Term
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Definition
guilty action: act, possession or omission
1. Voluntary act that
2. Causes
3. Social harm |
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Term
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Definition
i. Retributionism- punish b/c they deserve it
Duty to punish even if Vs don’t seek it
ii. Utilitarian- all laws are to augment happiness of community
Punish only when excludes some greater evil
No moral need for punishment
iii. Rehabilitation
Make criminal safe to return to streets for public benefit |
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Term
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Definition
i. General Deterrent- deters people in general from committing same crime
ii. Specific Deterrent- deters person from committing crime again |
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Term
| Voluntary Act - Common Law |
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Definition
Bodily movement, muscular contraction: physical but not necessarily visible (talking, etc) which follows volition.
• Voluntary Acts even
o Under Hypnotism
o Under Multiple Personalities
o Possession if knowingly possess
• Involuntary if: wild acts not governed by will
o Reflexive actions, spasms, epileptic seizures, movement while unconscious or asleep |
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Term
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Definition
Criminal liability must be based on conduct which includes a voluntary act or omission
Each stage requires voluntary act
• Except for violations
• Involuntary: any conduct that is not a product of the effort or determination of the actor, either conscious or habitual
o Includes hypnosis |
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Term
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Definition
Only have to help when have duty
o If physically capable
Duties
o Status Relationship
Parents to minor child
Married couples to one another
Masters to servants
o Contractual Obligations
Baby-sitter to charge
Agreement to feed infirmed stranger
o Omissions following an act
o Creation of Risk
D negligently injures V, has duty to help
o Voluntary Assistance
Once begin assistance, have duty to continue if V would be in worse position had not helped in first place
o Statutory Duty
Duties imposed by statutes
• Driver to stop after wrecks
• Good Samaritan Laws |
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Term
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Definition
o Omissions constitutes an act if
The law defining the offense provide for it
Duty to act is “otherwise imposed by law” |
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Term
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Definition
The particular mental state provided for by the definition of the crime
Old - General blameworthiness or overall bad morality (not used anymore) |
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Term
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Definition
purpose or knowledge
It is his desire
Acts w/ knowledge that social harm is virtually certain to occur |
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Term
| Transferred Intent - Common Law |
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Definition
Liable if intend to kill one person and kill another
Transfers intent from one person to another- but not from one social harm to another
• Trying to kill dog- kill a person |
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Term
| Specific Intent Crimes - Common Law |
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Definition
| When definition of crime included an intent or purpose to do some future act or achieve another consequences, or provides that the actor must be aware of a statutory attendant circumstance (not a very good classification system) |
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Term
| General Intent Crimes - Common Law |
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Definition
| Just requires general intent (not a very good classification system) |
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Term
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Definition
o Each element of offense must be done w/ mens rea
o No general and specific intent crimes
o Four mens rea terms
Purposefully
Knowingly
Recklessly (aware of risk but does anyhow)
Negligently (not aware of risk) |
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Term
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Definition
• Conscious object to engage in conduct of that nature or to cause such a result
• If is aware of the existence of such circumstances or believes or hopes that they exist
o If enters in building hoping it was occupied |
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Term
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Definition
• If actor is aware that it is practically certain that his conduct will cause such result
• Attendant Circumstances: aware that his conduct was of that nature or that such circumstances exist |
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Term
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Definition
• Consciously disregards a substantial and unjustified risk that the material element exists or will result from his conduct
