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Criminal Law-Seigel-Fall 2006
• Types of Arguments
• Precedent
■ Counter-Precedent
■ Distinguishing Precedent – Dictum (opinions written that
are not part of ruling; persuasive but not binding)
• Analogy
• Deontological
■ “First Principles”
■ “Natural Law”
■ Kant’s Categorical Imperatives
• Ad Hominen : attacking the source of an argument
• Utilitarian
• Consequentialist
■ Slippery Slope
■ Flood Gates
• Teleological
• Textual
• Historical
• Purposes of Punishment
• Retribution
■ Definition: punishing because the defendant deserves it
(deontological argument)
■ Advocates:
• Kant: Penal law is a categorical imperative;
should not punish UNLESS the individual has committed the crime; principle of equality: punishment should fit the crime
• Stephen: It is morally right to hate criminals;
punishment should give expression to that hatred; criminal justice is to righteous disapprobation as marriage is to (sexual) passion
• Royal Commission: Citizens (rightly) feel
revulsion for criminals (retribution); society needs to punish in order to maintain respect for the law (utilitarian argument supporting official retribution)
• Durkheim: Criminal should suffer in proportion to
his crime to atone for his injury to society (deontological argument); official punishment necessary to maintain social cohesion (utilitarian argument supporting official retribution)
■ Commentators:
• Moore: Clarifies that retribution in its purest
sense is the belief that the moral deserts of the offender is a sufficient reason for punishment; retributivists also believe that only the guilty should be punished.
• Morris: punishment of criminals is morally right
(“fair, just”) because they have upset the balance of benefit/burden of non-interference with other persons or their property; punishment restores the balance; FORGIVENESS could also reset the balance
• Moore: Mixed theory; punishment is justified if
and only if it achieves a net social gain AND defendant deserves it. But do people really believe that or are they really retributivists at heart?
■ Critics:
• Bentham: punishment is mischief; it is evil
(because it reduces the happiness of a human being)
• Murphy: Criminality is economically based; many
commit crimes because they have need or deprivation; society is responsible for placing them into this position of need and deprivation; thus, not fair for society to punish them for crime. There is no equilibrium to be restored. (Capitalist society also fosters greed, the other source of crime)
• Mackie: Retribution is repaying evil with evil.
Can’t be morally defended, simply feels right due to biology and sociology.
• Deterrence
■ Definition: Punishment is justified because it reduces
(discourages) crime later, primarily through fear of punishment in the future.
• General
• Specific
■ Advocates:
• Bentham: Punishment is only justified if it
augments the total happiness in the community by preventing future crime; it is not justified if it is groundless, inefficacious, unprofitable, or needless. A person will not commit a crime if the expected pain of the punishment exceeds the expected value, pleasure, or good of the act.
• Posner agrees with Bentham
■ Commentators:
• Andenaes: Deterrence works through the
strengthening of moral inhibitions and creation of law abiding habits.
• Robinson & Darley: Deterrence works through the
creation and reinforcement of shared norms – “norm- nurturing.” Very dependent on the law remaining morally credible, which requires doing justice, which means only punishing those who deserve it, to the extent that they deserve it. (A form of “mixed theory:” effective deterrence depends on being true to the public’s sense of retribution)
■ Hypnosis
• MPC: Involuntary
• Involuntary action is not considered action at all, whereas
actions done mistakenly, accidentally, compulsorily, or under duress are considered actions, but are excused. In strict liability, the latter may not be a defense, where the former may be.
• Omissions
■ Generally, there is no legal duty to act.
■ Five circumstances where duty to act arises:
• by statute
• by contract
• a relationship between the parties (MPC 2.01(3)
(a))
• parents/children; innkeeper/intoxicated
patrons; teachers/children (in loco parentis); captain/crew
• Pope v. State , Maryland (1979):
■ Pope case is tried under the (3)(a) exception to the
MPC good Samaritan rule.
• Child abuse statute
• neglecting child abuse is defined as
child abuse by MD statute
• but only applies if she is responsible
for the supervision of a minor child.
