (negate the required mens rea). Insanity can only be used at the sentencing phase (in CA). |
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Texas Penal Code § 8.01 - Insanity
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a) It is an affirmative defense to prosecution that, at the time of the conduct charged, the actor, as
a result of severe mental disease or defect, did not know that his conduct was wrong. (b) The term "mental disease or defect" does not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct. |
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Intoxication Defense
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• Majority View (Model Penal Code) – Intoxication can be a basis for the “I didn’t do it defense” if the mens rea is negated.
o Justifications: 1. This defense will not suffice in most cases. 2. Have to stay true to the Modern view of “make the punishment fit the crime”. o Exception – a defense of intoxication cannot be used to move from recklessness to negligence. • Minority View (Texas Penal Code) – Intoxication cannot be a basis for the “I didn’t do it defense” even if the mens rea is negated. o Exception – Involuntary intoxication can be a defense if: 1. It negates the mens rea 2. It amounts to an insanity defense (Texas Penal Code § 8.01) |
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Texas Penal Code §19.01. Types of Criminal Homicide
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(a) A person commits criminal homicide if he intentionally, knowingly, recklessly, or with criminal negligence causes the death of an individual.
(b) Criminal homicide is murder, capital murder, manslaughter, or criminally negligent homicide. |
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Texas Penal Code §19.04. Manslaughter
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) A person commits an offense if he recklessly causes the death of an individual.
(b) An offense under this section is a felony of the second degree. |
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Texas Penal Code §19.05. Criminally Negligent Homicide
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(a) A person commits an offense if he causes the death of an individual by criminal negligence.
(b) An offense under this section is a state jail felony. |
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1.Involuntary Manslaughter vs. Criminally Negligent Homicide
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Rule: Reckless homicide is distinguished from criminally negligent homicide in awareness of the substantial and unjustifiable risk and in punishment.
• Reckless Actor – conscious risk taker, gambler, punished more severely • Negligent Actor – inadvertent risk creator, ignoramous, punished less severely |
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Reckless v. Negligent Example:
• State v. O’Brien – Crime to cause death by gross negligence along (common law manslaugther). O’Brien failed to flip a switch on the railroad which caused trains to go off track and a person died as a result. Issue: Did the trial court err in failing to instruct the jury that his actions needed to be willful to be convicted of manslaughter? |
o Rule: Under the modern Model view of manslaughter, reckless behavior is required (knew that the switch would cause harm but disregarded this risk). O’Brien would at least have been guilty of criminally negligent homicide because he did not perceive the risk that he ought to have perceived and this was deviant from the ordinary person’s standard of care.
• Model Penal Code states that negligence is only a crime when: • Harmed caused is great (E.g. killing) • Harm is done to a particularly vunerable victim (E.g. children, elderly) |
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2 step process for calculating recklessnes vs. negligence
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Reckless:
Step One-The defendant was aware that his conduct posed a substantial and unjustifiable risk of death. Step Two -Given the nature and degree of the risk, the defendant's conscious disregard of the risk constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the defendant's standpoint. Negligent: step one -The defendant was unaware that his conduct posed a substantial and unjustifiable risk. step two - Given the nature and degree of the risk, the defendant's failure to perceive the risk constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the defendant's standpoint. |
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step 1 vs step 2
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Step One is a subjective question because it is judged this from the viewpoint of the actor’s mind in the real world. We do not compare this to whether the ordinary person would be aware.
• The only exception is when a defendant claims he is unaware but the jury finds that it is unreasonable to believe that the defendant was unaware. • This is where people that are lacking in “care” (common sense or judgment) are given consideration. Step Two is an objective question because it judged outside of the viewpoint of the actor. The defendant is taken out of the situation and the ordinary person of care is put in their place with all the surrounding circumstances. • The only exception are personal characteristics that fundamentally counter to being a ordinary person of “care”. E.g. common sense, judgment. |
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Reckless and Negligence Examples (with steps included):
• Commonweath v. Welansky – Crime to willfully and wantonly recklessly disregard a risk (manslaughter). Welansky owned a club in which all the exits were blocked by objects. While he was in the hospital, the club caught on fire and killed over 600 people |
The court found Welansky guilty of reckless manslaughter, stating that he willfully and wantonly disregarded the safety of the patrons in the event of a fire. If it was found that Welansky did perceive this risk, then he would be guilty of manslaughter. If it was found that he didn’t perceive the risk, he would still be guilty of criminal negligent homicide.
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• People v. Strong – A religious leader would stab people in the heart and not harm them. One day he did this and the man died. Several witnesses testified that he performed this stabbing numerous times without harm to the follower
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The appellate court remanded the judgment of conviction of manslaughter and stated that it was up to the jury to decide whether or not Strong perceived the risk of death.
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• William Tell Hypo: Tell has shot an apple with an arrow on the top of his son’s head 10,000 out of 10,000 times. One day he misses and the son dies.
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Tell did not perceive this risk because he was a perfect shooter and an ordinary person like him – an expert shooter – would not perceive this risk either so this is not a gross deviation from the standard of care.
Rule: Skill level crosses over from Step One (subjective test) to Step Two (objective test). |
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• Hypo: Two men were drinking. One decides to try to shot a beer can off the head of the other. He misses and causes serious injury to the other.
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If he did cause murder, the defendant would be guilty of manslaughter because he did perceive the risk and an ordinary person like him – no an expert shooter – would not have disregarded the risk of death.
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• Hypo: Mother sat on child to punish him following the advice of her counselor. After it was done various times, the mother killed the child.
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do the do
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• State v. Williams – Misdemeanor killing when the person engages in ordinary, simple negligence. The Williams, a Native American family, had a child that was sick from an abscessed tooth. The family did not take the child to the doctor because they thought it wasn’t serious and they feared that the child would be taken away. The baby died 2 weeks later
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. In the case, the court convicted the Williams of manslaughter because they were aware in the crucial time that they should’ve taken the child to the doctor.
dont forget about the causation. the prosecution had to find that they were guilty at a time when there non-negligene could have saved the baby's life. afterwards, negligence was not a cause. |
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Misedemeanor Manslaughter
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Definition: Misdemeanor Manslaughter – when a person is killed during the occurrence of a misdemeanor; based on general mens rea.
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Model Penal Code v. Texas Penal Code
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• Modern Penal Code disregards Misdemeanor Manslaughter because it does not fit in with the 4 culpable mental states.
• Texas Penal Code only applies Misdemeanor Manslaughter in regards to intoxication: • No culpable mental state is required for conviction of manslaughter. • Only defense: Defendant must prove that accident would have occurred even if he was sober, AND the defendant must show that there wasn’t causation. |
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Misdemeanor manslaughter example
• United States v. Walker – Crime to unlawfully kill with the intent to commit a misdemeanor inherently dangerous in itself (Involuntary manslaughter). Walker dropped an unlicensed gun in a stairwell that went off and killed another person. |
The court convicted him of involuntary manslaughter because carrying an unlicensed gun was dangerous in itself because the person might not be capable of carrying the gun safely.
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Voluntary Manslaughter or
Mitigated Murder |
an intentional, unjustified killing committed while in a reasonable fit of passion.
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in texas, how do we deal with mitigated murder?
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Texas Penal Code §19.02 – Murder
(a) In this section, (1) “Adequate cause” means cause that would commonly produce a degree of anger, rage, resentment, or terror in a person of ordinary temper, sufficient to render the mind incapable of cool reflection. (2) “Sudden passion” means passion directly caused by and arising out of provocation by the individual killed or another acting with the person killed which passion arises at the time of the offense and is not solely the result of former provocation. (c) Except as provided by subsection (d), an offense under this section is a felony in the first degree. (d) At the punishment stage of trial, the defendant may raise the issue as to whether he caused the death under the immediate influence of sudden passion arising from an adequate cause. If the defendant proves the issue in the affirmative by a preponderance of the evidence, the offense is a felony of the second degree. |
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Difference between Voluntary and Involuntary Manslaughter:
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• Involuntary – Unintentional Manslaughter (Reckless Homicide)
• Voluntary – Intentional Manslaughter (Mitigated Murder) |
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4 Requirements for Voluntary Manslaughter:
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Provocation must be adequate.
Step (1) Subjective - Defendant was actually provoked. Step (2) Objective -Person of ordinary temperment would be provoked in the same circumstances as the defendant. Killing must occur before “cooling off” Step (3) Subjective - Person of ordinary temperment would be provoked in the same circumstances as the defendant. Defendant was temporarily incapable of cool reflection before killing. Step (4) Objective- Person of ordinary temperment would have been temporarily incapable of cool reflection before killing in the same circumstances of the defendant. |
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will a person's lack of tolerance or a high temper transfer to the hypothetical man?
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no only the traits that do not directly conflict with the behavioral aspect the government is tryig to find the standard for.
