Criminal Law I

MODULE 01: 8/23 Week 1

TOPIC: Intro to Criminal Law;  Burdens of Proof/Presumption of Innocence;
Theories of Punishment;  
Pages: 13-16, 19-22, 51-59, 63-69, 74-89

Reading: 8/23 (chapter 1 & 2)

Cases:
Owens v. State
State v. Ragland
The Queen v. Dudley & Stephens
People v. Superior Court
People v. Du
United States v. Gementera
Coker v. Georgia
Ewing v. California

Owen v. State, 611 A.2d. 1043 (1992).

 Conviction was based upon circumstantial evidence alone.
 A suspect found behind the wheel of an automobile parked on a private driveway at night
with the lights on and with the motor running.
 Due process requires an appellate court to reverse a criminal defendant’s conviction if a
rational factfinder could not have found each element beyond a reasonable doubt.
 But what if the prosecution’s evidence at trial was entirely circumstantial? Can such
evidence by itself support a conviction?
 D only defense was that the prosecution has not proven beyond a reasonable doubt that
he drove drunk on the public roads.
 Trial court—D loses
 Maryland Court of special appeals—affirms trial court judgment because the totality of
the circumstances was found inconsistent with a reasonable hypothesis of innocence.
 Most appellate court, in applying the Jackson standard in cases with only circumstantial
evidence, simply ask whether a rational factfinder could’ve found each element of the
charged offense beyond a reasonable doubt.
 There were two inferences: defendant just have been driving OR defendant was just
about to drive. The first inference would render the defendant guilty. The second
inference would render the defendant not guilty.
 In trying to resolve where the defendant had just been driving PR was just about to drive,
it would be helpful to know whether the driveway in which he was found was that of his
own residence or that of some other residence.
 Problem: the defendant’s home address was not in the case.
 The thing that brought Trooper Cottman to the scene was a complaint about a suspicious
vehicle. The inference is reasonable that the vehicle had been observed driving in some
sort of erratic fashion. Had he been sitting in his car idling on the driveway of his own
 residence it is not likely that someone from the immediate vicinity would have found
suspicious the presence of a familiar neighbor in a familiar car sitting in his own
driveway.
 It does not prove guilt in and of itself. It simply makes one of the two alternative
inferences less reasonable and its alternative inference thereby more reasonable.
 If the judge concludes that either of the two results, a reasonable doubt or no reasonable
doubt, is fairly possible, he must let the jury decide the matter.
 The functions of the jury include the determination of the credibility of witnesses, the
weighting of the evidence and the drawing of justifiable inferences of fact from prove n
facts. If a reasonable mind might fairly have a reasonable doubt or might fairly not have
one, the case is for the jury, and the decision is for the jurors to make.

Rule of law: A conviction may be based on circumstantial evidence alone if the circumstances
are such that they are inconsistent with any reasonable hypothesis of innocence.

Facts
 A police officer received a complaint about a suspicious truck in the area.
 Upon investigating, he found a truck matching the description parked in a private
driveway with its lights on and the engine running.
 Owens (defendant) was asleep inside at the wheel with an open can of beer between his
legs and two empty cans of beer in the backseat.
 Owens was in an incoherent state.
 A sobriety tests suggested he was intoxicated.
 He refused a breathalyzer test.
 He went to trial on the charge of driving drunk on a public highway.
 At trial, Owens did not dispute that he was drunk in the parked car.
 BUT he argued there was insufficient evidence to prove he had been driving drunk on a
public highway.
 The trial court found him guilty.

Issue
Is circumstantial evidence alone legally sufficient to prove guilt at trial?

Holding and Reasoning (Moylan, J.)

 Yes.
 In the absence of direct evidence, the jury must make reasonable inferences from
circumstantial evidence to determine whether a criminal defendant is guilty.
 A jury should not rely solely on these inferences to convict a defendant unless the
circumstances are incompatible with any reasonable theory of innocence.
 Here, the officer found Owens drunk and asleep in a parked car with the engine running
and the lights on.
 From these circumstances, there are only two reasonable inferences one can make.
Either Owens was already drunk when he entered the car but passed out before he
made it out of his driveway, or he had driven drunk on the highway and passed out
once he arrived in the driveway.
  If Owens had not yet left the driveway, he did not commit a crime; merely sitting in a car
in a driveway is not against the law.
 On the other hand, if he had just arrived from elsewhere, he did commit a crime because
driving drunk on a public highway is illegal.
 While it seems at first glance that both scenarios are equally likely, a closer look at the
totality of the circumstances shows that a theory of Owens’ innocence is incompatible
with the evidence.
 In addition to the open can of beer found between Owens’ legs, there were two empty
beer cans in the backseat. It is very unlikely that Owens drank in the house, carried the
empty beer cans into the car, and fell asleep with the lights and engine on.
 Rather, it is apparent that Owens had been drinking in the car. It is similarly unreasonable
to suggest that Owens entered his car, turned on the lights and engine, then drank three
beers and passed out. It is more likely that he had been drinking in his car before arriving
at the driveway.
 Additionally, the fact that the officer received a complaint about the vehicle suggests that
the car had been seen moving erratically.
 Although none of these inferences alone prove Owens’ guilt, together they work to show
that a theory of Owens’ innocence is implausible.
 Because the circumstances in which the officer found Owens are inconsistent with any
reasonable explanation of innocence, the lower court’s conviction is affirmed.

Jury Nullification
 When a prosecutor proves beyond a reasonable doubt every fact necessary to constitute
the crime charged BUT the jury does not want to convict.
 When a jury ignores the facts and the judge’s instructions on the law and acquit the
defendant, this is called jury nullification.
 A jury has the raw power to acquit for any reason whatsoever.

State v. Ragland, 519 A. 2d 1361 (1986).

 The jury needs to be instructed to disregard its previous finding and consider the
possession question anew.
 Here the court did not just fail to instruct the jury to disregard his prior possession
finding. It reminded the jury of its prior conclusion.
 This was essentially a directed guilty verdict.
 And it was an error that required reversal of the defendants conviction.
 Court reversed and remanded the case.
 Jury nullification is an unfortunate but avoidable power.
 It should not be advertised.
 Efforts to protect and expand it are inconsistent with the real values of our system of
criminal justice.

Rule of Law

The power of a jury to nullify the law is not essential to a criminal defendant’s right to trial by
jury.
Facts

Ragland (defendant) was charged with armed robbery and possession of a weapon by a convicted
felon. At the end of the trial, the judge instructed the jury that it “must” find Ragland guilty of
the offense if the jury found Ragland was carrying a weapon at the time of the robbery. The jury
found that Ragland did indeed possess a weapon during the robbery and convicted him. On
appeal, Ragland argued that the use of the word “must” was inconsistent with the jury’s
nullification power. He also argued the instructions should inform the jury of its nullification
powers, namely its power to acquit Ragland even if the State (plaintiff) had proven its case
beyond a reasonable doubt.

Issue

Is jury nullification an essential attribute of a criminal defendant’s right to trial by jury?

Holding and Reasoning (Wilentz, C.J.)

 Jury nullification is NOT an essential attribute of the right to a jury trial.
 Jury nullification is the jury’s power to nullify the law by acquitting someone the jury
believes to be guilty.
 Court asserts that the jury’s nullification power should be constrained not encouraged.
 The use of MUST in the jury instructions was proper.

No. A verdict of acquittal is final, and once a jury acquits a defendant in disregard to the law, the
jury has effectively nullified the law. Some scholars believe that jury nullification ensures that
jurors can combat unfair laws or laws with unjust application. But it is not the role of a juror to
determine what is or is not a crime; that is a determination for the legislature. Contrary to
arguments, a jury’s power to nullify the law is not essential to a defendant’s right to a trial by
jury. Rather, it is an unavoidable and undesirable consequence of the jury’s ability to acquit a
defendant. It is undesirable because it is inconsistent with the values of a society governed by
laws, not the arbitrary judgment of twelve citizens selected at random. As such, a jury’s
nullification power should be diminished, not enhanced. Accordingly, the lower court’s
instructions requiring the jury to convict Ragland if it found Ragland possessed a gun during the
robbery was not in error. Ragland argues that the instructions should have informed the jury of
its nullification power, but such instructions would only encourage juries to make judgments
without regard to the law. Ragland, and other defendants, may unavoidably benefit from
jury nullification, but such an undesirable power should not be advertised. Consequently,
the lower court’s original instructions are proper. [Editor's Note: The court reversed the
judgment on other grounds.]

THEORIES OF PUNISHMENT
Who should be punished?
 Theories of punishment can be divided into two general philosophies: utilitarian and
retributive.
o Utilitarian theory of punishment seeks to punish offenders to discourage or deter
future wrongdoing.
 Under the utilitarian philosophy laws should be used to maximize the
happiness of society
  Because crime and punishment are inconsistent with happiness they
should be kept to a minimum.
 Utilitarian’s understand that a crime free society does not exist but they
endeavor to inflict only as much punishment as is required to prevent
future crimes.
 Under the utilitarian philosophy, laws that specify punishment for
criminal conduct should be designed to deter future criminal conduct.
Deterrence operates on a specific and a general level.
 General deterrence means that the punishment should prevent
other people from committing criminal acts. The punishment
serves as an example to the rest of society, and it puts others on
notice that criminal behavior will be punished.
 Specific deterrence means that the punishment should prevent
the same person from committing crimes. Specific deterrence
works in two ways. First, an offender may be put in jail or prison
to physically prevent her from committing another crime for a
specified period. Second, this incapacitation is designed to be so
unpleasant that it will discourage the offender from repeating her
criminal behavior.
o Retributive theory seeks to punish offenders because they deserve to be
punished. Focuses on the act against the victim.
 Rehabilitation is another utilitarian rationale for punishment. The goal of
rehabilitation is to prevent future crime by giving offenders the ability to
succeed within the confines of the law. Rehabilitative measures for
criminal offenders usually include treatment for afflictions such as
mental illness, chemical dependency, and chronic violent behavior.
Rehabilitation also includes the use of educational programs that give
offenders the knowledge and skills needed to compete in the job market.
 The counterpart to the utilitarian theory of punishment is the retributive
theory. Under this theory, offenders are punished for criminal behavior
because they deserve punishment. Criminal behavior upsets the peaceful
balance of society, and punishment helps to restore the balance.
 The retributive theory focuses on the crime itself as the reason for
imposing punishment. Where the utilitarian theory looks forward by
basing punishment on social benefits, the retributive theory looks
backward at the transgression as the basis for punishment.
 According to the retributivist, human beings have free will and are
capable of making rational decisions. An offender who is insane or
otherwise incompetent should not be punished. However, a person who
makes a conscious choice to upset the balance of society should be
punished.
 There are different moral bases for retribution. To many retributivists,
punishment is justified as a form of vengeance: wrongdoers should be
forced to suffer because they have forced others to suffer. This ancient
principle was expressed succinctly in the Old Testament of the Judeo-
Christian Bible: "When a man causes a disfigurement in his neighbour
 … it shall be done to him, fracture for fracture, eye for eye, tooth for
tooth…."
 To other theorists, retribution against a wrongdoer is justified to protect
the legitimate rights of both society and the offender. Society shows its
respect for the free will of the wrongdoer through punishment.
Punishment shows respect for the wrongdoer because it allows an
offender to pay the debt to society and then return to society,
theoretically free of guilt and stigma.
o A third major rationale for punishment is denunciation.
 Under the denunciation theory, punishment should be an expression of
societal condemnation.
 The denunciation theory is a hybrid of utilitarianism and retribution.
 It is utilitarian because the prospect of being publicly denounced serves
as a deterrent.
 Denunciation is likewise retributive because it promotes the idea that
offenders deserve to be punished.

The Queen v. Dudley and Stephens, 14 Q.B.D. 273 (1884).

Rule of Law

The defense of necessity does not justify homicide unless the killing was committed in self-
defense.

Facts

 Thomas Dudley and Edwin Stephens (defendants) were on the crew of an English yacht,
along with fellow seamen Brooks and Richard Parker.
 Due to a storm, the men were lost at sea in an open boat for approximately twenty-four days.
 They had no water except for occasional rainwater, and little food.
 After over a week without any food, Dudley and Stephens approached Parker, who was sick
and in a much weaker state, and slit his throat.
 The three remaining men fed off Parker’s body for four days until a passing ship rescued
them.
 Dudley and Stephens were put on trial in order to determine whether the act of killing Parker
was murder.
 The jury determined that the men would not have survived to the time of rescue if they had
not fed off Parker’s body and that, at the time, it was reasonable to assume they would die of
starvation before they were rescued.
 The jury also determined that Parker would likely have died before the other three men.
 The jury made these conclusions of fact but was ultimately unable to reach a verdict as to
Dudley and Stephens’ culpability.
 It instead submitted a special verdict requesting the court to determine Dudley and
Stephens’s culpability based on its findings of fact.

Issue
Will the defense of necessity justify a homicide committed to save the defendants' own lives?

Holding and Reasoning (Coleridge, C.J.)

No. The intentional killing of another is murder unless there is some legal justification. Necessity
is only a justification for murder when the killing is committed in self-defense. Thus, the
defense of necessity may not be used to justify the killing of an innocent bystander. The
treatises of Lord Hale make clear that necessity would not be a defense to larceny under English
law, much less murder. Hale’s Pleas of the Crown. Here, Dudley and Stephens seek to justify the
killing of their companion on the basis of necessity. There is no authority supporting the
principle that one may take the life of an innocent person to save his own. The dictum of Lord
Bacon suggesting that a diver could push another off a raft to save himself and an oddly decided
American case suggesting that drawing straws was the appropriate method of deciding who
should be sacrificed in a shipwreck are not binding on this court. To make such a ruling would
cause too much uncertainty as to whether a murder is truly necessary. Notwithstanding the
desperate circumstances Dudley and Stephens faced, their act of killing the sailor was an
intentional murder, and the defense of necessity is unavailable to justify their act.
Accordingly, Dudley and Stephens are sentenced to death. [Editor’s Note: Dudley and Stephens's
death sentences were commuted to six months in prison.]

People v. Superior Court (Du), 7 Cal. Rptr. 2d 177 (1992).

Rule of Law

A trial court has broad discretion to determine whether to grant a defendant probation.

Facts

 Soon Ja Du, her husband, and her son operated a liquor store in Los Angeles.
 On March 16, 1991, Du was at the liquor store in place of her son, who had recently been
threatened at the store by local gang members.
 One customer, a 15-year-old girl named Latasha Harlins, selected a bottle of orange juice
in the back of the store.
 She placed the bottle in her backpack and approached the counter, from where Du had
been observing Harlins.
 Believing that Harlins meant to steal the orange juice, Du accused Harlins of shoplifting.
 A fight ensued, during which Harlins hit Du twice in the eye.
 Du attempted to throw a stool at Harlins but missed.
 After throwing the stool, Harlins placed the orange juice on the counter and walked
toward the door.
 Meanwhile, Du grabbed a gun from behind the counter and shot Harlins in the back of
the head, killing her.
 Du was subsequently tried for voluntary manslaughter.
 At trial, Du’s husband testified that he had acquired the gun for self-protection but had
never taught Du how to use it.
  A ballistics expert revealed that, without the Du family’s knowledge, Du’s gun had been
modified in a way that made the trigger much more sensitive and easier to set off than
usual.
 Du testified that she did not remember shooting the gun and that the killing was
unintentional and in self-defense.
 The jury found Du guilty.
 After trial, but before sentencing, a probation officer noted that Du was unlikely to
commit a crime again in the future and that she was not a violent person.
 The court sentenced Du to 10 years in prison but suspended the sentence and placed Du
on probation.
 Although Du's use of a firearm to commit the crime rendered her presumptively ineligible
for probation, the court found that Du's case was an "unusual case" that overcame the
presumption against probation.
 The district attorney petitioned the Court of Appeals of California for a writ of
mandate directing the trial court to sentence Du to imprisonment, arguing that the
trial court's grant of probation was an abuse of the court's discretion.

Issue

Does a trial court have broad discretion to determine whether to grant a defendant probation?

Holding and Reasoning (Ashby, J.)

Yes. A trial court has broad discretion to determine whether to grant a defendant probation. The
job of an appellate court is to determine whether the trial court abused its discretion by issuing an
arbitrary or irrational grant of probation. If the trial court's decision is not arbitrary or irrational
in light of all the facts and circumstances, the decision must be affirmed. Here, although Du was
presumptively ineligible for probation because she used a firearm to commit the crime, the trial
court found that Du's case was an "unusual case," and that the presumption did not apply,
because (1) Du possessed the gun for lawful self-protection purposes, (2) she had no history of
violence or criminal behavior, and (3) the fact that Harlins hit Du constituted provocation for the
eventual shooting. The court therefore determined that Du was eligible for probation and granted
probation after conducting the required evaluation. After considering the record, the trial court's
decision to grant Du probation falls within the bounds of the court's broad discretion.
Accordingly, the district attorney's petition for writ of mandate is denied.

People v. Du, No. BA037738 (1991).

Rule of Law

A prison sentence for a crime involving a deadly weapon should not be reduced to probation
except in unusual cases where the interests of justice would best be served.

Facts

 Soon Ja Du, her husband, and son operated a liquor store in Los Angeles.
 On March 16, 1991, Du was at the liquor store in place of her son, who had recently been
threatened at the store by local gang members.
  One customer, a 15-year-old girl named Latasha Harlins, selected a bottle of orange juice
in the back of the store.
 She placed the bottle in her backpack and approached the counter, from where Du had
been observing Harlins.
 Believing that Harlins meant to pay for a cheaper item and steal the orange juice, Du
accused Harlins of shoplifting.
 A fight ensued, during which Harlins hit Du twice in the eye. Du attempted to throw a
stool at Harlins but missed.
 After throwing the stool, Harlins placed the orange juice on the counter and walked
towards the door.
 Meanwhile, Du grabbed a gun behind the counter and shot Harlins in the back of the
head, killing her.
 Du was subsequently tried for voluntary manslaughter.
 At trial, Du’s husband testified that he had acquired the gun for self-protection but had
never taught Du how to use it.
 A ballistics expert revealed that, without the Du family’s knowledge, Du’s gun had been
modified in a way that made the trigger much more sensitive and easier to set off than
usual.
 Du testified that she did not remember shooting the gun, and that the killing was
unintentional and in self-defense.
 The gun had been reported stolen by the family and police had given them the gun back
shortly before the incident.
 The family did not alter the weapon and were not aware of the alteration.
 The jury found Du guilty. After trial, but before sentencing, a probation officer noted that
Du was unlikely to commit a crime again in the future and that she was not a violent
person.
 At sentencing, the judge imposed a prison term of ten years as punishment, but then
reduced the sentence to probation.

Issue

Whether the sentence for the commission of a crime with a deadly weapon should be reduced to
probation.

Holding and Reasoning (Karlin, J.)

At sentencing, courts exercise some discretion in determining what punishment should be
imposed. Under California law, courts must consider the objectives of sentencing before
imposing a prison sentence on a defendant. These include the protection of society, the need to
punish the defendant, and the need to deter further crime, among other objectives. California law
also provides that when determining the proper punishment for a crime, probation without prison
time should be withheld from those convicted of crimes committed with deadly weapons.
However, notwithstanding the commission of a crime with a deadly weapon, a court may still
place the defendant on probation if the case is unusual. In determining whether a case is unusual,
the court looks to several factors, such as whether the defendant was exceedingly provoked or
whether the defendant was particularly vulnerable. All these considerations together guide the
court in imposing a fair sentence. In this case, the objectives of sentencing are not served by
imposing a prison term on Du. She is not a danger to society, and a prison term is unnecessary to
deter her from committing further crimes. Despite Du’s use of a handgun, probation is proper
because the case is unusual. The case is unusual for three reasons. First, the statutory
presumption against probation for crimes with a deadly weapon is meant to deter people from
embarking on crimes with a deadly weapon. Here, Du lawfully possessed the gun for her
protection and did not intend to commit a crime with it. Second, Du does not have a history of
committing violent crimes. Third, Du was under extreme stress at the time she committed the
crime. Furthermore, Du was extremely vulnerable after Harlins hit her. This vulnerability was
intensified in light of the fact that she was at the store that day to protect her son. In view of these
circumstances, a prison term is inappropriate, and probation is warranted.

United States v. Gementera, 379 F.3d 596 (2004).

Rule of Law
Conditions of supervised release, including those that cause shame or embarrassment, imposed
upon offenders by a district court do not violate the Sentencing Reform Act if they are
reasonably related to the statutory purposes of deterrence, protection of the public, and the
legitimate purpose of rehabilitation.

Facts
 Shawn Gementera (defendant) stole several pieces of mail from various San Francisco,
California mailboxes.
 was charged with mail theft.
 After entering a guilty plea, the trial judge ordered a pre-sentence report prepared on
Gementera’s background.
 Gementera was only 24-years-old at the time.
 BUT he had a long criminal history.
 The district court, relying on the United States Sentencing Guidelines, sentenced
Gementera to two months incarceration and three years of supervised probation.
 Gementera was also sentenced to perform 100 hours of community service standing
outside of a post office building wearing a sandwich board sign that said, “I stole mail.
This is my punishment.”
 Gementera filed a motion to remove the sandwich board portion of his sentence.
 After the prosecution and defense counsel submitted alternative sentencing
recommendations, the district judge modified the sentence.
 After Gementera served his two months of incarceration, he was required while on
supervised probation, to (1) observe postal customers visiting the “lost or missing mail”
window at a post office facility, (2) write letters of apology to the known victims of his
mail theft crime, (3) deliver several lectures at a local school, and (4) stand outside a
postal facility for one, eight-hour day wearing the sandwich board with the same
language mentioned above.
 Gementera appealed, arguing the district judge’s sentence violated the Sentencing
Reform Act, 18 U.S.C. § 3583(d).

Issue
Do conditions of supervised release, including those that cause shame or embarrassment,
imposed upon offenders by a district court violate the Sentencing Reform Act if they are
reasonably related to the statutory purposes of deterrence, protection of the public, and the
legitimate purpose of rehabilitation.

Holding and Reasoning (O’Scannlain, J.)

No. The Sentencing Reform Act provides district judges with broad discretion to fashion
appropriate conditions of supervised release. The Act states that the court may impose “any other
condition it considers to be appropriate.” Such conditions must be reasonably related to the
“nature and circumstances of the offense and the history and characteristics of the defendant.”
Moreover, the conditions must be both “reasonably related” to and “involve no greater
deprivation of liberty than is reasonably necessary” to serve the statutory purposes of
deterrence, protection of the public, and rehabilitation of the defendant. Gementera first
claims that the sandwich board condition was imposed solely to humiliate him. However, the
district court expressed concern that Gementera did not fully appreciate and understand the
gravity of his crime. As a result, the entire set of conditions imposed on Gementera were
designed to show him that his crime affected real people. Gementera further argues that the
“shaming” conditions are not “reasonably related” to rehabilitation and may, in fact, cause an
offender to withdraw from society. Criminal offenses and penalties most often create shame and
embarrassment. However, the fact that a condition of supervised release causes an offender
shame or embarrassment does not automatically render that condition inappropriate. In
fact, such a condition may have the effect of causing a defendant to consider the wrongfulness of
his actions. Here, the district court determined that Gementera needed to be educated about the
seriousness of his crime and while the sandwich board condition was unorthodox, it was coupled
with other positive requirements, including lecturing at a school. The entire set of conditions
imposed upon Gementera were tailored to his specific needs and served the legitimate purposes
of rehabilitation under the Sentencing Reform Act. The holding of the appellate court is
affirmed.

Dissent (Hawkins, J.)
The sandwich board condition violates the Act and it is also bad policy. A fair measure of a
civilized society is how its institutions behave in the space between what it may have the power
to do and what it should do. The shaming component of the sentence in this case fails that test.
The sentence should be vacated and the matter remanded for re-sentencing, instructing the court
that public humiliation and shaming has no place in system of justice.

Coker v. Georgia, 433 U.S. 584 (1977).

Rule of Law
Imposing the death penalty for the crime of rape violates the Eighth Amendment prohibition on
cruel and unusual punishment.

Facts
 Coker raped and stabled to death a 16-year-old woman.
 free eight months later he kidnapped and rapped a second victim who was also 16 years
old.
 He beat her severely with a club, dragged her into a wooded area and left her for dead.
  while serving various sentences for murder, rape, kidnaping and aggravated assault Coker
escapes from the Correctional
 That night, Coker entered the home of Allen and Elnita Carver.
 Coker threatened, tied up Mr. Carver, and took Mr. Carver’s money, keys, and a knife
from the kitchen.
 Coker proceeded to rape Mrs. Carver and then drove her away in Mr. Carver’s car.
 Ms. Carver was sixteen years old.
 Mr. Carver managed to free himself and alert police, who quickly detained Coker.
 Coker was charged with a number of offenses, including the rape of Mrs. Carver.
 Under Georgia law, rape was an offense punishable by death if accompanied by certain
aggravating circumstances, as defined by statute.
 Accordingly, the jury was instructed that it could consider imposing the death
penalty if it found that Coker had a prior conviction for a capital felony or if it
found that the rape was committed during the commission of another capital felony.
 The jury found that both aggravating circumstances existed, because Coker had
previously been convicted of capital felonies and because the rape occurred during
the commission of an armed robbery.
 The jury sentenced Coker to death for the rape.
 The Georgia Supreme Court affirmed, and the United States Supreme Court granted
certiorari.
Issue
May the death penalty be constitutionally imposed for the crime of rape?

Holding and Reasoning (White, J.)

No. The Eighth Amendment prohibits cruel and unusual punishment. A punishment is
deemed excessive if (1) it does not further any goal of sentencing, or (2) it is grossly
disproportionate to the crime committed. The death penalty is not “inherently barbaric” or
disproportionate in all cases. It is well settled that the death sentence may be constitutionally
applied, at least for the crime of murder, so long as proper procedures are followed. The issue in
this case is whether a death sentence is a cruel and unusual punishment for the rape of an adult
woman. Objective evidence of public sentiment toward a particular punishment provides
guidance as to whether that punishment is acceptable. In the early twentieth century, 18 states
and the federal government allowed death as a punishment for rape. As of the 1970s, only
Georgia allowed this punishment for the rape of an adult woman. Since then, Georgia juries have
imposed the death sentence for rape only one in 10 times. Trends in legislative sentiment suggest
that the death penalty is an excessive punishment in rape cases. Although rape is a reprehensible
act that warrants a harsh punishment, the death penalty is too irrevocable a punishment to impose
on a person who has not taken another’s life. In Coker's case, the existence of aggravating
circumstances does nothing to justify the imposition of the death penalty for a crime not
involving the wrongful taking of a life. Coker's death sentence for the crime of rape thus
violates the Eighth Amendment, because it is grossly disproportionate to the crime. The
judgment of the Georgia Supreme Court is reversed, and the case is remanded.
(if you don’t kill you should not be killed)

Concurrence/Dissent (Powell, J.)
The plurality goes too far in holding that the death penalty is always, without exception,
disproportionate to the crime of rape. State legislatures should be free to determine specific
instances of aggravated rape that warrant the death penalty.

Dissent (Burger, C.J.)
It is not the place of the Court to supplant its judgment for that of state legislatures. The plurality
bases its decision primarily on the fact that rape does not result in the death of the victim, and
that therefore, it does not warrant the death penalty. However, it is not unconstitutional to impose
a punishment more severe than what the victim of the crime endured. Although it is true that the
Eighth Amendment bars the imposition of the death penalty for minor crimes, rape is a serious
crime that is often permanently damaging to the victim, both physically and mentally. The
plurality opinion shifts the Eighth Amendment inquiry to the state of the victim following the
crime, rather than the “evil committed by the perpetrator.” A person who commits rape may be
deserving of the death penalty.

Ewing v. California, 538 U.S. 11 (2003).

 25 years is nearly a life sentence
 3rd offense was relatively minor
 Disproportionate length of sentence
 Does not serve the purposes of punishment
 Ewing is the leading decision on what constitutes cruel and unusual punishment for
recidivist offenders.
 Justice O’Connor’s plurality opinion governs the lower trial courts.

Rule of Law
Sentencing a repeat felon to 25 years imprisonment under a state’s three strikes law does not
violate the Eighth Amendment prohibition of cruel and unusual punishment.

Facts
 On parole from a 9-year prison term Ewing walked into the pro shop of the El Segundo
Golf Course in los Angeles County on March 12, 2000.
 He walked out with 3 golf clubs.
 He was arrested for stealing golf clubs worth $1,200.
 Ewing had prior convictions, including three burglaries and a robbery.
 Under California’s “Three Strikes and You’re Out Law,” defendants with more than two
violent or serious felonies are sentenced to “an indeterminate term of life imprisonment.”
 Some crimes may be deemed felonies or misdemeanors at the discretion of the prosecutor
and the court.
 Courts may also avoid the three strikes rule by vacating allegations of earlier serious or
violent felonies.
 Ewing was charged with felony grand theft, and the prosecutor invoked the three strikes
law.
 The trial court did not exercise its discretion to reduce the charge or vacate earlier
allegations.
 Ewing was convicted and sentenced to 25 years to life imprisonment.
  The United States Supreme Court granted certiorari to consider whether the sentence
violated the Eighth Amendment.

Issue
Does sentencing a repeat felon to 25 years imprisonment under a state’s three strikes law violate
the Eighth Amendment prohibition of cruel and unusual punishment?

Holding and Reasoning (O’Connor, J.)

No. The Constitution does not prohibit a 25-year sentence for serious, habitual offenders.
The principle of proportionality that forms part of the Eighth Amendment prohibition of cruel
and unusual punishment was limited by Harmelin v. Michigan, 501 U.S. 957 (1991), for cases
not involving the death penalty. The state interest in protecting public safety from habitual
offenders spawned three strikes laws across the country. California’s law reflects the policy
choice of the legislature to remove repeat violent or serious offenders from society. About 67
percent of offenders released from prison will commit another serious crime within three years.
Recidivism laws further the goals of incapacitation and deterrence. California saw a 25 percent
drop in the recidivism rate following the passage of the law. California’s legislature bears the
responsibility for assessing the law’s prudence, and this Court is satisfied that the state had a
reasonable basis for believing the law promotes its goals. In this case, there is no great
disproportion between the seriousness of the offense and the sentence. Ewing was convicted
of stealing items worth $1,200 after four serious or violent felonies. The sentence is warranted by
California’s interest in protecting the public from repeat offenders like Ewing through
incapacitation and deterrence. Thus, Ewing’s sentence is affirmed.

