Criminal Law – Fall 1999, U of Iowa – Prof. Baldus

I.                    Punishment

A.                 Justifications/Goals of Punishment

1.                  Retribution

a)                 Harm caused - type, severity, degree of responsibility, ect.

b)                 Moral blameworthiness - state of mind, motive, premeditation, ect.

c)                 character - prior record, remorse, dangerousness, ect.

2.                  Deterrence

a)                 General - deter others

b)                 Special - deter individual

3.                  Incapacitation - prevents people from commiting crime

4.                  Rehabilitation

B.                Comments

1.                  Retribution looks back, other justifications look forward.

2.                  Retribution does not hold community responsible for crime. 

3.                  Punishment itself is an evil, and should only be resorted to to prevent worse evil.

4.                  w/o retribution, moral shame element is missing

5.                  Rehabilitated individuals may remain imprisoned for deterrence purposes.

II.                  Principle of Legality & Act

A.                 In common law, judiciary created crimes as new situations arose.  Courts had “residual authority” from legislature (e.g. Rex v. Manley - Act posing danger to public a crime even though not covered by statute).

B.                Principle of legality forbids retroactive crime definition (CB 35). 

1.                  No one should be punished for crime not defined in advance.  (e.g. Keeler v. Superior Court - man not guilty of murder for killing fetus, which was not included in definition of “human being” under statute).

2.                  Legislature is appropriate authority to define crimes.

3.                  However, courts still determine what conduct fits crime (e.g. People v. Sobiek - Embezzler who had undivided interest in property stolen still guilty of larceny).

4.                  Separation of powers prevents judges from from creating crimes.  Judges cannot criminalize behavior.

C.                Justifications for Legality

1.                  Avoids arbitrariness and discrimination

2.                  Predictability of law needed for public endorsement

3.                  Protection from malicious police/prosecutors.

4.                  Scope of such authorites must be limited.

III.                Ommissions

A.                 Legal/Factual Sources of Duty to Act (CB 92)

1.                  Statute

2.                  Case law/statute

a)                 Family relation (e.g. Commonwealth v. Konz - Spouse had duty to seek medical assistance when husband was in serious need of it and could not obtain it himself)

(1)               If spouse is competent to seek help, partner does not have duty (e.g. People v. Robbins - wife quit insulin injections under religious belief, husband not liable just because he played along)

(2)               Paramor relationship does not establish duty (e.g. People v. Beardsley - man not responsible for seeking care for passed out friend)

b)                 assumed responsibility(e.g. People v. Oliver - D had duty to seek aid for stranger who she concealed from others)

c)                 Contract

3.                  Moral obligation does not constitue legal obligation (People v. Beardsley - D not required to seek help for paramor who needed medical attention).  However, legal oblitations have moral basis.

B.                Ommision Issues re Conduct

1.                  What category most plausibly fits?

2.                  W/i category, what triggers obligation?

3.                  How onerous was duty?  Was duty met?

IV.               Common Law Culpability (CLC)

A.                 Elements of mens rea (mental attitude required for crime)

1.                  Specific Intent - focuses on what D actually thought as to material element of offense (purpose, knowledge, collateral intent)

a)                 Contemplated Conduct - intention to do additional acts to what was done

b)                 Contemplated Impact - intent to bring about a particular result.

c)                 Knowledge that one or more elements of Actus Reus Exists - D must be aware of material element of offense

2.                  General Intent - Residue of specific intent and strict liability

a)                 Recklessness

(1)               D’s conduct created an unacceptable risk that element of crime would occur

(2)               D was aware of risk

(3)               D seriously at fault for engaging in conduct given knowledge of risk

b)                 Negligence

(1)               D’s crime created unacceptable risk that an element of crime would occur

(2)               D should have been aware of risk

(3)               D seriously at fault for engaging in conduct given that reasonable person would have been aware of risk.

B.                Strict liability

1.                  Public Welfare Offenses

a)                 No harm required to occur; D usually in position to prevent great harm, though.

b)                 Conduct not aimed to harm individual, but puts random members of public at risk.

c)                 conduct does not have to be immoral, but is controlled for public health/safety reasons.

d)                 Public injury will occur regardless of D’s intentions

e)                 Normally, penalties and stigma of conviction are relatively minor.

2.                  Immoral Behavior - typically dealt w/ sex acts outside of marriage.

C.                Comments

1.                  No mens rea is required for grading elements of crimes.

2.                  Actus Reus and Mens Rea must occur concurrently.

3.                  Issue exists as to whether negligence should apply to criminal liability (e.g. Dir. of Public Prosecutions v. Smith - D convicted for murder of police officer who was killed due to contended negligence.)