■ Key Issue Was Pope responsible for the supervision of
the child?
■ Court held that she wasn’t responsible.
• if the mother is there, the other person isn’t
responsible.
■ Court does not buy the state’s arg that Pope was
responsible because she took them in.
• 1. Pope had no right usurp the mother’s
position as mother
• highlighted on 185
• Court is clearly worried about future
consequences
• it would almost be obligating people
to step in.
• parents could not control their kids.
• Utilitarian
• Counterarg: when a clearly insane
mother is literally beating her child to death in YOUR home, you should have to call 911. Not a slipper lope, this is a very specific instance.
• 2. “incongruous” to have a Good Samaritan be
punished for their kindness.
• deontological arg.
• spouses have a duty to protect each other
• because of one’s voluntarily assuming a duty of
care to someone else then failing adequately to perform it
• example: negligent rescue attempt that
prevents others from attempting a rescue
• where your conduct created the peril
• example: you push a non-swimmer into a
pool
• Mens Rea
• Levels of Mens Rea (MPC 2.02):
■ Purpose : highest level. When it is one’s conscious
object to perform an action.
■ Knowledge : Simply aware that one’s conduct is of the
required nature or that the prohibited result is practically certain to follow. May not want it to happen.
• Common Law Willful Blindness : When the defendant
is subjectively aware of a high probability of illegal conduct, and that defendant purposely contrived to avoid learning of the illegal conduct.
• Equal to knowledge under common law
• “Ostrich Instruction”
• Model Penal Code Section 2.02(7): “When knowledge
of the existence of a particular fact is an element of an offense, such knowledge is established if a person is aware of a high probability of its existence, unless he actually believes that it does not exist.” (subjective, not objective/reasonable person standard) You have to have a suspicion of the illegality, and then purposely take steps not to want to find out more.
■ Recklessness: Conscious disregard for some risk;
conscious risk creation. (subjective, specific to individual)
■ Negligence: Gross deviation from standard of care to
avoid some substantial risk one was not aware of but should have been aware of (reasonable person standard).
• Tort negligence (criminal negligence (above) would
be considered gross negligence in tort)
• MPC 2.02(3) : When requisite mens rea not prescribed,
recklessness is the default mens rea.
• Common Law: When requisite mens rea not prescribed, knowledge
is usually the default, sometimes recklessness (In FL, general intent crimes generally mean knowledge).
• MPC 2.02(4): If there is only one listed mens rea in a statute
for a given element, it attaches to the other material elements unless there is a contrary purpose that plainly appears.
• Strict Liability
■ no mens rea
• If it negates knowledge of risk.
■ Because it only is a defense when it negates intention,
mistake of fact is not a defense to no-intent crimes of strict liability
• Mistake of Law
■ People v. Marrero , New York (p. 215)
• Defendant believed that there was an exception to a law preventing him
from carrying an unlicensed handgun.
• He claimed he was exempt for the law b/c he was a peace officercorrection
officer for state corr. facility or anyone who works for another penal correction inst.
• He made a pretrial motion for dismissal. Dismissal was appealed, and it was
overturned. Decision was 3-2. Statute interpreted to not apply to federal corr. officers, such as Marrero.
• Goes to trial, and he is convicted.
• On appeal, he claims he misread the statute and so he didn’t have the mens
rea.
• He gets to argue it again because the first time he argued that he shouldn’t be
tried. Issue on appeal is a mistake defense.
• It’s a mistake of law defense because it was based on misinterpretation of the
statute.
• Ignorance or mistake of law is not a defense.
• Why: Every criminal defendant would have a defense.
■ It would encourage gamesmanship.
• Floodgates, Util. arg.
• MPC 2.02 (9)- the definition of the crime is not an element of the
crime, so there is no mens rea requirement for it. Exceptions are in 2.04.
■ MPC Section 2.
• (1) Ignorance or mistake as to a matter of fact or
law is a defense if:
• (a) the ignorance or mistake negatives the
purpose, knowledge, belief, recklessness, or negligence required to establish a material element of the offense; or
• (b) the law provides that the state of mind
established by such ignorance or mistake constitutes a defense.