o Substantial and unjustified |
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Term
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Definition
| • If actor should be aware of a substantial and unjustifiable risk that the material element exists or will result from his conduct |
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Term
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Definition
| unlawful killing of another human being (murder or Manslaughter) |
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Term
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Definition
| Homicide with malice aforethought |
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Term
| Malice Aforethought - Common Law |
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Definition
4 types:
1 - Intent to Kill
2 - Intent to inflict GBH
3 - Depraved Heart
4 - Felony Murder |
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Term
| Intent to Kill - Common Law |
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Definition
1st degree murder: willful, deliberate, and premeditated
2nd degree murder: not premeditated
Theories of Premeditation:
Lying in wait, poisoning, always = premeditation
Carroll: Some courts say no time is too short
CA- Anderson/ Guthrie case look for factors of premeditation
• Planning activity
• Motive
• Manner of killing |
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Term
| Intent to inflict GBH - Common Law |
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Definition
o 2nd degree
o Many definitions of GBH, but generally injury is grave and not trivial and gives rise to apprehension of danger to life, health, limb |
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Term
| Depraved Heart - Common Law |
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Definition
(implied malice: extreme recklessness)
o 2nd degree
o Recklessly: callous indifference to human life or rarely: very very very negligent
1. Creates high risk of death
2. No good reason for considering risk
3. Awareness of risk
o Firing gun into crowded room, driving car very fast in bad weather while intoxicated
o Omission: parents fail to feed infant for two weeks (no intent to kill) |
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Term
| Felony Murder - Common Law |
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Definition
guilty of murder if kills another during commission of felony
Agency theory states that the deceased has to be killed by one of the felons
Often extends to accomplices even if not directly involved
Causation
• Must be “but for” and
• Proximate natural and probable consequence or foreseeable consequence
Limits
• Limited to inherently dangerous felonies in many states
• Defined objectively and subjectively
• Objective or abstractly
o Does this crime by its very nature create substantial risk that someone will be killed?
• Subjectively
o Decide whether that specific commission of felony was inherently dangerous by examining the facts and circumstances of that case |
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Term
| Felony Murder in the first degree - Common Law |
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Definition
| Murder committed during the commission of Arson, Rape, or Robbery |
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Term
| Felony Murder in the second degree - Common Law |
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Definition
| Murder committed during the commission of any crime other than Arson, Rape, or Robbery |
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Term
| Merger Rule - Felony Murder - Common Law |
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Definition
applies in most states
Felony Murder can only apply if the felony is independent of homicide
• Or else involuntary manslaughter would be bootstrapped into murder
• Must have individual felonious purpose
• Crimes that generally merge
o Assault w/ deadly weapon
o Burglary (which is assault with deadly weapon) |
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Term
| Agency Theory - Felony Murder - Common Law |
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Definition
Felony murder
CA (more popular theory): can’t be convicted if the killing is not done by felon (or co-felon) |
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Term
| Proximate Causation Theory - Felony Murder - Common law |
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Definition
Felony Murder
NY, NJ : felon is liable for any death proximately resulting from felony |
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Term
| Manslaughter - Common Law |
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Definition
| homicide without malice aforethought |
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Term
| Voluntary Manslaughter - Common Law |
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Definition
would be murder except provoked (or imperfect self defense)
Provocation: killing must be: (justification or excuse)
1. In heat of passion (subjective)
2. Legally adequate provocation (would enrage reasonable person – objective)
3. Not enough time for reasonable person cooling time (objective)
General reasons for provocation
Extreme Assault or Battery upon D