V.                 Model Penal Code (MPC) Culpability

A.                 Actus Reus Elements

1.                  Conduct - elements describing acts/ommissions required to commit offense.

2.                  Circumstances - external facts that must exist in order for crime to be committed

3.                  Result - consequences of conduct necessary to complete the offense (e.g., “death of another”).  Some offenses do not require a result.

B.                Mens Rea Concepts

1.                  Purpose - conscious objective or desire

a)                 element involves nature of conduct or result thereof, D has concious objective to engage in conduct of such nature or to cause such result; and

b)                 element involves attendant circumstances, D is aware of such circumstances, or D believes/hopes such circumstances exist.

2.                  Knowledge - awareness

a)                 element involves nature of  conduct or attendant circumstances, D is aware that conduct is of such nature or that such circumstances exist; and

b)                 if the element involves result of conduct, D is aware that it is practically certain that conduct will cause such result.

3.                  Recklessness - adversion present

a)                 Conscious disregard of substantial and unjustifiable risk that material element of offense exists or  will result from conduct; and

b)                 Risk must be of such nature and degree that, considering nature and purpose of conduct and circumstances known to D, its disregard involves gross deviation from standard of care a law-abiding citizen would observe in such situation.

4.                  Negligence - inattention to risk

a)                 D should be aware of substantial and unjustifiable risk that material element of offense exists or  will result from conduct; and

b)                 Risk must be of such nature and degree that failure to perceive it, considering nature and purpose of conduct and circumstances known to D, involves gross deviation from standard of care that reasonable person would observe in situation.

C.                Comments

1.                  If law prescribes a culpabilty to a particular element of offense, that culpability applies to all elements unless contrary purpose is apparent.

2.                  If a mens rea is provided for an element of offense, higher mens rea may substiutute if present.

3.                  If law does not prescribe mens rea to any elements of offense, default mens rea is recklessness.  Negligence is not sufficient.

VI.               Mistake

A.                 Common Law

1.                  Mistake of Fact

a)                 Specific intent - honest mistake of fact is a defense (e.g. Green v. State - D convicted of theft should have been allowed to defend on basis that he believed property to be his, albeit belief was unreasonable)

b)                 General Intent - Honest and Reasonable mistake is a defense (e.g. State v. Walker - D abducted girl with reasonable belief that she was of such a relation that he could do so)

c)                 Strict Liabilty - mistake of fact is not a defense (e.g.State v. Ackerly - D guilty of bigamy despite honest and reasonable belief that wife was dead)

2.                  Mistake of Criminal Law - Generally not a defense

a)                 Not a defense when

(1)               Advise of authority leads D to think activity was legal (e.g., Hopkins v. State - Marriage solicitor was told signs were OK by state’s attorney, but was convicted anyway)

(2)               Statute is misinterpreted (e.g. People v. Marrero - Corrections officer thought he was permitted to carry gun w/o permit, mistake was no defense)

(3)               D was unaware that item possessed was illegal (e.g. State v. Fox - D knew he had emphedrine, which was enough to convict him even though he did not know ephedrine was illegal)

(4)               D not aware of law

b)                 Exceptions to general rule have occured where due process concerns have been cited (e.g., People v. Cox - Picketers should not have protested near courthouse, but police allowed it, and to arrest them would be entrapment; e.g., Lambert v. People - D was not aware of need to register as a felon in city, and could not have reasonably been expected to know about duty to register)

3.                  Mistake of Non-Criminal Law

a)                 Specific intent - Honest mistake is a defense

b)                 General intent - mistake generally not a defense (e.g. State v. Woods - D’s belief that partners divorce was legal not a defense to adultery).

(1)               If court wants to free D, it may assert that a mistake of fact has occurred instead.

B.                Model Penal Code

1.                  Ignorance of law or fact a defense if:

a)                 the ignorance or mistake of fact negatives the purpose, knowledge, belief, recklessness, or negligence required to establish a material element of the offense, or;

b)                 the law provides that the state of mind established by such ignorance or mistake constitutes a defense. ... (CB 141)

2.                  Notes

a)                 “Honest and reasonable” test is eliminated

b)                 No difference between mistake of fact and mistake of law

c)                 D can rely on authority

VII.             Intoxification/Drugs

A.                 General intent - intoxification not a defense (e.g. Dir. of Public Prosecutions v. Majewski (drunken man who assualted tavern owner liable for assualt.  Drunkedness reckless behavior in and of itself)

B.                Specific Intent - varies among jurisdictions

1.                  Restrictive Positions - evidence of intoxication not admissible in any (or most) specific intent crimes

2.                  Lack of Capacity v. Factual Relevance

a)                 state of intoxication should be considered in deciding whether D had specific intent (California)

b)                 Burden of proving that intoxication made specific intent impossible rest with D (Ohio) (only extreme intoxication precludes intent)

C.                Notes

1.                  Drunkedness generally only matters in close cases.

2.                  Some may say that drunkedness is a substitute for recklessness.

VIII.           Strict Liability

A.                 Grading Elements

1.                  A mistake as to general intent element of crime is not a defense if specific intent was present as to specific intent element. (CB 199).

