FERRELL 1

Criminal Law Outline

Fall 2001 - Professor J. Shand Watson
Walter F. George School of Law
Mercer University

WHY PUNISH?

I. Perspectives on Punishment
A. Retributionist View: punishment is justified solely because the criminals deserve it
1) the criminal law proceeds upon the principle that it is morally right to hate
criminals, and it confirms and justifies that sentiment by inflicting upon criminals
punishments which express it (104)
2) some crimes are so outrageous that society insists on adequate punishment,
because the criminal deserves it, irrespective of whether it is a deterrent or not
(105)
3) Kant - "jus talionis" (right of retaliation) originally developed as a specific list of
punishments for a specific list of crimes. People would collect "blood money."
Eventually, it evolved into a centralized system of punishing criminals much like
our present-day criminal justice system. Punishment must always be proportional
to the nature of the crime.

B. Utilitarian View: punishment is justified only because of the useful purpose that it
serves
1) prevention - punishment serves to deter and prevent criminals from committing
future crimes
(a) general deterrence: threat of punishment deters potential offenders in a
general community
(b) specific deterrence: threat of punishment deters the specific criminal from
committing future crimes
(c) moral influence: threat of punishment inculcates and maintains the habits of
law-abiding conduct in a society
i. externalized belief: when speed limit is not enforced, compliance is
decreased
ii. internalized belief: regardless of whether speed limit is enforced, people
believe that speeding is wrong and therefore comply with the law
iii. criminal law must maintain is "moral credibility" in order to maintain moral
influence over members of a society
(d) deterrence through stigma: loss of status caused by punishment can deter
future criminal activity--conversely, loss of status and the stigma associated
with it can make criminals resort to further criminal conduct--shame is the
origin of many crimes
2) rational-actor model: posits that criminals always weigh the costs and benefits
associated with their criminal conduct and make a determination based upon
such calculation whether to act
(a) violent crimes are especially spurred by "irrational" motives
(b) some criminals just "lose it" and cannot be deterred by any threat of
punishment
(c) most criminals do not have much intelligence and ability to plan
(d) sentencing structures such as "three strikes" may cause criminals to go out in
a "blaze of glory" in the their third criminal act
(e) certainty of detection tends to deter more so than severity of punishment
(f) is it reasonable to assume that criminals know the punishments available for
their criminal conduct?
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3) rehabilitation: an attempt to make the criminal safe to return to society, and also
to live a better life
(a) the general view of the public toward rehabilitation efforts is largely negative
(b) some argue that the personality of the offender and the nature of the crime
must be taken together in order to determine the best means of rehabilitation
(c) success of rehab programs depends usually on the selected subgroups that
participate, the resources available, and whether treatment is a viable option
for those who commit the crime
4) incapacitation: the physical removal of criminals from society
(a) the costs associated with incapacitation are usually high; therefore, it must be
determined if the costs of incapacitation outweigh the costs society might
incur as a result of the criminal's future illegal acts
(b) selective incapacitation: the targeting of select groups of offenders
i. it is unfair to punish people for crimes they have not yet committed
ii. predictions concerning future criminality are usually inaccurate
iii. variables surrounding prediction efforts may raise concerns (age, race,
gender, etc)
iv. efforts might target minorities disproportionately
(c) 1988-1998: prison numbers increased while major crime rates decreased
(d) alternatives to incapacitation may be more cost effective
i. preschool programs
ii. early education

C. Case Studies
1) Regina v. Dudley and Stephens (135) - held that there is no necessity to save
one's own life which constitutes a defense of the murdering of another person;
temptation is not an excuse for murder
2) United States v. Bergman (140) - held that defendant's sentence of 4 months in
prison was sufficient because it served the purpose of general deterrence and any
lesser penalty would have "depreciated the seriousness of the defendant's crime"
3) State v. Chaney (143) - held that a sentence of 1 year imprisonment for rape
running concurrently is too lenient to serve the established purposes of issuing
punishment under Alaska law; sentence dismisses the seriousness of the crime of
rape, does not promote the objective of rehabilitation and reformation, and does
not promote the goal of community condemnation of the defendant's actions and
reaffirmation of the community's norms
4) United States v. Jackson (146) - held that defendant's life sentence for armed
bank robbery on his third felony conviction was justified under a statute
establishing a minimum sentence of 15 years; dissenter argued that a lesser
sentence would have served the same purpose of preventing the defendant from
committing future crimes as a result of his age.

DETERMINING CRIMINAL CONDUCT - THE ELEMENTS OF JUST PUNISHMENT

I. Culpability
1. Actus Reus - Culpable Conduct
1) Model Penal Code §2.01: A person is not guilty of an offense unless his liability is
based on conduct which includes (1) a voluntary act or (2) the omission to
perform an act of which he is physically capable.
2) Martin v. State (173) - held that defendant's conviction under a public
drunkenness statute was void where the defendant's appearance in public was an
involuntary act required of him by the police officers
3) People v. Newton (175) - held that the trial court erred in not instructing the jury
that evidence of the unconsciousness of the defendant during the commission of
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the crime constitutes a complete defense to homicide, provided that it is

supported by the evidence and the defendant's unconsciousness is not self-
induced
4) MODEL PENAL CODE §2.01, ACTIONS THAT ARE NOT VOLUNTARY INCLUDE:
(a) a reflex or convulsion
(b) a bodily movement during unconsciousness or sleep (sleepwalking defense)
(c) conduct during hypnosis or resulting from hypnotic suggestion
(d) a bodily movement that otherwise is not a product of the effort or
determination of the actor, either conscious or habitual
5) Possession is considered to be 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

B. Omissions (failure to act)

1) MODEL PENAL CODE §2.01: liability for the commission of an offense may not be
based upon an omission unaccompanied by an act unless:
(a) the omission is expressly made sufficient by the law defining the offense; or
(b) a duty to perform the omitted act is otherwise imposed by law
2) Pope v. State (183) - held that defendant who witnessed instances of child abuse
did not fall under a statute requiring the reporting of such abuse to authorities
nor was she subject to the common law rule of misprision of felony, therefore, her
omission did not constitute a culpable act
3) Jones v. United States (190) - held that trial court erred in failing to instruct jury
that defendant must have been bound by a legal duty to act and not simply a
moral obligation for his omission to be considered culpable; established the
following exceptions to the omission defense:
(a) where a statute imposes a duty to care for another
(b) where one stands in a certain status relationship (usually immediate family) to
another
(c) where one has assumed contractual obligation or duty to care for another
(d) where one has voluntarily assumed the care of another and has so secluded
the helpless person as to prevent others from rendering aid
4) Why are the courts less prone to punish omissions rather than overt acts?
(a) efficiency - courts barely have the time to punish overt acts, which usually
take higher priority than omissions
(b) vagueness - omission laws are usually constructed too vague to withstand
constitutional muster
(c) omission laws do not work - laws cannot make people act who otherwise do
not want to; enforced altruism (good samaritan laws) are largely inefficient
and inneffective
5) Barber v. Superior Court (198) - held that defendant physicians' act to remove
"heroic life support" measures was not an affirmative act but rather an omission
to provide further treatment, and such omission did not violate a duty because a
physician does not have a duty to continue treatment once it has proved to be
ineffective

