Purposes of Criminal Law:

-Deterrence, Incapacitation, Rehabilitation, Retribution

Presentment and Indictment:

-5th Amendment requires presentment/indictment by the grand jury b/f someone can be held to answer (brought to trial) for capital / infamous crime

  • Indictment = prosecutor asks grand jury to formally charge an accused w/ something
  • Presentment = prosecutor asks grand jury for an indictment, and of their own volition they come up with another charge
  • Federal requirement ONLY (unless state constitutions so provide)

-This requirement applies when the possible punishment is capital or infamous, not just the actual punishment. Moreland

  • Hard labor is an infamous punishment

-Why?

  • Don’t subject person to strain of trial, stigma of accusation w/o this protection
  • Don’t know, @ beginning of trial, what sentence will be – want procedure to apply to beginning in case that sentence is imposed (not allowing prosecutor to gamble)

-Definition of Felony:

  • Federal: any crime for which possible punishment is death or >1 yr in prison
  • For state statutes: matter of interpretation; look at the purpose of the statute using “felony.” Melton
  • Some states might go by actual punishment
  • Especially important where rights (like right to vote) @ stake

Standard for instructions on lesser crimes:

-When there is any evidence that would support a claim that D committed a lesser crime, you have to give that jury instruction – Watkins

Homicide:

-The killing of one person by another person (suicide doesn’t count)

-Not a crime, in and of itself, but is a necessary condition for the crimes of murder, manslaughter, and negligent homicide

-Murder & manslaughter are only homicides @ common law

-MPC encompasses murder, manslaughter, & negligent homicide

-Under MPC, general mens rea for criminal homicide (not an offense) is any of the 4 adverbs

Causation requirement for homicide:

-If an action does not change or alter the “natural progression” of V’s condition, after the injuring act, then

  • The injuring act caused death
  • The later action was not an “intervening cause” and did not cause death

-D must proximately cause V’s death

-Removal of life support does not break the chain of causation (less important holding, when the brain death holding is factored in) – Arizona v. Fierro

Who is a person, for the purposes of homicide?
Beginning of life

-People v. Guthrie – a fetus is not a person for the purposes of homicide, unless the legislature specifically says otherwise in statute

  • Court agrees that fetus should be treated like a person, and changes the definitions in wrongful death suits in tort; but, due to the difference btw tort & crim (different purposes, different punishments, construction deferential to accused) court doesn’t change the law

-MPC – Fetus is not a person, for the purposes of homicide

Life’s End

-Arizona v. Fierro – two ways to establish when death has occurred:

  • Brain death
  • Old common law way: cessation of breathing and heartbeat (pulse)

-Today, most jurisdictions use brain death as definition for when death has happened

  • Some do not, and have not adopted Uniform Brain Death Act
  • Some only use brain death

-Time limit: the “year and a day rule”

  • Death must occur w/in this time of original act, or can’t be prosecuted, however death applies
  • No longer applies in most jurisdictions, but CA has “3 years and a day” rule

Corpus delicti requirement:

-Corpus deliciti = death + criminal agency of another

-For any homicide, prosecutor must prove CD + criminal agency of the particular defendant – ONLY APPLIES TO HOMICIDE

-Prosecutor must prove CD independently of D’s statements/confessions

  • Death can be proved by circumstantial evidence; the body, an autopsy, or medical conclusions aren’t necessary. Warmke
  • Evidence only has to be such that a reasonable jury could find another’s (someone’s) criminal agency; need not conclusively prove it
  • Only applies to out-of-court statements; in court statements are acceptable to prove either element of the CD
  • In court, you have the threat of perjury to protect against lying, plus don’t have the risks of intimidation/coercion/duress by police
  • When you have in-court testimony, “criminal agency of another” and “criminal agency of D” can merge – can prove the first by the 2nd. Warmke
  • So, can rely exclusively on confession to establish D’s identity as the criminal

-Dispute is often as to the sufficiency of evidence to establish the CD, and not to the rule itself. So, arguments are very fact-specific

-Confession still useful to the prosecution, b/c you still need to establish the identity of the criminal agent

Downey v. People – Evidence sufficient to establish CD without recourse to confession when: CoD determined to be strangulation by pressure to the throat (most compelling evidence); position of body makes it look like it was arranged, inconsistent w/ accidental death; scalp wound, pressure applied to wrists and throat

Hicks v. Sheriff, Clark County – Evidence not sufficient to establish CD, w/o confession, when: dead body found in desert, partly exposed; body was identified (military tags + sth else); D seen w/ deceased shortly before death; D driving deceased’s car after death

Difference btw cases: sufficiency of evidence as to criminal agency of another. There is evidence tending to show both death & that, if there’s criminal agency at all, it’s D’s.