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Common Law v. Modern View
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• Common Law had categories of provocation and did not see “words” as sufficient provocation.
o Physical fight o Adulterous spouse o Injury to a family member. • Modern View is that words can be sufficient provocation in addition to the categories. |
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• Hypo: A man utters a racial slurr to another and then the other person kills him. which traits transfer?
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In the objective comparison, the races of the parties would transfer to the parallel universe for comparison against a reasonable person of ordinary temper.
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• Hypo: A man hires a prostitute and he can’t get it up. She makes fun of him and he kills her.
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In the objective comparison, the incompetency problem would transfer to the parallel universe for comparison against a reasonable person of ordinary temper.
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Texas View v. Majority View - mitigated murder
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• Majority View – the doctrine of voluntary manslaughter is applied at the guilt/innocence stage. The defendant uses it as a part of his defense as evidence to mitigate the murder.
o State has to prove beyond a reasonable doubt that (1) defendant committed murder AND (2) did not commit voluntary manslaughter (disprove at least 1 of 4 elements). • Minority View (Texas) – the doctrine of mitigated manslaughter is applied at the sentencing phase and is equivalent to a conviction of manslaughter. o The defendant must prove that he did commit voluntary manslaughter (proving all 4 elements) by a preponderance of evidence. |
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Voluntary Manslaughter Examples:
• People v. Walker (1965) – Conviction of murder is reduced to voluntary manslaughter when the killing is in the heat of passion. The deceased cut Walker after him and his friends wouldn’t let him gamble. Walker then threw a brick at his head and cut him with his own knife. |
The court reversed and remanded the conviction of murder to be reduced to voluntary manslaughter because Walker immediately stabbed the deceased out of anger. There was not a self-defense argument because he stabbed the deceased after he was on the ground by being hit with a brick.
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The husband walked into the situation in which he thought his wife was cheating with another man but they were really just talking. The husband kills the other man.
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Authorities are split on this issue:
o Majority Opinion – in the heat of passion, regardless of correct interpretation, the punishment can be lessened. |
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• Frailey: A father killed a man when he saw him outside of a store because he had killed his son 9 months earlier.
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If he was subjectively still in a fit of passion, he objectively fails the test of whether a reasonable person of ordinary temper would have been capable of cool reflection.
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Cumulative Provocation
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A series of provocations that accumulate until the person is sent into a fit of passion, incapable of cool reflection.
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• Two different views:
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o Cumulative provocation is not a candidate for mitigated murder/voluntary manslaughter because the reaction was not in an immediate fit of passion and there is enough time to be capable of cool reflection.
o Cumulative provocation is a candidate for mitigate murder/voluntary manslaughter because the reaction at the time brought up a new fit of passion in which the person was not capable of cool reflection. • Texas View – cumulative provocation is a candidate for mitigated murder so long as the reaction at the time of the defense is not solely based on former provocation. o Texas Penal Code §19.02 (a)(2) “Sudden passion” means passion directly caused by and arising out of provocation by the individual killed or another acting with the person killed which passion arises at the time of the offense and is not solely the result of former provocation. |
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Cumulative Provocation Examples:
• People v. Berry – Berry’s wife goes to Israel and returns and taunts him with the idea that she has another man that she met there that she is saving herself for. She has sex with him and messes with his emotions. He finally kills her in a rage. |
Court here gave the instruction of voluntary manslaughter and let the jury decide if he was in a fit of passion, uncapable of cool reflection. His conviction was reduced to voluntary manslaugher (Texas view).
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• State v. Gounagias – Gounagias drinks himself stupid and is sodomized by another man. The other man then boasts to whole town about it and the town makes fun of the Gounagias. Gounagias then kills the other man.
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The Court did not give the instruction of voluntary manslaughter because there could be no fit of passion because it had been weeks since the rape; looks more like deliberate revenge.
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Killing of an Innocent Bystander
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• Under Texas law, as in §19.02 (a)(2), the death has to be directly caused by and arise out of provocation by the individual killed or another acting with the person killed which passion.
Example: • Rowland Hypo: If Rowland (one that mistakenly acted in a fit of passion) would have killed an innocent bystander, he would not be a candidate to use the mitigated murder doctrine in TX because the provocation was not caused by the innocent bystander. |
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Murder
3 ways to be convicted of murder in Texas |
1. Intentionally or knowingly kill
2. Intent to cause serious bodily injury that causes death AND commit an act clearly dangerous to human life 3. Intent to commit a felony AND commit an act clearly dangerous to human life that causes death. |
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Intent to kill examples
• Tarnowner’s Case – The defendant was obsessed with her former lover. The man started to date another women and the defendant became jealous. She wrote him a vicious letter and drove five hours to see him. She claimed that they got into a fight and the gun went off accidentally killing him. The man was shot four times and when the police arrived at the scene, she confessed that she killed him because she couldn’t take it anymore. |
This is a strong case of intent to kill. Intent can be inferred from the circumstantial evidence.
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• Francis v. Franklin – The defendant escaped from prison while visiting the dentist and took the dental assistant as a hostage. He could not get the keys he stole from the dentist to work so he went to the first house and threatened the man at the door with a gun. The man refused to give him the keys and slammed the door. The defendant then shot him through the door and a second bullet when into the ceiling. The defendant then tried to get keys from the family of the man and they all refused. The defendant claims that he did not intend to kill the man because he was startled by the door slamming, he did not kill any of the other people he encountered, and the second bullet was from the gun recoiling after the accidental shot.
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This is a strong case for reasonable doubt. Intent has to be proven beyond a reasonable doubt.
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• Hypo: Serr and Bates agree to play one round of Russian roulette and Serr’s gun goes off and kills Bates. This would not be murder unless Serr practiced spinning precisely so the bullet would be in the perfect position to go off.
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This would be a case for manslaughter because Serr perceived the risk that the gun could go off and kill Bates and the person of ordinary care would not have disregarded that risk. Bates contributory negligence of agreeing to play does not matter because all the elements for manslaughter are still there. Notions of contributory responsibility play a much bigger role in the civil justice system than the criminal justice system because the goal of the criminal justice system is to punish, not compensate.
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: Serr goes in to get surgery that might extend his life, but if unsuccessful then he dies. He signs the consent form and dies on the table.
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All the elements of manslaughter are present – the doctor perceived the substantial risk and disregarded it. The difference here is that the risk is justifiable because Serr signed the consent form. The consent of Serr in this case would make the risk less grossly deviant. Consent matters when it makes the risk justifiable or would make the risk less than grossly deviant.
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Intent to Cause Serious Bodily Injury Examples:
• Mayes v. the People – Mayes came home drunk from a bar. He was being rude to his wife and child and while she was walking out of the room, he threw a beer mug and it hit the lamp in her hand. The lamp caught the wife on fire and she died from those injuries |
The court affirmed Mayes conviction of murder because this was a case of extreme recklessness.
o In Texas, for Mayes to be convicted of murder under: • 19.02 (b)(1) – it was not Maye’s conscious objective or desire to cause death, or it was not reasonably certain that throwing the beer mug at her would cause death. • 19.02 (b)(2) – Mayes did not intend to cause serious bodily injury when he threw the beer mug at his wife. o He would not be guilty of murder, but may be guilty of manslaughter (perceive the risk that throwing the beer mug could cause death and disregarded it) or criminally negligent homicide (failed to perceive but ought to have perceived the risk). |
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• Commonwealth v. Malone – Malone and his friend take a gun and agree to play Russian roulette. Malone loads the gun so it will go off in five shots but on the third shot, the friend is killed.
oIn Texas, for Malone to be convicted of murder under: |
• 19.02 (b)(1) – it was not Malone’s conscious objective or desire to cause death or it was not reasonably certain that death would occur because he thought the gun wouldn’t fire until the 5th shot.
• 19.02 (b)(2) – Malone did not intend to cause serious bodily injury because he loaded the bullet next to the pin. o He would not be guilty of murder, but may be guilty of manslaughter or criminally negligent homicide: • Prosecution: Malone did perceive the risk that the gun would go off because he loaded the gun and fired it three times. • Defense: Malone was not aware of the risk because he loaded the bullet right next to the firing pin, which would take 5 shots to go off and he only shot three times. • Whether reckless or negligent, the ordinary person of care in Malone’s shoes would not have disregarded the risk or would have perceived the risk that the gun would go off. |
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• Commonwealth v. Dorazio – Dorazio, a former heavy weight boxer, gets into a fight at a bar and beats a man unconscious that later dies.
o In Texas, for Malone to be convicted of murder under: |
• 19.02 (b)(1) – There is an argument that Dorazio intended to kill the man or he was reasonably certain that the man could die from the fight.
• 19.02 (b)(2) – This is the stronger argument because Dorazio did intend to cause serious bodily injury and his fists were considered deadly weapons so he was committing an act clearly dangerous to human life. • § 1.07 (17)(b) – definition of deadly weapon - anything in the manner of its use or intended use is capable of causing death or serious injury • § 1.07 (46) – definition of serious bodily injury – bodily injury that creates a substantial risk of death or that cause death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ. |
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• Hypo: Serr punches someone in a bar and they fall back and hit their head. They die from the head injury.
