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Contributed by Roger Martin, 2L Student by night at Univ. of San
Diego, Patent Agent by day at firstname.lastname@example.org
** People v. Newton, (1970)
2. Facts: Newton was arrested by a police officer. The police officer
shot Newton in the stomach, and then Newton fired several shots into the
police officer, killing him. Newton claimed to have remembered nothing
about the incident.
3. Procedural Posture: Newton was charged with murder. The trial judge
instructed the jury on the defense of "diminished capacity," which would
prevent Newton from being able to form the "malice aforethought"
necessary for murder, but did not instruct the jury on the defense of
"unconsciousness" because the defense withdrew the request for that
instruction. The defense of "unconsciousness" would have been a complete
defense to any crime. Newton was convicted of voluntary manslaughter by
4. Issue: Whether a trial judge's failure to give jury instructions
concerning involuntary unconsciousness in a homicide prosecution is
prejudicial error when evidence of involuntary unconsciousness is
produced, and when the defense withdraws its request for such
5. Holding: Yes.
6. P. Argument: The people argued that the defense was precluded from
asserting prejudicial error on appeal because the defense had
"withdrawn" the request for such jury instructions, thus inviting the
7. D. Argument: The defense argued that they withdrew the request for
the unconsciousness instruction because the trial court forced him to
choose between it and an instruction on diminished capacity.
8. Majority Reasoning: A defendant is entitled to have the jury
instructed on the theory of his defense because of his constitutional
right to have the jury determine every material fact, even if the
defendant's evidence does not inspire belief by the court. The judge had
an obligation to instruct the jury on the unconsciousness defense upon
his own motion. There was evidence in the record that it was "reasonably
probable" that the jury would have acquitted the defendant had they been
given the instruction on unconsciousness. Thus, there was actual
prejudice. In addition, the record did not contradict defense's claim
that the court forced him to choose between these alternate theories.
The withdrawal of the request for the unconsciousness instructions,
which would have provided a complete defense, was irreconcilable with
the "deliberate tactical purpose" of the defense withdrawing the self-
defense instructions. Thus, the defense's choice to withdraw the request
must not have been "invited error."
** People v. Decina, (1956)
2. Facts: Decina was an epileptic. While driving his car, he had an
epileptic seizure and the car went out of control, killing four people.
3. Procedural Posture: Decina was convicted of negligent homicide. Both
he and the prosecution appealed from the trial court's order for a new
trial because of an error in the admission of evidence.
4. Issue: Whether an epileptic person commits a crime when the epileptic
knowingly and voluntarily drives an automobile without assistance during
a time when a seizure is possible.
5. Holding: Yes.
6. P. Argument: Decina was culpably negligent in deciding to operate,
and then operating his car on a public highway because he knew that an
attack was possible at any time. Thus, Decina violated Penal Law 1053-a
concerning negligent operation of a motor vehicle.
7. D. Argument: Decina argued that the indictment did not charge a
crime, so his demurrer should have been sustained. Even if it were true
that his decision to operate the car was negligent, after he
subsequently lost consciousness, his actions were not culpable, so he
could not have been negligent in the operation of the car.
8. Majority Reasoning: The indictment clearly stated a violation of
1053-a because Decina's decision to drive was clearly culpably
negligent. To hold otherwise would be to excuse a drunk driver from the
consequences of a collision that occurred after he passed out, because
he was unconscious when it happened. Only sudden and unexpected health
problems were not culpable under the statute.
9. Dissent Reasoning: The statute made it a crime to operate a motor
vehicle in a reckless manner. Since Decina was unconscious at the time
of the crash, he could not have been reckless. It is a contradiction to
say that one drove a car recklessly because he was unconscious. Thus,
the statute did not apply to this situation. To hold otherwise would be
to make it a crime for any blackout-prone driver to drive at all.
I. The Conduct requirement
A. Criminal law punishes only actual conduct.
1. Failure to act when under a duty to act is "conduct."
2. Bodily movement is not "conduct" unless it is voluntary.
B. "Possession" of a substance requires that the defendant has knowledge
that the object is within his dominion and control, but does not require
that the defendant know that the object is contraband.
C. "Automatism" is distinguishable from "insanity"
1. "not guilty by reason of insanity" is normally followed by special
a. must be proved by preponderance of the evidence.
2. "not guilty" because of the defense of "unconsciousness" (a complete
defense) is an acquittal.
a. defendant only need to show that there was reasonable doubt as to
whether he was "unconscious."
D. The criminal conduct and the required culpability must occur at the
1. However, in the case of homicide, if the requisite intent was present
during the attack, the defendant is still guilty of murder even if the
victim died later of exposure because the two events will be viewed as a
E. MPC Sec. 2.01 - Requirement of Voluntary Act
1. Person must be physically capable of performing the omitted act if
charged with failure to act when required.
2. The following are not voluntary acts:
a. reflex or convulsion
b. bodily movement during unconsciousness or sleep
c. movement not the product of the effort or determination of the actor
3. Liability for an omission requires:
a. the omission was expressly made a crime
b. the actor was under a duty to perform
4. Possession requires that the actor have been aware of his control of
the object for a sufficient period to have been able to terminate his
** United States v. Yermian, (1984)
2. Facts: Yermian lied on his application for a DOD security clearance.
On the application itself, Yermian signed a certification that he
answers were "true, complete, and correct to the best of his knowledge"
and that he understood that "any misrepresentation or false
statement...may subject [him] to prosecution under section 1001" of the
US Criminal Code.
3. Procedural Posture: The trial court refused the defense's request for
a jury instruction stating that the Government must prove that he had
actual knowledge that the false statements were made in a matter within
the jurisdiction of a federal agency. The jury found him guilty on all 3
counts, and the Court of Appeal reversed.
4. Issue: Whether Sec.1001 of the U.S. Criminal Code requires that the
defendant have actual knowledge that false statements were made with
actual knowledge of federal agency jurisdiction over the matter.
5. Holding: No. The language "knowingly and willfully" in Sec.1001
modifies the making of "false, fictitious or fraudulent statements," and
not the predicate circumstance that those statements be made in a matter
within federal jurisdiction.
6. P. Argument: The gov't argued that the language "knowingly and
willfully" applied to the types of offenses committed, not whether the
offense was committed with actual knowledge of federal jurisdiction over
the matter. Thus, the trial court would be proper in refusing an
instruction requiring the gov't to prove actual knowledge of
7. D. Argument: The defense argued that unless "knowingly and willfully"
required actual knowledge of the jurisdiction, that Sec.1001 was a "trap
for the unwary" because it was too ambiguous.
8. Majority Reasoning: The statute, upon plain reading, made it clear
and unambiguous that "knowingly and willfully" modified the act, not the
jurisdiction. Thus, there was no need to prove actual knowledge of
9. Dissent Reasoning: The dissent argued that the majority had concluded
that the statute was unambiguous without citing any support. There was
no language in the Legislative history to indicate whether "knowingly
and willfully" was meant to modify the act or the jurisdiction. Thus,
under the rule of lenity, the language should be resolved in favor of
the defendant to avoid an unfair result.
I. Section 2.02 Model Penal Code
A. General requirements of culpability
1. At a minimum, the actor must have acted "purposely, knowingly,
recklessly, or negligently" (depending on the statute) with respect to
each material element of the offense.
2. Culpability defined :
a. Purposely - it is a conscious object to engage in the conduct, or he
is aware of the existence of attendant circumstances.
b. Knowingly - he is aware that his conduct, or is practically certain
that his conduct will cause a particular result.
c. Recklessly - conscious disregard of a substantial and unjustifiable
risk, grossly deviating from the standard of a law-abiding person.
d. Negligently - the actor should be aware of a substantial and
unjustifiable risk, wherein his failure to perceive it is a gross
deviation from the standard of care of a reasonable person.
e. Ex: anarchist throws a bomb into the king's coach that kills the
king, the valet, the coachman, and a bystander. The anarchist meant to
assassinate the king, was aware that the valet would also inevitably
die, was aware that the bomb might kill the coachman, but did not
consider whether it would kill a bystander. The anarchist has purposely
killed the king, knowingly killed the valet, recklessly killed the
coachman, and negligently killed the bystander.
3. Negligence is only criminal where expressly provided for in the
4. If the statute requires culpability without specifying which sub-
elements require culpability, then all material elements of the offense
require culpability. Thus, to be guilty of "causing injury to a police
officer" the defendant would have to be culpable with respect to causing
the injury as well as knowing that the victim was a police officer.
(This is contrary to Yermian).
5. If the statute requires mere negligence, the it is satisfied if the
actor acts purposely, knowingly or recklessly (greater degrees of
6. It does not matter if the purpose was conditional as long as the
intent was present. Thus, a burglar is guilty of burglary for forcible
entry even though he hoped that the use of force would not have been
7. It is sufficient that the actor is aware that there is a high
probability of the existence of a particular fact, unless he actually
believes that it does not exist. (Willful blindness).
8. Willfully equals knowingly.
9. It is not required that the actor have actual knowledge that his
conduct is "illegal."
10. If the statute treats degrees of culpability differently, then the
degree shall be the lowest for which the actor is proven to have had.
B. Material vs. Non-material elements - material elements go to the
criminality or wrongfulness of the activity as opposed to the merely
1. Negative material elements include the defenses to the charge.
a. Ex: self-defense is a negative material element to a charge of
** United States v. Jewell, (1976)
2. Facts: Jewell was found carrying a large amount of marijuana into the
United States, hidden in a secret compartment in the back of his car.
Jewell testified that he did not know that the marijuana was present.
However, there was evidence that Jewell knew that there was a secret
compartment, and that it was likely filled with marijuana, but that he
deliberately avoided positively determining the presence of the
marijuana so that he could avoid responsibility if caught.
3. Procedural Posture: The trial court refused an instruction that the
defendant must have "absolutely, positively" known that the marijuana
was there, and rather instructed the jury that the defendant must have
"knowingly" (meaning not by accident or mistake) brought the marijuana
into the U.S.
4. Issue: Whether "willful blindness" is a defense to a criminal charge
that requires knowledge.
5. Holding: No.
6. P. Argument: If the defendant deliberately "shut his eyes" to avoid
learning what was otherwise the obvious truth, then as far as criminal
law is concerned, that should be treated equally as positive knowledge.
7. D. Argument: That "knowingly" requires actual and positive knowledge.
8. Majority Reasoning: If willful blindness were treated any differently
than positive knowledge, as a practical matter, criminals could avoid
conviction by simply turning their heads. Thus, if the actor knew that
there was a high probability of a the existence of a material fact, but
decided not to confirm it by positive knowledge, he should still be
treated as having the requisite mens rea or culpability. See MPC
9. Dissent Reasoning: The dissent reasoned that the jury instruction
given was not specific enough in that 1) it failed to mention that the
actor had to know of the high probability of the marijuana being present
in order for the willful ignorance to be culpable, 2) it did not alert
the jury to the defense of "actual belief" that the marijuana was not
present (even though highly likely), and 3) it implied that Jewell could
be found guilty even if he was "not actually aware", meaning wholly
ignorant. Obviously, a statute which requires some knowledge can not be
violated by a person who is wholly ignorant.
** Ratzlaf v. United States, (1994)
2. Facts: Ratzlaf ran up a $160,000 debt playing blackjack. When time
came to pay the bill, he arrived at the casino with $100,000 cash in
hand. The casino notified him that the were required to report to the
government all single transactions in excess of $10,000, so he went to
several different banks and got several different cashier's checks for
less than $10,000 in order to avoid the reporting requirement.
3. Procedural Posture: Ratzlaf was convicted of violation of 31 USC Sec.
5322(a) and Sec. 5324(3) for "willfully" violating the antistructuring
provisions of these statutes. The Ninth Circuit affirmed, and the
Supreme Court granted cert.
4. Issue: Whether the language of the antistructuring statute requires
actual knowledge of the illegality of artificially structuring
transactions in order to avoid the government reporting requirement as a
necessary element of the mens rea to "willfully violate" the
5. Holding: Yes.
6. P. Argument: People who purposely structure transactions to avoid the
reporting requirements exhibit a purpose to do wrong. Structuring is not
the kind of activity that an ordinary person would engage in innocently.
Thus, it is reasonable to hold the structurer responsible, without
having to prove actual knowledge that the conduct was unlawful.
7. D. Argument: The government must prove that he had actual knowledge
of the law and that his purpose was to violate the law, not just to
avoid the reporting requirements.
8. Majority Reasoning: Although there are bad people who structure
transactions to hide illegal conduct from the government, there are also
innocent persons who do so for legitimate business purposes. Thus,
structuring is not so inherently "bad" that its commission is proof of
willfulness. "Willfulness" is the violation of a known legal duty. Since
Congress had included the word "willful" in the statute, it must mean
that there was something more required that mere violation of the
statute, namely that the defendant knew of his legal duty not to avoid
triggering such a report.