Concurrence (Scalia, J.)
The purpose of the Eighth Amendment prohibition of cruel and unusual punishment was to bar
particular methods of criminal punishment, not disproportionate sanctions. The proportionality
principle only makes sense if the goal of punishment is retribution. If the goals include
incapacitation, deterrence, and rehabilitation, the principle cannot be logically applied.
Proportionality alone does not justify Ewing’s sentence of 25 years to life for shoplifting golf
clubs. The truth underlying the majority’s opinion is the notion that criminal sanctions should be
reasonably related the state’s penological goals, but this requires an admission that the Court is
not simply applying the law but making policy judgments.
Concurrence (Thomas, J.)
The Solem v. Helm, 463 U.S. 277 (1983), proportionality test cannot be rationally applied, and
the Eighth Amendment prohibition of cruel and unusual punishment does not require
proportionality.
Dissent (Stevens, J.)
The Eighth Amendment bars excessive punishment, and judges have the authority to determine
what punishment is permissible under the amendment. Historically, judges have been given
broad discretion in sentencing, and those judges assessed the proportionality of a sentence in
light of all of the goals of criminal punishment. Thus, the principle of proportionality underlying
the Eighth Amendment considers each of the penological goals of punishment. 
Dissent (Breyer, J.)
The issue is whether Ewing’s sentence was proportionate to his crime. Ewing will spend 25 years
in prison for stealing golf clubs worth $1,197 due to his prior convictions. Solem controls, and
Ewing’s sentence should be found unconstitutional. Shoplifting is a serious problem, but the
harshness of the sentence is not proportionate to the crime. When the injury to the victim and
community, the seriousness of the crime, and Ewing’s blameworthiness are considered, stealing
the clubs is a relatively minor crime.

Video 01: The criminal process

The criminal justice process from criminal conduct to case disposition

 Criminal case ALWAYS begins with a charge against an individual

 Criminal case ALWAYS ends with an acquittal or a conviction

Burden of proof
 Principle that a defendant is presumed innocent
 The due process clauses of the fifth and fourteenth amendments of the constitution
require that to convict a defendant the government must persuade the factfinder beyond a
reasonable doubt of every fact necessary to constitute the crime charged.

Who the participants are in the criminal justice process?

1) we have the community
 We always start with the community
 It is the community that determines and defines what is and is not a crime
 They do that through the legislatures that they election to actually enact the penal code
 And the legislatures define the crime based upon the degree of oral condemnation that the
community choses to impose on particular types of conduct

2) Second we have the person who engages in the prohibited conduct who is initially at least a
criminal, the accused, the alleged criminal

3) Third the victim or victims of the crime and the victim’s family

4) Fourth is law enforcement

 Part of law enforcement: Police are at the front end, corrections and sheriffs are in the
middle, and at the tail end we have probation and parol officers.

5) Fifth is the prosecutors

 They are the arm of the people in the community
 They are the one’s charging the accused with breaking our laws
 And are charged with prosecuting them

6) Sixth is the defense attorneys

 The attorney’s that ensure that the accused receive due process under the law and
effective defense of counsel

7) Seventh are judges

 Sometimes they are the factfinders
  But always they are the giver of the law
 They are often the sentence as well

8) Eighth are the juries

 Always the fact finders
 Always the ultimate decider
 And they act for the community on every criminal case

***The criminal process ALWAYS begins with the report of the alleged crime to the police.
 We are speaking state and local levels, not federal levels
 FBI does not function in the same way the police because they are proactive
 They investigate before a crime is reported to them as an emergency basis
 Police department at the local level is almost always reactive
 They have to react to emergency situations as they develop

***Police must ask if it is more likely than not that a crime was committed and is this the person
who probably committed the crime?

What happens from arrest to arraignment at the courthouse?

 During the booking process, the accused is photographed and fingerprinted
 And the police run a background check on the suspect
 A “rap sheet” is a criminal record
 Likely will be held in the precinct jail
 Arraignments occur in the courthouse
 Suspect must be arraigned as soon as is practicable
 But definitely within 24 hours after arrest

What is an arraignment?
 An arraignment is usually the first part of the criminal procedure that occurs in a
courtroom before a judge or magistrate.

What happens at the time of the crime?

 Most persons are arraigned within the 24-hour period
 But other persons at the time of the arrest may be given a DAT, a desk appearance ticket
 Suspect given a DAT are suspected of crime that are not nearly as serious
 Suspects given a DAT can be arraigned within 20 days of arrest
 DATs are given for lesser misdemeanors and violations

Purposes of an arraignment?
 the purpose is to provide the accused with a reading of the crime with which they have
been charged

There are 4 legal purposes:

 1) The accused persons who is now named as a criminal defendant on an accusatory
instrument that is usually prepared for by the prosecutor. On the accusatory instrument
are the charges which are specific to what the penal code says.
2) The accused is told that they have a right for an attorney to be present at the arraignment
and is to speak on his behalf.
3) The plea is entered.
4) A determination is made about the future status of the accused. Will they be released
ORO, on his own recognizance? Will they be given bail? Or remand without bail or
without trial?

***Next significant court appearance is either a plea allocution or an indictment that usually
leads to a trial.

Plea negotiations
 Plea negotiations will always precede an allocution or an indictment.
 main methodology used to dispose of cases in the criminal justice system

***The entire system fails or succeeds based on what the law is. Based on the elements that
define what a crime is. And whether everyone of those elements: the act of the defendant, the
mindset of the defendant, the hurt caused or not caused by the defendant, each of those elements
must be proven beyond a reasonable doubt before any accused person can become a convicted
criminal.

Video 02: beyond a reasonable doubt

What is reasonable doubt?

 Standard of proof required to convict an individual of a criminal offense.
 This is the most exacting standard of proof, requiring sufficient evidence to demonstrate
that no other tenable explanation is possible.

Reasonable and Articulable Suspicion

 The first major burden in criminal law is known as “reasonable and articulable
suspicion.” This is a relatively low burden of proof. In order for law enforcement to
perform an investigative stop of an individual, they must have specific, articulable, and
an individualized suspicion that crime is afoot.
 The North Dakota Supreme Court has stated that “mere curiosity, suspicion, vague
hunches, or other non-objective facts” do not meet the reasonable and articulable
suspicion burden. In other words, law enforcement must act on something more than a
“mere hunch” if they want to stop someone. This burden of proof is only enough to
initiate a stop of an individual and is not enough to initiate an arrest or to convict
someone of a crime.

Probable Cause
 A slightly higher burden, known as “Probable Cause,” is the burden of proof that is used
to determine whether the search of an individual or an arrest of an individual is
 appropriate. This is also the burden used when a judge must decide whether to issue a
search warrant.
 The United States Supreme Court has stated that Probable Cause is “more than bare
suspicion.” 
 The Court has also stated Probable Cause exists when the facts and circumstances are
sufficient in themselves to warrant someone of reasonable caution to believe that an
offense has been or is being committed.
 Although there may be enough evidence to meet a Probable Cause standard that allows
for the arrest of a person, it is not enough to convict someone beyond a reasonable doubt.

Preponderance of the Evidence

 Another burden, which is often used to determine whether an individual violated the
conditions of his/her probation, is known as the “Preponderance of the Evidence”
standard.
 This standard is also used sometimes as the burden put upon a defendant to show an
affirmative defense for certain crimes.
 A legal dictionary defines Preponderance of the Evidence like this: “[T]hough not
sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a
fair and impartial mind to one side of the issue rather than the other.
 Essentially this standard is satisfied if the party can show that something is more likely
than not to have happened.” 
 I like to break down a Preponderance of the Evidence Standard like this: there must be a
greater than 50% chance that the disputed fact is true in order to win. If a jury in a
criminal trial thinks there is a greater than 50% chance that a crime was committed, but
still has reasonable doubts, then that jury must return a verdict of “Not Guilty.”

Clear and Convincing Evidence

 The highest burden of proof before getting to Beyond a Reasonable Doubt, is known as
“Clear and Convincing Evidence.”
 The Clear and Convincing Evidence standard is used in mental health proceedings to
determine whether an individual should be civilly committed because he/she is a sexually
dangerous individual.
 In order to meet the clear and convincing evidence standard, a party must provide a “firm
belief or conviction that the allegations are true.” 
 Although this burden is high, it is not as high as beyond a reasonable doubt.

Beyond a Reasonable Doubt

 Now we have come to the standard that the Government must fulfill in order for a jury to
find an accused citizen of being guilty: Beyond a Reasonable Doubt.
 Although many of the burdens discussed above provide us with actual definitions, we do
not have such a luxury with the Beyond a Reasonable Doubt standard.
 In fact, the North Dakota Supreme Court “has long recognized the difficulty in defining
reasonable doubt and has neither required nor prohibited such a definition.”
 The Eighth Circuit Court of Appeals, which covers federal appeals from North Dakota
and six other states, describes Beyond a Reasonable Doubt like this: “‘[R]easonable
 doubt’ is a doubt based upon reason and common sense after careful and impartial
consideration of all the evidence received in [a] trial.
 It is the kind of doubt that would make a reasonable person hesitate to act.
 Proof beyond a reasonable doubt, therefore, must be proof of such a convincing character
that a reasonable person would not hesitate to rely and act upon it.”
 Keeping that description in the back of your mind, let’s put our understanding of Beyond
a Reasonable Doubt against some of the other burdens to understand how convinced a
jury must be to find someone guilty.
 A jury certainly cannot convict on a hunch; cannot convict if they think it is probable that
someone committed the charged offense; cannot convict if they only think it is more
likely than not that someone committed a crime; and cannot convict even if they think it
is highly probable that someone committed the charged offense, but still has reasonable
doubt.
 A jury can only convict if they have NO reasonable doubt in their minds that someone
committed the charged offense.
 This does not mean that the government needs to prove its case beyond all possible
doubt, but when compared to the burdens articulated above, the government has a
heavy burden to carry when asking a jury to find someone guilty beyond a
reasonable doubt.

Video 03: theories of punishment incapacitation, retribution, deterrence

(no information necessarily)

MODULE 02:

It is alleged that Thomas Atkinson brutally murdered Joyce Paneck-Saglimbene, a 27-year-old

New Jersey woman, in 1976.  At the time, Atkinson was thirteen years old.  The crime became a
“cold case” until 2006 when Atkinson was arrested for the crime.  Assume the allegation is true.
Atkinson is now forty-three years old.  He is married, goes with his son to barbecues and
ballgames, is described by neighbors as a pleasant guy, a family man, never angry, helpful to
those around him.  He’s an active member of the PTA, of the Church, and coaches little league
games.  In short, he’s a pillar of the community. 
Accept as fact the following:  Atkinson is fully rehabilitated; he no longer represents a threat to
society.  He’s an active and positive member of his local community.  He has felt deep remorse
for the murder for many years, and even sent an anonymous letter to the victim’s family years
ago, begging forgiveness.  Of course he also begs forgiveness from his God, whom he worships
every Sunday at church and from his priest whom he interacts with regularly at the confessional.
Do you believe Atkinson should be punished?  Why, or why not? Are there any
Yes. I believe that Atkinson should be punished. For our community to have faith in our criminal
justice system there must be laws which govern the actions of the people within those very
communities. Criminal law lets people know what to expect from other. Without criminal law
there would be chaos and uncertainty. The law makes it possible to resolve conflicts and disputes
between quarreling citizens providing ways of handling grievances. Criminal laws are intended
to punish the violators. It provides safeguards for civil liberties.

Atkinson should be punished as a way of persuading citizens and possible offenders or

reoffenders to conform to the rules of law as a means of deterrence. If Atkinson is let go, citizens
may view his one-off conduct as acceptable, forging a new sense of morality. Atkinson should be
punished as a way of giving victims or society a certain sense of satisfaction that a defendant has
been punished appropriately reinforcing the belief that the criminal justice system is working
effectively. Atkinson should be punished as a way to rehabilitate them. By focusing on helping
criminals overcome the barriers that led them to committing criminal act, offenders are able to
transition back into society.

There are facts that would cause me to change my stand. We are not told what made Atkinson
murder the woman in 1976. Therefore, rehabilitation may prevent crime by altering Atkinson’s
behavior. Further, after the crime he became a up standing citizen.

Specific deterrence may work to prevent crime by frightening an individual with punishment.
There is no need to prevent Atkinson from further crime. Incapacitation prevents crime by
removing a defendant from society. Removing Atkinson from society will have no effect on him.
But it may have an effect of future crimes in general. Retribution prevents crime by giving
victims or society a feeling of avengement. This may be the best type of punishment for
Atkinson. It may be so that he no longer poses a threat to society, but the family in the name of
justice wants him to be held accountable for his actions.

In class notes:
 Criminal law is conduct not thinking
 A body of rules and statutes that defines conduct prohibited by the government because it
threatens and harm public safety and welfare and establishes punishment to be imposed
for the commission of such acts.
 When you have evidence, you have the moral condemnation of the community
 Burden of persuasion—proof beyond a reasonable doubt
 Due process clause requires the prosecutor to persuade the fact finder beyond a
reasonable doubt of every fact necessary to constitute the crime charged.
 This standard is necessary for reducing the risk of convictions resting on factual error.

Possible reasons for punishment

There are many possible reasons that might be given to justify or explain why someone ought to be
punished; here follows a broad outline of typical, possibly conflicting, justifications.

Deterrence (prevention)
Two reasons given to justify punishment[11] is that it is a measure to prevent people from committing
an offence - deterring previous offenders from re-offending, and preventing those who may be
contemplating an offence they have not committed from actually committing it. This punishment is
intended to be sufficient that people would choose not to commit the crime rather than experience
the punishment. The aim is to deter everyone in the community from committing offences.
Some criminologists state that the number of people convicted for crime does not decrease as a
result of more severe punishment and conclude that deterrence is ineffective. [38] Other criminologists
object to said conclusion, citing that while most people do not know the exact severity of punishment
such as whether the sentence for murder is 40 years or life, most people still know the rough
outlines such as the punishments for armed robbery or forcible rape being more severe than the
punishments for driving too fast or misparking a car. These criminologists therefore argue that lack
of deterring effect of increasing the sentences for already severely punished crimes say nothing
about the significance of the existence of punishment as a deterring factor. [39][40]
Some criminologists argue that increasing the sentences for crimes can cause criminal investigators
to give higher priority to said crimes so that a higher percentage of those committing them are
convicted for them, causing statistics to give a false appearance of such crimes increasing. These
criminologists argue that the use of statistics to gauge the efficiency of crime fighting methods are a
danger of creating a reward hack that makes the least efficient criminal justice systems appear to be
best at fighting crime, and that the appearance of deterrence being ineffective may be an example of
this.[41][42]

Rehabilitation
Some punishment includes work to reform and rehabilitate the culprit so that they will not commit the
offence again.[11] This is distinguished from deterrence, in that the goal here is to change the
offender's attitude to what they have done, and make them come to see that their behavior was
wrong.

Incapacitation and societal protection

Incapacitation as a justification of punishment [11] refers to the offender's ability to commit further
offences being removed. Imprisonment separates offenders from the community, for example,
Australia was a dumping ground for early British criminals. This was their way of removing or
reducing the offenders ability to carry out certain crimes. The death penalty does this in a permanent
(and irrevocable) way. In some societies, people who stole have been punished by having their
hands amputated.

Retribution
Criminal activities typically give a benefit to the offender and a loss to the victim. [43] Punishment has
been justified as a measure of retributive justice,[11][44][45] in which the goal is to try to rebalance any
unjust advantage gained by ensuring that the offender also suffers a loss. Sometimes viewed as a
way of "getting even" with a wrongdoer—the suffering of the wrongdoer is seen as a desired goal in
itself, even if it has no restorative benefits for the victim. One reason societies have administered
punishments is to diminish the perceived need for retaliatory "street justice", blood feud,
and vigilantism.

Restoration
For minor offenses, punishment may take the form of the offender "righting the wrong", or making
restitution to the victim. Community service or compensation orders are examples of this sort of
penalty.[46] In models of restorative justice, victims take an active role in a process with their offenders
who are encouraged to take responsibility for their actions, "to repair the harm they've done – by
apologizing, returning stolen money, or community service."[47] The restorative justice approach aims
to help the offender want to avoid future offences.

Education and denunciation

Punishment can be explained by positive prevention theory to use the criminal justice system to
teach people what are the social norms for what is correct, and acts as a reinforcement.
Punishment can serve as a means for society to publicly express denunciation of an action as being
criminal. Besides educating people regarding what is not acceptable behavior, it serves the dual
function of preventing vigilante justice by acknowledging public anger, while concurrently deterring
future criminal activity by stigmatizing the offender. This is sometimes called the "Expressive Theory"
of denunciation.[48] The pillory was a method for carrying out public denunciation. [49]
Some critics of the education and denunciation model cite evolutionary problems with the notion that
a feeling for punishment as a social signal system evolved if punishment was not effective. The
critics argue that some individuals spending time and energy and taking risks in punishing others,
and the possible loss of the punished group members, would have been selected against if
punishment served no function other than signals that could evolve to work by less risky means. [50][51]

Unified theory
A unified theory of punishment brings together multiple penal purposes—such as retribution,
deterrence and rehabilitation—in a single, coherent framework. Instead of punishment requiring we
choose between them, unified theorists argue that they work together as part of some wider goal
such as the protection of rights.[52]

MODULE 02: Principle of legality and statutory interpretation

Week 2: 8/30
Pages: 91-103, 106-109, 114-127

statutory interpretation

Video 01:
Chicago v. Morales Civics 2018
 This case relates to the 14th amendment because it deals with equality of people
under the law.
 Significance of the case: allowed people to be in a public setting for no apparent
reason and not be in trouble.
 The gang congregation ordinance of Chicago prohibited assumed gang members
from loitering in public places if a police officers were to see this and believe that
the loiterers were gang members he could order them to disperse. If one did not
leave upon request they would be arrested.
 In 1993 Jesus was arrested and found guilty under the ordinance for not
dispersing when told to while loitering in a Chicago neighborhood. He then
challenged his arrest leading to the conclusion by the Illinois supreme court that
the ordinance was impermissibly vague and impeded upon human rights.
 Appellant: the city of Chicago argued that they had the right to disperse and arrest
gang members for loitering on public property.
 Respondent: Jesus Morales argued that the gang congregation ordinance was
unconstitutional and unfair.
 Court decision: Morales won on the grounds that the gang congregation ordinance
was decidedly unconstitutionally vague and provided law enforcement officials
too much power to decide what activities constitute as gang loitering.

Video 02:
Loitering neighbor
  Person recording stranger stops car and gets out of car.
 Stranger aka neighbor appears to be walking around the neighborhood without a
sense of direction while smoking a cigarette.
 Neighbor at times appears to stop and soak in the sun.
 I do not see this as an example of loitering.

Video 03:
Cheater township family suing after being arrested for loitering outside of their
home
 Loitering ordinance the center of the arrests
 Police arrest 4 members of family
 Family members were outside of their home before the arrest
 Family is suing following the arrest
 P argues loitering ordinance is too vague
 2nd day in a row where members of the family were arrested for loitering
 Family contemplating filing a civil lawsuit.

Reading notes:

Modern Rule of Criminal Statutes

Principle of Legality
 Principle nullum crimen sine lege—"no crime without law
 Principle nulla poena sine lege—“no punishment without law

*a person may not be convicted and punished unless her conduct was previously defined as
criminal by statute.

Criminal statutes should be:

 understandable to ordinary law-abiding persons
 crafted so that they do not delegate basic policy matters to policemen, judges, juries for
resolution on an ad hoc and subjective basis.
 Judicial interpretation of ambiguous statutes should be biased in favor of the accused
(lenity doctrine)

The requirement of previously defined conduct

Commonwealth v. Mochan, 177 Pa.Super 454 (1955).

Rule of Law
Any unlawful act which directly injures or tends to injure the public morals or health of the
community is indictable.

Facts
 Michael Mochan (defendant) was charged with making numerous telephone calls to
Louise Zivkovich.
 Mochan was charged with intending to debauch and corrupt
  Further devising and intending to harass
 Embarrass and vilify
 Louise Zivkovich and members of her family
 By telephoning her various times
 During which he wickedly and maliciously refer to her as “lewd, immoral, and
lascivious” woman
 Made scurrilous and opprobrious, filthy disgusting and indecent comments.
 Louise is a married woman.
 Called any hour of the day or night.
 Language used was obscene, led and filthy.
 He suggested intercourse and sodomy.
 The conduct alleged in the indictments was not prohibited by statute.
 “whatever openly outrages decency and is injurious to the public morals is a
misdemeanor at common law.”
 Mochan was tried before a judge without a jury and convicted of a misdemeanor.
 Mochan appealed, arguing that the offense he was charged with did not constitute a
misdemeanor at common law.
 The factual charges identify the offense as a common law misdemeanor and the
testimony established the guilt of the defendant.
 Court of appeals affirms.

Issue
Is any unlawful act which directly injures or tends to injure the public morals or health of the
community indictable? Can a person be prosecuted as a criminal under the common law for
committing an offensive act not defined as a crime by statute?

Holding and Reasoning (Hirt, J.)

Yes. Although the indictment charging Mochan with committing unlawful acts is based in the
common law and not included in any statutory text, Commonwealth v. Miller, 94 Pa. Super. 499,
507 (1928), held that “the common law is sufficiently broad to punish as a misdemeanor…
any act which directly injures or tends to injure the public to such an extent as to require
the state to interfere and punish the wrongdoer, as in the case of acts which injuriously
affect public morality….” Mochan’s criminal intent was shown by his overt acts beyond the
mere verbal solicitation of adultery to Zivkovich. Mochan’s language and statements
injuriously affected public morality because the operator or anyone else on Mochan’s four-
party telephone line could have heard what he was saying. Undoubtedly, at least two
individuals at Zivkovich’s house heard the conversation. The charges in Mochan’s indictments
identify the offense as a common law misdemeanor and the testimony established his guilt.
The judgment of conviction is affirmed.

Dissent (Woodside, J.)
Despite Mochan’s reprehensible conduct, his actions do not constitute a crime punishable under
the law. The majority declares something to be a crime which was not previously considered to
be a crime in the Commonwealth. The majority states that anything which openly outrages
decency or is injurious to the people is a misdemeanor. However, the legislature determines
what “injures or tends to injure the public,” not the court. There would be no reason for the
legislature to enact any criminal laws if the courts delegate to themselves the power to determine
what does and does not injure the public. It is clear that the common law plays an important role
in the Commonwealth; however, the majority’s decision invades a field which should belong
solely to the legislature. The conviction should be reversed.

Keeler v. Superior Court, 2 Cal.3d 619 (1970).

Rule of Law
An unborn but viable fetus is not a “human being” under the law as to which someone may be
charged with murder.

Facts
 Robert Keeler (defendant) and his wife Teresa Keeler divorced on September 27, 1968.
 At the time, Mrs. Keeler was pregnant with another man’s child.
 On February 23, 1969, Mrs. Keeler was driving on a narrow road when another car
forced her to pull over.
 Mr. Keeler came out of the other car and confronted her about her pregnancy.
 Upon seeing her stomach, Mr. Keeler became angry and struck her in the stomach with
his knee, intending to hit the fetus out of her.
 After he left, Mrs. Keeler called for assistance and underwent a Caesarian section.
 The fetus was stillborn, with a skull fracture cited as the cause of death.
 An investigation showed that the skull fracture could have been due to Mr. Keeler’s
attack to Mrs. Keeler’s stomach.
 Evidence at the time showed the fetus was viable on the day of attack.
 Mrs. Keeler and her doctor had previously detected fetal movement, and at the time the
fetus was stillborn, it weighed five pounds and was 18 inches long.
 An expert estimated that had the fetus been born prematurely on the date of its death, it
would have had a 75 percent to 96 percent chance of surviving.
 Mr. Keeler was charged with the murder of the fetus.
 In California, Penal Code § 187 criminalizes the murder of a “human being.”
 Mr. Keeler moved to set aside the information.
 The lower court denied his motion, and he petitioned for a writ of prohibition from the
Supreme Court of California.

Issue
Is an unborn but viable fetus a “human being” under the law as to which someone may be
charged with murder?

Holding and Reasoning (Mosk, J.)

No. Penal Code § 187 provides that “murder is the unlawful killing of a human being, with
malice aforethought.” If the fetus which Mr. Keeler is charged with killing is not deemed a
“human being” under the statute, he cannot be charged with murder. Penal Code § 187 does not
specify whether the term “human being” applies to an unborn fetus. If a statutory provision is
ambiguous, courts must refrain from interposing their own interpretations and adhere to
the legislative intent behind the provision. It is therefore necessary to examine the intent of
the legislature that drafted this provision. As written, the provision has its origins in the
Crimes and Punishments Act of 1850 and has not been amended since. Thus, this court
relies on the intent of the Legislature of 1850. In the mid-nineteenth century, common law
required proof that a baby was born alive in order to prosecute the killing of that baby as
murder. It is therefore likely that the Legislature of 1850 implicitly intended to include the
requirement that a baby be born alive in its murder statute. This, in addition to the state’s
policy of interpreting ambiguous criminal statutes in favor of the defendant, leads to the
conclusion that the legislature intended § 187 to apply only to a baby that is born alive.
Here, although the fetus was viable, it was not born alive. Therefore, the fetus does not fall
within the meaning of “human being” under § 187. It is true that much has changed since the
enactment of this statute, including scientific advancements that increase the odds that a viable
fetus can survive outside the womb. Consequently, the requirement of an actual birth may be
viewed as archaic. Nevertheless, even if a legislature’s intent is outdated, courts are not at liberty
to substitute a more modern interpretation of a statute for two reasons. First, the doctrine of
separation of powers requires that courts leave the task of defining crimes to the legislative
branch. Thus, even though some may consider the killing of a viable fetus to be as grave a crime
as the killing of an infant, courts must still defer to the intent of the legislature. The second
reason the court cannot reach beyond the apparent legislative intent is the constitutional
guarantee of due process. No person may be punished for a crime for which he did not receive
fair warning. For this reason, legislatures may not pass ex post facto laws, that is, laws that
criminalize behavior retroactively. Enlarging the definition of a “human being” to include an
unborn fetus would have the same effect as an ex post facto law because the defendant
would have had no notice that the killing of a fetus could amount to murder. Here, there is
no decision from California courts that places Mr. Keeler on notice that his attack on the fetus
could fall within the meaning of § 187. Accordingly, the court adheres to the original intent of
the 1850 legislature in holding that § 187 does not apply to the killing of an unborn fetus.
The petition for a writ of prohibition is granted, and the lower court is restrained from
conducting any further proceedings on the information.
 Expansion on its interpretation is prohibited by due process because lack of notice
and thus, foreseeability.

Dissent (Burke, C.J.)
The majority’s holding defies logic and common sense. The legislature defined murder as the
unlawful killing of a “human being.” Those terms are not frozen in place as of any particular
time, but must be fairly and reasonably interpreted by the court. Whether a homicide occurred in
this case should be determined by medical testimony regarding the viability and ability of the
fetus to survive prior to Keeler’s act. The majority suggests that to do so would create a new
offense. However, contrary to the majority’s suggestion, the legislature has not “defined the
crime of murder in California to apply only to the unlawful and malicious killing of one who has
been born alive.” Instead, the legislature used the term “human being,” and it is left to the courts
to determine what constitutes a “human being.” Additionally, the majority states that any
alternative holding would violate due process, but due process only precludes prosecution under
a new statute insufficiently explicit regarding the specific conduct prohibited or under a
preexisting statute “by means of an unforeseeable judicial enlargement thereof.”
In Re Banks, 295 N.C. 236 (1978).

Rule of Law

A criminal statute is not void for vagueness if it gives fair notice of the criminalized conduct and
provides sufficient guidance to judges and defending lawyers, and is not void for overbreadth if
there is an available interpretation that does not inadvertently criminalize permissible actions.

Facts

 North Carolina established a Peeping Tom statute, G.S. 14-202,

 that proscribed peeping into a female’s room with the intent to invade privacy.
 G.S. 14-202 provides: “Secretly peeping into room occupied by female person—Any
person who shall peep secretly into any room occupied by a female person shall be guilty
of a misdemeanor and upon conviction shall be fined or imprisoned in the discretion of
the court.”
 This requirement of definiteness is an essential element of due process of law.
 Evils remedied by the definiteness requirement are the lack of fair notice of the conduct
prohibited and the failure to define a reasonably ascertainable standard of guilt.
 We must presume that the statute in constitutional unless in conflict with some
constitutional provision of the state or federal constitutions.
 Where a statute is susceptible to two interpretations—one constitutional and one
unconstitutional—the court should adopt the interpretation resulting in a finding of
constitutionality.
 Where a statute is ambiguous or unclear in its meaning, resort must be had to judicial
construction to ascertain the legislative will and the courts will interpret the language to
give effect to the legislative intent.
 Respondent Banks (defendant) challenged this law on the grounds that it was
unconstitutionally vague, since different people would have to speculate as to its meaning
and arrive at different interpretations.
 Banks also argued the law was unconstitutionally overbroad because it criminalized
actions beyond the scope of what the legislature meant to criminalize.
 Court held statute was sufficiently definite to give an individual fair notice of the conduct
prohibited, and thus did not violate fair notice or due process.
 Court also held statute was sufficiently narrow by judicial interpretation to require that
the act condemned must be a spying for the wrongful purpose of invading the privacy of
the female occupant of the room thereby omitting from its scope those persons who have
a legitimate purpose upon another’s property and those who only inadvertently glance in
the window of another. The statute is not overbroad. The statute is no unconstitutional
because of its vagueness.

Issue

Is a Peeping Tom statute that criminalizes the secret peeping into a female’s room with the intent
to invade privacy void for vagueness or overbreadth?

Holding and Reasoning (Moore, J.)

No. G.S. 14-202 is neither void for vagueness nor overbreadth. As long as a criminal statute
gives fair notice of the specific conduct that the statute criminalizes and provides a guiding
standard for the interpretation and application of that crime by judges and defending
attorneys, it is not void for vagueness. Statutes are not required to be as specific as possible. It
is only necessary that statutes are sufficiently detailed so that there is little uncertainty as to what
conduct is criminalized. In Kahalley v. State, 48 So. 2d 794 (1950), the Alabama Supreme Court
invalidated a Peeping Tom statute because it did not require the peeping to be done in secret.
This omission made it difficult to determine what type of conduct the statute prohibited.
However, G.S. 14-202 explicitly refers to those who peep secretly. This court previously
interpreted the term “secretly” in State v. Banks (1965), and said it clearly refers to the act of
spying on someone with the wrongful intent to invade privacy. The inclusion of the term
“secretly” adequately notifies the public as to what type of conduct the statute prohibits,
and gives sufficient guidance to a judge or defending lawyer to determine whether the
defendant has violated the statute. It is therefore not void for vagueness. The statute is not
void for overbreadth, as well. As long as the statute does not criminalize acts that the
legislature did not intend to criminalize, the statute is not overbroad. Therefore, if there is an
interpretation of the statute that does not inadvertently criminalize permissible conduct, the
statute is not void for overbreadth. In Lemon v. State (1975), the Supreme Court of Georgia said
its Peeping Tom statute was not overbroad because the requirement of a wrongful intent narrows
the applicability of the law. It eliminates the possibility that the law might punish someone
who is lawfully in a location where he accidentally observes a woman in her room. G.S. 14-
202 similarly avoids such a possibility because it includes a requirement of wrongful intent. This
statute is therefore not overbroad, and its constitutionality is upheld.
--believe court got it wrong—it groups accidental acts with intentional acts

Desertrain v. City of Los Angeles, 754 F.3d 1147 (2014).