• (2) Although ignorance or mistake would otherwise
afford a defense to the offense charged, the defense is not available if the defendant would be guilty of another offense had the situation been as he supposed. In such case, however, the ignorance or mistake of the defendant shall reduce the grade and degree of the offense of which he may be convicted to those of the offense of which he would be guilty had the situation been as he supposed.
■ MPC Section 2.02(9) Culpability as to Illegality of
Conduct. Neither knowledge nor recklessness or negligence as to whether conduct constitutes an offense or as to the existence, meaning, or application of the
law determining the elements of an offense is an element of such offense, unless the definition of the offense or the Code so provides. Ignorance of the law is not an excuse!
■ MPC Section 2.04 (exceptions to the mistake of law rule):
• (3) A belief that conduct does not legally
constitute an offense is a defense to a prosecution for that offense based upon such conduct when:
• (a) the statute or other enactment defining
the offense is not known to the actor and has not been published or otherwise reasonably made available prior to the conduct alleged; or
• (b) he acts in reasonable reliance upon an
official statement of the law, afterward determined to be invalid or erroneous, contained in
■ (i) a statute or other enactment
■ (ii) a judicial decision, opinion or
judgment;
■ (iii) an administrative order or grant
of permission; or
■ (iv) an official interpretation of the
public officer or body charged by law with responsibility for the interpretation, administration or enforcement of the law defining the offense.
■ Fair Notice and the Lambert Principle
• Common Law. At common law, every one is presumed
to know the law. However, in Lambert v. California [355 U.S. 225 (1957)], the Court overturned the petitioner’s conviction for failing to register with the city of Los Angeles as a prior convicted felon, as required pursuant to a strict liability ordinance of which he was unaware; the Court reversed on “lack of fair notice” due process grounds.
• The Supreme Court held in Lambert that, under
very limited circumstances, a person who is unaware of a duly enacted and published criminal statute may successfully assert a constitutional defense in a prosecution of that offense.
• Key to the court’s decision in Lambert was
the passive nature of the offense. Namely, (1) it punished an omission (failure to register); (2) the duty to act was imposed on the basis of a status (presence in Los Angeles), rather than on the basis of an activity; and (3) the offense was malum prohibitum. As a result of these factors,
permission of the victim is sexual assault.
■ Permission can be indicated either
through words or through actions that, when viewed in the light of all the surrounding circumstances, would demonstrate to a reasonable person affirmative and freely-given authorization for the specific act of sexual penetration.
■ No burden on victim to express non-
consent or deny permission.
■ Essentially read the force element out
of the statute.
• In Florida:
■ Non-consensual penetration committed by
a threat of force likely to cause serious injury is a first-degree felony.
■ Non-consensual penetration without more
force than is necessary to accomplish penetration is a second-degree felony.
• Possible conceptions of non-consent:
■ Verbal resistance (saying “no”) plus
other behavior that makes unwillingness clear (a totality of the circumstances approach);
■ Verbal resistance alone (“no” always
means no);
■ Verbal resistance or passivity, silence,
or ambivalence (anything other than affirmative permission by words or conduct); or
■ The absence of verbal permission (not
saying “yes”)
• Coercion and Duress
• Commonwealth v. Mlinarich (Pennsylvania)
■ Majority said force required physical
violence. Dissenting judge says force can also be moral or intellectual.
■ PA adopts the definition of rape by
dissenting judge to include moral, intellectual, or psychological means.
• State v. Alston (North Carolina, 1984)
■ Force necessary to commit the act of
penetration is not, by itself, sufficient force. There must be force risking serious bodily injury or death or threat of force of serious bodily injury or death.
• MPC 213.1(2) permits a conviction for “ gross
sexual imposition ” in cases where submission
is compelled by threat of force or by any threat that would prevent resistance by a woman of ordinary resolution.
• Deception
• People v. Evans , (New York)
■ Rape cannot be achieved by fraud, trick,
or stratagem
■ There must be “forcible compulsion.”