9. Dissent Reasoning: Ignorance of the law is no excuse. "Willfully"
means a conscious act but not necessarily consciousness that the act is
unlawful. To require proof of actual knowledge that the conduct is
unlawful would prevent conviction in many cases, opening up the loophole
for illegal conduct. Also, if a person had a legitimate business reason
for breaking up transactions, then it would not be structuring to avoid
the reporting requirement. Thus, the statute does not apply to a broad
range of innocent conduct, and so does not need to be read narrowly.
** Morissette v. United States, (1952)
2. Facts: Morissette was trespassing on government property when he came
across spent casings for training bombs. He collected up the casings,
flattened them and sold them for scrap. He did all of this in broad
daylight with the full knowledge that they were on government property
and with the purpose of getting money for them.
3. Procedural Posture: Morissette was convicted of stealing government
property. He admitted to taking the casings, but claims that he thought
that they were abandoned, and so took them innocently. The trial judge
refused to let the man testify that he thought they were abandoned and
instructed the jury that the felonious intent of stealing was proved by
the admitted act itself. The Circuit Court affirmed, citing to several
Supreme Court cases which held that intent was not a necessary element
of a crime where Congress had not expressed such a requirement in the
4. Issue: Whether stealing government property requires a culpable mens
rea to be convicted.
5. Holding: Yes.
6. P. Argument: The defendant took the casings from government property,
he was aware that they were on government property, and so his intent to
steal them was self-evident. In any event, 18 USC 641 does not mention a
required intent, so by "knowingly convert[ing]" the property, he had
violated the statute.
7. D. Argument: The taking must have been with a demonstrated felonious
intent. Since the judge refused evidence of abandonment to go to the
jury, he was actually prejudiced because they could have found that he
had no intent to steal.
8. Majority Reasoning: The common-law crimes which require culpability
are a separate class of crimes from those of regulatory offenses, which
may not require culpability. The common-law crimes have a long history
of requiring a culpable mens rea because they attach a social stigma.
Regulatory offenses, on the other hand, are less serious. Regulatory
statutes are in effect to police society in a way that reduces the
probability of a harm. Thus, they generally do not require a culpable
state of mind unless specifically expressed in the statute. The cases
cited by the Circuit Courts deal only with these regulatory statutes,
not the more serious common-law moral offenses.
** United States v. Weitzenhoff, (1994)
2. Facts: D.s were managers of the sewage treatment plant at Sandy
Beach. During some remodeling of the plant, they were unable to have
some of the waste activated sludge (WAS) trucked from their plant to a
neighboring plant to be processed. The sludge built up, and D.s ordered
the workers to discharge it directly to sea at night, and to bypass the
pollutant level measuring devices. They further ordered the workers to
remain quiet about the discharge, even when complaints arose from the
nearby recreational beaches.
3. Procedural Posture: The U.S. brought a criminal case under 33 U.S.C.
Sec.1319(c)(2) (the Clean Water Act), charging that they knowingly
violated the statute. The trial jury returned a verdict of guilty on 6
of 31 counts. D.s appealed.
4. Issue: Whether the Clean Water Act's requires the offender to know
that his conduct is in violation of the law, or simply that the offender
know that he is performing the act.
5. Holding: The Clean Water Act does not require that the offender know
that his conduct is in violation of the law.
6. P. Argument: The government is not required to prove that the
defendant knew that his act or omissions were unlawful.
7. D. Argument: The word "knowingly" requires the offender to know that
his actions violated the law, and since the defendants believed their
conduct was authorized by their permit, they should be retried with
proper jury instructions.
8. Majority Reasoning: Congress' legislative history tends to indicate
that criminal sanctions were to be imposed on violators even if they did
not know that their conduct was unlawful. Congress spoke in terms of
"causing" a violation either knowingly or negligently. They based their
analysis also on the case of U.S. v. Int'l. Minerals & Chem. Corp. where
the U.S. Supreme Court held that "where dangerous or deleterious devices
or products or obnoxious waste materials are involved, the probability
of regulation is so great that anyone who is aware that he is in
possession of them or dealing with them must be presumed to be aware of
the regulation." They distinguished Ratzlaf, on the grounds that it
involved banking statutes, and not the public welfare. In public welfare
statutes, Congress intended to place the burden on the defendant to
ascertain at his peril whether his conduct comes within the inhibition
of the statute.
9. Dissent Reasoning: Although these particular defendants were midnight
dumpers, indicating that they probably knew that their conduct was
unlawful, the jury instructions given lead to a verdict that is
consistent with the proposition that the jury felt that they did not
know, but convicted anyway because of the instruction that they did not
have to prove knowledge of the violation of the statute. Such a harsh
rule would discourage sewer treatment workers from providing the
valuable public service. The penalty should be reserved for those who
know that they are in fact violating a statute.
** Henderson v. Kibbe, (1977),
2. Facts: Respondent and another man robbed a drunk, took him to a
remote area in a car, dumped him off in the snow, and left him there
without any pants on and still intoxicated. The drunk sat down in the
snow in the middle of the highway. A speeding motorist saw him in his
headlights, but made no attempt to swerve or avoid him, and struck him,
3. Procedural Posture: The defendants were charged with second degree
murder which required "under circumstances evincing a depraved
indifference to human life, he recklessly engages in conduct which
creates a grave risk of death to another person, and thereby causes the
death of another person." The trial court did not issue an instruction
to the jury on causation, but did advise the jury that recklessness
requires the conscious disregard of a substantial and unjustifiable
risk. They were convicted, and appealed to the NY Court of Appeal, which
affirmed, holding that the ultimate harm was foreseeable as being
reasonably related to the acts. The District Court rejected a habeus
corpus writ, and the Court of Appeals for the Second District reversed,
claiming that the Constitution requires proof as to each element of the
crime, and that the failure to instruct the jury on causation was error.
4. Issue: Whether the failure of the trial court to instruct the jury
concerning the issue of causation was prejudicial error in this case.
5. Holding: No.
6. P. Argument: The death was foreseeable and would not have occurred
but for the conduct of the defendants who were therefore the cause of
7. D. Argument: The negligence of the truck driver was an intervening
cause which broke the chain of causation from the defendants. Also, the
defendants never could have foreseen such an occurrence of the truck
driver negligently hitting the drunk.
8. Majority Reasoning: A failure to give a particular instruction is
less likely to be prejudicial than a misstatement of the law. Since the
trial court did instruct the jury on recklessness being a "conscious
disregard", then it follows that a person who consciously disregards a
substantial risk must also foresee the harm that the risk entails. Thus,
the jury's determination that the respondent acted recklessly
necessarily included a determination that the ultimate harm was
foreseeable to him. Furthermore, in comparing the hypothetical jury
instruction that should have been given, it is likely that it would have
been even stronger for the prosecution, resulting in the same verdict,
and thus there was no prejudicial error.
** Papachristou v. City of Jacksonville, (1972)
2. Facts: Eight defendants were convicted in Florida of violating a
vagrancy ordinance which provided criminal penalties for "common night
walkers,...persons wandering or strolling around from place to place
without any lawful purpose or object, habitual
loafers,...persons...frequenting...places where alcoholic beverages are
sold or served, persons able to work but habitually living upon the
earnings of their wives or minor children." In each of the cases, the
persons may or may not have been preparing to commit a crime, but most
of them seemed completely innocent and being harassed by the police. The
statute did not provide any guidelines as to when the statute should be
enforced, thus leaving ultimate discretion to the arresting police
3. Procedural Posture: All were convicted in a Florida municipal court,
and all convictions were upheld by the Florida appellate courts.
4. Issue: Whether the Florida vagrancy statute was unconstitutional as
being contrary to the fourth amendment.
5. Holding: Yes.
6. Majority Reasoning: The statute failed to give a person of ordinary
intelligence fair notice that his contemplated conduct is forbidden by
the statute. It also encouraged arbitrary and unequal enforcement. It
served as a tool for the police officer to unreasonably detain and
harass minorities and poor persons who were not engaged in criminal
activity. It made criminal many actions that literally were normally
innocent. For example, many people walk at night for various legitimate
reasons. Many men live off of their wives' income. Many highly respected
persons frequent places where alcohol is served. This statute was
incompatible with the constitutional notion of "probable cause" and the
Fourth Amendment because it allowed persons to be arrested solely
because they appeared as if they might commit a crime in the future.
Furthermore, it was a tool that was being inconsistently applied to
minorities and the poor.
** People v. Caruso, (1927),
2. Facts: Caruso was an Italian immigrant whose son contracted
diphtheria. Caruso called a doctor, Dr. Pendola, who visited late one
night, gave Caruso a prescription for medicine, and then promised to be
back in the morning. Caruso filled the prescription, and testified that
the druggist indicated that the dose was too large for a child his son's
age. After Caruso stayed up all night with his son, the boy eventually
died in the morning. The doctor arrived late, and Caruso testified that
the doctor laughed or smiled when he stated that the boy was dead.
Caruso then "lost his head" and choked the doctor, and stabbed him to
3. Procedural Posture: In the trial court, the judge allowed the
prosecution to bring the doctor's wife to the stand and testify about
her life, which was a play on the jury's sympathy. The jury eventually
convicted him of first degree murder which requires premeditation and
4. Issue: Whether Caruso had formed the requisite intent to kill the
doctor to be convicted of first-degree murder.
5. Holding: No.
6. Reasoning: The question was not whether Caruso had reasonably
believed that the doctor had killed his son, but whether he had
premeditation and deliberation to kill the doctor. There was no evidence
at the trial to support premeditation and deliberation. In contrast,
there was evidence to support his contention that he lost control when
he thought that the doctor was laughing at his dead child. The attack
seemed to be the instant effect of impulse. The fact that he strangling
and the stabbing were separate acts did not matter, because they were
both part of the same transaction in this case.
** State v. Bingham, (1986),
2. Facts: Bingham raped and murdered a retarded adult woman. The autopsy
showed that the cause of death was asphyxiation by strangulation. There
was testimony that it took three to five minutes for a person to die of
3. Procedural Posture: The jury found Bingham guilty of first degree
murder and he was sentenced to life without parole.
4. Issue: Whether manual strangulation which takes three to five minutes
is sufficient evidence to support a finding of premeditation.
5. Holding: No.
6. Majority Reasoning: The majority rejected the prosecutor's argument
that since Bingham had the opportunity to reflect on his intent, that he
actually did do so. Premeditation requires a "deliberate formation of
and reflection upon the intent to take a human life." To allow a finding
of premeditation only because the act takes an appreciable amount of
time obliterates the distinction between first and second degree murder
because otherwise, any form of killing which took longer than a moment
could result in a finding of premeditation.
7. Dissent: The premeditation does not have to occur before the act
which results in the death begins. The amount of pressure required to
strangle someone is enough that the jury could be justified in
concluding that the death was not the result of an impulse or a
spontaneous act in the heat of passion.
** State v. Ollens, (1987),
2. Facts: Ollens stabbed and killed a taxicab driver. There was evidence
that a struggle was involved, and that Ollens slashed the taxicab
driver's throat after repeatedly stabbing him. The medical examiner
testified that the cab driver had died of excessive blood loss. Ollens
testified that he killed the cab driver only because he thought that the
cab driver was reaching for a weapon of his own.
3. Procedural Posture: Ollens was convicted of second degree murder, the
trial court relying on Bingham for the proposition that the use of a
knife to inflict more than one wound, is not by itself enough to prove
premeditation, but only intent to kill.
4. Issue: Whether multiple stab and slash wounds inflicted by a knife
are sufficient evidence in themselves for a reasonable jury to find that
there was premeditation.
5. Holding: Yes.
6. Reasoning: Bingham is distinguishable because manual strangulation is
one act. Ollens showed time to think by slashing the cab driver's throat
after stabbing him multiple times. Also, a Ollens had a knife which
shows some prethought, whereas Bingham used his hands. Also there was
other testimony, such as that Ollens struck from behind, that would
support a jury finding of premeditation.
** Gilbert v. State, (1986),
2. Facts: Gilbert's wife was in pain and was suffering from Alzheimer's
disease. They had been married for 51 years. She was taking pain
medication, but it did not seem to eliminate her suffering. She
complained to her husband that she wanted to die. Feeling that he had no
other choice to end her suffering, he shot her in the head, and then
shot her in the head again when he felt that her pulse was still strong.
3. Procedural Posture: Gilbert was convicted of first-degree murder.
4. Issue: Whether sentences for first-degree murder may be mitigated to
allow for distinctions between the motives behind the killing, if it was
5. Holding: No.
6. Reasoning: Euthanasia or "mercy killing" is not a defense to a
premeditated murder charge in Florida. The task of changing the law
belongs to the legislature, not the judiciary.
I. Criminal Homicide, General Principles
A. Murder and Manslaughter definitions
1. The Common-law definition of murder is "the killing of a human being
with malice aforethought."
