User:CheshireKatz/Criminal
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Contents |
[edit] Actus reus
[edit] Mens rea
[edit] Model Penal Code diction
| Chart available on pg. 193 | ||
|---|---|---|
| Specific Intent |
Purposely | Conscious objective or positive desire to achieve goal |
| Knowingly | Aware of a high probability | |
| General Intent |
Recklessly | Aware of a substantial & unjustifiable risk and disregarded it |
| Negligently | Should have been aware of a substantial & unjustifiable risk and disregarded it | |
[edit] Mens rea arguments
Pro-Strict Liability (supportive) - Popular among state legislatures
- In certain acts, Actus Reus is enough for a criminal misdemeanor
- For the sake of Public Safety, 20th c. Regulatory Crimes, Lower Penalties
- Statutory Rape has always been Strict Liability
Anti-Strict Liability (non-supportive) – Model Penal Code
- If even a possibility of jail time, there must be intent to commit act.
- “Positive aggressions against State, persons, property, or public morals”
- Severe Penalties or Significant damage to reputations [6 mos (misdemeanor) v. 2 yrs (felony), no diff. in court opinion]
- Courts more concerned with actual jail time than other losses
Eg. “Possessing inhibited drugs with hallucinogenic properties”
- Where is the mens rea? Legislature claims it’s “Knowledge”
- But what about the extent of knowledge?
- 1) Possession of Drugs?
- 2) The Drugs Were Inhibited?
- 3) They Contained Hallucinogenic Properties?
- Kinds of Strict Liability
- Pure: “Knowledge” does not need to connect to any
- Impure: “Knowledge” must connect to some or all of the acts
Early 1900s, legislature passes public welfare regulatory statutes. Acme Foods selling products inadvertently poisoned in factories. Government goes after the company president, though he lacks mens rea. For the sake of public safety, mens rea is not necessary.
If Food, Drugs, or Public Safety involved, then Strict liability If "a positive aggressions against State, persons, property, or public morals" or if severe penalties or significant damage to reputations or cause of action originates from common law, then a guilty mind is necessary.
The recklessness default rule attaches the recklessness standards to any element of a crime without a mens rea standard attached to it.
- Burglary (3rd Deg)
- Enters a building or occupied structure } Recklessly
- with purpose to commit a crime therein } Purposefully
- unless the actor is privileged to enter. } Recklessly
- “ “ (2nd Deg)
- “ “ …if perpetrated in the dwelling of another at night. } Recklessly
MR: Purpose to commit crime; AR: Enters a building…
In most jurisdictions, if you are in a building you are not privileged to be in, with the purpose of committing a crime, then guilty of Burglary (3rd Deg).
Examples on pg. 210
- A) No Mens Rea purpose to commit crime on entry,
- B) 3rd, but not 2nd, since he wasn’t aware of substantial risk of dwelling
- C) 3rd, but not 2nd, No Actus Reus to enter dwelling
[edit] Mens rea cases
People v. Dillard, 154 Cal. App.3d 261 (1984) F: Boy riding bike with gun aware it's loaded.
Morissette v. U.S., F: Junk dealer selling salvaged government bomb casings
U.S. v. Wulff, 758 F.2d 1121 (6th Cir. 1985) F: Wulff tries to sell necklace made of migratory birds’ talons, in violation of law.
U.S. v. Engler, 806 F.2d 425 (3d Cir. 1986) F: Engler possesses a necklace made of migratory birds' feathers, in violation of law.
U.S. v. X-Citement Video, F: Distributors charged with sale of kiddie porn
U.S. v. Dotterweich, F: Pharm. CEO charged with selling misbranded & adulterated drugs. (see Vicarious liability)
U.S. v. Park, F: Acme Markets President charged with selling contaminated food. He is liable unless, "powerless to prevent or correct the violation"
Lambert v. California, F: Failure to register as felon
Liparota v. U.S., F: Restaurant owner charged with knowingly buying food stamps illegally
- A strict reading of the statute with no knowledge-of-illegality requirement would thus render criminal a food stamp recipient who, for example, used stamps to purchase food from a store that, unknown to him, charged higher than normal prices to food stamp program participants. Such a reading would also render criminal a nonrecipient of food stamps who "possessed" stamps because he was mistakenly sent them through the [471 U.S. 419, 427] mail 11 due to administrative error, "altered" them by tearing them up, and "transferred" them by throwing them away. Of course, Congress could have intended that this broad range of conduct be made illegal, perhaps with the understanding that prosecutors would exercise their discretion to avoid such harsh results. However, given the paucity of material suggesting that Congress did so intend, we are reluctant to adopt such a sweeping interpretation.
