criminal law test for accomplice liability PDF

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CRIMINAL LAW EXAM – FALL 2003 – OUTLINE OF ESSAY AND ANSWERS TO MULTIPLE CHOICE QUESTIONS

Part (A) – Zeke dies; homicide prosecutions of Anna and Benny. ANNA FIRST, a note about causation – That Anna’s conduct was both a but-for and a proximate cause of her son’s death is quite obvious and requires very little discussion. Had she not used methamphetamine, her son would not have died as and when he did. And her breast-feeding Zeke with drug-tainted milk was the direct cause of his death, with no subsequent intervening events. Felony-murder (14 pts total): One of the statutes given in the problem, Penal Code § 5440, makes it a crime to “administer” methamphetamine to “another person,” or “to cause [methamphetamine] to be administered to or taken by such other person.” When Anna breast-fed Zeke after being injected with methamphetamine, Zeke ingested the drug from Anna’s breast milk. Thus, it can be argued (2 pts) that Anna administered methamphetamine to her son, or at least caused that drug to be taken by him. [There could perhaps be some dispute as to whether the statute was intended to cover this situation, although the words used in the statute do seem to apply.] The prosecution could argue that Anna violated this felony statute and, in the course of doing so, caused the death of her son – making her guilty of second-degree murder on a felony-murder theory. (It would not be first-degree felony murder, since the felonies that would support a first-degree charge are only those listed in section 189 of the state’s Penal Code.) One issue that would need to be confronted (2 pts) is what mens rea, if any, is required for violation of § 5440. None is stated, but does this necessarily mean that the statute imposes strict liability? The stiff prison sentence (5 to 20 years) that the crime carries would suggest not. More plausibly, the statute is meant to apply to people who engage in the prohibited conduct with recklessness, or a greater mens rea. (Recall that negligence is a generally disfavored basis for criminal liability.) If so, did Anna recklessly cause Zeke to consume methamphetamine? (5 pts) There is ample room for argument here. The prosecution will emphasize that Benny explicitly TOLD Anna that there have been cases of nursing mothers passing meth to their children in their breast milk. Thus, when she went ahead anyway, Anna must have done so in conscious disregard of this possibility – indeed, she tells Benny she’s “gotta have some crank” because she “can’t stand this misery any more,” indicating she’s willing to run the risk in order to obtain the drug she believes will relieve her misery. The defense is going to stress, however, that she also reacted to Benny’s warning by saying “Oh, I don’t believe that. That can’t happen.” Doesn’t this suggest that Anna did not believe that meth could be passed to children via breast milk? If so, then while she may have acted negligently in going ahead and using the drug, she was not reckless about transmitting it to her baby – not consciously disregarding this possibility. The prosecution may

2 insist that even if she said she did not believe Benny’s warning, she had been made aware of the possibility and she chose to proceed regardless. Maybe, too, her “I don’t believe that” meant only that she did not believe any babies had died from meth-tainted breast milk, not that she completely rejected the possibility that some of the drug would be ingested by Zeke. All she has to be reckless about, for the felony-murder theory, is the actus reus of the felony – not the possibility of causing death. Another issue (5 pts) that needs consideration is whether § 5440 is a crime inherently dangerous to human life, and whether (if so) it merges with the homicide. Some states assess dangerousness in the abstract, and others by looking to the actual circumstances of the particular crime. An extreme abstract view would look at § 5440 as a whole, and conclude that violation of that statute is by no means inherently dangerous, since it can be violated, for example, by giving someone a marijuana cigarette, which is not especially dangerous. Even California, however – an “abstract” state – has said that a statute like this one really defines a bunch of separate crimes and one needs to focus on the particular one that Anna is accused of violating – here, administering methamphetamine to another person. It could be argued that this is inherently dangerous in the abstract: meth is “a potent, addictive stimulant drug” [according to the facts given], the ingestion of which could certainly cause life-threatening problems (e.g. high blood pressure, heart failure, aberrant behavior threatening oneself or others, etc.). Of course, the defense will argue that the risk of death in any particular administration of meth is not high enough for the crime to be said to be “inherently dangerous.” This is a dispute that would really need additional facts to resolve. On the other hand, if the crime is viewed “as committed,” the prosecution has a much stronger case for dangerousness, since babies have been known to die from meth in their mothers’ breast milk. As for merger, it is highly unlikely that the crime would be said to merge with the homicide. It has an “independent felonious purpose” – giving meth to another person. And, if one uses the current California approach, allowing § 5440 to serve as a predicate for felony murder charges does not create the danger of enlarging the category of felony murder so greatly as to swallow up most homicides and “subvert the legislative intent” behind the classification of different categories of homicide. Depraved heart murder: (6 pts total) Alternatively, the prosecution might seek to convict Anna of murder on a theory of “depraved heart” murder. Like the felony-murder theory, this, if successful, would result in a second-degree murder conviction – first degree murder is simply out of the question here, since Anna didn’t commit one of the enumerated felonies and did not act with intent to kill anyone. For depraved heart, the prosecution needs to show that Anna engaged in conduct that she knew created a substantial risk to life, in circumstances manifesting a callous indifference to life. The relevant conduct (2 pts) is Anna’s having herself injected with methamphetamine and her then breast-feeding Zeke. As for mens rea (4 pts), there is again room for argument about exactly what it was that Anna believed – whether she wholly disbelieved Benny’s warning that