3. Mens Rea (culpable state of mind) - Basic Conceptions

1. Protection against absence of fault -- actus non facit reum, nisi mens sit rea (an
unwarrantable act without a vicious will is no crime at all)
2. Defenses -
(a) involuntary act,
(b) duress,
(c) legal insanity,
(d) accident,
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(e) mistake
3. Concern of the criminal law is with the level of intentionality with which the
defendant acted, in other words, with what the defendant intended, knew, or
should have known when he acted (203)
4. Different crimes require different mental elements
5. MODEL PENAL CODE - § 2.02, GENERAL REQUIREMENTS OF CULPABILITY:
(a) Objective - A person is not guilty of an offense unless he acted 1purposely,
2
knowingly, 3recklessly, or 4negligently, as the law may require, with respect
to each material element of the offense. "Material element" of the offense
may involve 1nature of the forbidden conduct, 2the attendant circumstances,
or 3the result of conduct.
(b) Purpose and Knowledge - Action is not purposive with respect to the nature or
result of the actor's conduct unless it was his conscious object (1) to perform
an action of that nature or (2) to cause such as result. Some crimes, such as
treason, specifically require intent of purposiveness, as opposed to mere
knowledge.
(c) Recklessness - involves a conscious risk creation and awareness of a risk that
is 1substantial and 2unjustifiable. Resolution of these issues requires value
judgements, usually made by the finder of fact.
(d) Negligence - does not involve a state of awareness, but that a person
inadvertently creates a 1substantial and 2unjustifiable risk of which 3he ought
to be aware. This determination also involves value judgements that are
usually made by the finder of fact.
(e) Intention and Motive - Motive is usually not relevant to criminal liability, but
sometimes to sentencing. In the unusual case, motive might actually be
necessary for a defense (doctor removing life support) or as an element of the
crime (hate crime legislation).
(f) Recklessness and Awareness - Negligence is less culpable because the actor
acts only inadvertently, but with recklessness, the actor chooses to run the
risk of his actions with the knowledge of potential danger. The distinguishing
factor these two issues is the level of awareness. The Model Penal Code
seems to require that an actor, to be found to be reckless, must be aware of
three factors: 1that there is a risk, 2that the risk is substantial, and 3that the
risk is unjustifiable. Is this a correct interpretation?
(g) "Specific Intent" and "General Intent" - Sometimes crimes are classified as to
the type of intent required by them.
i. specific intent: those actions that must be done with some specified
further purpose in mind (i.e. burglary "objective of committing a
felony" being a required element of the crime)
ii. general intent: the defendant can be convicted of the crime if he did
what is classified as an intentional act (i.e. burglar can be convicted of
trespass as general intent crime)
iii. specific intent: a crime that requires the defendant to have actual
knowledge (that is, subjective awareness) of some particular fact or
circumstance (i.e. bigamy potentially is a specific intent crime if it
requires proof that defendant knew she was still married to her
husband)

6) Case Studies:
(a) Regina v. Cunningham (204): held that proof of malice is not satisfied by a
showing of "wickedness" but it must be determined (1) whether the defendant
acted with intent to do the particular harm to the victim and (2) whether the
defendant foresaw that his actions might result in consequences or harm to
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the victim but nevertheless continued to act in a reckless nature that resulted
in such harm.
(b) Holloway v. United States (218): held that a defendant may not negate a
proscribed intent contained within a statute by requiring the victim to comply
with a condition the defendant has not right to impose (i.e. carjacking)
(c) United States v. Jewell (220): held that when an element of a crime is
knowledge, it must be proven that if the defendant was not actually aware, his
ignorance in that regard was solely and entirely a result of a conscious
purpose to avoid learning the truth (bad decision by the court--element in
statute should have been "recklessness")
(d) Santillanes v. New Mexico (211): held that when negligence is the required
element of an offense, the criminal standard of negligence rather than the
civil standard of negligence should be applied

7) Mistake of Fact
(a) Regina v. Prince (226): held that mens rea is not necessary to convict when
the wrongful act committed was mala in se (or wrongful in itself)---a mistake
of fact, on reasonable grounds, to the extent that if the facts as believed were
true, the person would not be guilty of a crime, is an excuse to every criminal
charge
(b) White v. State (227): held that a husband leaving his pregnant wife, in
violation of a civil duty, is guilty regardless of the fact that he was unaware
that his wife was pregnant (mala in se case)
(c) People v. Olsen (230): held that where the intent of the legislature was to
provide extra protection for minors under the age of 14, and the express
intent was not to provide for a mistake of fact defense under the statute, a
mistake of fact as to the victim's age does not constitute a defense----allowing
the defense would somewhat undermine the purpose and effectiveness of the
law (strict liability in cases involving sexual offenses against minors)

8) Strict Liability
(a) Strict Liability: no mens reas is required to convict; usually involved in cases
of "public welfare offenses, regulatory offenses, and public health cases"
(b) United States v. Balint (236): held that strict liability is necessary under a
narcotics statute because the purpose of the act would be obstructed if mens
rea was required to be proven
(c) Vicarious Liability: no mens rea OR actus reas is required to convict; this
theory is largely criticized for being a violation of due process of law under the
Constitution
(d) United States v. Dotterweich (236): held that CEO could be held criminally
liable for the actions of his employees in shipping misbranded drugs

9) Mistake of Law
(a) Common Law rule: mistake of law is no defense unless the mistake negates
an "express and necessary" element of the crime (i.e. kidnapping if the
criminal believes he has authority under the law---negates the element
requiring intent without authority of law to confine or imprison another)
(b) MODEL PENAL CODE §2.04: a belief that conduct does not legally constitute an
offense is a defense to a prosecution for that offense based upon such
conduct when…(b) he acts in reasonable reliance upon an official statement of
the law, afterward determined to be invalid or erroneous, contained in (I) a
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statute or other enactment; (ii) a judicial decision, opinion, or judgement; (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.
(c) People v. Marrero (255): held that mistake of law is a valid defense when a
defendant shows that he believed his conduct did not constitute an offense
and that he acted in reasonable reliance upon an official statement of the law,
afterward determined to be invalid or erroneous, contained in a statute or
other enactment----the defendant in this case was convicted
(d) Cheek v. United States (263): held that claims of the unconstitutionality of a
statute does not constitute a mistake of law defense (failure to pay income
taxes upon belief that tax laws were unconstitutional not a defense)
(e) Lambert v. California (271): held that defendant was not liable for violating a
statute requiring felons to register in the state of California upon entry
thereof----the offense was "mala prohibitum" and not "mala in se" therefore
the defendant was not place on notice that he had a legal duty to register

D. Legality
1. Case Studies
(a) Shaw v. Director of Public Prosecutions (290): held that defendant was justly
convicted under statute prohibiting conspiracy to corrupt public morals
because the court reserves the power to create common law crimes and the
statute was not so vague as to prejudice defendant---defendant's conduct was
"mala in se" and therefore application of new common law crime against
defendant does not constitute ex post facto application
(b) Keeler v. Superior Court (290): held that §187 of the California penal code
does not restrict the killing of fetuses---the court cannot hold a defendant
liable under an interpretation of a statute that was not reasonably foreseeable
by the defendant (cannot construe "human being" to include fetuses, thereby
creating common law crime and holding defendant liable)
(c) City of Chicago v. Morales (300): held that application of Gang Congregation
Ordinance constitutes a violation of due process rights because of the
vagueness of the statute and the unlimited discretion allowed to police
officers under the statute----dissent argues that weighing the costs of
enforcing the ordinance (intrusion on civil liberties) is substantially less than
not enforcing the ordinance (disruption of lifestyle of numerous citizens in the
neighborhood)
(d) Papachristou v. City of Jacksonville (307): held that vagrancy law was void for
vagueness and because it permits and even encourages arbitrary
enforcement by police officers----distinguished from the Morales case because
it defines categories of people rather than categories of offenses, it
criminalizes habitual behavior and lifestyles, and it essentially criminalizes
"social status"
i. Vagrancy is a "status" offense and can lead to a perpetual cycle of
incarceration, given that defendant is permanently guilty
ii. People arrested under a vagrancy statute are not likely to have
lawyers on call