Warmke v. Commonwealth

-Evidence that was sufficient to establish death:

  • In-court testimony that baby was dropped in the river
  • Otherwise unexplained disappearance (alone not OK)
  • Evidence of baby’s hat, found at riverside
  • Unlikelihood that baby could survive fall to river, submersion
  • Even if baby survived, it would have been found

-Evidence to establish criminal agency:

  • Knows that she dropped the baby (in-court testimony
  • Hung onto coat, while baby fell
  • Brought back the coat w/o mentioning baby
  • Didn’t go where she was supposed to
  • Didn’t report the “dropping”
The Homicide Crimes
Murder

-CL definition: homicide, with malice aforethought

  • Malice does not have the common, non-legal meaning; doesn’t mean “evil,” “ill-willed,” or “angry”
  • “Aforethought” does not mean “premeditation” (although that can be important)
  • Premeditation is not essential to murder in general

-Ways of establishing malice aforethought:

  • Intent to kill, not J/E/M (CL) – Errington
  • Intent to do serious bodily harm, not J/E/M (CL) – Errington
  • Or a “depraved heart,” not J/E/M
  • Look to MPC articulation, defines it pretty well
  • Depraved heart = “intentional doing of a wrongful act, from which death may result” (Banks v. State, the train-shooting case) – probably don’t mean that literally – too broad
  • Must be conscious disregard for peril, or probable peril, such that one kills with “wanton and reckless conduct” or with “wicked disregard” for consequences; complete disregard for social duty (McLaughlin)
  • Car accidents don’t sustain this “depraved heart” theory, even though a person may have been violating a social duty while speeding or driving drunk (McLaughlin)
  • Need be no motive or animosity towards people killed; “depraved heart” can be toward a group. Banks
  • Need the J/E/M qualifier – depraved heart could be excused or mitigated, even though it’s hard to see how it could be justified

-Felony Murder Rule

  • Death caused “in furtherance of the design to commit a felony” is murder (Hokenson)
  • Look at the actor’s design, purpose
  • Problems arise when you start asking if the felon is guilty for the cop shooting someone; conduct isn’t characterized as the cop’s shooting, but as the felon’s original act that got the ball rolling
  • So, it essentially devolves into proximate cause
  • CA felony murder rule: guilty of “a homicide that occurs during the perpetration of a felony,” which requires a continuous transaction
  • For this one, proximate cause type analysis: were there many intervening causes, how foreseeable were they, etc.
  • Don’t really ever lead to different results, but both need to be analyzed
  • Might be different results where co-felon dies; courts hesitate to hold one co-felon responsible for the other’s death
  • Not an “intervening cause” if a police officer tries to diffuse the situation & someone dies (Hokenson)
  • CA: the felony must in itself be inherently dangerous to human life, in order for the rule to apply. It is not enough that the particular events of the felony make it dangerous. Grand theft is not inherently dangerous (Phillips)
  • Also, must be independent felony, as under the 1st degree FMR
  • Use the “purpose” test for this
  • Effect of the Felony Murder Rule
  • Under some, you might automatically be guilty of murder assuming all of the elements are established
  • Under others, it might set up a rebuttable presumption (like with recklessness under the MPC)
  • Felony murder rule can also be based on an attempt to commit a felony
  • Can’t turn back the clock in common law
  • MPC is explicit in allowing this
  • Of course, if you renounced, there’s no longer a felony

-MPC definition of murder & FMR, p. 216:

  • Murder when one commits criminal homicide “purposely” or “knowingly.” 210.2(1)(a) This covers intent to kill
  • Part of “knowingly” might cover intent to do serious bodily injury, also recklessness w/ extreme indifference might cover it. 210.2(1)(b)
  • 1st sentence of 1(b) corresponds to depraved heart, “recklessly under circumstances manifesting extreme indifference to the value of human life.”
  • Risk must be real, not theoretical
  • Risk much be such that its disregard is a gross deviation from a law abiding person’s standard of conduct
  • Requires conscious awareness and disregard (subjective standard)
  • 2nd sentence of 1(b) is the Felony Murder rule. Lists crimes that, if D is engaged in them, recklessness w/ extreme indifference is presumed
  • D can rebut this presumption
  • D’s recklessness is also presumed (i.e. MPC felony murder rule applies)if he’s an accomplice, attempting to commit (or accomplice to attempt), or fleeing after a commission (or attempt) of named felonies
  • Crimes are: robbery, rape*, arson, burglary, kidnapping, felonious escape
  • MPC does not make the distinction about who your recklessness is directed at, so it might be possible to find someone guilty for the death of their accomplice, even if D didn’t intend that
  • MPC makes murder a 1st degree felony

Distinguishing within the levels:

-Of Murder

  • Murder 1 (First degree murder)
  • “Willful, deliberate and premeditated killing”
  • 2 tests both require an intent to kill:
  • Drum: Mind must be “fully conscious of its own purpose and design” for deliberate
  • You need to know how you’re going to go about killing someone, but don’t need to be conscious of results
  • Cornett: – must fully “weigh and consider” the consequences, as in “do I really want to kill this person?”
  • Contemplates 3 stages: purpose of killing, intent to kill, and act; Need not be much time between 1&2 or 2&3, but there needs to be time somewhere for the consideration
  • Sometimes murder by torture, by explosives, or murder of a cop will get you to Murder 1
  • Felony murder rule, to get you to 1st degree murder:
  • Drum: murder committed in the perpetration of / attempt to perpetrate arson, rape, robbery, burglary
  • Felony must be “independent”
  • “Lesser included in fact” test – junk it
  • Judge independence on the basis of the purpose test: if D’s purpose in committing the qualifying felony was to kill or inflict serious bodily harm, then the felony will not be interpreted as “independent” for the purposes of the Murder 1 FMR
  • Murder 2
  • Everything that’s not murder 1 falls here

Manslaughter

-CL definition: any other homicide, w/o malice aforethought

-Getting to manslaughter:

  • Top-down (murder, mitigated to manslaughter)
  • Provocation (see below)
  • Supposed to be value-neutral, not imply guilt on part of V
  • Unjustified but honest belief in necessity of self-defense
  • Bottom-up (something below manslaughter, raised)
  • Misdemeanor-manslaughter rule
  • Has nothing to do with whether something is classified as a misdemeanor
  • Rather, “misdemeanor” here means the same thing as malum in se – the rule applies to deaths that occur during the commission of mala in se offenses (does not apply to mala prohibita offenses)
  • Any requirement of inherent danger?
  • What would otherwise be an innocent homicide, but with recklessness
  • Or, with criminal negligence, in situations in which criminal negligence is part of the law for manslaughter (it is not in the MPC) – see “negligent homicide”
  • Difference of degree, not kind, between this and civil negligence – Gross deviation from standard of care, rather than regular deviation (Rodriguez)
  • An ordinary person would have known of the risk that the conduct could have resulted in death or SBI
  • But doesn’t require consciousness of the risk, because conscious disregard for the risk is recklessness, not criminal negligence

-MPC definition of manslaughter, p. 217, 210.3

  • A homicide, committed recklessly, or
  • This is bottom-up, no mitigation, equivalent of involuntary manslaughter
  • A homicide that is otherwise murder is committed under the influence of an extreme mental or emotional disturbance (subjective) for which there is a reasonable explanation or excuse (objective).
  • “Reasonable explanation or excuse” corresponds with the “ordinary person” part of Farris.
  • Reasonableness is as to mental disturbance, not killing.
  • The reasonableness of the excuse is determined from the viewpoint of a person in the actor’s situation, under the circumstances as he believes them to be (objective, determination made by “a person,” not the actor).
  • MPC makes special dispensation for people who have a belief not in accord with the facts, just asks if their beliefs are reasonable; not the case with the “ordinary person” standard of Farris
  • This is the equivalent of voluntary manslaughter
  • MPC grades manslaughter as a 2nd degree felony

