User:CheshireKatz/Criminal/Alternate

OVERVIEW OF THE CRIMINAL JUSTICE SYSTEM

A system of norms that reflects and imposes a set of values in society
Exists to ensure safety and protect liberty

Addressed to both individuals and the state

i. Individuals (general public)

1. Provides notice

2. Sets boundaries/limits (to acceptable behavior)

ii. The State

1. Limits intervention into private life

2. Allows for a well-ordered society

3. Provides framework to give State legitimacy

What do we punish?

i. Violations of law (statutes)

1. The law is neither neutral nor objective. It generally reflects the majority’s common notions of morality and imposes a system of norms on the minority

2. Bowers v. Hardwick: The State can intervene and make judgments about what you are doing in the privacy of your own bedroom. Sodomy is not a constitutionally protected right.

3. Lawrence v. Texas: Bowers overruled; the issue is a broader one concerning liberty & not simply the right to engage in sodomy. Protection of “privacy rights”

ii. Blameworthy conduct (not thought)

Purposes of Punishment

i. DETERRENCE: prevent future crime and criminal conduct; utilitarian theory.

1. Specific deterrence to individuals (through incapacitation and intimidation)

2. General deterrence for society (dissuasion)

3. Punishment must be proportional to the crime: punishment should be inflicted in the amount required (but not more than is required) to satisfy utilitarian crime prevention goals

4. Shortcomings:

a. Assumes rationality and (universal framework for) cost/benefit analysis

b. Potential for abuse

ii. RETRIBUTION: redress a wrong – defendant deserves punishment, make him pay

1. Satisfaction to victim and to society in general

2. Limiting principle

a. Punishment will fit crime (proportionality)

b. State, not individuals, will provide justice (no vigilantism)

3. Emphasis on OFFENSE v. individual, on PAST v. future crime

4. Shortcomings:

a. Does not address future crime

b. Potential for abuse

iii. INCAPACITATION: take offender out of circulation to prevent future offenses

1. Don’t have to make any assumptions about human behavior

2. Emphasis on FUTURE v. past crime

3. Shortcomings:

a. Narrow view of prevention:

i. Assumes offender will not be replaced by another on the “outside”

ii. Ignores violence within prison

b. Financial and Societal costs

iv. REHABILITATION: alter offender’s behavior to prevent future crime, utilitarian theory

1. Originally sought to reeducate prisoner through isolation (from corruptive sources) and discipline

2. Emphasis on INDIVIDUAL v. offense, on FUTURE v. past crime

3. Shortcomings:

a. No clear cut application of punishment

b. Financial cost

v. Mixed Theory of Punishment: In reality, no one theory of punishment stands on its own – our system is a combination of all four

vi. Punishment is not the only way to enforce the rule of law: shame, rewards, rehabilitative framework (programs/education), restorative framework

Process of criminal action

i. Despite sentencing guidelines, the power of DISCRETION offers a role for individualized punishment in our criminal justice system – allows consideration of individualized factors/circumstances (remorse, mental state, mental capacity, socio-economic background) allows for individualization

1. Prosecuted by the People/the State

a. Exercises discretion in what is charged or whether to charge at all. Can negotiate plea-bargain.

b. Discretion in whom to charge and in which forum to charge

2. Innocent until proven guilty: Standard of Proof requires that any doubt in the fact-finding process be settled in favor of defendant

3. Jury by your peers – required for all non-petty crimes; usually jury of 12 (6 is ok)

4. Judge – discretion in sentencing (esp. in jurisdictions where there are flexible or no sentencing guidelines)

5. Right to appeal

6. Executive of State has power to pardon

ii. There is a significant amount of discretion in the system, some legitimate, some not. Idea is that if there is more flexibility, you are more likely to achieve fairness and balance

DEFINING CULPABILITY

Substantive criminal law seeks to set limits on evidence that can be considered in determining guilt (or lack thereof) of the accused by defining elements of conduct for particular crimes

Formula of a crime:

Actus reus + mens rea + circumstances + causation (link between the act and the result) + results – defenses = culpability

*Not all crimes require all elements

Prosecution must be for:

(1) past (2) voluntary (3) wrongful (4) conduct (5) specified (6) in advance (7) by statute.

ACTUS REUS (culpable conduct)

The Criminal Act and Voluntariness

Courts make judgment calls on what actions are voluntary and what time frame to consider them in (narrow or broad) depending on what behavior they want to punish or not.

1. Proctor v. State, pg. 97

a. Reminder: Keeping a house with intent to sell alcohol

b. Rule: A lawful act coupled with unlawful intent is not a criminal act. Intent without an act is not punishable.

2. United States v. Maldonado, pg. 106

a. Reminder: Undercover agent delivers drugs at a hotel, leaves them in the room of the defendant, who leaves the room with him. Defendant held to have constructive possession once the drugs were left in his room.

b. Rule: Act and intent can be intertwined. Constructive possession (act) in this case included no conduct, but power to act + intent to act (can = act).

3. Martin v. State, pg. 114

a. Reminder: Police drag drunk man into street & arrest him for appearing in public & manifesting drunken state

b. Rule: Every element of an act requirement must be voluntary in order to establish culpability

c. Narrow time frame- if broadened, voluntary drunkenness might be enough to make him culpable

4. People v. Grant, pg. 115

a. Reminder: Guy runs out of bar and punches police officer, has seizure in jail, conduct attributed to automatic behavior (mental condition), but not insanity

b. Rule: Behavior caused by viable mental disorder is considered involuntary & not criminal (even if actor has capacity to understand behavior’s wrongfulness)

c. Behavior can be involuntary (acquittal) w/out insanity (civil commitment)

5. People v. Decina, pg. 121

a. Reminder: Man with epilepsy has seizure while driving and gets in car accident

b. Rule: To knowingly engage in conduct that will potentially cause harm due to special conditions, even if the harm is involuntary, is culpable behavior

6. The VOLUNTARINESS of an act proscribed by criminal law is an ELEMENT OF THE CRIME and the prosecution thus bears the burden of proving it.

Omissions

Sometimes there is a legal (distinct from moral) duty to act, and lack of action is culpable. Reasonable notice of duty to act must exist. Considered conduct.

1. Jones v. United States, pg. 102

a. Reminder: Young woman arranges for Jones to take care of her child, who neglects and lets baby die

b. Rule: People with a legally identified duty of care are culpable for acts of omission

2. Duty of care is legally attributed in 4 instances

a. Contractual relationship (implied or expressed)

b. Statutory duty

c. Status relationship (dependence or interdependence)

d. Voluntarily assuming care and so secluding the helpless person so as to prevent others from rendering aid

Status Offenses

1. Robinson v. California, pg. 121

a. Reminder: Police used track marks and signs of drug use to convict Robinson of being an addict, without any illegal act. CA statutes punishes drug addiction without act

b. Rule: Cannot punish a state of being without a criminal act. Propensity to commit crime is not criminal without an illegal act. Potential jurisdictional issue (was act a crime wherever it was committed?)

2. Powell v. Texas, pg. 124

a. Reminder: arrested for being drunk in public

b. Rule: While you cannot punish status alone, behavior resulting from that status is punishable

3. Johnson v. State, pg. 127

a. Reminder: Drug babies born, mother charged with delivery of drugs. Status issue of being pregnant and a drug user.

b. Rule: Social policy/legislative intent (providing care to infants) allows you to construe a statute more narrowly so as to limit punishment when status and act are blurred.

c. Rule of Lenity (lenience): Interpretation of ambiguous statutes should “be biased in favor of the accused”

Actus Reus Summary

1. Volitional conduct
2. Omission may be blameworthy if there is neglect of legal duty 3. Limits of punishment are constitutionally defined, no punishment of status

Limitations on Punishment of Actus Reus

Proportionality

1. Ewing v. California, pg. 71

a. Reminder: Steals $1200 worth of golf clubs while on parole, has previous convictions, convicted on Three Strikes Law

b. Rule: Proportionality has to do with legislative goals, not necessarily the crime itself. Since courts defer to state legislature’s policies in determining penological purposes for punishment, recidivism statutes such as Three Strikes are not considered cruel and unusual punishment.

2. Solem v. Helm, pg. 74

a. Reminder: Defendant committed a seventh non-violent felony by issuing a bad check for $100. Was sentenced to life without parole. Disproportionate punishment for such a non-passive crime.

b. Rule: Punishment is disproportionate to crime and violates 8th amendment ban on cruel and unusual punishment as determined by the following criteria of proportionality:

i. Gravity of the offense and harshness of the penalty

ii. Sentences applied to other criminals in the same jurisdiction

iii. Sentences applied to similar criminals in other jurisdictions

c. Note: Disproportionate sentences for petty offenses may be permissible if the statute provides for parole.

3. Harmelin v. Michigan, pg. 74

a. Reminder: one time offender sentenced to life in prison (harshest penalty available for any offense) for possession of 672 grams of cocaine

b. Rule: 8th amendment does not require strict proportionality between crime & punishment – punishment is not unconstitutional as long as it is not grossly disproportionate to the crime and it conforms to a penological theory of punishment. Deference is again given to legislative authority

c. Note: Even in the absence of parole, a seemingly disproportionate punishment might be permissible for a serious offense

Summary

Except capital cases, the proportionality principle exists to correct egregious errors made by lower court.