Rule of Law
A municipal law prohibiting the use of automobiles as living quarters is unconstitutionally vague
in violation of the Due Process Clause of the Fourteenth Amendment if the law fails to explicitly
state what conduct is punishable.

Facts
 The City of Los Angeles (City) (defendant) enacted a municipal code section 85.02
 Prohibits use of vehicle as living quarters either overnight, day to day or otherwise.
 Plaintiffs include 4 homeless individuals who parked their vehicles in the Venice area of
Los Angeles.
 Plaintiffs were arrested or cited for violating the law based on various activities.
 Such as eating food inside a car; having a sleeping bag, canned goods, and books in a
vehicle; talking on a cell phone in a car; and staying in a car to get out of the rain.
 Many other times, the plaintiffs had not been cited for conduct that could fall under the
purview of the law.
 The plaintiffs filed suit in federal district court against the City and individual police
officers (defendants), claiming that the law was unconstitutionally vague on its face
because it failed to provide sufficient notice of the penalized conduct and promoted
 arbitrary and discriminatory enforcement in violation of the Due Process Clause of the
Fourteenth Amendment.
 The district court denied the plaintiffs’ motion for summary judgment and granted the
defendants’ motion for summary judgment.
 The plaintiffs appealed.

Issue
Is a municipal law prohibiting the use of automobiles as living quarters unconstitutionally vague
in violation of the Due Process Clause of the Fourteenth Amendment if the law fails to explicitly
state what conduct is punishable?

Holding and Reasoning (Pregerson, J.)

 Statute unconstitutional:
 Fails to provide adequate notice of the conduct it prohibits
 Purpose of fair notice us to enable ordinary citizen to conform their
conduct to the law
 Offers no guidance as to what conduct it prohibits
 Induces speculation and uncertainty
 As plaintiffs are left guessing as to what behavior would subject them to
citation and arrest by an officer.
 Promotes arbitrary enforcement that targets the homeless
 Statute unconstitutionally vague if it encourages arbitrary or discriminatory
enforcement
 Statute is broad enough to cover any driver in Los Angeles who eats food
and transports personal belongings in their vehicle. Yet it appears to be
applied only to the homeless.
 Vagueness doctrine is designed to prevent elective enforcement
Yes. A municipal law prohibiting the use of automobiles as living quarters is
unconstitutionally vague in violation of the Due Process Clause of the Fourteenth
Amendment if the law fails to state explicitly what conduct is punishable. The purpose of
providing citizens with fair notice of what conduct a criminal law penalizes is to enable the
citizen to conform his or her conduct to the law’s requirements. However, a criminal law cannot
require the public to speculate as to its meaning. In this case, the City has provided no guidance
on the types of conduct that the ordinance prohibits. Further, the law is unduly broad, as the
ordinance states that no person may use a vehicle as living quarters overnight, day-to-day, or
otherwise, but fails to define the terms “living quarters” or “otherwise.” Here, some of the
plaintiffs were not cited for violating the law after sleeping in vehicles overnight, but were cited
for violations based on actions such as talking on a cell phone in a car or keeping books and
personal belongings in a vehicle. The law is broad enough to cover any driver in Los Angeles
who eats foods or transports belongings in a car. However, the defendants seemingly
targeted homeless individuals when enforcing the law. Thus, the City’s law is
unconstitutionally vague and promotes arbitrary and discriminatory enforcement that
targets the homeless. Accordingly, the judgment of the district court is reversed.
Statutory interpretation
Muscarello v. United States, 524 U.S. 118 (1998).
 Provision in the firearms chapter
 Federal criminal code
 Imposes a 5-year mandatory prison terms
 On a person who uses or carries a firearm
 during and in relation to
 a drug trafficking crime.
 Issue: whether the phrase “carries a firearm” is limited to the carrying of firearm on the
person?
 Held: it is NOT limited—it also applies to a person who knowingly possesses and
conveys firearms in a vehicle including in the locked glove compartment or trunk of a car
which the person accompanies.

Rule of Law
When interpreting a statutory term, courts should assume the primary meaning of the
phrase governs unless the legislature indicates otherwise.

Facts
 Congress enacted a federal law criminalizing the conduct of one who “uses or carries a
firearm” while trafficking drugs.
 Muscarello (defendant) was convicted of carrying a firearm in the locked glove
compartment of his vehicle while involved in a drug trafficking crime.
 The court of appeals affirmed.
 Muscarello challenged the lower court’s interpretation of the law,
 Muscarello argued that the term “carries a firearm” applies only to a person who actually
possesses a firearm on his person and not to one who possesses a firearm in his vehicle.
 The United States Supreme Court granted certiorari and consolidated a similar case.

Issue
Is the statutory phrase “carries a firearm” necessarily limited to the possession a firearm on the
defendant’s person and not also applicable to possession of a firearm in a vehicle?

Holding and Reasoning (Breyer, J.)

No. Courts must interpret ambiguous statutory terms according to legislative intent. In
doing so, courts may consider the ordinary definition of the term, any special definitions, the
purpose of the statute, and the legislative history. Here, there are two relevant interpretations of
the word “carry.” The first definition for “carry” in the dictionary is to convey something by
vehicle. The etymology and usage of the term make clear that “carry” is not limited to moving an
object on the person’s body. The narrower definition of “carry,” meaning to bear something on
one’s person, comes much later in most dictionary entries. Without an explicit limitation on
the scope of the word, there is no reason to find that Congress did not intend to include
both situations under the statute. Federal courts have consistently construed the statute this
way. The statute’s basic purpose is to “combat the ‘dangerous combination’ of ‘drugs and
guns.’” In light of this, it is only logical to conclude that Congress intended to discourage
bringing a gun to a drug deal by any method of transport. Nothing in the legislative history
contradicts this construction. Muscarello’s arguments for adopting a narrower interpretation are
unpersuasive. First, Muscarello argues that if Congress intended the broader interpretation,
it would have used the word “transport.” However, “carry” implies a personal involvement
in the movement of goods. Congress imposed different penalties for the “transport” of
firearms in another statute. Second, the statute criminalizes both using and carrying a gun
during a drug trafficking crime. “Use” has previously been interpreted narrowly, and Muscarello
pushes for similar treatment of “carry.” But “use” and “carry” are both included in the
prohibition, and both must be given effect. A person may carry a gun that is not in use. Third,
Muscarello complains that a broad interpretation extends the statute’s application to
passengers who carry firearms in checked luggage while riding public transportation.
However, the limiting language of the statute ensures that it applies only when someone
carries a gun “during” or “in relation to” drug trafficking. Fourth, Muscarello argues that the
word “carry” means “immediately accessible.” There is no indication that Congress meant to
limit the definition that way. Lastly, Muscarello argues that the rule of lenity requires that
courts construe ambiguities in favor of criminal defendants. This rule only applies when
courts have no guidance regarding Congress’s intent. That is not the case here. Congress
intended for the provision to apply to the carrying of firearms in a vehicle to a drug
trafficking crime, as Muscarello did. Therefore, Muscarello’s conviction is affirmed.

Dissent (Ginsburg, J.)
The word “carry” has been used in both the broad and narrow sense throughout history and in the
present day, and it is not readily apparent which interpretation Congress intended. Under the rule
of lenity, the ambiguity in the statute should be construed in favor of Muscarello.

Module 03: Actus Reus

Pages: 130-136, 148-152

Elements of the crime itself:

**all 3 elements are required for a crime to be defined as a criminal act
1) Actus reus
 objective
 Is the physical or external part of the crime
 It is both the conduct and the harmful result
 Act, harm and its connecting link, causation
 Actus—expressing the voluntary physical movement in the sense of
conduct
 Reus—expressing the fact that this conduct results in a certain proscribed
harm
2) Mens rea
 subjective
 Is the mental or internal ingredient
 Does not encompass the entire mental process of one accused of a crime
 There is certain minimal mental element required in order to establish the
actus reus itself
  This is the element of volition
3) Causation

Voluntary Act
 Martin v. State, 31 Ala.App. 334 (1944).

Rule of Law

Criminal liability may only be imposed when the unlawful conduct is committed voluntarily.

Facts

 Martin (defendant) was arrested at his home by police officers

 They took him onto the highway where he allegedly committed the proscribed acts
 He manifested a drunken condition by using loud and profane language on a public
highway.
 Martin was convicted under a state statute which held that any person who, while
intoxicated or drunk, appeared in “any public place where one or more persons are
present, and manifests a drunken condition by boisterous or indecent conduct, or loud and
profane discourse, shall, on conviction, be fined.”
 Martin appealed.
 Under the pain terms of the statute a voluntary appearance is presupposed.
 An accusation of drunkenness in a designated public place CANNOT be established
by proof that the accused while in an intoxicated condition was involuntarily and
forcibly carried to that place by the arresting officers.
 Ruling: Revered and rendered.

Issue

Can criminal liability be imposed only when the unlawful conduct is committed voluntarily?

Holding and Reasoning (Simpson, J.)

Yes. Under the plain language of the statute, one convicted of being drunk in a public place
must have voluntarily placed himself there. If the accused is taken involuntarily and
forcibly carried to a public place by an arresting officer, a charge of being drunk in a
public place cannot stand. The judgment of conviction is reversed.

 Criminal law only punishes voluntary conduct

 Model Penal Code 2.01—provision not only excludes punishment for mere thoughts but
also liability for purely involuntary conduct

State v. Utter, 479 P.2d 946 (1971).

Rule of Law
A defendant’s act occurring during an unconscious or automatistic state is not a basis for
criminal liability.
Facts
 On the day of his son’s death, Appellant Utter (defendant) had been heavily drinking in
his apartment.
 Witnesses saw the son enter Utter’s apartment and heard him cry out.
 The son came out and collapsed, having been stabbed in the chest.
 He told witnesses that his dad stabbed him.
 He died shortly afterwards.
 Utter was charged with murder in the second degree.
 He has no recollection of what happened with his son.
 During trial, Utter argued that his actions were the result of a conditioned response.
 And unconsciousness—drunk
 He submitted expert testimony explaining that a conditioned response is an automatic
response to a particular stimulus.
 Utter said that due to his training and time served in World War II, he was
programmed to respond violently to people who unexpectedly approached him.
 The trial court rejected Utter’s defense of conditioned response, holding that it was the
same as the defense of irresistible impulse, which Washington courts do not recognize.
 Accordingly, the trial court instructed the jury to disregard any evidence regarding
conditioned response.
 The jury convicted Utter of manslaughter
 he appealed.

Issue
Is a defendant’s act occurring during an unconscious or automatistic state a basis for criminal
liability?

Holding and Reasoning (Farris, J.)

No. A defendant’s act occurring during an unconscious or automatistic state is not a basis
for criminal liability. To find a defendant guilty of murder, a jury must find both the requisite
actus reus and mens rea. The actus reus is the physical component of the crime, while the mens
rea is the state of mind behind the crime. But actus reus also has a mental component in that
the murder defendant must have voluntarily willed the act to occur. For this reason, an
involuntary muscle spasm that results in the death of another person would not qualify as the
actus reus for murder. The act must be committed voluntarily and consciously. Here, Utter
submitted the defense of conditioned response, which would show that he could not have
committed the requisite actus reus. The trial court disregarded this defense, equating it to a
defense of irresistible impulse, which this jurisdiction does not recognize. However, conditioned
response is distinct from irresistible impulse. Conditioned response revolves around the
question of consciousness. If Utter’s act was a conditioned response, he lacked the
consciousness required to commit a voluntary act, and he could not have had the requisite
actus reus. Importantly, even if Utter did succeed in proving conditioned response, the defense
might not be absolute, since unconsciousness voluntarily brought on by excessive drinking is
not an absolute defense to murder. With every valid defense, the defendant must present
substantial evidence in order for the defense to reach a jury. Here, Utter failed to submit
enough evidence in support of the defense of conditioned response. Because there was
insufficient evidence to prove whether Utter stabbed his son due to his conditioned
response, this defense should not have reached the jury.
 Burdens: (1) burden of production (2)

Acts of Omission
 Barber v. Superior Court, 147 Cal.App.3d 1006 (1983).
Rule of Law
A physician is under no legal duty to continue futile life-sustaining support absent objection from
a spouse and the withdrawal of such life-sustaining support with the consent of a spouse does not
support a charge of murder.

Facts
 Following a surgical procedure, Clarence Herbert suffered a cardio-respiratory arrest while
in the recovery room.
 A team of physicians, including Barber (defendant), were able to revive Herbert and place
him on life support.
 Over the following three days, it was determined that Herbert suffered permanent brain
damage, leaving him in a permanent vegetative, coma-like state.
 Herbert’s physicians informed his family that Herbert’s chances for recovery were very
poor.
 Herbert’s family drafted a written request to hospital personnel requesting that all life-
support equipment be removed.
 Barber and another physician complied with the family’s request and removed the
respirator and other life-sustaining equipment.
 Herbert continued to breathe on his own, but showed no other signs of improvement.
 After two more days had elapsed, the physicians consulted Herbert’s family and
subsequently removed the intravenous tubes providing Herbert with hydration and
nutrition. Herbert later died.
 Barber and the other physician were charged with murder and conspiracy to commit
murder which a magistrate dismissed.
 The superior court set aside the magistrate’s order and reinstated the complaint.
 Barber and the other physician then petitioned the court of appeal for review of the superior
court’s decision.

Issue
Is a physician under a legal duty to continue futile life-sustaining support absent objection from a
spouse and does the withdrawal of such life-sustaining support with the consent of a spouse
support a charge of murder?

Holding and Reasoning (Compton, J.)

No. Murder is the unlawful killing of a human being with malice aforethought. Malice is
presumed regardless of motive if Barber unlawfully and intentionally killed Herbert. The term
“unlawful” generally is meant to distinguish a criminal homicide from those homicides society
deems “excusable.” Euthanasia is not an excusable homicide in California. However, whereas
euthanasia is an affirmative act to cease life, the cessation of “heroic” life support measures is
not an affirmative act to cease life. Rather, it is a withdrawal or omission of further treatment.
Disconnecting life-support machines is comparable to withholding manually administered
injections or medications. Therefore, the use of nutrition and hydration administered
intravenously is the same as the use of a respirator or other forms of life-support. There is no
criminal liability for failure to act unless there is a legal to duty to do so. Here, Barber had no
legal duty to continue to provide treatment to Herbert once it was proved to be ineffective or
futile in the opinion of qualified physicians. However, determining who has the authority to
make the decision to withdrawal life-sustaining support is unclear. There are no precise
guidelines to guide a court in that respect. The patient’s interests and desires are of paramount
importance. If Herbert was incapable of making a medical decision for himself due to incapacity,
his wife was the proper person to act as his surrogate with the authority to decide issues
regarding further treatment. There is no evidence that there was any disagreement between the
wife, children, and the physicians. Nor is there evidence that the family was motivated by
anything other than the best interests of Herbert. Barber’s omission to continue life-sustaining
treatment to Herbert under the circumstances, though intentional and with knowledge that
Herbert would die, was not an unlawful failure to perform a legal duty. The superior court
erred in determining that the evidence against Barber and the other physician supported charges
of murder and conspiracy to commit murder.

Video: introduction to actus reus

What is “the ACT”

 to be guilty of a crime you must get caught
 society needs to know that you have done something and need to be aware that you have
broken the law
 you have to be caught in an act that society has defined as prohibited

Defining a criminal act

ACT must be:

 A commission
o Doing something
 An omission
o Not doing something
 voluntary
o Must look at the attendant circumstances
 Result/consequence

General rule for “omissions”:

 No criminal liability for a failure to act
 If there is no duty to act, failure to act will not make you liable

***An act MUST be voluntary

 You have to choose to do something
 Comes from a choice being made
 Must exercise your will in a particular way
  So, if you act “involuntarily” you will not be criminally liable
 Actions considered involuntary are—reflect knee test, sleepwalking,
 BUT drinking before or after driving a car, is a voluntary act

Attendant Circumstances
 The context for the criminal act
o Example: in a burglary, the act is the breaking and entering. A building or
structure is the attendant circumstance that must exist in order to commit a
burglary.
 What is going on at the time of the commission of the crime
 What must be occurring in order for the crime to be considered a crime
 the state of affairs that MUST exist for the commission of the crime

the requisite result/consequence

 at the end of the offense, what has happened?
 Has a criminal result, as defined by the statute or the common law, occurred?
 Example: to be charged for murder, the result of homicide must take place
 Defendant must cause the prohibited result/consequence by acting in a particular way

Basic Principle = the guilty act + the guilty mind

Actus no facit reum, nisi men sit rea

 No act is punishable UNLESS it is performed with a criminal mind (mens reus)
 Exception—strict liability

**Conduct itself does not make a person legally guilty

Deconstructing a criminal statute or common law definition:

 Theft is the dishonest appropriation (actus reus) of the property of another (attendant
circumstance) with the intent to permanently deprive (result).

Video: actus resus and omissions

Actus reus
 Involves an act
 In other words, doing something
 Example: actus reus for theft involves taking something that belongs to another.
 Omissions do not usually amount to actus reus
 BUT an omission CAN amount to actus reus in 4 situations:
o All involves a duty for the defendant to act
 Omissions can be actus reus when:
 (1) defendant has special relationship
 Parents of young children, husbands and wives have a
duty to protect their children or spouses from serious
harm
  (2) defendant has assumed responsibility for a person
 (3) where the defendant has created a dangerous situation
 Omitting to do something about a dangerous situation
that you have caused can amount to actus reus.
 (4) defendant has a contractual obligation to act
 (5) statutory

In May 1997, David Cash, a high school senior, walked into a Las Vegas casino restroom
and discovered his best friend, Jeremy Strohmeyer, struggling with a seven-year-old girl
in a bathroom stall.  Cash left without saying anything.  Strohmeyer, who had dragged
the girl into the restroom, raped and murdered her after Cash left. 
According to Cash, who was interviewed later:
“I have done nothing wrong.  It’s a very tragic event, okay?  But the simple fact remains I do
not know this little girl.  I do not know starving children in Panama.  I do not know people that
die of disease in Egypt.  The only person I knew in this event was Jeremy Strohmeyer, and I
know as his best friend that he had potential.  I’m sad that I lost a best friend.  I’m not going
to lose sleep over somebody else’s problem.”

The requirements for actus reus are met. The defendant’s failure to act, omission, walking into a
Las Vegas casino restroom and discovering Jeremy struggling with a 7-year-old girl in a bath
stall and leaving without saying anything was voluntary and resulted in concealing the rape and
murder of the 7 year old girl. Defendant chose to leave the bathroom stall. He chose to not say
anything about what he had witnessed. As a result of defendant’s in action, Strohmeyer had the
time to rape and murder her.
 An omission
o Not doing something
 voluntary
o Must look at the attendant circumstances
 Result/consequence
Answer:
David Cash unfortunately faces no legal problem for his failure to act.
The general rule is that, an omission, a failure to act, does not make a defendant liable. But the
defendant may have a duty to act such as when they have a special relationship with the victim,
when they assumed responsibility for the victim, they created a dangerous situation, they have a
contractual obligation to act or there are statutory duties to act.
None of these situations apply. The defendant does not have a special relationship with Jeremy
Strohmeyer’s victim even if the victim is a 7-year-old girl and having stopped or made someone
aware of what Jeremy was doing could have possibility saved her life. The defendant did not
assume responsibility for the victim as he did not know the little girl. Although it could be
argued that the victim could have relied on Cash once he walked in on the assault to at the very
least inform someone. But this can easily be counter by Cash as he did not say anything to the
victim and instead walked out. The victim therefore could not have relied on Cash once a
sufficient amount of time had elapsed. Further, the only person he knew was Jeremy Strohmeyer
his best friend at the time. It could be argued that he owed a duty to his friend to keep him from
committing an offense. Especially after he walked in on Jeremy with a female minor in a
bathroom stall. But Jeremy is not a child of the defendant nor is there a familiar relationship.
Additionally, the defendant did not create the dangerous situation based on the given facts. Cash
did not incite, encourage, or facilitate the assault and murder of the victim. The defendant also
did not have a contractual obligation to act. But additional facts may potentially help establish a
recognizable relationship. Cash would then be under a duty to act. Cash may also be required to
act by statute and his failure to act would be in violation of that statute would result in criminal
prosecution. But as such facts are not provided, I can safely say that Cash’s contention that he
has not done anything wrong, is correct.
If, however, the court finds a special relationship existed. Then Cash may be found criminally
liable for his failure to act. Cash in this instance could be charged with accessory after the fact or
even negligence.
If, however, the court does not find a special relationship existed. Then Cash would not
be found criminally liable for his failure to act. And although, not criminally liable, it is
morally irreprehensible of him to not only walk out but not inform someone, anyone that
there was a female minor in the bathroom with a high school senior. Cash in my opinion
has earned the moral condemnation of his community and society as a whole. Based on
our in-class decision on module 1, yes, Cash has committed a crime in my opinion, but
the crime has not criminal liability. A change in the statute may be where anyone should
start that feels like the criminal law is not addressing a rising problem. I would look to the
legislature and congress in the hope of addressing such an oversight in the criminal law
of New York.

Writing assignment:
Barry is an epileptic.  He takes medication daily for the condition, to prevent seizures. He
has been taking his current medication for 6 months and, to date, has not suffered a
seizure.  One day, while driving to work, Barry suffered a seizure and, during the seizure,
struck and killed four children.  Witnesses testified that they observed Barry’s arms
flailing and eyes rolling.  Barry’s doctor testified that he had in fact had a seizure on that
day, as reflected in an EEG done within hours after the accident.  The Prosecutor
charged Barry with a criminally negligent homicide, specifically with “operating a vehicle
in a reckless or culpably negligent manner, causing the death of four persons” and the
Grand Jury indicted.  
Barry’s lawyer moves the court to dismiss the indictment.  How should the court rule on
Barry’s motion?
IRAC: actus reus

Rules: Facts:
 Physical act
Voluntary act
BUT involuntary because epileptic seizure
voluntary act is preceded by involuntary
act

***Interweaving facts to rules.

Barry is an epileptic.  He takes medication daily for the condition, to prevent seizures. He
has been taking his current medication for 6 months and, to date, has not suffered a
seizure.  One day, while driving to work, Barry suffered a seizure and, during the seizure,
struck and killed four children.  Witnesses testified that they observed Barry’s arms
flailing and eyes rolling.  Barry’s doctor testified that he had in fact had a seizure on that
day, as reflected in an EEG done within hours after the accident.  The Prosecutor
charged Barry with a criminally negligent homicide, specifically with “operating a vehicle
in a reckless or culpably negligent manner, causing the death of four persons” and the
Grand Jury indicted.  
Module 04: mens rea

Defining mens rea

Broad definition:
 Guilty mind: vicious will; morally culpable
 A guilty or wrongful purpose,
 A criminal intent—encompasses the relationship between the individual and the criminal
law.
 Person guilty if he commits social harm with any morally blameworthy state of mind—
BUT remember that morally blameworthy behavior is not always criminal behavior.
Narrow definition:
 Elemental meaning—a defendant is not guilty even if he has a culpable mind if he lacks
the mental state specified in the definition of the crime
 Mens rea determines the propriety and grading of punishment
 Legislatures/ common law/ model penal code have developed culpability distinctions

Model Penal Code 2.02

Basic requirement: for a conviction some element of mental culpability must be proven

***Sole exception is outlined in section 2.05—strict liability offenses

Four levels of culpability: descending order from most to least culpable

(These are all types of mens rea)
 Purposely/intentionally (most serious)
  Knowingly
 Recklessly
 Negligently (least serious)

***Level of culpability cannot increase in seriousness but may decrease in seriousness. Why?
Due process. (applies in terms of a plea bargain)

Purposely/intentionally
 A person acts purposefully with respect to a material element of an offense when
(i) If the element involves the nature of his conduct or a result thereof, it is his
conscious objective to engage in conduct (actus reus) of that nature or to cause
such a result; AND
(ii) If the element involves the attendant circumstances, he is aware of the
existence of such circumstances or believes or hopes they exist.

***intent can be inferred—based on surrounding circumstances

Transferred intent
 Causal relationship between conduct and result. MPC section 2.03
 When a defendant intends to cause harm to one person but accidentally causes it to
another:
o Courts typically assert the transferred intent doctrine which is based on the
principle that:
- Justice is achieved by punishing the defendant for a crime against an
unintended victim if it’s of the same seriousness as the one he tried to
commit against the intended victim.
- If you intent to assault but instead murder, intent does not transfer.
- Injury designed would have been more serious than that caused
- Example: See People v. Conley.
- If want to kill you but don’t do it. Intent is not transfer.
- Cannot transfer intent from one crime to another.
 The intent to commit one crime MAY BE transferred onto another crime ONLY IF:
 Accused intends to harm one victim but harms another (or both) generally, this arises as
transferred intent from an intended to an unintended victim.
 Transferred intent will not be applicable when the result intended for one crime is not
achieved but a different result is achieved, and it is the prohibited result for a different
crime (e.g. a crime against a person turns out to be a crime against property).

Knowingly
 is awareness
 It is knowledge to a substantial certainty
 A person acts knowingly with respect to a material element of an offense when:
(i) If the element involves the nature of his conduct or the attendant
circumstances, he is aware that his conduct is of that nature or that the
circumstances exist; AND
 (ii) If the element involves a result of his conduct, he is aware that it is practically
certain that his conduct will cause such a result
 See 2.02(7)—when knowledge of a particular fact is a material element of an offense,
culpability is established if a person is aware of a high probability of its existence (Note:
State v. Nations and the “willful blindness” problem)

Recklessly
 A person acts recklessly with respect to a material element of an offense when he
consciously disregards a substantial and unjustified risk that the material element exists
or will result from his conduct.
 Risk—must be of such nature and degree that (considering the actor’s conduct and
circumstances known to him), that risk is a gross deviation from the standard of conduct
that a law-abiding person should observe in the actor’s situation.

Negligently
 A person acts with negligence with respect to a material element of an offense when he
should be aware of a substantial and unjustifiable risk that the material element exists or
will result from his conduct.
 The risk must be of such a nature and degree that the actor’s failure to perceive it
(considering the nature and purpose of his conduct and the circumstances known to him)
involves a gross deviation from the standard of care that a reasonable person would
observe in the actor’s situation.

Example: (mens rea)

 Jacob wanted to kill Vanessa, his wife. He drove his car at a very high rate of speed into
Vanessa, who was holding Xavier, their infant son, in her arms. Jacob fervently hoped
that Wavier would survive the collision. The car struck Vanessa and Xavier, killing both
instantly.
 According to Section 2.02 of the MPC, with what form of culpability did Jacob kill
Vanessa? Purposely/ intentionally and knowingly
 With what form of culpability did he kill Xavier? Transferred intent. Purposely/
intentionally, recklessly, negligently.

***”MALICE” is a type of mens rea—no longer really used (is in a class by itself) not part
of the pecking order

Malice requires either:

1) an actual intention to do the particular kind of harm that in fact was done; OR
2) recklessness as to whether such harm may occur (i.e. accused has foreseen that this kind of
harm might occur yet has taken the risk anyway)
 No ill will towards the victim, no wickedness is required

Regina v. Cunningham, 1957 Q.B. 396.

Actus rea—inflicted upon such person any grievous bodily harm
Attendant circumstance—poison
Mens rea—might fit the definition of malice if he knew that there was a substantial disregard
Result—grievous harm to Mrs. Wade

Rule of Law

The term malice in a criminal statute does not mean general wickedness; it means either (1) an
actual intention to do the particular kind of harm that was in fact done or (2) reckless disregard of
a foreseeable risk that the harm would result.

Facts

 appellant was engaged to be married

 his prospective mother-in-law was the tenant of a house, No. 7A, Bakes Street, Bradford,
which was unoccupied, but which was to be occupied by the appellant after his marriage.
 Mrs. Wade lived in the house next door.
 At one time the 2 houses had been one
 But the building was converted into two houses
 A wall had been erected to divide the cellars of the 2 houses
 Wall of composed of rubble loosely cemented
 Appellate went to the cellar of No. 7A and wrenched the gas meter from the gas pipes
 He stole it
 Although there was a stop tap within two feet of the gas meter appellant did not turn off
the gas
 Resulting in gas escaping into the wall of the adjoining housing and partially
asphyxiating Mrs. Wade who was asleep.
 Cunningham pleaded guilty to the charge of larceny for stealing the gas meter and the
money.
 In addition, Cunningham was indicted under § 23 of the Offenses against the Person
Act, 1861, which provides that it is a felony to “unlawfully and maliciously” give or
cause another person to take poison in a manner that endangers his or her life or
causes serious injury.
 The trial judge instructed the jury that the term “malice” in the statute meant “wicked,”
and that a person acted maliciously if he did “something which he has no business to do
and perfectly well knows it.”
 Cunningham was convicted, and he appealed to the Queen’s Bench.

Issue

Does wickedness satisfy a criminal statute’s mens rea requirement for malice?

Holding and Reasoning (Byrne, J.)

No. The term malice in a criminal statute means that the person acted with either (1) an
actual intention to do the particular kind of harm that was in fact done or (2) reckless
disregard of a foreseeable risk that the harm would result, meaning the person was aware
of the risk of harm and did the act anyway. In this context, malice does not mean mere
wickedness as it does colloquially. In this case, the mens rea required by the statute was malice.
The trial judge erred in defining malice as wickedness in his jury instruction . The judge
basically instructed the jury to convict Cunningham of a felony for poisoning Wade and
endangering her life if the jury determined that Cunningham behaved wickedly when he stole the
gas meter. There is no doubt that Cunningham behaved badly when he took the gas meter.
However, the real issue here is whether Cunningham foresaw that taking the gas meter
could seriously harm someone but did it anyway. That question should properly have been
submitted to the jury. There is no way to know whether a reasonable jury, instructed on the
correct definition of malice, would have convicted Cunningham. As a result, Cunningham’s
appeal is allowed; the conviction is quashed.

 No malice
 Lacked the mens rea for this crime
 Even though he most likely committed a different crime

People v. Conley, 543 N.E.2d 138 (1989).

 Intent
 2 issues:
 Transferred intent
 Inferred intent—looks to the result

Rule of Law

Criminal intent (requisite culpability) may be inferred from the circumstances surrounding a
crime.