D’s illegal arrest
Injury or serious abuse of close relative
Sudden discovery of spouse’s adultery
Some courts allow for homosexual advances
Sometime can use provocation even if D kills wrong person by mistake
But not for killing total bystander |
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Term
| Involuntary Manslaughter - Common Law |
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Definition
killing with gross negligence or recklessness
Reckless homicide is involuntary unless extreme enough to count as depraved heart murder
Ex. Gross Negligence: Go to get car fixed, tell them I need to fix brakes soon. Every time I use them they make a loud noise, and I forget what mechanic said, and just ignore them |
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Term
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Definition
No Degrees
Homicide that is committed:
• 1. Purposefully or knowingly; or
• 2. Recklessly under circumstances manifesting extreme indifference to value of human life
• *inadvertent risk creation (negligence) cannot be punished as murder no matter how extravagant |
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Term
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Definition
Homicide that either
• 1. Is committed recklessly, but w/o extreme difference; or
• 2. Would be murder but for extreme mental or emotional disturbance (EMED) for which there exists reasonable explanation or excuse (from killer’s view)
EMED (much broader than heat of passion)
• 1. Defendant experienced intense feelings, sufficient to cause loss of self-control, at time of homicide (subjective)
• 2. Must be reasonable explanation or excuse for EMED (objective)
o Includes: personal handicaps but not idiosyncratic moral values
o The question is whether the actor’s loss of self control can be understood in terms that arouse sympathy in the ordinary citizen
o Factors that provoke gravity of provocation (race) are considered, but not ones that reduce self-control (alcohol) |
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Term
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Definition
Homicide committed with gross negligence
Ex. People v Hall- ski instructor goes out of control- hits and kills man |
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Term
| Strict Liability - Common Law |
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Definition
No Mens Rea required (Morally innocent)
There must still be a voluntary act
usually these are regulatory crimes with light punishment, little stigma and can usually be avoided with care |
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Term
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Definition
| No strict liability in the MPC |
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Term
| Mistake of Fact - Specific Intent Crimes - Common Law |
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Definition
o Mistake of fact is exculpatory if it negates the particular element of mens rea
If lack specific intent
• Ex. Larceny- if think it belongs to them don’t intend to permanently deprive owner
If mistaken about nature- not necessarily
• Ex. Guy buys heroin thinking its coke- knew he was receiving controlled substance- doesn’t matter what kind
Attempt crimes (are specific intent)
• Attempted rape is excusable by unreasonable mistake since its specific, whereas regular rape can only be excused when a reasonable mistake |
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Term
| Mistake of Fact - General Intent Crimes - Common Law |
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Definition
| Not guilty only if the mistake was reasonable |
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Term
| Mistake of Fact - Strict Liability Crimes - Common Law |
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Definition
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Term
| Mistake of Fact - Jurisdictional elements - Common Law |
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Definition
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Term
| Mistake of Fact - Moral Wrong Doctrine - Common Law |
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Definition
o Intent to commit an immoral act furnishes culpability for the related but unintended outcome
If unreasonable mistake= guilty
If reasonable= then must ask if the facts were as the D though, would the act be morally acceptable
• Ex. Regina v Prince- reasonable mistake about girls age, but taking girl from parents is immoral= guilty |
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Term
| Mistake of Fact - Legal Wrong Doctrine - Common Law |
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Definition
| If the defendant thought he was committing a less serious crime he can still be convict ted of the more severe crime |
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Term
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Definition
always a defense if it negates the required Mens Rea
if the defendant would still be guilty of some crime if the facts had been as he thought they were, he is guilty of the lesser crime |
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Term
| Mistake of Fact and Rape - Common Law |
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Definition
Rape= general intent offense
