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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 the jury.
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 instructions.
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The people argued that the defense was precluded from asserting prejudicial error on appeal because the defense had "withdrawn" the request for such jury instructions, thus inviting the error.
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 commitment procedures. 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 same time. 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 single transaction.
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 possession.
** 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 jurisdiction.
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 jurisdiction.
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 statute.
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 culpability).
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 necessary.
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 procedural elements.
1. Negative material elements include the defenses to the charge. a. Ex: self-defense is a negative material element to a charge of homicide.
** 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 2.02(7).
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 antistructuring statutes.
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 statute.
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, killing 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 the death.
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 officers.
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 death.
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 deliberation.
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 strangulation.
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 premeditated.
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 felony.
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 D.s action.
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 proof.
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 attack.
IV. Extreme Recklessness ("Depraved heart" Murder) normally second
A. The word "extreme" recklessness is used to distinguish from ordinary criminal negligence.
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 her.
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 manslaughter.
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 the homicide.
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 adequate provocation.
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 the killer.
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 necessary.
** 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 intoxication.
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 beyond recklessly.
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 intoxication.
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 occurred.
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 manslaughter.
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 manslaughter.
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 intoxication."
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 cocaine.
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 theory.
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 the felony.
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 law.
** 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 inhalation.
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 imprisonment.
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 homicide.
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 testified.
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 defense.
B. Five elements must be satisfied:
1. another person threatened to kill or grievously injure the D. or a close reletive;
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 economic coercion.
2. the D. reasonably believed that the threat was genuine;
3. the threat was "present, imminent, and impending" at the time of the criminal act;
a. "present" means that the D. be aware of the threat in his own mind at the time.
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 to escape.
4. there was no reasonable excape from the threat except through compliance; and
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 punished.
a. this does not mean that the mens rea is not present, only that it is negated.
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 the D..
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 proper.
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 belief."
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 acquitted.
** 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- defense.
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 on self-defense.
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 other person.
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 not necessary.
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 consequences."
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 conflict.
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 threat. 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 action."
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- defense.
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 in self-defense.
** 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 resistance.
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 it.
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" felonies.
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 others; and
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 aggravated battery.
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 "atrocious" crimes.
** 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 particular outcome.
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 crime.
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 "breath freshener"
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 epilepsy.
** 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 victim.
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 correct.
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 defense."
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 crime itself.
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 reasonable.
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; or
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 actions legal.
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 of fact).
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 proceedings, she:
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 defense);
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 her control.
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 "impulse."
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 wrong.
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 wrong.
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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