3 nursing a child while abusing meth has been known to cause deaths, or whether she chose to ignore that warning because of her desperate craving for the drug. [Just possibly, if she was not in fact consciously aware of a risk of death, but was extremely negligent in her belief to the contrary, that could possibly support a depraved heart conviction.] Even if the prosecution can surmount this hurdle, there remains the question of whether, given all the circumstances, Anna’s recklessly exposing Zeke to risk exhibited a truly callous indifference to life, or only some lesser degree of recklessness. The defense will argue like this: Anna wasn’t seeking meth for “kicks” or for pleasure; in her severely depressed state – which undoubtedly impaired her judgment and her assessment of risks – she was looking for some relief. Admittedly she chose a remarkably poor way of obtaining that relief, but this shouldn’t make us quick to conclude that she simply “didn’t give a damn” whether her baby lived or died. The prosecution, in combatting this, will surely want to play up the fact that Anna not only obtained the drug, but continued to breast-feed Zeke. That wasn’t something she was driven to do by desperation! She could have switched to bottle-feeding; instead, she callously chose to expose her son to the risk Benny warned her of. Plainly, she didn’t care about his life. Involuntary manslaughter: (2 pts) Failing all else, the prosecution is quite likely to be able to get Anna convicted of involuntary manslaughter. She caused Zeke’s death. She did so through conduct that she quite possibly knew created a risk of death (recklessness). Or, at least, she was grossly negligent in engaging in this conduct (using meth and breast feeding the kid) – any reasonable person in her position would know that you don’t ingest dangerous stimulant drugs and then nurse your infant. The defense could try disputing whether any reasonable mother would know that such a drug could be passed in breast milk, and could argue that if Anna was negligent, it was only ordinary negligence, not the “gross” negligence traditionally required for manslaughter.

Affirmative defenses: (5 pts) Anna could try to put forward a defense of insanity. This state uses the so-called ALI test for insanity (MPC §4.01), which requires that defendant, as the result of mental disease or defect, either lacked substantial capacity to appreciate the criminality [wrongfulness] of her conduct, or lacked substantial capacity to conform her behavior to the law. The first isssue for Anna would be whether her postpartum depression qualifies as a “mental disease” for purposes of applying this defense. Major psychotic illnesses, like schizophrenia or bipolar disorder, undoubtedly qualify, but there is increasing dispute as one deals with less and less florid conditions, devoid of hallucinations or delusions. Postpartum depression is a recognized medical condition that afflicts a small but significant number of new mothers. The symptoms Anna manifested can have a profound effect on the victim’s judgment, impulse control, and feeling of self-worth. Presumably each side will draw on psychiatric experts in arguing for or against the “mental illness” status of postpartum depression. If it qualifies, Anna would then try to show either that her depression, sleeplessness, and