o No specific intent to have nonconsensual sex is needed
o Only guilty if possess a morally blameworthy state of mind regarding female’s lack of consent
Traditional Law
o Not guilty of rape if entertained genuine and reasonable (objective) belief that the female voluntarily consented to intercourse with him
o Mass and Penn- SL for rape (reasonable mistake no good)
o Most American courts allow for mistake when honest and reasonable
Like other general intent crimes
o UK- unreasonable mistake is defense as long as negligent not reckless |
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Term
| Mistake of Fact and Rape - MPC |
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Definition
o Only has to be honest mistake
B/c: if negligent doesn’t meet mens rea
• Mens Rea: to intentionally have sex without consent or knowing that there isn’t consent
o Problem- someone with really sexist abhorrent beliefs wont meet mens rea |
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Term
| Mistake of Law - Common Law |
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Definition
Affirmative defense that is traditionally not accepted as a defense
Direct - I didn't know what I was doing was illegal
Not a good defense
Collateral - I knew there was a law against this, but I didn’t know that I was doing that b/c I didn’t know about that other law
Works for specific intent crimes but not general intent |
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Term
| Mistake of Law - Lambert Rule - Common Law |
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Definition
o 3 elements for negating offense
1. ordinace punishes omission
2. duty to act is imposed on basis of status not activity
3. offense was malum prohibitum (not malum in se)
& as a result of these factors, nothing to alert reasonable person to inquire law |
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Term
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Definition
Must negate the Mens Rea
Direct mistake allowed if
• Law not known by defendant and never published or not available
• Relied upon official statement of law later to be determined invalid
• If statue specifically says have to know law
• In some extraordinary situations
o Like where prohibited conduct would not alert an actor to the neeed to investigate the law |
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Term
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Definition
Must be but for cause
and be the proximate cause
Only for result crimes and basically homicide only |
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Term
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Definition
o Easily manipulated- just means that defendant deserves to be held liable
Tendency to push proximate cause further the more despicable behavior
o Must be but-for cause (few exceptions)
o Question: Were the factors that played part in causing harm, factors so unforeseeable, unpredictable, that it is not fair to hold D liable
Cant be highly extraordinary result
Was conduct sufficiently connected to death to hold person liable
Hastening death is still causing death |
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Term
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Definition
| Directly caused the harm: shoot him, dies instantly |
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Term
| Sufficient Efficient Causes |
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Definition
Not but-for unless look at it like (if both didn’t happen would the result have occurred)
can still be a proximate cause |
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Term
| Intervening Cause - Common Law |
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Definition
If 2nd harm was not foreseeable- NG
Cant have foreseeability without proximate cause
• Buy someone ticket to Iraq hoping he’ll die
o Other people killed for own reasons
o Intervening act of others and V
If intervening cause is an act that occurs in reaction to the d’s prior wrongful conduct- G unless highly abnormal or bizarre.
• Negligent medical treatment doesn’t intervene (gross does)
• D wounds V- V goes to hospital where maniac runs around killing people NG
o Intended Consequences Doctrine G
Get what they wanted but not way intended
• Poison taken in way didn’t intend, but intended it was taken
o Dangerous Forces that Come to Rest
When d’s active force has come to rest in a position of apparent safety
• V leaves house after fight with D. Could have returned, stays out all night
o Free, Deliberate, Informed Human Intervention
D more apt to be relieved of liability in the case of a “free, deliberate, and informed intervening human agent than in the case of a natural force or the actions of a person whose conduct is not fully free
Voluntarily, knowing, and intelligent
• Ex. D kidnaps and rapes v- v commits suicide- L
• Ex2. D shoots V- v put on ventilator- asks to be taken off L
o Omission
Omissions will rarely serve as superseding cause
• V doesn’t put on seatbelt, D crashes car- L
• D father doesn’t prevent someone from beating his kid- beater and father liable |
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Term
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Definition
o But-for is required (successive sufficient- if it wasn’t for both wouldn’t….)