People v. Ryan, 82 N.Y.2d 497 (1993) F: Ryan charged with knowingly unlawfully possessing 625mg of a hallucinogen. Ryan claims he didn't know how much psilocybin was in the mushrooms and gets off. Law is rewritten to say
[edit] Legal Defenses
[edit] Affirmative Defenses
- Two Burdens on Defense (Post-Hinkley)
- Burden of Production
Insanity: Expert Testimony
Intoxication: Evidence - BAC or witnesses of alcohol consumption
- Burden of Persuasion
Must persuade a jury the affirmative defense is true
[edit] Actus reus Defenses
[edit] Automatism
One's act was not voluntary (actor was unconscious, physically forced, etc.)
[edit] Self-Defense
One's act was in response to a reasonable fear of imminent bodily harm
| Self-Defense Requirements | |||
|---|---|---|---|
| Kind | Honest? | Reasonable? | Benefit |
| Perfect | YES | YES | Exonerates |
| Imperfect | NO | Mitigates* | |
If your self-defense action was honest, but reckless (unreasonable) you have no defense to crimes of recklessness.
| Self-Defense under MPC | ||||
|---|---|---|---|---|
| Does the actor... | Yes or No | |||
| actually need | YES | NO | NO | YES |
| honestly believe he needs | YES | YES | YES | NO |
| reasonably believe he needs | YES | YES | NO | YES, (Had He Honestly Believed) |
| ...to protect himself against the use of unlawful force? |
Conduct is Justified | Conduct is Excused | "Imperfect" Self-Defense; | No Defense; See § 3.04(1) |
| Exonerates | Mitigates | |||
Under MPC, if your honest self-defense action was reckless, then you have no defense to crimes of recklessness or negligence. If your honest self-defense action was negligent, then you have no defense to crimes of negligence.
;Section 3.04 Use of Force in Self-Protection
- Use of Force Justifiable for Protection of the Person.
Subject to the provisions of this Section and of Section 3.09, the use of force upon or toward another person is justifiable when the actor believes that such force is immediately necessary for the purpose...of protecting himself against the use of unlawful force by such other person on the present occasion.- Limitations on Justifying Necessity for Use of Force.
- The use of force is not justifiable under this Section:
- to resist an arrest that the actor knows is being made by a peace officer, although the arrest is unlawful; or
- to resist force used by the occupier
Retreat rule: Never caught on. Castle rule: Widely accepted.
People v. Lavoie, 395 P.2d 1001 (1964) F: Rear-ended pharmacist R: Colorado statute:
“When a person has reasonable grounds for believing, and does in fact actually believe, that danger of his being killed, or of receiving great bodily harm is imminent, he may act on such appearances and defend himself, even to the extent of taking human life when necessary, although it may turn out to be false, or although he may have been mistaken as to the extent of the real or actual danger.”
H: Court (unusually) ordered judgment as a matter of law for "perfect" self-defense. One reasonably in fear of his safety may use deadly force against the source of the fear. The elements of the defense are fear must be reasonable and actually felt by D. Mistaken fear, as long as it is reasonable is ok. The burden of proof here fell to the prosecution.
People v. Gleghorn, 193 Cal. App. 3d 199 (1987) F: Gleghorn enters Fairall's habitat at 3am for the announced purpose of killing him. Gleghorn beat the sleeping Fairall out of bed with a stick and sets a fire under him. Fairall fires an arrow at Gleghorn and in response Gleghorn beats him seriously. H:
Initial aggressor is determined by the gross escalation of violence, which
State v. Leidholm, 334 N.W.2d 811 (1983) F: Drunk wife kills sleeping husband and claims battered wife syndrome
People v. Goetz, 68 N.Y.2d 96 (N.Y. 1986) F: Armed subway passenger shoots teen attempting to intimidate him.