Otherwise, deference is given to legislative authority in determining and applying principles of punishment.

Legality

Prohibits retroactive application of criminal legislativity (liability for crimes) & prospectivity (breadth of punishments)

1. Keeler v. Superior Court, pg. 142

a. Reminder: Defendant intentionally killed fetus by beating 8 months pregnant ex-wife. Fetus would have had a 75-96% chance of survival had it been prematurely born. When statute was written, legislature did not intend a fetus to be considered a human being, regardless of medical knowledge today.

b. Rule: Criminal conduct cannot be punished unless there is a law against it, and this law must have existed before the crime was committed.

Specificity

1. Chicago v. Morales, pg. 144

a. Reminder: Gang Congregation Ordinance prohibits “criminal street gang members” from “loitering” with one another or with other persons in any public space

b. Rule: Ordinance violates 14th amendment Due Process protection by failing to give individuals fair notice of what behavior is prohibited (too vague), and because it has the potential to be arbitrarily enforced. People should be allowed to engage in conduct up to but not including criminal conduct.

i. Criminal statutes should be understandable to reasonable law-abiding persons and give “sufficient warning to men of common intelligence as to what conduct is unlawful”

ii. Criminal statutes shouldn’t delegate basic policy matters to police, judges, and juries for resolution on an ad hoc & subjective basis.

2. Papachristou v. Jacksonville, pg. 149

a. Reminder: Vagrancy law punishing “rogues and vagabonds,...common gamblers…”

b. Rule: A law cannot be so vague that it does not provide notice and cannot be administered in an even-handed fashion (allows for selective enforcement, may punish status, may criminalize otherwise legal behavior).

Actus Reus Review

Punishment must be for PAST, VOLUNTARY, CONDUCT, COMMITTED WITHIN A JURISDICTION, SPECIFIED IN ADVANCE, BY STATUTE

i. Past: Proctor (illegal intent not criminal)

ii. Voluntary: Martin (all acts must be voluntary), Grant (Mental condition renders criminal act involuntary), Decina (voluntarily engaging in potentially dangerous behavior), Johnson (labor/ingestion)

iii. Conduct: Proctor (intent, no act), Maldonado (constructive possession, intent and power to control enough), Jones (omission of legal duty), Robinson (status/propensity not enough), Powell (status + act enough), Johnson (2 Statuses)

iv. Committed within a Jurisdiction: Robinson (may not have been in CA)

v. Specified in advance: Keeler (Not unborn baby), Morales (vague, arbitrary), Papachristou (arbitrary)

vi. By Statute: Johnson (intend for babies?), Ewing (leg. decides purpose), Solem?, Harmelin (leg. decides purpose), Keeler (not unborn babies)

MENS REA and The Guilty Mind

Introduction

1. Blameworthy conduct usually requires a culpable state of mind

2. The criminal law generally conceives bad thoughts as (1) the desire to harm others or violate some other social duty; or (2) disregard for the welfare of others or for some other social duty

3. Common law – broadly defined as moral blameworthiness/culpability

4. Mens Rea is now more narrowly defined in the definition of an offense, and is an element of the crime. A person can be morally blameworthy and still lack the requisite elemental mens rea.

Strict Liability

1. People v. Dillard, pg. 160

a. Reminder: Appellant was caught riding a bicycle with a loaded rifle in its case - he did not know it was loaded

b. Rule: Regulatory offenses, especially those concerned with public welfare and safety, do not require intent to be an element of the offense

2. Statutorily enumerated, mere proof of actus reus is sufficient for a conviction regardless of the defendant’s state of mind at the time of commission

3. Punishment tends not to be too severe

4. MPC does not recognize strict liability offenses (except some “violations”)

Proof of Intent

1. Morisette v. U.S., pg. 166

a. Reminder: Junk dealer convicted of larceny for taking used bomb casings from an air force field and selling them. He knew what he was doing, but didn’t think it was a crime since he was not depriving anyone of them.

b. Rule: Certain kinds of criminal statutes should be read to require mens rea unless Congress states otherwise, especially if there is a history of an intent requirement in the common law (like for larceny). Presumption against strict liability absent a contrary legislative purpose.

2. Lambert v. California, pg. 175

a. Reminder: Woman fails to register in Los Angeles as a felon (for forgery) and is convicted for violating Municipal Code.

b. Rule: Strict liability is unconstitutional if the legislature is punishing the exercise of a fundamental right (in this case, freedom of movement), and if punishment is not predicated by some voluntary act or omission that would trigger notice. Criminal responsibility requires a choice – a voluntary act or omission where there was a duty, and an awareness of the consequences/culpability of that choice

c. Ignorance of the law is not an excuse except when there is “lack of fair notice” due to wholly passive conduct (an omission, duty to act based on status not activity, offense was malum prohibitum) where there was nothing to alert a reasonable person to the need to inquire into the law.

3. Courts distinguish between crimes that are:

a. malum in se: wrong in and of themselves-10 cmndmnt, commonlaw crimes

b. malum prohibitum: acts that society has chosen to prohibit but that are not wrong in and of themselves (regulatory offenses, public safety offenses)

Categories of Culpability

1. Regina v. Faulkner, pg. 180

a. Reminder: Guy trying to steal rum lights ship on fire

b. Rule: Mental state (intent) cannot be transferred from one criminal act to accidental results of another criminal act when those results were not readily foreseeable.

c. Culpability needs to be determined with some precision, distinguishing levels of culpability and treating each distinct aspect of a crime separately, with a different mental state attributed to each.

2. CATEGORIES OF CULPABILITY for non-strict liability offenses as expressed in Penal Code, and applied to Regina v. Faulkner:

Culpability	Act	Why?	Definition (general)
Purposely	L i g h t s m a t c h	To burn ship	Engaging in an action for the intentional purpose of causing particular harm. SPECIFIC INTENT
Knowingly		To help steal rum, knowing that almost certainly the match would cause a dangerous fire	Engaging in an act not to cause a particular harm, but knowing almost certainly that that harm would occur. Willful blindness can substitute knowledge. SPECIFIC INTENT
Recklessly		To help steal rum, knowing that it was probable that the match would cause a dangerous fire	Actor shows a conscious disregard for a substantial and unjustified risk. They are AWARE of the risk – subjective fault. GENERAL INTENT
Negligently		To help steal rum, and though he did not realize the risk, he should have known better, a reasonable person would have	A reasonable person would have been able to recognize the substantial and unjustified risk, even though the actor was NOT AWARE of it. Gross deviation from the standard of care of a reasonable person – objective standard. GENERAL INTENT
Strict Liability		Irrelevant	MPC doesn’t recognize – strict liability statutes only require proof of actus reus, no mens rea

NB: Penal code is not law, though states rely on it for guidance.
NB: Language of statute keys you in on the level of culpability required for the different aspects of the offense

Specific vs. General Intent

1. Specific Intent offense is one in which the definition of the crime (1) includes an intent or purpose to do some future act, or to achieve some further consequence (i.e., a special motive for the conduct), beyond the conduct or result that constitutes the actus reus of the offense; or (2) provides that the defendant must be aware of a statutory attendant circumstance, e.g., “receiving stolen property with knowledge that it is stolen.” Exp – larceny

2. General Intent is an offense that does not contain one of the above features – definition of crime does not contain any specific intent beyond that which relates to the actus reus itself. Exp – battery

Mistake of Fact

1. Regina v. Prince, pg. 197

a. Reminder: Defendant is charged for taking a 16-year-old girl without her father’s permission. He claims to believe that she was 18 – mistake of fact with respect to age

b. Rule: Strict liability offenses do not require culpable mental state, and policy decisions can determine what elements of offense are strict liability.

2. State v. Guest, pg. 208

a. Reminder: Guest had sex with 15-yr-old, reasonably believing her to be 16

b. Rule: Mistake of fact for general intent crimes can be a defense when mistake is shown to be reasonable, and it is a non-strict liability offence (an aberration in statutory rape law, which are generally strict liability)

c. General Intent Offenses

i. Reasonableness standard above is the ordinary approach

ii. Moral-Wrong doctrine – no exculpation for mistakes where, if the facts had been as the defendant believed them to be, his conduct would still be immoral

iii. Legal-Wrong doctrine – no exculpation if conduct would still be illegal – guilty of higher offense

d. Specific Intent Offenses: not guilty if mistake of fact negates the specific-intent portion of the crime

Mistake of Law

NOT generally a defense

1. United States v. Baker, pg. 218

a. Reminder: Guy on street sells watches he knows are counterfeit, but didn’t know it was a criminal offense to sell them (thought it was a lesser offense)

b. Mistake of law is NOT A DEFENSE when the requisite mens rea in the statute is established (in this case, the statute simply required he know they were counterfeit and that he was intentionally selling them)

c. Note: Different-law mistake, whether reasonable or unreasonable, IS a defense for specific intent crimes where the mistake negates specific intent element, but IS NOT a defense for general intent or strict liability offenses.