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Serr would not be convicted of murder because he did not intend or know that the person would die and although he caused serious bodily injury, he did not commit an act that was clearly dangerous to human life. Serr might be convicted of:
o Texas Penal Code § 22.01 Assault (a) a person commits an offense if the person: (1) intentionally, knowingly, or recklessly causes bodily injury to another, including the person’s spouse; (2) intentionally or knowingly threatens another with imminent bodily injury, including the person’s spouse; or (3) intentionally or knowingly causes physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative (b) this offense is a Class A Misdemeanor. • Serr intentionally caused bodily injury to another. o Texas Penal Code § 22.02 Aggravated Assault (a) A person commits an offense if the person commits assault as defined in §22.01 and the person: (1) causes serious bodily injury to another, including the person’s spouse; or (2) exhibits a deadly weapon during the commission of the assault (b) An offense under this section is a felony of the second degree. |
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Felony-Murder
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Felony-Murder (shortcut to a murder conviction) – Felons are strictly liable (“murder”) for deaths caused by their felonious activities; based on general mens rea. It is felony-murder regardless of whether the homicide was committed recklessly, criminally negligently, or accidentally, if the homicide occurred in the course of intentionally committing a felony.
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Texas Penal Code §19.02 (b)(3) – Felony Murder
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) A person commits an offense if he:
(3) commits or attempts to commit a felony, other than manslaughter, and in the course of an in furtherance of the commission or attempt, or in immediate flight from the commission or attempt, he commits or attempts to commit an act clearly dangerous to human life that causes the death of an individual. |
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Justifications for the Felony-Murder Doctrine:
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1. The independent felony establishes that the defendant acted with the sort of mens rea that would otherwise establish murder liability – gross recklessness or “wanton indifference”.
2. A person who has proved himself an intentional felon deserves to be strictly liable – at the level of murder liability – for any deaths that occur in the course of his felonious conduct. 3. The doctrine will deter prospective criminals from committing the felony. 4. The rule will induce those who will commit felonies to take the greatest pains to commit those felonies safely, since they know they will be responsible for any fatal outcomes. |
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Model Penal Code View of Felony murder doctrine
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• The felony murder doctrine is not consistent with matching one’s culpability to one’s punishment.
• They understand that the doctrine will continue to exist but advise to only convict on a mens rea of at least reckless. • They do believe that killing while committing a felony should be punished more severely but the extra punishment for the felony takes care of that. |
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texas view of the felony murder doctrine
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• To commit felony murder a person must:
o Commit or attempt to commit a felony [other than manslaughter or a lesser crime]; and o During as or part of the felony; o Commits an act clearly dangerous to human life [that]; o Causes death to another person. • Texas DOES NOT have a capital murder felony murder doctrine. o Texas Penal Code § 19.03 Capital Murder – (a) a person commits murder as defined under Section 19.02 (b)(1) • 19.02 (b)(1) requires intentionally or knowingly |
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Restrictions on the Felony Murder Doctrine:
Majority approach vs. Texas Approach |
1. Majority Approach – limit the felony murder doctrine to inherently dangerous felonies.
• An act is inherently dangerous to human life when there is a high probability that it will result in death (follows the Model Penal Code suggestion). • Look at the felony in the abstract to determine whether it is inherently dangerous (exclude the facts). • This view deters people from committing inherently dangerous felonies. o Texas View – includes any felony as long as the defendant commits an act clearly dangerous to human life. o Look at the felony including the surrounding facts to determine whether is it is clearly dangerous to human life. o This appears to look like reckless or negligent requirement but the courts have rejected this because they state it is strict liability -> statute acts as a mental state because state had to prove all elements of the crime. o This view deters people from committing any type of felony. |
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Felony murder examples
• State v. Chambers – Chambers stole a car at night and drove drunk without the headlights on to avoid getting caught. He swerved into the other lane and killed a family. |
o Majority View – felony of grand auto theft is not inherently dangerous to human life in the abstract.
o Texas View – the felony of grand theft auto is clearly dangerous to human life under the surrounding circumstances of Chambers being drunk and driving without his lights on. |
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Merger limitation
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must be a felonious act independent of the homicide.
• Manslaughter, criminally negligent homicide and aggravated (felony) assault are not subject to the felony murder doctrine because they are considered to merge with the homicide. o If these crimes were subject to this doctrine, every case could be converted to a felony. • In Texas, evidence of the merger doctrine is included in 19.02 (b)(3) – “attempts to commit a felony other than manslaughter”. o The intent of the legislature was to include manslaughter or anything less than manslaughter – criminally negligent homicide or felony assault. • In Texas, child abuse is not a lesser-included offense of manslaughter so it remains an appropriate basis for the felony murder doctrine. |
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Proximate cause limitation
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there must be a logical connection between the felony and the homicide.
• Must show that the felony was a but for cause AND a proximate cause for the death of the individual. |
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examples of proximate cause
• People v. Stamp – Stamp robbed a bank and made the owner lie on the floor. After the robbers left, the owner had a heart attack and died. |
. The court convicted Stamp of felony murder because the robbery had a common sense connection to the owner’s heart attack.
o Prosecution: But for the robbery that day the owner would not have had the heart attack. The robbery initiated the heart attack so the robbery was a proximate cause as well. |
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• Hypo: Serr started a fire and the firefighter was killed trying to put it out.
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If there was not a fire, the firefighter would not have been there trying to put it out – common sense connection between the Serr’s actions and the death of the firefighter.
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• Hypo: Serr started a fire and the firefighter is killed in a fire truck accident by a drunk driver on the way back from the fire.
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The fire is the but for cause of the accident, but not the proximate cause. The drunk driver’s actions were the proximate cause of death so Serr would not be guilty of felony murder.
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4. Duration Limitation
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homicide must occur during or as part of the felony.
• In Texas, 19.02(b)(3) includes “or in immediate flight” for during the felony. • Primary factors of escape: o Time – not long from the commission of the felony o Distance – not far from the commission of the felony o Place – felon has not secured a place of temporary safety. |
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examples of duration
• People v. Gladman - Gladman had just escaped from committing bank robbery. He was hiding behind some tree in a parking lot when a cop pulled up. When the cop was coming toward him, he shot him. Gladman was not far from the bank, it had only been 15 minutes from the robbery, and he was hiding in the bushes. |
Gladman was not far from the bank, it had only been 15 minutes from the robbery, and he was hiding in the bushes. The court convicted him of felony murder. They would have had a better case if they tried to convict on intent to kill, prosecution made this more difficult than it had to be.
• The homicide must occur in the course of the felony or in furtherance of the felony. |
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• Hypo: Serr is running from the bank he just robbed and he sees Bates and thinks that he might as well kill him while he has the chance
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The death in this case was not part of the commission of the felony, Serr would not be guilty of felony murder, but would be guilty of intent to kill Bates.
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Special Situations in Felony Murder.
felon kills a felon |
• In Texas, 19.02 (b)(3), it states that the felony “causes the death of an individual” – does not specify the individual so this would include the death of a felon by a felon.
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Examples: felonon felon murder in the felony murder doctrine
• People v. Cabaltero – the defendants all agreed to rob a drugstore. One of the defendants was shooting at innocent bystanders and the head of the operation got mad and shot and killed him. Cabaltero was sitting in the get away car. |
The court convicted Cabaltero of felony murder because it didn’t matter whether it was a felon or non-felon that was killed. Although Cabaltero was not directly involved with the shooting, he was accused under accomplice liability (foreseeable that someone would get killed in a robbery) – Texas View.
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in the felony murder doctrine Person resisting the felony kills a felon
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• In Texas, you can get a conviction for felony-murder if a person other than the felon causes the death, regardless of whether an innocent person or another felon is killed, as long as the defendant was committing acts “clearly dangerous to human life.”
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Example:
• People v. Hickman – Hickman and an accomplice were leaving the scene of an unarmed burglary. An officer responded and saw someone with a gun in the distance and shot at him. It ended up being a detective. |
The court found Hickman and the accomplice guilty. In Texas, (b)(3) only requires that the act be “clearly dangerous to human life” so the felon actions only have to cause the death of an individual (don’t have to shoot him). Although the felon’s actions caused the death of the detective, it could be argued that unarmed burglary was not an act clearly dangerous to human life.
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Person resisting the felon kills an innocent person
• In Texas, a felon can be charged with felony murder if |
• In Texas, a felon can be charged with felony murder if there acts are “clearly dangerous to human life” and they cause the death of an individual. Armed resistance to violence is reasonably expected – if the felon is acting in a dangerous manner and the person resisting the felony shots and kills another person, the felon is ultimately responsible for causing the armed resistance.