People v. Abbott, (N.Y. 1980) F:
Tennessee v. Garner, F: Police Officer shot a teenager in the head fleeing from a burglary.
[edit] Necessity (Choice of Evils)
The Queen v. Dudley & Stephens, 14 Q.B.D. 273 (1884) F: Shipmates lost at sea, Pounce upon & eat delusional cabin boy for survival. H: Failure to draw straws or otherwise accept an equal risk of sacrifice for shipmates, demonstrates a lack of necessity.
- 1) Balancing of harm
- (eg. Destruction of Property vs. Lives)
- Who balances the harm? Sometimes judge has preliminary review, sometimes goes straight to jury.
United States v. Oakland Cannabis Buyers' Coop, H: Legislature already decided marijuana didn't have sufficient medical benefits under any conditions to justify use in defiance of law.
State v. Warshow, 410 A.2d 1000 (1980) F: Protests at nuclear power plant preventing workers from reopening plant. H: Protestors' concerns of meltdown were already considered by legislature prior to plant construction and are thus unjustified.
- 2) Mens Rea
- Honest & Reasonable Belief
Same tests as self-defense.
People v. Unger, 362 N.E.2d 319 (Ill. 1977) H: Honor farm escapee's claim of avoidance of bodily harm is evaluated by a different standard than other choice of evils cases
California's Lovercamp test includes a requirement to turn oneself in. Chicago's law does not require
- 3) No Alternatives
- If an alternative exists, then no necessity
- 4) "Fault"
- Placed self in situation and assumed risk
MPC asks for Mens rea: "Was your fault reckless or negligent?"
Vermont & Alaska don't care fault is fault.
- 5) Imminence
- If there is no imminence, then no urgency
MPC rejects imminence requirement
Amanda & Natalie are driving to Amanda's isolated cabin for weekend. As they arrive, Amanda informs Natalie that she plans to kill her before they leave. Amanda that night gets Natalie drunk, steals the car, & drives to safety. No imminence.
[edit] Duress
- Old MPC Requirements for Duress
- Threatening human conduct
- Producing a reasonable
- fear of death or serious bodily injury
- to self or to a (nuclear) family member
NOT a defense to Murder
See MPC Sec. 2.09 Duress on pg. 566
State v. Crawford, 253 P.2d 629 (1993) H: Cocaine addict committing burglary & kidnapping to get money for his dealer who would threatened to kill him.
United States v. Contento-Pachon, 723 F.2d 693 (9th Cir. 1984) H: Coke mule for columbian drug cartel.
Same standard as self-defense except No Recklessness Permissible. Also note (on pg. 567), "in their situation" may only include "stark tangible factors." Battered Person Syndrome and other psychological evidence is not acceptable for Duress.
[edit] Mens Rea Defenses
[edit] Mistake defense
- Model Penal Code - 2.04. Ignorance or Mistake
- Ignorance or mistake as to a matter of fact or law is a defense if:
- the ignorance or mistake negatives the purpose, knowledge, belief, recklessness or negligence required to establish a material element of the offense; or
- the law provides that the state of mind established by such ignorance or mistake constitutes a defense.
- 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. 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.
- A belief that conduct does not legally constitute an offense is a defense to a prosecution for that offense based upon such conduct when:
- 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
- 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.
- The defendant must prove a defense arising under Subsection (3) of this Section by a preponderance of evidence.
People v. Bray, 52 Cal. App. 3d 494 (1975) H: Didn’t “know” he was a convicted felon (due to prosecutorial sloppiness), therefore didn’t meet the mens rea requirement.
