Kolber Crim Attack Fall 2020 PDF

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CRIMINAL LAW ATTACK OUTLINE FALL 2020 KOLBER Actus Reus/Omissions Legal Duty of care arises when:  Where statute imposes duty of care for another  Certain status relationships  When someone assumed contractual duty for another  Where one voluntarily assumed care of another and secluded from other aid  Causing another person’s peril/Creating risk of harm Common Law MPC (pg. 1201) Actus Reus: a voluntary act that causes social harm to MPC 1.13 - Definitions another person. (2) – an “act” or “action” means a bodily movement,  Movement of human body that is willed or whether voluntary or involuntary (It doesn’t define voluntary – only tells us what isn’t voluntary, however, directed by actor. Can be result of habit or even inadvertence. commentaries suggest essential behavior that is within control of actor.)  Involuntary acts=Acts are those over which individual had no conscious control. MPC §2.01- Voluntary Act Requirement (1) A person is not guilty of an offense unless his liability is Omission + Duty: No duty to prevent harm unless: 1. Relationship (parent has duty to children) based on conduct which includes a voluntary act or the omission to perform an act of which he is physically 2. Statute (Good Samaritan laws, doctor to report abuse) capable (2) The following are not voluntary acts: 3. Contract to provide care (babysitters, lifeguard, caretakers) a. A reflex or convulsion b. A bodily movement during unconsciousness or 4. Voluntary Assumption of care that isolates individual (when start to help need to finish if sleep c. Conduct during hypnosis or resulting from stopping would put them in worse shape) 5. Creation of peril d. A bodily movement that otherwise is not a product or determination of the actor, either conscious or 6. Duty to control conduct of another 7. Duty of landowner habitual (3) Liability for the commission of an offense may not be based on an omission unaccompanied by action unless: a. the omission is expressly made sufficient by the law defining the offense; (statute) or b. a duty to perform the omitted act is otherwise imposed by law. (parental relationship, etc.) (4) Possession is an act…if the possessor knowingly procured or received the thing possessed or was aware of his control thereof for a sufficient period to have been able to terminate his possession.

Mens Rea WHAT TO DO: Has a crime been committed? Step 1: break up statute into material elements Step 2: determine the mental state with regard to the pertinent elements Step 3: decide whether the D has satisfied the mental state and act for each element **Note: we always need to infer what’s going on inside someone’s head based on what we observe and based on permissive presumptions (i.e. people intend the natural consequences of their actions) Common Law MPC Traditional Mental States Willfully  Intentionally  Maliciously Cunningham, Faulkner: Malice USUALLY means something other than just wickedness. It usually requires what the MPC calls “recklessness” (awareness of a substantial and unjustifiable risk of the prohibited result) Elonis Generally require some culpable mens rea greater than negligence, when no mental state is mentioned in the statute (NOT A FIRM RULE)

Common Law Transferred intent:

MPC 1.13 - Definitions (9) Core elements of an offense are: (i) conduct (physical behavior); or (ii) attendant circumstances (objective fact or condition that exists in real world when defendant engages in conduct… eg. statute that specifies at night.); or (iii) result of conduct (consequence or outcome of conduct). MPC §2.02- General Requirements of Culpability (1) Except as provided in 2.05, a person is not guilty of an offense unless he acted purposely, knowingly, recklessly, or negligently. (2) Kinds of Culpability: a. Purposelyi. For conduct - conscious object to engage in conduct of that nature in order to cause a result ii. For attendant circumstances – D must be aware of the existence of the circumstances or believes/hopes that the circumstances exist b. Knowingly- awareness of conduct or attendant circumstances i. If crime is defined with respect to a certain result, D has acted knowingly if he was aware that it is practically certain that his conduct will cause that result c. Recklessly- consciously disregarding a substantial and unjustifiable risk. This involved gross deviation from the standard of conduct that a law-abiding person would use in the actor’s situation. d. Negligently- when a person should be aware of a substantial and unjustifiable risk. This involves a gross deviation from the standard of conduct that a law-abiding person would use in the actor’s situation. i. Awareness of risk needn’t be proved! The MPC allows a finding of negligence even if the D was not aware of the risk imposed by his conduct ii. NOTE: MPC negligence is a gross negligence standard (3) Recklessness Default Rule – if the statute and other default rules don’t specify a mental state as to some element, recklessness or higher is required (4) Mental State Distribution Rule – if a statute uses a mental state term without distinguishing among elements, apply that term to all of the material elements unless a “contrary purpose plainly appears” MPC Transferred Intent:

If a defendant intended a harmful result to a particular person or object and, in trying to carry out that intent, caused a similar harmful result to another person or object, her intent will be transferred from the intended person or object to the one actually harmed. Any defenses or mitigating circumstances that the defendant could have asserted against the intended victim (e.g., self-defense, provocation) will also be transferred in most cases. The doctrine of transferred intent most commonly applies to homicide, battery, and arson. It does not apply to attempt.

MPC 2.03 (2) When purposely or knowingly causing a particular result is an element of an offense, the element is not established if the actual result is not within the purpose or the contemplation of the actor unless: a. the actual result differs from the designed or contemplated…only in the respected that a different person or property is injured or affected [transferred intent] or that the injury or harm designed or contemplated would have been more serious or more extensive than that caused; or (3) When recklessly or negligence causing a particular result is an element of an offense, the element is not established if the actual result is not within the risk of which the actor is aware of, or in the case of negligence, of which he should be aware unless: a. the actual result differs from the designed or contemplated…only in the respected that a different person or property is injured or affected [transferred intent]…

Mistake of Fact

Common Law Rule: Traditionally, there is often a mistake of fact defense if it is an honest and reasonable mistake. **Outside of the MPC, there is no set formula for MoF. Exceptions to the Rule: Lesser Crime Regina v. Prince  Dissent Rule (Dominant Today): If someone knows he’s committing a crime, it’s okay to enhance liability where the D caused greater harm than he thought. (charge/punishment for the greater crime.) Moral Wrong Regina v. Prince  Majority Rule: Look at facts as defendant saw them. A defendant’s reasonable mistake regarding an attendant circumstance can still demonstrate moral culpability worthy of punishment. There should be no exculpation for mistake where, if facts had been as actor believed him to be, his conduct would still be immoral. B (a minor) v Director In England, courts allow mistake defense even in sex crimes of “tender years.” NO moral wrong principle. People v. Olsen No mistake of fact defense with statutory rape, even with an honest and reasonable mistake (moral wrong-esque.)

MPC Forget about mistake of fact for MPC. Use MPC 2.04(1) – just apply the mental state to the element. MPC 2.04 (1) Ignorance or mistake as to a matter of fact or law is a defense if: a. the ignorance or mistake negatives the purpose, knowledge, belief, recklessness or negligence required to establish a material element of the offense; or b. the law provides that the state of mind established by such ignorance or mistake constitutes a defense. (E.g., Suppose bigamy = “knowingly marrying another while negligent as to whether one is already married”) (2) Although ignorance or mistake would otherwise afford a defense to the offense charged, the defense is not available if the defendant would be guilty of another offense had the situation been as he supposed (lessercrime principle). In such case, however, the ignorance or mistake of the defendant shall reduce the grade and degree of the offense of which he may be convicted to those of the offense of which he would be guilty had the situation been as he supposed. (MPC LESSER CRIME PRINCIPLE) **To apply on an exam: Just say the person lacked the mens rea required by the statute. (don’t need to call it mistake of fact, just discuss whether the mental state was satisfied.)

Garnett v. State No mistake of fact defense, even though defendant had an intellectual disability. **To apply on an exam: apply the common test, usually to attendant circumstances, “was the mistake genuine and reasonable?”

Strict Liability

Common Law Under no circumstance does a person’s mistake of fact negate his criminal responsibility for violating a strict-liability offense. (For example, statutory rape). By definition these offenses don’t require a mens rea, therefore it doesn’t matter if defendant didn’t know what he was doing was wrong.  Always try to figure what statute means and what the legislature intended. People v. Dillard Courts have generally recognized that regulatory offenses for public health and safety are punishable without the traditional showing of culpability or criminal negligence. No need to find wrongful intent because the offense is so destructive of social order. Staples v. US The magnitude of punishment plays a significant role in doubting that the statute is a strict liability offense. State v. Guminga No strict liability for vicarious liability. Convicting the D with criminal penalties would be a violation of due process, but not a conviction with civil penalties.