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Example:
• People v. Washington – Washington and his accomplice were in the act of robbing a gas station and the owner shot the accomplice when he can into his office armed. |
Washington was released from his conviction of felony murder because the court stated that to use the doctrine in this situation would overlook the principle of criminal liability, and not stay true to the justifications of the doctrine (deter felons from killing negligently or accidentally and prevent the commission of robberies). The court resists the felony murder doctrine to be used only when the killing is committed by the felon or his/her accomplice.
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Don’t Use the Felony Murder Doctrine Unnecessarily
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• If there is a stronger case for 19.02 (b)(1) or (b)(2) then don’t argue for the felony murder doctrine because it might turn a shortcut into a longcut.
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4 ways that felony murder is restricted
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1. in texas, it is limited to activities which are inherently dangerous to human life
2.merger 3.proximate cause 4. duration - must occur during the felony or in immediate flight of |
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Causation
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For criminally liability of injury or death, there has to be a but for and proximate cause.
• But for cause is necessary but it is not sufficient to be the legal cause. o There are an infinite number of but for causes. • A proximate cause is required to filter through the but for causes. |
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But For Causation
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But For Cause – the injury or death would not have occurred but for the defendant’s actions.
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But For Causation Example:
• Regina v. Martin Dyos – a group of teenagers got into a fight. Dyos threw a brick at the victim’s forehead and the victim took another blow to head and died from the injuries. There was an actus reus (throwing the brick) and a mens rea (intent to cause serious bodily injury). |
The conviction of murder was dropped because the court could not establish a but for causation because it was reasonable that the second blow caused the death and it was not certain that Dyos caused the second blow. Also, there was no evidence that the first blow caused by Dyos was the cause of death. The court relied on the medical expert’s testimony that was inconsistent and therefore there was reasonable doubt that the blow caused by Dyos was the but for cause of the victim’s death.
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There is a But For Cause When:
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1. Both injuries are deadly and each would have caused death standing alone.
2. Neither injury was deadly standing alone but the combination caused death. 3. The injury inflicted by the defendant is deadly and the other injury is not deadly. 4. The injury inflicted by the defendant is not deadly and the other injury is deadly. •There are three situations where the defendant’s action would be a but for cause: see next card |
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The injury inflicted by the defendant is not deadly and the other injury is deadly.
•There are three situations where the defendant’s action would be a but for cause: |
• (1) If the non-deadly blow accelerated the injury or death.
o Example: The deadly blow to the victim does not kill them immediately. If the non-deadly blow is given and the victim then dies, the non deadly blow is a but for cause because it speed up the death of the victim. • (2) If the non-deadly blow put the victim in the position to receive the deadly blow. o Example: If the victim was hit by the defendant with a brick to the forehead that made the victim fall back and take a deadly blow to the back of his head. The defendant’s actions would be a but for cause of death. • (3) If there is joint enterprise between the person’s giving the deadly and non-deadly blow (accomplice liability). o Example: The defendant and his friend both get a brick and agree to hit the victim at the same time. The defendant blow is not deadly but the friend’s blow is. The defendant’s blow would still be considered a but for cause because he was on a joint enterprise with the friend that caused the deadly blow. |
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Proximate Causation
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Proximate Cause - relieves a defendant of ultimate legal causal responsibility (even though the defendant is a but for cause) when the result is so illogical, unnatural, extraordinary, unforeseeable in light of the defendant’s conduct that it is simply unfair (contrary to common sense and public policy) to hold defendant legally responsible for causing the result.
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•Looking for a common sense connection
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• Looking for a common sense connection between the defendant’s action and the result. Break the connection into:
o WHO got hurt? (victim) o HOW did they get hurt? (manner of harm) o WHAT did the victim suffer? (degree of harm) • The question isn’t whether the defendant foresaw the action (defendant’s actions are given) but whether the WHO, HOW, and WHAT was foreseeable. •Easy test: Can you tell the story of the result without mentioning the defendant’s behavior. |
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Plaintiffs strategy in a proximate cause question
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• The plaintiff must establish that given the defendant’s conduct, the result was not unforeseeable or extraordinary. The plaintiff will try to establish that there was no surprise of the result of the defendant’s conduct.
o The victim was the natural, foreseeable victim. o The manner of harm was the natural, foreseeable result. o The degree of harm was natural, foreseeable harm. |
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Defendants strategy in a proximate cause question
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Defendant’s Strategy:
• For the defendant to establish that his actions were not the proximate cause, he must prove that another intervening, superseding cause was the proximate cause of the result. o Interveneing – occurred between the defendant’s action and the result. o Superseding – much more directly related or immediate proximate cause that trumps the proximate cause of the defendant • It is not sufficient for the defendant to blameshift to another but for cause; this only points to another (multiply sufficient) cause and does not take blame off of the defendant. • If the defendant points to interveneing, superceding cause that can be pointed back to him, the defendant will still be the proximate cause to the result. |
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Proximate cause examples
• Regina v. Benge – Benge was a railroad worker and he looked at the wrong schedule for cleaning the tracks. He thought that the train was supposed to come at 5 when it really was scheduled to come at 3. He pulled up the tracks but the flagman for the train didn’t go far enough. As the train was coming through, the conductor was not paying attention and by the time he saw the flag, he crashed and many people died. The court convicted Benge of murder. |
o The flagman’s but for and proximate cause does intervene but does not supersede because it is does not apparently trump the proximate cause of Benge pulling up the rails. Benge pointing to the flagman as another but for and proximate cause only exhibits one more cause of the death of the people. The flagman’s action could even be pointed back to Benge since he was the manager of the operation and should have informed the flagman to go all the way down.
o In Texas, Benge would not be guilty of murder but would be guilty of criminal negligent homicide. see chart |
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• Commonwealth v. Rhoades – Rhoades set fire to an apartment building. The firefighters came to put out the fire and one of them had a heart attack caused by the smoke inhalation.
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Rhoades Setting fire to the apt. Felony murder √ √ √ √
o Rhoades could try to argue that this was not a foreseeable manner of harm because the heart attack was caused by the firefighter’s poor health. This argument would not be sufficient because it was the smoke inhalation from the fire that increased the risk of heart attack. By pointing to the heart attack as the cause of death, Rhoades is really pointing back to himself as the proximate cause of the death of the firefighter. o In Texas, Rhoades would be guilty of felony murder. |
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• Hypo: Serr wants to kill his enemy that works on the 6th floor of the Alico Building. He goes up to the 6th floor and starts firing and Serr’s enemy jumps from the building and dies.
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o Serr could argue that the manner of harm was not foreseeable because the enemy’s foolish idea to jump was the cause of his death. This argument would not be sufficient because the enemy jumped because he was being shot at by Serr. By pointing to the enemy’s foolish idea as the superseding cause, Serr is really pointing back to himself as the proximate cause of the enemy’s death.
o In Texas, Serr would be guilty of murder through transfer of intent. |
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• United States v. Hamilton – fight outside of a bar where Hamilton jumps on the victim’s face. The victim at the hospital has to breathe through tubes to survive. He then rips out the tubes in his face and dies soon after.
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The court convicted Hamilton of murder because the victim contributing to his death was just another proximate cause and did change Hamilton’s liability (was not superseding).
o Hamilton could argue that the manner of harm was not foreseeable because the victim’s pulling out his tubes is the superseding, proximate cause of his death. This argument would most likely fail because pulling out the tubes doesn’t supersede the proximate cause of the victim getting kicked in the face. It would make a difference whether the victim’s actions were conscious or unconscious; if unconscious, there is a greater argument for the prosecution, if unconscious, then it is the greater argument for the defense. o In Texas, Hamilton would be guilty of murder. |
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• Commonwealth v. Root – Root and another man agreed to race on the freeway. Root did not move to let he other man over and the other man swerved into oncoming traffic and hit a truck head on. The other man died.
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o Root could argue that the manner of harm was not foreseeable because the victim’s reckless passing of the truck was a superseding, proximate cause of his death. This argument would most likely fail because this is a foreseeable cause from Root’s actions of recklessly participating in drag racing.
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Texas Penal Code §6.04. Causation: Conduct and Results
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(b) A person is nevertheless criminally responsible for causing a result if the only difference between what actually occurred and what he desired, contemplated, or risked is that:
(1) a different offense was committed; or (2) a different person or property was injured, harmed, or otherwise affected. |
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• Hypo: Serr wants to make Bates mad and shoot out the windows in his garage while he is on vacation. Serr doesn’t know that Bates is in his garage because the lights are turned off. Serr shoots at the window and the bullet hits Bates in the head and Bates dies.
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Serr was the but for and proximate cause of death. It could be argued that Serr was criminally negligent – he ought to be aware of the substantial and unjustifiable risk that Bates could be in his garage.