o Proximate Cause relates to culpability
Was he proximate cause (but-for) and did he have level of culpability required
Unless result too remote or accidental in its occurrence to have a just bearing on the actor’s liability or on the gravity of his offense
• Common sense and fairness test for jury
• Circumstance where the offense has no culpability requirement (FM) then have to decide whether the actual result is a probable consequence of the d’s conduct
o If actual result is not in purpose or foresight of action then not proximate cause unless
If actual result is different than what he aimed for or expected and only difference is that it injured different person or caused less damage- still proximate cause
Involves same kind of harm that he intended or risked as long as not too remote or accidental in accordance to have just bearing- but left up to jury to decide this |
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Term
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Definition
o 1. conceive of the idea
o 2. evaluates the idea
o 3. fully forms the intention go forward
o 4. prepares to commit crime
o 5. commences commission of offense (substantial step here)
o 6. completes actions achieving immediate criminal goal |
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Term
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Definition
When person has taken substantial step, has passed stage of preparation and moved to point of perpetration
Punishment - half of max to one level below |
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Term
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Definition
Taken substantial step (term of art)
Punishment same as actual crime |
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Term
| Attempt - Mens Rea - Common law |
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Definition
must intentionally commit the acts that make up the actus reus of the crime
must commit the act with the intent of committing the crime
Specific intent crime |
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Term
| Attempt - Circumstances - Common Law |
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Definition
1. Generally- no specific intent needed for attendant circumstances
2. Some- reckless,
3. some same as substantive crime |
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Term
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Definition
Conduct= Purposefully
Circumstances= same as target crime
Result= purpose/belief (enough that they believe that it will bring about consequences even if impossible)
• D has sex with 19 year old believing she is 15= guilty
Substantial step and actor’s conduct must strongly corroborate |
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Term
| Attempt - Impossibility - Common Law |
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Definition
• Factual= if had been as person thought, would have been crime
• Legal= not legally possible to be guilty for shooting a corpse b/c not illegal to shoot corpses
No crime to do that which is legal |
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Term
| Attempt - Impossibility - MPC |
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Definition
Gets rid of factual/ legal impossibility
Give discretion to judge to disregard attempt charges when inherently impossible to result in commission of crime that doesn’t present public danger
But pure legal impossibility is still defense. |
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Term
| Accomplice liability - Common Law |
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Definition
o If a person intentionally assists another in the conduct that constitutes the crime (must actually have helped or encouraged not attempted to do so)
Assist can be
• Aiding
• Abetting
• Encouraging
• Soliciting
• Advising
• Procuring the commission of the offense |
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Term
| Modern Accomplice Liability - Common Law |
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Definition
Accomplice
o Person with requisite mens rea who assists the primary party in committing an offense
o Does not have to be but-for (but can’t be attempt)
• Assistance (3 types)
o Assistance by physical conduct
o Assistance by psychological influence
o Assistance by omission
Assuming there is a duty to act
• Allowing someone to kill your kid |
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Term
| Accomplice - Mens Rea - Common Law |
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Definition
there must be an intent to assist the primary
Reckless and negligent - majority if the have the same mental state they are liable, minority no liability
knowingly furbishes something and 3 factors:
If has inflated prices
2. If grossly disproportionate amount of sales come from business with that criminal
3. If provides goods or services for which there is no lawful use (magazine of prostitutes) |
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Term
| Accomplice - Natural and probable consequences - Common Law |
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Definition
Applicable in several states including CA (NOT MPC)
Liable for unanticipated crime if reasonably foreseeable
• Therefore don’t have to share common mind state for crime- just for the original crime
• Can be charged for murder then when don’t even have mens rea |
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Term
| Accomplice liability - Defenses - Common law |
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Definition
If the primary party is justified (self defense) then no accomplice liability
If the primary party is excused then there is still accomplice liability (duress)
o If aiding doesn’t have any effect- if crime is never committed- NG in common law
o Not accomplice if member of class of person for whose protection the statute was created |
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Term
| Accomplice liability - Abandonment - Common law |
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Definition
Must communicate withdraw to principal and make bona fide efforts to neutralize effect of prior assistance
Or; if just provided encouragement- must just object to it, as long as its not too late to have any effect |
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Term
| Different convictions for accomplices |
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Definition
o Basically they have thrown out distinctions between primary and secondary party and just depends on mens rea
o Originally- only could be convicted of graver offense than principle if was homicide. |
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Term