4 feelings of worthlessness had substantially eroded her ability to truly appreciate (not merely “know” in an abstract, formal sense) that taking meth while nursing was “wrongful”or “criminal” behavior, or – more promisingly – that her condition had substantially impaired her ability to conform to the law and avoid taking the drug. The prosecution can be expected to play up the fact that she kept on breast-feeding – even if she felt she had no alternative but to rely on methamphetamine, how plausible is it that she was unable to switch to bottle-feeding? The defense is going to want to highlight the disorientation and clouded judgment characteristic of deep depression, arguing that it’s artificial to pull out one choice Anna made (to keep breastfeeding) and inquire why she couldn’t think clearly about that. Anna might also try making use of the diminished capacity defense, if this jurisdiction recognizes it, arguing that her mental state precluded her from being able to form the mental state of recklessness. This seems like a pretty long shot, though – e.g., many states that permit a diminished capacity defense restrict it to “specific intent” crimes, which depraved-heart murder and felony-murder are not.

BENNY As Anna’s accomplice (14 pts total) The prosecution might well try to secure a homicide conviction for Benny based on the theory that he acted as Anna’s accomplice. This would make it unnecessary to consider whether Benny’s own actions were themselves a proximate cause of Zeke’s death. The prosecution could argue that Benny is guilty of felony murder as Anna’s accomplice (6 pts). This requires, first of all, showing that Anna committed the underlying felony that caused Zeke’s death, and then that Benny aided and abetted her in doing so. Benny, of course, not only supplied Anna with the methamphetamine but actually injected it into her, making it clear that he personally violated § 5440. But what we need to show is that Benny was an accomplice to Anna’s crime of administering meth to Zeke, not that he personally committed the separate crime of administering the drug to Anna. (If you try to focus on the latter felony, you first of all are not relying on an accomplice theory, and more importantly, you run into the problem that Zeke’s death did not occur in the course of this felony, but after it was done, and was not caused by acts done in furtherance of this felony, but by Anna’s subsequent breastfeeding of Zeke.) Well, Benny did in fact “assist” Anna to commit the crime of causing Zeke to take methamphetamine – he assisted that crime by getting the meth into Anna’s body, where it could be conveyed to Zeke via breast milk. But, to be her accomplice, the prosecution must also prove that Benny did this with the intent to aid the conduct forming the basis of the offense. The relevant conduct, here, is administering meth to Zeke. And the evidence shows only that Benny knew his actions would assist this conduct (or, perhaps, only that he knew his actions were likely to assist that conduct), not that getting the meth into Zeke was his purpose in acting. Indeed, he

5 warned Anna that if she used meth, it could adversely affect Zeke, demonstrating that he certainly did not have the purpose of getting meth into the kid’s system. Recall that most US courts require a true purpose of aiding the crime in order for someone to qualify as an accomplice – in which case Benny would not be Anna’s accomplice. Some courts, however, would say that in the case of a serious enough crime, mere knowledge that one is assisting its commission is sufficient to make one an accomplice, and perhaps, if we are in such a state, the court might consider that methamphetamine use is a sufficiently serious crime for this rule to apply. Alternatively, the prosecution could seek Benny’s conviction as an accomplice to depraved heart murder (6 pts). They would use what in class we referred to as the “unintended result” approach. Benny, they would argue, intentionally assisted Anna in the conduct that created a risk to Zeke’s life (that conduct being injecting the methamphetamine), and did so with the same recklessness and callous indifference to life that Anna displayed. They would point out that Benny was certainly consciously aware of the risk to Zeke, and that his ultimate remark “It’s your kid” shows his callous indifference to whether the baby lived or died. The defense is likely to deny that Benny manifested such indifference, insisting that the very fact that he did warn Anna of the risk shows that he was by no means “indifferent” to Zeke’s fate, but concerned to head off danger. Moreover, the defense can argue that the conduct that created the risk to Zeke’s life was not Anna’s being injected with methamphetamine – the conduct Benny assisted with – but rather Anna’s breast-feeding Zeke despite using the drug – conduct which Benny did NOT aid her in performing (and even tried to get her to avoid). Failing all else, the prosecution could seek to get Benny convicted as accomplice to involuntary manslaughter (2 pts). Benny did assist in the conduct causing Zeke’s death, they will say, and was clearly reckless with regard to death. The defense, again, could try arguing that the conduct causing death was really only the breast feeding. As the direct perpetrator: (8 pts) If the prosecution seeks to have Benny convicted of homicide as a perpetrator in his own right, rather than as Anna’s accomplice, the big issue it would need to confront is causation. Benny will deny that his conduct was the proximate cause of Zeke’s death. True, it was pretty clearly a but-for cause of that death. However, although he did inject Anna with meth, she voluntarily breast-fed Zeke while loaded. That was her own free and informed action (clearly informed, since Benny told her of the risk!), which breaks the causal chain linking Benny’s conduct to the death. The prosecution could respond by arguing that Anna was not making a genuinely free and informed choice in breast-feeding Zeke, because she did not believe this carried any risk of harming him. Or they can claim Anna was mentally irresponsible (similar to the Stephenson case) because of her postpartum depression, so that her behavior does not break the causal chain. Note, however, that either of these arguments is a rather awkward position for the prosecution if they also intend to try getting Anna convicted of homicide! Perhaps the best position for the