This being a criminal trial, it is basic that the criminal intent of the defendant must be shown beyond a reasonable doubt…And so, if he utters words which are taken as a threat by the person who hears them, but are not intended as a threat by the person who utters them, there would be no basis for finding the necessary criminal intent to establish culpability under the law.
■ Focuses on defendant’s intent
• Boro v. Superior Court , (California)
■ Facts: Said sex needed to cure disease
■ California (and majority of
jurisdictions) makes a distinction between
• fraud in the factum causing
misunderstanding of the nature of the act itself (impersonation of husband) WHICH IS RAPE and
• fraud in the inducement (seducing
with lies).
■ In response to Boro , State enacts Penal
Code Section 266c: “Every person who induces any other person to engage in sexual intercourse...by false or fraudulent representation or pretense that is made with the intent to create fear , and which does induce fear, and that would cause a reasonable person in like circumstances to act contrary to the person’s free will, and does not cause the victim to so act, is guilty...
■ The resistance requirement. In some states, resistance
is included among the formal statutory elements, but more often resistance has been read into the statutes as a requirement somehow implicit in the elements of force or non-consent.
• Majority Common Law view: Reasonable resistance has been read in as a
separate element of the crime.
• Oddball Louisiana is the only state requiring resistance to the
utmost.
deviate sexual intercourse or causes another to engage in deviate sexual intercourse, is guilty of an offense if:
• (a) the other person is less than [16] years old
and the actor is at least [4] years older than the other person; or
• (b) the other person is less than 21 years old and
the actor is his guardian or otherwise responsible for general supervision of his welfare; or
• (C) the other person is in custody of law or
detained in a hospital or other institution and the actor has supervisory or disciplinary authority over him; or
• (d) the other person is a female who is induced to
participate by a promise of marriage which the actor does not mean to perform.
• Section 213.4. Sexual Assault.
■ A person who has sexual contact with another not his
spouse, or causes such other to have sexual conduct with him, is guilty of sexual assault, a misdemeanor, if:
• (1) he knows that the contact is offensive to the
other person; or
• (2) he knows that the other person suffers from a
mental disease or defect which renders him or her incapable of appraising the nature of his or her conduct; or
• (3) he knows that the other person is unaware that
a sexual act is being committed; or
• (4) the other person is less than 10 years old; or
• (5) he has substantially impaired the other
person’s power to appraise or control his or her conduct, by administering or employing without the other’s knowledge drugs, intoxicants, or other means for the purpose of preventing resistance; or
• (6) the other person is less than [16] years old
and the actor is at least [four] years older than the other person; or
• (7) the other person is less than 21 years old and
the actor is his guardian or otherwise responsible for general supervision of his welfare; or
• (8) the other person is in custody of law or
detained in a hospital or other institution and the actor has supervisory or disciplinary authority over him.
• Homicide
• Classifications
■ Non-Criminal
• Accidental
• Justified
• Excused
■ Criminal
• Murder
• Manslaughter
• voluntary
■ kill when being provoked
• involuntary
■ reckless w/o indifferent disregard for
human life
• Negligent Homicide
• Vehicular Homicide
• Murder
■ Traditionally defined as “unlawful killing with malice
aforethought”
■ “malice aforethought” is simply a technical term; it does not mean what it says
anymore.
■ Malice (taken form CA Penal Code p. 390)
• Expressed
• express intention to kill somebody.
• Implied
• no considerable provocation (would kick it to manslaughter)
• when circumstances show an abandoned and malignant heart.
■ look at no. 76 (highlighted) on p. 389
• grievous bodily harm
• reckless w/indifferent disregard for the value of
human life
■ Felony Murder (killing committed in the commission of a crime)
• strict liability
■ When Unintentional Killing is Murder; Recklessness Plus:
• It is murder if one person kills another by an
intentional act which he knows to be likely to kill or to cause grievous bodily harm, although he may not intend to kill or to cause grievous bodily harm and may either be recklessly indifferent as to the result of his act or may even desire that no harm should be caused by it.