2. Manslaughter is without malice aforethought.
a. voluntary (intentional)
b. involuntary (unintentional)
B. Definition of "malice aforethought"
1. Aforethought is now superfluous.
2. "Malice" means:
a. intent to kill another human being (express)
b. intent to inflict grievous bodily harm
c. extremely reckless disregard for human life,
d. intent to commit a felony during which a death results.
1. Voluntary manslaughter is and intentional killing committed in the
"sudden heat of passion" as the result of "adequate provocation."
2. Involuntary manslaughter is an unintentional killing that is the
result of "an act, lawful in itself, but done in an unlawful manner, and
without due caution and circumspection." (criminal negligence).
3. Misdemeanor manslaughter is a killing that occurs during the
commission or attempted commission of an unlawful act which is not a
D. Statutory reformation in criminal homicide law
1. The Pennsylvania model requires that first the determination that a
murder has occurred be made, then determine its severity.
a. First degree murder is:
1) by poison or lying in wait
2) by willful and deliberate premeditation
3) during the commission or attempted commission of a felony.
b. second-degree murder is all other murders that do not fall into one
of the three categories above.
II. Intent to Kill
A. One who intentionally kills another without justification or excuse
is guilty of common law murder.
B. Proving intent to kill
1. In general
a. The natural and probable consequences rule: in the absence of
evidence that D. was not able to foresee the natural and probable
consequences of his actions, the intent-to-kill can be satisfied by a
showing that the death was the natural and probable consequence of the
b. The deadly weapon rule: the intentional use of a deadly weapon allows
a jury to properly infer that intent to kill was present.
2. These are inferences, not presumptions that shift the burden of
C. Definition of "Willful, deliberate, and premeditated"
1. Willful means "a specific intent to kill."
2. Deliberate means "to measure and evaluate the major facets of a
choice or problem."
3. Premeditated means "to think about beforehand." In most
jurisdictions, this requires "some appreciable time," so that the D.
could give the matter "at least a second thought."
III. Intent to inflict grievous bodily injury - normally second degree
A. "grievous bodily injury" is that which "gives rise to the
apprehension of danger to life, health, or limb."
B. A person who unjustifiably and inexcusably intends to cause grievous
bodily injury is guilty of murder if the victim dies as a result of the
IV. Extreme Recklessness ("Depraved heart" Murder) normally second
A. The word "extreme" recklessness is used to distinguish from ordinary
B. The act involves such a high degree of risk taking that the actor "as
good as" intended to kill his victim.
1. ex: intentionally shooting a firearm in a crowded room
2. ex: driving recklessly in bad weather while drunk.
3. ex: failing to feed a child for two weeks
C. The actor may have to know that the act was unreasonably dangerous -
conscious disregard of a substantial and unjustifiable risk.
** Holmes v. Director of Public Prosecutions, (1946),
2. Facts: Holmes and his wife got into an argument about suspected
infidelity. During the argument, Holmes' wife admitted to adultery. In
response, Holmes struck her in the head with a hammer. She fell to the
ground, still alive, and so he strangled her to end her suffering.
3. Procedural Posture: At trial, the judge instructed the jury that, as
a matter of law, they were not entitled to find a verdict of
manslaughter because a statement of adultery, without more, is not
sufficient provocation to excuse the defendant from murder. The
appellate court affirmed, and dismissed the appeal.
4. Issue: Whether a spouse's confession of adultery is sufficient
provocation to cause a sudden and temporary loss of self-control by the
other spouse to prevent the formation of an intent to kill, thus
relieving the attacking spouse from a conviction of murder.
5. Holding: No.
6. Reasoning: The general rule is that if a reasonable person, in
consequence of provocation, might be so rendered subject to passion or
loss of control as to be led to the use of violence with fatal results,
and acts under such provocation, killing another, the person is guilty
only of manslaughter and not murder, having failed to generate the
requisite "malice aforethought", or intent to kill. However, where the
provocation inspires an actual intent to kill, as Holmes admitted in
this case, instead of uncontrolled passion, the rule does not apply,
except when a spouse actually finds the other spouse in the act of
adultery. Also, as a general rule, "mere words" are not sufficient
provocation because the reasonable person is expected to have a high
measure of self control. Thus, Holmes did not have sufficient
provocation. Furthermore, when words alone are relied upon for a
determination of sufficiency of provocation, it is the judge's function
as a matter of law to decide whether they are sufficient provocation and
instruct the jury accordingly.
** People v. Berry, (1976), briefed 9/27
2. Facts: Berry married a woman who, three days after their marriage,
traveled to Israel and claimed to have fallen in love with another man.
When she returned, she told Berry about the other man, and that she
wanted a divorce. However, for the next two weeks, she alternatively
taunted him with sex, and rejected him, claiming to be saving herself
for this other man. Several arguments and violent episodes occurred
during those two weeks, ending with Berry strangling his wife with a
phone cord. There was expert testimony at the trial that Berry was in a
state of uncontrollable rage due to his wife's taunting when he killer
3. Procedural Posture: Berry was convicted of first degree murder and
sentenced to life imprisonment. The trial judge did not instruct the
jury on voluntary manslaughter as Berry had requested.
4. Issue: Whether a defendant can be sufficiently provoked to a heat of
passion to kill another when the provocation is a combination of
continuous verbal and sexual taunting by a spouse over a considerable
period of time.
5. Holding: No.
6. Reasoning: In our present system of law, the jury decides whether the
facts and circumstances are sufficient to provoke an ordinarily
reasonable person to kill under the heat of passion. In Valentine, the
Court held that there is no specific type of provocation required, and
the verbal provocation may be sufficient, if it continues over a
considerable period of time. Admissions of infidelity and taunts can
support a finding of killing in the heat of passion. Thus, it was error
for the trial judge to refuse the voluntary manslaughter instruction
because a reasonable jury could have found that the defendant killed in
the heat of passion.
** People v. Chevalier, (1989),
2. Facts: In three consolidated cases, the husband killed the wife upon
a break up where the wife insulted the husband's masculinity and
admitted acts of adultery. In each of the cases, there was a prolonged
history of marital suspicion and arguments. In each case the wife was
shot by the husband during one final argument where the wife evidenced
an intent to leave the husband and insulted him.
3. Procedural Posture: In the trial courts, the judge either refused to
give the proper manslaughter instruction, or gave an instruction that
the defense claimed was prejudicial error. In each case, the defendant
was convicted for murder. In each case, the appellate court reversed the
conviction and remanded the cases for a new trial.
4. Issue: Whether the insults of the wife, combined with the prolonged
history of suspicion of adultery, was sufficient provocation for the
defendants homicide to be reduced from murder to manslaughter.
5. Holding: No.
6. Reasoning: The general rule is that mere words are insufficient
provocation to reduce a murder to manslaughter, no matter how
aggravated, abusive, or indecent the language. "Passion on the part of
the slayer, no matter how violent, will not relieve him from liability
for murder unless it is engendered by a serious provocation which the
law recognizes as being reasonably adequate." In Illinois, there are
categories of provocation which have been recognized. Finding a spouse
immediately before, during or after an adulterous act is one, but a
spouse who admits the adultery has occurred or will occur, without being
caught in the act, is not recognized as sufficient provocation. The
appellate courts had relied upon Ahlberg for the proposition that the
admission would be sufficient, but the facts of Ahlberg required that
court to go against the general rule in order to avoid the problem of
letting a man who had been convicted of manslaughter but acquitted of
murder go free without having to pay for the crime. The court also
speculated that the fact that the adultery had been suspected for a
while cut against a claim of sudden passion.
A. An intentional homicide committed in "sudden heat of passion" as the
result of "adequate provocation" mitigates the offense to voluntary
1. The actor must have acted in the heat of passion
2. the passion must have been the result of adequate provocation
3. the actor must not have had a reasonable opportunity to "cool off"
4. there must be a causal link between the provocation, the passion, and
B. "Passion" includes any "violent, intense, high-wrought, or
enthusiastic emotion" including fear, jealousy and wild desperation.
1. In common law, recognized categories existed for what could be deemed
2. In modern law, what is adequate provocation is more often being left
to the jury to decide.
a. one common law rule that persists is that words alone are not
sufficient provocation, but a distinction is being made between
insulting words (which are not adequate) and informing words (which may
be adequate given the circumstances).
b. the "reasonable person" standard is used to determine what is
adequate provocation, but the current trend is for this to be a slightly
subjective standard, taking into account particular characteristics of
3. The defense is unavailable if the reasonable person would have cooled
off between the provocation and the fatal act.
4. The motivation for the homicide must be the provocation, otherwise
there is no causal connection.
C. Rationale for the Defense
1. Original purpose was to avoid the harshness of the death penalty in
less morally-blameworthy killings.
2. Justification defense - the victim partially deserved to die because
the provocation was so bad, or the defendant had a right to harm the
defendant in retaliation for the invasion, but went too far.
3. Excuse defense - the defendant should be excused from murder because
the weakness of human passion that is common to all persons makes them
less blameworthy, or the actor's passion was so great that she lacked
sufficient free choice to be held fully accountable.
D. Burden of proof
1. provocation is a "failure of proof" defense, meaning that it negates
the intent to kill.
2. If the defendant produces evidence that there was heat of passion,
the prosecution then must prove that there was no heat of passion.
** Commonwealth v. Malone, (1946),
2. Facts: Malone was a 17 year old who had a friend named Long who was
13. Malone took a revolver from his uncle, and Long took a bullet from
his father. They met in a soda shop, and Malone suggested that they play
Russian Roulette. Long said he didn't care, so Malone proceeded to play,
pointing the gun at Long, and then shooting three times before the gun
went off and Long was mortally wounded.
3. Procedural Posture: Malone was tried and convicted for second degree
murder. He appeals from the conviction claiming that he could not be
convicted of second degree murder because he lacked the requisite
"malice aforethought" and intent to kill.
4. Issue: Whether playing russian roulette and pointing a gun at a
friend is sufficient to justify a conviction of second degree murder.
5. Holding: Yes.
6. Reasoning: The common law distinction between murder and other types
of killing was "malice." However, it did not have to be malice directed
against the victim personally. It could be "any evil design in general."
When an individual commits an act of gross recklessness for which he
must reasonably anticipate that the death of another is likely to
result, he is guilty of malice. Malone acted with reckless and conscious
disregard for the consequences of the russian roulette. The fact that he
had no motice to kill does not excuse him because proof of motive is not
** Berry v. Superior Court, (1989),
2. Facts: Berry owned a pit bull which he bought from a breeder. Berry
was very interested in dog fighting (he kept lots of manauls and
pictures on dog-fighting), and apparently was training the pit bull to
be a fighter. He kept the dog chained on the side of his house, between
the street and his backyard which contained a significant number of
marijuana plants. A neighbor child who was 2 1/2 years old wandered into
the dog's area, and was subsequently mauled to death.
3. Procedural Posture: Berry was charged with murder. This petition
seeks a writ of prohibition for dismissal of the charges of murder. He
claims that the evidence taken at a preliminary hearing failed to
establish the requisite malice for a charge of murder.
4. Issue: Whether there is sufficient evidence to submit the question of
malice to a jury.
5. Holding: Yes.
6. Reasoning: The general rule stated by Watson, is that the test of
implied malice in an unintentional killing is actual appreciation of a
high degree of risk that is objectively present. There must be a high
probability that the act done will result in death and it must be done
with a base antisocial motive and with wanton disregard for life. A pit
bull is objectively known as a very dangerous animal that attacks
swiftly, silently, and with tenacity. There is evidence that the D.'s
extensive knowledge of the breed could support an inference that he knew
the dogs were dangerous. Also, there is evidence of an anti-social
motive because the dog was stationed in such a way as to be approachable
by anyone passing by, and stationed to guard his stand of marijuana.
Thus, there was ample evidence to find implied malice.
** People v. Register, (1983),
2. Facts: D. was drinking in a bar when he got into an argument with
another patron. The D. pulled out a gun and shot at the other patron,
but accidentally hit a third person. He then, for some unknown reason,
shot another patron who was near, killing him.
3. Procedural Posture: D. was convicted of second degree murder. The
trial court accepted his proposed jury instruction concerning
intoxication with regard to the intentional murder and assault counts,
but refused to instruct the jury that they could take into account the
D.'s intoxication when determining whether he was guilty of a "depraved
indifference to human life."
4. Issue: Whether it is proper for a jury to consider that the D. was
intoxicated when determining whether he had the requisite malice to be
convicted of second-degree murder.