2. Common Law Crimes: courts often create common law crimes, and this can raise
issues of fairness and due process. There are certain problems inherent with the
court creating common law crimes:
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(a) Vagueness - common law crimes are often vague (i.e. vagrancy or gang
crimes) so that a reasonable person is not put on notice that he is violating
the law
(b) Incorrect Role for the Court - courts often justify their creation of common law
crimes by stating that they can address the problem before the legislature
will----the court's primary role, however, should be to interpret the law and not
create it.
(c) Enforcement of Morality - when courts create common law crimes that enforce
a moral code, they are giving people the incentive of obeying the law to avoid
punishment; whereas, without the people already had an incentive to obey
the law because doing so is moral, and people want to avoid a bad reputation
as an immoral person. Thus, the new law is an externalized rather than
internalized.

HOMICIDE AND OTHER CRIMES AGAINST THE PERSON

I. Homicide
A. Generally: an unlawful taking of the life of another falls into the category of
"homicide" and the two principle categories of homicide are murder and
manslaughter.
1. Degrees of Murder - murder is usually divided into first- and second-degree
murder. First-degree murder is killing that is "premeditated and deliberate" and
sometimes during the course of certain felonies. All other murder is second-
degree.
2. Two types of Manslaughter - manslaughter is also divided into (1) voluntary
manslaughter, usually a killing occurring in the "heat of passion" and (2)
involuntary manslaughter, usually an unintentional killing committed recklessly,
grossly negligently, or during the commission of an unlawful act.
3. Other statutory forms of homicide: some jurisdictions have passed other
statutory forms of homicide, such as vehicular homicide and negligent homicide
(MPC)

II. Murder--Generally
A. Definition: although there is no specific definition, murder is generally the unlawful
killing of another person

B. Four Types:
1. Intentional murder
2. Intent to commit grievous bodily injury murder
3. Depraved heart murder (i.e. reckless indifference to human life)
4. Felony murder
5. Negligent homicide

C. Elements of Murder:
1. Actus reus
2. Corpus delecti - there must be shown the death of another person
3. Mens rea - the required mental state is usually referred to as "malice
aforethought," but many jurisdictions use other terms. In most jurisdictions, any
of the following four intents will suffice:
(a) intent to kill
(b) intent to commit grievous bodily harm
(c) reckless indifference to the value of human life
(d) an intent to commit a dangerous felony
4. Proximate Cause - there must be a causal relationship between D's act and V's
death.
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III. Legislative Grading of Intended Killings

A. The Premeditation-Deliberation Formula
1. Commonwealth v. Carroll (396): held that even a brief period between
premeditation and the killing is sufficient to convict for first degree murder, so
long as the killing was in fact intentional, willful, and deliberate and premeditated.
(a) the intent to kill may be found from the D's own words or conduct or the
surrounding circumstances together with all inferences that can reasonably be
drawn, and may be inferred from the intentional use of a deadly weapon on
another's vital portion of their body.
(b) Length of time over between which intent is formed and killing occurs is
immaterial, so long as the act was intentional, wilful, deliberate, and
premeditated.
2. People v. Anderson - the state must show affirmative evidence to support
premeditation of the part of the D. Such evidence can be shown through:
(a) planning activity by the defendant
(b) facts about the defendant's prior relationship or behavior with the victim that
might show motive to kill
(c) the nature of the killing that indicate a deliberate intention to kill according to
a preconceived design
3. State v. Guthrie (400): where a defendant is charged with first-degree murder,
the state must show that the defendant considered an weighed his decision to kill
prior to the killing taking place. Thus, instantaneous deliberation is not sufficient
to show premeditation.

B. Provocation - based on the idea that people who have been provoked to violence are
less culpable for murder than those who have been engaged in premeditation. The
provocation is not an excuse to using deadly force, since the defendant's life was
never in danger, but it is used to reduce the charge from first-degree murder to
second-degree murder.
1. Girouard v. State (405): held that where the defendant's defense to murder is
provocation based upon "fighting words," the provocation will not be sufficient to
mitigate murder to manslaughter. The standard shall be a reasonable man and
shall not take into account the "frailties of mind" of the individual defendant.
Some arguments against the court's decision:
(a) words alone could make a person irrational
(b) if people can be provoked by words alone, they could be tricked and provoked
by a LIE, which might lead to the killing of another
(c) regardless of how the defendant was provoked, if he is provoked by mere
words alone, he should get the defense
(d) if a person is truly provoked, he is not deterrable
(e) categorical lists attempting to name every situation where a provocation
defense will not exist are not effective

2. Maher v. People (407): standard applied by the court is "where reason is

disturbed by passion to an extent which might render 'ordinary men' of fair
average disposition liable to act rashly or without due deliberation or reflection,
and from passion, rather than judgement." Whether the provocation occurs in
the defendant's presence is immaterial. Also, evidence that the defendant may
have had time to "cool off" is relevant to be considered by the jury.
(a) the defendant must have been provoked
(b) any reasonable man would have been provoked in the defendant's situation
(thus, the standard discriminates against people who are abnormally short-
tempered)
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3. People v. Cassassa (415): when reviewing the affirmative defense of "extreme

emotional disturbance" the court must determine that (1) the particular
defendant acted under the influence of extreme emotional disturbance, and (2)
there existed a reasonable explanation or excuse for such extreme emotional
disturbance, provided that such reasonableness is to be determined from viewing
the subjective, internal situation in which the defendant found himself and the
external circumstances as perceived by him.

C. Rationale for the Provocation Defense

1. Provocation as partial excuse
(a) concession to the "frailty" of human nature
(b) some argue that even reasonable men do not kill under provoked
circumstances
2. Provocation as partial justification
(a) an individual is to some extent morally justified in making a punitive return
against someone who intentionally causes him serious offense
(b) others suggest that it is "morally questionable" to suggest that there is less
societal harm in victim's death merely because he acted immorally

D. Cooling Time: where there is a long lapse of time between the provocation and the
killing, the jury could reasonably conclude that the defendant had enough time to
"cool off" and therefore the defense will not apply------sometimes events can actually
"rekindle" the original provocation

E. Sexual Infidelity as Provocation: most courts will hold that the sudden discovery of
one's spouse's sexual infidelity is sufficient to provoke any defendant

F. Defendants that elicit the provocation: many courts will not allow the defendant a
defense of provocation where he was the one that caused the provocative conduct

G. What if an innocent bystander is killed?: some courts will not allow a defense of
provocation to the killing of an innocent bystander, even thought the defendant was
obviously provoked.