Facts

 William J. Conley (defendant) was charged with aggravated battery after attacking Sean
O’Connell outside a party.
 Approximately 200 high school students attended a party
 Alcohol was served
 O’Connell attended the party
 Sean’s group was approached by group of 20 boys accusing Sean’s group of saying
something derogatory
 Sean’s group denied the statement
 Sean and friends were leaving
 Someone from O’Connell’s group demanded Carroll to give him a beer
 Marty refused
 Conley attempted to strike Marty with a wine bottle but he ducked
 Bottle struck Sean in the face
 O’Connell sustained a broken upper and lower jaw and four broken bones.
 He lost one tooth and underwent surgery on ten other damaged teeth.
 His damaged teeth are expected to last only two-thirds the lifetime of an undamaged
tooth.
 Other permanent injuries include partial numbness in one lip.
 The relevant statute defines permanent disability or disfigurement as aggravated
battery. It requires a person to intentionally or knowingly cause such injuries.
 The trial court found Conley guilty of aggravated battery and Conley appealed.
Issue
May a court infer the intent to commit a crime based on surrounding circumstances?

Holding and Reasoning (Cerda, J.)

Yes. The relevant statute requires that a person intentionally or knowingly inflict
permanent disability or disfigurement. The statute defines intent as having the purpose to do
something. It defines knowledge as being almost certain that something will occur as a result of
an action. Thus, this statute requires that someone act with the intent to inflict the requisite
harm or be almost certain that the requisite harm will occur. Although proving intent may be
difficult, courts can rely on the presumption that a person intends the likely consequences of
his actions. Intent to harm can thus be inferred from the circumstances surrounding a person’s
actions, such as the words spoken or weapons used. Conley argues that there is insufficient
evidence to prove beyond a reasonable doubt that he intended to cause or knew he would cause
permanent disability or disfigurement. However, judging from his use of a wine bottle, his lack
of warning and the force with which he hit O’Connell, it was reasonable for the jury to infer that
Conley intended to cause permanent disability. Conley did not submit any evidence that would
negate the presumption that he intended to cause O’Connell permanent disability. There was
sufficient evidence to prove that Conley had the requisite intent.

 Transferred intent
 Intended the result

Knowingly (recklessness + omission = knowledge)

 is awareness
 It is knowledge to a substantial certainty
 A person acts knowingly with respect to a material element of an offense when:
(iii) If the element involves the nature of his conduct or the attendant
circumstances, he is aware that his conduct is of that nature or that the
circumstances exist; AND
(iv) If the element involves a result of his conduct, he is aware that it is practically
certain that his conduct will cause such a result
 See 2.02(7)—when knowledge of a particular fact is a material element of an offense,
culpability is established if a person is aware of a high probability of its existence (Note:
State v. Nations and the “willful blindness” problem)

State v. Nations, 676 S.W.2d 282 (1984).

Rule of Law

Where a statute requires knowledge of a fact as an element of a crime, it is insufficient to prove

the defendant was aware of the high probability of that fact’s existence, unless the statute
provides otherwise.

Facts
  Police observed a young girl dancing for tips at a club owned by Sandra Nations
(defendant).
 Nations owned and operated the Main Street Disco.
 Police found a scantily clad 16 year old dancing for tips
 Upon questioning, Nations said she had checked the girl’s identification when she hired
her that day, and that the girl was not underage.
 The police also questioned the girl.
 She had no identification and ultimately revealed she was sixteen.
 Nations was charged with endangering the welfare of a child younger than seventeen-
years-old.
 The relevant criminal statute requires the State (plaintiff) to prove the defendant knew
that the girl was underage.
 The jury convicted Nations for the crime charged.

Issue

When a statute requires knowledge of a fact as an element of a crime, is it sufficient to prove the
defendant was aware of the high probability of that fact’s existence?

Holding and Reasoning (Satz, J.)

No. The term “knowledge,” unless otherwise defined by statute, means actual knowledge. When
a criminal statute requires knowledge of a fact as an element of a crime, the defendant must have
had actual awareness of the fact to satisfy that element. This definition of “knowledge” differs
from the one adopted by the Model Penal Code (MPC). Under the MPC, actual knowledge is not
required. Instead, an awareness of the high probability of a fact’s existence is sufficient to
demonstrate knowledge, unless the defendant actually believed the fact to be untrue. This broad
definition of knowledge encompasses situations where a person ought to know a fact but is
willfully blind to it. Notably, the MPC’s expanded definition of knowledge is absent from this
jurisdiction’s criminal code. This demonstrates that our legislature has rejected the MPC’s
definition of knowledge and requires proof of actual knowledge to satisfy the knowledge element
of a crime. This case involves the crime of endangering the welfare of a child younger than
seventeen. One element the State must prove is that Nations knew the child was younger than
seventeen. It is insufficient for the State to prove that Nations should have known or was
willfully blind to the girl’s age. It must prove that Nations actually knew. At trial, the State
succeeded in proving that Nations did not know the girl was of legal age, since the girl did not
have her identification with her that day. But it failed to show that Nations knew for a fact
that the girl was underage. At most, the facts suggest that Nations purposefully chose not to
know. This is insufficient to prove knowledge as defined by this jurisdiction’s criminal code.
Therefore, the State failed to show Nations had the knowledge required for this crime.
Judgment is reversed.

 Nations did not have knowledge

 Not consciously aware
 Must have right knowledge not just avoidance of knowledge
 But may be reckless mens rea

Staples v. US, 511 U.S. 600 (1994).

  Act reus—to receive or possess
 No mens rea—no mens rea in statute

Rule of Law

Absent a clear statement from Congress that there is no mens rea requirement, federal felony
statutes should not be interpreted to eliminate the mens rea element.

Facts

 Staples (defendant) possessed a semi-automatic rifle that originally had a metal piece
preventing it from firing automatically.
 Staples filed down the metal piece.
 As a result, the rifle met the statutory definition of a firearm under the National Firearms
Act, 26 U.S.C. § 5861(d).
 Staples did not register the weapon as required by the act.
 The United States (plaintiff) charged Staples under the act, which makes possession of an
unregistered firearm punishable by up to ten years in prison.
 Staples claimed he did not know the rifle could be fired automatically.
 The trial judge refused to give Staples’s requested jury instruction, which stated that the
government was required to prove that Staples was aware that the gun would fire
automatically.
 Instead, the judge instructed the jury that to sustain a conviction Staples only needed to
know that he had a dangerous device that should have alerted him to the possibility of
regulation.
 Staples was convicted, and the court of appeals affirmed.
 The United States Supreme Court granted certiorari.

Issue

Absent a clear statement from Congress that there is no mens rea requirement, should federal
felony statutes be interpreted the eliminate the mens rea element?

Holding and Reasoning (Thomas, J.)

No. Absent a clear statement from Congress that there is no mens rea requirement, federal
felony statutes should not be interpreted to eliminate the mens rea element. A mens rea
element is generally required for conviction of a federal crime, absent a clear intent to eliminate
it by Congress. The act makes it unlawful to possess an unregistered firearm. The question is
whether the possessor must know the weapon has the characteristics of a firearm to violate
the act. The default rule is that a mens rea of scienter is required for any crime. The fact that
Congress did not specifically state the required mens rea does not mean it intended to dispense
with the element. Public policy disfavors criminal statutes with no mens rea requirement. In this
case, the government argues that the statute is a public welfare regulation that imposes strict
liability with no knowledge requirement. The Court has held that if a defendant knows he is
dealing with a dangerous device, the defendant should be aware of the likelihood of regulation.
The burden is on the defendant to determine whether the defendant's activities are subject
to the statute. The Court has upheld dispensing with the mens rea requirement under the act for
possessing grenades without knowing they were unregistered because the defendant could not
have thought possessing such dangerous devices innocent. The government argues that guns are
dangerous devices and owners are on notice that they may be subject to regulation by the act.
Nevertheless, the Court has been careful not to interpret statutes as eliminating the mens rea
requirement where seemingly innocent conduct, such as gun ownership, would be criminalized.
The appellate court below correctly concluded that it was unthinkable that Congress meant to
subject law-abiding citizens to lengthy prison sentences for unknowingly possessing automatic
weapons. There must be a clear intent on the part of Congress that mens rea is not a required
element of the crime; otherwise courts should not interpret felony statutes as eliminating the
mens rea requirement on the basis of public welfare. The conviction is vacated.

Concurrence (Ginsburg, J.)
The issue in this case is not whether but what level of knowledge is required. The possible levels
include “(1) knowledge simply of possession of the object; (2) knowledge, in addition, that the
object is a dangerous weapon; or (3) knowledge, beyond dangerousness, of the characteristics
that render the object subject to regulation.” The government’s contention that the second level is
appropriate does not take into consideration the “widespread lawful gun ownership” in this
nation. Congress only demands registration of the most dangerous firearms, and thus other guns
are not sufficiently dangerous to put owners on notice of possible regulation. In this case, in
order to sustain a conviction under the act, Staples must have known that he possessed an
unregistered machine gun.

Dissent (Stevens, J.)
The Court here substitutes its judgment for that of Congress. Staples possessed a semiautomatic
rifle capable of conversion to automatic, and the jury concluded it was a dangerous device. This
was not the type of gun lawfully owned by many Americans. First, the text of the act specifically
omits a knowledge requirement. Had the conduct proscribed been a common law crime,
interpreting the statute to include a mens rea element would be acceptable. See Morissette v.
United States, 342 U. S. 246 (1952). The act involves no such crime. Further, the act mirrored
the construction of the Harrison Anti-Narcotic Act, which this Court interpreted as having no
knowledge requirement. United States v. Balint, 258 U. S. 250 (1922). Possession under the act
was, instead, a “public welfare” crime. Public welfare regulations generally relate to dangerous
devices, heighten duties, and have no mens rea requirement, and the act is one such regulation.
Next, courts consistently interpreted the act as having no knowledge requirement, and Congress
did not add one in later amendments. The conviction should be affirmed.

Garnett v. State, 632 A.2d 797 (1993).

Rule of Law

Courts should not read a mens rea requirement into a statutory rape law unless the legislature
clearly intended for one.

Facts

 Raymond Lennard Garnett (defendant) is mentally handicapped.

  At the age of twenty, when the events in question occurred, his social development
mirrored that of an eleven or twelve-year-old.
 Garnett was introduced to a thirteen-year-old girl named Erica Frazier in late 1990.
 On February 28, 1991, Frazier invited Garnett into her bedroom and they engaged in
sexual intercourse.
 Maryland has in effect a statutory rape law that defines second degree rape as
sexual intercourse between a victim under fourteen and one who is four years or
more older than the victim.
 The law also defined second degree rape as sexual intercourse obtained by force and
sexual intercourse between a victim who is mentally handicapped, mentally
incapacitated, or physically helpless, and one who knows or should know about the
victim’s condition.
 The penalty for second degree rape in Maryland is imprisonment for up to twenty
years.

Issue

Should courts imply a mens rea requirement into a statutory rape law that does not specify one?

Holding and Reasoning (Murphy, C.J.)

No. Statutes are within the province of the legislature. If a legislature chooses to enact a
statutory rape statute without a requirement of mens rea, a court is not to read one in
unless the legislature clearly meant for there to be one. Modern scholars generally disapprove
of strict liability for statutory rape, since it imposes criminal liability and a heavy punishment on
those who are not morally blameworthy. However, courts are bound by the intent of the
legislature. Here, the Maryland second degree rape statute does not expressly set forth a
mens rea requirement and makes no provision for mistake of fact. It is clear, from both the
plain language of the statute and from the legislative history, that the legislature did not intend to
include a mens rea requirement. The legislature could easily have included a mens rea
requirement in the statute if it desired. Part of the statute proscribes sexual intercourse between
a victim who is mentally handicapped, mentally incapacitated, or physically helpless, and one
who knows or should know the victim is in that condition. Thus, the legislature imposed a
mens rea requirement in that subsection. But in the very next subsection, which proscribes
sexual intercourse between a victim under fourteen and another who is four or more years
older than the victim, a mens rea requirement is conspicuously absent. This demonstrates that
the legislature intentionally left out a mens rea requirement for that subsection. The legislature
considered including a mens rea requirement and explicitly rejected it. Any requirement of
mens rea must come from the legislature itself and not from a court. Clearly, the Maryland
legislature intended for this statute to impose strict liability for statutory rape.

Dissent (Bell, J.)
The legislature did indeed intend to make statutory rape a strict liability offense. However,
holding that this provision does not require any element of mens rea is contrary to the concept of
due process.

Dissent (Eldridge, J.)
It is untrue that the statute requires no mens rea at all. Strict liability offenses tend to have light
penalties. The heavy penalty imposed by the statutory rape statute is evidence that the legislature
did not intend for it to be a pure strict liability crime. With statutory rape, a defendant is
supposed to appreciate the risk that a sexual partner may be younger than they appear. That
mental appreciation is the mens rea of statutory rape. The legislature most likely did not intend to
punish one who could not even appreciate the risk due to a mental handicap or incapacity.

People v. Navarro, 160 Cal.Rptr. 692 (1979).

 Mistake of fact

Rule of Law

An honest mistake of fact is a defense to a specific intent crime regardless of whether the
mistake was unreasonable.

Facts

 Appellant Navarro (defendant) took four wooden beams from a construction site.
 He was convicted of petty theft.
 The relevant statute says that anyone who steals another person’s property with a
felonious motive is guilty of theft.
 At trial, Navarro proposed jury instructions saying that if he took the wood beams with
the good faith belief they were abandoned or that he had permission to take them, he was
not guilty of theft, even if his good faith belief was unreasonable.
 The court instead instructed the jury that if Navarro took the wood beams with the good
faith belief that they were abandoned or that he had permission to take them, he was not
guilty of theft as long as his good faith belief was reasonable.

Issue

Is a mistake of fact a defense to a specific intent crime even if the mistake was unreasonable?

Holding and Reasoning (Dowds, J.)

Yes. Specific intent crimes require a person to possess a particularized mental intent. If, due to
one’s honest mistake of fact, a person is incapable of possessing a specified mental intent,
that person cannot be guilty of that crime. This is the case even if the defendant’s mistake of
fact is unreasonable, as long as the defendant is sincere in his mistake. This is distinct from
general intent crimes, where a specific mental intent is unnecessary. In those situations, the
mistake of fact must be reasonable. Here, Navarro is accused of the crime of theft. Theft is a
specific intent crime. It requires Navarro to possess the felonious intent to steal another’s
property. In order to possess a felonious intent to steal, Navarro must have known that what
he was taking was not his to take. If for any reason, Navarro truly believed the beams were
abandoned or that he had permission to take them, he did not possess the necessary felonious
intent. At trial, the judge instructed the jury that Navarro’s mistake of fact could exonerate
him only if his belief was reasonable. This was in error. If Navarro in good faith believed the
beams were his, regardless of whether that belief was reasonable, he was incapable of
formulating the specific intent required for the crime of theft. Since an essential element of the
crime is not established, Navarro cannot be guilty. The judgment is reversed.

People v. Marrero, 507 N.E.2d 1068 (1987).

Rule of Law

One who violates a statute may not raise a good faith mistaken belief as to the meaning of the
law as a defense.

Facts

 Marrero (defendant), a federal corrections officer, was arrested in Manhattan at a social

club for unlicensed possession of a loaded .38 caliber pistol in violation of state law.
 Penal Law § 265.02(a)(1)(a) expressly exempted “peace officers,” from the statute. The
term “peace officers” was defined by the statute to include “correction officers of any
state correctional facility or of any penal correctional institution.”
 Marrero’s pretrial motion to dismiss the indictment was granted by the trial court on the
ground that he was a “peace officer” as defined under the law.
 The appellate division reversed and reinstated the indictment, holding that Marrero was
not a “peace officer” within the meaning of the exemption.
 Marrero was thereafter tried by jury and found guilty.
 The trial court rejected Marrero’s request for a jury instruction that would have allowed
the jurors to consider his reasonable belief that the statutory exemption for peace officers
applied to him as a defense.
 The appellate division affirmed the conviction and Marrero appealed.

Issue

May one who violates a statute raise a good faith mistaken belief as to the meaning of the law as
a defense?

Holding and Reasoning (Bellacosa, J.)

No. In Gardner v. People, 62 N.Y. 299 (1875), the defendants misread a statute and mistakenly
believed that their conduct was legal. The court insisted that defendants’ “mistake of law” was
not a defense to their criminal conduct. Shortly thereafter, Justice Oliver Wendell Holmes noted,
“[I]t is no doubt true that there are many cases in which the criminal could not have known that
he was breaking the law, but to admit the excuse at all would be to encourage ignorance where
the lawmaker has determined to make men know and obey, and justice to the individual is rightly
outweighed by the larger interests on the other side of the scales.” Holmes, The Common Law, at
48 (1881). Drafters of New York’s law adhered to this logic when it rejected a mistake of law
defense in § 15.20(2) of the penal law, which states: “[A] person is not relieved of criminal
liability for conduct because he engaged in such conduct under a mistaken belief that it does not,
as a matter of law, constitute an offense, unless such mistaken belief is founded upon an official
statement of the law contained in (a) a statute…(d) an interpretation of the statute…” Marrero
argues that his mistaken belief about his conduct was founded upon an “official statement” of the
law contained in the statute itself. Marrero argues that his mistaken interpretation of the
statute was reasonable in view of the ambiguous wording of the “peace officer” exemption
and that his “reasonable” interpretation of an “official statement” is sufficient to satisfy the
requirements of (2)(a). The prosecution argues that Marrero cannot claim a mistake of law
under the exemption simply by misconstruing the meaning of the statute, but rather, must
establish that the statute relied on actually permitted his conduct and was only later found to be
erroneous or invalid. Citizens should be encouraged to read and rely on official statements of the
law and not to have individuals personally question the validity and interpretation of the law and
act on that basis. If the statute was later held to be invalid, a person who mistakenly relied on the
authorizing statute would be relieved of criminal liability. If the court accepted Marrero’s
argument, mistakes about the law would be encouraged. There would be an indefinite
number of mistake of law defenses which could be devised from a good-faith, perhaps
reasonable but mistaken, interpretation of criminal statutes. Such would not serve the ends of
justice. The order of the appellate division is affirmed.
Dissent (Hancock, J.)
The maxim that “ignorance of the law is no excuse” is antiquated and does not fit with the
modern deluge of laws enacted by various legislatures. Here, it is difficult to envision a case
more squarely within the meaning of § 15.20(2)(a). Marrero’s mistaken belief that, as a federal
corrections officer, he could legally carry a loaded weapon without a license was based on the
“peace officer” provision to include those corrections officers “of any penal correctional
institution.” Marrero’s mistaken belief, based in good faith, is precisely the “mistaken belief”
founded upon an “official statement” of the law in a statute. The majority construes § 15.20(2)(a)
as requiring a defendant to show the statute permitted his conduct, not merely that the defendant
believed that it did. Such an interpretation by the majority essentially rules out any defense based
on mistake of law and defeats the only possible purpose for the statute’s enactment.

Note 1. A B C. page 172.

1.A. Jacob wanted to kill Vanessa, his wife. He drove his car at a very high speed into Vanessa,
who was holding Xavier, their infant son, in her arms. Jacob fervently hoped that Xavier would
survive the collision. The car struck Vanessa and Xavier, killing both instantly. According to
§ 2.02 of the Model Penal Code, with what form of culpability (“purposely,” “knowingly,”
“recklessly,” or “negligently”) did Jacob kill Vanessa? With what form of culpability did he kill
Xavier?
B. Roberta despised modern architecture. Therefore, she decided to burn down Sam’s “modern”
residence. Sam was inside, as Roberta knew. Roberta also knew that there was a very good
chance Sam would die in the ensuing fire. Therefore, Roberta tossed salt over her left shoulder
immediately before she torched the residence. Roberta genuinely was convinced that this would
completely protect Sam from harm. Much to her surprise, Sam burned to death in the fire. With
what MPC form of culpability did Roberta kill Sam?
C. Same as (B) but assume that Roberta was not sure if the salt-over-shoulder act would protect
Sam, but she was optimistic that it would.

Note 3 and 4. Page 208

3. How would Navarro be analyzed under Model Penal Code § 2.04? For general discussion of
the Code’s treatment of mistakes, see Peter W. Low, The Model Penal Code, The Common Law,
and Mistakes of Fact: Recklessness, Negligence, or Strict Liability?, 19 Rutgers L.J. 539 (1988).
4. Problem. Here, really, are the facts, according to defendant B: M convinced B that M was a
former Navy SEAL working for the CIA. M told B that the CIA wanted to recruit B as an agent
to participate in a complicated CIA operation, “Double White.” This operation required B to
stage a robbery of the Walmart at which B and B’s wife worked in order to “establish his outlaw
status so that he could more easily infiltrate a drug cartel.” M instructed B on how to conduct the
robbery, including telling B not wear a mask or gloves “and to make sure the cameras in the
store caught the robbery on tape so the drug cartel would know that [B] robbed the store.” B did
as instructed, believing the money he took would be immediately returned to Walmart. State v.
Blurton, 352 S.C. 203, 573 S.E.2d 802 (2002). Assume robbery is defined as “the forcible taking
of the personal property of another with the intent to permanently deprive such person of the
property.” Based on the facts described here, is B entitled to a jury instruction on mistake of
fact? If so, under what circumstances should B be acquitted of robbery?

STRICT LIABILITY CRIMES

No mens rea
 Criminal liability may be attached to an act without regard to a culpable mind IF
the actor’s conduct involves minor violations of:
o The liquor laws
o The pure food laws
o Motor vehicle and traffic regulations
o Sanitary, health laws for buildings/factories
 For these laws, the legislative purpose is to regulate, not to punish
 Prosecutor must prove only the actus reus for an offender to be criminally liable

Module 05: Causation

Requirements for a crime = actus rea + mens rea + causation

The Causation Requirement

But-for cause + legal cause = criminal liability

(but for the D’s act, result would NOT have occurred)
(D’s act is a substantial and operative cause of the harmful result)
(if D is both the but-for and the legal cause of harm to the victim, then causation is
satisfied)

Defining the but-for or “actual” cause

 Defendant acts
o Pushing someone, victim, until victim falls
 Circumstances
o Unlawful act because D wants victim to get hurt
o Lawful act because D is pulling victim out of the way of a oncoming vehicle
 Consequences/results—D causes harm
o Unlawful act  broken arm = crime
o Lawful act  broken arm = no crime

Example: cyanide poison v. heart attack

But-for test
 D’s act of pulling leads to same harmful result
 The but-for test: (threshold)
 But for the D’s act, the harmful result would not have occurred
 But for test may be satisfied but that does NOT necessarily mean a crime was committed
 Add a word that might mean that a crime was committed
 But for the D’s unlawful act, the harmful result would NOT have occurred

Direct or indirect but-for causation

 Direct causation
o D stabs victim in heart; victim dies instantly
 Indirect causation
o D pushes victim; victim falls and hits head; victim dies from cerebral hemorrhage

Readings for 9/22:

Velasquez v. State, 561 So.2d 347 (1990).
Rule of Law

Even where a defendant’s conduct is a cause-in-fact of a prohibited result, it is not the proximate
cause if the prohibited result is beyond the scope of the defendant’s conduct, or it would be
unjust to impose criminal liability.

Facts

 On April 23, 1988, Velazquez and Alvarez, agreed to race against each other in a drag
race.
 They set the start line at the beginning of the road, near a guardrail overlooking a canal,
and set the finish line a quarter-mile away from the canal.
 Velazquez and Alvarez completed the agreed-upon course.
 Alvarez then turned his car around and began racing towards the start line.
 Velazquez followed closely behind.
 Both were unable to apply their brakes in time to avoid crashing through the guardrail.
 Alvarez’s car went over the canal and he died instantly.
 Velazquez landed in the water and escaped to safety.
 At trial, the defendant was convicted of vehicular homicide.

Issue

Is a defendant’s conduct the proximate cause of a prohibited result where the result is beyond the
scope of the defendant’s conduct or it would otherwise be unjust to impose criminal liability?

Holding and Reasoning (Hubbart, J.)

No. Even where a defendant’s conduct is the cause-in-fact of a prohibited result, it is not
the proximate cause if the prohibited result is beyond the scope of the defendant’s conduct
or it would otherwise be unjust to hold the defendant criminally responsible. Traditionally,
courts have employed the “but for” test to determine whether a defendant’s action caused a
particular result. Under this test, if the result would not have occurred “but for” the defendant’s
conduct, then the defendant is not the cause-in fact. However, there is a situation where the “but
for” test fails. This is when the independent actions of two different actors are each sufficient to
cause the specified result. Consider a scenario where two people each shoot a victim and both
shots are sufficient to kill the victim. Neither actor is the “but for” cause because even if one
person had not shot the victim, the victim would still have died from the other person’s shot. In
these situations, courts employ the substantial factor test. If a defendant is a substantial factor
in producing the specified result, then they are each a cause-in-fact of the result. In J.A.C. v.
State (1979), this court held that a driver in a drag race was not the proximate cause of a
passenger’s death because the passenger’s reckless act of grabbing the steering wheel was a
superseding cause of his own death. The passenger had effectively killed himself by his own
recklessness and it would have been unjust to hold the defendant criminally responsible.
Similarly, it would be unjust to hold Velazquez criminally responsible for Alvarez’s death.
Velazquez was indeed a cause-in-fact of Alvarez’s death. If Velazquez had not agreed to
participate in the drag race, Alvarez would not have died from driving his car over the guardrail.
However, Alvarez effectively killed himself through his own recklessness. The drag race was
over when Alvarez independently extended it back to the finish line. No one forced him to
continue the race or to drive at a reckless speed. Because Alvarez primarily caused his own
death, it is unfair to hold Velazquez criminally responsible for Alvarez’s death. Velazquez is
therefore not the proximate cause of Alvarez’s death. The conviction is reversed.
Oxendine v. State, 528 A.2d 870 (1987).
Rule of Law

A non-lethal injury inflicted after a lethal injury is the cause-in-fact of a victim’s death if it
accelerates the victim’s death.

Facts

 Jeffrey Oxendine lived with his girlfriend, Leotha Tyree, and six-year-old son.
 On January 18, 1984, Tyree pushed the child into the bathtub, causing his stomach to
hemorrhage.
 The next morning, Oxendine beat his son, causing the child’s stomach to hemorrhage
again.
 The child’s abdomen swelled later that day and he stopped breathing.
 He died shortly afterwards.
 Oxendine and Tyree were charged with manslaughter.
 As part of its case-in-chief, the State called medical examiners Dr. Inguito and Dr.
Hameli to the stand.
 They both agreed that the child had suffered two distinct injuries, the first attributable to
Tyree and the second attributable to Oxendine.
  Dr. Inguito testified it was possible that both injuries contributed to the child’s death, but
was unable to determine which injury actually caused his death.
 Dr. Inguito did not discuss whether the second injury accelerated the child’s death.
 Dr. Hameli testified that the first injury was lethal and was the cause of death. He stated
that the second injury could have contributed to the child’s death, but he was unable to
state with medical certainty whether the second injury accelerated the time of the child’s
death.
 After the State made its case, Oxendine moved for a judgment of acquittal.
 The Superior Court denied his motion. Subsequently, Tyree called another medical
examiner, Dr. Hofman, who testified that if a child suffered two separate instances
of blunt force trauma to his abdomen, the second instance would accelerate the
child’s death.
 At the close of trial, Oxendine again moved for a judgment of acquittal.
 The trial court denied the motion.
 On the issue of causation, the trial court instructed the jury that Oxendine’s conduct could
be the cause-in-fact of the child’s death if it caused the child to die any sooner than he
otherwise would have.
 The jury convicted Oxendine of manslaughter. Oxendine appealed, arguing that his
motion for judgment of acquittal should have been granted because the State failed to
produce sufficient evidence in its case-in-chief to prove Oxendine’s conduct accelerated
the child’s death.

Issue

Is a non-lethal injury inflicted after a lethal injury a cause-in-fact of a victim’s death if it causes
the victim to die sooner than he otherwise would have?

Holding and Reasoning (Horsey, J.)

Yes. Causation is an essential element of a crime. Where an injury is inflicted on a victim who is
already dying from an earlier injury, issues of causation arise. According to the acceleration
theory of causation, the second injury is said to be a cause-in-fact of the victim’s death if it
causes the victim to die any sooner than he otherwise would have, even if the second injury
were non-lethal. Here, the State attempted to prove causation based on a theory of acceleration,
but failed to produce enough evidence supporting the theory in its case-in-chief. Both Dr. Inguito
and Dr. Hameli were unable to testify with medical certainty that the injury inflicted by
Oxendine accelerated the child’s death. Dr. Inguito did not testify at all as to acceleration and Dr.
Hameli was unable to give an opinion on the issue. Clearly, the State did not have a prima facie
case of acceleration at the conclusion of its case-in-chief. Although the State may have had a
prima facie case of acceleration after Dr. Hofman’s testimony, that testimony was given after the
State had concluded its case-in-chief. It therefore came too late to sustain the State’s burden of
proof during its case-in-chief. Since the State failed to produce enough evidence that
Oxendine accelerated the child’s death, the judgment of manslaughter is reversed.
Nevertheless, the trial court properly denied Oxendine’s motion for judgment of acquittal
because even though the State’s evidence was insufficient to prove manslaughter, it was
sufficient to convince a reasonable juror that he was guilty of the lesser included offense of
assault in the second degree. Therefore, the conviction of manslaughter is reversed and the case
is remanded to the trial court for judgment and resentence for assault in the second degree.

People v. Rideout (p. 234)

Rule of Law

A defendant’s conduct is the proximate cause of a victim’s injury if it is a direct and natural
result of the defendant’s actions.

Facts

 On November 23, 2003, Rideout (defendant) was driving while intoxicated and turned
into the path of Jason Reichelt’s car.
 Reichelt’s car hit Rideout’s car and spun out onto the centerline of the road.
 Neither Reichelt nor Jonathan Keiser, his passenger, was seriously hurt.
 They went to speak with Rideout on the side of the road, where Rideout’s car had
stopped.
 Reichelt then became concerned that because it was dark and his headlights were not
working, oncoming cars might hit his car.
 Reichelt and Keiser went back to Reichelt’s car in the center of the road to check if the
flashers worked.
 While standing next to the car, an oncoming car fatally hit Keiser. Rideout was
subsequently convicted of causing death as a result of driving while intoxicated. Rideout
appealed, arguing that the trial court improperly instructed the jury on causation and that
the prosecution failed to produce enough evidence to establish that Rideout caused
Keiser’s death.
Issue

Can a defendant’s conduct be the proximate cause of a victim’s injury when there is another
intervening cause?

 A superseding intervening cause need not be the only cause of an injury to break the
chain of causation.
 To determine “factual cause” court must ask “if not for the defendant’s action, would the
accident have occurred?” If the incident would not have occurred but for the defendant’s
conduct, there is factual causation.
 To determine “proximate cause” court must ask “was the victim’s injury a direct and
natural result of the defendant’s conduct?
 Defendant’s conduct is not a proximate cause if there is an intervening superseding cause.
 Whether an intervening event breaks the causal link between the defendant’s action and
the injury, is assessed based on a standard of reasonable foreseeability.

Holding and Reasoning (Sawyer, J.)