| Accomplice liability - MPC |
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Definition
o Person is guilty of accomplice if he commits an act “by his own conduct or by the conduct of another person for which he is legally accountable”
3 forms of accountability
1. Accountability through an innocent instrumentality
• Must be that except for D’s conduct, X would not have engaged in the conduct
• Must have intended to do act and had mens rea
2. If law says that conduct is offense
• Aiding and abetting suicide attempt
3. Accomplice Accountability
• Accomplice
o Must have requisite mens rea
Solicit,
Aids, agrees to aid in planning of commission
Attempts to aid in planning of commission of crime
Or has legal duty to prevent commission of offense but makes no effort to do so |
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Term
| Accomplice liability - Mens Rea - MPC |
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Definition
If assists with the purpose of promoting or facilitating the commission of the offense
Knowingly does not count unless was his conscious object to facilitate commission of offense
Recklessness/Negligence
• Yes. Guilty if accomplice in conduct that caused result and acted with required culpability for the result
No natural and probable consequence Doctrine
Accomplices can be convicted of different offense better or worse and for an offense that they could not have committed (rape of wife) |
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Term
| Accomplice liability - Actus Reus - MPC |
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Definition
o Must purposely aid/encourage actus reus of crime (knowingly aid without intending to promote or facilitate doesn’t count)
o Don’t have to actually have helped (attempt to help counts- and can be charged with attempt to assist- so the attempted charge) (not so in common law) |
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Term
| Accomplice Liability - Limits - MPC |
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Definition
o Cannot be accomplice if they are victim of offense
o Cannot be accomplice if conduct is inevitable incident to commission of offense
Cant be accomplice for sale of drugs b/c you buy drugs
o Abandonment is a defense
Must terminate participation before crime is committed and
• 1. neutralize your assistance
• 2. give timely warning to the police of impending offense
• 3. or in some other manner attempt to prevent commission of crime |
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Term
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Definition
Inchoate (still in progress, or in early stages)
o Agreement by two or more persons to commit a criminal act or series of criminal acts, or to accomplish a legal act by unlawful means
o Formed the moment the agreement is made that one will later commit an unlawful act
No conduct in furtherance is required (except for overt act jurisdictions)
o Does not merge into attempt or completed offense (like attempt and accomplice)
o Also liable for the actual crime of which part they were a conspirator
o If guilty of conspiracy- guilty of any crime committed in furtherance of crime (dictum in Pinkerton says if it is reasonably foreseeable)
Pinkerton Doctrine- vicarious liability for crimes committed by co-conspirator |
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Term
| Conspiracy - Proof - Common Law |
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Definition
o No express agreement needed. Don’t need to have knowledge of every detail
o Just- each party must be aware of its essential nature
o Hearsay
Can prove on entirely circumstantial evidence including hearsay
Can be inferred from evidence of acts, conduct, and circumstances. |
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Term
| Conspiracy - Punishment - Common Law |
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Definition
o Most states treat as lesser offense than the target offense
o Some states – all conspiracies are treated like misdemeanors |
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Term
| Conspiracy - Overt Act - Common Law |
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Definition
o Some states require no overt act
Many do- but only need any act no matter how trivial that is performed in pursuance of the conspiracy
o Overt act of one is enough to convict whole group |
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Term
| Conspiracy - Mens Rea - Common Law |
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Definition
o Specific Intent Crimes
Intent to agree; and
Intend that object of agreement to be achieved
o Cant agree to commit unintentional crime/ no conspiracy if one party is not really agreeing (with cop for example)
o Knowingly
Knowingly furbishes something
o Conspirator if:
o 1. has inflated prices
o 2. grossly disproportionate amount of sales come from business with that criminal
o 3. If provides goods or services for which there is no lawful use
o Attendant Circumstances
Some states same knowledge of attendant, some require heightened mens rea |
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Term
| Conspiracy - Plurality/ Bilateral agreement - Common Law |
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Definition
Cannot have conspiracy if don’t have 2 people who have correct mens rea
o No good if one person is insane or undercover cop
o But can still be convicted if other person let go or never found if enough evidence of your guilt
o Most states use MPC here b/c just one person has to have agreed |
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Term
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Definition
| Cant be guilty of conspiracy if essential part of act is conspiracy (agreement- betting) |
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Term
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Definition
o A person is guilty of conspiracy with another person or persons to commit a crime if with the purpose of promoting or facilitating its commission he
1. agrees with such other person or persons that they or one or more of them will engage in conduct that constitutes such crime or an attempt or solicitation to commit such crime or
2. agrees to aid such other person or persons in the planning or commission of such crime or of an attempt or solicitation to commit such crime
o Punishment
Same as target offense
o Merge- They merge unless they conspired to do an act that they did not consummate
o Overt Act- Must have overt act unless it is felony of first or second degree
o Knowingly
Cannot be liable for conspiracy simply for knowing that you are selling someone something to be used for a crime b/c don’t share another person’s criminal purpose.