MPC MPC 2.02 (1) Generally no strict liability as to any element of a statute except as provided in 2.05. MPC 2.05 The requirements of culpability [under 2.02] do not apply to: a. Offenses which are violations (conviction cannot allow for jail time) **Caveat: MPC 213.4 & 213.6 allow strict liability with regard to mistakes of age for young children in sex offenses. MPC 213.4 A person who has sexual contact with another person not his spouse, or causes such other to have sexual conduct with him, is guilty of sexual assault…if: (4) the other person is less than 10 years old MPC 213.6 Mistake as to Age. Whenever in this Article the criminality of conduct depends on a child’s being below the age of 10, it is no defense that the actor did not know the child’s age, or reasonably believed the child to be older than 10.

Mistake of Law

Common Law Mistake of Non-Governing Law: mistake of different law than the one charged with violating. Rule: Usually not a defense. However, Courts will still use statutory interpretation to interpret the law. People v. Weiss (OUTLIER) Allows consideration of a mistake of non-governing law outside the MPC (applying statutory interpretation) – the mental state term applied to “without the authority of law.” New Hampshire v. McMillan Although the court doesn’t discuss mistake of law v. mistake of fact, the result is consistent with the general rule of denying claims of mistake of law. Mistake of Governing Law: Mistake of governing law is a mistake about the law being charged with violating. Rule: Ignorance or Mistake of Governing Law is NO excuse (under both MPC and non-MPC) UNLESS:  Statute makes it so: “a person who knowingly violates this section” has been interpreted to require knowledge of the law itself.  Official misstatement of the law/failure to publish  Lambert-style case, including possible factors: o Criminalized an omission o Malum prohibitum crime o Unlikely to know of registration law **This varies from state to state (probably have similar statutes or have common law rules to the MPC). So, what would you do if you were in a jurisdiction that didn't follow MPC?  You would say, this is how MPC handles it, this jurisdiction may follow the same principles.

MPC

MPC Treats mistake of law and mistake of fact the same (follow the usual mental state rules for the element). MPC 2.04 (1) Ignorance or mistake as to a matter of fact or law is a defense if: a. the ignorance or mistake negatives the purpose, knowledge, belief, recklessness or negligence required to establish a material element of the offense; or b. the law provides that the state of mind established by such ignorance or mistake constitutes a defense. (E.g., Suppose bigamy = “knowingly marrying another while negligent as to whether one is already married”) (2) Although ignorance or mistake would otherwise afford a defense to the offense charged, the defense is not available if the defendant would be guilty of another offense had the situation been as he supposed (lessercrime principle). In such case, however, the ignorance or mistake of the defendant shall reduce the grade and degree of the offense of which he may be convicted to those of the offense of which he would be guilty had the situation been as he supposed. (MPC LESSER CRIME PRINCIPLE) (3) A belief that conduct does not legally constitute an offense is a defense to a prosecution for that offense based upon such conduct when: a. the statute or other enactment defining the offense is not known to the actor and has not been published or otherwise reasonably made available prior to the conduct alleged; or b. he acts in reasonable reliance upon an official statement of the law, afterward determined to be invalid or erroneous, contained in (i) a statute or other enactment; (ii) a judicial decision, opinion or judgment; (iii) an administrative order or grant of permission; or (iv) an official interpretation of the public officer or body charged by law with responsibility for the interpretation, administration or enforcement of the law defining the offense.

Non-MPC

Recklessness+ Ordinary Recklessness Ordinary Negligence

Murder Manslaughter Negligent Homicide

Murder Manslaughter Manslaughter Murder

Common Law Common Law Murder= Homicide with malice. Four elements to establish malice: 1. Express Malice: Intent to cause death (purpose or knowledge) 2. Implied Malice: Intent to inflict serious bodily harm (Example: beating someone to a pulp) 3. Implied Malice: Extremely reckless disregard for the value of human life (“depraved heart murder”) (Example: shooting an apple off someone’s head) 4. Felony murder – engaged in a felony and someone dies

MPC MPC 210.2 Murder: Criminal homicide is murder when: (first degree felony) a. it is committed purposefully, knowingly, (NO PREMEDITATION NECESSARY) or b. recklessly under circumstances manifesting extreme indifference to the value of human life [“recklessness plus”] c. Recklessness plus can be presumed for certain felonies (eg. robbery, rape, burglary, etc.) [felony murder] ** No distinction for first and second degree murder – just first degree murder