Yes. When proving causation, the prosecution must prove both factual causation and
proximate causation. While proving factual causation is fairly straightforward, demonstrating
proximate causation is not. Determining proximate causation is essentially making a policy
judgment as to whether a defendant should be held criminally liable. A defendant’s action can
be a cause-in-fact of an injury but it can be so remote a cause that it would be unfair to
hold the defendant liable. In order to find proximate causation, the prosecution must
demonstrate that the victim’s injury is a direct and natural result of the defendant’s action. An
injury is not a direct and natural result if there is an intervening cause that supersedes the
defendant’s conduct. However, not every intervening cause supersedes the defendant’s conduct.
***If an intervening cause is reasonably foreseeable, it does not supersede the defendant’s
conduct. For instance, if a defendant injures a victim and the victim is subsequently given
negligent medical care that contributes to the victim’s death, the defendant has still proximately
caused the death because negligent medical care is reasonably foreseeable. In contrast, gross
negligence or intentional misconduct is not reasonably foreseeable and would be considered a
superseding cause that relieves the defendant of liability. In this case, the jury received extensive
instructions on factual causation, but no instruction on proximate causation. The jury was
therefore improperly instructed on the issue of causation. Though this finding alone is
sufficient to require a new decision, there is no need to remand the case because the State failed
to proffer enough evidence to support a finding of proximate cause. Two particular factors lead
to the conclusion that Rideout’s conduct was not the proximate cause of Keiser’s injury. The
first factor encompasses the apparent safety doctrine, which states that once a victim
endangered by a defendant’s conduct reaches a place of apparent safety, the defendant is no
longer responsible for any subsequent harm. Here, Rideout endangered Keiser by causing
Reichelt’s car to spin out to the center of the road but Keiser reached a place of apparent safety at
the side of the road. Keiser then willingly went back onto the road, at which point he was hit by
the oncoming car. The second factor involves that of voluntary human intervention. When a
victim makes a free and deliberate decision that contributes to his death, that decision should
relieve the defendant of liability. Here, Keiser made the free and deliberate decision to return to
the car, aware of the danger of standing in a dark roadway with no lights. These two factors
support the conclusion that Rideout’s conduct was too remote a cause to justify holding
Rideout criminally liable. In light of these factors, the State has failed to present sufficient
evidence to establish that Rideout’s conduct was the proximate cause of Keiser’s death. The
conviction is vacated.

Velasquez v. State (p. 244)

Rule of Law

Even where a defendant’s conduct is a cause-in-fact of a prohibited result, it is not the proximate
cause if the prohibited result is beyond the scope of the defendant’s conduct, or it would be
unjust to impose criminal liability.

Facts

 On April 23, 1988, Velazquez (defendant) and an acquaintance, Alvarez, agreed to race
against each other in a drag race.
 They set the start line at the beginning of the road, near a guardrail overlooking a canal,
and set the finish line a quarter-mile away from the canal.
 Velazquez and Alvarez completed the agreed-upon course.
 Alvarez then turned his car around and began racing towards the start line.
  Velazquez followed closely behind.
 Both were unable to apply their brakes in time to avoid crashing through the guardrail.
 Alvarez’s car went over the canal and he died instantly.
 Velazquez landed in the water and escaped to safety. At trial, the defendant was
convicted of vehicular homicide.

Issue

Is a defendant’s conduct the proximate cause of a prohibited result where the result is beyond the
scope of the defendant’s conduct or it would otherwise be unjust to impose criminal liability?

Holding and Reasoning (Hubbart, J.)

No. Even where a defendant’s conduct is the cause-in-fact of a prohibited result, it is not the
proximate cause if the prohibited result is beyond the scope of the defendant’s conduct or it
would otherwise be unjust to hold the defendant criminally responsible. Traditionally, courts
have employed the “but for” test to determine whether a defendant’s action caused a particular
result. Under this test, if the result would not have occurred “but for” the defendant’s conduct,
then the defendant is not the cause-in fact. However, there is a situation where the “but for” test
fails. This is when the independent actions of two different actors are each sufficient to cause the
specified result. Consider a scenario where two people each shoot a victim and both shots are
sufficient to kill the victim. Neither actor is the “but for” cause because even if one person had
not shot the victim, the victim would still have died from the other person’s shot. In these
situations, courts employ the substantial factor test. If a defendant is a substantial factor in
producing the specified result, then they are each a cause-in-fact of the result. In J.A.C. v.
State (1979), this court held that a driver in a drag race was not the proximate cause of a
passenger’s death because the passenger’s reckless act of grabbing the steering wheel was a
superseding cause of his own death. The passenger had effectively killed himself by his own
recklessness and it would have been unjust to hold the defendant criminally responsible.
Similarly, it would be unjust to hold Velazquez criminally responsible for Alvarez’s death.
Velazquez was indeed a cause-in-fact of Alvarez’s death. If Velazquez had not agreed to
participate in the drag race, Alvarez would not have died from driving his car over the guardrail.
However, Alvarez effectively killed himself through his own recklessness. The drag race was
over when Alvarez independently extended it back to the finish line. No one forced him to
continue the race or to drive at a reckless speed. Because Alvarez primarily caused his own
death, it is unfair to hold Velazquez criminally responsible for Alvarez’s death. Velazquez is
therefore not the proximate cause of Alvarez’s death. The conviction is reversed.
State v. Rose (p. 248) - concurrence principle
Rule of Law

In a criminal matter, if the evidence could be reasonably interpreted in a way that proves the
accused's innocence, then the crime has not been proven beyond a reasonable doubt.

Facts

 On April 1, 1970, Henry Rose (defendant) hit a pedestrian, David McEnery, with his car
as McEnery was crossing the street.
  McEnery was thrown onto the hood of Rose's car.
 Rose stopped momentarily, McEnery rolled off the hood of the car, and Rose then drove
away from the scene of the accident.
 McEnery’s body was later found underneath Rose’s abandoned car.
 Rose was charged with leaving the scene of the accident, death resulting, and also with
negligent manslaughter.
 At trial, the only medical witness testified that McEnery could have died at the
moment of impact, but he also could have died several minutes later.
 The medical witness could not state McEnery’s exact time of death. Rose moved for a
directed verdict of acquittal on both counts, but the motion was denied.
 The trial judge instructed the jury that there was no evidence of Rose's culpable
negligence in striking McEnery with the vehicle.
 The judge further instructed that to find Rose guilty of manslaughter, the jury would need
to find that McEnery was alive immediately after being struck by Rose's vehicle, and that
Rose's conduct after the accident was culpably negligent.
 Rose was convicted on both counts.
 On appeal, Rose challenged the denial of his motion for a directed verdict of acquittal.

Issue

In a criminal matter, if the evidence could be reasonably interpreted in a way that proves the
accused's innocence, has the crime been proven beyond a reasonable doubt?

Holding and Reasoning (Roberts, C.J.)

No. In a criminal matter, if the evidence could be reasonably interpreted in a way that
proves the accused's innocence, then the crime has not been proven beyond a reasonable
doubt. A criminal defendant's motion for a directed verdict challenges the sufficiency of the
evidence in the prosecution's case. The judge must view the evidence in the light most favorable
to the prosecution, but if all the reasonable inferences in the prosecution's favor cannot establish
guilt beyond a reasonable doubt, then the case should not be submitted to the jury. Rather, the
judge must grant the defendant's motion and direct a verdict of acquittal. To support a finding
that a defendant is guilty beyond a reasonable doubt, the evidence must be consistent only with a
reasonable theory of the defendant's guilt. If the evidence could reasonably support any other
conclusion, then the defendant's guilt is not established beyond a reasonable doubt. In this
case, the medical witness was unable to state with medical certainty the time of McEnery’s
death. The evidence could support a finding that McEnery was alive immediately after the
impact and when Rose drove away with McEnery under his car, which would be consistent with
Rose's guilt. However, the evidence could equally support a finding that McEnery was killed on
impact, which would be consistent with the conclusion that Rose was not guilty. The uncertainty
as to whether McEnery was alive at the time of Rose’s misconduct therefore makes the evidence
insufficient to sustain a conviction of manslaughter beyond a reasonable doubt. Accordingly, the
trial court should have granted Rose’s motion for a directed verdict of acquittal on that count.
However, with respect to the charge of leaving the scene of the accident, Rose was seen hitting
McEnery and driving away from the scene, and McEnery's body was found under his car. This
evidence is consistent with Rose's guilt and not consistent with any other reasonable theory. The
judgment of conviction for manslaughter is reversed, and Rose's exceptions to the rulings on the
charge for leaving the scene of an accident are overruled.

BURDEN OF PROOF AND PRESUMPTIONS:

***prosecution bears the burden of production and persuasion with respect to each offense
element. The prosecution must not only come forward with some evidence supporting its
allegation that the defendant engaged in certain criminal conduct (burden of production), it also
must then convince the fact finder at trial (often a jury) that there is sufficient evidence to
convict, i.e., to find that the defendant in fact engaged in that conduct (burden of persuasion).
 To prove an element beyond a reasonable doubt means that the element has been
established beyond a doubt that would cause a reasonable person to hesitate to act.
 Innocence of the defendant is assumed

CAUSATION
 Comes in 2 varieties
 Factual cause (aka “but-for”) AND legal cause (proximate cause)
 For act to count as a cause in the eyes of criminal law it MUST be both factual and legal
cause.

Model Penal Code 2.03

1) Conduct is the cause of a result when:
(a) it is an antecedent but for which the result in question would not have
occurred; and 

(b) the relationship between the conduct and result satisfies any additional
causal requirements imposed by the Code or by the law defining the offense.

a. the acceleration theory

b. the aggravation theory
c. the substantial factor theory
 2 or more defendants, acting independently not in concert with each other commit 2
separate acts each of which is sufficient to bring about the prohibited result
 Each is a but-for cause of a prohibited result if the conduct was a substantial factor in
bringing about the result
d. intervening/superseding causes and their relation to criminal culpability

CAUSATION ANALYSIS
 If result crime, then causation becomes an issue.
 If NOT a result crime, then causation is not an issue and can bypass this analysis.
  If causation is an issue, 2 basic steps.
 (1) is D act BUT FOR cause?
 If not, analysis ends
 If yes, the BUT FOR causes are put through the sleve of a legal analysis and we move to
step two.
 (2) if D act LEGAL cause?
 If yes, causation is satisfied UNLESS there is an act that breaks the causal chain so that
defendant is no longer the but for AND legal cause of the prohibited act.
 BUT not all intervening acts will break the chain. Only superseding intervening acts
break the chain and free the defendant from criminal culpability for the prohibited result.

Step two—legal causation (aka proximate causation)

 Were the defendant’s actions a sufficiently direct cause of the harm to warrant criminal
liability (MPC)?
 Was the harm foreseeable to the defendant?
 Was the harm the natural and probable consequence of the defendant’s act?
 Was the defendant’s act a substantial (more than trivial; not de minmus) and operative
cause (not necessarily THE sole cause, still existing) of the prohibited result? (if death
more than a year and a day—causation broken)
 OR
 Should intervening acts break the chain of causation?

How to determine what might be an intervening cause?

 Direct cause
 Intervening causes
- What was the nature of the intervening cause?
- Was it foreseeable?
- Who had control over it?
- Was it volitional by the actor?
- Was the intervening actor blameworthy (policy determinations in the criminal law
to restrict culpability)?
- How much of the harm/ result is attributable to the intervening cause v. how much
is attributable to the original act of the defendant?
Defining “sufficiently” direct:
What is an intervening cause?
Joseph won’t give up. For 3 months he has been asking Emely to date him, appearing at her
home and her workplace. She has steadfastly refused, having no interest in Joseph and viewing
him as an annoyance.
One evening, Joseph appears at her home and demands that she come out to discuss the situation
with him. She agrees. They are standing together on Emely’s porch, talking, when a lightning
bolt comes out of the blue and strikes Emely dead. Joseph is charged with murder.
Is Joseph legally responsible for Emely’s death?
a. Yes because she wouldn’t have been standing on the porch but for John’s demand that
she do so. –this is BUT FOR cause NOT legal cause
b. d. No because Joseph’s actions were not the legal cause of Emely’s death.—correct
answer (there was an intervening cause that broke the chain of causation) The nature of
the cause was a lightning bolt. Mother nature had control of the lightning bolt and not
Joseph. The lightning bolt was not a volitional act caused by the actor as this is not
something that you can predict or cause unless Joseph intentionally gave Emely a rod
during a storm. The intervening actor is blameworthy. The result in its entirety is
attributable to the intervening cause—mother nature. Defendant’s actions were trivial at
best. He did not force Emely outside of her house. Emely willingly placed herself outside
her home. Further being struck by a lightning bolt is not something that is extremely rare,
thus may not have been foreseeable to the defendant that asking Emely to come outside
her home would result in a random lightning bolt to strike her. Joseph’s request was not a
sufficiently direct cause of her death. He did not make it anymore possible for her to be
struck my lightning.

INTERVENING CAUSE—
VICTIMS OWN ACTS:
Ordinarily—will not break causal chain that leads away from defendant. victim jumps out
window to get away from defendant who is assaulting her and she does. THIS IS A
RESPONSIVE INTERVENING ACT. Who had control? Who ought to be punished—anyone?
(victim Howard Beach case)
Victims conditions—victim has a particular vulnerability or fragility; the “eggshell victim.” Take
the victim as you find them. Not an intervening situation that affects causation.

Medical maltreatment
Defendant causes initial injury; medical maltreatment leads to death. Is defendant the actual and
proximate cause?
Is ordinary medical maltreatment an intervening or a superseding intervening cause? NO, it is
foreseeable. The doctor does NOT break the chain. Defendant who cause the original injury will
be the factual and legal cause even if a doctor’s negligence caused the death. Harm caused by
defendant; thus doctor’s negligence is foreseeable. Ordinary malpractice is foreseeable.

Ordinary malpractice will not break the chain.

BUT gross and aggreges malpractice will break the chain.

Proximate causation factors

1. de minimis contribution—court refuses to consider trifling aka trivial matters.
Example:
De minimis contribution—defendant’s conduct is NOT a substantial/operative factor
 D strikes V. Injury is not life threatening. It does, however, require medical
attention. V, therefore, drives himself to the doctor. On the way, his car is struck
by falling rocks and V dies.
o Is D the actual cause of V’s death? Yes, but for D injuring V, he would
not have been on that road.
o Is D the proximate cause of V’s death? No, it was not foreseeable to D
that V’s car would be struck by falling rocks.
o Should D be criminally liable for V’s death? No, although D was an
actual (but-for) cause of v’s death, he was not the legal or proximate
cause. His conduct was a de minimis cause and therefore, does not
satisfy legal causation requirement.
2. foreseeability of the intervening cause
reasonably foreseeable—no escape from liability
unforeseeable—becomes a superseding intervening cause
o distinguishing the intervening causes to determine proximate causation
a. dependent or RESPONSIVE intervening cause—an act that occurs in reaction or
response to D’s prior wrongful conduct. One which is in response to D’s initial
voluntary act/omission. A responsive intervening cause does not disrupt the causal
chain unless it is “abnormal.” Abnormality includes gross (but not regular)
negligence of a third party (such as a hospital). Regular/ ordinary negligence is
foreseeable. Unlike torts, criminal law does not have a cut-off rule for suicide—it
may not be “abnormal.”

Example:

Kathleen operates her boat at an unsafe speed, causing it to capsize. Maribel, a drunken
passenger in the boat, drowns while foolishly attempting to swim to shore.
 Is Kathleen criminally liable for Maribel’s death? YES. A responsive intervening cause
will not relieve the initial wrongdoer of criminal responsibility, unless the response was
not only unforeseeable but also bizarre or highly abnormal.
b. independent or COINCIDENTAL intervening cause—a coincidental intervening
cause relieves the original wrongdoer of criminal responsibility, unless the
intervention was foreseeable. Does not occur in response to the initial wrongdoer’s
conduct. Connection: D places the V in a situation where the intervening cause could
act independently upon him. Being in the wrong place at the wrong time. Will break
proximate cause UNLESS it was foreseeable.
Example:
Lauren wounds Kevin. Kevin is taken to a hospital for medical treatment, where he is
killed by Camille, a knife wielding maniac who is running through the hospital killing
everyone in sight.
3. intended-consequences doctrine
a. applies only to intentional crimes: a voluntary act intended to bring about what in fact
happens and in the manner in which it happens will generally be a legal cause.
Intended consequences can NEVER be too remote.
Example:
Matt intending the death of Avi (his child), furnished poison to Will, a home nurse,
falsely informing Will that the substance was medicine to be administrated to Avi. Will
did not believe that Avi needed the medicine, so he did not administer it. Instead, he
placed the substance on a mantel where, sometime later, Marie (a young child)
discovered it and gave it to Avi, killing Avi. Matt was prosecuted for murder.
Who is/are the but-for cause of Avi’s death? Matt, Will and Marie are all but-for or actual
causes of Avi’s death.
Who is the legal cause—consider the intervening cause. Matt remains the legal cause
under the intended consequences theory and because the result was foreseeable; his
conduct achieved what he intended.
4. apparent-safety doctrine—Did victim reach a place of “apparent safety” and then
abandon it?
5. fee, deliberate, informed human, intervention—(think Velazquez/ Rideout cases) was the
intervening cause a “voluntary, knowing and intelligent” action by another?
6. omissions—think Oxendine

MODULE 06: Homicide

People v. Eulo, 472 N.E.2d 286 (1984).—(p. 264)

Rule of Law

In homicide proceedings, courts may use brain-based criteria in addition to traditional

cardiorespiratory criteria as a means of determining when death occurs.

Facts

Eulo (defendant) shot a person in the head, causing the victim to go unconscious. At the hospital,
the victim was placed on an artificial respirator to continue breathing. It was later determined
that the victim’s brain had irreversibly stopped functioning, and that the victim was therefore
dead. The victim was taken off the respirator and the victim’s body underwent transplantation
procedures for organ donation. At trial, the court did not instruct the jury on when death
occurred. It did instruct the jury that the transplantation procedures could have been causes of
death that superseded Eulo’s conduct. The jury convicted Eulo of manslaughter. Eulo appealed,
arguing that the trial court should have instructed the jury that death occurs when there is an
irreversible cessation of breathing and heartbeat.

Issue

In homicide proceedings, may courts determine when death occurs using brain-based criteria
rather than the traditional cardiorespiratory criteria?

Holding and Reasoning (Cooke, C.J.)

Yes. A defendant commits homicide if he causes the death of another. Defining precisely when a
person dies is necessary in a homicide proceeding because criminal liability does not attach until
a person has in fact died. Traditionally, the medical community has used cardiorespiratory
criteria, defining death as the irreversible cessation of breathing and heartbeat. But recently, there
has been a shift towards defining death as the irreversible cessation of brain activity. Advances in
science reveal that once the brain dies, all bodily functions, including cardiorespiratory
functions, cease as well. Although artificial respirators may prolong breathing and heartbeat, the
body can no longer independently sustain breathing and heartbeat after brain death.
Consequently, a number of jurisdictions now view brain activity as a more reliable indicator of
life. In this jurisdiction, the legislature has not expressly determined whether to define death
according to traditional cardiorespiratory criteria or brain-based criteria. Legislative history
shows that the legislature had several opportunities to officially define death as the irreversible
cessation of brain functions, but did not take action. However, that does not prevent this court
from adopting brain-based criteria as a means of determining death. There is no evidence that
the legislature disapproves of using brain-based criteria to determine death, and the
legislature has emphasized that in the absence of a legislative pronouncement defining a
term, courts should interpret the term according to its fair meaning. In light of medical and
scientific advances, this court finds that determining death according to brain-based
criteria is not unfaithful to the legislature’s perception of death. While death is ordinarily
determined according to cardiorespiratory criteria, brain activity may serve as supplemental
criteria to help determine when death occurs. In this case, Eulo argues that he can only be guilty
of homicide if he caused the irreversible cessation of the victim’s heartbeat. Eulo contends the
trial court erred because it failed to instruct the jury on this matter. Without such instruction,
Eulo argues, the jury may have improperly convicted him for causing the victim’s brain death,
rather than causing the victim’s irreversible cessation of heartbeat and breathing. It is true that
the trial court did not instruct the jury on how to determine when death occurs. The judge did
instruct, however, that the transplantation procedures could be a cause of the victim’s death that
superseded Eulo’s conduct. By implication, the jury was instructed that the victim was not dead
at the time he was declared brain dead, since the subsequent transplantation procedures were
possible causes of death. While it would have been ideal if the trial court had given instructions
as to both cardiorespiratory criteria and brain-based criteria, the failure to do so was not improper
because this court recognizes theories of homicide based on either set of criteria. Therefore, the
jury’s finding that Eulo’s conduct was the proximate cause of death and that the transplantation
procedures were not superseding causes of death was not in error.

State v. Guthrie, 461 S.E.2d 163 (1995).—(p. 270)

Rule of Law

To constitute first-degree murder, the defendant must have had some period of time
between the development of the intent to kill and the actual killing to indicate that the act
was premeditated and deliberate and not impulsive.

Facts

Dale Edward Guthrie (defendant) worked as a dishwasher at a restaurant. One evening, several
of his co-workers began poking fun at him, including Steven Todd Farley who snapped Guthrie
with a dishtowel several times. After Farley snapped Guthrie in the nose with the dishtowel,
Guthrie became enraged, took a knife out of his pocket and stabbed Farley in the neck, killing
him. Guthrie suffered from a host of psychiatric problems, including panic attacks, chronic
depression and borderline personality disorder. Guthrie’s father testified that his son also
obsessed about his nose and would stand in front of a mirror on a daily basis staring at his nose.
Guthrie testified he suffered an “intense” panic attack immediately before the stabbing. The trial
judge instructed the jury in instruction 8 that “…to constitute a willful, deliberate, and
premeditated killing, it is not necessary that the intention to kill should exist for any particular
length of time prior to the actual killing; it is only necessary that such intention should have
come into existence for the first time at the time of such killing, or at any time previously.” Also,
the judge gave jury instruction 10 which stated “…in order to constitute a “premeditated murder
an intent to kill need exist only for an instant.” Jury instruction 12 stated “[w]hat is meant by the
language willful, deliberate, and premeditated is that the killing be intentional.” The jury
convicted Guthrie of first-degree murder and he appealed, arguing that the collection of
instructions was improperly given to the jury.

Issue

To constitute first-degree murder, must the defendant have had some period of time between the
development of the intent to kill and the actual killing to indicate that the act was premeditated
and deliberate and not impulsive?

Holding and Reasoning (Cleckley, J.)

Yes. The jury instructions given by the trial judge failed to adequately inform the jury of the
difference between first-degree murder, which requires premeditation and deliberation, and
second-degree murder, which may only require an intent to kill. To allow the prosecution to
prove premeditation and deliberation by only showing that the intent came “into existence for the
first time at the time of such killing” eliminates the distinction between the two degrees of
murder. Although there is no specifically-defined period of time which distinguishes between the
two, there must be a period of time between the formation of the intent to kill and the actual
killing to constitute first-degree murder. Such period of time indicates the killing was calculated
and by design. There must be an opportunity for some reflection on the intention to kill after the
intent is formed by the accused. An elaborate plan or scheme is not needed for first-degree
murder, only that there be evidence that the defendant considered and weighed his decision to
kill. Any other spontaneous, but intentional, killing is second-degree murder. The judgment of
conviction is reversed and the matter is remanded for a new trial. (it is not 1st degree murder)
killing wasn’t premediated or deliberate.

Midgett v. State, 729 S.W.2d 410 (1987).—(p. 275)

Rule of Law

The crime of first degree murder generally requires the killing to be premeditated and deliberate.

Facts

Appellant Midgett (defendant) was charged with the first degree murder of his eight year old son.
At trial, Midgett’s daughter testified that several days before the son died, Midgett had been
heavily drinking and began beating the son in the stomach and back with a closed fist. She had
witnessed Midgett choking the son on several prior occasions. She attributed bruising on the
son’s body over the past six months to Midgett. On the day of the son’s death, Midgett took the
body to the hospital. The medical examiner concluded that the son died due to an abdominal
hemorrhage caused by blunt force trauma. The trauma was consistent with injuries caused by a
human fist. Midgett was convicted of first degree murder. Midgett appealed.

Issue

Does the crime of first degree murder require the killing to be premeditated and deliberate?

Holding and Reasoning (Newbern, J.)

Yes. Generally, a defendant may not be convicted of first degree murder unless he has killed
with premeditation and deliberation. In some jurisdictions, legislatures have made exceptions.
These jurisdictions allow convictions for first degree murder when death results from child
abuse, even if the death is not premeditated or deliberate. But unless this jurisdiction’s law is
amended to forego the elements of premeditation and deliberation, this court must require them.
Here, there was sufficient evidence to show that Midgett had been abusing his son for at least six
months. This evidence demonstrates that Midgett intended to abuse the child. It may even
demonstrate that he developed an intent to kill the son while in a drunken rage as he disciplined
the child. But the evidence in no way demonstrates that Midgett killed the child with
premeditation and deliberation. There was thus insufficient evidence to sustain Midgett’s
conviction of first degree murder. There was, however, sufficient evidence to sustain a
conviction of second degree murder, based on Midgett’s intent to cause serious physical injury.

Dissent (Hickman, J.)
The degree of murder is an issue for the jury to decide. The jury could have concluded that
Midgett’s continuous abuse of the child amounted to an intent to kill the child.

State v. Forrest (p. 278)

Rule of Law

A conviction for murder in the first degree requires substantial evidence of premeditation and
deliberation, which may be proven through circumstantial evidence.

Facts

On December 22, 1985, John Forrest (defendant) admitted his father to the hospital. Forrest’s
father was deemed terminally ill shortly thereafter. On December 24, Forrest went to visit his
father. While alone with him, Forrest began crying and told his father he loved him. His father
began coughing and made gurgling noises. Forrest then removed a pistol from his pocket and
fired it against his father’s head. He fired the gun a total of four times, cocking the gun each time
before firing. Forrest then walked out of the room and dropped the gun, crying and appearing
distressed. He openly admitted to shooting his father and said he promised his father he
would not let him suffer. After trial, the jury convicted Forrest of first degree murder. Forrest
appeals, arguing that the court should not have submitted the issue of first degree murder to the
jury because there was insufficient evidence on premeditation and deliberation to reach a jury.

Issue

Does a conviction for murder in the first degree require substantial evidence of premeditation
and deliberation?

Holding and Reasoning (Meyer, J.)

Yes. Premeditation and deliberation are essential elements of the crime of first degree
murder, and both must be proven by substantial evidence. However, premeditation and
deliberation are mental processes, and direct proof is difficult to acquire. Premeditation and
deliberation are typically proven through circumstantial evidence. There are six factors a court
looks to in order to determine whether a killing was premeditated and deliberate. These include:
(1) a lack of provocation from the victim; (2) the actions and words of the defendant before and
after the killing; (3) any threats on the part of the defendant before or during the killing; (4)
whether the victim and the defendant had a poor history; (5) whether there was an additional
lethal attack after the victim was already helpless; and (6) evidence of brutality. Here, there was
substantial evidence that Forrest killed his father with premeditation and deliberation. Just prior
to the killing, the father did nothing to provoke Forrest to kill him. The father was merely lying
in his hospital bed when Forrest shot him. Furthermore, Forrest shot his father four times with a
gun that required him to cock the gun each time before firing. Forrest’s own words after the
killing are particularly revealing. He said he had previously considered killing his father to end
his suffering, and that he had promised his father he would not allow him to suffer. Based on
Forrest’s statements and other circumstantial evidence, there was enough evidence on
premeditation and deliberation to support the court’s decision to submit the issue of first degree
murder to the jury.
Girouard v. State (p. 283)

Rule of Law

For provocation to be adequate to mitigate murder to manslaughter, the provocation must be

calculated to inflame the passion of a reasonable person and tend to cause him to act for the
moment from passion rather than reason.

Facts

Steven Girouard (defendant) and his wife Joyce had been married for about two months when
they got into a heated argument. During the argument Joyce, who was just over five feet tall
and weighed 115 pounds, repeatedly insulted Steven, who was over six feet tall and weighed
over 200 pounds. Joyce told Steven she did not love him and had never wanted to marry
him, and she demanded a divorce. Joyce also informed Steven that she had filed charges
against him for abuse with his commanding officer in the Army and told him he would
probably be court-martialed. Steven lunged at Joyce with a kitchen knife and stabbed her 19
times, killing her. Steven was immediately distraught at what he had done. When the police
arrived, they found Steven wandering around outside his apartment building stating that he could
not believe what he had done. At trial, a psychologist testified that Steven had mental issues
including an inability to understand his own capacity to express hostility and a need for
acceptance and love. Steven was convicted of second-degree murder. He appealed, arguing that
Joyce’s provocation should mitigate his murder conviction to manslaughter.

Issue

For provocation to be adequate to mitigate murder to manslaughter, must the provocation be

calculated to inflame the passion of a reasonable person and tend to cause him to act for the
moment from passion rather than reason?

Holding and Reasoning (Cole, J.)

Yes. Voluntary manslaughter is an intentional homicide committed in a sudden heat of passion,
caused by adequate provocation, before a reasonable opportunity for the passion to cool. Some
factors may mitigate murder to manslaughter because they constitute adequate provocation. For
provocation to be adequate to mitigate murder to manslaughter, the provocation must be
calculated to inflame the passion of a reasonable person and tend to cause him to act for the
moment from passion rather than reason. Under the reasonable-person standard, the defendant's
individual mental issues may not be taken into account in determining whether provocation was
adequate. Traditionally, factors constituting adequate provocation have included only extreme
assault or battery upon the defendant, mutual fighting, the defendant’s illegal arrest, injury or
serious abuse of a close relative of the defendant, or the sudden discovery of a spouse’s adultery.
In general, words alone are not adequate provocation, although words may be sufficient if
accompanied by conduct that demonstrates the intention and ability to cause bodily harm to the
defendant. In this case, although Joyce provoked Steven, the provocation was insufficient to
cause a reasonable man to stab his provoker 19 times. Under the reasonable-person standard,
Steven's unique mental issues are irrelevant to whether the provocation was adequate.
Furthermore, even assuming that words may constitute adequate provocation if
accompanied by the intent and ability to cause the defendant physical harm, the size
disparity between Joyce and Steven indicates that she did not have the ability to harm him.
It cannot be the case that one spouse may kill the other to end a verbal dispute and be convicted
only of manslaughter. The judgment of conviction is affirmed.

People v. Casassa (p. 300)

Rule of Law

A New York defendant may reduce a charge of murder to manslaughter if he is able to show
“extreme emotional disturbance” and that there was a reasonable explanation or excuse for his
actions as determined by the court from both a subjective and objective analysis.