• MPC : Unintentional killing is murder when it is
committed recklessly (as defined in Section 2.02(2) (c)) and “under circumstances manifesting extreme indifference to the value of human life”.
• Commonwealth v. Malone (PA, 1946): Boy put
revolver to head of friend and pulled trigger 3 times in a game of Russian Roulette. Convicted of second degree murder. (My dissent: should be negligent homicide because boy thought bullet was in different chamber, wasn’t aware of the risk).
• United States v. Fleming (4th Cir. 1984)
• drunk driver who sped and crossed over the median into oncoming
traffic.
• he is charged and convicted of murder 2
• he claimed that he should be charged with manslaughter
of the intent to kill and the actual killing, which indicated the killing is by prior calculation and design.”
■ Three factors that show murder 1:
• planning
• motive
• nature and manner
• Why was premeditation added to the law?
• Trying to distinguish between more serious murders and less serious
ones.
• Anderson note case, p. 403. Grusome crime, stabbing a 10 yr old 60 times.
Was convicted of Murder1, CA Sup Ct. reversed to Murder 2 because he did not premeditate it.
• Forrest , note case p. 404-Father was dying, asked son to shoot and kill him.
Son wrestled with the decision for days. Ends up shooting his father. Charged with Murder 1 because he premeditated the act.
• How well does premeditation work at reflecting what we want it to?
It doesn’t. That’s why some states are acting like PA, FL, disregarding it for the seriousness of crimes.
• How does a jury decide first and second degree if there’s no clear standard
for premeditation? It becomes a wild card. If they’re sympathetic to D, 2 nd, if not 1st^.
• Manslaughter
■ Traditionally defined as “unlawful killing without malice
aforethought”
■ Voluntary Manslaughter partial defense requires:
• Traditional Common Law (Girouard, Maryland)
• Provocation. Must be legally sufficient
(judge decides whether you’ve met the requirement to raise the defense based on whether it falls in the categories listed below)
■ Extreme assault or battery upon the
defendant; mutual combat; defendant’s illegal arrest; injury or serious abuse of a close relative; or the sudden discovery of a spouse’s adultery (repealed)
■ Words alone are not adequate provocation
■ To be adequate, provocation must be
calculated to inflame the passion of a reasonable man and tend to cause him to act for the moment from passion rather than reason (heat of passion).
■ Florida is a traditional CL state.
■ Only available in homicide cases.
• Heat of Passion. Question for the jury.
■ Loss of control must be reasonable
(though killing is never reasonable). Question for the jury.
• Can be no cooling off period as a matter of
law (question for the judge)
• Modern Common Law ( Maher v. People, Michigan 1862):
• Provocation. Jury question, but judge still
decides whether you can raise the defense.
■ Unlike above rule (with its strict
categories), words might be enough to constitute adequate provocation.
• Heat of Passion. Question for jury.
■ Loss of control must be reasonable.
• Can be no cooling off period as a matter of
fact (question for the jury)
• Maher v. People :
■ Man shot wife after learning of adultery
but did not witness adultery (required to establish sufficient provocation under traditional rule as a matter of law)
■ Unless the judge can determine beyond a
reasonable doubt (as a matter of law) that provocation would not produce such state of mind in ordinary men, whether there is sufficient provocation is a question for the jury.
• MPC (Casassa, New York) Section 210.3(1)(b)
• The particular defendant must have “acted
under the influence of extreme emotional disturbance ”
• There must have been “a reasonable
explanation or excuse” for such extreme emotional disturbance, “the reasonableness of which is to be determined from the viewpoint of a person in the defendant’s situation (objective) under the circumstances as the defendant believed them to be .” (partially subjective)
■ The difference between what attributes
of the defendant the jury can take into account and those it cannot is based on (a) whether the defendant has or is expected to have control over those attributes (like temperament); and (b) whether the attribute gives insight into the nature of the provocation.
• Difference between MPC & NY is only that in
NY burden is on defendant to prove defense, whereas in MPC burden is on P to prove beyond reasonable doubt that D was not reasonably provoked.