United States v. Baker, 807 F.2d 427 (1986) F: Baker sold fake Rolex watches, said he didn’t know it was illegal, though admits he knew the watches were fakes. R: “Intentionally traffic goods and knowingly use a counterfeit mark in connection therewith.” H:
Cheek v. United States, 498 U.S. 192 (1991) F: "I didn't think my wages were income, so I didn't think the were taxable." "I'm not paying taxes on my wages, because taxing them is unconstitutional." R: "willfully evading taxes" H: District court interpreted willfully as "intentionally" or "knew he had a duty and disregarded it"
- What is the Mens rea required for conviction in the statute
- What is the nature of the ignorance claim being proffered by D?
- Would proof of that proffered ignorance/mistake claim negate the mens rea
- Graffiti Law (Hypothetical)
- Purposely draw upon, or otherwise mark, state property, without prior authorization, } Purposely
- with any indelible substance, knowingly or recklessly believing it to be so } Recklessly (Knowingly is covered within Recklessly)
Rewrite: Consciously desire to draw upon, or otherwise mark, state property, without prior authorization with a substance that has a high probability of being indelible;
Felony transportation of cocaine vs. felony transportation of stolen furs
State v. Guest, 583 P.2d 836 (Alaska Sup. Ct. 1978) (pg. 208) F: Guest, charged with statutory rape, claims he thought she was 19.
Hopkins v. State, 69 A.2d 456 (Md. 1950) F:
Commonwealth v. Twitchell, 617 N.E.2d 114 (1993) F: Christian Scientists Mr. & Mrs. Twitchell are charged with the involuntary manslaughter of their sick child, who they failed to bring to hospital.
[edit] Insanity defense
(affirmative defense)
Presumption of innocence
Presumption of sanity
Kinds of evidence in case
- observation evidence - Witness Testimony
- mental disease evidence - Expert Testimony
- capacity evidence - Expert Testimony
Tests: M'Naughten (majority) vs. ALI/MPC (minority)
- M'Naughten (Cognitive)
- "So diseased...as to be incapable of distinguishing right from wrong"
- "Incapable of knowing the nature & quality of his criminal act"
People v. Serravo, 823 P.2d 128 (1992) F: Man stabs his sleeping wife "on God's orders." H: The standard, "incapable of distinguishing right from wrong," refers to societal morals, not lawfulness.
-
- 3 Standards of Wrong
- Legally Wrong (strictest & rare)
- Subjectively Morally Wrong (uncommon)
- Objectively Morally Wrong (popular)
- Deific Decree (distinguished in some states)
Texas v. Yates, F: Yates drowned her children "on Devil's orders."
[edit] Intoxication defense
- Available for specific intent crimes requiring purpose or knowledge
- Not available for general intent crimes requiring recklessness or negligence
Clark v. Arizona, F:
State v. Cameron, 514 A.2d 1302 (1986) F:
[edit] Burdens
- Burden of production
- Burden of persuasion (proof)
- Can be assigned to the DEF unless proof of the defense would negative the mens rea required to convict. (ie. Necessity Defense)
Affirmative defense: Proof of the defense does not negative mens rea requirement.
A person is guilty of bigamy if, while he is married, he purposely contracts another marriage. It is a defense that the actor reasonably believed that his prior spouse was dead.
Mental Illness & Gross Intoxication - There is a dead man in the front seat of a car, a gun-wielding drunk in the back seat with BAC of .42, thus there is no way he had the mental capacity to form the mens rea requirement for murder. In many Western Mountain States, intoxication is never an available defense.
[edit] Homicide
[edit] Elements of Homicide
Homicide is the killing of one human being by the act or omission of another.
| Crimes of Homicide | |||
|---|---|---|---|
| Mens rea | Crime | Commission of an act or omission... | which |
| Premeditated | Intent-to-kill | ...with the intent to kill an individual | directly contributes to the death of an individual. |
| Intent-to-do- serious-bodily-harm |
...with the intent to do (at minimum) serious bodily harm to an individual | ||
| Heat of Passion |
Voluntary manslaughter | ||
| Reckless | Felony murder | ...that is (or occurs during the commission of) a felony* | |
| Intoxicated vehicular manslaughter |
...that occurs while driving with a BAC over the legal limit | ||
| Depraved heart | ...that is grossly reckless and unjustifiable | ||
| Involuntary manslaughter | ...that is reckless or negligent** | ||
| Negligent | |||
| * Applicable felonies frequently limited to: arson, rape, kidnapping, robbery, burglary, & felonious escape. In addition, federal law includes terrorism & carjacking.