2. Commonwealth v. Twitchell

a. Reminder: Practicing Christian Scientist parents fail to seek medical help for their infant son, who dies as a result. They consult with church official regarding their potential liability before the child’s death, and rely on a potentially misleading opinion by Attorney General as relied on in a Christian Science publication.

b. Rule: Mistake of law, though rarely a defense can be considered a defense when there is reasonable reliance on an official statement of the law (in a statute, judicial decision, or interpretation by official with capacity to do so and doing so in an official manner) even if erroneous, or when there is not fair notice of the law and breaking it is the result of completely passive conduct (Lambert v. California – failed to register as a felon).

3. Mistake of fact is accepted as a defense because we don’t want to punish someone without the requisite mental state, & we don’t want State overstepping boundaries. Though the same arguments can be made for mistake of law, we live in a society where we agree to abide by law, and we want to avoid people claiming ignorance as an excuse for their crimes. We expect people to inform themselves of the law.

Capacity for Mens Rea

1. Hendershott v. the People, pg. 231 (Colorado)

a. Reminder: Defendant waits for ex-girlfriend in her room to assault her

b. Rule: Evidence of mental condition can be a defense for mens rea element of a general intent crime – otherwise, it would negate the due process presumption of innocence. Most states, however, allow mental impairment evidence for specific, but not general, intent crimes.

2. State v. Cameron, pg. 236

a. Reminder: Drunk girl attacks guy with a broken bottle while he is playing cards in an abandoned lot. She has shared about a pint of wine w/ others.

b. Rule: Voluntary intoxication is only a defense when a person is so drunk they cannot form the requisite purposeful or knowing intent (mens rea). Very high standard! Can excuse mens rea, but does not excuse the conduct

c. In general, voluntary intoxication can be a defense against purposeful or knowing conduct (specific intent crimes), but not against reckless or negligent conduct (general intent crimes). In most states, voluntary drunkenness is not a defense at all (this crime takes place in New Jersey)

Summary

Though evidence of mental condition does not excuse criminal conduct (actus reus), it can negate the mens rea element of specific intent crimes.

HOMICIDE

Malice Aforethought = Pursuit of a Malicious End (Murder / Aggravated Assault, or another felony: Burglary, Arson, Rape, Robbery, & Kidnapping)

Evidence Showing	Possible Level of Homicide	If evidence shows
Intentional Killing	1st degree Murder	Malice Aforethought + Premeditation & Deliberation
	2nd degree Murder	Malice Aforethought + Unprovoked (or Once Calmed)
	Voluntary Manslaughter	Malice Aforethought + Provocation & Heat of Passion
Unintentional Killing	1st degree Murder	Intent to Commit a Felony (a kind of Malice Aforethought)
	2nd degree Murder	Implied Malice (extreme recklessness, depraved heart, or intent to do bodily harm)
	Involuntary Manslaughter	Gross negligence or recklessness (deviation from the standard of care); Intent to commit an inherently dangerous misdemeanor

MANSLAUGHTER is an unlawful killing of a human being by another human being WITHOUT malice aforethought
MURDER is the killing of a human being by another human being WITH malice aforethought

INVOLUNTARY MANSLAUGHTER

i. Elements (Kansas statute, pg 293)

1. Actus Reus: Unintentional killing

2. Circumstances: In the commission, or attempt to commit, or flight from (a) a felony other than an inherently dangerous felony enacted for the protection of human life, (b) misdemeanor enacted for the protection of human life, (c) a lawful act in an unlawful manner

3. Mens Rea: Recklessness, gross negligence, rarely ordinary negligence (can sometimes be replaced by the commission of a misdemeanor)

4. Result: death

ii. State v. Williams, pg. 370 (WA 1971)

1. Reminder: Native American parents did not take child to doctor for fear the child would be taken away, and in ignorance of the severity of the condition; child dies as a result. Requisite mens rea is ordinary negligence (not gross negligence)

2. Rule: If requisite mental state is simple negligence, only a reasonable standard of care (risk of death need not be known as it would under a standard of gross negligence or recklessness) is required and failure to provide medical care where reasonable parents would do so is involuntary manslaughter

3. Note: Cultural issues arise. Gross negligence/recklessness is typical mens rea; simple negligence tends to be for acts that have greater risk of harm, or risk of a greater harm

iii. Porter v. State, FL pg. 379 - Vehicular manslaughter (subsection of negligent homicide)

1. Reminder: Appellant missed a stop sign at an unfamiliar intersection and killed another driver going 60 mph through the intersection

2. Rule: Where there is no evidence of gross negligence (and this is the requisite mental state for the crime) there is no involuntary manslaughter. Negligence exhibited here is not out of the ordinary – it can happen to any of us

iv. U.S. v. Walker – Misdemeanor Manslaughter (subsection of negligent homicide)

1. Reminder: Man dropped a pistol he was carrying without a license; it fell in such a way as to trigger it and kill someone

2. Rule: If death results from the commission of a misdemeanor, there is criminal liability. Mens rea element is replaced by misdemeanor.

3. Note: Misdemeanor manslaughter offers a short cut in proof: no need to show any mental state. Misdemeanor occurred, and a death resulted. No mental state connecting death and misdemeanor, just a causal link.

Normally: actus reus + mens rea + result

Here: act + misdemeanor + death

4. Generally limited to misdemeanors that are malum in se rather than malum prohibitum

VOLUNTARY MANSLAUGHTER

Adequate provocation resulting in passion

Provoked Intentional Homicide

(Kansas statute, pg 293)

1. Mens Rea is purposeful or knowing

2. Began with very narrow, male-oriented concepts that have broadened over time to include women, to include psychiatric evidence and cultural considerations in helping us determine what behavior is reasonable and what is not reasonable, and giving jury latitude in considering individual circumstances

3. Killing occurs while defendant is in “heat of passion”

a. Immediacy is an issue. Defendant must have still been impassioned. No “cooling off period”

b. Must be the result of adequate provocation, to be determined by jury using objective, “reasonable person” standard

c. Passion need not be anger, can be any violent or intense emotion such as fear, desperation, jealousy; anything BUT revenge

d. There must be a causal link between provocation, passion, & homicide

e. Victim need not be the provoker

4. Self-Defense

a. In perfect self-defense (In People v. Walker, if he had killed victim when he threw the brick), defendant is excused

b. In imperfect self-defense (the actual Walker case, where he takes the extra step and kills victim by cutting his throat with his own knife after he is knocked unconscious), crime is mitigated to voluntary manslaughter, but not excused.

Elements of Provocation

1. Objective: Adequacy of provocation – “reasonable person” standard

a. Jury must decide “reasonableness” of response to provocation. Ambiguous instructions allow for consideration of cultural, gender, individual factors.

b. Don’t want the jury to partake in purely subjective analysis, however, and the “reasonable person” standard attempts to provide some objectivity (based on community standards) for reasonable provocation

2. Subjective: Existence of provocation – was defendant in fact provoked?

3. At least 14 states have adopted expanded, broader notions of provocation, modeled after the MPC Extreme Mental or Emotional Disturbance (EMED) construct for reducing murder to voluntary manslaughter

a. “Extreme mental or emotional disturbance” for which there is “reasonable explanation or excuse…determined from the viewpoint of a person in the defendant’s situation as he believes them to be.”

b. Broader than common law provocation defense:

i. Specific provocative act not required

ii. Provocation need not involve “an injury, affront, or other provocative act perpetuated upon defendant by decedent”

iii. Provocation need not fall within fixed category of provocations

iv. Words alone CAN warrant a manslaughter instruction

v. No rigid cooling-off rule

People v. Walker

(IL), pg. 322

1. Reminder: Defendant attacked by victim with knife, corners him, gets cut, knocks him unconscious with a brick, says “I’m going to cut your throat” and does

2. Rule: If a “reasonable person” could have been similarly impassioned when provoked, and there is no “cooling off” period between the provocation and the killing, then the homicide is considered voluntary manslaughter, not murder

Rationale for Mitigation

1. Partial Justification: seeks not to deter all action in the face of mitigation (some action maybe rational), only excessively violent action

2. Partial Excuse: passionate actions less voluntary, therefore less culpable.

Rowland v. State

(MS), pg. 331 (1904)

1. Reminder: Man finds wife with lover, attempts to kill lover and kills wife instead

2. Rule: Finding a spouse in the act of adultery is sufficient provocation to lead one to act under passion, and so reduce a charge from murder to manslaughter. Adequate provocation is measured by a “reasonable person” standard.

3. Note: “Mere words alone” tend to be insufficient provocation, though a judge can make the determination whether or not a case of verbal provocation is extreme enough to be allowed as evidence. A picture, however, may be sufficient

People v. Berry

(CA), pg. 339

1. Reminder: Defendant married victim, three days later she goes back to Israel. Comes back saying she fell in love with a man there, had sex with him. Taunts her husband by telling him about this man, and at the same time sexually arousing him. Continues for two weeks, many arguments, he chokes her to death after one

2. Rule: Provocation need not be a single event, nor is passion limited to anger; continuous conduct culminating in a particular event may be sufficient provocation to arouse passion so as to lead a reasonable person to kill (any passion but revenge is admissible)

3. Note: Many states have determined that expert testimony (like psychologists) are important in shedding light on the accused’s state of mind. Yet, it is important to understand that this testimony is not without rebuttal (and it is the duty of the prosecution to refute potentially biased testimony). Experts may be limited in knowledge, yet what they say is cloaked with authority.