Facts

Victor Casassa (defendant) lived in the same apartment complex as Victoria Lo Consolo. Shortly
after they met, they began dating socially for a brief period. After Lo Consolo told Casassa that
she was not “falling in love” with him, Casassa became devastated and undertook bizarre acts
such as breaking into her apartment while she was away and lying in her bed naked for a while.
During the break-in, Casassa was in possession of a knife “because he knew that he was either
going to hurt Victoria or Victoria was going to cause himself to commit suicide.” After Lo
Consolo rejected Casassa’s last attempt to win her over, he took out a knife and stabbed her
several times. Casassa then dragged her body into the bathroom and submerged her in a tub full
of water to “make sure she was dead.” Casassa was charged with second-degree murder and
waived his right to a jury trial. The sole issue at trial was whether, at the time of the killing, he
acted under the influence of “extreme emotional disturbance.” Defense counsel presented one
witness, a psychiatrist who testified that Casassa became obsessed with Lo Consolo. The
prosecution produced several rebuttal witnesses including a psychiatrist who said that although
Casassa was emotionally disturbed, he was not under the influence of “extreme emotional
disturbance.” The trial court concluded that the appropriate test to determine whether Casassa
was under the influence of “extreme emotional disturbance” was to examine the totality of the
circumstances from the perspective of Casassa as well as from the point of view of a reasonable
person. The court found Casassa’s emotional reaction at the time of the killing was so peculiar
that it could not be considered reasonable so as to reduce the charge of second-degree murder to
manslaughter. Casassa was convicted of second-degree murder and he appealed.

Issue

May a New York defendant reduce a charge of murder to manslaughter if he is able to show
“extreme emotional disturbance” and that there was a reasonable explanation or excuse for his
actions as determined by the court from both a subjective and objective analysis?

Holding and Reasoning (Jasen, J.)

Yes. Under New York law it is an affirmative defense to the crime of second-degree murder if a
defendant can prove that he “…acted under the influence of extreme emotional disturbance for
which there was a reasonable explanation or excuse.” An individual acting under “extreme
emotional disturbance” does not necessarily mean that a defendant engaged in a spontaneous
action. Rather, it is quite possible that significant mental trauma affected a defendant’s mind over
a period of time. In People v. Patterson, 39 N.Y.2d 288 (1976), the court noted that while the
extreme emotional disturbance defense is permitted if a defendant shows that his actions were
caused by a mental infirmity not reaching the level of insanity, not all mental infirmities
constitute extreme emotional disturbance. The drafters of the defense as stated in the Model
Penal Code (MPC), from which the state’s law was modeled, noted that (1) the particular
defendant must have acted under the influence of extreme emotional disturbance, and (2) there
must have been a reasonable explanation or excuse for such disturbance. To determine
“reasonableness,” the court views the defendant’s situation from both a subjective and objective
stance. One requirement involves a determination that the particular defendant did act under
extreme emotional disturbance and not a sham. The other component involves a determination of
whether there is a reasonable explanation or excuse for the emotional disturbance. The
determination of whether there was a reasonable explanation or excuse involves both a
subjective analysis, viewing the internal situation in which the defendant found himself and the
circumstances as he perceived them to be however illogical or inaccurate, and an objective
standpoint to determine whether the explanation for the disturbance was reasonable. Here, the
trial court correctly applied the objective and subjective tests to Casassa’s extreme emotional
disturbance defense. The judge accepted that Casassa killed Lo Consolo while under the
influence of “extreme emotional disturbance.” Then the court considered other mitigating factors
offered by Casassa, but found that the excuse was so peculiar to him that it was unworthy of
reducing the charge of murder to manslaughter. The judgment of conviction is affirmed.

People v. Knoller (p. 314)

Rule of Law

A finding of implied malice requires that one act with a conscious disregard to human life.

Facts

Marjorie Knoller (defendant) and her husband Robert Noel were attorneys who acquired four
large dogs from a client. A veterinarian who examined the dogs for Knoller warned her that the
dogs lacked any training or discipline and that they would be dangerous to keep at a home. He
also implied that the dogs might attack humans. Despite the warnings, Knoller and Noel picked
up the dogs from their former owner. While with the former owner, two of the dogs had attacked
and killed the owner’s sheep and cat, and another ate his own doghouse. The former owner
expressed her concern about all the dogs and suggested that two of them be shot. On April 30,
2000, Knoller and Noel brought two of the dogs to stay at their apartment. On January 26, 2001,
the dogs attacked and killed Diane Whipple, who lived on the same floor. Between the date
Knoller and Noel brought the dogs home and the date of Whipple’s death, there were
approximately thirty incidents in which the dogs were out of control or displayed threatening
behavior. Knoller was charged with second degree murder. The jury convicted Knoller based on
a theory of implied malice. Knoller moved for a new trial and the trial court granted the motion.
The trial court held that implied malice required a finding that Knoller was aware of the high
probability that her conduct would cause another’s death, and ruled that Knoller lacked this
awareness. The Court of Appeal reversed the decision granting a new trial, holding that implied
malice only requires a conscious disregard of the risk of serious bodily injury to another, not an
awareness that another person would likely die. The Court of Appeal ordered the trial court to
reconsider its decision on Knoller’s motion for retrial in light of its definition of implied malice.
Knoller appealed the Court of Appeal’s decision.

Issue

Does a finding of implied malice require one to act only with a conscious disregard for the risk
of serious bodily injury to another rather than with a conscious disregard for human life?

Holding and Reasoning (Kennard, J.)

No. A murder conviction requires a finding of malice, which can be express or implied. A
finding of implied malice requires that one act with a conscious disregard for human life. The
Court of Appeal erroneously ruled that implied malice only requires a conscious disregard for the
risk of serious bodily injury. It based its definition of implied malice on People v. Conley, 411
P.2d 911 (1966), in which this court said an act that is likely to cause either serious injury or
death demonstrates malice. However, the ruling in Conley dealt with a defendant’s action,
whereas implied malice concerns a defendant’s mental state. Therefore, Conley is not applicable
to the issue of what type of mental state a defendant must possess for a finding of implied
malice. This court has consistently stated in cases before and after Conley that implied malice
requires an awareness of a risk to human life, not merely of serious bodily injury. Thus, the trial
court properly required that the defendant act with a conscious disregard to human life.
Nevertheless, the trial court still erred in defining implied malice. The proper test for implied
malice is laid out in People v. Phillips, 414 P.2d 353 (1966). The Phillips test requires that a
defendant have awareness of engaging in conduct that endangers the life of another. Here, the
trial court set the bar too high and required that a defendant have an awareness that her conduct
had a high probability of resulting in death. The Court of Appeal set the bar too low and
permitted a conviction of second degree murder where the defendant knew his or her conduct
risked causing death or serious bodily injury. Under the proper test (that is, the Phillips test),
malice is implied when a defendant acts with conscious disregard for life. Because it based its
order granting a new trial on an erroneous definition of implied malice, the trial court must
reconsider its order granting a new trial in accordance with this court’s opinion. (charged with
manslaughter involuntary not reckless indifference 2nd degree murder)

State v. Williams (p. 322)

Rule of Law

If a person commits ordinary negligence, i.e. fails to exercise ordinary caution that a reasonable
man would exercise under the same or similar circumstances, and such negligence proximately
causes the death of another, the person is guilty of involuntary manslaughter.

Facts

Walter Williams (defendant) was a 24-year-old Sheshont Indian with a sixth-grade education.
His wife, Bernice (defendant) was a 20-year-old with an eleventh-grade education. Bernice had
two young children from a prior relationship, including a 17-month-old son. Walter assumed
parental responsibility for the children along with Bernice to provide clothing, care, and medical
attention. For a two-week period, the infant had an infected tooth which went untreated other
than aspirin administered by Walter and Bernice. Eventually, the infection spread to the infant’s
mouth and cheeks and eventually became gangrenous. The condition, accompanied by the
infant’s inability to eat, brought on malnutrition and lowered the child’s resistance. Shortly
thereafter, the child died from pneumonia. Walter and Bernice were charged with manslaughter
for negligently failing to provide the child with necessary medical attention. At trial, Walter and
Bernice testified that they did not fully realize how ill the infant was and that they did not seek
medical attention out of fear that the state’s child services department would take the infant away
from them. After a bench trial, the trial judge found Walter and Bernice guilty of involuntary
manslaughter (recklessness). Walter and Bernice appealed.

Issue

If a person commits ordinary negligence, i.e. fails to exercise ordinary caution that a reasonable
man would exercise under the same or similar circumstances, and such negligence proximately
causes the death of another, is the person guilty of involuntary manslaughter?

Holding and Reasoning (Horowitz, C.J.)

Yes. If an individual fails to take the kind of caution that a reasonable man would exercise under
similar circumstances, regardless of his ignorance, good intentions and good faith, he is guilty of
ordinary negligence. If such negligence proximately causes the death of another, then the
individual is guilty of manslaughter. Here, Walter and Bernice failed to take the kind of caution
that such a reasonable man would exercise under similar circumstances. The remaining issue is
whether their failed actions proximately caused the death of their child. If the duty of the
Williams to seek medical attention for the infant was not activated until after it was too late to
save the life of the child, failure to furnish medical care could not be said to have proximately
caused the child’s death. Timeliness in the furnishing of medical care also must be considered in
terms of “ordinary caution.” A reasonable amount of discretion is afforded to parents in
conducting the welfare of their children. Parents do not need to seek medical attention for every
sniffle. The standard is at what time would an ordinarily prudent person in the same
situation deem it necessary to seek medical attention for an ill child. People v. Pierson, 68
N.E. 243 (1903). Here, the infant’s infection lasted for about two weeks. During that period of
time, Walter and Bernice had noticed that the child was fussy, could not keep food down, that a
cheek was swelling and eventually turned a “bluish” color. Walter and Bernice gave the child
aspirin during this critical two-week period thinking that the swelling would go down. The
evidence produced at trial showed that the Williams did not understand the seriousness of the
infant’s symptoms. Further, there was no evidence that they were physically or financially
unable to obtain the services of a physician to treat the child. There was, however, sufficient
evidence to prove that Walter and Bernice were sufficiently put on notice concerning the
child’s symptoms and lack of improvement during the two-week period to have required
them to obtain medical care for the child. Their failure to do so is ordinary negligence. The
judgment of conviction is affirmed. NEVER DEPRIVED HEART MURDER BUT
MANSLAUGHTER.

State v. Sophophone (p. 354)

Rule of Law

Where a killing is the lawful act of a non-felon, the felony-murder rule is inapplicable.
Facts

Sophophone (defendant) and three other men broke into a residence. The resident was home and
called the police. When they arrived, one officer apprehended Sophophone while another chased
down one of Sophophone’s accomplices, Sysoumphone. While the other officer held
Sysoumphone to the ground, Sysoumphone fired a gun at him. The officer returned fire and
killed Sysoumphone. Sophophone was charged with felony-murder based on the officer’s killing
of Sysoumphone.

Issue

Is the felony-murder rule applicable when the killing is performed lawfully by a non-felon?

Holding and Reasoning (Larson, J.)

No. The felony-murder rule is not applicable where a non-felon is responsible for the resulting
death. The majority of jurisdictions have arrived at this conclusion by following the “agency”
approach. Under this approach, the act of killing is imputed to the defendant when committed by
an accomplice. In contrast, the acts of an independent third-party are not imputed to a defendant
because there is no agency between the defendant and the third-party. Other jurisdictions follow
the “proximate causation” approach. They reason that if the killing committed by a non-felon is
the result of a sequence of events set forth by the defendant, the defendant is ultimately
responsible. Therefore, the killing by a non-felon should be attributable to the felon and should
serve as the basis of a felony-murder charge. This court adopts the agency approach based on the
relevant statute defining felony-murder. The statute says that murder occurs when a death results
from the commission or attempted commission of a felony, or during immediate flight from the
scene. The language of the statute criminalizes the actions of the defendant, not the lawful
actions of an officer. Here, an officer lawfully killed in the line of duty when he shot
Sysoumphone. Under a strict reading of the statute, the officer’s lawful killing of Sysoumphone
should not be imputed to Sophophone.

Dissent (Abbott, J.)
The felony-murder statute does not mandate this court’s adoption of the agency approach. All the
statute requires is that a killing occur, and that the killing result from the commission of a felony.
It does not require that the killing be performed by a co-felon. Therefore, the facts of this case
satisfy the requirements of the felony-murder statute.

POWERPOINT: HOMICIDES
 murder, manslaughter, criminally negligent

What is a homicide?
 A killing
 An unlawful killing
 Of a human being

Example of a rule for homicide

RULE: Homicide is defined as an unlawful killing of a human being. Unlawful is defined as… it
is a killing not authorized by other statutes. Police officers generally do not commit unlawful
killings. There are 4 different types of homicides under the common law, they are malice
aforethought homicides which include: intent to kill, intent to cause serious bodily harm,
depraved heart murder, and intent to commit inherently dangerous felony (aka felony murder).
They are all usually second-degree murder in most jurisdictions.

Actus reus + causation (i.e. result): conduct that causes the death

What element is missing?

 Mens rea
Under common law—mens rea for ALL murders is MALICE AFORETHOUGHT
Common law murder
 Mens rea—Malice aforethought
First degree murder
Typically defined as:
o A deliberate and premediated murder OR
o More specifically as a murder committed in a particular way (through the use of
poison, lying in wait) OR
o As an intentional killing committed during the perpetuation of an intentional
felony OR
o Because there’s an aggravating factor

common law murder

second degree murder
Malice Aforethought
Intent to Kill Intentional
Intent to CauseRecklessDepraved Heart Transferred/Intent/Reckless
Intent to Commit
Serious Bodily Harm Reckless Inherently Dangerous
Purposefully Indifference to Felony
Purposefully
Knowingly human life
Knowingly

Degree of murder?
 The only deviation from the common law malice aforethought murders is the division
into degrees in nearly all jurisdictions:
Generally, all of the common law malice aforethought murders are reflected in penal codes
as Second-Degree Murder.

Common Law Manslaughter

Voluntary manslaughter Involuntary manslaughter

An intentional unlawful killing of another but An act regarded as unduly dangerous to life or
under extreme emotional distress; limb, committed with recklessness or gross
provocation or heat of passion; imperfect negligence
self-defense (for an intentional killing)
OR
Is response reasonable?
An act that is otherwise unlawful that causes
the death of another (misdemeanor
manslaughter rule)

Homicide—the two tracks

Malice aforethought murders with mens rea Malice aforethought murder with mens rea of
of intent: recklessness:

Intent to kill Reckless indifference to human life

Intent to commit serious bodily harm

REDUCED TO REDUCED TO
o Voluntary manslaughter (mens rea of o Involuntary manslaughter (mens rea of
intent) reckless)

….
CAUSATION:
Aggravation as a causal basis for criminal liability
 What if the state’s initial theory was that Tyree and Oxendine each inflicted non-lethal
wounds, which combined—resulted in death?
  Oxendine aggravated the initial injury, conveying Tyree’s nonlethal injury into a mortal
one
 Both defendants become but-for causes
 Two non-lethal injuries, combined, one aggravating the other, become lethal. Both
defendants can be but-for causes of the prohibited result.
***State MUST show it was the prohibited act that caused the death!!!!! i.e. must link death to
the prohibited act.
People v. Goetz, 68 N.Y.2d 96 (1986).
Rule of Law

In New York, a person is justified in using deadly force in self-defense or defense of another
only if she objectively and reasonably believes an attacker is either (1) using or about to use
deadly force or (2) committing or attempting to commit a kidnapping, forcible rape, forcible
sodomy, or robbery.

Facts

Bernhard Goetz (defendant) boarded a subway train. Four youths, Troy Canty, Darryl Cabey,
James Ramseur, and Barry Allen approached Goetz and said, “give me five dollars.” Two of the
four had screwdrivers in their pockets, but the group was otherwise unarmed. Goetz pulled out
an unlicensed gun and shot all four of them, leaving one paralyzed. Goetz told the conductor that
the youths tried to rob him. Goetz fled but later surrendered to the police. Goetz told the police
he did not think the youths had weapons but was afraid of being “maimed,” because he had been
mugged in the past. Goetz was brought before a grand jury. The grand jury indicted Goetz on
weapons charges, but the attempted murder and assault charges were dismissed. The prosecution
was permitted to resubmit the charges to the grand jury on the basis of new evidence. That grand
jury indicted Goetz on ten counts, including attempted murder and assault. Goetz moved to
dismiss, claiming that the evidence was insufficient to support the charges and the prosecutor’s
jury instructions were invalid. Specifically, the prosecutor instructed the jurors that the state’s
justification defense depended on a finding that Goetz had acted as “a reasonable man in his
situation” would have. The lower court dismissed the charges, concluding that the prosecutor’s
inclusion of an objective element of self-defense in the instructions was erroneous. The
prosecution appealed, and the appellate division affirmed. The prosecution then appealed to the
Court of Appeals of New York.

Issue

Is a person justified in using deadly force in self-defense if he subjectively believed such force
was necessary to prevent an attack or a robbery?

Holding and Reasoning (Wachtler, J.)

No. In New York, the defense of justification permits the use of deadly force in self-defense
or defense of another when the person reasonably believes (1) that deadly force will be used
against him or (2) an attacker is attempting to commit a kidnapping, forcible rape, forcible
sodomy, or robbery. The right to use deadly force in self-defense has contained an element of
objective reasonableness from the days of the common law. Despite repeated amendments to
New York’s penal codes, this element has never been eliminated. In fact, the legislature declined
to follow the Model Penal Code, which allowed a justification defense where the defendant
“believe[d]…[deadly force] was necessary” but considered the intent requirement negated if that
belief was mistaken (thus allowing conviction only of reckless or negligent homicide). Instead,
New York’s drafters inserted the word “reasonably” before “believes.” The case law repeatedly
references the reasonableness element. A justification of self-defense may be permitted when
the defendant’s belief was mistaken, but only if there was an objectively reasonable basis
for the belief in the first place. In this case, Goetz argued that proving self-defense required
only a showing of subjective belief that deadly force was necessary, and that an objective
element would take away the jury’s ability to consider the circumstances. This is unpersuasive;
courts may consider the situation, including the defendant’s knowledge and prior experience, in
determining whether the belief was reasonable. The prosecutor’s instructions were sufficient for
a grand jury, and the charges are reinstated. [Editor's Note: After a jury trial, Goetz was
convicted only of illegal possession of a weapon, not the assault or attempted murder charges.
Darryl Cabey, the shooting victim who was paralyzed, later sued and obtained a civil judgment
against Goetz.]

NO CLASS NEXT SUNDAY

Instructions for writing assignment: 120 mins
2 separate IRACs DO NOT COMBINE THEM
Homicide and causation
Alex and Jeff were on hunting trip. During evening in hunting cabin. Alex wants to scare Jeff.
Alex loaded rifle and pointed to lamp. Alex loaded Jeff. Alex on way to hospital. Alex hit pot
hole.
What homicide? Common law murder or involuntary manslaughter.
1) Whats the proper charge? (don’t discuss causation) only homicide
2) Did Alex cause Jeffs death? (causation)
MODULE 7: Defenses
 United States v. Peterson (p. 516)
 People v. Goetz (p. 527)
 State v. Wanrow (p. 542)
 State v. Norman (p. 550-558)
 State v. Boyett (p. 573)
 Nelson v. State (p. 580)
 The Queen v. Dudley and Stephens (p. 594)
 United States v. Contento-Pachon (p. 605)
 United States v. Veach (p. 626)
 State v. Johnson (p. 640-645)
 The New Defenses:  Euthanasia; Addiction/Alcoholism; Environmental
Deprivation; the Cultural Defense

1. Comprehend the theories of justification and excuse defenses and how they differ in
terms of definition and application
2. Understand the legal definitions of the following defenses:

 Justification 
o Self Defense - Perfect and Imperfect
o Defense of Others
o Defense of Habitation
o Necessity Defense
 Excuses
o Intoxication 
o Insanity
o Duress

3.  Recognize how justifications and excuses affect criminal codes, with respect to
reducing or dropping charges and punishments
4. Identify the correct reasonable person standard to be used (subjective, objective or
mixed) and be able to apply it to the circumstances

Justification—the government carries the burden of proof of persuasion

Excuse—the defendant carries the burden of proof of persuasion

***The law of self-defense allows people to use force, and sometimes deadly force, to
defend themselves from an imminent threat of harm.
 Perfect self-defense—if the defendant’s fear and the amount of force used are
reasonable, he’ll “walk.”
 Imperfect self-defense—(partial defense) if a defendant uses deadly force, and either the
fear or the amount of force is unreasonable? The doctrine of imperfect self-defense may
apply, by negating the element of malice and reducing a murder charge to manslaughter.

Defense of others
(model penal code)
1) The defendant must use no more force than what the defendant would be entitled to
use as a matter of his or her own self-protection
2) The circumstances must be such that the third party would be justified in defending
himself or herself with the same amount of force used by the defendant
3) The defendant must believe that the intervention is necessary.
 Requirement to retreat—if doing so would guarantee the 3rd party’s complete safety OR if
the 3rd party would be legally required to retreat and could do so with complete safety. No
retreat is required from the 3rd party’s dwelling or place of work.
MPC provides that a defendant is not guilty by reason of insanity if, as a result of
a mental disease or defect, the defendant lacked substantial capacity either to:
(1) appreciate the criminality  (wrongfulness) of the defendant’s conduct or
(2) conform the defendant’s conduct to the requirements of the law. 

Justification
 Reasonable person standard—objective
 The conduct is socially acceptable
 Does not excuse conduct
 It is conduct that is a good thing or the right or sensible thing or a permissible thing to do
 “I did nothing wrong for which I should be punished.”
 Suggest that something which ordinarily would be considered wrong or undesirable (i.e.
that would constitute social social) is in light of the circumstances, socially acceptable or
tolerable.
 Negates the social harm of an offense.
 The harm caused by the justified behavior remains a legally recognizable harm which is
to be avoided whenever possible.
 Under special justifying circumstances that harm is outweighed by the need to avoid an
even greater harm or to further a greater societal interest.
 Example: actor burns field of corn serving as a firebreak saving 10,000 lives. Destruction
of the field is the harm which the statute serves to prevent and punish. Yet his conduct
and its harmful consequences were justified.
 Similar to “public necessity” in torts

Excuse
 Reasonable person standard—subjective (person) only apply to the particular defendant
 Punishment is not merited under the defendant’s particular circumstances
 Although the actor has harmed society she should not be blamed or punished for causing
that harm.
 “I admit or you have proved beyond a reasonable doubt that I did something I should not
have done but I should not be held criminally accountable for my actions.”
 Negates the moral blameworthiness of the actor for causing the harm.
 Elements of the offense are satisfied.
 Admit that the deed may be wrong but excuse the actor because conditions suggest the
actor is not responsible for his deed
 It is not outweighed by any greater societal harm avoided or greater societal interest
furthered.
 Exculpated only because her condition at the time of the offense suggests she had not
acted through a meaningful exercise of free will.
 Example: actor knocks mailman over the head with a baseball bat because she believes he
is coming to surgically implant a radio receiver which will take control of her body.
 Similar to “private necessity” in torts

Necessity defense
  Nelson v. State
 May be raised if the defendant’s actions although violative of the law, were necessary to
prevent an even greater harm from occurring.
 Exists only when natural forces create a situation wherein it becomes necessary for a
person to violate the law in order to avoid a greater evil to himself or his property.
 The harm which is to be avoided must be the greater harm and it must be immediate and
dire.
 Where a reasonable alternative other than violating the law is available in order to avoid
the harm the defense of necessity is not applicable.
 It is this reason of public policy: the law ought to promote the achievement of higher
values at the expense of lesser values and sometimes the greater good for society will be
accomplished by violating the literal language of the criminal law.
 A necessity defense under the common law requires that a defendant show (1) the
existence of a threat of imminent harm, (2) directed toward either a person or property,
(3) for which the defendant had no reasonable, legal alternative to avoid the threat, (4) in
a situation in which the harm that the defendant sought to avoid was more serious than
the harm caused by the defendant's conduct. Additionally, the defendant must not have
been at fault in creating the threat of imminent harm. 

Subject to a few limitations, the common law allows a person to use force to protect against a
threat to real or personal property, if the person reasonably believes it is necessary. A person
may use force to protect against a threat to real or personal property provided (1) the force used
is not deadly; (2) there is no time to utilize lawful measures; (3) the person requests that the
person posing the threat desist, unless doing so would be pointless; and (4) the threatened
property is in the person's rightful possession.

Duress
 US v. Contento-Pachon
 3 elements of the duress defense: (1) an immediate threat of death or serious bodily
injury, (2) a well-grounded fear that the threat will be carried out, and (3) no reasonable
opportunity to escape the threatened harm.
 The defense of duress is only available to a defendant who does not create the situation
giving rise to the threat. 

United States v. Peterson

Rule of Law
(1) Under the law of the District of Columbia, the initial aggressor in a fatal conflict may not
invoke the doctrine of self-defense to justify killing his adversary, unless he withdrew from the
conflict in good faith and communicated his withdrawal by words or acts.
(2) Under the law of the District of Columbia, the initial aggressor in a fatal conflict is under a
duty to retreat, if he may do so safely, before using deadly force in self-defense.
Facts
Bennie Peterson (defendant) came out of his house and discovered Charles Keitt stealing
windshield wipers from his car, which was parked in the alley behind Peterson’s property.
Peterson argued with Keitt, then went back inside and got a gun. When Peterson returned, Keitt
was about to drive off. Peterson threatened to kill Keitt. Keitt got out of the car, grabbed a lug
wrench, and walked toward Peterson with the wrench in the air. Peterson told Keitt not to come
closer. Keitt advanced, though he was still in the alleyway, and Peterson shot and killed him.
Peterson was standing in his yard at the time. Peterson was indicted for second-degree murder.
At trial, Peterson sought a judgment of acquittal based on insufficient evidence, which was
denied. The judge instructed the jury on self-defense. The judge said that self-defense generally
does not excuse a killing if the defendant provoked the altercation, though words alone did not
constitute provocation. The judge also told the jury that even if Peterson started the fight, self-
defense was available if he withdrew from the conflict in good faith and let Keitt know by words
or acts. The judge instructed the jury that Peterson was under no duty to retreat but it could
consider whether he could have safely retreated in deciding whether his actions were justified.
Peterson was found guilty of manslaughter. Peterson appealed, arguing that the judge wrongly
instructed the jury.
Issue
(1) May the initial aggressor in a fatal conflict invoke the doctrine of self-defense to justify
killing his adversary?
(2) Is the initial aggressor in a fatal conflict under a duty to retreat before using deadly force in
self-defense?
Holding and Reasoning (Robinson, J.)
(1) No. The right to use deadly force in self-defense is generally not available to the initial
aggressor in an altercation. The doctrine is rooted in necessity. Deadly force is only justified if
there is no alternative. A person must honestly and reasonably believe that there is an imminent
threat of death or serious injury. Only then may he use deadly force to save himself.
Nevertheless, a person who provokes a fatal conflict does not have a right to kill in self-defense.
The right will only be restored if (1) the aggressor makes a good-faith effort to withdraw
from the conflict and (2) communicates that intent to his adversary. Here, the jury
instruction comported with these principles. There was sufficient evidence that Peterson was the
aggressor; he got the gun and threatened to kill Keitt. Even if Keitt had initially been the
aggressor, he was not at that point. The denial of Peterson’s motion for judgment of acquittal was
not erroneous.
(2) Yes. Historically a person was not permitted to use deadly force if he could retreat safely,
because this negated the strict necessity of killing the attacker. The District of Columbia still
follows this rule, though it is now in the minority. There is no duty to retreat if it would be
dangerous to do so. Next, the castle doctrine, which provides that a person may stand his
ground if he is attacked in his home or its curtilage, does not apply if the person was the
initial aggressor. Here, Peterson was not an innocent party to the conflict. The castle doctrine is
thus inapplicable, even though Peterson was standing in his yard when he shot Keitt. The trial
judge correctly instructed the jury that it could consider whether Peterson could have safely
retreated. The verdict is affirmed.

People v. Goetz (p. 527)

Rule of Law
In New York, a person is justified in using deadly force in self-defense or defense of another
only if she objectively and reasonably believes an attacker is either (1) using or about to use
deadly force or (2) committing or attempting to commit a kidnapping, forcible rape, forcible
sodomy, or robbery.
Facts
Bernhard Goetz (defendant) boarded a subway train. Four youths, Troy Canty, Darryl Cabey,
James Ramseur, and Barry Allen approached Goetz and said, “give me five dollars.” Two of the
four had screwdrivers in their pockets, but the group was otherwise unarmed. Goetz pulled out
an unlicensed gun and shot all four of them, leaving one paralyzed. Goetz told the conductor that
the youths tried to rob him. Goetz fled but later surrendered to the police. Goetz told the police
he did not think the youths had weapons but was afraid of being “maimed,” because he had been
mugged in the past. Goetz was brought before a grand jury. The grand jury indicted Goetz on
weapons charges, but the attempted murder and assault charges were dismissed. The prosecution
was permitted to resubmit the charges to the grand jury on the basis of new evidence. That grand
jury indicted Goetz on ten counts, including attempted murder and assault. Goetz moved to
dismiss, claiming that the evidence was insufficient to support the charges and the prosecutor’s
jury instructions were invalid. Specifically, the prosecutor instructed the jurors that the state’s
justification defense depended on a finding that Goetz had acted as “a reasonable man in his
situation” would have. The lower court dismissed the charges, concluding that the prosecutor’s
inclusion of an objective element of self-defense in the instructions was erroneous. The
prosecution appealed, and the appellate division affirmed. The prosecution then appealed to the
Court of Appeals of New York.
Issue
Is a person justified in using deadly force in self-defense if he subjectively believed such force
was necessary to prevent an attack or a robbery?
Holding and Reasoning (Wachtler, J.)
No. In New York, the defense of justification permits the use of deadly force in self-defense or
defense of another when the person reasonably believes (1) that deadly force will be used against
him or (2) an attacker is attempting to commit a kidnapping, forcible rape, forcible sodomy, or
robbery. The right to use deadly force in self-defense has contained an element of objective
reasonableness from the days of the common law. Despite repeated amendments to New
York’s penal codes, this element has never been eliminated. In fact, the legislature declined to
follow the Model Penal Code, which allowed a justification defense where the defendant
“believe[d]…[deadly force] was necessary” but considered the intent requirement negated if that
belief was mistaken (thus allowing conviction only of reckless or negligent homicide). Instead,
New York’s drafters inserted the word “reasonably” before “believes.” The case law repeatedly
references the reasonableness element. A justification of self-defense may be permitted when
the defendant’s belief was mistaken, but only if there was an objectively reasonable basis
for the belief in the first place. In this case, Goetz argued that proving self-defense required
only a showing of subjective belief that deadly force was necessary, and that an objective
element would take away the jury’s ability to consider the circumstances. This is unpersuasive;
courts may consider the situation, including the defendant’s knowledge and prior experience, in
determining whether the belief was reasonable. The prosecutor’s instructions were sufficient for
a grand jury, and the charges are reinstated. [Editor's Note: After a jury trial, Goetz was
convicted only of illegal possession of a weapon, not the assault or attempted murder charges.
Darryl Cabey, the shooting victim who was paralyzed, later sued and obtained a civil judgment
against Goetz.]