-Misdemeanor/manslaughter rule: a homicide that occurs during the perpetration of a misdemeanor is manslaughter

  • In CA, as with the felony murder rule, the misdemeanor must be one that is inherently dangerous to human life
  • This gets you to involuntary manslaughter, at least for this statute
Provocation defense

-Leads to voluntary manslaughter

-Has subjective and objective component (so a coolheaded person is still guilty of murder):

  • Some extreme emotion caused D to lose his self-control, and
  • An ordinary person in the same circumstance would have lost self-control and not cooled. Farris
  • The “passion” (extreme emotion) can be any kind of extreme emotion that tends to make people lose self control. It need not be rage or anger, though it cannot be revenge. Borchers
  • The “extreme emotion” can mount over time. If the incidents happen over time, but not with enough space for a cooling-off period to occur, then provocation is preserved across time. Borchers

-Words alone are generally not sufficient to count as provocation, for mitigation to manslaughter (Farris)

  • Words + minor physical contact do not count as provocation (Farris)
  • Words can provoke in some circumstances. Grugin
  • They might tip an otherwise insufficient assault into provocation territory, even if they don’t count as provocation in themselves.
  • Words might be enough when they convey facts, the content of which is sufficient to count as provocation (such as learning about an adultery)
  • This is accepted
  • Might also count as provocation when the indignity of words is equal to that of acts that can be held to provoke (“Fuck you” = spitting on someone)
  • This might not be accepted, in any jurisdictions
  • Legomsky talks about a 3rd category of words (besides insulting and information-conveying): threat

Distinguishing within the levels:

-Of Manslaughter

  • Voluntary Manslaughter
  • Majority view: Any manslaughter that results from mitigation
  • Minority view: M/S with the intent to kill – Williams
  • Manslaughter voluntary under both when provoked
  • Involuntary under both when reckless
  • Voluntary under majority but involuntary under minority when there’s intent to do great bodily harm, mitigated
  • Can’t have involuntary under majority and voluntary under minority – logically impossible
  • Involuntary Manslauther
  • All other kinds of manslaughter

Negligent Homicide – Bier

-Only exists as a statutory crime, does not exist under CL

-Most states have such a provision, follow MPC & Bier

  • In some, it’s limited to particular kinds of deaths (vehicular homicide)
  • In states that have negligent homicide, the states mostly adopt the reckless/manslaughter, negligent/NH distinction
  • Some states are harsher: REGULAR negligence gets you to NH, criminal negligence gets you to man

-It’s negligent homicide when criminal homicide is committed negligently

-Graded as a 3rd degree felony

-Negligence = Disregarding a risk of which one should have been aware, when this disregard is a gross deviation from the standard of care

  • Different from civil negligence as a matter of degree, not of type
  • Do not need conscious awareness / disregard for the risk, that’s recklessness
  • Harm must be foreseeable, just as in negligence; a person of ordinary care & disposition would have foreseen a risk of death or serious bodily injury

-An unreasonable but honest belief in a threat to one’s life can, in some jurisdictions mitigate murder to negligent homicide. Watkins

Justification / Excuse / Mitigation

-Justification: what you did would otherwise have been a crime, but you had some reason that made your actions permissible (self-defense)

-Excuse: Although you did not have the right to do what you did, the law will not hold you responsible for the consequences of your behavior (insanity)

-Mitigation: reduction, because of some special circumstance. Doesn’t get you off the hook altogether, although it may for one particular crime

Assault & Battery

Battery: The unlawful application of force to another

-Unlawful

  • D must act with some specified state of mind; usually no more than criminal negligence. In some jurisdictions, recklessness is required, but very few would require intent (and that would mostly be for the aggravated form
  • Remember, criminal negligence is more severe than normal negligence
  • Not privileged (e.g., by self-defense)

-Application of force

  • Doesn’t require contact (though it’s hard to imagine how this could happen without one)
  • Doesn’t require “harmful contact,” just unlawful application; don’t need bodily injury

-Grading (if there is any)

  • Negligence might reduce a battery to a 2nd degree battery, other kinds might be 1st degree. Foster (which deals with “assault,” but it’s really battery).

-Not every battery includes an assault (despite case language otherwise) b/c battery does not require intent, and assault always does