H. Reasonable Man Standard

1. Arguments for Reasonable Man
(a) the juries will use an objective standard inevitably
(b) it shows society a standard to which it should gradually move toward
(c) those people who are easily provoked are dangerous to society and should
not be given a defense
2. Arguments against Reasonable Man
(a) a reasonable man does not kill under any situation---therefore, there should
either be no punishment at all or punishment
(b) somewhat like a status offense that discriminates against hot-tempered
persons who cannot change
3. Special situations that pose problems
(a) should the age and sex of the defendant be taken into consideration?
(b) Should the nationality or ethnic background of a defendant be taken into
consideration?
(c) Are battered women more easily provoked?
(d) Are people with mental disorders more easily provoked?

IV. Legislative Grading of Unintended Killings

A. Creation of Homicidal Risk
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1. Distinguishing Civil from Criminal Liability

(a) Commonwealth v. Welansky (425): held that a person will be guilty of "wanton
and reckless conduct" and therefore involuntary manslaughter where (1) facts
or information known by him are such that they would (2) cause a grave risk
to become apparent to a reasonable man, and such person fails to act or
omits a duty to act so that the grave danger actually occurs. The problem
with this case is that there was neither an actus reus nor mens rea on the part
of the defendant.
i. Involuntary manslaughter consists of death resulting from wanton or
reckless conduct.
ii. Knowing facts that would cause a reasonable person to appreciate the
risk is equivalent to knowing the danger, even when the defendant is
so heedless as to not actually recognize the danger
iii. The distinguishing characteristic between civil and criminal liability is
that a person may be held criminally liable for negligence if that
negligence is "gross" or "reckless" such that it amounts to a criminal
disregard for human life or the safety of others----there must be some
type of gross deviation from the normal standard of care of a
reasonable person

2. Objective vs. Subjective Standards of Liability

(a) State v. Williams (431): held that under Washington law, a person is guilty of
manslaughter if the death of the victim occurs as the proximate result of the
"simple and ordinary negligence" of the defendant. Ordinary negligence is
defined as a failure to exercise the kind of caution a reasonable man would
exercise under the same or similar conditions, at a point in time that an
ordinarily prudent person would deem it necessary to do so in order to
prevent the death.
i. This decision is in conflict with the common law standard of criminal
negligence as being required
ii. Washington has since enacted statutes requiring either (1) reckless
conduct, or (2) criminal negligence.
(b) Arguments for the Objective Standard
i. Juries will apply an objective standard in almost all cases
ii. It represents a good standard to which society should gradually move
iii. Those who are clumsy or aloof, or otherwise irresponsible, are
dangerous to society
(c) Arguments against the Objective Standard
i. Some people are born clumsy or aloof and no matter how hard they
try, they cannot change
ii. Deterrence does not work on people who make mistakes
(d) Model Penal Code Approach: takes the position that awareness of the risk
(recklessness) is required for manslaughter, but a person who is unaware of
the risk may be punished for the crime of negligent homicide.

3. The Line Between Murder and Manslaughter

(a) Commonwealth v. Malone (439): held that when one commits an intentional
act in gross negligence such that his actions evidence a disregard for the
consequences of his act or the harmful effects it may have on others, such
disregard evidences malice in the actor and is sufficient to hold him liable for
murder rather than manslaughter-----actual ill-will toward the victim is not
required to show malice
(b) United States v. Fleming (443): held that evidence of conduct that is "reckless
and wanton and a gross deviation from a reasonable standard of care, of such
 FERRELL 11

a nature that a jury is warranted in inferring that the defendant was aware of
a serious risk of death or serious bodily injury" is enough to prove malice and
hold him liable for second-degree murder. There are some problems with this
decision:
i. the defendant was drunk, so how can he recklessly and wantonly have
a disregard for human life?
ii. Is the defendant anymore culpable than any other reckless driver, just
because he had was the unfortunate cause of the death of another?
iii. There is no effective deterrence in this type of case, because the
action is only punished when a death occurs
iv. The court imputes a mens rea upon the defendant in this case, thereby
criminalizing the defendant's actions as murder when it really was an
unfortunate accident

B. The Felony-Murder Rule

1. The Basic Doctrine
(a) Regina v. Serne (448): held that a person shall be guilty of felony murder if
the act is known to be dangerous to life and likely to cause death, and is done
for the purpose of committing a felony which causes death-----acts that are
felonious but not likely to cause death are cannot be used to convict for
felony-murder
(b) People v. Stamp (450): held that the felony-murder rule is not limited to those
deaths that are foreseeable, but rather a felon is held strictly liable for all
killings committed by him or his accomplices in the course of a felony as long
as the felony committed is the direct cause of the killing----essentially, the
felon must take his victim as he finds him (in this case, the victim of the
robbery died of a heart attack)
(c) Arguments for Applying the Doctrine to Only Foreseeable Deaths:
i. A felon cannot be deterred by threat of punishment of accidental
deaths
ii. Courts should increase the punishment of all similar felonies if they are
dangerous, and not just punish the individual felon that unfortunately
causes the death of another
iii. Punishment under the felony-murder rule, where an accidental death is
converted into murder, is disproportionate
iv. There is no clear evidence that the imposition of the felony-murder rule
actually saves lives or keeps people from being killed during the
commission of felonies
(d) Arguments for Applying the Doctrine to Un-Foreseeable Deaths:
i. The threat of murder conviction of even accidental deaths during the
course of a felony will deter felons from undergoing the felony
ii. The threat of murder conviction will deter felons from being
unreasonably careless in the commission of their crimes
iii. Puts felons on notice that they will be held strictly liable for their
actions
iv. Felons are already culpable people worthy of harsh punishment

2. The Misdemeanor-Manslaughter Rule

(a) in many states a misdemeanor resulting in death can provide a basis for an
involuntary manslaughter conviction without proof of recklessness or
negligence----also known as the "unlawful-act doctrine"
(b) Involuntary manslaughter: a killing in the commission of an unlawful act, not
amounting to a felony; or in the commission of a lawful act which might
produce death, in an unlawful manner, or without due caution and
circumspection.
 FERRELL 12

(c) Restrictions on the rule:

i. Requirement of proximate cause
ii. Limiting the doctrine to malum in se as opposed to malum prohibitum
misdemeanors
iii. Limiting the doctrine to misdemeanors that rise to the level of criminal
negligence
iv. Limiting the doctrine to misdemeanors designed to protect human
safety

3. The Inherently Dangerous Felony Limitation: a way for courts to narrow the
doctrine
(a) People v. Phillips (459): held that the felony-murder rule will only be applied
in those cases where a felony is (1) inherently dangerous to human life, when
(2) viewed in the abstract instead of in light of the facts of the defendant's
particular case. This gives the felon notice of which felonies the doctrine will
apply to (i.e. armed robbery as opposed to fraud)
(b) People v. Satchell (462): held that felony possession of a concealable weapon
by an ex-felon was not a "felony inherently dangerous to human life." In
doing so, the court narrowed the doctrine and looked at the felony in the
abstract.
(c) People v. Stewart (464): held that the felony-murder rule will only be applied
in cases where a felony is (1) inherently dangerous to human life, when (2)
viewed in light of the facts of the defendant's particular case. The court
rejected the "abstract" approach of California.