o Pluralilty
No plurality requirement- as long as they think they agreed to do it
• This is most all states now
o Structures
If they know that the person they conspired with conspired with another person to commit the same crime, they are co-conspirators also- not if different crime
o Number of Conspiracies
One conspiracy if
• Part of same agreement
• Or if part of a continual conspiratorial relationship
o No Wharton’s rule (but doesn’t matter b/c can’t be charged with conspiracy to commit betting and betting
o No Pinkerton Doctrine |
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Term
| Self Defense - Common Law |
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Definition
o Justification defense (morally right)
o Admits that he did everything and it was the sensible thing to do
o Generally affirmative defense (but sometimes burden on state)
o Rules:
o 1. reasonable belief (traditional if unreasonable the imperfect self defense)
o 2. that force is necessary to defend against (necessity)
o 3. Imminent immediate use of deadly force
o 4. And one’s own force isn’t excessive (proportionality) |
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Term
| Self Defense - Retreat - Common Law |
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Definition
o Some jurisdictions don’t allow for deadly force if there is a safe avenue of retreat
o Slim majority of courts- non-aggressors can use deadly force to repel unlawful deadly attack even if can retreat in complete safety
Must have complete safety and must be subjectively aware of it
No retreat necessary if d uses non-deadly force
o If initial aggressor- have to retreat. If don’t- imperfect self defense in some places
o Castle Exception
Do not have to retreat ever in your own home
Most states don’t have to retreat from co-habitants either |
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Term
| Imperfect Self Defense - Common Law |
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Definition
o Non-deadly aggressor who is subject to deadly force and doesn’t retreat
o Unreasonable belief that justified in killing
Using deadly force when non-deadly would have sufficed
Misjudging acts
Using deadly force for non-deadly force |
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Term
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Definition
o Person justified in using force upon another person if he believes that such force is immediately necessary to protect himself against the exercise of unlawful force by the other on the present occasion
o Immediacy
More lax- immediately necessary- on present occasion (more of necessity less imminent)
o Deadly force
Firing gun
Not threat without purpose to cause death even if brandishes weapon
o Permissibility
Deadly force is permissible when protecting against
• Death
• Serious bodily injury
• Forcible Rape
• Kidnapping
o Aggressor
Prohibits use of deadly force by person who “with the purpose of causing death or serious bodily injury, provoked the use of force against himself in the same encounter.