** Criminal negligence or Ordinary (Tort) Negligence standard depending on jurisdiction. |
|||
Depraved heart murder is the reverse of Voluntary manslaughter: An unintentional homicide so unexcusable that we are compelled to raise it to murder, as opposed to an intentional homicide so excusable that we are compelled to lower it from murder.
[edit] Elements of Heat of Passion
| Elements of Heat of Passion | |||
|---|---|---|---|
| Jurisdictional Approach |
Evidence of: | ||
| Provocation | Opportunity to Deliberate | Actual Deliberation | |
| Subjective | Sufficient to induce a charged emotional state | Calm, cool, reflective behaviour |
|
| Objective |
|
Fixed cooling time (minutes, hours, days) |
|
| * Words are insufficient for physical attack | |||
[edit] Murder
[edit] Premeditated Murder
Murder is homicide resulting from a premeditated effort to kill, harm, act with reckless disregard for human life, or commit a felony.
Model Penal Code definition of murder is killing with malice aforethought
Francis v. Franklin, F: Escaped armed prisoner with hostage arrives at victim's residence demanding a car. When door slams in prisoner's face, gun goes off killing victim through the door.
| Mens Rea Jury Instructions | |||
|---|---|---|---|
| Type | If you find that the defendant [actus reus], then... |
Lawful? | Rationale |
| Mandatory, irrebuttable presumption |
You Shall Presume the defendant intended the "natural and probable consequences" |
NO | Violates Due Process clause: Prosecution shows mens rea simply by showing actus reus, without permitting the defense to refute it. |
| Mandatory, rebuttable presumption |
It Is Presumed the defendant intended the "natural and probable consequences" |
NO (Francis) |
Prosecution shows mens rea simply by showing actus reus and imposing the Burden of showing a lack of mens rea on the defense |
| Permissive inference |
You May Presume the defendant intended the "natural and probable consequences" |
YES | Prosecution still carries the burden of persuading the jury of defendants mens rea |
United States v. Watson, 501 A.2d 791 (1985) F: Watson was scuffling with armed cop, cop drops gun, Watson pins the cop down, reaches the gun, and fires.
[edit] Felony Murder
Proof of felony + Proof of death = Almost always get Murder One. At its broadest application, If a death occurred in the vicinity at any point during the course of a crime or the escape from the crime scene for whatever reason. No jurisdiction is this broad.
- First limitation
- Proximate causation
State v. Martin, 573 A.2d 1359 (1990) F: Def spreads kerosene around and lights a fire in a trash bin. The fire spreads consuming the house killing those sleeping upstairs. Convicted of felony (arson) murder
People v. Stamp, 2 Cal. App.3d 203 (1969) F: Armed def entered office for the purpose of robbery. Victim at scene suffered from cardiovascular disease and had a fatal heart attack. Convicted of felony (rape) murder.
People v. Brackett, 510 N.E.2d 877 (1987) F: Def raped 85 yr old woman, who subsequently fell into depression and needed to be placed on feeding tube. However, due to injuries to throat from rape, when feeding tube inserted, woman died.
NOCADC People v. Hickman, 510 N.E.2d 877 (1987) F:
| Felony murder limitations | |||
|---|---|---|---|
| Name | Limitation | Example | Rationale |
| Proximate Causation | The death must have been a foreseeable risk of the felony. | ||
| Affirmative Defense for Unarmed Co-Felons |
|||
| Limiting predicate felonies (BARRK) |
|||
| Requiring an independent Mens Rea (eg. recklessness or negligence) for Homicide |
|||
| No one cares about dead co-felons | |||
Hawaii has loosest criminal code. California strictest.