People v. Wu

(CA), pg. 350

1. Reminder: Chinese woman strangles son (and attempts suicide) as an act of compassion during an intense emotional state of desperation. Jury instructions failed to account for her possible “unconscious state” during the killing, as well as for cultural factors affecting her mental state.

2. Rule: Jury ought to have been instructed as to reasonableness of her conduct in light of her cultural beliefs. Provocative responses are often culturally, gender driven. Also, jury instructions needed to address whether she was acting in a conscious or in a “fugue” state. It is a question for the jury to decide whether the facts point to murder or manslaughter (based on adequate provocation).

SUMMARY:
Involuntary: Unintentional killing with recklessness, gross negligence, or sometimes simple negligence. For misdemeanor manslaughter, only requires intent to commit misdemeanor with causal link to killing
Voluntary: Intentional killing with purposeful of knowing state of mind, but having adequate provocation to generate heat of passion which negates intentional design and downgrades offense from murder to manslaughter.

MURDER

Murder = Unprovoked (or Calm) Act + Expressed/Implied Malice Aforethought + Resulting Death

Malice Aforethought Defined

1. Malice can be expressed (deliberate intention to take a human life), or

2. Malice can be implied (extremely reckless disregard for human life revealing an abandoned and malignant heart, or intent to cause grievous bodily injury with death resulting, though not intended)

3. Malice is key to murder charge – usually established based on actions of defendant, circumstances/nature of killing and motivation, trouble required to achieve the killing.

4. 2nd Degree Murder: Expressed Malice (intent to kill) or Implied Malice (extreme recklessness); No difference before law.

Expressed → Intent to Kill

1. Francis v. Franklin, pg. 307

a. Reminder: Prisoner escapes while at dentist, tries to find a car, doesn’t hurt anyone he encounters but two shots fired from his gun go through the door of a homeowner and kill him. Jury was inaccurately instructed to presume that a person intends the natural consequences of their actions unless the defense proves otherwise – wrongly shifts burden of proof to defense.

b. Rule: In order to establish the mens rea for Purposeful or Knowing Homicide (Murder), the prosecution must establish that the defendant engaged in conduct with the conscious objective of causing the death of another (or being practically certain that death would result). Jury cannot presume intent simply from the act.

2. It is misleading to speak about a person intending the natural consequences of their actions

3. Transferred intent – if you intend to kill someone but accidentally kill someone else, your intent is transferred to that murder.

Implied → Extreme Recklessness

1. What are characteristics of extreme recklessness?

a. Generally something beyond gross negligence; not precise, though must qualify as “an extreme indifference to human life,” or an “abandoned and malignant heart.”

b. Lack of justification for the act – no social utility (Malone, Berry, Davidson)

c. Conscious disregard for a substantial risk (awareness of the risk)

d. Pattern of conduct (Protopappas)

e. Particular characteristics of the individual may be relevant (Dorazio)

2. Commonwealth v. Malone pg. 386

a. Reminder: Boys playing Russian Poker

b. Rule: Intent to kill under an implied malice theory is not limited to intentional and particular design, but also in the sense of a wicked disposition, as evidenced by acts demonstrating an extreme indifference to human life.

3. People v. Protopappas pg. 387

a. Reminder: Dentist overdosed patients with anesthesia

b. Rule: Intent to kill does not need to be established if extreme recklessness can be shown. Behavior not captured under intent to kill can be captured under extreme recklessness – questions of fact that can be considered by the jury: pattern of conduct, conscious awareness of the risk, base, anti-social purpose

4. Berry v. Superior Court pg. 388

a. Reminder: Trained fighting dog (pit bull) kills 2-year-old neighbor

b. Rule: If a defendant knows that he is engaging in risky conduct that violates a law, he need not be aware of the risk of death in order to be guilty of 2nd degree murder. Like misdemeanor manslaughter, but elevated to murder. Fact driven determination.

5. State v. Davidson pg. 388

a. Reminder: Rottweilers chased boy to bus stop and mauled him to death. Dogs had escaped many times before.

b. Rule: Extreme indifference standard is met when a person fails to prevent a risk that is reasonably foreseeable. Also, indifference to risk constitutes extreme recklessness, not just negligence.

6. Commonwealth v. Dorazio (PA), pg. 389

a. Reminder: Former heavyweight boxer beat up a member of a rival union, punching him repeatedly and causing his death due to hemorrhaging from a fractured skull

b. Rule: Under the common law definition of murder (but not in the penal code), intent to do serious bodily harm can substitute intent to kill, and this intent to do seriously bodily harm does not require intent to do permanent or fatal injury, but is limited to cases where the assailant uses a deadly weapon. Focus is on particular individual and circumstances.

7. People v. Watson (CA), pg. 390

a. Reminder: Defendant got drunk, drove, and collided with a car at 70 mph at a 35 mph intersection (after having slammed on his brakes and after almost colliding with another car earlier), killing two people. It was 1 am.

b. Rule: Drunk drivers who cause fatal accidents can be charged with 2nd degree murder when evidence supports a finding of “implied malice” due to defendant’s awareness of the risk he posed to other human lives.

AGGRAVATED MURDER

First-Degree Murder

Premeditation & Deliberation

State must prove additional elements of premeditation (planning) and deliberation (turning it over in the mind).

a. Evidence of Planning

i. Nature of relationship between decedent and accused

ii. Nature of killing itself

iii. Motive

iv. Necessity/evidence of planning

v. Observational evidence of prior hostility

b. Evidence of Consideration

i. Time lapse that would suggest thought (length irrelevant)

ii. An opportunity to do something else – indicating deliberate choice

iii. Evidence of a chance for reconsideration, e.g. time lapse.

c. U.S. v. Watson (DC), pg. 312

i. Reminder: Defendant shot police who was pursuing him. Officer threatened to shoot, defendant attacked, the two wrestled, defendant gained control of gun and shot officer.

ii. Rule: Where a jury can reasonably be persuaded (not necessarily compelled) from the evidence presented (either direct or circumstantial) that a defendant gave thought to and made a definite decision to kill not under impulse or heat of passion, a charge of first-degree murder will be upheld.

iii. Note: Arguable element here was deliberation. Though some appreciable time must elapse between the formation of the design and the actual killing, that time need not be long. Essential factors:

1. Planning

2. Deliberation

3. Not an impulsive act, result of a fully formed purpose

4. No heat of passion

iv. Some courts use the “cold-blood” standard

d. Austin v. United States, pg. 317

i. 1st degree murder generally committed in cold blood, not passion.

ii. Key, however, is that perpetrator gives further thought, and turns over the design in his mind.

iii. Even if design was conceived in passion, there must be an appreciable time after it was conceived where the actor engaged in premeditation and deliberation, and not mere persistence of the initial impulse of passion.

e. Mercy Killing (CA) pg. 320

i. Older woman strangles husband who is suffering from terminal illness and is in pain.

ii. State may have had her for first-degree murder - but only pursued manslaughter. (Prosecutorial discretion)

1. Waited till he was asleep – premeditation

2. Actively strangled him – deliberation

3. Intended to kill – expressed malice

iii. Other factors can be considered in sentencing.

f. MPC doesn’t recognize degrees of murder

g. Commonwealth v. Gould (MA), pg. 321

i. Reminder: Defendant was a diagnosed paranoid schizophrenic who stabbed his girlfriend to death for being “impure.”

ii. Rule: Though a person may be sane enough to commit intentional murder, understanding the wrongfulness of his acts, he may not be sane enough to premeditate/deliberate and therefore cannot be guilty of first-degree murder. Evidence of mental impairment can be used to negate a part of the requisite mental state.

iii. Some states permit relaxation of mental state: If have 2nd degree murder elements + use of bombs, torture, poison, lying in wait, don’t have to show P&D. Actions are proxy for mental state.

1st degree Murder, Premeditation SUMMARY:
- Proof of premeditation and deliberation (can replaced in some jurisdictions with evidence of use of poison, explosives, torture, lying in wait) as well as expressed malice and result of death
- Must have requisite mental capability to engage in premeditation and deliberation
- Time is important, but length of time is not determinative: distinction between impulsive murder (2nd degree) and premeditation and deliberation (1st degree).