5. Holding: No.
6. D. Argument: The depraved mind murder contains an additional element
of mental culpability, namely "circumstances evincing a depraved
indifference to human life" which elevates his conduct from manslaughter
to murder, and that this element can be negatived by evidence of
7. Majority Reasoning: The statutory definition of depraved mind murder
includes a mental state of "recklessly" and a voluntary act. The penal
law precludes evidence of intoxication in defense of reckless crimes
because a person who creates such a risk but is unaware of the risk
solely because of voluntary intoxication is acting recklessly. The
additional requirement in the depraved heart murder statute of
"circumstances evincing a depraved indifference to human life" is not a
mental state, but rather an objective determination of the factual
setting in which the risk was created. It is not a new mental state
8. Dissent Reasoning: There is a different mental state involved in
depraved heart murder. The extra element is intended to be a
distinguishing mental state. The legislature has set the law in such a
way as to exclude evidence of intoxication when the mental state is
"recklessly" but has not done so with respect to depraved heart murder.
** People v. Whitfield, (1994),
2. Facts: Whitfield was a drunk driver with a long history of drunk-
driving offenses. While driving with a BAC of .24, he swerved into
oncoming traffic, killing the driver of an oncoming car in a head on
collision. Whitfield was found unconscious at the wheel with several
empty cans of malt liquor on the floor of the car. In connection with
his previous convictions, he had watched graphic films showing the
carnage caused by drunk drivers.
3. Procedural Posture: The trial court instructed the jury that the
malice required for murder could be implied when 1. the killing resulted
from an intentional act, 2. the natural consequences of the act are
dangerous to human life, and 3. the act was deliberately performed with
knowledge of the danger to and with conscious disregard for human life.
Also, the trial court instructed the jury that the degree of
intoxication at the time of the accident was to be considered in
determining whether the defendant had a specific intent or mental state.
However, the court refused to give an instruction that stated that if
they found the defendant was unconscious as a result of voluntary
intoxication and did not form the intent to kill, the crime is
involuntary manslaughter. The defendant was convicted of second degree
murder. On appeal, the defendant argued that the trial court erred in
refusing to instruct the jury with regard to unconsciousness caused by
voluntary intoxication. The court of appeals reversed, and the people
appealed to this court.
4. Issue: 1) Whether it is appropriate in a case of homicide for a
defendant to use self-induced intoxication to demonstrate that he did
not harbor malice, and therefore, is guilty only of manslaughter and not
murder. 2) Whether the trial court prejudicially erred in failing to
instruct the jury with regard to unconsciousness caused by voluntary
5. Holding: 1) Yes, 2) No.
6. D. Argument: The defendant sought to prove that he did not harbor
implied malice aforethought necessary for a conviction of murder because
he was so intoxicated that he was unconscious at the time the accident
7. Majority Reasoning: Murder is a specific intent crime in which malice
can be express or implied. In finding implied malice, there was no
dispute that the act of driving while intoxicated was intentional, and
that its natural consequence was death of another driver. Thus, the only
issue was whether the defendant was aware of the risk and consciously
disregarded it. The most important fact in determining whether he
consciously disregarded a known risk was his level of intoxication.
Thus, it was appropriate to instruct the jury to take into account the
defendant's level of intoxication when determining the verdict. There
could be cases where the defendant, because of his voluntary
intoxication, did not appreciate the risk involved. However, here the
defendant had previous convictions where it was reasonable for the jury
to find that he was aware of the risk. Thus, they could properly find
implied malice. As to whether the refusal of the unconsciousness
instruction was error, although the jury instruction was a correct
statement of law in the abstract, it erroneously implied in this case
that if the defendant were unconscious at the time of the accident, then
he could not be guilty of murder. The intent to kill could have been
formed beforehand. Since the jury did consider the defendant's level of
intoxication in reaching their verdict, and convicted anyway, it is
clear that failure to give such an instruction was not prejudicial
because it would not have changed the verdict.
** Todd v. State, (1992),
2. Facts: Todd entered a church and stole $110 from the collection plate
and ran. One of the members of the congregation took off in his car in
pursuit of the thief. During the chase, the man had a heart attack,
crashed and died. The man had a pre-existing heart condition of which
Todd was unaware.
3. Procedural Posture: The state charged Todd with manslaughter,
alleging that he caused the death of the man by committing the
misdemeanor petty theft. Todd filed a motion to dismiss, and the trial
court refused the motion. To get a final appealable order, Todd plea
bargained to manslaughter, and appealed.
4. Issue: Whether the act of petty theft was sufficiently causally
related to the death of the pursuing man to find the defendant guilty of
involuntary manslaughter (misdemeanor manslaughter).
5. Holding: No.
6. Reasoning: Historically, a person could be convicted for misdemeanor
manslaughter if a death occurred during, or as a result of, the
commission of a misdemeanor offense. However, there was divergent case
law whether the offense could be malum prohibitum or must be malum in
se, and what the necessary level of causation should be. The modern
trend has been toward requiring a proximate cause link between the crime
and the death, namely that the cause be a direct cause and a foreseeable
cause of the death. In this case, it cannot be said that the petty theft
was the legal cause of the death, because it was not a direct,
foreseeable risk of physical harm.
** Commonwealth v. Welansky, (1944),
2. Facts: Welanksky was the owner of a nightclub. Apparently Welansky
had defective wiring, no fire doors, locked emergency exits, and
flammable decorations in his nightclub. While trying to fix a lightbulb
in the basement, one of his employees lit a match to see by, and started
a fire that resulted in a panic of the patrons. Many people died from
smoke inhalation and burns.
3. Procedural Posture: The trial court convicted Welansky of
manslaughter for his reckless disregard of fire safety precautions which
resulted in the death of the patrons.
4. Issue: Whether the wanton or reckless disregard of an affirmative
duty to care for the safety of business visitors invited onto premises
which the defendant controls is sufficient to support a conviction of
5. Holding: Yes. "The essence of wanton or reckless conduct is
intentional conduct, by way of either commission or of omission where
there is a duty to act, which conduct involves a high degree of
likelihood that substantial harm will result to another."
6. Reasoning: Usually, wanton or reckless conduct consists of an
affirmative act in disregard of probable harmful consequences to
another. However, where a duty exists and it is recklessly disregarded,
the omission can serve as the reckless conduct. The standard of wanton
or reckless is a higher standard than that of negligence or even of
gross negligence. To constitute wanton or reckless conduct, the grave
danger to others must have been apparent to the defendant, and he must
have chosen to run the risk rather than take adequate precautions. The
standard of determining whether the grave danger was apparent is the
reasonable man standard. Thus, the defendant could have had no actual
awareness of the risk, but still be guilty if the reasonable man would
have realized the grave risk. Negligence and gross negligence are a
lower standard of act or omission. Wanton or reckless conduct is the
legal equivalent of intentional conduct.
** State v. Williams, (1971),
2. Facts: The defendants, husband and wife, were of low education and
worked full-time while the husband's mother took care of their infant
son. The son contracted an impacted tooth, which became infected,
eventually causing gangrene in the baby's jaw and cheek. The baby died
from the infection and resultant pneumonia brought about by weakness
from poor nutrition after about 2 weeks. The parents did not take the
baby to the doctor, first because they thought that the baby had a
toothache, and then because they were afraid that the baby would be
taken from them because of the neglected look he had due to the
infection. The parents continued to give the child asprin until he died,
hoping that the swelling would go down.
3. Procedural Posture: The trial court convicted defendants of
manslaughter for negligently failing to supply their son with the
necessary medical attention, as a result of which he died.
4. Issue: Whether the omission in the presence of a duty to act which
constitutes simple negligence is sufficient to support a conviction of
manslaughter when the omission results in the death of a person.
5. Holding: Yes.
6. Reasoning: In Washington, statutes codifying the previous common law
deem that manslaughter is supported even if the death of the victim is
the proximate result of only simple negligence. Since the reasonable
person standard is the standard for simple negligence, it does not
matter that the defendant in this case was of below average intelligence
or education. He must be held to the higher standard. The defendant had
a duty to furnish necessary medical care to the child because he was the
child's "guardian and custodian." Based on the medical evidence, it
appears that the duty to provide medical care arose in time for the
parents to take action. The failure to do so was ordinary negligence
sufficient to support a conviction of manslaughter.
I. Criminal Negligence
A. Criminal negligence is fenerally defined as representing a "gross
deviation from the standard of reasonable care, i.e. a person is
criminally negligent if he takes a substantial and unjustifiable risk of
causing a social harm."
1. Generally supports a conviction of "involuntary manslaughter."
2. Criminal negligence is a higher standard than ordinary negligence,
which is generally insufficient for criminal liability.
3. The difference between criminal negligence and the level of risk
taking that is legally equivalent to "malice aforethought" (and thus
murder), is that when the actor consciously disregarded the risk that
she was actually aware of, she is guilty of murder, but when the actor
should have been aware of the risk but was not is guilty only of
a. ex: playfully firing a known loaded gun into a crowd is murder.
b. ex: firing a gun believed to be unloaded is manslaughter.
II. Misdemeanor Manslaughter ("Unlawful-act manslaughter")
A. An accidental homicide that occurs during the commission of a
misdemeanor (not a felony).
1. Some courts limit its applicability to inherently dangerous
misdemeanors, requiring that the risk of death be foreseeable and
proximately caused by the misdemeanor.
2. Other courts distinguish between mala in se and malum prohibitum
(strict liability) crimes, applying the rule only to the former.
** People v. Aaron, (1980),
2. Facts: Aaron killed a person during the commission of an armed
robbery. [Two other cases, Thompson and Wright, armed robbery and arson,
repectively, were also reviewed under this case.]
3. Procedural Posture: Aaron was convicted of first degree murder under
the Michigan first-degree murder statute which made murder into first-
degree murder if it occurred during any of the enumerated felonies
[arson, rape, armed robbery, etc.]. The trial jury was instructed that
they could convict on first degree murder if they found that the
defendant killed the victim during the armed robbery. [This implies the
step of finding that the D. was guilty of murder simply because the
death occurred during the armed robbery. The statute only elevated the
murder to first-degree.]
4. Issue: Whether Michigan has a felony murder rule which allows the
element of malice required for murder to be satisfied by the intent to
commit the underlying felony.
5. Holding: No.
6. P. Argument: Although Michigan's first degree murder statute is not a
codification of the felony murder rule [finding malice from intent to
commit felony], the common-law definition of murder includes homicide in
the course of a felony. Thus, once a homicide in the course of a felony
has been proven, the statute then applies raising it to first-degree
murder as an enumerated felony.
7. Majority Reasoning: The felony murder rule is of questionable origin
and application. Although its origin has been traced to the early case
of Lord Dacres' Case, that case involved express malice on the part of
the hunters to kill the game warden, and so was really a case of
constructive presence on an agency or concert of action theory. Also, in
Mansell & Herbert's Case, the rock thrown was a deliberate act of
violence intented to harm a person, so the fact that it killed a
separate person made it a case of express malice and transferred intent
or misapplication of force. Lord Coke's statement of the felony murder
rule has been criticized as completely lacking authority. In the United
States, the trend has been to limit the application of the felony murder
rule, or to abolish it altogether as was done in England in 1957. For
example, the Model Penal Code requires that the felony itself must have
been dangerous to human life which proximately caused the death, thus
requiring a causal link other than coincidence. Thus, the common-law
felony murder rule is abolished in Michigan. Malice, then, is the intent
to kill, the intent to do great bodily harm, and wilful disregard of the
natural result of the defendant's action. The jury must be left to infer
malice from all of the evidence. This will not be a great upset because
in many cases, the felony murder doctrine was unnecessary because the
verdict could have rested on implied malice. However, this does mean
that the liability of each co-felon must be shown. In cases where the
death was accidental, the felony murder doctrine is unjust and should be
precluded. The statute elevating the murder to first-degree murder in
enumerated felonies will remain.
** People v. Patterson, (1989),
2. Facts: The D. and two girl friends were in his hotel room drinking
wine coolers, snorting and smoking cocaine, which the D. had furnished.
One of the girls became ill, and then died of "acute cocaine
3. Procedural Posture: The People filed and information charging the D.
with murder, arising out of the violation of Health & Safety Code Sec.
11532 which makes it a felony to transport, sell, furnish or administer
a controlled substance, including cocaine. The D. moved to set aside the
murder charge, and the trial court granted the dismissal, holding that
violation of Sec.11532 was not inherently dangerous. The court of appeal
affirmed the dismissal.
4. Issue: What the proper standard is for application of the second-
degree felony murder rule.
5. Holding: To be guilty of the second-degree felony murder rule, the
act must be "inherently dangerous to human life," meaning that it has a
"high probability that it will result in death." To determine whether
the act has a high probability of death, one must look at the statute in
the abstract, without reference to the particular facts of the case,
except where the statute itself has no primary element, in which case
each offense set forth in the statute should be examined separately to
determine its inherent dangerousness.
6. P. Argument: The second-degree felony murder rule should be expanded
to consider the individual facts in each case to determine the
dangerousness of the felony, rather that looking that the felony statute
in the abstract. Furthermore, the court should take judicial notice of
he various medical reports that demonstrate the dangerousness of
7. D. Argument: The whole statute must be looked at in the abstract to
determine the dangerousness of the felony, and there are many acts that
are felonious under Sec.11532 that are not inherently dangerous.