• But: if d starts non-lethal conflict, and V escalates into lethal conflict, D can defend himself
o Retreat
May not use deadly force if know can avoid necessity of using such force with complete safety by retreating
Not necessary to retreat when in home or place of work
BUT DO HAVE TO RETREAT AT HOME OR AT WORK IF
• if actor was initial aggressor
• If attacked by co-worker in place of business
o Imperfect Self-Defense
Charged with whatever culpability level had at time
• If negligent about whether real threat or not- negligent homicide
• If reckless- murder or manslaughter |
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Term
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Definition
Justification
Some states limit defense to emergencies created by natural occurrences
• Can flee jail to get away from fire, but not from person
Debatable whether can commit homicide to save people, throw someone out boat to save others. But more often than not- cannot do so
Limited to saving persons and property |
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Term
| Necessity - Choice of Evils - Common Law |
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Definition
1. actor must be faced with clear and imminent danger
2. d must expect, as a reasonable person that his action will be effective in abating the danger that he seeks to avoid
3. must exist no effective legal way to avert the harm
4. harm D will cause by violating law must be less serious than harm seeks to avoid
5. Lawmakers cant have already spoken on issue precluding necessity
6. D cannot have wrongfully placed himself in situation (hands must be totally clean- not negligent or reckless even) |
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Term
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Definition
Choice of Evils
1. he believes that his conduct is necessary to avoid harm to himself or another
2. the harm to be avoided by his conduct is greater than that sought to be avoided by the law prohibiting his conduct
3. no legislative intent to exclude conduct in circumstances exists |
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Term
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Definition
threat always one person against another- not against property
o NO GOOD FOR MURDER
o Full defense- the coercing party is liable for actual crime
o If act was committee under the following circumstances:
1. Another person threatened to kill or greviously injure the actor or a third party (particularly a relative)
2. Actor reasonably believed that the threat was genuine
3. The threat was “present, imminent, and impending” at the time of the act
4. There was no reasonable escape from the threat except through compliance
5. The actor was not at fault for exposing herself to threat
o Ex. Gang membership militate against defense (if voluntarily put self in situation where foreseeable- then no good the defense) |
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Term
| Duress - Threat - Common Law |
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Definition
o 1. Must emanate from human being (break into house to get away from storm is necessity not duress)
o 2. Coercer must threaten to cause death or serious bodily harm “deadly force”
Threats against property, etc no good
o 3. Threat must be imminent and present- must be threatened as doing it
Perjury b/c threatened b/f no good unless guy outside with gun pointed
o 4. Family member- sometimes has to be family member |
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Term
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Definition
o Goes to jury to decide
o Whether threat of force was so “that a person of reasonable firmness in his situation would have been unable to resist”
o 1. Situation
Can take into account tangible factors like size, age, strength
BWS
o 2. Imminence is a factor but not an element
o 3. Acceptable defense to murder
o 4. Threat must be of unlawful force against the person (not threat of death or GBH)
o 5. If recklessly put herself in situation- no defense
If negligently put herself in situation, only liable for offenses where negligence suffices for culpability
o Not thinking- hanging out with gang- they force them to rob bank- not liable- have to purposely went to take their money
o However- if know they are a gang and do stuff like that (recklessly) no defense
o 6. Imperiled person does not have to be a family member
o 7. Only good for unlawful forces, no defense for vis majors, etc
o 8. Only good when threat is against person, not things |
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Term
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Definition
o Special Verdict: not guilty by reason of insanity
Requires institutionalization
o Excuse Defense
o Presumption of Insanity
Burden of proving insanity generally lies with D, but not always |
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Term
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Definition
o Had mental disease or defect at time of the alleged criminal behavior that had one of two results
1. the D didn’t know nature and quality of what she was doing
• Thought squeezing lemon while choking someone
2. D didn’t know what she was doing was wrong
• Legal standard- or moral standard |
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Term
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Definition
o M’Naughten plus if D was unable to control his will
Basically is: if had mental disease or defect at time of alleged criminal behavior and:
• Didn’t know what he was doing; or
• Didn’t know it was wrong; or
• Unable to control his will or conform to law |
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Term
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Definition
At time of crime did they suffer from mental disease or defect that caused them to
• Lack substantial capacity to appreciate criminality (wrongfulness) of his conduct; (cognitive prong) ; or
• Lack substantial capacity to conform conduct to the law (volitional) |
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Term
| Diminished Capacity - Common Law |
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Definition
if allowed
2 different types
o Failure of proof defense
Negates some element of crime
Mental capacity made it impossible for the d to form some mens rea of crime
Normally allowed for specific intent crimes only b/c there exists lesser offense they can be charged with
o Affirmative Defense
Rare- extremely unpopular
Like excuse/partial excuse
So impaired should not be responsible for what they did
Like Insanity- except not automatically institutionalized |
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Term
| Diminished Capacity - MPC |
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Definition
o Allows psychiatric evidence in regards to mens rea of any crime as long as there is a lesser offense available for conviction
o Doesn’t allow for reduced sentencing |
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