Rule: A person is still responsible if the only thing that was unforeseeable is the type or degree of harm (E.g. a different offense). |
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• Hypo: Serr takes Bates to the desert to kill him. Serr shoots at Bates, but misses and hits a person hiding behind a cactus.
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Serr has the intent to kill but Serr killed a different person than he intended. Serr is the but for and proximate cause of the person’s death and is guilty of murder through transfer of intent.
Rule: A person is still responsible if the only thing that is different is the victim. E.g. Transfer of intent. |
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• Hypo: Serr does target practice everyday in a deserted part of town. One day, he sets up the target on the shed as usual and when he fires, he kills a homeless man in the shed.
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Although this is a highly unforeseeable victim, Serr was the but for and proximate cause of his death. Serr did not intentionally, knowingly, recklessly, or negligently kill the homeless man, so Serr would not be convicted.
Rule: Just because someone is the proximate cause of injury does NOT mean they are criminally liable because they have to have the requisite mens rea. |
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Attempt
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Attempt – direct movement toward commission of a crime, not mere preparation for a crime.
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Texas Penal Code §15.01 - Criminal Attempt
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(a) A person commits an offense if, with specific intent to commit an offense, he does an act amounting to more than mere preparation that tends but fails to effect the commission of the offense intended.
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justifications and policy concerns for drawing the line
• The universal test of direct movement toward commission is not useful because all actions toward commission of a crime would be preparation and direct movement toward the crime. • Consider the justifications and policy concerns when drawing the imaginary line. |
Justifications:
• Society only wants to punish those that are near to the commission of the crime. Policy Concerns: • Criminality should not be imposed too soon (too close to the idea) because people must be given fair opportunity to control themselves and decide not to act out their idea. • Criminality should not be imposed too late (too close to the completed crime). Once a person has clearly demonstrated his intent to commit the crime, the law cares less about deterrence and more about protecting the potential victim and catching and punishing the wrongdoer. |
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Punishment for criminal attempt
Texas Penal Code §15.01 - Criminal Attempt |
(d) An offense under this section is one category lower than the offense attempted, and if the offense attempted is a state jail felony, the offense is a Class A misdemeanor.
• Attempt is punished one category lower than the punishment for the crime attempted. |
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mens and actus for attempt
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• Mens rea required for attempt is intentionally.
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Examples:
• Hypo: Serr is driving 80 mph in a 30 mph zone. Children are present and there are warning signs that children cross the street in this zone. Serr sees the children in the area but he is running late and keeps speeding. A child runs out in front of Serr and child does not die but is severely injured |
Serr would not be guilty of attempted reckless homicide – there is no such thing. Serr could be accused of causing serious bodily injury – aggravated assault – which is the same punishment as manslaughter (second degree felony).
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• Hypo: Hypo: Serr has seen the movie Speed and wants to be like Keano Reeves. He pushes the accelerator and refuses to hit his brake, swerving in and out of cars. Serr decides to keep driving in this manner until someone gets killed. He hits a child that is severely injured
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Serr would be guilty of attempted murder because he had the mens rea of the intent to kill.
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• Actus Reus for attempt
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is a question of how proximate did the actions get to the commission of the crime – the relationship between the defendant’s actions and how close they are to the intended result.
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Attempt Examples:
• People v. Murray – Murray had intent to marry his niece and showed this intent through his determination to contract the marriage and asking the magistrate to perform the ceremony. |
The court did not charge Murray with attempted incestuous marriage because his acts were preparatory to the marriage and attempt could only be held when Murray was standing at the alter with his niece waiting to take the vows of marriage.
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• People v. Rizzo – Rizzo and his accomplices were driving around town looking for Rao, the payroll guy, because they wanted to rob him. They went a couple places and could not find him. While they were driving around, the police found out about their plan and arrested them
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The court reversed Rizzo’s conviction for attempted robbery because Rao was not found at any of the places they went. If the victim was not present at the scene, the court stated that there acts were mere preparation because they were not proximate or near the commission of the crime.
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Renunciation/abandonment
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Renunciation – abandoning participation in a crime before it takes place; only applicable after the attempt line has been crossed.
Rule: Once a defendant has “crossed the line” and is liable for attempt, he can effectively “uncross the line” depending on his motivation for renunciation. |
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Texas Penal Code §15.04 - Renunciation Defense
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(a) It is an affirmative defense to prosecution under §15.01 that under circumstances manifesting a voluntary and complete renunciation of his criminal objective the actor avoided commission of the offense attempted by abandoning his criminal conduct or, if abandonment was insufficient to avoid commission of the offense, by taking further affirmative action that prevented the commission.
(c) Renunciation is not voluntary if it is motivated in whole or in part: (1) by circumstances not present or apparent at the inception of the actor’s course of conduct that increase the probability of detection or apprehension of that make more difficult the accomplishment of the objective; or (2) by a decision to postpone the criminal conduct until another time or to transfer the criminal act to another but similar objective or victim. |
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3 Elements for Renunciation for Attempt:
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• (1) Voluntary & Complete Renunciation (concerned about motivation) – true change of heart that does not involve:
o New circumstances that increase the changes of getting caught or make completion more difficult. E.g. Evidence is discovered, victim fights back o Postponement until a latter time or transfer of the act to another victim. • (2) Abandon Criminal Conduct • (3) Affirmative Action that prevents the object offense (if not prevented by abandonment). |
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Texas Penal Code §15.04. Renunciation Defense
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(d) Evidence that the defendant renounced his criminal objective by abandoning criminal conduct, countermanding his solicitation, or withdrawing from the conspiracy before the criminal offense was committed and made substantial effort to prevent the commission of the object offense shall be admissible as mitigation at the hearing on punishment if he has been found guilty of criminal attempt, criminal solicitation, or criminal conspiracy; and in the event of a finding of renunciation under this subsection, the punishment shall be one grade lower than that provided for the offense committed.
• The punishment for attempt may be mitigated if: o Abandoned criminal conduct; and o Made a substantial effort to prevent the crime or attempt. |
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• U.S. v. Jackson – Jackson and his accomplices decide to rob a bank. One their first attempt, they arrive too late to carry out their plan because money was already being dispersed from the vault. One of the accomplices was brought in for other robbery charges and told of the plan. Jackson and the others said that they were going to abandon the plan. The police arrested them after they were seen circling the bank on a second occasion. The court charged Jackson and his accomplices with attempted robbery because they were at the scene on two occasions (proximate) and possessed paraphernalia that could not be used for any other lawful purpose.
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The renunciation defense would not work in this situation because there was not a true change of heart; they backed off the first time because the vault was already open (new circumstances) and they planned to commit the robbery at a later time, which was proven because they came back to the bank later (transfer to a latter time).
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• People v. Staples – Staples rented property above a bank vault and started to drill holes that were close to breaking through the floor. The landlord found the tools that he had been using and reported this incident to the police. It was not clear whether he stopped drilling before or after he knew he was reported. Regardless, he stated he did not want to live life as a fugitive and that family was more important.
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The court convicted him of attempted burglary because his actions were proximate to the commission of burglary and they did not recognize renunciation as a defense.
o In Texas, if the fact finder believed that Staples stopped drilling after he found out that the landlord reported him, then he would be convicted of attempt because this would constitute a new circumstance and would not be a change of heart. If the fact finder believed that he stopped drilling before he was aware that he had been reported, then he could use renunciation as a defense that he truly had a change of heart. o Minority View: Renunciation is not a defense for attempt. |
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Solicitation
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Solicitation – The crime of encouraging or inducing another to commit a crime or join in the commission of a crime.
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Texas Penal Code §15.03 - Criminal Solicitation
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(a) A person commits an offense if, with intent that a capital felony or felony of the first degree be committed, he requests, commands, or attempts to induce another to engage in specific conduct that, under the circumstances surrounding his conduct as the actor believes them to be, would constitute the felony or make the other a party to its commission.
• On the scale, solicitation would be close to the idea before any preparation has taken place. |
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justification mens and actus for solicitation
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Justification – there are special concerns about dangers posed by recruiting others to engage in criminal activity (group criminality).
• Mens Rea – intent to commit or that a capital felony or felony of the first degree be committed. • Actus Reus – the request, command, or attempt to induce another to engage in the conduct that would constitute a capital felony or felony of the first degree or make that person a party to the felony. |
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punishment for criminal solicitation
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Texas Penal Code §15.03 - Criminal Solicitation
(d) An offense under this section is: (1) a felony in the first degree if the offense solicited is a capital offense; (2) a felony of the second degree of the offense solicited is a felony of the first degree. • Solicitation is punished one degree lower than the crime solicited (only capital felonies and first degree felonies apply). |
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Solicitation Examples:
• Hypo: Serr and Counselor are watching Oprah about annoying coworkers. Serr asks Counselor to kill Bates. Counselor refuses |
Serr would be guilty of solicitation because he attempted to solicit Counselor to commit a felony of the first degree (murder).