• Under the “ extreme emotional distress ”
version, the defense is basically a purse excuse defense ; unlike the “ heat of passion ” version, the victim can be completely
• 1. In most jurisdictions, breach had to be more
than ordinary negligence to hit involuntary MS.
• 2. According to Washington Statute, it’s
manslaughter when death is proximate result of simple or ordinary negligence.
• 3. Proximate cause here hinges on when duty
activates.
• objective/subjective standard still applied.
• MPC creates a separate offense of negligent
homicide under Section 210.4 , where the defendant acts without awareness of risk.
• Commonwealth v. Welansky , (Massachusetts, 1944)
• Court defines requisite mens rea for
manslaughter as “wanton and reckless” but then effectively defines recklessness as (criminal) negligence.
• State v. Barnett , (South Carolina, 1951)
• To be criminal, the negligence of the accused
must be “culpable,” “gross,” or “reckless,” that is, the conduct of the accused must be such a departure from what would be the conduct of an ordinarily prudent or careful man under the same circumstances as to be incompatible with a proper regard for human life, or conduct amounting to an indifference to consequences.
• MPC Section 210.3(1)(a): Homicide is manslaughter
when it is committed recklessly.
• Under Section 2.02(2)(c) , a person acts
recklessly with respect to the death of another when he consciously disregards a substantial and unjustifiable risk that his conduct will cause that result. Additionally, the nature and degree of risk must be such that, considering all the circumstances, its disregard “involves a gross deviation from the standard of conduct that a law-abiding person would observe in the actor’s situation.”
• Contributory negligence has never been a
defense for criminal action.
■ There are some situations where it
doesn’t seem fair to hold D liable because of something/some position the victim did/put themselves in.
• Dealt with in proximate cause
analysis.
• Felony Murder (Strict Liability Murder)
■ Definitionif D’s felony is the “legal cause” of the victim’s death, D is guilty of
murder (i.e. he has malice aforethought). From Regina v. Serne.
• the only difference between felony murder and the other two types of
murder is that the D’s actus reus is the cause of death in the first two kinds of murder, but it’s D’s felony in the f-m rule.
• if a felony appears on the list of felonies in the statute, then the next question
is one of causation.
• if it does not appear on the list, then there are doctrinal tests that we must put
the felony through.
• the first is: Is this an inherently dangerous felony?
■ answer must be yes to all tests to apply f-m rule.
■ Misdemeanor-Manslaughter Rule
• misdemeanorcrime punishable by up to one year in prison
• parallel doctrine to F-M rule (just plug in the words)
■ What is the impact of the felony-murder rule?
• it’s murder without proof of mens rea.
• it is strict liability for homicide.
■ Arg’s for the F-M Rule
• 1. Makes felons more careful in committing their crimes. It will deter
negligence in the commission of the felony.
• 2. Deters people from committing felonies
• 3. Retributive element: someone died, you should be punished for it.
■ Arg’s against it
• 1. It seems unfair to punish someone for murder based on strict liability. It
violates the notion of proportionality.
• 2. If a defendant knows he will be strictly liable, then he will be less likely to
be careful.
• 3. It messes with the careful grading of homicide; it’s all mens rea based.
• academics and liberal courts hate the rule.
• prosecutors love it.
• In the U.S. a couple of states have abolished the rule (Michiganit
violates proportionality.
■ MPC 210.2(1)(b)- MPC’s F-M Rulecreates a presumption that D acted recklessly and
w/extreme indifference to the value of human life. This presumption is rebuttable. Only those crimes in list in statute get F-M rule application.
■ Doctrinal Tests
• Inherently Dangerous
• yes, continue analysis
• no, stop analysis
■ Limitations to the Felony Murder Rule
• Inherently Dangerous. Virtually all states have
limited the rule to inherently dangerous crimes. Two ways to decide if it is inherently dangerous:
• There is tension between the two tests. When
underlying felony is viewed in the abstract, not many remaining felonies would survive the merger doctrine.
• Crime in the abstract (Pro-D)
■ Arson would be inherently dangerous by
its nature. If you can conceive of some possible method of committing a crime