4. The Merger Doctrine

(a) Generally: states that the felony-murder rule is inappropriate if the
underlying felony on which the felony-murder charge is brought is itself an
"intergral part" of the homicide. Without the merger doctrine, every
manslaughter or assault that leads to death would turn into a murder charge,
thereby wiping out the state's requirement that it show malice before it can
convict on murder.
(b) People v. Smith (466): held that the merger doctrine will be applied where the
felony underlying the murder charge is (1) an intergral part of the homicide
and (2) where the homicide does not result from conduct for an independent
felonious purpose (in this case, felony child abuse cannot be used to base a
felony-murder conviction)

5. Killings Not in Furtherance of the Felony

(a) State v. Canola (471): held that a felon may not be held liable for any killing
which ensues during the commission of a felony, but only those that result
from the acts of the criminals themselves (i.e. a criminal is shot by one of the
victims, then defendant is not culpable)
(b) Taylor v. Superior Court (477): held that where a defendant or his accomplice,
with a conscious and wanton disregard for human life, intentionally commits
an act that involves a high degree of probability that it will result in death, and
his victim or a police officer kills in reasonable response to such act, the
defendant is guilty of murder under the theory of "vicarious liability." In such
cases, malice need not be implied using the felony-murder rule, but exists by
itself as a result of the criminal's actions in wanton disregard for human life
and in his creating the risk of death.
(c) Agency Theory: the doctrine of felony murder does not extend to a killing,
although growing out of the commission of a felony, if directly attributable to
the act of one other than the defendant or his accomplices.
 FERRELL 13

(d) Proximate Cause Theory: the felony-murder rule would apply to any death
proximately resulting from the unlawful activity--even the death of a co-felon--
notwithstanding the killing was by one resisting the crime.

V. The Significance of the Resulting Harm

A. Causation
1. Foreseeability & Coincidence
(a) People v. Acosta (518): held that where the victim's death was actually
caused by the defendant's criminal act, and the result is not highly
extraordinary but instead reasonably foreseeable, then the jury may find that
proximate cause existed between the defendant's actions and the harm.
Thus, the court requires that the defendant's conduct "proximately" cause the
death before criminal liability is imposed. However, in this case, there was an
intervening cause (i.e. negligent helicopter pilot), and therefore, the person
closest to the harm and who acts freely and willingly in a way that causes the
injury should be the person held liable (the pilot should be liable).

(b) People v. Arzon (521): held that where an individual's criminal conduct was a
sufficiently direct cause of the death, and the ultimate harm is something that
should have been foreseen as being reasonably related to his acts, he shall be
held criminally liable. So long as the defendant's actions were a direct cause,
it does not matter that there may have been other direct or intervening
causes.
i. Foreseeability + Sufficiently Direct Cause = Murder --------the Kibbe
case rule
ii. It is not necessary that the ultimate harm be intended by the actor, so
long as he acts with depraved indifference to human life. The ultimate
harm must only be reasonably foreseeable.
iii. Actus reus + Mens rea + Causal Connection = Criminal Liability

(c) Transferred Intent: the standard in most jurisdictions is that a defendant's

intent can be transferred to hold him liable for injuries caused on unintended
victims. Example: Defendant shoots at A intending to kill A, but the bullet
misses A and strikes and kills B. The defendant would be guilty of murdering
B because he had the act and the mens rea necessary. He is no less culpable
than if he had actually killed A.

2. Subsequent Human Actions Intended to Produce the Result

(a) People v. Campbell (530): held that furnishing a gun to someone that is
suicidal and hoping that they use it to kill themselves, and the person actually
does kill himself, is not murder. The very definition of suicide cannot include
homicide, and vice versa.

(b) People v. Kevorkian (531): where a defendant merely provides the means of
suicide to another, but does not participate in the final overt act of the killing,
he will not be held for murder. Only where it can be shown that the death
occurred as a "direct and natural result" (proximate cause) of the defendant's
act can there be grounds for a murder charge.
i. Novus actus interveniens - where a later action by another person
displaces the relevance of prior conduct by others and provides for a
new foundation for causal responsibility

(c) Stephenson v. State (537): held that where a suicide follows an injury to a
third party, whether physical or mental, inflicted by the defendant, by which
 FERRELL 14

injury the deceased was rendered "mentally irresponsible," and such mental
irresponsibility was the natural and probable result of his act, the defendant is
guilty of homicide. (i.e. in this case, the deceased was raped and sexually
assaulted by the defendant, and she later committed suicide as a result of her
injury)

3. Subsequent Human Actions that Recklessly Risk the Result

(a) Commonwealth v. Root (545): held that when defendant's reckless or
unlawful conduct is not the direct cause of another's death, but rather the own
victims' recklessness and unlawful conduct caused his death, the defendant
will not be held criminally liable for involuntary manslaughter. (i.e. in this
case the two parties were drag racing, and the deceased swerved into
oncoming traffic)

(b) People v. Kern (547): held that a defendant attacker was liable for the death
of his victim when the victim was struck by a car as he attempted to run
across a highway to escape from the defendant----the court found that the
defendant's actions were a sufficiently direct cause of the victim's death.

(c) State v. McFadden (548): held that the defendant was vicariously liable for
the death of a fellow drag-racer, and also that the standard for finding
proximate cause shall be the same test of "foreseeability" as used in civil
trials, and refuses to apply the "direct causal connection" doctrine.

(d) Commonwealth v. Attencio (550): held that where the defendants and
deceased are involved in a dangerous act, and the facts show "mutual
encouragement in a joint enterprise," then the defendants are liable for any
death resulting therefrom. In this case, the defendant was guilty of
manslaughter after participating in a game of Russian roulette in which the
another participant was killed.

B. Attempt
1. Theory of Punishment for Attempt - Why Punish a failed Attempt?
(a) H.L.A. Hart's view
i. no punishment for a failed attempt will completely fail in deterring
future attempts, some of which would be successful.
ii. If the criminal succeeds in the attempt, it is likely that he will escape
being caught. Usually criminals are caught when their attempts fail;
therefore, they should be punished.
(b) Another reason for punishing attempt with a lesser punishment than a
successful crime is that it is desirable to give an attempting criminal an
incentive to stop prior to commission of the crime. That is why punishment
for attempt is lesser, even though the attempting criminal has the same
culpable mental state.
(c) The actions of the attempted criminal are just as blameworthy, independent
of whether any injury occurs
(d) If you are attempting a crime, obviously deterrence has already failed---
however, if attempts were punished, that might serve to further deter
criminals from taking the risk of attempting a crime
(e) Argument in favor of applying similar punishments for attempts and
completed crimes is that anti-social and dangerous behavior should be
deterred, and attempts are certainly dangerous and anti-social. The MPC is in
favor of having similar punishments for attempts and the actual crime.
 FERRELL 15

2. Mens Rea
(a) Smallwood v. State (556): held that an attempt requires a purpose or
"specific intent" to produce the proscribed result, even when recklessness or
some lesser mens rea would suffice for conviction of the completed offense.
For example, an attempted murder requires that the defendant actually
intended to kill or acted with the purpose of killing the intended victim.
(b) Why is specific intent required?
i. to attempt something is to try to accomplish it, and one cannot be said
to try if one does not "intend" to succeed
ii. one who intends to commit a criminal harm does a greater moral
wrong than one who does so recklessly or negligently
iii. utilitarian argument - the requirement of specific intent isolates those
cases in which there is a high likelihood of harm
iv. with attempt, the actus reus fails, and everything relies upon mens
rea. Specific intent insures that you punish only those people who
have criminal conduct on their minds

3. Attempt as Distinguished from Preparation

(a) The Proximity Approach
i. King v. Barker (564): held that "the first step along the way of criminal
intent is not necessarily sufficient and the final step is not necessarily
required--the dividing line between preparation and attempt is to be
found somewhere between these two extremes."
ii. People v. Rizzo (565): only those acts tending to the commission of
the crime which are so near to its accomplishment that in all
reasonable probability the crime itself would have been committed, but
for timely interference, will be considered acts of attempt----As Justice
Holmes stated, there must be "dangerous proximity to success"
between the acts tending to the commission and the actual
accomplishment.
iii. Proximity and Abandonment: one reason for judicial reluctance to
move the threshold of criminality to an earlier point in time has been
the desire to preserve for the defendant a "locus penetentie"---an
opportunity to repent, to change one's mind (567). The opportunity to
repent is lost in two situations:
(1) Where the defendant is arrested before completing the final act
(2) Where a defendant is arrested after repenting and fully abandoning
the plan, and he still might be guilty of attempt.
(3) Some states allow a defense of abandonment, or renunciation, as a
complete defense. The typical requirement is that the
abandonment occur "under circumstances manifesting a voluntary
and complete renunciation of the criminal purpose."