Felony Murder

Same charge as 1st degree murder

a. A felony murder rule may or may not employ a strict liability standard –reduces requisite level of culpability (most rules don’t even require culpable mental state) for a murder charge when killing occurs in the course of an enumerated dangerous felony (rape, arson, burglary, robbery)

b. Elements

i. First, defendant must be found guilty of the predicate felony

ii. If guilt is established, the prosecution must then establish a causal link between the felony and the killing

c. Deterrence and Retributive theories of punishment - meant to deter commission of felony or encourage people to commit felonies in a “safe” manner, and punish those violent enough to engage in the felony

d. State v. Martin (NJ), pg. 392

i. Reminder: Drunk man at a party sets apartment on fire and woman dies from asphyxiation. He claims he set ball of garbage on fire, didn’t mean to set apartment on fire (negligent or reckless), but state claims it was deliberate arson (purposeful or knowing). Yet, Felony (arson) + causal link (death due to fire) = felony murder

ii. Rule: Felony murder conviction reversed due to faulty jury instructions. A defendant is liable for felony murder only if the death is not too remote, accidental in its occurrence, or too dependant on another’s volitional act to have a just bearing on the defendant’s culpability. Death not foreseeable, no felony murder.

iii. Note: Martin is the PREVAILING TREND in felony murder doctrines – strict liability with affirmative defenses. Some AFFIRMATIVE DEFENSES for accomplice liability in NJ statute: Didn’t directly commit fatal act, no reason to know accomplices would kill, not armed with deadly weapon or think anyone else was.

e. People v. Stamp (CA 1969), pg. 404

i. Reminder: Armed robbers threaten but do not physically harm employees in office. After they leave, an older, obese man with a history of heart trouble has a heart attack and dies from the stress.

ii. Rule: Even if there is an intervening act, the commission of a felony inherently dangerous to life that sets in operation factors that, in natural and continuous sequence, are the proximate cause of death, is liable under felony murder. “But for” (analysis) the robbery there wouldn’t have been a death. Foreseeablity not a consideration. If not for felony murder, simply armed robbery.

f. People v. Hickman (IL), pg. 406

i. Reminder: Police officer accidentally shot and killed another police officer, mistaking him for one of the defendants who was escaping after being caught in an unarmed robbery.

ii. Rule: He whose act causes – directly or indirectly – the death of an innocent victim is guilty of felony-murder. “But for” analysis.

iii. Note: Court broadens the meaning of the felony murder statute to incorporate legislative intent. Probably a RETRIBUTIVE theory.

g. People v. Washington (CA 1965), pg. 408

i. Reminder: During a robbery, victim kills one of the robbers & shoots defendant. Defendant charged for felony murder. Reversed

ii. Rule: A conviction of felony murder requires that the defendant or his coconspirator(s) must commit the actual killing.

iii. Policy Considerations: (1) Want to hold individuals liable for their own actions, not actions of their victims, (2) Notice of crime – killing wasn’t part of criminal design, no malice aforethought

h. People v. Cabaltero (1939), pg. 410

i. Reminder: While robbing a farm, one robber shot and killed another who strayed from the plan. Can a third robber from the group be guilty of felony murder?

ii. Rule: “But for” analysis. Felony murder rule applies to anyone involved in the commission of the felony (even if the killing did not occur in furtherance of the felony), “irrespective of the status of the person killed and regardless of whether the killing is accidental or intentional.”

iii. Note: Distinguished from Ferlin, where co-conspirator kills himself in the commission of the felony (arson)

i. People v. Gladman (NY), pg. 411

i. Reminder: Defendant robs deli, escapes, & hides under a car at a bowling alley. Police are called – officer finds him & defendant shoots. He leaves scene, officer dies, defendant is later caught.

ii. Rule: If defendant kills while in immediate flight from a felony, there is a sufficient causal link to attribute felony murder (intent comes from felony, not actual killing). Whether or not defendant was in flight is a factual inquiry best determined by the jury.

iii. How to determine whether defendant is still “in flight”?

1. Distance separating the location of the felony and killing

2. Reaching “temporary safety”

3. Interval of time passed between the two acts

4. In possession of loot

5. Police in close pursuit

Felony Murder SUMMARY

Felony Murder Found	Felony Murder NOT Found
1. D and Co-D commit armed robbery V has heart attack and dies (Stamp)	1. Co-D commits arson, kills self (Ferlin)
2. D and Co-D commit burglary Cop kills cop (Hickman)	2. D and Co-D commit armed robbery V kills Co-D (Washington)
3. D and Co-D commit felony, V kills innocent (Payne)	3. D and Co-D commit felony, Cop kills V
4. Co-D kills Co-D during armed robbery (Cabaltero)
5. D robs, kills cop during escape (Gladman)

THEORIES OF FELONY MURDER

1. Proximate Cause Theory: The dangerous felony creates the volatile situation and defendants are liable for all deaths caused by the felony. It doesn’t matter who the killer is, the felony is the proximate cause of the death. (all cases)

2. Protected Person Theory: Liability only extends to innocent people killed during the felony (doesn’t matter if felons get killed, doesn’t matter who the killer is as long as innocent is killed) (case: 1, 2, 3, 5, 8)

3. AGENCY THEORY: Only have felony murder when the action is in perpetration of a felony, it does not apply when a non-defendant does the killing, and the defendant is only liable for her own actions and those of accomplices (case: 1, 4, 5, 6). Still have to consider if killing is in furtherance of the felony.

4. Most jurisdictions go with the agency theory, some with proximate cause. Most jurisdictions attempt to LIMIT SCOPE OF FELONY MURDER liability:

a. Felony must be inherently dangerous (most)

b. In furtherance of criminal design

c. Limited to actions of the defendant and accomplices

d. Killing of someone other than someone involved in the felony

e. Foreseeablitiy requirements

f. Felon must be armed

NB - United States is virtually the only country that still allows a person to be charged with the highest possible penalty for an accidental homicide. KY, Michigan, and HI are the only states to abolish the felony murder rule.

Captial Murder and the Death Penalty

Policy Considerations

a. Furman v. Georgia: 1972. Death penalty struck down as unconstitutional.

i. Violated “evolving standards of decency”

ii. Served no legitimate deterrent or retributive purpose

iii. Sentencing procedures were constitutionally defective

1. Discriminatory

2. Arbitrarily applied

b. Gregg v. Georgia: 1976. Death penalty upheld. Main concepts: (1) Separate penalty phase, (2) Rigorous appellate review, (3) Discretion of jury must be guided to prevent inconsistent application.

c. Woodson: 1976. Invalidated automatic imposition of the death penalty.

d. Coker v. Georgia: 1977. Death penalty for rape crimes violates 8th amendment

e. Limited to 1st degree murder + aggravating factors

f. Bifurcated Trial (burden of proof is on Government in both phases):

i. Guilt phase: establish killing, malice, premeditation & deliberation (or felony murder). Must be convicted of 1st degree murder unanimously before moving to penalty phase. Appellate review at this phase raises issues of sufficiency of the evidence and jury instructions.

ii. Penalty phase: life, death, or life without parole. Right to JURY.

1. Jury must unanimously agree on which aggravating factors exist beyond a reasonable doubt. At least one must be found.

2. Must consider existence of mitigating factors based on preponderance of evidence. Do not have to be unanimous about which mitigating factors to consider. Balancing process is not pure counting.

3. Do aggravating factors outweigh mitigating factors (unanimous)? Don’t have to agree on how aggravating/mitigating factors balance

iii. Jury must be “death qualified” – willing to put someone to death

1. Peremptory challenges (limited #)--to take strike a potential juror

2. Cause strikes--do not count against peremptory challenges, used when an individual indicates they could not give a fair result

Aggravating Circumstances

a. Enumerated in statutes

i. Limit imposition of death penalty to narrow class of cases

ii. Limit the unfettered discretion of juries (Gregg)

iii. States have anywhere between 2 – 20 factors designed to distinguish 1st degree murder from capital murder. Typically focus on the nature of the crime – “(especially) heinous, atrocious, or cruel” (unconstitutionally vague in CA)

iv. Tend to reflect elements of crime, reinforces what we think is bad

b. Defendant has a right to introduce evidence about the defendant’s character

c. Olsen v. State (WY), pg. 436

i. Reminder: Defendant shot three victims in the back of the head while in commission of armed robbery.

ii. Rule: To impose the death penalty, each juror must conclude that aggravating circumstances are so substantial in comparison to mitigating circumstances that death is warranted.

iii. Notes: Defendant found guilty of 1st degree murder under both felony murder and premeditation theory. Issues raised re aggravating factors:

1. Risk of death to two or more persons--Rejects. Court says it has to be people who weren't the actual victims, because then every multiple murder would be eligible. Only applies to extra risk creation endangering non-victims.

2. Purpose of avoiding arrest--Upheld because that was his sole admitted reason for shooting the victims, to prevent his identification.

3. Atrocious/cruel--Rejects. Can't consider murder to automatically meet this standard unless there's torture or protracted killing.