Furthermore, even if the offense is viewed narrowly as the furnishing of
cocaine, it is not inherently dangerous.
8. Majority Reasoning: In Ford, the court established that the second-
degree felony murder rule requires that the felony be inherently
dangerous to human life. In Williams, the court held that they must look
to the elements of the felony in the abstract, not the particular facts
of the case, to determine the dangerousness of the felony, because
otherwise, the existence of the dead victim in each particular case
might appear to lead to the conclusion that the act was inherently
dangerous. In several other cases, the court determined that the whole
statute must be looked to in order to determine the scope of the felony,
taking into account the non-hazardous ways of violating the statute.
However, in those cases, there was a primary element which was the basis
of the felony. However, in this case, the statute appears to be a
convenient lumping of several different individual felonies, and so
should not be treated as a whole. Rather, each offense should be
examined separately to determine its inherent dangerousness. Analogizing
from the rule for implied malice, the standard for dangerousness should
be "a high probability" that death will result. Thus, the case should be
remanded for trial.
9. Dissent Reasoning: [Lucas] argued that the "high probability"
standard would be impossible to satisfy because drugs themselves are not
so inherently dangerous. This is particularly unwelcome precedent at a
time when drugs are such a widespread and serious problem. [Mosk] felt
that breaking down the statute into individual offenses was improper,
and a broadening of the scope of the second-degree felony murder rule.
Viewed as a whole, the statute could be violated in many ways that were
not inherently dangerous to life. [Panelli] also felt that the second-
degree felony murder rule violated the principle of notice. It either
creates a non-statutory crime, or it increases the punishment otherwise
provided for under statute.
10. Notes: The second-degree felony murder rule seems to have its
origins in symmetry of law since there was a misdemeanor manslaughter
rule, and a felony first-degree murder rule.
** People v. Smith, (1984),
2. Facts: D. had a daughter, Amy, who refused to eat her snack on the
couch instead of the floor. D. and her boyfriend beat Amy to death.
3. Procedural Posture: The trial court instructed the jury that an
unlawful killing, whether intentional or unintentional, or accidental,
was second-degree murder if it occurst during the commission of a felony
inherently dangerous to human life, and that felony child abuse is such
a crime. The D. was convicted of second-degree murder.
4. Issue: Whether felony child abuse may serve as the underlying felony
to support a conviction of second degree murder on a felony murder
5. Holding: No.
6. D. Argument: On the facts, the crime of felony child abuse was an
integral part of and included in the homicide, and hence it merged into
the homicide under the furle of Ireland.
7. Majority Reasoning: In Ireland, the court held that the felony murder
rule is inapplicable to felonies that are an integral part of and
included in fact within the homicide. Because the felony murder rule
excuses the jury from having to find malice aforethought, allowing the
use of the felony urder rule in such cases would effectively eliminate
the element of malice aforethought because most murders occur as a
result of a felonious assault. Since the purpose of the felony murder
rule is to deter persons from comitting murder when they are committing
an independent felony, it should be inapplicable where the felony is an
integral part of the homicide because the actor is not deterred by the
felony murder rule if his intent is to commit felonious assault. The
felony does not have to be completely independent, but must be done with
an "independent felonious purpose." In this case, the violation of the
felony child abuse statute was the very assault which resulted in the
child's death, because the statute itself provides that the act be done
"under circumstances or conditions likely to produce great bodily harm
or death." Thus, the judgment should be reversed insofar as it convicts
D. of second degree murder.
** State v. Canola, (1977),
2. Facts: During the commission of an armed robbery of a jewelry store
by D. and three accomplices, one of the accomplices was shot by the
owner of the jewelry store in an effort to protect himself and his
property. The owner was also shot and killed by one of the accomplices.
3. Procedural Posture: The D. and the two other co-felons were charged
and convicted on two counts of murder, one for the owner, and one for
the co-felon whom the owner had shot.
4. Issue: Whether the doctrine of felony murder can extend to any
killing arising out of the commission of a felony, if it is directly
attributable to the act of a person other than the persons committing
5. Holding: No. "No person can be held guilty of homicide unless the act
is either atucally or constructively his, and it cannot be his act in
either sense unless committed by his own had or by someone acting in
concert with him or in furtherance of a common object or purpose."
6. Reasoning: Under the agency theory of felony murder, a felon can be
held liable for the homicides committed by his co-felon. However, it
does not follow that the person can be held liable for the homicide of
one of his co-felons at the hands of his intended victim. The felon
murder rule is to be narrowly applied since it is a remnant of archaic
** State v. Hoang, (1988),
2. Facts: Hoang was hired by a woman to burn down a restaurant. Hoang
hired three assistants to help him. While two of the assistants broke in
and went inside to start the fire, Hoang waited outside. The two
assitants who started the fire were killed from burns and smoke
3. Procedural Posture: Hoang was charged with two counts of felony
murder, and one count each of burglary and arson. The trial judge
dismisssed the felony murder counts.
4. Issue: Whether, in Kansas, the felony murder doctrine applies to the
accidental killing of a co-felon.
5. Holding: Yes.
6. Reasoning: The Kansas felony murder statute broadly provides that
murder is the killing of a human being committed in the perpetration or
attempt to perpetrate any felony. The purpose of the felony murder
doctrine is to deter al those engaged in felonies from killing
negligently or accidentally. Thus, in keeping with the purpose of the
statute, "any participant in a life-endangering felony is guilty of
first degreee murder when a life is taken in the course of committing or
attempting to commit the felony, regardless of whether the death was
intentional or accidental." Here the death was accidental, so the rule
applies. The fact that the victim was a co-felon is immaterial in
interpreting the Kansas statute, because it does not provide for such a
distinction. Any distinction should be up to the legislature.
** Downden v. State, (1988),
2. Facts: Dowden's brother was arrested and held at the police station
for robbing a 7-11 store. Dowden collected two assistants, and som guns,
and went to the police station to free his brother. When Dowden drew his
gun and demanded his brother, a gunfight ensued in which the police
captain was killed by one of his own officers, who shot before looking,
thinking the captain to be Dowden.
3. Procedural Posture: Dowden was charged with capital murder, for the
intentional shooting of the police captain. However, the ballistics
report indicated that the captain was killed by one of his own officers.
Dowden moved for a directed verdict of "not guilty" claiming that there
was a fatal error in the fundamental variance between the state's
pleadings and proof. He was convicted, however, and sentenced to life
4. Issue: Whether the felony murder rule is applicable where on of the
intended victims accidentally shoots another of the intended victims
during the assault.
5. Holding: Yes. "Malice may be established when a defendant initiates a
gun battle, and under such circumstances he may be convicted of murder
for a killing committed by another."
6. D. Argument: Under Penal Code Sec.6.04(a), he is not criminally
responsible because there was a concurrent cause (the other officer's
shooting without looking) which was clearly sufficient to produce the
result (the captain's death), and because his own conduct (intentionally
entering the station with a conscious disregard for life) was clearly
insufficient to cause the result.
7. Majority Reasoning: Under Blansett, there was ample evidence on which
the jury could infer an intent to kill on the part of Dowden. Also,
under California precedent, malice could be inferred from the
defendant's initiation of the gun battle. In all ways, the defendant's
conduct was intentional, and it can be said that he intentionally and
knowingly caused the death of the captain.
** State v. Hunter, (1987),
2. Facts: Hunter was hitchhiking and was picked up by a car with three
men in it. One produced a .357 magnum and a broken .22 caliber pistol
which Hunter fixed. Hunter asked to be let out of the car, but one of
the men, Remeta, threatened that he might kill Hunter, scaring him into
staying. The car was pulled over by a police officer, who Remeta shot to
escape. Shortly thereafter, the car arrived at an elevator, where Hunter
participated in the kidnapping of two of the attendants, who were later
shot and dumped on the side of the road by Remeta. Eventually, the car
was stopped by police and Remeta and Hunter were arrested.
3. Procedural Posture: Remeta pled guilty to all counts of felony
murder, assault and kidnapping. Hunter was convicted of two counts of
felony murder, two counts of aggravated kidnapping, one count of
aggravated robbery, etc. The trial court refused his instruction that it
was a defense to the charges that the defendant acted under compulsion
or threat of immediate infliction of death or great bodily harm,
reasonably believing that he would be greatly harmed if he had not acted
as he did. This was in keeping with a local statute concening the
defense of compulsion to crimes other than murder or manslaughter.
Hunter brought this appeal claiming prejudicial error.
4. Issue: Whether the defense of compulsion is available to a criminal
defendant charged with felony murder, when the person who commited the
homicide is the person who compelled the defendant's presence at the
5. Holding: Yes.
6. Majority Reasoning: The common-law justification for the defense of
compulsion is that a person, when given a choice between his own death
or great bodily harm and the commission of a lesser crime, should not be
punished for the lesser offense. The justification does not apply to
crimes of equal evil, such as murder or manslaughter, because the person
ought to sacrifice his own life rather than escape by murdering an
innocent. However, the murder exception does not carry as much weight
when applied to the felony murder rule. Particularly, the compelled
defendant should not have to suffer the penalty for murder because of
the acts of his threateners. [No deterrence value.] Since there was
evidence here that the acts were compelled, the trial court erred
prejudicially in refusing the instruction.
** United States v. Contento-Pachon, (1984),
2. Facts: D. was a taxi-cab driver in Bogota, Columbia. One of his
passengers threatened his wife and child with death if he did not carry
cocaine into the U.S. by swallowing several balloons. The threatener
added that he would kill the wife and kids if D. tried to get help or
failed to cooperate in any way, and sent someone to watch him to make
sure that he did not flee. In Los Angeles, the D. consented to having
his stomach x-rayed, resulting the finding of the balloons.
3. Procedural Posture: D. was charged with unlawful possession with
intent to distribute. At trial, the trial court refused to allow D.'s
offered evidence of duress or necessity, holding that as matter of law,
his evidence was too weak to support a showing of immediacy or
inescapability. D. appealed.
4. Issue: Whether the exclusion of the duress and necessity defenses
were prejudicial in this case.
5. Holding: Duress: Yes; Necessity: No.
6. D. Argument: Jorge was dangerous enough to present an immediate
threat to the lives of his wife and child, for the entire duration of
the flight. There was no opportunity to escape because the police in
Columbia and Panama are corrupt and paid by the drug dealers. There was
no opportunity prior to consenting to the x-ray to surrender to police.
7. P. Argument: The initial threats were not immediate because they
"were conditioned on the defendant's failure to cooperate in the
future." He was not physically restrained prior to the time he swallowed
the balloons, and so he could have sought help or fled. Also, there was
no evidence that he desired to turn himself in.
8. Majority Reasoning: The elements of a duress defense are 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. Sometimes, the D. must also submit to proper
authorities after reaching the position of safety. The D. satisfies each
of these conditions. However, the trial court was proper in excluding
the necessity defense, because it was inapplicable here. The distinction
between duress and necessity is that duress negates the mens rea
required for the crime, where necessity precludes the actus reus.
** People v. Carradine, (1972),
2. Facts: D. was a state's witness in a criminal prosecution of the
members of a gang in the slum where she lived in Chicago. Feeling that
she had been tricked by the state's attorney to whom she gave a
statement, she refused to testify any further on the grounds that she
feared for her own safety and that of her six children. She continued to
refuse to testify after several clear and repeated urgings by the judge
and offers to relocate her to other sites in the U.S.
3. Procedural Posture: The trial judge entered a finding of contempt
against her and sentenced her to be held in the local jail until she
4. Issue: Whether a refusal to testify for fear of personal retribution
is a valid defense to a finding of contempt in this case.
5. Holding: No.
6. Reasoning: The contempt finding was not entered into lightly. It was
done with fairness and reason. If a witness refuses to testify for
unreasonable grounds, they must be found in contempt so that the root
cause of the problems may be eliminated.
I. Duress and Coercion
A. Common-law defense to criminal conduct that generally is a complete
B. Five elements must be satisfied:
1. another person threatened to kill or grievously injure the D. or a
a. must be a person
b. ex: a burglary to avoid a lightning storm or a rabid dog would not
qualify for "duress", but may qualify for "necessity."
c. must be a threat of deadly force, not just property damage or
2. the D. reasonably believed that the threat was genuine;
3. the threat was "present, imminent, and impending" at the time of the
a. "present" means that the D. be aware of the threat in his own mind at
b. "imminent" usually requires that the threat be able to harm the D. at
the very time that he is committing the act, not after if there is time
4. there was no reasonable excape from the threat except through
5. the D. was not at fault in exposing himself to the threat.
C. Duress is normally treated as an excuse, not a justification.
1. excuses the particular D. for his behavior, but does not confer the
general right on others to act as the D. did in his position.
2. Utilitarian rationale for the excuse is that deterrence is
ineffective when a person is truly under duress.
a. no law can require a person to abandon their own self-preservation.
b. however, the defense raises the possibility of collusion.