(b) The Test of Unequivocality -- A state may punish persons who commit and
otherwise innocent act because of an unlawful intent in so acting (i.e.
defendant that lights a match near a haystack might be attempting arson or
merely lighting his pipe)
i. McQuirter v. State (569): held that the jury must be sure beyond a
reasonable doubt that the defendant intended to have sexual
intercourse with the prosecutrix against her will, by force or either
putting her in fear, before he can be guilty of an attempt to commit an
assault with intent to rape.
ii. "It is that quality of being equivocal that must be lacking before the act
becomes one which may be said to be a commencement of the
 FERRELL 16

commission of a crime, or an overt act, or before any fragment of the

crime itself has been committed, and this is so for the reason that, so
long as the equivocal quality remains, no one can say with certainty
what the intent of the defendant is…" (571)
(c) Substantial Step Test - MPC Two-Tiered Approach
i. United States v. Jackson (575): the court applied the substantial-step
test to affirm the conviction of the defendants. A defendant may be
convicted of attempt if he takes a "substantial step" along the path
toward the commission of a crime. The test has two prongs:
(1) the defendant must have had the required mens rea for the
attempt
(2) the defendant must have engaged in conduct which constitutes a
substantial step toward the commission of the crime----a
substantial step must be conduct strongly corroborative of the
firmness of the defendant's criminal intent
ii. This test does away with the "proximity approach" which required
police to wait until the defendant commits the "last act" necessary to
constitute criminality.

(d) Five Good Reasons for the Substantial Step Test:

i. Emphasis on what has already been done (instead of looking for
actions in the future)
ii. Ignores locus penitentiae problem (although this is arguably a bad
thing)
iii. Precludes liability for very remote preparatory acts
iv. Permits earlier apprehension than under the proximity approach, which
waits for a "last act" to complete the criminal act (of attempt), which
may be too close to the actual crime to allow for opportunity to deter
it.
v. Presents less of a burden to prosecutors than the res ipsa loquitor
approach

(e) Solicitation of Murder does not Amount to Attempted Murder

i. State v. Davis (581): held that mere solicitation, unaccompanied by an
act moving directly toward the completion of the intended crime, is not
an overt act constituting an element of the crime of attempt.
Solicitation in most states is a separate crime than attempt. The
commission of the crime depends upon the finals acts of the person
who was solicited; therefore, he is an intervening independent act that
negates the attempted murder charge against he defendant. This is
the Majority Approach.
ii. United States v. Church (582): held that defendant's actions of
planning the murder and soliciting a hitman constituted a "substantial
step" toward the commission of the murder, and therefore, they
established the required over act amounting to more than mere
preparation. This is the Minority Approach.

(f) Legal Impossibility is a Defense and Factual Possibility is No Defense

i. People v. Jaffe (585): held that where a defendant has a belief of fact
that is a necessary element to a crime, and the fact is actually
nonexistent, the defendant cannot be said to have committed the
crime, notwithstanding the fact that the defendant actually intended to
commit the crime or that he believed that he was committing the
crime.
 FERRELL 17

ii. People v. Dlugash (587): held that there is no defense of legal or

factual impossibility of a crime, "if such crime could have been
committed had the attendant circumstances been as such person
believed them to be." The act attempted, however, must be a crime.
iii. MPC § 5.01(1): A person is guilty of attempt, when with intent to
commit a crime, he engages in conduct which tends to effect the
commission of such crime, if such crime could have been committed
had the attendant circumstances been as such person believed them
to be.
iv. Factual impossibility: when extraneous circumstances unknown to the
actor or beyond his control prevent consummation of the intended
crime (i.e. the man who pickpockets and empty pocket)
v. Legal impossibility: where the intended acts, even if completed, would
not amount to a crime
vi. Because of the often difficult process of having to distinguish between
factual and legal impossibility, the MPC has abandoned the distinction
altogether.

I. Exculpation - Defenses to Criminal Liability (Justification and Excuse)

A. Protection of Life and Person (Self-defense)
1. United States v. Peterson (750): the law of self-defense is a law of necessity; the
right of self-defense arises only when the necessity begins, and equally ends with
the necessity; and never must the necessity be greater than when the force
employed defensively is deadly. The requirements of self-defense by the use of
deadly force are:
(a) a threat, actual or apparent, of the use of deadly force against the defender
(b) the threat must have been unlawful and immediate
(c) defender must have believed that he was in imminent peril of death or serious
bodily harm
(d) the defender must have believed that his response was necessary to save
himself from the harm
(e) the beliefs must have been honestly held by the defender and objectively
reasonable in light of the surrounding circumstances

B. Self-Defense and Reasonable Belief Requirement

1. Claim of self-defense must be evaluated based on what a reasonable person in
the defendant's position would have believed
(a) People v. Goetz (751): held that a defendant's belief does not have to be
correct, but it must comport with an objective notion of reasonableness.
However, the court also noted that certain subjective aspects of the
defendant's situation can be taken into account. For example:
i. the relevant knowledge the defendant had about the offender
ii. the physical attributes of all persons involved, including the defendant
iii. any prior experiences the defendant had from which he could provide
a reasonable basis for a belief that another person's intentions were to
injure him
iv. any prior experiences that would lead the defendant to reasonably
believe that the use of deadly force was necessary in his situation
(b) Arguments against the reasonable man test:
i. when someone approaches a victim with deadly force, all
"reasonableness" disappears (i.e. as Justice Holmes stated, "detached
reflection cannot be demanded in the presence of an uplifted knife")
ii. The Limbic System Defense - based on the reactions of all persons
under stressful conditions and arousal of self-defense
 FERRELL 18

iii. Juries have no way of knowing how a reasonable person would react in
the situation
iv. Insists that the jury stereotype by placing the reasonable man in the
defendant's situation (i.e. white businessman subway passenger)
v. Defendant cannot know the rule that will be applied, and thus, it is not
sensible to punish because there is no effective deterrence
vi. The test assumes that a "reasonable" person would not resort to self-
defense in order to protect his or her own life
(c) Arguments for the reasonable man test:
i. establishes an artificial standard to hold the defendant to as a matter
of public policy---it is a goal toward which society should move
ii. it protects against unusually fearful people from being able to kill other
people when such action is unreasonable (although it could be argued
that juries could "weed out" those type of defendants)
iii. the jury will more than likely use a type of reasonable man standard
anyway