4. Killing was done in course of independent robbery--Upheld. Court says that because defendant was also convicted under premeditated murder, the felony can be an aggravating factor. State won’t double count--only considers felony once. Federal con law, on the other hand, would permit this prosecutorial bonus of counting felony for 1st degree murder conviction + aggr. Factor

5. When aggravating factors change (in Olsen, two of the factors were struck down) the jury needs to reweigh the new factors against the mitigating factors to determine sentence.

d. Some examples of aggravating factors:

i. “atrocious or cruel”

ii. prior convictions (can only be brought in at Penalty phase; double jeopardy if brought in at Guilt phase).

iii. pecuniary gain (murder for hire, obtaining insurance proceeds, or inheritances)

iv. avoiding or preventing arrest

v. felony murder

vi. murder was random, or cold and calculated

vii. Non-Statutory aggravating factors – ok if there’s at least 1 statutory aggravating factor

viii. Victim Impact statements – impact of loss on family/community. Individualize victim as well as defendant (through mitigating factors)

Mitigating Circumstances

a. Lockett v. Ohio, pg. 453

i. Reminder: Getaway driver’s accomplices killed robbery victim. Tried to offer as a mitigating circumstance the fact that she did not cause or intend the death. Not a listed mitigating factor.

ii. Rule: Court has to consider any mitigating factor offered by defense, not only those enumerated in the statutory list.

b. Often enumerated in capital murder statute, but not limited to what is enumerated

i. Tension btwn trying to impose some degree of predictability and even-handedness thru rules while balancing concerns of fairness requiring individualization and not always compatible w/ rule-like precision.

ii. Defendant is allowed to introduce a wide variety of factors to introduce reasonable doubt, including evidence not allowed in at guilt phase

c. Some examples:

i. Absence of criminal record

ii. Extreme emotional or mental disturbance

iii. Role in crime

iv. Age, character, background of defendant

d. Mitigating evidence has to be about defendant in particular, not some more general factor that could sway a jury to mercy – cannot introduce policy concerns

e. Prosecutor can’t fashion aggr. circumstance by reworking mitigating circumstance that have been identified as mitigating by the legislature in enumerated mitigators.

Categorical Limits

a. MENS REA - Tison v. Arizona, pg. 459

i. Reminder: Family helps two prisoners escape from prison; in course of escape, prisoners kill hostages. Are other accomplices responsible for the murder because of participation in the felony?

ii. Rule: The death penalty can be imposed for a felony murder conviction when the defendant is a major participator in the felony committed and his mens rea is at least a reckless indifference to human life (with regards to the criminal activity).

iii. Note: Where a capital charge rests on felony murder rather than premeditation, the state must prove the additional mens rea requirement of reckless indifference to impose the death penalty

iv. Distinguished from Enmund v. Florida, in which Δ’s participation in the felony murder was minimal (getaway driver). No intent to kill+ (rarely occurs in robbery), minor participation = no death penalty.

b. MENTAL CAPACITY - Atkins v. Virginia, pg. 464

i. Reminder: Mentally retarded defendant convicted of abduction, armed robbery and capital murder while his partner in crime pled guilty & provided evidence against him to avoid death penalty.

ii. Rule: No death penalty for mentally retarded defendants, who cannot act with the same level of moral culpability & are less capable of making a showing of mitigation. Penological purposes don’t apply. Definition of mental retardation is left up to each state.

iii. Note: Consistent with modern trend in states and around world. Must be a categorical limit to avoid use as an aggravating factor.

c. AGE – Thompson v. OK (1988). No execution of people 15 and under. Stanford v. KY (1989) – okay to execute 16 & 17 year old. Roper v. Simmons (2005). Executing someone younger than 18 at time of crime is unconstitutional. Brain research suggests adolescents are biologically incapable of acting on knowledge of right vs. wrong

d. CAPRICIOUS APPLICATION - McCleskey v. Kemp, pg. 472

i. Reminder: Black man killed white officer. Baldus study indicating racial bias in imposition of death penalty was introduced as evidence

ii. Rule: Evidence must show that capital punishment would more likely than not be imposed in a purposefully discriminatory manner on the defendant in particular.

iii. Court affirms importance of jury discretion, & its reluctance to read invidiousness into actions unless proven. Argument more app. for Leg.

e. Counsel in Capital Cases: Death penalty is applied unfairly to defendants who have the worst lawyers. System is set up to encourage judges to choose inexperienced, inept lawyers. Resources are not allocated substantially enough to support adequate defenses (no money for investigations, tests, support staff).

ATTRIBUTION OF CRIMINALITY

ATTEMPT

An Inchoate, incomplete, or imperfect crime

Punishment

1. Two philosophical questions: Why punish attempt at all? And why punish it less?

2. Attempts are punished somewhat LESS than completed crimes

a. In most states, either a fraction of the punishment for completed crime, or the next lowest grade where applicable

b. MPC punishes both the same, except lowers 1st deg. felonies to 2nd degree.

c. Why? Incentive to not go through with crime

3. Though intent to cause harm is core of offense, limit punishment of thoughts by requiring substantial step manifesting bad thought. Intent + Overt Act (unequivocal step). Preparation not enough!

4. Rationale: (1) deterrence, (2) punish those who are morally indistinguishable from those who have completed the crime, (3) provide basis for law enforcement to intervene before completion of the crime

Mens Rea/Actus Reus of Attempt

1. People v. Murray (1859), pg. 642

a. Reminder: Defendant charged with attempt to contract an incestuous marriage by declaring his intent to contract the marriage, eloping with his niece, and requesting a magistrate.

b. Rule: Mere preparation not enough. Line btwn preparation & attempt depends on test adopted by jurisdiction. Here, point of no return hasn’t been reached. Attempt contemplated by statute must be manifested by acts which would end in consummation of the offense "but for" the intervention of circumstances independent of the will (or moral credit) of the party.

2. Act must be a substantial step (strongly corroborating the criminal purpose) designed to accomplish a criminal result. MPC drafted several tests (rejected): Pg. 644.

a. Physical Proximity: act is “proximate” to the completed crime

b. Dangerous Proximity (Rizzo test): greater the gravity & probability of offense, and nearer to act of crime, stronger case for attempt

c. Indispensible element: defendant has control of indispensable aspect of crim plan

d. Probable Desistance: point where ordinary and natural course of events lead to consummation of crime

e. Abnormal Step: act beyond where a normal citizen would turn back

f. Unequivocality: conduct manifests intent to commit crime

g. Substantial Step: requires criminal purpose + act that is a substantial step in a course of conduct designed to accomplish the criminal result. To be substantial, the step must strongly corroborate the criminal purpose. Combines proximity and unequivocality that strongly corroborates. Many states use this standard.

h. Most jurisdictions follow mix of Substantial Step and Dangerous Proximity

3. McQuirter v. State (AL 1953), pg. 645

a. Reminder: Black man convicted of attempted rape for following white woman up and down block

b. Rule: Jury may take “social conditions and customs” such as racial differences into account in determining purpose or intent.

c. MENS REA of attempt is Purposeful – specific INTENT to commit completed crime, even if mens rea for substantive crime is a general intent (negligent, reckless) or strict liability crime

d. ACTUS REUS must be strongly consistent with intent to commit crime. Open ended to allow jury discretion for whether action is predictive of criminal intent.

4. People v. Rizzo, pg. 648

a. Reminder: Defendants convicted of attempted robbery for driving around looking to rob the “payroll man.” At time of arrest, they had not found the victim, nor was anyone with a payroll anywhere in the vicinity. Reversed.

b. Rule: Test is dangerous proximity to success-incorporates notion of indispensable element. Reflects physical proximity to success, not possible without victim.

c. Note: Confessions not enough to convict someone of an attempted crime, to give us that person's mens rea. There has to be something that you could infer intent from in addition to the confession, which could have been coerced or untruthful.

5. Want to identify attempt early enough to prevent crime, but making sure the crime is actually going to be committed and that a step has been taken to corroborate this intent. Last step/indispensable element tests make prediction easier. MPC suggests that ACT + INTENT are necessary to corroborate criminal purpose. Substantial Step Test embodies some element of proximity and unequivocality that strongly corroborates criminal intent. States use MPC’s substantial step and Rizzo’s Dangerous Proximity Test. Objective tests to help guide a jury’s discretion.

Abandonment

1. Not a defense unless there is a voluntary & complete renunciation of criminal purpose

2. People v. Staples, pg. 655

a. Reminder: Man rented room over bank & began drilling through floor into safe. After lease ran out, police confiscated equipment in room & arrested him for attempted burglary. Admitted intent but said he changed mind & abandoned plan.

b. Rule: Abandonment must be voluntary, and a complete renunciation of the criminal plan, not a result of fear of discovery or apprehension, or breakdown of equipment, etc. Abandonment must occur before the actus reus of attempt has been met.

c. Note: Most jurisdictions allow abandonment; those that don’t generally have a late threshold for the finding of attempt.

Impossibility

1. Factual Impossibility: Substantive crime cannot be completed because some physical or factual condition is unknown or mistaken by the defendant – Attempt charge possible

2. Legal Impossibility: Where the act, if completed, would not be criminal (due to factual mistake regarding legal status of attendant circumstance). There is no victim in being – No Attempt charge possible at common law. In most jurisdictions today, charge is possible

3. Booth v. State (1964), pg. 665

a. Reminder: Defendant bought a coat he believed to be stolen property, though it was already in the possession of the police at the time he bought it and therefore no longer considered stolen property.

b. Rule: A defendant cannot be convicted of an attempt (though mens rea was culpable) to commit a crime unless he could have been convicted of the crime itself if his attempt had been successful.

c. Note: Examples of factual vs. legal impossibilities:

i. Pickpocket reaches in or tries to reach in to empty pocket and is interrupted--factual impossibility, so you could have attempt liability

ii. Person shoots into empty bed where person normally sleeps – fact. imp.

iii. Def offers a bribe to a person who he thinks is a juror but turns out not to be a juror--legal impossibility.

iv. Shooting a mannequin or dead person--legal impossibility.