3. Retributivist rationale is that the D. does not deserve to be
a. this does not mean that the mens rea is not present, only that it is
b. it also does not mean that the voluntary act actus reus was not
present, only that it is negated.
I. Defenses Generally
A. Failure of Proof defenses - D. introduces evidence at his trial that
demonstrates that the prosecution has failed to prove an essential
element of the offense charged.
a. D. thought that he fired his gun at a tree stump, not a human
(mistake of fact-lacked mens rea).
b. D. was unconscious (automatism-lacked actus reus).
2. Purpose is to raise reasonable doubt.
3. Prosecution retains the burden of proof (production and persuasion)
to disprove the D.'s failure of proof defense.
B. "True" defenses - if proved, results in the acquittal of the D., even
though the prosecution has proved every element of the offense.
1. Justification defenses - D. acted the "right" way, even though he
committed a crime.
a. focuses on the act of the D..
b. Ex: self-defense homicide.
2. Excuse defenses - although the D. committed the crime, he should not
be punished because he was not morally culpable.
a. focuses on the actor, not the act.
b. Ex: insanity
A. As a result of some force or condition, the D. must choose between
violating a relatively minor offense or suffering (or allowing others to
suffer) substantial harm to person or property.
1. The actor must be faced with a "clear and imminent danger."
2. D. must reasonably expect that his action will be effective in
abating the danger that he seeks to avoid.
3. there must be no effective legal alternative available.
4. the harm caused must be foreseeably less than the harm avoided.
5. legislature must not have anticipated the dilemma and previously
resolved it against the choice made by D..
6. D. must not be at fault in wrongfully placing himself in the position
where he was forced to engage in criminal conduct.
C. Three limitations may apply:
1. some states limit the necessity defense to emergencies created by
natural (not human) forces.
2. may not apply in homicide cases (Dudley & Stephens lifeboat case)
a. a case of equal harms, D.'s life or an innocent life.
b. might be overcome if the harm was sufficiently imminent and the harm
avoided was the death of D. and the innocent.
3. the D. may not act to protect his reputation or economic interests,
only persons or property.
D. Civil Disobedience
1. Direct civil disobedience is protesting a certain law by breaking it.
a. necessity rarely arises.
2. Indirect civil disobedience is protesting something by breaking an
unrelated law in order to call attention to your protest.
a. necessity is not available as a defense
3. Policy for: empower a minority of individuals by providing a public
forum for their cause.
4. Policy against: people who are compelled to violate the law, but also
believe in the democratic system, should accept their punishment.
** United States v. Schoon, (1991),
2. Facts: The D. was a part of an organized protest group that gained
admittance to an IRS office and splattered fake blood on the office,
chanting "keep America's tax dollars out of El Salvador."
3. Procedural Posture: D. was prosecuted, and a trial, the judge refused
to allow the defense of necessity, finding that 1) the requisite
immediacy was lacking, 2) the actions taken would not abate the evil,
and 3) other legal alternatives existed.
4. Issue: Whether the necessity defense is available in a case of
indirect civil disobedience.
5. Holding: No.
6. Majority Reasoning: Necessity is a utilitarian defense. It seeks to
maximize social welfare by minimizing the effect of competing harms. It
allows the courts to craft exceptions to criminal statutes when it is
clear that the legislature would have done so under the same
circumstances. As such, it can not be applied with the harm to be
averted is not a harm at all. Here, the government, elected by the
people, has deemed aid to El Salvador to be beneficial, not harmful. The
law can not allow individuals to put their subjective judgment on what
is harmful above that of the legislature. Second, the act of protest
here was very unlikely to abate the harms occuring in El Salvador.
Thirdly, legal alternatives will never be deemed to be exhausted when
the harm can be mitigated by congressional action. Congress can always
change its mind based on the ballot box. Lastly, the problem here is
that the D. is trying to distort the necessity defense as a means of
providing notoriety for his cause. Thus, indirect civil disobedience can
never support a necessity defense.
** Commonwealth v. Hutchins, (1991),
2. Facts: D. used marijuana to relieve symptoms of a painful
debilitating disease he had called "scleroderma." There was some
evidence that the marijuana had a beneficial effect on the D.'s
symptoms, but there was no hard medical evidence that it was a viable
and safe treatment for his disease. Thus, the VA hospital would not
dispense marijuana for his treatment.
3. Procedural Posture: D. was charged with possession of marijuana. He
filed a motion to dismiss the charges based on medical necessity. The
trial court ruled that medical necessity was not a defense and convicted
4. Issue: Whether a charge of possession of marijuana may be
successfully defended against by a claim of medical necessity.
5. Holding: No.
6. Majority Reasoning: The court recognized the common-law elements of
the defense of necessity, and focused upon the competing harms analysis.
Only when the harm avoided can be said to be greater than the harm
caused can the necessity defense apply. In the court's view, the
alleviation of the D.'s medical symptoms did not "clearly and
significantly" outweigh the potential harm to the public if they were to
declare that marijuana is legal for medicinal purposes.
7. Dissent Reasoning: The dissent reasoned that the court's recognition
of a medical necessity defense in this case would have a negligible
effect on the enforcement of drug laws. The case should have gone to a
jury to decide this issue of whether the facts supported acquittal.
** State v. Stewart, (1988),
2. Facts: D. was a battered wife who endured many years of brutal abuse,
mental, physical and sexual at the hands of her evil husband. Evidence
at the trial indicated that she suffered from "battered-wife" syndrome,
in which a battered spouse continually subjects herself to a repetitive
pattern of abuse. At one point, she left her husband and sought a
divorce, but eventually returned. Shortly after returning, it appeared
that the husband was going to escalate the violence to seek some sort of
revenge for her leaving, and so the D. hid a loaded gun under the
mattress of a spare bedroom. After another abusive incident, the wife
went to bed with her husband and decided to shoot him in his sleep.
There was conflicting evidence as to whether the D. reasonably believed
that she was in imminent danger or felt that she had alternative legal
means available to end the abuse.
3. Procedural Posture: The trial court gave a jury instruction on self-
defense, and supplemented it with a statement that they must determine,
from the subjective viewpoint of a battered wife, whether the D.'s
belief that she was in imminent danger was reasonable. The jury
acquitted D., and the prosecution brought this appeal.
4. Issue: Whether the jury instruction concerning self-defense was
5. Holding: No.
6. Majority Reasoning: For self-defense to be applicable, the D. must
reasonably believe that an agressor 1) intended to take her life, 2)
attempted to take her life, or was in an apparent situation to do so,
and 3) induced her into a reasonable belief that he intended to take her
life immediately. Generally, no one can attack and kill another because
he may fear injury at some future time. In spousal abuse cases, the
danger can still be imminent if the attacker is sleeping because it may
be just a momentary lull in the violence. However, the key to this case
was whether the D., as a battered wife, had a reasonable belief that she
was in imminent danger, not whether she subjectively believed that
killing him was a justifiable solution to the repeated pattern of abuse.
Based on the objective evidence presented, there were alternate means
available to extract herself from the danger, thus her fear of imminent
danger was not objectively reasonable, even if it was her honest belief.
To permit a battered wife to shoot her husband, no matter how evil, when
there is not imminent danger, is not tolerable by the law.
7. Dissent Reasoning: The majority exceeded the scope of review, which
was simply the determination of whether there was sufficient evidence to
sustain a jury instruction for self-defense. It was the function of the
jury to weigh the evidence, not the court. The D. met her burden of
showing some competent evidence that she acted in self-defense, and it
was for the jury to weigh that evidence.
** State v. Simon, (1982),
2. Facts: D. was an elderly racist who was very confused about reality.
D. had many heated arguments with his neighbor, who was Asian. Fearing
that his neighbor was an expert in martial arts, D. waited until the
neighbor was entering his own duplex, and shot at him.
3. Procedural Posture: D. was charged with aggravated assault. The trial
court allowed evidence of the D.'s aberrant mental state, and then
instructed the jury that a person may claim self defense if if "appears
reasonable to him under the circumstances" that he was in imminent
danger. (Subjective standard). D. was acquitted and the state appealed,
claiming erroneous jury instructions prejudiced the case.
4. Issue: Whether the statutory justification for the use of deadly
force in self defense is to be determined by a subjective standard (from
the D.'s point of view) or by using an objective standard (from the
viewpoint of a reasonable person in the D.'s position).
5. Holding: Both. "A reasonable belief implies both a belief [honest]
and the existence of facts that would persuade a reasonable man to that
6. Majority Reasoning: The jury was instructed only to the subjective
standard, not the objective standard. Under the totality of the
circumstances, one must assume that this was the reason that they
** Jahnke v. State, (1984),
2. Facts: D. was an "all-american" boy who was physically and mentally
beaten and abused by his father since about the age of five. The father
was a cruel bully who would beat the son for minor perceived bad
behavior. When the boy was 16, after a particular abusive incident, the
father and mother went to dinner. While the parents were out, the son
prepared for the ambush of his father by dressing in dark clothing, and
stationing a number of weapons around the house. When the parents
arrived, he shot and killed his father with a shotgun.
3. Procedural Posture: The trial court refused to allow the defense
counsel to question the jury about their attitudes on self-defense. It
also excluded testimony indicating that the son had a "battered child"
syndrome, making him perceive parental danger differently than others.
The D. was convicted of manslaughter and given a light sentence.
4. Issue: Whether past abuse of a child by his parents justifies a
defense of self-defense when the child does not objectively appear to be
in imminent danger of death or great bodily injury.
5. Holding: No.
6. Majority Reasoning: The evidence pointed to a finding that the son
killed the father for revenge for past events. The defense's attempt to
establish the concept that one who is a victim of family abuse is
justified in killing the abuser is contrary to established law on self-
7. Concurrence Reasoning: The concurrence reasoned that the D. had been
given every possible advantage in the trial, specifically allowing the
testimony of abuse, and instructions for self-defense and manslaughter
when the evidence pointed clearly to murder.
8 Dissent Reasoning: The dissent felt that the majority did not consider
the significance of the long history of cruel physical and mental abuse
properly. They felt that the court prejudicially erred in excluding the
expert testimony concerning the "battered child syndrome," making the
self-defense instruction seem unfounded in the eyes of the jury. It was
also error to exclude voir-dire questions concerning the jury's feelings
A. At common-law a person who is not an aggressor is justified in using
force upon another if he reasonably believes that such force is
necessary to protect himself from imminent use of unlawful force by the
1. "necessity" requires that the force should not be used against
another person unless, and only to the extent that it is necessary.
2. "proportionality" requires that the person is not justified in using
force that is excessive in relation to the harm threatened.
3. Also, the person is justified only if he has reasonable grounds for
believing that such force is necessary, even if it turns out that it was
B. Aggressor/Non-aggressor limitations
1. An "Aggressor" is a person whose "affirmative unlawful act is
reasonably calculated to produce an affray foreboding injurious or fatal
a. ex: if D unlawfully brandishes a knife and threatens to kill V, D
cannot claim self-defense if V responds with violence.
b. a person is an aggressor even if he merely starts a non-deadly
c. a person is not an aggressor if his conduct is lawful.
2. A deadly aggressor is a person whose actions are reasonably
calculated to produce fatal results.
a. a deadly aggressor may only claim self-defense if he has withdrawn
and successfully communicated to the victim that he is no longer a
b. a non-deadly aggressor usually can assert self-defense if the
response to his non-deadly aggression is deadly force.
c. some jurisdictions require even a non-deadly aggressor to retreat.
1. most jurisdictions allow a non-aggressor to stand his ground and
assert self-defense even if there are alternatives available to retreat
to complete safety.
a. policy is that it would unduly put victims at the mercy of assailants
because there could be few real self-defense cases.
2. Some jurisdications require the victim to retreat, unless he is in
his own home ("castle" exception).
a. policy is to place the value of human life over the "manly" right to
stand up to aggression.
** State v. Wanrow, (1977),
2. Facts: Wanrow was a mother who had two young children that were
staying at a friend's house. One of the neighbors, Wesler, was suspected
of child molestation, and was accused by the D.'s son of attempting to
drag him into a house. Also, the friend's daughter identified Wesler as
the one who had molested her, and the landlord stated that Wesler had
attempted to molest the previous residents of the house. Afraid that
Wesler would come back during the night and attempt to break in, a group
of parents gathered in the house with their children. Early in the
morning, some of the fathers went to Wesler's house finding him
intoxicated. Wesler then went with the fathers back to the house, and
attempted to "explain" the accusations. A loud argument ensued, and
Wesler apparently refused to leave. The D. left the room, and when she
turned around, she saw Wesler, a large man, standing behind her,
startling her. She then shot Wesler with a revolver as a "reflex
3. Procedural Posture: The trial court instructed the jury on self-
defense according to an instruction #10 which stated that "there must
be, or reasonably appear to be, at or immediately before the killing,
some overt act" which would reasonably lead the D. to believe that the
agressor was trying to kill him or inflict great bodily harm upon him.