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• Hypo: Serr tells Counselor that he is going to kill Bates and he wants Counselor to be the getaway driver.
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Serr would be guilty of solicitation, whether Counselor agreed or not and because he tried to make Counselor a party to the commission.
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Reninciation of solicitation
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Texas Penal Code §15.04(b) Renunciation Defense
(b) It is an affirmative defense to prosecution under section 15.02 or 15.03 that under circumstances manifesting a voluntary and complete renunciation of his criminal objective the actor countermanded his solicitation or withdrew from the conspiracy before the object offense and took further affirmative action that prevented the commission of the object offense. • o Voluntary and complete – a true change of heart without new circumstances or intent to commit at a later time; o Countermand the solicitation; and o Affirmative action that prevents the commission of the crime. |
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Renunciation for solicitation requires:
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o Voluntary and complete – a true change of heart without new circumstances or intent to commit at a later time; o Countermand the solicitation; and o Affirmative action that prevents the commission of the crime. |
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Example:
• Hypo: Serr asked Counselor to kill Bates and they set the date for the next week. A couple of days later, Serr has a change of heart and calls Counselor and tells him to call off the plan. Counselor kills Bates on the set date. |
. Serr could not use renunciation as a defense because he did not take affirmative action to prevent Bates from being killed.
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Texas Penal Code §15.04 - Renunciation Defense
(d) |
Texas Penal Code §15.04 - Renunciation Defense
(d) Evidence that the defendant renounced his criminal objective by abandoning criminal conduct, countermanding his solicitation, or withdrawing from the conspiracy before the criminal offense was committed and made substantial effort to prevent the commission of the object offense shall be admissible as mitigation at the hearing on punishment if he has been found guilty of criminal attempt, criminal solicitation, or criminal conspiracy; and in the event of a finding of renunciation under this subsection, the punishment shall be one grade lower than that provided for the offense committed. • The punishment for conspiracy may be mitigated if: o Countermand the solicitation; and o Made a substantial effort to prevent the crime or attempt. |
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Defences to Solicitation Excluded
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Texas Penal Code §15.03 - Criminal Solicitation
(c) It is no defense to prosecution under this section that: (1) the person solicited is not criminally responsible for the felony solicited; (2) the person solicited has been acquitted, has not been prosecuted or convicted, has been convicted of a different offense or of a different type or class of offense, or is immune from prosecution; (3) the actor belongs to a class of persons that by definition of the felony solicited is legally incapable of committing the offense in an individual capacity; or (4) the felony solicited was actually committed. |
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Accomplice Liability/Complicity
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Definitions: Accomplice Liability/Complicity – Theory of vicarious responsibility that links the accomplice with the perpetrator and gives the accomplice the same liability as the perpetrator.
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Texas Penal Code §7.01. Complicity: Parties to Offenses
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Texas Penal Code §7.01. Complicity: Parties to Offenses
(a) A person is criminally responsible as a party to an offense if the offense is committed by his own conduct, by the conduct of another for which he is criminally responsible, or by both. (b) Each party to an offense may be charged with commission of the offense. (c) All traditional distinctions between accomplices and principals are abolished by this section, and each party to an offense may be charged and convicted without alleging that he acted as a principal or accomplice. |
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Justification of accomplice liability
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Since the accomplice has embraced the crime by getting behind it and pushing it to commission, he is liable for the offense as well.
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Common Law v. Modern View of accomplice liability
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• Common Law:
o Liability of the accomplices floated from the principal’s liability; if the principal was not captured, then the accomplices could not be convicted. o Punishment of the accomplices also depended on whether they aiding in the actual crime or were accessories before or after the commission. • Modern View: o Liability of the accomplice is the same as the principal’s liability but they are both equally and separately guilty; if the principal is not captured, the accomplices can still be convicted. o Punishment of the accomplices does not depend on whether they were aiding in he actual crime or were accessories before or after commission. • In Texas, accessories after commission are punished separately under Texas Penal Code § 38.05 (hindering apprehension of a criminal). |
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Aiding and Abetting (Actus Reus)
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• To be liable under accomplice liability, there must be a commission of a crime or an attempt to commit the crime. A person cannot be an accomplice to solicitation or conspiracy.
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Texas Penal Code §7.02. Criminal Responsibility for Conduct of Another
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Texas Penal Code §7.02. Criminal Responsibility for Conduct of Another
(a) A person is criminally responsible for an offense committed by the conduct of another if: (1) acting with the kind of culpability required for the offense, he causes or aids an innocent or nonresponsible person to engage in conduct prohibited by the definition of the offense; (2) acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense; or (3) having a legal duty to prevent commission of the offense and acting with intent to promote or assist its commission, he fails to make a reasonable effort to prevent commission of the offense. • In regards to (1), if the perpetrator has someone commit a crime that is not convicted, the perpetrator would still be responsible for the crime that was committed. • In regards to (3), this is only applied narrowly. E.g. police officers, legislature, etc. |
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aiding and abedding hypo
Serr gets an insane person to assassinate the police officer. |
If the insane person is not convicted, Serr would still be liable for capital murder.
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Actus Reus for Accomplice Liability includes:
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• Solicits;
• Encourages; • Directs; • Aids; or • Attempts to Aid. |
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Accomplice liability requires AT LEAST (in regards to encouragement – presence w/o lifting a finger):
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• (1) Presence of the accomplice; and
• (2) Intent to aid if necessary; and • (3) Communicated intent to the perpetrator. o Does not have to be verbal and as long as it is clearly communicated. |
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Accomplice Liability Actus Reus Examples:
• Pace v. State – Pace was driving his wife and kids and Rootes in the car. Pace stopped to pick up a hitchhiker, Reppert. Rootes then pulled a knife and took Reppert’s wallet and later Rootes took his watch when Reppert got out of the car. Pace ignored the situation and kept driving. |
. His conviction of accessory before the fact of robbery was reversed because there was no evidence that Pace aided or abetted the crime. Pace did not do anything to approve or counter the robbery. Rule: Mere presence or failure to express disapproval (or even mere mental approval) is NOT sufficient to give a defendant the same liability as the perpetrator.
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• (Encourages) Hypo: Serr and Counselor are walking together and Counselor decides to rob the convenient store. Serr tells Counselor that he will be across the street waiting if counselor needs back up.
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Serr’s actus reus would be the outward encouragement of committing robbery because his mere presence (without lifting a finger) would not be an overt act. His mens rea would be intention to promote or assist Counselor in the commission of the crime. If Counselor went through with the commission of robbery, Serr would be guilty of robbery as well through accomplice liability.
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Aids) State v. Ochoa - A & O are protesting for a prisoner to be let go. They hear shots and realize that their friends are shooting at the sheriff. The first shots miss. A & O start beating up the other officer and the sheriff is then killed.
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The court held that a reasonable jury could infer that they were aiding the murderer of the sheriff by keeping the other officer from coming to his aid. A & O’a actus reus would be aiding in the commission of murder and their mens rea would be intention to promote or assist the killer in commission of murder. They would both be guilty of murder through accomplice liability.
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• (Attempts to Aid) Hypo: Same situation as Ochoa, but A & O barr the door but the sheriff is killed before he ever reaches the door.
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A & O’s actus reus would be attempting to aid in the commission of murder. Rule: Accomplice liability does not require causation from the accomplice’s action to the result because the person attempting to aid is vicariously responsible through the causation between the perpetrator and the result.
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• State v. Tally - The Skelton brothers want to kill Ross and set out to kill him. Their brother-in-law, Tally, hears about their plan and goes to the telegraph office to make sure no one sends a warning to Ross.
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Tally intended to promote and assist the murder. Tally aided (or at least attempted to aid) by preventing a warning from being sent. Tally embraced the crime and is guilty of murder (on the theory of accomplice liability as an aider and abettor).
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Mens Rea – Peoni view
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Accomplice liability requires intent to promote or assist in the commission of an offense (crime or attempted crime).
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Texas Penal Code §7.02(a)(2)
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A person is criminally responsible for an offense committed by the conduct of another if, acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense.
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Accomplice Liability Mens Rea Example:
• Ochoa Hypo: A & O are protesting for a prisoner to be let go. They hear shots and realize that their friends are shooting at the sheriff. The first shots miss. A & O decide to go back to the courthouse and bar the door so that the sheriff cannot retreat to safety. When the sheriff reaches the door, he is unable to get in and is shot in the back of the head. |
A & O’a actus reus would be aiding in the commission of murder and their mens rea would be intention to promote or assist the killer in commission Rule: It does not matter if the person committing the crime knows that you are aiding or attempting to aid them in the commission, as long as your intent to promote or assist (mens rea) is present.