State v. Wanrow (p. 542)

Rule of Law
The justification of self-defense requires a subjective standard of reasonableness that takes into
account all the facts and circumstances known to the defendant.
Facts
On August 11, 1972, Wanrow (defendant) left her son with her friend, Hooper. While playing in
Hooper’s neighborhood, the son was nearly abducted by a neighbor, Wesler. Hooper learned that
day that Wesler was suspected of previously attempting to molest a young boy, and Hooper
suspected Wesler had also molested her daughter. She asked police to arrest him but they stated
that they could not take action until after the weekend. That night, Hooper invited Wanrow,
Wanrow’s sister, and Wanrow’s brother-in-law to spend the night because she did not feel safe.
During the night, Wanrow’s brother-in-law went to Wesler’s house to confront him. Wesler
suggested they go back to Hooper’s house and settle everything. The brother-in-law remained
outside while Wesler entered Hooper’s home. Wesler was a 6’2” man and was intoxicated when
he entered the home. He was told to leave but he refused. Wanrow went outside to get her
brother-in-law’s help. Upon turning around to go back inside, she was startled to find that Wesler
was standing directly behind her and she shot him. At the time, Wanrow was a 5’4” woman with
a broken leg.
Issue
Does the justification of self-defense require a subjective standard of reasonableness?
Holding and Reasoning (Utter, J.)
Yes. When determining whether the defendant’s act of self-defense was reasonable, juries must
consider the defendant’s actions according to her own subjective perception of the situation. The
jury must also take into account all the facts and circumstances known to the defendant. Here,
the trial court did not instruct the jury to consider Wanrow’s perceptions or all the facts and
circumstances of which she was aware. In fact, the trial court instructed the jury to employ an
objective standard of reasonableness and used language that suggested that the jury should
consider reasonableness from a man’s perspective. However, the perception of danger caused by
a drunken 6’2” man late at night from the point of view of a 5’4” woman with a broken leg is
considerably different from the perception of danger held by a an uninjured man. The trial court
should have instructed the jury to consider Wanrow’s unique perception of the situation rather
than hold her to an objective standard. Similarly, the trial court’s instruction should not have
employed language suggesting that the reasonable person in such a situation is a man. In another
paragraph of the instruction, the court instructed the jury to consider only acts and circumstances
occurring at or just before the time of the killing when assessing the gravity of the danger to
Wanrow. However, State v. Ellis (1902) established that a jury could consider facts and
circumstances that occurred months before. The focus is on the defendant’s perception, which
may have been formed by facts and circumstances occurring over a long period of time. Because
the trial court’s instruction improperly characterized the law of self-defense, the conviction is
reversed and a new trial is ordered.

State v. Norman (p. 550-558)

Rule of Law
Evidence of battered-wife syndrome will not absolutely justify a killing unless the defendant
believed the killing was necessary in order to avoid imminent death or great bodily harm.
Facts
For most of her 25-year marriage, Norman (defendant) was badly abused by her husband,
including being punched and kicked, having objects thrown at her, being burned with cigarettes
and hot coffee, and being forced to eat pet food from a bowl on the floor. Norman’s husband also
forced her into prostitution at a local truck stop, humiliated her in public, and constantly
threatened to kill her. After being beaten very badly one day, Norman called the police. The
police refused to arrest her husband unless Norman filed a complaint, which she was afraid to do.
An hour later, Norman attempted suicide and when the paramedics arrived, Norman’s husband
insisted that they let her die. Norman sought guidance from a mental-health center and then a
social-services office, but Norman’s husband followed her to the social-services office, dragged
her out of the interview, took her home and beat her, and burned her with cigarettes. Shortly
thereafter, Norman obtained a pistol and shot and killed her husband while he was asleep.
Norman was charged with first-degree murder. During the trial, Norman's expert witness, Dr.
Tyson, testified that Norman believed she was doomed to a life of torture and abuse leading to
her "inevitable" death. Norman also testified that she believed her husband would kill her if he
had the chance. Norman was convicted of voluntary manslaughter and sentenced to six years
imprisonment, and she appealed. The appellate court reversed and granted a new trial on the
ground that Norman exhibited battered-wife syndrome, and therefore, the trial court should have
submitted to the jury a possible verdict of acquittal by reason of perfect self-defense. The North
Carolina Supreme Court granted review of the case.
Issue
Will evidence of battered-wife syndrome absolutely justify a killing of an abusive spouse?
Holding and Reasoning (Mitchell, J.)
No. A defendant is entitled to have a jury consider acquittal by reason of perfect self-defense
when the evidence, viewed in the light most favorable to the defendant, tends to show the
defendant killed another person because she believed it to be necessary to save herself from
imminent death or great bodily harm. The defendant’s belief as to the circumstances
necessitating the killing must be reasonable. State law also recognizes an imperfect right of self-
defense in instances when the defendant is the initial aggressor, but without intent to kill or
seriously injure another, and the other person escalates the confrontation to a point where it
reasonably appears necessary to the defendant to kill the other person in order to save herself
from imminent death or great bodily harm. In these types of cases, the culpability of the
defendant is reduced but is never completely justified. The term “imminent,” as used to describe
the type of threat of death or injury in both forms of self-defense, typically means immediate
danger that will instantly affect the defendant and cannot be protected against by asking for help
from law enforcement or others. In this case, the evidence does not indicate that Norman
reasonably believed that she was faced with the threat of imminent death or great bodily injury.
In fact, all of the evidence tends to show that Norman had ample time and opportunity to seek
other means of preventing further abuse by her husband. Instead, Norman fired three shots into
her husband’s head while he was asleep. Although Dr. Tyson testified that Norman believed she
was doomed to a life of abuse leading to her "inevitable" death, Norman’s subjective belief as to
“inevitable” death does not equate to a belief that death is “imminent.” Dr. Tyson’s testimony as
to indefinite time frames and Norman’s own testimony of what her husband might do at some
future time does not tend to establish a fear, reasonable or otherwise, of imminent death or great
bodily harm at the time of the killing. Moreover, it is far from clear from Norman’s evidence that
any abuse inflicted by her husband was ever to the degree that would justify the use of deadly
force, even when the threats were imminent. The appellate court's judgment is reversed.
Dissent (Martin, J.)
Norman does not seek to expand the self-defense requirements in order to allow any abused
spouse to “legally” kill their abusive husbands. Rather, Norman argues that the evidence
presented under the current law of self-defense is sufficient to require that a self-defense
instruction be submitted to the jury. For the battered wife, there is no escape from the abuse. The
next attack from the abuser could be the fatal one and thus, the abused wife is in constant fear of
imminent death. The question here was not whether the threat was in fact imminent, but whether
Norman’s belief in the impending nature of the threat, given the circumstances as Norman
viewed them, was reasonable in the mind of a reasonable person.

State v. Boyett (p. 573)

“defense of habitation”
Rule of Law
In New Mexico, the defense of habitation does not require an intruder to physically enter a home
before the owner may use deadly force necessary to prevent the commission of a felony inside
the home.
Facts
Deborah Rhodes and Renate Wilder were childhood friends who eventually developed an
intimate relationship and moved in together. Thereafter, the couple’s romance ended, but they
continued to remain close and live together. Wilder later met Cecil Boyett (defendant) and the
two became romantically involved. Eventually, Wilder began spending more time with Boyett
than with Rhodes. Wilder even fired Rhodes from her job at Wilder’s bar and hired Boyett
instead. Rhodes moved out of the couple’s home and Boyett moved in. Wilder and Boyett
planned to get married. Prior to the wedding, Wilder left the couple’s home and spent time with
Rhodes without telling Boyett where she was going. Although Boyett suspected that Wilder was
with Rhodes, he could not confirm that fact. After a short period of time, Wilder left Rhodes’
home to return to Boyett but had a car accident which required her to walk back to her house.
After Wilder had returned to Boyett, Rhodes arrived at their house and knocked on the door.
Sometime after opening the door but before Rhodes entered the home, Boyett shot and killed her.
Boyett was charged with first-degree murder. At trial, Boyett testified that he shot Rhodes
because he believed she was reaching for a gun that she often carried on her person and that he
fired in self-defense, defense of Wilder, and in defense of his home. The trial court did not
instruct the jury on defense of habitation because Rhodes had not crossed the threshold into the
home before Boyett killed her. Boyett was convicted of first-degree murder and he appealed.
Issue
In New Mexico, does the defense of habitation require an intruder to physically enter a home
before the owner may use deadly force necessary to prevent the commission of a felony inside
the home?
Holding and Reasoning (Serna, J.)
No. On appeal, Boyett argues that the trial court erred in not providing a jury instruction related
to defense of habitation. The defense of habitation has long been recognized in the state and
gives a home resident the right to use lethal force against an intruder when such force is
necessary to prevent the commission of a felony inside the home. The defense is grounded in the
theory that “[t]he home is one of the most important institutions of the state, and has ever been
regarded as a place where a person has a right to stand his [or her] ground and repel, force by
force, to the extent necessary for its protection.” State v. Couch, 193 P.2d 405, 409 (N.M.1946).
However, the use of deadly force is only justified if the defendant reasonably believed that the
commission of a felony was immediately at hand and that it was necessary to kill the intruder to
prevent that occurrence. Regardless, the court has never held that entry into the defendant’s
home is a prerequisite for the defense. The court has refused to apply the defense to situations in
which a victim was fleeing from the defendant, as well as situations in which the victim had
lawfully entered a defendant’s home. In some instances, lethal force may be justified against an
intruder who is outside the home but attempting to gain immediate entry and commit a felony
therein. See State v. Bailey, 198 P. 529, 534 (N.M. 1921). Here, the trial court erred when it
excluded the defense of habitation instruction on the ground that Rhodes was required to have
crossed the home’s threshold. However, there was no evidence produced at trial to show that
Rhodes was trying to gain immediate entry into Boyett’s home or any evidence that she intended
to commit a felony once inside. Instead, the evidence showed that, after knocking on Boyett’s
front door, Rhodes retreated back approximately four feet and was waiting for the door to open.
The judgment of the trial court is affirmed.

Nelson v. State (p. 580)

“necessity defense” (choice of evils)
Rule of Law
The commission of a crime is justifiable if it is necessary to prevent a greater harm from
occurring.
Facts
On May 22, 1976, just after midnight, Dale Nelson (defendant) was driving on a side road when
his truck became stuck in a marshy area. He and his two passengers were unable to get the truck
out. Nelson feared that the truck might tip over. They were able to get help from a passerby, who
drove two of them to a Highway Department Yard. They waited a few hours for assistance, but
no one was at the yard. Ignoring the signs that forbade trespassing, they took a dump truck,
intending to use it to free Nelson’s truck. However, the dump truck became stuck as well. At
about 10:00 am, Nelson met another stranded motorist who also needed assistance moving his
car. Nelson and the motorist went back to the yard and took a front-end loader. They successfully
freed the dump truck and were able to free the motorist’s car. However, they were unable to free
Nelson’s truck, and the front-end loader also became stuck. At that point, Nelson and his
companions had been trying to free the truck for twelve hours and they decided to go to sleep.
Two of them slept in a tent and one of them slept in Nelson’s truck. Subsequently, the district
court convicted Nelson of reckless destruction of personal property and joyriding. The
superior court affirmed.
Issue
Is the commission of a crime justifiable if it is necessary to prevent a greater harm from
occurring?
Holding and Reasoning (Matthews, J.)
Yes. The defense of necessity is available if the defendant commits a crime in order to prevent a
greater harm from occurring. In order to use the defense, three requirements must be met: (1) the
criminal act must have been committed in order to prevent a substantial harm; (2) there must
have been a lack of an alternative; and (3) the harm caused must be proportional to the harm
avoided. The defense only requires that a defendant reasonably believes the requirements are
met, even if he is mistaken. Furthermore, necessity should be assessed in regards to
reasonably foreseeable harm at the time the crime is committed, not the harm that actually
resulted. Here, there is insufficient evidence to support a finding of necessity. First, there was no
substantial harm to be avoided. Nelson feared his truck might tip over. But when Nelson
committed his crime, the truck had already been stuck for several hours, substantially reducing
the likelihood his truck would have tipped over. The fact that one of the three subsequently took
a nap in the truck demonstrates that there was no emergency that required the taking of the High
Department Yard vehicles. Second, Nelson had other lawful alternatives. He received offers of
help from others while his truck was stuck. He could have asked for a ride to someone else who
could have helped, or have made a phone call to a state trooper or a tow truck. Third, the harm
avoided did not outweigh the harm his actions caused. The legislature has clearly designated the
crimes of reckless destruction of personal property and joyriding as serious crimes, given the
serious penalties associated with them. Nelson’s desire to prevent his truck from tipping over did
not outweigh his taking of the equipment. Therefore, the defense of necessity is not available to
Nelson.

The Queen v. Dudley and Stephens (p. 594)

Rule of Law
The defense of necessity does not justify homicide unless the killing was committed in self-
defense.
Facts
Thomas Dudley and Edwin Stephens (defendants) were on the crew of an English yacht, along
with fellow seamen Brooks and Richard Parker. Due to a storm, the men were lost at sea in an
open boat for approximately twenty-four days. They had no water except for occasional
rainwater, and little food. After over a week without any food, Dudley and Stephens approached
Parker, who was sick and in a much weaker state, and slit his throat. The three remaining men
fed off Parker’s body for four days until a passing ship rescued them. Dudley and Stephens were
put on trial in order to determine whether the act of killing Parker was murder. The jury
determined that the men would not have survived to the time of rescue if they had not fed off
Parker’s body and that, at the time, it was reasonable to assume they would die of starvation
before they were rescued. The jury also determined that Parker would likely have died before the
other three men. The jury made these conclusions of fact but was ultimately unable to reach a
verdict as to Dudley and Stephens’ culpability. It instead submitted a special verdict requesting
the court to determine Dudley and Stephens’s culpability based on its findings of fact.
Issue
Will the defense of necessity justify a homicide committed to save the defendants' own lives?
Holding and Reasoning (Coleridge, C.J.)
No. The intentional killing of another is murder unless there is some legal justification.
Necessity is only a justification for murder when the killing is committed in self-defense.
Thus, the defense of necessity may not be used to justify the killing of an innocent
bystander. The treatises of Lord Hale make clear that necessity would not be a defense to
larceny under English law, much less murder. Hale’s Pleas of the Crown. Here, Dudley and
Stephens seek to justify the killing of their companion on the basis of necessity. There is no
authority supporting the principle that one may take the life of an innocent person to save his
own. The dictum of Lord Bacon suggesting that a diver could push another off a raft to save
himself and an oddly decided American case suggesting that drawing straws was the appropriate
method of deciding who should be sacrificed in a shipwreck are not binding on this court. To
make such a ruling would cause too much uncertainty as to whether a murder is truly necessary.
Notwithstanding the desperate circumstances Dudley and Stephens faced, their act of killing the
sailor was an intentional murder, and the defense of necessity is unavailable to justify their act.
Accordingly, Dudley and Stephens are sentenced to death. [Editor’s Note: Dudley and Stephens's
death sentences were commuted to six months in prison.]

United States v. Contento-Pachon (p. 605)

Excuses—“duress”
Rule of Law
A defendant is excused from criminal culpability if he commits his crime under a threat of death
or serious bodily injury.
Facts
Juan Manuel Contento-Pachon (defendant) was a taxi driver in Bogota, Colombia. One of his
passengers (Jorge) offered to hire him as a private driver. Contento-Pachon agreed to meet him
to discuss the details. Rather than discussing the job, Jorge asked Contento-Pachon to transport
cocaine-filled balloons to the United States. When Contento-Pachon refused, Jorge recited
details about Contento-Pachon’s private life that Contento-Pachon had never divulged to him.
Jorge threatened Contento-Pachon that if he refused to cooperate, his wife and child would die.
Contento-Pachon agreed to cooperate. About three weeks later, Contento-Pachon swallowed 120
balloons of cocaine and arranged to land first in Panama and then the United States. He was told
that he would be watched at all times, and that his failure to follow directions would lead to the
deaths of him and his family. Prior to the trip, Contento-Pachon did not go to the police because
he feared they were corrupt. He did not go to police in Panama for the same reason, and because
he feared for his family’s safety. Upon arriving in the United States, customs x-rayed Contento-
Pachon’s stomach and found the cocaine. Contento-Pachon was charged with unlawful
possession of narcotics with intent to distribute. Contento-Pachon attempted to submit the
defenses of duress and necessity. The trial court excluded both.
Issue
Is a defendant excused from criminal culpability if he commits his crime under a threat of death
or serious bodily injury?
Holding and Reasoning (Boochever, J.)
Yes. A defendant is excused from criminal culpability if he commits the crime under
duress. There are three elements to the defense of duress. First, the threat of death or serious
bodily injury must be immediate. Second, the defendant must act on a well-grounded fear that
the threat will be realized. Third, there must be no reasonable opportunity for the defendant to
escape. Here, the district court held that the threat was not immediate because the threat would
only be acted upon after Contento-Pachon’s future failure to cooperate. But Contento-Pachon’s
evidence supports a finding that the threat was immediate. Jorge had a lot of money at stake and
took it upon himself to find information about Contento-Pachon’s personal life that Contento-
Pachon had never revealed to him. He knew the name of his wife and child and where they lived.
He also told Contento-Pachon that his accomplices would be watching him at all times during
the trip. These were concrete threats implying that Contento-Pachon’s failure to cooperate would
lead to immediate harm to both him and his family. Thus, there is sufficient evidence to support
a finding of immediacy. Furthermore, Contento-Pachon presented enough evidence to support
the contention that he did not have a reasonable opportunity to escape. Duress does not require
that a defendant be physically constrained from seeking help. Contento-Pachon was constrained
by his belief that the police were corrupt and turning to them for help would be futile. It should
be left to the trier of fact to determine whether his belief renders going to the police an
unreasonable means of escape. In the alternative, Contento-Pachon could technically have fled.
However, he would have had to pick up and move his family and all his possessions, leave his
job, and run away to a place where Jorge could not find him. This is not a reasonable means of
escape. As a result, the district court should have allowed the defense of duress. Contento-
Pachon also tried to submit the defense of necessity, arguing that the death of him and his family
was a greater harm to be avoided than the trafficking of drugs. However, Contento-Pachon failed
to differentiate properly between the defenses of duress and necessity. The defense of necessity
is traditionally reserved for coercion brought forth by natural forces, whereas the defense of
duress is generally reserved for coercion brought forth by human forces. With duress, it is
thought that the coercion overrides the defendant’s free will. With necessity, the defendant is
thought to freely exercise his will in order to avoid a greater evil. Furthermore, necessity is
usually limited to situations that protect the general welfare. Contento-Pachon’s crime was
motivated by human coercion and did not promote the general welfare. Thus, the defense of
necessity is unavailable to Contento-Pachon. The district court properly excluded the defense of
necessity. But because the district court improperly excluded the defense of duress, the
conviction is reversed.
Concurrence/Dissent (Coyle, J.)
Contento-Pachon failed to present sufficient evidence to support the elements of immediacy and
inescapability. The first threat was made three weeks before the trip, and was conditioned on his
failure to cooperate in the future. Furthermore, he was not physically restrained from seeking
help from the police or running away. However, the majority was correct in affirming the district
court’s decision to exclude the necessity defense.

United States v. Veach (p. 626)

Excuses—Intoxication
Rule of Law
Intoxication negates the mens rea of a specific intent crime and thereby serves as a defense, but it
does not negate the mens rea of a general intent crime.
Facts
Darwin Veach (defendant) was in a car accident while driving intoxicated in a national park.
Two park rangers, Greg Mullin and Karen Bradford, arrived and prepared to take Veach into
custody. Veach resisted, pulling away from Mullin and causing her to scrape her knee on the
ground. In the car, Veach repeatedly threatened to kill Mullin and Bradford by shooting them or
decapitating them. His conduct led to his conviction for one count of resisting a federal officer
and two counts of threatening to assault and murder a federal officer with the intent to interfere
with the officer’s enforcement of his duties. Veach appeals, arguing that the trial court should
have allowed him to present a defense of voluntary intoxication.
Issue
Does intoxication negate the mens rea for a crime and thereby serve as a defense to the crime?
Holding and Reasoning (Daughtrey, J.)
Yes. However, intoxication only negates the mens rea of crimes that require specific intent.
It does not negate the mens rea for general intent crimes, where a defendant need only
perform the act with a criminal intent. In order to determine whether intoxication is a defense
to the crimes Veach was convicted of, this court must determine whether they are specific intent
or general intent crimes. The first statute Veach violated was 18 U.S.C. § 111(a)(1), which
criminalizes the acts of one who “forcibly assaults . . . any officer or employee of the United
States . . . while engaged in or on account of the performance of official duties.” There is no
indication in the statute’s language that a defendant must possess a specific purpose during the
commission of this crime. Rather, it is sufficient that the defendant intentionally performed the
prohibited act. Section 111 is therefore a general intent crime. The defendant may not use
voluntary intoxication as a defense to his violation of § 111. The second statute that Veach
violated was 18 U.S.C. § 115(1)(1)(B). It criminalizes the act of one who “threatens to
assault . . . a Federal law enforcement officer . . . with intent to impede, intimidate, or interfere
with such . . . law enforcement officer while engaged in the performance of official duties, or
with intent to retaliate.” Unlike in § 111, this provision contains additional language specifying
the specific purpose that a defendant must possess. The defendant must not only threaten or
assault an officer, but must do so with the specific purpose of impeding a law enforcement
officer. Accordingly, § 115 is a specific intent crime. Therefore, Veach is entitled to present a
voluntary intoxication defense that might demonstrate he was too intoxicated to possess the
specific intent § 115 requires. Veach’s convictions under § 115 are reversed and remanded.

State v. Johnson (p. 640-645)

Rule of Law

A person is not responsible for criminal conduct if at the time of the conduct, as a result of
mental disease or defect, the person's capacity either to appreciate the wrongfulness of his
conduct or to conform his conduct to the requirements of law is so substantially impaired
that he cannot justly be held responsible.

Facts

Bruce Johnson (defendant) was charged with murder, kidnapping, and assault and battery with
the intent to commit rape of a 14-year-old girl. Johnson pleaded not guilty by reason of insanity.
The jury found that Johnson was sane and convicted him. Johnson appealed. On appeal, the
Rhode Island Supreme Court considered the issue of whether courts in Rhode Island would
continue to apply the M'Naghten test or adopt a new test for determining a defendant's criminal
responsibility.
Issue

Is a person responsible for criminal conduct if at the time of the conduct, as a result of mental
disease or defect, the person's capacity either to appreciate the wrongfulness of his conduct or to
conform his conduct to the requirements of law is substantially impaired?

Holding and Reasoning (Doris, J.)

No. Currently, this jurisdiction employs the M’Naghten test for insanity. According
to M’Naghten’s Case, 8 Eng. Rep. 718 (1843), a defendant must prove an insanity defense by
demonstrating that at the time of the criminal act, the defendant had a mental disease or
defect such that he did not know the nature and quality of his act, or that if he did know it,
he did not know his act was wrong. The test has been heavily criticized because it focuses
solely on the knowledge of right and wrong as an indication of mental illness. This emphasis on
morality effectively minimizes the value of expert psychiatric testimony. Consequently, the jury
is left with an incomplete sense of the defendant’s mental condition. In response to criticism
surrounding the M’Naghten test, some courts turned to the irresistible-impulse test. This test
looks to the defendant’s volitional defects, in addition to his cognitive defects. However,
commentators and courts criticized this test because it requires a complete lack of volition, rather
than recognizing a middle ground. It is also criticized because it requires a defendant to act in a
sudden fit, ignoring the common situation in which a defendant acts after experiencing
depression or melancholy for a period of time. Other jurisdictions employed the Durham,
or  product, test, which says that a defendant is not criminally responsible for his actions if they
are the product of mental disease or defect. The test allowed juries to consider all relevant facts,
including expert testimony. However, it was too vague to provide sufficient guidance to juries
and tended to place so much weight on expert testimony that the jury’s role as decision-maker
was minimized. In contrast, the Model Penal Code’s test has gained widespread acceptance. It
considers both cognitive and volitional defects, as well as expert testimony, but it also
emphasizes the jury’s role in determining how these factors affect criminal responsibility.
Accordingly, this jurisdiction adopts a formulation of the Model Penal Code's test. Under the
adopted formulation, a person is not responsible for criminal conduct if at the time of the
conduct, as a result of mental disease or defect, the person's capacity either to appreciate the
wrongfulness of his conduct or to conform his conduct to the requirements of law is so
substantially impaired that he cannot justly be held responsible. The terms mental disease and
defect do not apply to abnormalities demonstrated only by a person's repeated criminal or
antisocial conduct (i.e., a psychopathic or sociopathic personality). This limitation ensures that
defendants who have no mental disease or defect, but who have knowingly and deliberately
chosen to pursue a life of crime, will not be improperly relieved of criminal responsibility based
solely on their recidivism. In this case, Johnson is entitled to a new trial solely on the issue of
criminal responsibility, and the matter is remanded to the Superior Court for that purpose.

This case is analogous to The Queen v. Dudley and Stephens where seamen lost at sea agreed to
sacrifice someone who was already near death and weaker and likely to die in order to save
themselves.

The Queen v. Dudley and Stephens (p. 594)

Rule of Law
The defense of necessity does not justify homicide unless the killing was committed in self-
defense.
Facts
Thomas Dudley and Edwin Stephens (defendants) were on the crew of an English yacht, along
with fellow seamen Brooks and Richard Parker. Due to a storm, the men were lost at sea in an
open boat for approximately twenty-four days. They had no water except for occasional
rainwater, and little food. After over a week without any food, Dudley and Stephens approached
Parker, who was sick and in a much weaker state, and slit his throat. The three remaining men
fed off Parker’s body for four days until a passing ship rescued them. Dudley and Stephens were
put on trial in order to determine whether the act of killing Parker was murder. The jury
determined that the men would not have survived to the time of rescue if they had not fed off
Parker’s body and that, at the time, it was reasonable to assume they would die of starvation
before they were rescued. The jury also determined that Parker would likely have died before the
other three men. The jury made these conclusions of fact but was ultimately unable to reach a
verdict as to Dudley and Stephens’ culpability. It instead submitted a special verdict requesting
the court to determine Dudley and Stephens’s culpability based on its findings of fact.
Issue
Will the defense of necessity justify a homicide committed to save the defendants' own lives?
Holding and Reasoning (Coleridge, C.J.)
No. The intentional killing of another is murder unless there is some legal justification.
Necessity is only a justification for murder when the killing is committed in self-defense.
Thus, the defense of necessity may not be used to justify the killing of an innocent
bystander. The treatises of Lord Hale make clear that necessity would not be a defense to
larceny under English law, much less murder. Hale’s Pleas of the Crown. Here, Dudley and
Stephens seek to justify the killing of their companion on the basis of necessity. There is no
authority supporting the principle that one may take the life of an innocent person to save his
own. The dictum of Lord Bacon suggesting that a diver could push another off a raft to save
himself and an oddly decided American case suggesting that drawing straws was the appropriate
method of deciding who should be sacrificed in a shipwreck are not binding on this court. To
make such a ruling would cause too much uncertainty as to whether a murder is truly necessary.
Notwithstanding the desperate circumstances Dudley and Stephens faced, their act of killing the
sailor was an intentional murder, and the defense of necessity is unavailable to justify their act.
Accordingly, Dudley and Stephens are sentenced to death. [Editor’s Note: Dudley and Stephens's
death sentences were commuted to six months in prison.]

MODULE: 08

1.  People v. Gentry, p. 759

Rule of Law

A conviction of attempt murder requires a specific intent to kill.

Facts

 Defendant—Gentry
 Was convicted of attempt murder
 Asserts that his conviction should be reversed because trial courts instruction regarding
the intent necessary for attempt murder was prejudicially erroneous.
 (factual findings)—reversed factual findings only if clearly erroneous
 December 13, 1983—Gentry and gf were in their shared apartment
 Began to argue around 9 pm
 Gentry and gf had been drinking all afternoon and were pretty high
 Gentry spilled gasoline on gf
 gasoline ignited only after she had gone near the stove on the kitchen

Stanley Gentry (defendant) lived with his girlfriend, Ruby Hill. On December 13, 1983, Gentry
and Hill had an argument, during which Gentry spilled gasoline on Hill. She later went into the
kitchen and was near the stove when the gasoline ignited. Gentry was able to put the fire out, but
Hill sustained serious burns. Gentry was tried for attempted murder. The trial court instructed the
jury on the definition of attempt murder, as well as the four different mental states that were
sufficient to prove murder. Gentry appealed, arguing that the court’s instruction as to the four
different mental states allowed the jury to convict him for attempt murder without showing that
he had the specific intent to kill.

Issue

Whether a conviction of attempt murder requires a specific intent to kill.

Holding and Reasoning (Linn, J.)

Yes. According to People v. Kraft, 478 N.E. 2d 1154 (1985), a finding of a specific intent to kill
is necessary to sustain a conviction for attempt murder. Mere knowledge that death or serious
bodily harm may occur is insufficient. Thus, the trial court’s instruction listing the culpable
mental states of murder, which included both intent and knowledge, erroneously allowed the jury
to convict Gentry of attempt murder without finding a specific intent to kill. Gentry’s conviction
is reversed and a new trial is ordered.
2. Bruce v. State, p. 763
Rule of Law

A defendant cannot be found guilty of the attempt of a crime that does not require specific intent.

Facts

 December 2, 1986—3 men entered a shoe store

 Defendant—Bruce was masked and armed with a handgun
 Ordered Tensor to open the cash register
 It was empty
 Bruce demanded to know where the money could be found
 Gun was continuously held at his face
 He ducked down and banged into him
 Bruce shot Tensor

On December 2, 1986, Leon Bruce (defendant) and two other men robbed a store owned by
Barry Tensor. When Bruce found that the cash register was empty, Bruce pointed his gun at
Tensor and threatened to kill him. Tensor ducked down and Bruce shot him. Tensor was in the
hospital for five weeks but survived. A jury later convicted Bruce of attempted first degree
felony murder.

Issue

Whether a defendant can be guilty of attempt of a crime that does not require specific intent.

Holding and Reasoning (Murphy, J.)

No. To be convicted of criminal attempt, the prosecution must prove that the defendant had a
specific intent to commit the crime and took an overt act that furthered the intent beyond mere
preparation. Because all attempt convictions require specific intent, only crimes that require
specific intent may serve as the basis of an attempt conviction. In Cox v. State, 311 Md. 326
(1988), this court held that attempted voluntary manslaughter is a crime because voluntary
manslaughter is an intentional homicide. Conversely, involuntary manslaughter is an
unintentional killing, and therefore, a defendant cannot be convicted of attempted involuntary
manslaughter. In this case, Bruce was found guilty of attempted felony murder. Felony murder is
not a specific intent crime. The only mental state required for a felony murder conviction is the
specific intent to commit the underlying felony, not to cause the death itself. Therefore,
attempted felony murder is not a crime.
3.  U.S. v. Mandujano, p. 767
Rule of Law

Criminal attempt requires a defendant to have acted with criminal culpability and to have taken a
substantial step toward committing the crime.