The instruction used the male pronouns throughout. The court also
admitted a recording of the call to police to report the shooting. The
jury convicted the D..
4. Issue: Whether it is proper to exclude consideration of past events
in the D.'s knowledge or experience when instructing the jury on self-
5. Holding: No.
6. Majority Reasoning: Instruction 10 was misleading and a misstatement
of law to the extent that it required that the jury consider only those
acts and circumstances occurring "at or immediately before" the killing.
The justfication of self-defense is to be evaluated in light of all of
the facts and circumstances known to the D., including those known
substantially before the killing. The standard for self-defense is not
an exclusively objective one as indicated by the instruction.
Furthermore, the instruction was sexually biased. In using the male
pronouns for a D., it gave the false impression that the jury should
apply an objective standard based on an altercation between two men. The
fact that the D. was an injured and small woman, and that the deceased
was large and intoxicated man are facts which are proper for
consideration by the jury in their determination of whether the D. acted
** State v. Gallagher, (1983),
2. Facts: Gallagher and his neighbor had a history of not getting along.
One morning, after an incident, the neighbor called the police and
demanded that they arrest Gallagher. When the police arrived, they told
Gallagher that they wanted to talk about the incidents. He invited the
police in, and after some discussion, they asked him to come outside to
talk with them further (and to arrest him, obviously). When he refused,
an altercation ensued and he was subdued by force.
3. Procedural Posture: At trial, D. asked for jury instructions
concerning the illegality of making an arrest in a person's home without
a warrant. These were denied, and the D. was convicted of resisting a
arrest and assault on a police officer.
4. Issue: Whether the common law privilege to resist an unlawful
warrantless entry by the police into one's home is a defense to the
misdemeanor of interfering with a police officer.
5. Holding: Yes.
6. Majority Reasoning: The U.S. Supreme Court held in Payton v. New
York, that it was unconstitutional under the 4th (and through the 14th)
amendment to make a warrantless and non-consensual entry into a
suspect's home in order to make a routine felony arrest. Here it appears
that the requisite consent for entry to make an arrest was not given.
The officers did not indicate to D. that they wanted to arrest him until
after they had illegally entered the house. Although a local statute
makes it a crime to resist arrest, even when unlawful, it does not go so
far as to abolish the common-law privilege to resist unlawful entry.
When an entry is gained through trickery, it is unlikely that resistance
will occur before the attempted arrest. Thus, the state can not claim
that the resistance was unrelated to the illegal entry, and the trial
court erred in refusing an instruction regarding privileged resistance
to illegal entry.
7. Concurrence Reasoning: The concurrence reasoned that the officer was
not in the performance of his duties when he illegally entered the house
for the purpose of making an arrest. Thus, since the police officers
were not performing their legal duties, the D. had a privilege of
I. Law Enforcement
A. The defense of "law enforcement" is really three subdefenses:
1. public authority
2. crime prevention
3. effectation of an arrest
a. the arrest itself
b. prevention of escape.
B. Common-Law Arrests (public authority)
1.A police officer must have "probable cause"
a. when the facts and circumstances within an officer's knowledge and of
which she has reasonably trustworthy information are sufficient in
themselves to cause a person of reasonable caution to believe that an
offense has been committed and that the person to be arrested committed
2. Private citizens may make a citizens arrest if:
a. the crime actually occurred (mistake of fact not allowed), and
b. the citizen reasonably believes that that suspect committed the
crime. (mistake of fact allowed)
C. Deadly force
1. May never be used to prevent a misdemeanor.
2. Broad defense - Minority view
a. reasonable belief that the person is committing a felony and that
deadly force is needed to prevent it.
3. Narrow Defense - Majority view
a. right is limited to the prevention of "forcible" or "atrocious"
4. Common-law rule
a. Police Officers may use deadly force against a suspect who the
officer reasonably believes committed a felony.
b. Private citizen may use deadly only against someone who actually
committed a felony.
5. Tennessee v. Garner is narrower than the common-law rule:
a. must have "probable cause to believe that the suspect poses a
significant threat of death or serious physical injury to the officer or
b. such force is necessary to make the arrest or prevent escape.
** People v. Couch, (1989),
2. Facts: Couch confronted a thief who was stealing the stereo out of
his new car. Couch had a gun and demanded that the thief accompany him
to go to the police. The thief lunged at him, and he fired, missing.
Then the thief ran, and Couch shot him in the back twice.
3. Procedural Posture: The D. was charged with manslaughter. The lower
court held that the case of Whitty, which followed the common-law rule
allowing private citizens to use deadly force to stop a fleeing felon,
was controlling in this case, and not Garner which required that the
suspect pose a threat of death or serious bodily injury. The judge thus
refused a prosecutor's jury instruction on Garner. The trial was stayed
pending this appeal.
4. Issue: What is the proper standard to apply to a private citizen who
uses deadly force to stop a fleeing felon.
5. Holding: Same as a police officer in Garner. The private citizen can
use deadly force to stop the escape of a felon where it is reasonable
for the citizen to believe that the felon poses a threat of serious
physical harm either to that citizen or others.
6. Majority Reasoning: The Whitty court upheld the existing common law
rule, but supplied it with a new rationale - that a private citizen is
acting in the stead of a police officer, because the police officer can
not always be present. Since the Garner court had given the standard for
police officers, and the Whitty court had said that the private citizen
stands in the shoes of the police officer, then the Garner standard was
applicable to private citizens in that situation as well.
** People v. Samuels, (1967),
2. Facts: D. advertised in the San Francisco "underground" area that he
was a sadist and that he was looking for a masochist to beat on for a
film. A person responded, and D. testifies that he drove him to his
home, where he made a film of D. beating the person with a whip. The
victim was severely beaten on film, and D. was caught when he turned the
film into Kodak for processing.
3. Procedural Posture: D. was charged with aggravated battery. The D.
claims that the victim consented to the beating and so it was not
battery. The trial court refused to give this instruction to the jury.
4. Issue: Whether consent of a victim is a defense to a charge of
5. Holding: No.
6. Reasoning: Consent is normally only a defense in a sporting event,
not in an aggravated beating. Even if the victim did in fact suffer from
some mental abberation that compelled him to submit himself to a
horrible beating, the conduct of the D. was still a violation of the
statute designed to prevent aggravated assault.
** People v. Guenther, (1987),
2. Facts: Guenther shot two of his neighbors and their guest after a
fight erupted between his wife and the neighbors on his front lawn. The
neighbor's wife died.
3. Procedural Posture: The trial court dismissed the charges against the
D. under a Colorado statute that immunized a D. from prosecution if he
used physical force against a person who has made an unlwaful entry into
his dwelling and who the D. reasonably believes has committed or intends
to commit a crime by physical force against the occupant.
4. Issue: Whether it is proper for the trial court to dismiss the
charges, and under what standard of proof.
5. Holding: Yes. Preponderance of the evidence.
6. Reasoning: The legislative history of the statute evidences that the
proponents meant it to immunize a D. from prosecution so that the D.
would not be put to financial ruin in defending his own home. Thus, a
dismissal at the pretrial stage was proper. The proper burden of proof
is preponderance of the evidence that the D. prove that he acted within
the statute. If the immunity fails at the pretrial conference, it is
still available as an affirmative defense at trial.
** People v. Ceballos, (1974),
2. Facts: Ceballos kept a large amount of personal property in his
garage. After noticing that someone had attempted to break in to steal
his property, Ceballos rigged a "spring gun" to the garage door, aimed
to shoot someone who opened the door. Two teenagers attempted to break
in one night to perhaps steal some of the property, and one was shot by
the spring gun as he tried to open the garage door.
3. Procedural Posture: The trial court found Ceballos guilty of assault
with a deadly weapon.
4. Issue: Whether it is lawful to rig a spring gun to protect a person's
dwelling place from burglary.
5. Holding: No.
6. Reasoning: The spring gun can nt distinguish between felons who
intend to commit a crime, and mere trespassers or children. Since deadly
forece is not authorized to prevent a non-violent felony, Ceballos would
not have been justified in shooting the kids when he was home, so he was
not justified in shooting them with a spring gun. In Tort, protection of
the dwelling place is an exception to the rule against spring guns, but
in criminal law, it is not. If the actor were present, he would realize
and be able to distinguish the intruders who were clearly not a threat.
Burglary of this kind does not fall into the category of "forcible" or
** People v. Hood, (1969)
2. Facts: Hood got drunk and forced his way into a former girlfriend's
home. When the police arrived and attempted to arrest Hood, he grabbed
the arresting officer's gun and shot him once in each leg.
3. Procedural Posture: Hood was charged with assault with a deadly
weapon (general intent), and assault with intent to commit murder
(specific intent). The trial judge gave the jury instructions on assault
with intent to commit murder (specific intent) and a standard california
jury instruction on intoxication. The jury convicted Hood on the assault
with intent to commit murder.
4. Issue: Whether, in California, evidence of intoxication is properly
considered in determining whether a criminal defendant had the general
intent to commit assault.
5. Holding: No.
6. Reasoning: The lower court properly instructed the jury to consider
the evidence of intoxication in determining the specific intent crime of
murder, but followed it with a jury instruction that is only applicable
to general intent crimes which stated that the jury should not consider
his state of intoxication. These jury instructions were conflicting and
created prejudicial error. A specific intent crime is one that involves
an intent to do some further act or achieve some additionl consequence
beyond the act itself, such as "assault with intent to commit murder." A
general intent crime is one where the intent is only needed to commit
the act itself, such as "assault" or "murder." Alcohol intoxication
distorts judgment and relaxes controls on aggressive and anti-social
impulses, but it has less effect on the ability to engage in simple
goal-directed behavior. A drunk man may still form the intent to commit
a battery, he just does not fully comprehend the consequences. Thus,
voluntary intoxication is not a defense to general intent crimes.
However, the additional step of formulating intent to murder is a
specific intent, which may be negated by evidence of intoxication
because it requires that the actor have had the intent to produce a
A. Voluntary intoxication is generally no defense for criminal conduct,
with two narrow exceptions:
1. D. did not harbor the specific mens rea required, or
2. D. suffered from long-term, intoxication-induced, "fixed" insanity.
B. Mens Rea
1. Voluntary intoxication is really a "failure-of-proof" defense - that
D. lacked the mens rea.
2. General-Intent offenses
a. voluntary intoxication is not a defense to general intent crimes.
b. self-induced intoxication typically constitutes reckless conduct
(i.e. D. should know that he is jeapordizing others by becoming drunk.)
3. Specific Intent offenses
a. voluntary intoxication is a defense.
b. since the state has included a particular state of mind as a material
element of the crime, intoxication is relevant to determining whether
the D. had the specific state of mind at the time he committed the
4. The distinction between general and specific intent crimes creates
the anomaly that a D. can use intoxication as a defense if he is
thwarted just prior to completing the specific intent crime, but not if
he has already completed it.
C. Voluntary Act
1. Temporary unconsciousness (or automatism) caused by voluntary
intoxication is not a defense to the actus reus requirement.
2. However, it may be a proxy for the mens rea defense above.
1. "temporary" insanity caused by voluntary intoxication is not
recognized as a defense.
2. "fixed" insanity caused by long-term alcohol abuse is a defense.
E. Involuntary intoxication - complete defense
1. coerced intoxication - ex: drink or we'll kill you.
2. intoxication by innocent mistake - ex: eat this (coacaine), it's a
3. unexpected intoxication from a prescribed medication
4. "pathological intoxication" - temporary biological reaction in a
person who has an unknown predisposing mental condition such as
** Garnett v. State, (1993)
2. Facts: Garnett was a 20 yr old retarded man. He met a girl who was
13, and had consenting sexual intercourse with her one night. The girl
became pregnant and had a child. There was evidence that the girl as
well as other friends had told Garnett that she was 16. Maryland has a
statutory rape statute making it a felony to have intercourse with a
person under the age of 14 if the D. is four years older than the
3. Procedural Posture: Garnett was charged with second-degree rape under
the Maryland statutory rape statute. The trial court refused to allow
evidence whether the D. had a reasonable belief that the girl was 16,
holding that the statute was a strict liability law, and therefore
evidence of the D.'s mental state was irrelevant. Garnett was convicted
and sentenced to 5 years probation.
4. Issue: Whether, in Maryland, the State must prove that a D. knew that
the victim was younger than 14 in a statutory rape case.
5. Holding: No.
6. Majority Reasoning: Although the statute does not set forth a
specific state of mind for statutory rape, and although strict liability
offenses are generally those which are misdemeanors carrying small
penalties and only minor stigma, the statutory structure and the
legislative history indicate that it was the legislative intent that
this statute be a strict liability crime. The preceding paragraph in the
statute required negligence, so the legislature was purposeful in
eliminating a mental requirement for rape of a 13 yr old. Although there
is substantial scholarly disapproval of making statutory rape a strict
liability crime, including the Model Penal Code treatment, it is up to
the legislature to change the statute if desired.