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Defenses to accomplice liability
Texas Penal Code §7.03 - Defenses Excluded |
In a prosecution in which an actor’s criminal responsibility is based on the conduct of another, the actor may be convicted on proof of commission of the offense and that he was a party to its commission, and it is no defense
(1) that the actor belongs to a class of persons that by definition of the offense is legally incapable of committing the offense in an individual capacity; or (2) that the person for whose conduct the actor is criminally responsible has been acquitted, has not been prosecuted or convicted, has been convicted of a different offense or of a different type or class of offense, or is immune from prosecution. • In regards to (1), this applied when husbands were excluded from getting prosecuted for raping their wives unless there was outright evidence to the contrary. A person that acts with a perpetrator that is a protected class DOES NOT have immunity from getting prosecuted for the crime through accomplice liability. • In regards to (2) Discrepant Liability – the perpetrator and the accomplice can be liable for different offenses: |
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Example:
• Hypo: A fourth of July celebrator is shooting bullets in the air and runs out. A guy that wants to see someone die gives him more bullets. Someone is shot and killed. |
. The fourth of Jury celebrator would be guilty of manslaughter but the guy that gaves the bullets would be guilty of murder.
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Renunciation as a defense to accomplice liability
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Rule: If the perpetrators attempt to commit a crime but effectively renounce, the accomplice cannot use their renunciation defense.
• An accomplice is responsible for the offensive conduct of the perpetrator. • The defensive conduct of the perpetrator does not apply. |
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Model Penal Code v. Texas View - accomplice liability
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• Model Penal Code – if you are an accomplice to a crime (or attempt), you can effectively renounce your accomplice liability if:
o (1) deprive your complicity of effectiveness (stop the crime); OR o (2) make a substantial effort to prevent the crime (get on the other side and push back). • Texas View – does not have a renunciation defense for accomplice liability (only included in Chapter 15 for Inchoate Offenses). The only way to prevent conviction of accomplice liability is to: o Prevent the crime from occurring; o Use the renunciation defense for the attempt charge that remains. |
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.Conspiracy
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Definition: Conspiracy – An agreement by two or more persons to commit an unlawful act, coupled with an intent to achieve the agreement’s objective.
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Texas Penal Code §15.02 - Criminal Conspiracy
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(a) A person commits criminal conspiracy if, with intent that a felony be committed:
(1) he agrees with one or more persons that they or one or more of them engage in conduct that would constitute the offense; and (2) he or one of more of them performs an overt act in pursuance of the agreement. |
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• Conspiracy is a crime in itself, unlike complicity, which is just a theory.
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• Conspiracy is a crime in itself, unlike complicity, which is just a theory.
o You can be a conspirator without being an accomplice if the object crime has not been committed. o You can be an accomplice without being a conspirator if you aid and abet without agreement with the perpetrator. E.g. Tally • Even if you are a worthless co-conspirator, you are still a participant in the agreement because you have encouraged the crime. E.g. “Let me kill Bates, I want to kill Bates…” |
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Justification (same as solicitation) for conspiracy
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Justification (same as solicitation) - there are special concerns about dangers posed by recruiting others to engage in criminal activity (group criminality).
• Mens Rea – intent to commit a felony • Actus Reus – agreement to engage in conduct that would constitute a felony AND any one in the group performs an overt act in pursuance of the felony. o The overt act can be a preparatory act. |
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Texas Penal Code §15.02 - Criminal Conspiracy
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Texas Penal Code §15.02 - Criminal Conspiracy
(b) An agreement constituting a conspiracy may be inferred from acts of the parties • A conspiracy may be inferred from the acts of the parties. The evidence may be submitted to the jury for a determination of whether there was agreement. Rule: A concurrence of independent wills doesn’t create a conspiracy, but this can be used as evidence that a conspiracy exists. |
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Example:
• Griffin v. State - There was an accident where a car turned over in a ditch. When the two Officers arrived, there was a crowd of people gathered in the ditch. When the police asked if anyone was hurt, Griffin exchanged words and lunged at one of the Officers and a huge fight ensued. |
. The court stated that all the people that engaged in the fight were guilty of conspiracy because there was evidence to infer that an agreement was made. There does not have to be direct evidence of that agreement because that is never possible in most cases.
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Texas Penal Code §7.02 - Criminal Responsibility for Conduct of Another
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Texas Penal Code §7.02 - Criminal Responsibility for Conduct of Another
(b) If, in the attempt to carry out a conspiracy to commit one felony, another felony is committed by one of the conspirators, all conspirators are guilty of the felony actually committed, though having no intent to commit it, if the offense was committed in furtherance of the unlawful purpose and was one that should have been anticipated as a result of the carrying out of the conspiracy. |
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• Pinkerton Rule (consequence of conspiracy) Majority/Texas View:
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If a non-object felony is committed in furtherance of the object crime and that felony was reasonably foreseeable, ALL conspirators are guilty. “When you sign up for the crime (conspire) then you sign up for any foreseeable crimes in furtherance of the original crime that happen along the way”.
o Model Penal Code: Rejects this rule because it does not match one’s punishment with the crime (general mens rea). |
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Example criminal conspiracy
• U.S. v. Diaz - Diaz, Peirallo and Rodriguez sold a kilo of cocaine to a DEA agent and were arrested. Diaz was charged with conspiracy to distribute, possession and distribution of cocaine and use of a firearm in relation to drug trafficking. He appealed on the count of use of a firearm because Peirallo was the one that had the gun on him during the drug sale. |
The court states that there are three factors to accuse a conspirator of an act of one of the conspirators:
(1) the offense was committed; (2) the offense was in furtherance of the conspiracy; and (3) the defendant was a member of the conspiracy at the time of the offense. The jury was instructed as so, and found Diaz guilty. The court affirms the conviction and states that the only exception here, that the crime was not reasonably foreseeable as necessary or natural as a consequence of the agreement, does not apply because it is reasonable to assume that a drug deal would include some type of weapon. |
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• Hypo: Bates is going to commit robbery and Serr is the getaway driver. Bates shoots in the air and the bullet kills the teller.
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Bates is liable for aggravated robbery (29.03). Serr is liable for the aggravated robbery through accomplice liability through 29.03 through 7.02(a)(2). Bates is liable for murder through felony murder (19.02(b)(3)). Serr is liable for the felony murder through accomplice liability in 19.02(b)(3) through 7.02(b).
o Minority: The felony murder doctrine contains a separate accomplice liability statute. o Texas View: An accomplice in felony murder is liable for felony murder through the accomplice liability statute – 7.02(b). |
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• Hypo: Same situation as above but Bates sexually assaults a teller while committing robbery.
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Serr would not be liable for the sexual assault because it was not a foreseeable consequence of committing robbery.
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• Tally Hypo: Sheriff is at the scene when the Skeleton’s boys are shooting at Ross. Sheriff starts shooting at the Skeleton boys and the Skeleton boys shoot back and kill the Sheriff (Ross gets away).
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Skeletons would be guilty of capital murder. Tally would arguably be guilty of the capital murder through accomplice liability because this would be a foreseeable consequence of trying to kill someone (for the police to come and intervene with armed resistance). The prosecution might have difficulty because there was no conspiracy with the Skeleton boys.
o This is probably an oversight of the legislator because most of the time accomplices are conspirators. Even when you aren’t a co-conspirator and just an accomplice, you may be guilty of any foreseeable non-objects crime that occur during commission of an offense. |
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• Mendez v. State – a friend is greedy in loaning his car so the defendants shot up his car. Mendez and his friends then start shooting up other friend’s car and after they run out, they start shooting at other people’s cars. The last bullet shot by one of the other men goes into an apartment and kills a man.
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The man would be responsible for manslaughter. At the time, shooting at property was a misdemeanor so all that Mendez would be guilty of is conspiracy to commit a misdemeanor as the object crime. Texas Court of Criminal Appeals treated this situation as a candidate of accomplice liability even though 7.02 (b) did not technically apply in this case.
Rule: There is Pinkerton liability in TX, even outside the literal bounds of 7.02(b). |
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Punishment for conspiracy
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• Conspiracy is punished one degree lower that the most serious felony that is the object of the conspiracy.