2.                  Mistake as to criminality of conduct not a defense.  (e.g. U.S. v. Freed - ignorance that grenades were unregistered not a defense)

3.                  Mistake as to material element of offense is a defense.  (e.g. Staples v. U.S. - ignorance of qualities of weapon which make it criminal is a defense).

4.                  Under MPC, formally strict liabilty elements of crime now require recklessness, unless otherwise stated in law.

IX.               Justification

A.                 MPC

1.                  General Rule - Coduct which the actor believes to be necessary to avoid a harm or evil to himself or another is justifiable if:

a)                 the harm or evil sought to be avoided by such conduct is greater than that sought to be prevented by the law defining the offense charged;

b)                 neither this title nor other law defining the offense provides exceptions or defenses dealing with the specific situation involved; and

c)                 a legislative purpose to exclude the justification claimed does not otherwise plainly appear

2.                  Choice of evils - When the actor was reckless or neglignet in bringing about the situation requiring a choice of harms or evils or in appraising the necessity for his conduct, the justification afforded by this section is unavailable in a prosecution for any offense for which recklesness or neglignence, as the case may be, suffices to establish culpability. ( from Commonwealth v. Markum) (CB 326)

B.                Self-Defense

1.                  Considerations

a)                 Whether any force is justified

b)                 How much force can be used proportionaly

(1)               Interest protected

(2)               Amount needed to protect

(3)               Retreat

(4)               Castle/Work Exception

c)                 Perceived threat

d)                 Response necessary

e)                 State of mind

(1)               Objective v. Subjective (Punish for negligence)

(2)               Individualization/Subjective standard of reasonableness

(3)               Under Goezt and Leidholm, neglignent persons can be convicted for crime if negligent belief is unreasonable.

(4)               MPC provides “imperfect justification” doctrine.  D cannot be guilty of crime that requires higher mens rea than what D actually had (punishment should match culpability)

2.                  Battered Spouse Syndrome

a)                 Person suffering from batterd spouse/child syndrome may demonstrate that the disorder contributed to the development of a reasonable belief that imminent danger existed when she/he used deadly force (see State v. Kelly)

b)                 Battered spouse faces unavoidable danger zone (CB 370)

c)                 Battered spouses are in “hostage” situation from fear of spouses retaliation in event of leaving (CB 372)

C.                Defense of Others

1.                  Force used must not be more than force that offended individual could use.

2.                  If third party is mistaken as to force that may be used by offended individual, and uses excessive force, third party has no defense (People v. Young).  (This rule not universal)

X.                 Insanity/Mental Incapacity

A.                 Possible results with mentally ill Ds

1.                  Civil commitment - dangerous to self/others

2.                  Unfit to stand trial

3.                  Unfit to be executed

4.                  Not Guilty by Reason of Insanity (NGRI)

B.                3 Tests to determine Guilt

1.                  M’Naghten rule

a)                 disease of mind

b)                 resulting in mental illness/defect

c)                 prevents D from knowing nature & quality of act

d)                 or prevents D from knowing act is wrong

2.                  Irresistible Impluse

a)                 By reason of mental disease

b)                 D lost power to choose between right/wrong, and

c)                 thereby lost power to avoid doing act, and

d)                 loss of control was solely result of mental disease

3.                  MPC Test

a)                 As a result of mental disease or defect

b)                 D lacks substantial capacity either to

(1)               appreciate criminality (wrongfullness) of conduct, or

(2)               conform conduct to requirements of law

C.                Dispostional Alternatives of Menatally Ill Ds

1.                  Civil commitment

2.                  Iowa Provision - commited until determined to be safe and not mentally ill

3.                  Guilty But Mentally Ill

4.                  Montana Provision - Convicted D is treated until not ill or sentence runs; whichever occurs first.  Capacitated for length of sentence but no longer.

D.                Diminished Responsibility

1.                  Rule of Logical Relevence - Evidence of mental defect must be pertinent to disproving mens rea required for conviction or grading.