- Who is the Killer? - Agency jurisdiction (must be felon or co-felon, California)
- The Scope of the Felony Event (necessary) - "Res Gestae" = time, place, & causal relation
- Merger - Is the statutory construction of the predicate felony expansive enough such that proving the felony proves the murder (ie. Child abuse)?
Gladman: time & place Franks (OK 1981) - Is there a causal nexus btw the killers & the felony Colenburg 773 S.W.2d 184 (Mo.App. 1989) - But-for causation Stouffer v. State Lucas - Child abuse Shock - "Willful & malicious beating with the intent to commit serious bodily harm." The exact acts which produced the death. Any crime that meets this definition, becomes felony murder. Contrasted with Robbery, which also requires intent to steal.
- 2nd Degree Felony murder
- non-enumerated felonies
Must prove that the felony has the potential risk of death in the least dangerous application. Furnishing cocaine: Selling a tiny amount is unlikely to kill anyone, but enough to get a conviction, therefore not applicable.
[edit] Reckless Murder (Depraved Heart)
Mayes v. The People, 106 Ill. 306 (1883) F: Drunk, angry man hurls bottle at wife holding oil lamp & candle, knocking her unconscious. Oil splatters over her & ignites from candle. Man watches on as she burns to death.
Commonwealth v. Malone, 47 A.2d 445 (1946) F: Russian Poker (a'la Russian Roulette) Game
People v. Protopappas, 201 Cal. App. 3d 152 (1988) F: Worst Dentist Ever
Berry v. Superior Court, 208 Cal. App. 3d 783 (1989) F: Killer dog protecting pot plants mauls baby crawling into yard
State v. Marjorie Knoller, F: Massive killer dog kills lesbian woman
[edit] Manslaughter
[edit] Voluntary Manslaughter
Voluntary Manslaughter is killing with "intention in the heat of passion (CL lang.)" or purposeful or knowing killing under extreme mental or emotional disturbance
People v. Walker, 204 N.E.2d 594 (1965) F: After repeated harassment by knife-wielding Stenneth, Walker knocked Stenneth out with a brick, acquired the knife and stabbed the unconscious Stenneth. Court ruled this was a continuous affray. This means that the "cooling time" never began.
Ex Parte Fraley, 109 P. 295 (1910) F:
People v. Nesler, 16 Cal. 4th 561 (1997) F: After Mr. Driver was acquitted for allegedly sexually assaulting her son, Ms. Nesler pulled out a gun from her sister's purse. Despite the premeditation of putting the gun in her sister's purse, the jury felt that her rage over Mr. Driver's gleeful response to his acquittal.
Rowland v. State, 35 So. 826 (1904) F: Rowland discovered his wife with another man. Rowland fired at the man and killed his wife. This fact alone, in legal contemplation, was adequate provocation to reduce the grade of the homicide, if then instantly committed, from murder to manslaughter.
Carter v. State, 843 So.2d 812 (Ala. 2002) F:
State v. Gounagias, 153 P. 9 (1915) F: Gounagias was sodomized while unconscious. Word of this event spread around town and he was relentlessly taunted for it. Finally, the ridicule overwhelmed him, leading him to seek out and kill his assailant. Defense argued that provocation had accumulated with each taunt and that the cooling time was perpetually being reset.
[edit] Involuntary Manslaughter
| Standards for Unintentional Homicide | |||
|---|---|---|---|
| Model Penal Code | Manslaughter | Reckless killing | |
| Negligent Homicide | Criminal (gross) negligence | ||
| Ordinary (tort) negligence | |||
| Common Law | Involuntary Manslaughter | X | |
Mad skier (incredibly reckless a lethal weapon at that speed)
Hunter who shoots at white mittens (armed with lethal weapon)
Bad chiropractor (treated individual for tuberculosis rather than send him to a capable specialist)
Texas A&M hazer (Frat forced man out of bed in the middle of the night to run to exhaustion after which he died)
- Texas creates hazing law (misdemeanor) so as to achieve certainty in conviction, where juries are unlikely to convict young hazer, in spite of the evidence against him.