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Punishment
Texas Penal Code §15.02 - Criminal Conspiracy |
Texas Penal Code §15.02 - Criminal Conspiracy
(d) An offense under this section is one category lower than the most serious felony that is the object of the conspiracy, and if the most serious felony that is the object of the conspiracy is a state jail felony, the offense is a Class A misdemeanor. |
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Defenses to criminal conspiracy Excluded
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Texas Penal Code §15.02 - Criminal Conspiracy
(c) It is no defense to the prosecution for criminal conspiracy that: (1) one or more of the coconspirators is not criminally responsible for the object offense; (2) one or more of the coconspirators has been acquitted, so long as two or more coconspirators have not been acquitted; (3) one or more of the coconspirators has not been prosecuted or convicted, has been convicted of a different offense, or is immune from prosecution; (4) the actor belongs to a class of persons that by definition of the object offense is legally incapable of committing the object offense in an individual capacity; or (5) the object offense was actually committed. • If all the coconspirators except one is acquitted, the last one would not be guilty of conspiracy because there is no one left to have an agreement with. |
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Renunciation and criminal conspiracy
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• Renunciation for solicitation requires:
o Voluntary and complete – a true change of heart without new circumstances or intent to commit at a later time; o Withdrawal from the conspiracy; and o Affirmative action that prevents the commission of the crime. |
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Texas Penal Code §15.04(b) - Renunciation Defense
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Texas Penal Code §15.04(b) - Renunciation Defense
(b) It is an affirmative defense to prosecution under section 15.02 or 15.03 that under circumstances manifesting a voluntary and complete renunciation of his criminal objective the actor countermanded his solicitation or withdrew from the conspiracy before the object offense and took further affirmative action that prevented the commission of the object offense. |
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Texas Penal Code §15.04. Renunciation Defense - criminal conspiracy
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Texas Penal Code §15.04. Renunciation Defense
(d) Evidence that the defendant renounced his criminal objective by abandoning criminal conduct, countermanding his solicitation, or withdrawing from the conspiracy before the criminal offense was committed and made substantial effort to prevent the commission of the object offense shall be admissible as mitigation at the hearing on punishment if he has been found guilty of criminal attempt, criminal solicitation, or criminal conspiracy; and in the event of a finding of renunciation under this subsection, the punishment shall be one grade lower than that provided for the offense committed. • The punishment for conspiracy may be mitigated if: o Withdrew from the conspiracy; and o Made a substantial effort to prevent the crime or attempt. |
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Justification and Defense
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Justification – A lawful or sufficient reason for one’s acts or omissions; any fact that prevents an act from being wrong.
Excuse – An act or omission not punishable under the circumstances; the act is still wrong, but not criminally punishable. |
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Necessity
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Definition: Necessity – A justification defense for a person who acts in an emergency that he or she did not create and who commits a harm that is less severe than the harm that would have occurred but for the person’s actions.
• Self-defense does not negate the actus reus or mens rea, it is a justifiable motive defense. • Necessity is a justification defense and must be disproven by the government beyond a reasonable doubt. |
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Texas Penal Code §9.22. Necessity
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Texas Penal Code §9.22. Necessity
Conduct is justified if: (1) the actor reasonably believes the conduct is immediately necessary to avoid imminent harm; (2) the desirability and urgency of avoiding the harm clearly outweigh, according to ordinary standards of reasonableness, the harm sought to be prevented by the law proscribing the conduct; (3) a legislative purpose to exclude the justification claimed for the conduct does not otherwise plainly appear. • In regards to (1) the harm caused is clearly outweighed by the harm avoided AND it must be immediately necessary. • In regards to (2) Choice of evils – all you have are bad choices, but if you choose the least bad then this can be justified. o E.g. Murdering one person to save four people. • In regards to (3) if the legislator has addressed the specific situation, then that rule applies. |
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justification of necessity
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Justification
• Necessity perfects the law so that is not applied so harshly and blindly in situations not contemplated by the legislature. |
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Necessity Example:
• The Queen v. Dudley & Stephens – 4 men were out at sea when the ship was caught in a storm and was thrown off track. The men had no food and were starting to starve. The men agreed to kill the youngest and finally did so. They survived the extra days off the meat of the murdered kid to be saved. |
The court states that this does not qualify as a justification of the murder and affirmed the conviction of the men. The Court does not condone using necessity in these circumstances because of reasons of heroism and Jesus. This is nonsense.
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Duress
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Defintion: Duress – A threat of harm made to compel a person to do something against his or her will.
• Duress does not negate the actus reus or mens rea but it is a excusable motive defense. • Duress is an affirmative defense that must be proven by the defendant by a preponderance of the evidence. |
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Texas Penal Code §8.05. Duress
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Texas Penal Code §8.05. Duress
(a) It is an affirmative defense to prosecution that the actor engaged in the proscribed conduct because he was compelled to do so by threat of imminent death or serious bodily injury to himself or another. (b) In a prosecution for an offense that does not constitute a felony, it is an affirmative defense to a prosecution that the actor engaged in the proscribed conduct because he was compelled to do so by force or threat of force. (c) Compulsion within the meaning of this section exists only if the force or threat of force would render a person of reasonable firmness incapable of resisting that pressure. (d) The defense provided by this section is unavailable if the action intentionally, knowingly, or recklessly placed himself in a situation in which it was probable that he would be subject to compulsion. |
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Duress can be broken down into:
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Duress can be broken down into:
• (1) The crime that you are going to commit; o (a) applies if felony; (b) applies for any lesser offense • (2) The nature of threat; and o Felony – threat of imminent death or serious bodily injury o Lesser offense – force or threat of force • (3) The person that the harm is directed toward. |
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proof of duress felony and less than
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Duress (Felony):
Step One: (subjective)-The defendant was compelled to commit a crime by threat of imminent death or serious bodily injury to himself or another. Step Two: (objective)-he threat force or threat of force would render a person of reasonable firmness incapable of resisting that pressure. Duress (Less than felony): Step One: (subjective)-The defendant was compelled to commit a crime by force or threat of force. Step Two: (objective)-The threat force or threat of force would render a person of reasonable firmness incapable of resisting that pressure. Rule: The defense of duress CANNOT be used if the actor intentionally, knowingly or recklessly placed himself in the situation where the threat would occur. |
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Self defense
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Definition: Self-Defense – The use of force to protect oneself, one’s family, or one’s property from a real or threatened attack.
• Self-defense does not negate the actus reus or mens rea, it is a justifiable motive defense. • This is a justification defense that the government has to disprove beyond a reasonable doubt. |
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Texas Penal Code § 9.31 – Self Defense
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Texas Penal Code § 9.31 – Self Defense
(a) Except as provided in Subsection (b), a person is justified in using force against another when and to the degree the actor reasonably believes that the force is immediately necessary to protect the actor against the other’s use or attempted use of unlawful force. |
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elements of self defense
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Elements
• (1) A person is justified in using force against another to the degree o The force used cannot be excessive o Deadly force can only be used when threatened with deadly force • (2) he reasonably believes o Reasonableness is an objective standard based on the person’s circumstances • (3) the force is immediately necessary to protect himself o No reasonable alternatives o No opportunity to retreat • (4) against the other’s use or attempted use of unlawful force. o If the force is lawful, self-defense is not justified. |
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Self Defense Example:
• Goetz Case: Goetz was approached by several kids earlier and they beat the crap out of him and he barely survived. Goetz then carried a weapon on him (illegally) from that point on. One day, the Goetz was on the subway and some kids asked him for 5 dollars. Goetz then asked the kids for conformation and the kids asked for five dollars again. He drew his gun and shot the kids one by one using excessive force (went back and shot a kid after Goetz was in control) |
The defense wanted to argue a subjective standard of reasonableness because an objective standard will not allow the jury to hear about his prior experiences. There is no such thing as a subjective standard of reasonableness but the objective standard can take into account these circumstances of past history that he considers in making the judgment of being in danger.
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• People v. LaVoie - La Voie was on his way home from work at midnight when a car behind him hit him and continued to push his car into the intersection. The four men in the car were drunk and did this as a joke. After La Voie’s car came to a stop, he got out of the car and put a gun on his belt. Then the four men got out and threatened to beat him up. La Voie shot one of the men and he died at the scene.
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The court affirmed the judgment that this was a case of justified killing and La Voie was not guilty of murder because he had a right to defend himself against the man’s threatened assault. The question of whether he acted out because of fear or just from anger would be a area for advocacy.
Rule: Self-defense must be the result of fear, not anger. |
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Texas Penal Code § 9.31 – Self Defense
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Texas Penal Code § 9.31 – Self Defense
(b) The use of force against another is not justified: (1) in response to verbal provocation alone; (2) to resist an arrest or search that the actor knows is being made by a peace officer, or by a person acting in a peace officer’s presence and at his direction, even though the arrest or search is unlawful, unless the resistance is justified under subsection (c); (3) if the actor consented to the exact force used or attempted by the other; (4) if the actor provoked the other’s use or attempted use of unlawful force, unless: (A) the actor abandons the encounter, or clearly communicates to the other his intent to do so reasonably believing he cannot safely abandon the encounter; and (B) the other nevertheless continues or attempts to use unlawful force against the actor; or (5) if the actor sought an explanation from or discussion with the other person concerning the actor’s differences with the other person while the actor was: (A) carrying a weapon in violation of §46.02; or (B) possessing or transporting a weapon in violation of §46.05. |
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exceptions to self defense
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Exceptions:
• Force is not justified: o From verbal provocation alone. o When the actor consents to the EXACT use of force. o When the actor provoked the other’s use or attempted use of UNLAWFUL force. • A person does not lose a justification defense just because he intentionally makes a person mad or provokes an attack. • Grand schemer – a person who intends to provoke an unlawful attack and tries to manipulate the situation to have a justification defense. |