2.                  Partial responsibility - mitigates culpability.  Not expressly adopted anywhere, but influential.

XI.               Attempt

A.                 Conduct Tests

1.                  Res Ispa Loquitur - Act is such that it is criminally intended by its very nature

2.                  Proximity - how much more needed to be done to complete crime?

3.                  MPC 5.01 (1)(c) “Substantial step.”  Defined in 5.01(2)

B.                Mens Rea Tests

1.                  Specific Intent

2.                  Acts w/ culpability required for crime (e.g. People v. Thomas - “attempted reckless manslaughter” is a crime even though victim did not die.)

3.                  MPC 5.01 - D acts in criminal manner w/ culpability for crime given that circumstances would have been what D believed them to be.

C.                Impossibility

1.                  Legal impossibility - Completed act would not be criminal.  Act not inherently evil.

2.                  Factual impossibility - Crime cannot be completed, due to factual condition unknown to D.  Act inherently evil.

3.                  Model Penal Code

a)                 criminality judged from circumstances as D believed them to be.

b)                 Harmless perpetrators may be allowed to go free (If D continued acting in like manner, no danger posed)

XII.             Complicity

A.                 Common law distinctions

1.                  Principal in First Degree - primary actor, personally engages in criminal conduct

2.                  Principal in Second Degree - aided/abetted primary actor and present during commission of crime.  Presence could be constructive.

3.                  Assessory before the fact - aids, counsels, encourages, commands crime but is not present during commission

4.                  Assessory after the fact - assists known felon to avoid apprehension/trial/punishment.

B.                Innocent agent doctrine - guiltless actor is mere instrumentality of ultimate wrongdoer, who is principal in first degree even if not primary actor.

C.                Culpability required for conviction of crime

1.                  Procuration

a)                 Majority rule:  If D provides party w/materials that he knows such party will use in the commission of a crime, he is not guilty as principal to the crime if he did not act for purpose of facilitating crime (U.S. v. Peoni)

b)                 Minority Rule:  If D procures goods for another knowing that they will be used in the commmision of a crime, D may be convicted as principal to crime.

2.                  If D aids and abets another in commission of crime, D is liable as principle for foreseeable consequences of committing crime that occur (People v. Durham - Car thief guilty of murder commited by partner)

3.                  D who aids and abets another in committing crime if he had mens rea necessary for its occurance, regardless of whether principal actor had necessary mens rea.  D’s mens rea is “tacked” to actus reus of principal actor. (Regina v. Cogan and Leak)

4.                  Mens rea alone is not enough for conviction.  Actus reus must be present. (Regina v. Richards).

D.                Ommission

1.                  If D’s nonfeasence encourges principal actor to carry out crime due to special relationship, D is principle to crime (e.g. Rex v. Russel - D guilty of manslaughter for watching wife drown herself and their children)

2.                  If D has duty to protect victim, D is guilty as principle if D permits primary actor to harm victim.

E.                 Conduct

1.                  A person who assists others in the commission of a crime, but whose assitance is unknown to the primary actors, is guilty of the crime if his assistance made completion of the crime more probable (State v. Talley)

2.                  Intigator may be guilty of crime even if she does not plan details (McGhee v. Virgina) (Ask Baldus if contribution of info. necessary).

XIII.           Homicide

A.                 Common Law Murder (CB 658)

1.                  Actor intended to kill or knew death would result, or

2.                  actor intended to inflict serious bodily harm or knew that such harm would result, or

3.                  actor manifested reckless indifference to death

4.                  death occured while actor was engaged in the commission of a felony

B.                Common Law Manslaughter - homicide w/o malice aforethought

1.                  Actor intended to kill but commited offense w/ sudden heat of passion endgendered by adequate provocation, or

2.                  actor engaged in reckless or negligent behavior that was insufficiently culbable to constitute murder but more culpable that ordinary civil negligence, or

3.                  Death occured while actor was engaged in commission of unlawful, but not felonious, act.

C.                Difference between first and second degree murder as modeled by Pennsylvania statute

1.                  Killing that results from a sudden, whimisical decision to kill does not satisfy the forethought requirment for first degree murder (People v. Anderson).  Anderson may be decided differently if tried today.

2.                  Deliberation/Premeditation is subject various interpretations.

D.                Provocation as a quasi-justificat defense to reduce grading of crime from murder to manslaughter - Legal adequacy

1.                  Defendant’s resentment, as genuine as it may be, must be attributable to a reasonable person reacting to the same stimulus (Freddo v. State).

2.                  Types of situations considered at common law

a)                 angry words + assault

b)                 sight of loved one being attacked

c)                 seeing someone’s liberty being violated

d)                 witnessing one’s spouse in adultery

3.                  Mayer v. People suggests that any circumstance, not just those prescribed by law, that might stir a reasonable person to act rashly should be considered for purposes of grading a crime.

4.                  Built up anger

a)