First degree murder: intentional + premeditated OR some felony murders Second-degree murder: everything else Thus, intent-to-kill murders that do not involve premeditation and deliberation as well as intent-to-dogrievous-bodily-harm murders and killings involving depraved indifference to human life are generally seconddegree murder. Unintentional Murder (Recklessness Plus): The below is UNINTENTIONAL: something that may have been involuntary manslaughter bc no intent, but is so wicked that the killing seems to be malice U.S. v. Fleming While an ordinary drunk driver would be a manslaughter charge, D was driving in a way that seemed to be deliberately reckless or out of control. D was also likely aware of the risks of his actions – court infers awareness from D’s voluntary intoxication but does not need to prove awareness. Commonwealth v. Malone An unintentional killing that displays sufficient recklessness (recklessness plus) qualifies as murder (When an individual commits an act of gross recklessness for which he must reasonably anticipate that death to another is likely to result, he exhibits the wickedness of disposition and cruelty that constitutes malice required for a charge of 2nd degree murder.) Examples: firing a gun into a crowded room; shooting an apple off of head Three relevant factors:  Magnitude of risk  Lack of justification  Awareness of risk

Provocation Mitigation (something that would otherwise be intentional murder is mitigated to manslaughter)

Common Law Adequate Provocation: Heat of passion after adequate provocation. Factors include:  D acted in heat of passion (* SUBJECTIVE STANDARD)  As a result of adequate provocation (* OBJECTIVE STANDARD)  No reasonable opportunity to cool off (* OBJECTIVE as to reasonable; SUBJECTIVE as to whether cooled off)

MPC 210.3 Manslaughter: Criminal homicide is manslaughter when: (second degree felony) b. A homicide which would otherwise be murder is committed under the influence of extreme mental or emotional disturbance (EMED) c. Where reasonable explanation or excuse (based on actor’s circumstances/viewpoint)

**Eg. Traditional categories of conduct for adequate provocation (witnessing spousal adultery, extreme battery of D, mutual combat, illegal arrest, etc.)

People v. Casassa A charge of murder can be reduced to manslaughter if the def can show extreme emotional disturbance and that there was a reasonable explanation for excuse for his actions as determined by the court. This may be done both subjectively (determine whether the situation was perceived as illogical by the def) or objectively (determine whether the explanation of the disturbance is reasonable).

Cooling off: If D has a reasonable opportunity to cool off, then no mitigation to manslaughter. Girouard v. State (Category Approach) Mere words are not adequate provocation **However, sometimes words are enough where, if the distressing circumstances described by those words were present, they would have constituted adequate provocation. Categories in this case:  Extreme assault or battery upon the defendant  Mutual combat  Illegal arrest  Witnessing spouse in adultery

Cooling off: Formally eliminated in MPC, but essentially is mixed into the reasonableness inquiry.

Maher v. People (Broad Approach) The circumstances of provocation must be such that their “natural tendency” is to put a reasonable person into a heated emotional state that would interfere with his reasoning. The issue is whether a reasonable person would lose self-control and act purely on impulse.

Manslaughter Recklessness plus  murder (MPC and non-MPC)

Ordinary recklessness  manslaughter (MPC and non-MPC) Gross negligence  non-MPC manslaughter or MPC negligent homicide Ordinary negligence  typically no criminal liability but see statute in Williams Common Law MPC Manslaughter: an unlawful killing without malice MPC 210.3 Manslaughter: Criminal homicide is aforethought. manslaughter when: (second degree felony) a. it is committed recklessly (ordinary Voluntary manslaughter = Voluntary manslaughter is a recklessness) (Ask: did the person consciously disregard a substantial and unjustifiable risk killing that would otherwise be murder but is distinguishable that his conduct would cause the death of from murder by the existence of adequate provocation (see another? Provocation Table Above) MPC 210.4 Negligent Homicide: (third degree felony); Involuntary manslaughter = Homicide constitutes Criminal homicide committed with gross negligence involuntary homicide when it is committed unintentionally with People v. Hall wantonness, recklessness, gross negligence, or negligence Finds a substantial and unjusti...