COMPLICITY

The Accessorial Act

Community of Purpose + Intent to Facilitate Crime = Accessory to Crime

1. NOT A CRIME in and of itself, but a way of committing a crime, of linking individuals to a crime. You CANNOT CHARGE ANYONE WITH COMPLICITY, it is not a crime.

2. Though a Principal no longer needs to be convicted of the crime, at minimum there needs to be proof that someone committed an offence & defendant is connected by complicity.

3. Once actus reus is established, accomplice is treated as actually having committed crime

4. To establish accomplice liability

a. Community of Purpose. If acts suggest community of purpose, don’t need to show evidence of communication.

b. Accomplice must commit some actus reus that is intended to contribute to/facilitate the commission of the crime.

c. No need to be physically present at scene of crime or to know all the plan details

5. MPC - A person is an accomplice of another in the commission of an offense if: (a) with the purpose of promoting or facilitating the commission of the offense, he (ii) aids or agrees or attempts to aid such other person in planning or committing it.

6. Accomplice liability does not extend to those who find out about the crime but don’t say anything unless there is a duty to disclose (e.g. for a dangerous felony).

7. Gains v. State, pg. 699

a. Reminder: Defendant was driver of getaway car for three bank robbers. Nothing about his actions indicated that he knew his companions were involved in a crime.

b. Rule: “Mere presence” and “mental approbation” are not enough to establish liability. Defendant must have knowledge of his companions’ intentions & be so situated as to aid or encourage or render assistance to the actual perpetrator.

c. Note: Exceptions when mere presence is enough (when it serves a purpose):

i. Lookout

ii. Reassurance, emboldening support

iii. Intimidation

8. State v. Tally, pg. 702

a. Reminder: That good old western about the judge who sent the telegram instructing operator to ignore a prior telegram sent to warn the victim that the judge’s four brothers-in-law were chasing him to kill him. Telegram operator delayed in imparting the message, and victim was in fact killed.

b. Rule: An act that renders the commission of a crime more likely is guilty under accomplice liability

c. Note: This traditional view about “rendering the crime more likely” no longer prevails. The aid does not actually have to facilitate the crime, as long as there is an attempt to aid and community of purpose. No “but for” analysis.

9. Abandonment/Renunciation defense

a. Most jurisdictions offer an abandonment defense, with strict guidelines to apply it. More than simple withdrawal.

b. MPC – must renounce accomplice action before completion of target offense & neutralize his assistance, give timely warning to authorities, or attempt to prevent commission of crime.

c. NY – substantial efforts demonstrating your attempt to prevent the crime.

d. Pros: give potential criminals every opportunity to turn away from crime

e. Cons: takes away deterrence effect

Mens Rea of Complicity

1. Most jurisdictions combine 2 of these 3 forms of culpability to find accomplice liability:

a. Offense Culpability – culpability with respect to conduct, circumstance, or result elements of the offense

b. Aid Culpability – culpability with respect to the facilitative or encouraging effect of accomplice’s actions

c. Perpetrator culpability – culpability with respect to the principal’s intentions

2. People v. Beeman, pg. 714

a. Reminder: Defendant provided information that permitted other individuals to rob his sister in law’s house. Argued that he didn’t want the robbery to occur and expressed that to the two who robbed the house. Court overturned b/c jury instructions did not properly instruct on the necessary mens rea.

b. Rule: Court ultimately concludes that mens rea for accomplice liability requires:

i. Knowledge of principal’s intent, AND

ii. Purpose to commit, encourage, or facilitate commission of the crime.

c. Policy reason: Don’t want to impose an obligation to intervene in a crime on every individual who may know about it.

3. Wilson v. People, pg. 722

a. Reminder: Defendant helped another person break into a store with the intent of framing him. He called the police and admitted his role in the break in, though he had no intent to burglarize. Conviction overturned because jury instructions didn’t permit for a determination of his intent.

b. Rule: Accomplice liability requires accomplice to share in the criminal intent of the principal, & this intent is a factual determination to be made by a jury.

4. Most states apply the “reasonable foreseeablity” test in holding the accomplice liable for additional acts committed by the principal. Others use “natural & probable consequence”

5. Iago hypo: Different mental states allow the accomplice to be convicted of more severe crime than Principal. Same crime, different mental states/culpability (not so under c.l.)

SUMMARY

Accomplice liability requires:
- actus reus: some act designed to assist beyond mere presence.
- mens rea: knowledge of prinicpal’s intent and purpose to facilitate the crime.

CONSPIRACY

Nature of Conspiracy

Powerful tool to widen the net of liability

1. Inchoate crime – punishes anticipatory action that aims at, without having to accomplish, a criminal object. An independent crime (unlike Complicity).

2. Group crime – requires at least two participants

3. Doctrine of Accessorial liability – implicates all coconspirators in each other’s acts.

4. Principle: Facilitates the prosecution of the group and provides a basis for added penalties for individuals within the group. All coconspirators are liable for the same charge as the person who actually committed the act – NO discrepant liability like in Complicity. Group crimes involve special dangers so we want to punish that agreement.

5. Permits criminal liability much earlier than under Attempt doctrine.

6. Establishing Conspiracy:

a. Agreement between at least two people

i. Constructive agreement can be inferred from actions of conspirators

ii. Intent to commit crime

b. Overt act in furtherance of the conspiracy after the agreement has been made

i. Most jurisdictions require some overt act (not required at common law) to demonstrate that the conspiracy is at work and no longer just a project in the minds of the conspirators.

1. Generally, acts that would merely be considered preparatory under attempt liability suffice to demonstrate conspiracy

2. A minority of jurisdictions require the act to strongly corroborate the intent to commit the crime (more like attempt law)

3. Only one coconspirator need commit the act to hold all liable

4. Act cannot be part of agreement

ii. Sometimes, if proof of agreement is strong enough, an overt act is not necessary – criminal agreement is itself the actus reus.

7. State v. Verive (AZ), pg. 750

a. Reminder: Defendant convicted of conspiracy & attempt for agreeing to go to a witness’ house & beat him up to dissuade him from testifying. Is court double counting same act, or is he charged of 2 crimes for same acts (double jeopardy)?

b. Rule: You can charge for both attempt and conspiracy as long as the overt act used to convict is different – lesser requirement for conspiracy. Also the elements of the two crimes are different (agreement required for conspiracy, dif. act req.), so they are distinct (no double counting). Court uses Blockburger test (whether each provision requires proof of an additional act which the other does not)

CONSPIRACY to Dissuade	ATTEMPTED Dissuasion
Intent to dissuade witness	Intent to dissuade witness
Agreement + Overt act in furtherance of the offence*	Overt Act (substantial step, dangerous proximity)
* In most jurisdictions can be equivocal, preparatory, any manifestation of intent.

8. State v. Burleson, pg. 75

a. Reminder: Defendants meet to plan bank robbery, abort plan, then rob the bank another day. On appeal, court upholds conspiracy for 1st robbery, and attempt (but no conspiracy) for 2nd – conspiracy is a lesser included offense w/in attempt

b. Rule: MPC and 13 states DO NOT permit conviction on attempt AND conspiracy. Point is to deter crime and both accomplish that so can’t punish under both. Other jurisdictions (a majority) agree with Verive that agreement itself is problematic.

Agreement

Actus Reus= agreement + overt act

1. United States v. Moussaoui (2002), pg. 764

a. Reminder: Overt acts such as coming to U.S., planning to take & actually taking flight courses, & being connected through money wiring & communication to other co-conspirators provide constructive (not direct) evidence of agreement.

b. Important to define scope of agreement properly. Might have him on conspiracy to attack w/ airplanes, but less likely for conspiracy to attack WTC w/ airplanes on 9/11.

2. Unites States v. Recio, pg. 767

a. Reminder: Deals with termination of conspiracy. Drug sting operation. Question for the court was whether conspiracy automatically ends when object of conspiracy becomes impossible to achieve.

b. Rule: Essence of conspiracy is “an agreement to commit an unlawful act” – does not depend on whether objective of conspiracy is achieved. Impossibility not a defense when conspirators believe object of conspiracy is still possible.

Mens Rea of Conspiracy

Intent + Purpose to Facilitate

1. People v. Lauria, pg. 770

a. Reminder: Owner of a telephone answering service was indicted (charges set aside) for providing services to women he knew to be prostitutes.

b. Rule: If a supplier of goods/services knows of the criminal use to which his goods/services are being put, he is only guilty of conspiracy if his intent to commit or facilitate the crime is established by (1) direct evidence, or (2) through an inference based on (a) his special interest in the activity or (b) the aggravated nature of the crime itself.

c. Note: Circumstantial evidence that may indicate special interest:

i. Stake in the crime

ii. Disproportionate volume of clients engaged in criminal purpose

iii. Charging higher prices to criminal clients

iv. No other legitimate use for the good or service

2. Mens Rea: (1) Intent to agree to the conspiracy AND (2) purpose to promote the unlawful objective of conspiracy (purpose may be replaced by knowledge when activity is a felony).

Incidents of Conspiracy

1. United States v. Diaz, pg. 780

a. Reminder: Defendant was part of a conspiracy to sell drugs. Though defendant was not armed at the sale, he was liable for his co-conspirator

b. Pinkerton Rule: Conspirators are liable for all of the criminal acts of other conspirators that are (1) in furtherance of the conspiracy, (2) within scope of the agreement, (3) AND reasonably foreseeable as a result of the conspiracy. All 3.