2. Expert testimony admissible to prove "battered-woman's syndrome"

(a) State v. Kelly (763): held that expert testimony evidence is admissible to
show that the defendant suffered from "batter woman's syndrome" and that
she therefore could have reasonably and honestly feared imminent harm from
the abusive spouse and that she could accurately predict the extent of the
harm that might be directed at her.
(b) Battered-women's syndrome is becoming increasingly recognized in
jurisdictions as a self-defense claim for women who have been abused
physically and psychologically by a dominant male spouse.
(c) Stages in battering cycle of abusive relationship:
i. tension building stage, where woman placates relatively minor abuse
ii. acute battering stage, in which violence escalates
iii. contrition stage, in which the male figure promises to change
iv. self-delusion stage, where the woman believes the promises, no matter
how many times they have proved false in the past
(d) The extent of the defense is that women who are battered generally are
fearful of leaving or ending the relationship, they often are too embarrassed
to ask for outside assistance, and they are fearful of obtaining outside
assistance for fear of future beatings. Expert testimony as to the syndrome is
often used to explain why she could not leave the relationship.
(e) Problems with the Battered Women's Syndrome defense:
i. Why not use the regular self-defense standard?
ii. It is not an insanity defense---it does not affect the woman's free will
iii. It discriminates against others who do not have the defense available
to them (i.e. children who are abused, husbands who are abused,
citizens who live in threatening neighborhoods)

3. No right of "perfect self-defense" where the imminent danger of death is not

present
(a) State v. Norman (776): held that the self-defense theory requires a showing
that the defendant reasonably believed that there existed an "imminent"
threat of serious bodily harm or death; although the threat or possibility of
death or serious bodily harm might indeed be inevitable, that does not satisfy
the requirement of imminence. In this case, the decedent was sleeping when
he was killed by the defendant.
(b) Imperfect self-defense: when the defendant is the initial aggressor, but
without intent to kill or to seriously injure the decedent, and the decedent
escalates the confrontation to a point where it reasonably appears to the
 FERRELL 19

defendant to be necessary to kill the decedent to save himself from imminent

death or serious bodily harm. Imperfect self-defense more commonly applies
when the defendant kills in the belief that it was necessary, but the jury
determines that the belief was unreasonable. This defense does not justify
the killing, but merely reduces it so that the defendant is at least guilty of
voluntary manslaughter.
(c) The MPC has relaxed the imminence requirement, providing that it is sufficient
if the actor reasonably believes that the use of force is "immediately
necessary" on the present occasion.

4. Defense of other persons

(a) The widely accepted rule is that someone who comes to the aid of a person in
peril can use deadly force to prevent the attack, under the same
circumstances that would justify the use of deadly force by the endangered
person himself.

5. Why these theories are similar and criticisms of them:

(a) The reasonable man standard and the battered women's syndrome, are all
category defenses, and lead to category thinking on the part of the jury. This
avoids contemplation of the mens rea of the defendant, which is supposed to
be one of the most important issues in criminal jurisprudence.
(b) Juries believe strongly in expert witnesses, and the use of them can and often
does lead to the expert telling the jury how to decide the case.
(c) There are substantive scientific challenges to the validity of the research
purporting to support the existence of BWS. Feminists also challenge the BWS
as being an extension of cultural stereotypes of women as helpless,
dependent, and inferior to men.
(d) Does BWS mean that the woman no longer has free will to act the way she
should? If BW are helpless "prisoners" how can they take charge and kill the
spouses, or "jailers"? Why not simply leave town?

C. Rule of Retreat Limitation to Self-Defense Claims

1. A person who is being attacked is required to retreat if possible instead of using
deadly force
(a) State v. Abbott (788): held that where a defendant uses deadly force in self-
defense, such force is unjustifiable when the defendant knows that he can
avoid the necessity of such force with complete safety in retreating.
i. if the defender does not resort to deadly force, they are allowed to
hold their ground and there is no duty to retreat
ii. castle exception: if the defendant is attacked in his own home, there is
usually an exception granted that he may stand his ground and use
deadly force if reasonably necessary. The MPC and most jurisdictions
support this exception.

2. An initial aggressor may not claim self-defense if he does not first withdraw from
using force
(a) United States v. Peterson (792): held that a defendant, whose actions
constitute a provocation or aggression on his part, cannot claim self-defense,
unless he communicates to his adversary his intent to withdraw, and acts with
good faith to attempt to do so.
(b) The general rule is that a claim of self-defense may not arise from a self-
generated necessity to defend.
 FERRELL 20

(c) The MPC allows that if the original defender uses excessive force to respond,
the original aggressor may defend against the excessive force with whatever
force reasonable necessary, including deadly force, unless his initial
aggression was intended to provoke a necessity to kill in self-defense.

D. Harm done to Innocent parties through self-defense actions

1. The MPC provides that if a defender's actions of self-defense negligently result in
the death of an innocent third party, his claim of self-defense cannot extend to
absolve him of liability in that persons' death.
2. If one focuses on the mens rea of the defendant who acts in self-defense, then
one must agree that he is not blameworthy and should therefore not be punished.

E. Law Enforcement Limitations on Self-Defense

1. Police may not use deadly force to capture an unarmed suspect fleeing from a
nonviolent felony
(a) Tennessee v. Garner (804): the court rules that the 4th Amendment prohibits
unreasonable seizures of criminals---therefore, the use of deadly force to
prevent a non-dangerous, unarmed criminal from escaping is not reasonable
and violates the criminal's 4th Amendment rights. However, where the
criminal poses a threat of serious bodily harm to either the officer or others,
the officer may use deadly force if reasonably necessary (i.e. criminal
speeding away in a car almost runs over police officer)
(b) The modern classification of numerous non-violent crimes as felonies is a
good reason not to allow officers to use deadly force to apprehend felony
suspects.

F. Choice of the Lesser Evil and the Necessity Defense

1. The defense of necessity has been defined as "conduct which would otherwise be
an offense is justifiable by reason of necessity if the accused was without blame
in occasioning or developing the situation and reasonably believed such conduct
was necessary to avoid a public or private injury greater than the injury which
might reasonably result from his own conduct" (809). Three general
requirements to satisfy a claim for a defense of necessity to a crime:
(a) the crime committed must be the lesser of two evils
(b) there must be a greater evil that threatens a public or private injury that is
thereby avoided by commission of the crime
(c) the situation must not be occasioned or developed by the defendant

2. Defense of necessity may be used by inmate that escapes prison to avoid

personal attacks
(a) People v. Unger (809): held that the Lovercamp elements do not all have to
be met for a necessity defense to prevail, but they do go to the credibility of
the defendant's testimony. The elements that were set forth in Lovercamp
are:
i. The prisoner is faced with a specific threat of death, forcible sexual
attack or substantial bodily harm in the immediate future;
ii. There is not adequate time for a complaint to the authorities or there
exists a history of futile complaints which make any result from such
complaints illusory;
iii. There is no time or opportunity to resort to the courts;
iv. There is no evidence of force or violence used towards prison
personnel or other "innocent" persons during the escape;
v. The prisoner immediately reports to the proper authorities when he
has attained a position of safety from the immediate threat
 FERRELL 21

3. No necessity defense available for illegal squatters in vacant public buildings

(a) Borough of Southwark v. Williams (813): held that illegal squatters did not
have a necessity defense because their actions were not necessary to avoid
or prevent a "great and imminent danger, in order to preserve life."