Facts

Alfonso Cavalier was a police officer working undercover as a narcotics trafficker. He met with
Roy Mandujano (defendant) to obtain heroin. Mandujano told Cavalier that he had heroin
available from a reliable source. Cavalier gave Mandujano money to purchase the drugs.
Mandujano tried multiple times to locate the heroin source but was unsuccessful. The United
States (plaintiff) charged Mandujano with attempted distribution of heroin. The jury found
Mandujano guilty. Mandujano appealed, arguing that he could not be guilty of the crime because
his actions amounted to preparation, not attempt.

Issue

Does criminal attempt require a defendant to have acted with criminal culpability and to have
taken a substantial step toward committing the crime?

Holding and Reasoning (Rives, J.)

Yes. Criminal attempt requires a defendant to have acted with criminal culpability and to have
taken a substantial step toward committing the crime. In most jurisdictions, a defendant’s actions
go beyond mere preparation if the crime would be completed unless circumstances other than the
will of the defendant intervene. Preparation alone is not enough to prove that a defendant
attempted a crime. However, distinguishing attempt from mere preparation is difficult, and the
test varies among jurisdictions. Many jurisdictions do not require a defendant to take every
required step before a jury can find the defendant guilty of attempt. Generally, conduct rises to
the level of attempt if the defendant (1) acted with the type of culpability otherwise required for
the crime and (2) takes a substantial step toward committing the crime. A substantial step
includes actions that strongly corroborate the steadfastness of a defendant’s criminal intent. Here,
Mandujano offered Cavalier heroin and received money to purchase the drugs. Mandujano’s
conduct went beyond mere preparation because the crime would have been completed if he
located the source. Mandujano thus acted with the criminal culpability required for distribution
of heroin. Further, his multiple attempts to locate the heroin source constituted a substantial step
towards committing the crime. Therefore, the evidence presented to the jury was sufficient to
warrant the lower court’s guilty verdict. The ruling of the district court is affirmed.

4.  Commonwealth v. Peaslee, p. 771

Rule of Law

To be found guilty of attempt, a defendant must have a present intent to commit the crime in the
near future and must have the intent at a time and place where he is able to carry it out.

Facts

Lincoln Peaslee (defendant) made plans to burn down a building and to defraud its insurers. He
collected and prepared combustibles so that only the lighting of the combustibles remained.
Peaslee solicited an employee of his to light the fire. The employee refused. At a later time,
Peaslee and the employee were driving toward the building. When they were about a quarter of a
mile away from the building, Peaslee decided not to go through with the plan and drove away.
Peaslee was indicted for the attempted burning of the building. Peaslee brought a motion to
quash the indictment and requested a directed verdict in his favor.

Issue

To be found guilty of attempt, must a defendant have a present intent to commit the crime in the
near future and have the intent at a time and place where he is able to carry it out?

Holding and Reasoning (Holmes, C.J.)

Yes. If a defendant has committed the last act necessary to complete a crime but outside forces
interrupt the crime, the defendant is clearly guilty of attempt. It is less clear whether the
defendant is guilty of attempt when the last act necessary had not yet taken place. Acts taken
with intent to commit a crime may or may not constitute an attempt, depending on the degree of
preparation taken and the gravity of the offense. The defendant must possess a present intent to
commit the crime in the near future and must have this intent while in a position to carry it out.
In this case, the evidence is insufficient to show that Peaslee’s actions went beyond mere
preparation. Although Peaslee set up the combustibles so that only the lighting of the
combustibles remained, he did not have the present intent to set the fire when he did so. Had
Peaslee's solicitation of his employee been properly presented as an overt act, he could have been
found guilty of attempt. However, Peaslee's solicitation was not presented as an overt act, and the
facts before the court do not demonstrate that Peaslee ever went beyond preparation.
Accordingly, Peaslee's motion is granted.

5.  People v. Rizzo, p. 774

Rule of Law

A defendant may not be convicted of attempt unless the defendant intentionally commits an act
tending to the commission of a crime, which is so near to accomplishment of the crime that in all
reasonable probability the crime itself would have been committed but for timely interference.

Facts

Charles Rizzo (defendant) and three other men intended to rob Charles Rao of a payroll valued
around $1,200. Rizzo was supposed to point out Rao to the other men, who would then commit
the actual robbery. The men, two of whom had guns, drove around town in a car looking for Rao,
but they were never able to find him. The men drove to the bank where Rao was supposed to
pick up the payroll, as well as to various buildings being constructed by the company for which
Rao was carrying the payroll. During the men's search, nearby police became suspicious and
followed the vehicle. Rizzo jumped out of the car and ran into a building, and police arrested all
four men. Although the men never found Rao, and nobody with a payroll was located at the
buildings where the men stopped, the men were charged with attempted robbery. After a trial, a
jury convicted Rizzo and the others of attempted first-degree robbery. Rizzo appealed. The
appellate court affirmed the conviction, and Rizzo appealed to the New York Court of Appeals.

Issue

May a defendant be convicted of the crime of attempt if the defendant has not committed an act
tending to the commission of a crime, which is so near to accomplishment of the crime that in all
reasonable probability the crime itself would have been committed but for timely interference?

Holding and Reasoning (Crane, J.)

No. A defendant may not be convicted of attempt unless the defendant intentionally commits an
act tending to the commission of a crime, which is so near to accomplishment of the crime that in
all reasonable probability the crime itself would have been committed but for timely interference.
Attempt is defined by New York statute as “[a]n act, done with intent to commit a crime, and
tending but failing to effect its commission. . . .” The word tending is very indefinite. Tending
means to exert activity in a particular direction. Any act taken in preparation to commit a crime
can be said to be “tending” towards its accomplishment. But only those acts which advance very
near to the accomplishment of the intended crime will support an attempt conviction. In other
words, the act must have a "dangerous proximity" to successful commission of the crime. Here,
Rizzo and the other men were looking for Rao to rob him of the payroll, but they were never able
to even locate him. Rizzo and the others had the intent to commit the crime, but they never had
the opportunity. Their acts are too remote to support a conviction for attempted first-degree
robbery. Accordingly, Rizzo's judgment of conviction is reversed.

6.  U.S. v. Miller, p. 776

7.  State v. Reeves, p. 779

Rule of Law

The crime of attempt does not require that the defendant is on the brink of completing the
offense.

Facts

Tracie Reeves (defendant) and Molly Coffman were twelve-year-old girls who attended the same
middle school. On the night of January 5, 1993, Reeves and Coffman agreed over the phone to
kill their homeroom teacher, Janice Geiger, with rat poison. The next morning, Coffman took a
packet of rat poison to school. During the bus ride to school, Coffman told another student of the
plan. The student told school officials once she arrived at school. Geiger noticed when she
arrived in her classroom that Reeves and Coffman were leaning over her desk. They left a purse
on Geiger’s desk next to her coffee cup. Authorities found rat poison in the purse. Both Reeves
and Coffman were found guilty of attempted second degree murder.

Issue

Whether a defendant is guilty of attempt only if the defendant was on the brink of completing the
offense.

Holding and Reasoning (Drowota, J.)

No. Prior to 1989, the law of attempt required that a defendant intended to commit a crime and
took an overt act toward the commission of that crime. Under Dupuy v. State, 325 S.W. 2d 238
(1959), this court defined an overt act very narrowly. In Dupuy, a man was convicted for
attempting to conduct an illegal abortion. He had arranged for the woman to meet him in a hotel
room. He had his instruments laid out and he instructed the woman to remove her clothes. The
police interrupted before he could go any further. This court reversed the conviction, citing the
fact that he did not use any of his instruments and that he did not even touch the woman’s body.
Thus, under Dupuy, a defendant would have to be on the brink of completing the crime in order
to be found guilty of attempt. In 1989, the Legislature overhauled the criminal law by enacting a
criminal attempt statute, which was closely modeled after the Model Penal Code. It set forth a
test for criminal attempt that focuses on whether the defendant took a substantial step towards
the commission of the crime. The question is whether the Legislature intended the substantial
step test to continue to encompass the distinction between mere preparation and an overt act. The
prosecution argues that the Legislature instead intended to adopt the Model Penal Code approach
and its explanatory examples. One of the examples says that an attempt can be established if the
defendant possesses materials for the commission of the crime while at or near the place of
commission; the defendant has no lawful reason to possess such materials under the
circumstances; and the evidence is corroborative of the defendant’s criminal intent. Although the
Legislature closely modeled its attempt law after the Model Penal Code’s attempt law, this court
cannot rule that the Legislature explicitly intended to adopt the Model Penal Code approach
because it did not include any of the Model Penal Code’s examples. However, this does not
mean the Legislature intended to adhere to the distinction between mere preparation and an overt
act as laid out in Dupuy. Dupuy has been criticized because its requirement that a defendant be
on the very brink of completing the crime places others in danger and fails to deter people from
attempting crimes. Under Dupuy, Reeves and Coffman could not be guilty until they actually
placed the poison in their teacher’s cup. Because the Dupuy rule produces potentially harmful
results, this court abandons it. This court instead holds that if a defendant possesses materials for
the commission of a crime while at or near the scene of the crime, and the defendant has no
lawful purpose to possess the materials under the circumstances, a jury may rely on such
evidence to find that the defendant has taken a substantial step, if the evidence strongly
corroborates the actor’s criminal intent. The conviction is affirmed.
Concurrence/Dissent (Birch, J.)
The majority properly abandoned the Dupuy rule. However, it erred in affirming the conviction.
The relevant statute requires that the defendant’s “entire course of action” strongly corroborates
an intent to commit the crime. There was not enough evidence to demonstrate that these girls’
entire course of action strongly corroborated their intent to commit second-degree murder.
Jodie and Mary are conjoined twins.  They each have their own brain, heart and lungs,
and other vital organs, and they each have arms and legs.  They are joined at the lower
abdomen.  Whilst not underplaying the surgical complexities, they can be successfully
separated. But the operation will kill the weaker twin Mary.  That is because her lungs
and heart are too deficient to oxygenate and pump blood through her body. * * * She is
alive only because a common artery enables her sister, who is stronger, to circulate life
sustaining oxygenated blood for both of them.  Separation would require the clamping
and then the severing of that common artery.  Within minutes of doing so, Mary will
die.  Yet if the operation does not take place, both will die within three to six months, or
perhaps a little longer, because Jodie’s heart will eventually fail.  The parents cannot
bring themselves to consent to the operation.  The twins are equal in their eyes and
they cannot agree to kill one even to save the other.  As devout Roman Catholics they
sincerely believe that it is God’s will that their children are afflicted as they are and they
must be left in God’s hands.  The doctors are convinced they can carry out the
operation so as to give Jodie a life which will be worthwhile. 
The Court of Appeals authorized the surgical separation. There was no further appeal. 
Two pediatric surgeons, one a Roman Catholic and the other an evangelical Christian,
made the final cut (so as to share responsibility for Mary’s death).  As predicted, Mary
died moments later. 
1.Distinguish the dilemma facing Dudley & Stephens with the dilemma confronting the parents
and doctors here?
The defense of necessity is a justification for conduct that would otherwise be criminal. The
defendant is required to assert the defense of necessity as it is an affirmative defense. In order for
the defendant to qualify for the defense of necessity (1) the act charged must have been done to
prevent a significant evil, and (2) there must have been no adequate legal alternative, (3) the
harm must be imminent, and (4) the harm caused must not have been disproportionate to the
harm avoided.
In The Queen v. Dudley and Stephens a group of seamen consulted and planned the murder of an
innocent and unoffending victim because he was the weakest of the group in order to save their
own lives. Dudley, Stephens, Brooks and Parker were seamen who were caught in a storm and
lost at sea for 24 days. After running out of food for over a week Dudley and Stephens consulted
Brooks about sacrificing Parker to save themselves. Brooks dissented and Parker was not
consulted. Dudley and Stephens kill Parker. They are rescued 4 days after the murder. The court
held that the defense of necessity is may not be used to justify the killing of an innocent
bystander. Although the killer had no control over the circumstances leading to the starvation.
The court reasoned that the victim neither assaulted nor endangered the killer. But in my opinion
the court got it wrong. The defense of necessity can be used to justify the killing of an innocent
bystander. Yes, all human life should be respected but when the necessity was not created by the
defendant and the defendant as well as the victim is faced with certain death, the defense of
necessity would mean that more less innocent bystander of the circumstances is spared. The
court failed to see the defendants as bystanders of rather unfortunate circumstances. The court
excused the conduct rather then justifying the conduct because the taking of a life is wrong
morally and legally. But I have to contradict myself and say that the taking of innocent lives is
never justified. The court appeared to suggest that had the crew drawn straws, and in a sense
notified all parties, informed consent would have helped to elevate this conduct from excusable
to justifiable.
Element 1 is satisfied. In the presence case, the act charged was done to prevent a significant
evil, the death of both Jodi and Mary. Although conjoined twins, Jodie and Mary, each have their
own brain, heart and lungs, and other vital organs, and they each have arms and legs, they are
joined at the lower abdomen and separation has surgical risks. The separation will help prevent
one death as oppose to two deaths. Unlike Dudley and Stephens, the sacrifice of one person did
not help to save the lives of multiple. Instead, the only life saved was Jodi. A life was saved and
a life was scarified. If Dudley and Stephens had not killed Parker, the remaining three crew
members would have died.
Element 2 is satisfied. There is no adequate legal alternative. Either the doctors preform the
separation and Jodi lives or they do not preform the separation, in which case, both will die in a
matter of months. Similarly, in Dudley & Stephens, the four crewmembers would have died had
they not killed and feasted on the weaker crewmember, Parker, thus preventing the death of three
as oppose to having four dead crewmembers.
Element 3 is satisfied. The harm is imminent. If the operation does not take place, both will die
within three to six months, or perhaps a little longer, because Jodie’s heart will eventually
fail. That is because her lungs and heart are too deficient to oxygenate and pump blood through
her body. She is alive only because a common artery enables her sister, who is stronger, to
circulate life sustaining oxygenated blood for both of them.  Separation would require the
clamping and then the severing of that common artery. Within minutes of doing so, Mary will
die. Similarly, in Dudley & Stephens the crew too is faced with certain death. The crew had not
had food nor water for twelve days and were growing weak. The weakest crewmember, Parker
was sure to perish before the others. Like the doctors in the present case, time was of the essence.
Waiting any longer could have meant that the crew members all risked the chance that they
would all have become weak, despondent, and unable to wait until after Dudley had perished.
Element 4 is satisfied. The harm is not disproportionate to the harm avoided. The harm, the
killing of Mary, is not disproportionate to the harm avoided, the natural death of both Jodi and
Mary. Separation means the chance at life for one of the twins versus certain death for both. Like
in Dudley & Stephens, where Parker was weak and near death relative to the other crew
members, Mary too is the weaker twin as she is only alive because of a common artery which
enables Jodi to circulate oxygenated blood to both of them.
But the operation will kill the weaker twin Mary.  That is because her lungs and heart
are too deficient to oxygenate and pump blood through her body. * * * She is alive only
because a common artery enables her sister, who is stronger, to circulate life sustaining
oxygenated blood for both of them.  Separation would require the clamping and then
the severing of that common artery.  Within minutes of doing so, Mary will die.  Yet if
the operation does not take place, both will die within three to six months, or perhaps a
little longer, because Jodie’s heart will eventually fail.  The parents cannot bring
themselves to consent to the operation.  The twins are equal in their eyes and they
cannot agree to kill one even to save the other.  As devout Roman Catholics they
sincerely believe that it is God’s will that their children are afflicted as they are and they
must be left in God’s hands.  The doctors are convinced they can carry out the
operation so as to give Jodie a life which will be worthwhile. 
The Court of Appeals authorized the surgical separation. There was no further appeal. 
Two pediatric surgeons, one a Roman Catholic and the other an evangelical Christian,
made the final cut (so as to share responsibility for Mary’s death).  As predicted, Mary
died moments later. 

Module 8:

People v. Thousand, 631 N.W.2d 694 (2001). p. 788

 Special defenses—impossibility
Rule of Law

A defendant can be convicted of attempt even if it is impossible to complete the underlying

offense.

Facts

On December 8, 1998, Deputy William Liczbinski made contact with Chris Thousand
(defendant) in an online chat room. Liczbinski posed as a fourteen-year-old girl named Bekka in
an effort to determine whether Thousand, a twenty-three-year-old male, was engaging in
criminal activity online. Over the next week, Bekka and Thousand’s conversations became
sexually explicit. Thousand sent her a photograph of male genitalia and asked if she wanted to
meet in order to engage in sexual activity. The two arranged to meet at a nearby restaurant. Once
Thousand arrived, Liczbinski apprehended him and charged him with attempted distribution of
obscene material to a minor. Thousand filed a motion to quash the charge of attempt, since it was
impossible to convict him of the underlying offense. The circuit court granted the motion and
dismissed the case. The Court of Appeals affirmed.

Issue

Can a defendant be convicted of attempt even if it is impossible to complete the underlying

offense?

Holding and Reasoning (Young, J.)

Yes. At common law, there are two types of impossibility: factual and legal. Factual
impossibility occurs when factual circumstances preclude the completion of a crime, such as
when a defendant tries to kill someone with an unloaded gun. Factual impossibility is never a
defense to an attempt crime. Legal impossibility, on the other hand, may be a defense to an
attempt crime if it is a pure legal impossibility. This occurs when a defendant believes his
conduct is criminal but in actuality, it is not. For instance, a defendant might engage in sexual
intercourse with a fifteen year old in a jurisdiction where the age of consent is fifteen. Even if the
defendant mistakenly believes the age of consent is sixteen, he is not guilty of statutory rape. It is
less clear whether a hybrid legal impossibility is a defense to an attempt. A hybrid legal
impossibility occurs when a defendant is factually mistaken as to a legal status, the existence of
which is a necessary element of the crime. For instance, a defendant who receives unstolen
property believing it is stolen may argue that he cannot be charged with the crime of receiving
stolen property. In that situation, he is factually mistaken as to the legal status of the property.
Courts have noted, however, that virtually any hybrid legal impossibility can be characterized as
a factual impossibility. Because they are indistinguishable, most jurisdictions have done away
with the defense of impossibility altogether. Other courts indirectly retain the defense. Rather
than referring to impossibility as an established doctrine, these jurisdictions simply interpret the
applicable attempt statute to determine whether a defendant’s mistake of fact or legal status
should preclude conviction of an attempt crime. Importantly, this jurisdiction has never
recognized the doctrine of impossibility for an attempt crime, whether factual or legal. Thus, in
order to determine whether the concept of impossibility precludes Thousand’s conviction, this
court must examine the applicable attempt statute to determine whether the Legislature intended
to carve out an exception to culpability where impossibility exists. This jurisdiction’s attempt
statute says that a defendant who attempts to commit a crime, commits an act in furtherance of
that crime, but fails to complete it, is guilty of attempt. There is no wording in the statute that
suggests the Legislature intended to allow a defendant to escape liability due to a mistake of fact
or legal status. Therefore, the defense of impossibility is unavailable to Thousand for his
attempted crime. It is true that Thousand cannot be convicted of the underlying crime, since he
could not be guilty of distribution of obscene material to a minor who does not exist. But here, he
is not charged with the underlying crime. He is charged with an attempt of that crime, and it is
irrelevant whether or not he could have completed the underlying crime. All that is relevant is
whether he had the requisite intent and took the requisite act in furtherance of that intent .
Accordingly, the circuit court should not have dismissed the charge against Thousand.

2 factors to determine attempt:

(1) Intent to commit an offense prohibited by law
(2) Steps were taken toward the commission of that offense

Dissent (Kelly, J.)
This court should find that the defense of legal impossibility applies because it was legally
impossible for Thousand to attempt to distribute obscene material to a minor. There is case law
in this jurisdiction that recognizes a defense to attempt where there is a mistake of legal fact, and
the language of the attempt statute does not preclude the defense of impossibility. The attempt
statute only criminalizes the attempt “to commit an offense prohibited by law.” But if a
defendant harbors a mistake of legal fact, his conduct is not prohibited by law. Thus, the attempt
statute is inapplicable where the underlying offense is not a crime.

Commonwealth v. McCloskey, 234 Pa. Super. 577 (1975).

 Inchoate offenses—“attempt”
 Special defenses—Abandonment
Facts:
 serving 1 to 3 year sentence for larceny
 at 12:15 am on 12/26/1972
 Guard Supervisor at the prison heard an alarm go off
 Alarm indicates that someone is attempting to escape in the recreation area
  Alarm was designed to be heard in the prison office but not in the courtyard
 Guards Szmulo and Banik
 found no one missing
 BUT near the recreation yard between 2 wings of the prison, they found one piece of
barbed wire that had been cut
 Also found a laundry bag filled with civilian clothing
 Bags are issued by the prison
 Marked with a different number for each prisoner
 Bag belongs to appellant—McCloskey
 McCloskey voluntarily approached Larson
 Told him—he spent the night on the 9 pm to 5 am shift at work in the boiler room
 Told Larson—“I was gonna make a break last night but I changed my mind because I
thought of my family and I got scared of the consequences.”
 Although McCloskey, scaled a fence within the prison walls that led to the recreation
yard and then to the prison wall, he went only as far as the yard before giving up his plan
to escape.
 McCloskey was still within the prison, still only contemplating a prison breach, and not
yet attempting the act.
 McCloskey was in a position to abandon the criminal offense of attempting prison breach
voluntarily.
 McCloskey’s sentence is vacated
 No criminal liability

State v. Mann, 317 N.C. 164 (1986).

 Solicitation
 Involves the asking, enticing, inducing, or counseling of another to commit a crime
 Solicitor conceives the criminal idea and furthers its commission via another person by
suggesting to, inducing or manipulating that person.
 Offense of solicitation merges into the crime solicited if the latter offense is committed or
attempted by the solicited party.

State v. Cotton, 109 N.M. 769 (1990).

 Solicitation
Facts:
 Convicted of soliciting the felony offense of bribery or intimidation of a witness
and soliciting the felony of custodial interference.


Pinkerton v. U.S.,
 Conspiracy endless unless terminated

People v. Swain, 909 P.2d 994 (1996).
Rule of Law

A conviction for conspiracy to commit murder requires proof of the intent to kill.

Facts

Jamal K. Swain and David Chatman (defendants) participated in a drive-by shooting that resulted
in the death of a 15-year-old boy. At trial, the court instructed the jury on the theories of express
and implied-malice murder. The jury returned general verdicts convicting Chatman of second-
degree murder and conspiracy to commit second-degree murder, and convicting Swain of
conspiracy to commit second-degree murder. Swain and Chatman appealed their convictions,
and the People appealed the sentences imposed by the trial court. The appeals court affirmed the
convictions and the sentences. The California Supreme Court granted the parties' petitions for
review. Among other things, the court considered the question of whether the trial court
improperly instructed the jury on the principles of implied-malice murder in connection with the
conspiracy charge, because implied malice does not require a finding of intent to kill.

Issue

Does a conviction for conspiracy to commit murder requires proof of the intent to kill?

Holding and Reasoning (Baxter, J.)

Yes. A conviction for conspiracy to commit murder requires proof of the intent to kill. The crime
of conspiracy occurs when two or more people agree to commit a target offense and undertake an
overt act in furtherance of the conspiracy. The crime generally requires two specific intents. The
defendant must both intend to conspire and intend to commit the elements of the target offense.
In first-degree-murder cases, an element of the offense is the specific intent to kill. Accordingly,
conspiracy to commit first-degree murder clearly requires that the defendant specifically
intended to kill. It is less clear whether conspiracy to commit second-degree murder also requires
a specific intent to kill. In second-degree-murder cases, the element of intent may be implied,
such as when the defendant acts with extreme recklessness. Thus, in second-degree-murder
cases, the specific intent to kill is not required. However, this does not mean that conspiracy to
commit second-degree murder does not require a specific intent to kill. Because conspiracy is a
specific-intent crime, it would be illogical to find the defendant guilty of conspiracy to commit
murder without finding that the defendant possessed the specific intent to commit murder.
Accordingly, a conviction of conspiracy to commit murder must be based on a finding of intent
to kill, not on an implied-malice theory. Here, the trial court instructed the jury on both express
and implied-malice murder, and the jury returned general verdicts. It is thus unclear on which
theory the jury based the conspiracy convictions. Furthermore, it cannot be said that this error
was harmless, because there is no way to determine whether the jury based the conspiracy
convictions on an improper theory. Thus, the appellate court's judgment affirming the
convictions must be reversed.

Commonwealth v. Azim, 459 A.2d 1244 (1983).

Rule of Law
A conviction of conspiracy may be based solely upon circumstantial evidence.

Facts

Charles Azim (defendant) was arrested for conspiracy, assault, and robbery, together with
Mylice James and Thomas Robinson. Azim was driving with James and Robinson when he
pulled over and stopped the car nearby the victim, Jerry Tennenbaum. Robinson opened the
window of the passenger seat and called Tennenbaum over. When Tennenbaum refused to
approach the car, Robinson and James exited the car and robbed Tennenbaum. Azim remained in
the car. When Robinson and James returned, Azim drove them away. Azim was convicted as
charged. He appealed, arguing that the evidence on the conspiracy charge was insufficient to
sustain a conviction.

Issue

May a conviction of conspiracy be based solely upon circumstantial evidence?

Holding and Reasoning (Per curiam)

Yes. A conviction of conspiracy may be based solely upon circumstantial evidence.
Conspiracy may be inferred from certain factors, such as the defendant’s relationship with other
conspirators or the defendant’s conduct or presence at the scene of the crime. Conspiracy has
previously been proven in cases where the defendant drove his codefendants to the scene of the
crime and picked them up afterwards. There are a number of factors in the present case that
indicate there is sufficient evidence to support a conviction of conspiracy. Azim drove Robinson
and James to and from the scene of the crime. He sat waiting in the car while James and
Robinson assaulted and robbed Tennenbaum nearby. Azim thus had full knowledge of the
commission of the crime. It is possible that a reasonable person could find beyond a reasonable
doubt that Azim conspired with James and Robinson to assault and rob Tennenbaum. Azim’s
motion for dismissal is therefore denied.

Module 09: accomplice liability

Page(s): 836-841, 881-883, 888-920
People v. Lauria, 251 Cal.App.2d 471 (1967).
 Investigation of call-girl activity
 3 prostitutes
 Using Lauria’s telephone answering service
 Stella Weeks—policewoman signed up for telephone service with Lauria’s answering
service
 April 1—Lauria and 3 prostitutes were arrested
 Lauria—complained he kept separate records for known or suspected prostitutes
 BUT his service did not arbitrary tell the police about prostitutes
 Lauria admitted he know some of his customers were prostitutes

State v. Hoselton, 179 W.Va. 645 (1988).

 Defendant (Hoselton) appealing conviction
 Of entering without breaking a vessel, with intent to commit larceny
  Hoselton—18 years old
 Was with several friends
 Charged as a principal in the 1st degree for either breaking and entering or entering
without breaking a storage unit on a docked barge with intent to commit larceny.
 Only evidence used to link Hoselton to the crime was his voluntary statement.
 Court has consistently held that lookouts are aiders and abettors, principals in the 2nd
degree.
 Principals in the 2nd degree are punishable as principals in the 1st degree.
 Prosecution must demonstrate that defendant shared the criminal intent of the principal in
the 1st degree.
 Accused stated he had no prior knowledge of his friends’ intentions to steal anything
from the barge.
 Accused’s response that “you could say” he was a lookout, standing completely alone,
does not establishment that the accused was an aider and abettor by participating in and
wishing to bring about the entering and intent to commit larceny.
 State did NOT prove that the accused was a lookout.
 Reversed and set aside accused’s conviction for entering without breaking.

Accomplice liability
 It is a “specific intent” crime

Common law—parties were defined as:

 principal in the 1st degree—one who actually commits the crime
 principal in the 2nd degree—who aids P1 and is present or constructively present
 accessory before the fact—who aids, encourages, or counsels with the requisite intent but
is not present
 law makes P1, P2, and accessory before the fact guilty of murder.
 Accomplice liability is derivative—it flows from the principal
 Accomplice could not be charged without the principal
 In order to convict an accomplice, you had to convict the principal
 If the principal could not be convicted, then you could not convict an accomplice

Today/ Modern law—parties are defined as:

 principal
 accomplice
 the principal need not be convicted
 even if the principal is not caught and could not be convicted, the accomplice can be
convicted
 what is required is that the prosecution must prove there was a principal who committed
the crime and accomplice aided with the requisite mens rea.

Elements for “accomplice liability”

(1) with the intent to aid, encourage or counsel another
(2) one does aid, encourage, or counsel
(3) another
 (4) to commit a crime
(5) with the intent that the person commit that crime

accomplice liability
 an accomplice is responsible for the crimes he aids and can be prosecuted for just as if he
himself committed the crime
 may also be found guilty for any crimes committed by the principal in the course
committing the contemplated crime as long as those crimes were the natural and
probable consequences of the crime aided and abetted.

Nature and probable cause doctrine

 may be charged with crimes that are the natural and probable consequences of the crime
aided and abetted.

Withdrawal
 an accomplice may withdraw before the crime has been committed:
o BUT the accomplice must communicate withdrawal to principal
o AND make bona fide efforts to neutralize effect of prior assistance
 Example: removes encouragement, takes gun back, notifies the authorities

Model Penal Code

 Person is guilty of an offense if he commits it by his own conduct or by the conduct of
another for which he is legally accountable.
 Legally accountable for the conduct of another thereby making them liable for the
offenses committed by another:
(1) Innocent agent—where the perpetrator does the conduct but does not have the
culpability to commit the offense. They do something that is a criminal offense
but for various reasons they don’t have the culpability to do so. The conduct of
the innocent perpetrator is imputed to the principal who lacks the conduct to
commit the crime.
(2) Accomplice—

Elements/ accomplice liability:

 conduct—soliciting, aiding, agreeing to aid, and attempting to aid
 culpability—with the purpose of promoting or facilitating the offense
 ***when there is a result element needed for the crime that is going to be committed by
the principal, the one aiding needs to act with the kind of culpability that is required for
the underlining offense.
 It also REJECTS the “natural and probable consequences doctrine”
 An accomplice is only liable for those crimes they facilitate and seek to promote.
 It does permit the accomplice to withdraw. Not an accomplice if terminates participation
before the crime has been committed and he neutralizes his assistance, gives warning to
the police, or in some other way attempts to prevent the crime.
 Accomplice may be convicted upon proof that a crime has been committed and that he is
an accomplice, regardless of whether the perpetrator has been convicted and the
accomplice may be convicted of a greater offense than the perpetrator if the accomplice
had the culpability for that offense.