7. Dissent Reasoning: A reading of the statute which does not require
the state to prove a mental state is arguably a violation of due
process. It is not of the same caliber as other strict liability
offenses. The court should allow a defense of mistake of fact, and if
"some evidence" supporting the defense is produced, the burden of proof
of the state should then "kick in."
8. Notes: The mistake of fact defense is a defense to a specific intent
crime, whether the mistake of fact be reasonable or unreasonable,
because the D. would lack the required specific intent. With regard to
general intent crimes, a mistake of fact is only a defense if 1) it was
reasonable, and 2) the act would have been lawful had the D. been
I. Mistakes of Fact
A. Not a "true defense", only a defense in that the D. may have the
initial burden to produce evidence of mistake - a "failure of proof
B. Mistake is a defense to a specific intent crime because it negates
the particular element of mens rea in the crime (elemental approach).
1. it does not matter if the mistake was reasonable or unreasonable as
long as it was actual.
C. Mistake is only a defense to general intent crime under circumstances
that negate his moral culpability (culpability approach).
1. mistake must have been reasonable; and
2. not legally wrong.
D. Mistake is not a defense in strict liability offenses.
** Lambert v. California, (1957)
2. Facts: Lambert was a convicted felon. She lived in Los Angeles,
which, unbenknownst to her, had a felon registration statute, which
required all persons convicted of felonies to register with the police
if they were going to remain in L.A. for more than 5 days. Lambert did
not register, and she lived there for 7 years.
3. Procedural Posture: Lambert was charged with violation of the
registration ordinance. The trial court refused to consider whether she
had actual knowledge of the registration statute, refusing to allow
evidence of her lack of knowledge, and she was convicted by a jury.
4. Issue: Whether any mental state is required to be shown in the
violation of the felon registration statute.
5. Holding: Yes.
6. Majority Reasoning: The present ordinance does not require any
activity that would give a reasonable person notice that they were
violating a law. Mere presence in the city was sufficient to violate the
ordinance. There was no opportunity to avoid the consequences of the law
or to defend against it. To convict under these circumstances is a
violation of due process.
7. Dissent Resaoning: There are many strict liability offenses that are
legitimately within the scope of the police power of the states. This
present statute is not an exception.
8. Notes: There are two types of ignorance or mistake of law: 1)
ignorance of the existence of a criminal prohibition (generally not a
defense); and 2) ignorance or mistake about an element of the crime
itself (may be a defense).
I. Mistake of Law
A. In general, "ignorance of the law is not an excuse," meaning that it
does not generally negate the mens rea of the offense, because
ordinarily, knowledge that the crime exists is not an element of the
1. utilitarian policy: prevents bogus defenses and subjective arguments
as to the meaning of the law to each individual defendant - sacrifice
the individual for the common good.
2. however, to punish under honest mistake of law is contrary to the
retributivist notion of moral blameworthiness.
B. Three general exceptions:
1. reasonable-reliance doctrine
a. "personal interpretation" is not an excuse, even if it was
b. however, "official interpretation", i.e. the reliance on an official
statement of the law, which later turns out to be erroneous, is a
defense (prosecution must have clean hands).
1) statutes declared to be invalid;
2) overturned judicial decisions by highest court in the jurisdiction;
3) erroneous interpretations by authorized public officials, but not
informal interpretations by lesser officials or poor advice of counsel.
2. Fair notice: the Lambert principle - may be a due process excuse if:
a. the crime punishes an omission (ex: failure to register);
b. the duty to act was based on status rather than activity (ex:
presence in Los Angeles); and
c. the act was malum prohibitum .
3. Negation of Mens Rea ("different law"mistake) - D. claims that she
lacked the requisite mens rea for the violation charged because she
mistakenly believed that a different law (or lack thereof) made her
a. ex: man charged with bigamy claims that he thought his first wife's
divorce was legal when he married second wife.
b. Specific Intent Crimes - valid defense (for the same reasons as
mistake of fact - failure of proof) even if belief was unreasonable.
c. General Intent Crimes - apparently no defense (in contrast to mistake
d. Strict Liability Offenses - no defense.
I. Insanity- affirmative defense, does not negate mens rea, it provides
A. Rationale for the defense:
1. Utilitarian rationale
a. no specific deterrence of insane person because they can not see
cause and effect relationship between their actions and the punishment.
b. insanity results in civil commitment, separating D. from society, so
there is no need to stigmatize them to acheive the separation.
c. rehabilitation of insane D. is not possible in a prison.
2. Retributivist rationale
a. insane person lacks "free will" capacity to make correct choices.
b. without "free will" there can be no moral blame.
B. Competency to stand trial
1. a person may not be tried or sentenced if, during the criminal
a. lacks the capacity to consult with her attorney "with a reasonable
degree of rational understanding"; or
b. lacks a "rational as well as factual understanding of the
proceedings" against her.
2. competency is an issue of law to be determined by the trial judge.
3. a finding of incompetency results in the commitment to a mental
facitlity for "a reasonable period of time necessary to determine
whether there is a substantial probability that she will attain capacity
[to stand trial] in the near future."
C. Four possible verdicts:
1. not guilty
2. not guilty by reason of insanity
a. automatic committment - no hearing to determine if D. is still
mentally ill and dangerous - conviction;
b. discretionary committment - judge has authority to order mental
evaluation to determine illness and dangerousness.
4. (optional) guilty but mentally ill.
a. D. receives normal sentence, but psychiatric care is made available
in the prison setting or a mental institution.
D. Bifurcated trials separate the trial into two phases:
1. all aspects of the case except the D.'s insanity are litigated; and
2. then the sole issue of D.'s insanity is litigated.
3. saves time, confusion, decreases compromise, self-incrimination.
E. Burden of Proof
1. burden of initial production of evidence is on D. (affirmative
2. burden of persuasion usually on D.
a. some states require preponderance of evidence;
b. other states require clear and convincing evidence.
F. Five tests for determining legal insanity:
1. The M'Naughten test - focuses exclusively on cognitive disability
(not volitional disability); very narrow
a. actor did not "know" the "nature and quality" of the act; OR
b. actor did not "know" that what she was doing was "wrong."
c. the word "know" is ambiguous
1) some courts require only "formal" knowledge that the D. could
describe what she was doing and knew that it was forbidden.
2) other courts require "affective" knowledge requiring that the D.
could evaluate the impact of her actions.
d. "wrong" could mean legal or moral wrong
1) Ex: if D. thought God told her to kill, and D. knew that murder was
illegal, she would be sane if "wrong" meant "legal wrong," but insane if
"wrong" meant "moral wrong."
2) "deific decree" - mental disorder that God is commanding you is
deemed legally insane.
2. "Irresistable Impluse" Test
a. D. "acted from an irresistable and uncontrollable impluse";
b. D. "lost the power to choose between right and wrong";
c. D.'s "free will has been destroyed" so that her actions are beyond
d. "impulse" may be narrow.
3. ALI (Model Penal Code) Test
a. D. lacked substantial capacity to "appreciate the criminality (or
wrongfulness) of her conduct; or
b. was "unable to conform her conduct to the requirements of the law."
c. A revised version of the M'Naughten test, substituting "know" with
"appreciate," and irresistable impulse test, avoiding the word
4. The Product (Durham) Test
a. person is excused if her unlawful act was "the product of a mental
disease or defect."
b. requires a determination of:
1) whether the D. was suffering from a mental disease; and
2) whether the crime would have occurred "but for" the mental disease.
c. provides no definition of "mental disease."
5. Federal Test
a. Statutory definition of legal insanity - D. must prove by clear and
convincing evidence that as a result of a "severe" mental disease or
defect she was unable to "appreciate":
1) the nature and quality of her conduct; or
2) the wrongfulness of her conduct.
** United States v. Freeman, (1966),
2. Facts: Freeman was a drug abuser with a long and severe history of
drug abuse. One night, he was arrested for selling drugs in the restroom
of a bar.
3. Procedural Posture: The trial judge convicted Freeman because he felt
that under the M'Naghten Rules, which stated that a person was insane
only if he did not know that his actions were wrong, that Freeman was
guilty because he was technically able to tell that his action was
4. Issue: What the appropriate test to is to be applied in a case where
the defendant pleads insanity.
5. Holding: Model Penal Code Sec.4.01 : "A person is not responsible for
criminal conduct if at the time of such conduct as a result of mental
disease or defect he lacks substantial capacity either to appreciate the
wrongfulness of his conduct or to conform his conduct to the
requirements of the law."
6. Majority Reasoning: The majority felt that the M'Naghten rules were
too narrow. The "right-wrong" test was based on outdated concepts of the
operation of the human brain. They focus only on the cognitive aspects
of personality and do not make allowances for volitional aspects. It
also does not recognize different degrees of incapacity. The only choice
given to the jury is whether the defendant knew right from wrong. It
also limits and distorts the testimony of expert psychiatric witnesses,
as they try to conform their testimony to the outdated concepts of these
rules, thus denying the jury of vital information needed to make the
decision. The addition of the "irresistible impulse" test to account for
volitional actions is also too narrow because it implies that the crime
must have been committed in a sudden and explosive fit. A criminal act
may be carefully planned and still be the result of a diseased mind. The
Durham rules (the unlawful act was the product of a mental disease or
defect), although significantly more progressive than the M'Naghten
rules, raise difficult problems of causation and fail to give the fact-
finder any standard by which to measure the competency of the accused.
Sec.4.01 is a better test because it uses "substantial incapacity" to
convey the concept of degrees of capacity, and uses "appreciate" rather
than "know" to emphasize that mere technical knowledge that the act is
wrong, without an appreciation of the impact of the act, is not
determinative of sanity. Since Freeman's guilt was determined under the
M'Naughten rules, the case must be reversed and remanded for trial under
Sec.4.01. However, it is understood that mere narcotics addiction does
not, of itself, constitute insanity, and that persons "not guilty by
reason of insanity" should be institutionalized.
** People v. Serravo, (1992),
2. Facts: Serravo thought that he had gone to heaven and been with God,
and that God had inspired him to establish a multi-million dollar sports
complex called "Purely Professionals" which would enable him to acheive
his goal of teaching people the path to perfection. Some friends
supported him, but some inner "evil spirits" kept raising some questions
about how he would deal with his unsupporting wife. After coming home
one night and reading the bible, Serravo stabbed his sleeping wife in
the back and then told the police that it was an intruder. Later, his
wife found letters written by Serravo indicating that he stabbed her to
"sever the marriage."
3. Procedural Posture: Serravo was charged with attempted murder, etc.
At trial concerning the issue of his insanity, the trial judge gave an
instruction that a person "incapable of distinguishing right from wrong"
includes a person who appreciates that his conduct is legally wrong, but
nevertheless thinks that it is morally right. The jury acquitted, and
the prosecution appealed claiming that the instruction was improper
because it was cast in terms of moral wrong rather than legal wrong. The
court of appeals affirmed.
4. Issue: Whether the phrase "incapable of distinguishing right from
wrong" should be measured by legal wrong or by moral wrong, and if moral
wrong, whether that should be a subjective personal moral standard or an
objective societal standard.
5. Holding: Objective societal standard or moral wrong.
6. Reasoning: The correct standard is moral wrong because a person who
is in an extremely psychotic state might be aware that an act is
illegal, yet be utterly without the capacity to comprehend that it is
immoral. Such a person should not be convicted. Conversely, a mentally
ill person who knows something to be immoral, but does not know that it
is illegal, should not escape conviction simply due to ignorance of the
law. This is supported by Cardozo's view in Schmidt, when he interpreted
M'Naughten as referring to the moral right and wrong test. However, the
particular instruction given was cast in so general of terms that a jury
could interpret it to mean that the standard of moral wrong to be
applied was a purely subjective personal standard. A correct instruction
would indicate that it is the objective morality of society that is the
correct standard. Also, the concept of "deific decree" used by the court
of appeals is not so much an exception to the right/wrong test as it is
another factor in assessing a person's ability to distinguish right from
I. Diminished Capacity
A. Two categories:
1. "mens rea" form - negates the mens rea.
a. failure of proof defense, not a true defense.
b. may result in acquital if the state allows it as a defense
1) model penal code allows evidence that the D. suffered from a mental
desease to be admissible in any type of case where it is relevant.
2) some states limit its applicability to murder only.
3) some states allow it only as a defense to specific intent crimes.
4) some states refuse it as a defense altogether.
c. arguments against:
1) it is not needed because insanity is easier to prove than the failure
to form a simple intent.
2) it is too imprecise because it is really "partially insane" defense.
3) could result in acquittal, putting a dangerous person on the street.
2. "partial responsibility" - california approach.
a. by making a strict definition of the mens rea, the court can state
that the person was guilty only of a lesser offense.
b. abandoned by modern courts.
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