4. Necessity defense cannot be used to justify illegal distribution of hypodermic

needles to prevent spread of AIDS
(a) Commonwealth v. Leno (813): held that defendants failed to show that the
danger they sought to prevent was "clear and imminent" rather than
debatable or speculative---no necessity defense

5. No necessity defense for illegal use of marijuana in order to cause a disease to

enter remission
(a) Commonwealth v. Hutchins (814): held that defendants use of marijuana to
produce a remission of his disease was not justified by necessity because the
harm he would avoid (pain and suffering) does not outweigh the harm that
would be caused (erosion of drug enforcement).

6. No necessity defense in federal court in cases of "indirect civil disobedience"

(a) United States v. Schoon (820): the court reasoned that the act of indirect civil
disobedience in itself prevents the use of the necessity defense because cases
of this sort arise because people do not like a policy or law, and that can
never be the basis for a legally cognizable harm. Furthermore, their actions
were unlikely to abate the harm intended to be avoided (a separate
intervening cause is necessary to do so). Finally, a legal alternative
(petitioning Congress) will always exist in these type cases.

7. No necessity defense in killing another innocent person in order to save one's

own life from starvation
(a) Regina v. Dudley and Stephens (135, 822): held that the taking of another's
life is only justified in self-defense; there is no absolute or unqualified act to
preserve one's life; the temptation which caused the act in this case does not
justify the act.
(b) The idea that the crew would starve to death without first being rescued was
only probable, and most certainly not definite. Therefore, no imminent threat
can be shown.
(c) Is killing one innocent a lesser harm than two other people dying?

8. Necessity vs. Self-Defense in taking another's life

(a) Generally with the necessity defense, it is only justifiable if the number of lives
saved is greater than the number taken.
(b) With the self-defense claim, a victim is justified in taking however many lives
as necessary to abate the harm.
(c) In general, rights prevail over lives in aggression (self-defense) cases, but
lives prevail over rights in bystander (necessity) cases.

9. Necessity defense allowed to interrogators of suspected terrorists in order to

extract information to save numerous innocent lives
(a) Public Committee Against Torture v. State of Israel (827): although a formal
directive cannot be given condoning such actions, individual investigators will
have a necessity defense available if they use force in interrogating suspected
terrorists who withhold information necessary to prevent the death of
innocent citizens.
 FERRELL 22

G. Principles of Excuse - Duress

1. There are generally three categories of acts that give rise to excuse defenses:
(a) Involuntary acts
(b) Deficient but reasonable acts (cognitive deficiency vs. volitional deficiency)
(c) Irresponsible actions (i.e. legal insanity)

2. State v. Toscano (845): held that duress shall be a defense to a crime other than
murder if the defendant engaged in conduct because he was coerced to do so by
the use of, or threat to use, unlawful force against his person or the person of
another, which a person of reasonable firmness in his situation would have been
unable to resist. The threat does not have to be imminent, aimed at the accused,
or that the crime committed be a non-capital offense. (chiropractor fraudulently
completed medical forms)
(a) The MPC allows consideration of a reasonable man's reaction to a threat, but
also takes into consideration the age, sex, etc. of defendant except for his
temperament.

3. Duress defense in murder cases?

(a) Many states do not allow the defense on the idea that it would be an
endorsement of intentional killing
(b) However, the fact is that the defendant's free will is effectively taken away by
the duress---regardless of whether it is a murder case or not.

4. United States v. Fleming (855): held that prisoner of war that was threatened
during interrogation did not have a duress defense because he did not show a
danger of harm that was immediate---the accused's resistance had not brought
him to the last ditch.

5. United States v. Contento-Pachon (856): defendant's conviction of trafficking

cocaine is reversed because the trier of fact could have concluded that the threat
was immediate and the defendant had no reasonable means to escape the threat.

6. Regina v. Ruzic (856): the court overlooked a Canadian statute that required the
threat to be immediate, to be made against the defendant, and must be made by
a person present when the offense was committed, and held that the threat left
defendant no realistic choice and her actions were morally involuntary---
therefore, it would be a violation of the fundamental principles of justice to hold
her liable.

H. Principles of Excuse - Intoxication

1. Regina v. Kingston (861): the court held that although the defendant was
involuntary intoxicated when he committed the sexual assault; he still had the
culpable mens rea. The drug removed the defendant's inhibitions, and therefore,
made it easier for the defendant to act upon his pedophiliac tendencies.
(a) The lower court felt that if moral blame was not present, then the mens rea
could not be present. This court disagrees and feels that mens rea is present.
(b) In this case, the fact that the defendant was intoxicated does not negate his
mens rea, but it can be considered during sentencing by the court.

2. Roberts v. People (864): the court held that it is a question of fact for the jury to
resolve as to whether the defendant's mental faculties were so obscured by his
intoxication as to render it impossible for him to entertain the culpable mental
intent, but if they find in fact he did entertain the intent, his intoxication is no
longer relevant as to his guilt.
 FERRELL 23

(a) Defendant's intoxication could not excuse him from the general attempt
crime of assault, where the intent is inferred from the act itself. However, it
could excuse assault "with intent to kill" because that is a specific intent
crime that requires a showing of the mens rea.
(b) This case shows that it is generally accepted that alcohol intoxication renders
the defendant unable to conceive plans and work toward goals of crimes (i.e.
as in attempted murder)

3. People v. Hood (865): the crimes of assault with a deadly weapon and simple
assault, both being general intent crimes, do not permit evidence of intoxication
as a defense. Other specific intent crimes, such as assault with intent to murder,
will permit evidence of intoxication to negative the mens rea.
(a) The problem with drunk defendants has resulted in courts having to
distinguish between specific and general intent crimes.
(b) General criminal intent is that intention to do a proscribed act. Specific
criminal intent is the intent to do some further act or achieve some additional
consequence. A drunk defendant is usually able to form the intent to strike
someone else, to commit an assualt; however, he would be unlikely to be able
to formulate an intent to commit a battery for the purpose of killing.

4. State v. Stasio (867): Evidence of intoxication will only be allowed to

demonstrate that premeditation and deliberation have not been proven so that a
second-degree murder cannot be raised to a first-degree murder, or to show that
the intoxication led to a fixed state of insanity (permanent condition----not
temporary).
(a) This court takes a different approach and holds that voluntary intoxication will
not be a full defense to specific intent crimes, but can only serve to lessen a
murder charge.
(b) The court refuses to distinguish between specific and general intent crimes
because it is often difficult and leads to incongruous decisions. Since some
specific intent crimes have lesser-included offenses, while others do not,
some defendants would receive lesser crimes but others would be fully
acquitted.

5. The general view concerning alcohol intoxication defenses is that a person who
intentionally commits an act is more culpable than one who engages in the same
conduct but without the intent, because he or she is intoxicated.

6. Recklessness Crimes: a majority of jurisdictions have followed the MPC and held
that intoxication evidence is inadmissible to negate the mens rea of
recklessness---although a minority of jurisdictions do allow it.

7. Intoxication defense is almost irrelevant today because many defendants who are
prosecuted for crimes are intoxicated, and most jurisdictions do not want to give
the defense. Remember, an intoxicated defendant, although possibly not as
culpable, is still a risk to the public that must be protected against.
(a) Many jurisdictions only allow intoxication defense when the defendant is so
drunk that he is in a "stupor" condition or unconscious.
(b) Intoxicated defendants are perhaps liable to a certain extent because they
make a free will choice to engage in getting themselves intoxicated. They
must, therefore, face up to the harm that results from their actions while
intoxicated.
FERRELL 24