Prof with cooked infant (left baby in car and forgot about it)
Commonwealth v. Welansky, 55 N.E.2d 902 (1944) F: Welanksky, owned a night club, frequently overcrowded with locked emergency exits & flammable decorations. A fire starts accidentally. Many died from trampling, smoke inhalation, and burns. P: Trial court convicts Welansky for reckless disregard of fire safety precautions resulting in patron deaths. H: Wanton or reckless disregard of affirmative duty is sufficient to support manslaughter conviction. R: The essence of wanton or reckless conduct is “intentional conduct, by way of either commission or of omission where there is a duty to act, which conduct involves a high degree of likelihood that substantial harm will result to another." Usually, wanton or reckless conduct consists of an affirmative act. However, where a duty exists and it is recklessly disregarded, the omission can serve as reckless conduct. The standard of wanton or reckless is a higher standard than that of negligence or even of gross negligence. To constitute wanton or reckless conduct, the grave danger to others must have been apparent to the defendant, and he must have chosen to run the risk rather than take adequate precautions. The standard of determining whether the grave danger was apparent is the reasonable man standard. Thus, the defendant could have had no actual awareness of the risk, but is still guilty if the reasonable man would have realized the grave risk. Negligence and gross negligence are a lower standard. Wanton or reckless conduct is legal equivalent of intentional conduct.
State v. Williams, 484 P.2d 1167 (1971) F: Williams are parents of a child who died of an untreated infection who were charged with manslaughter based on their negligence. P: Trial court convicts Williams of manslaughter for their ordinary (tort) negligence. H: In Washington, ordinary (tort) negligence (as opposed to gross negligence) is sufficient for manslaughter. R: Williams had notice of baby's illness before infection was fatal and yet ignored opportunity to save child. MPC says that any homicide committed with the mens rea of negligence falls under this offense. If we’re not going to punish character in general, then we’re rejecting using the threat of criminal punishment to change people’s moral makeup. If this is the rule we’re using, we should only punish acts, and we shouldn’t bother giving people any incentives to change their character.
Porter v. State, 88 So. 2d 924 (Fla. 1956) F:
[edit] Attempt
1st degree felonies treated as 2nd degree felonies, but otherwise attempt of crime treated the same as successful commission.
If you don't intend the result in a result crime, then you
State v. Lyerla, 424 N.W.2d 908 (S.D. 1988) F: Fired 3 shots at 3 girls in car. Charged w/Attempted DH murder. H: DH murder is a crime of recklessness. Attempt requires intent. No "Attempted Recklessness."
Same for attempted Felony murder
Interrupted attempt Uninterrupted attempt
- 3 Elements:
- Conduct - Purpose
- Result - Purpose or Belief
- Circumstance - Can apply the mens rea from underlying statute
Attempted murder of a law professor. Did not know victim was a law professor. Negligence applied as mens rea of "law professor."
- MPC §5.01. Criminal Attempt
(1) Definition of Attempt. A person is guilty of an attempt to commit a crime if, acting with the kind of culpability otherwise required for commission of the crime, he:
- (a) purposely engages in conduct which would constitute the crime if the attendant circumstances were as he believes them to be; or
- (b) when causing a particular result is an element of the crime, does or omits to do anything with the purpose of causing or with the belief that it will cause such result, without further conduct on his part; or
- (c) purposely does or omits to do anything which, under the circumstances as he believes them to be, is a substantial step in a course of conduct planned to culminate in his commission of the crime.
- For section C
- Proximity to completion (What is left to be done?) (see Rizzo)
- Unequivocality or Res Ipsa (Do the acts speak for themselves?) (see Staples)
- Probable desistance (Have they passed the "point of no return"?)
- Substantial steps or measures (What has been accomplished?) (MPC & Popular) ("Non-act evidence;" see U.S. v. Jackson)
McQuirter v. State, 63 So.2d 388 (1953) F: In segregated South, jury instructed that "social condition & customs founded upon racial differences" may be considered. Asking jury, "What do you really think he was doing there?"
[edit] Aiding & Abetting
State ex rel. Attorney Gen. v. Tally, 102 Ala. 25 (Alabama 1894)