6 prosecution to take would be to insist that Benny knew Anna was breast-feeding her child, and knew from her remarks that she intended to keep on doing so. Thus her conduct was not merely foreseeable, but patently foreseen by Benny – he knew the potentially fatal upshot of injecting Anna with meth, but went ahead anyway, and should not be heard to deny his own responsibility by treating Anna’s known behavior as if it was an independent, unforeseeable intervening cause. (On the other hand, consider a case like Campbell – the man who gave his loaded gun to his drunken, suicidal companion, who then shot himself – where the defendant was held NOT to be the cause of the death even though what happened was plainly foreseeable and indeed foreseen.) If the prosecution is able to surmount the proximate causation hurdle, they will argue as follows: Benny’s conduct was a proximate cause of Zeke’s death. Moreover, Benny was consciously aware of the risk of death – that is, he was reckless. His flippant “It’s your kid” shows how callously indifferent he was to this possibility, and he should be convicted of depraved heart murder. The defense, as before, will challenge the notion that Benny did not care about Zeke’s life. But even if the prosecution loses on this, Benny WAS consciously aware of the risk he was creating, and should at least be convicted of involuntary manslaughter. Affirmative defenses: (7 pts) Even if Anna is able to make a successful defense of insanity, this should have no effect on Benny’s liability. It would obviously not help him if he were tried as the actual perpetrator, and even if he is tried on a theory of accomplice liability, the defense of insanity is an excuse personal to the actor, not one that carries over to the accomplice. What Benny could try arguing is necessity. The facts tell us that he was aware that some depressed mothers had killed their babies, themselves, or both. He could claim that in giving Anna the drug she sought, he was trying to prevent her from taking two lives – hers and Zeke’s. True, he knew his behavior created a risk of Zeke dying, but the harm he was trying to avoid outweighs the harm he risked. The prosecution will fiercely contest this. First of all, they will say that traditionally, necessity is not accepted as a defense to the killing of an innocent person, which Zeke certainly was. They’ll also argue that Benny was hardly faced with a situation in which the death of Anna and Zeke was imminent unless he acted – he is simply speculating about what Anna might do if denied methamphetamine. And surely there were legal alternatives to giving her meth? Benny could have summoned the police, sought psychiatric aid for his friend, moved in to watch Anna and care for her and the baby, etc.

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Multiple-Choice Answers Version A (1) (2) (3) (4) (5)

A B B D B

(6) B (7) D (8) A (9) A (10) B

(11) (12) (13) (14) (15)

D A C B C

(16) (17) (18) (19) (20)

A B D A B

(16) (17) (18) (19) (20)

D D A B A

Version B (1) (2) (3) (4) (5)

D B B B D

(6) D (7) B (8) A (9) B (10) B

(11) (12) (13) (14) (15)

A A C B D

(1) – Conviction requires negligence (or higher) with regard to causing injury, and knowledge (or purpose) with regard to police-officer status. The first requirement is satisfied in all 5 cases, but the second is not satisfied in III or IV. It is satisfied in II – hoping she’s a police officer counts as purpose under MPC §2.02(a)(ii). (2) – For attempt we need purpose to cause injury, and knowledge/purpose re. status. The first requirement doesn’t eliminate either I or II, because in both Newt is trying to injure Hillary, but it does eliminate V, where Newt is only negligent with regard to causing injury. (3) – In case I, Clara is guilty of murder; Frank’s attempt to aid her makes him her accomplice. In case II Cla...