2. Withdrawal from a Conspiracy

a. Need to abandon effort, and notify at least one coconspirator of the withdrawal – sometimes, attempt to notify suffices. Simply make intent to withdraw clear.

b. Still liable for conspiracy and all prior crimes, but not any further crimes.

The Scope of the Conspiracy

Single v. Multiple conspiracies

1. Evidentiary advantages to a single charge of conspiracy (rather than breaking it up into several conspiracy charges)

a. Joint trial allows state to explain liability of each actor in context of others’

b. Can coordinate testimony to make stronger case

c. Better chance of pressuring (a) conspirator(s) to testify. Testimony of coconspirators not subject to cross-examination

d. Statute of limitations for conspiracy based on date of last overt act- not when conspiracy was started

2. State prefers to capture as many conspirators as possible under a single conspiracy theory in order to capture as many criminal behaviors as possible (Pinkerton rule). May choose to charge several conspiracies if goal is to rack up charges against a single “ringleader.”

a. Wheel Conspiracies – Characterized by a central figure or group (the hub) that engages in illegal dealings with other parties (the spokes) and there exists a shared criminal purpose among all spokes and the hub. Parallel but separate objectives between similarly situated people do not count.

b. Chain Conspiracies – involve a criminal enterprise that cannot thrive unless each link successfully performs its part of the arrangement. Supplier -> Distributor -> Seller. W/out interdependence you have to charge 3 separate conspiracies (more costly)

JUSTIFICATION AND EXCUSE

Defenses that can be invoked after the State has proven elements of the offense (mens rea & actus reus)
Actor has committed an offense, but has a plausible argument of desert or utility why she should not suffer punishment. Key defenses:

i. Defensive Force (self-defense or defense of others)

ii. Necessity

iii. Duress

iv. Insanity

Justification vs. Excuse

i. Distinction can be fuzzy, but in the end both are a defense and defendant is acquitted so no biggie

ii. Justification: In committing the offense, the actor has advanced a social interest and so done nothing wrong. Conduct is justified. E.g. self-defense

iii. Excuse: Actor wrongfully committed an offense but is not morally blameworthy. E.g. insanity

Defensive Force

Choice between lesser of 2 evils. Justifies conduct that would otherwise be an offense.

i. People v. La Voie, pg. 489 – use of force to protect self

1. Reminder: Man is driving home late at night when four drunk men ram him from behind with their car. When his car finally stops, he gets out with a gun, the 4 men get out and threaten him, he shoots and kills lead man.

2. Rule: Killing is justifiable under the doctrine of self-defense when a person (1) fears he is in imminent harm of death or serious bodily injury (subjective), and (2) it is reasonable for him to feel this fear (objective).

3. Note: Even if all the elements of a crime are met (here, 2nd degree murder) self-defense will acquit defendant of charge.

4. Note: If defendant honestly was in fear, but this fear was unreasonable, this would be imperfect self-defense, and he would not have been acquitted but charge reduced to voluntary manslaughter.

ii. State v. Leidholm, pg. 497 – use of force to protect self

1. Reminder: Woman gets into argument with husband – he pushes her to the ground and prevents her from calling the police. Relationship is a turbulent one and both had been drinking heavily. While husband is asleep, she stabs him to death.

2. Rule: There is still a two-pronged standard for determining the reasonableness of the use of deadly force in self-defense, but the objective standard is made more sensitive. First, jury needs to find the subjective standard that a defendant honestly felt herself to be in imminent danger. Second, the jury must employ an objective standard to determine whether the use of deadly force was reasonable given defendant’s individual circumstances/characteristics.

3. Note: the PREVAILING test that is used in most jurisdictions. Retain the objective standard, but with more sensitivity.

iii. People v. Goetz, pg. 521 – use of force to protect self

1. Reminder: Defendant was approached by 1 of 4 boys on the subway and told “give me $5.” Defendant, having been previously assaulted and carrying a gun, shot all four boys.

2. Rule: Though the standard for determining whether deadly force was required is an objective one of “reasonableness,” this objective standard can take into account the circumstances facing a defendant or his situation, such as physical characteristics of parties, past experiences, & particular circumstances.

3. Self-Defense= double-pronged subjective/objective standard (sensitive)

iv. Tennessee v. Garner, pg. 529 – use of force in law enforcement

1. Reminder: Police shot boy in the head to prevent him from escaping from a burglary

2. Rule: Deadly force by a police officer is only justifiable when the officer has reason to believe (probable cause) that the fleeing felon is armed, or has threatened or will threaten affliction of bodily harm to the officer or to others (analysis: imminent harm? reasonable?)

v. People v. Ceballos, pg. 535

1. Reminder: D set up spring gun to protect possessions in his garage. Two youths entered hoping to rob something, making sure it was empty. Gun shot one in the face.

2. Rule: Your home is an extension of yourself, and deadly force is justified in protecting it (especially if there are people inside). However, if the property is not for your habitation, only modestly forceful conduct (never deadly) is justified to prevent trespass if the threat is imminent. Additional problem with spring gun – takes away discretion to decide if threat is imminent and deadly force is necessary.

Necessity

i. MENS REA – if mens rea for crime committed is recklessness, and actor was reckless in bringing about the situation, the defense of necessity is unavailable.

ii. Queen v. Dudley & Stephen, pg. 539

1. Reminder: Defendants stranded in boat, close to starvation, killed weaker person to eat him for survival

2. Rule: Though this is setting up a standard a reasonable person probably couldn’t live up to, this conduct is NOT excused for policy reasons – don’t want to encourage cannibalism, or having people place a higher value on their life rather than another innocent person.

iii. Factors to consider to grant a defense of necessity:

1. Was it reasonable for D to believe that her action was necessary to prevent a greater, real and imminent harm?

2. Was her action the only solution to preventing this greater harm?

3. Was her choice really the lesser harm?

4. Was D at fault for having created the necessitous situation

iv. Example that would probably constitute necessity: setting a fire to prevent the spread of a greater fire. Even if it turns out your fire wasn’t necessary, if a jury believes it was reasonable for you to think so, it will probably be excused.

v. The Necessity Defense is a tacit acknowledgement that the legislature will be unable to carve out all the exceptions for finding someone liable for a particular crime. Gives jury that discretion to decide whether this case is an exception or not.

RAPE

(general intent offense – defendant is guilty if he possessed a morally blameworthy state of mind regarding female’s lack of consent)

Introduction

i. Conventionally defined as penile-vaginal intercourse by force or use of force against the will of a woman (not his wife) and without her consent.

1. Conventional definition would constitute the ACT and perhaps CIRCUMSTANCES, but would not address any mens rea requirement

2. Onus of proof was on woman to show that she had resisted every step of the way

ii. Substantive reforms have (1) lowered evidentiary barriers: victim testimony must be corroborated, complaint need not be made promptly, rape-shield laws, and cautionary jury instructions (2) framed the crime of rape very generally: making it gender neutral, removing the traditional “marital exception,” and broadening the act beyond penile-vaginal intercourse, and (3) redefined the core elements of force and nonconsent – reconsidering the mental element, and amount of resistance the victim needs to show

iii. Majority of states (& MPC) retain partial marital immunity rule (no immunity if parties are legally separated or not living together, MPC – must be formally separated), a minority retain complete marital immunity rule, and 15 have abolished it. 24 treat it as a lesser offense

Actus Reus – Force, Nonconsent and Resistance

i. People v. Barnes (Cal. 1986), pg. 912

1. Reminder: Victim went to defendant’s house to purchase marijuana, and indicated that she did not want to stay long. Defendant was angered by her desire to leave. Defendant pressured her into sex, to which she complied out of fear of violence.

2. Rule: Non-consent can be demonstrated through the use of force and/or capitalization of fear – proof of resistance is no longer required. Though the burden of proof is no longer on victim to show resistance, both actions and words of the accused and accuser are taken into account to determine consent

ii. Model Penal Code – pg. 919

(1) Rape. A male who has sexual intercourse with a female not his wife is guilty of rape if:

 (a) he compels her to submit by force or by threat of force or by threat of imminent death, serious bodily injury, extreme pain or kidnapping, to be inflicted on anyone; or

 (b) he has substantially impaired her power to appraise or control her conduct by administering or employing without her knowledge drugs, intoxicants or other means for the purpose of preventing resistance; or

 (c) the female is unconscious

Rape is a felony of the 2nd degree unless (i) in the course thereof the actor inflicts serious bodily injury upon anyone, or (ii) the victim was not a voluntary social companion of the actor upon the occasion and had not previously permitted sexual liberties, in which case the offense is a felony of the 1st degree.
(2) Gross Sexual Imposition. A male who has sexual intercourse with a female not his wife commits a felony of the third degree if:

 (a) he compels her to submit by any threat that would prevent resistance by a woman of ordinary resolution; or

 (b) he knows that she suffers from a mental disease or defect which renders her incapable of appraising the nature of her conduct.

iii. State v. Smith (Conn. 1989), pg. 924

1. Reminder: T met defendant at bar with a friend, and they all went out to dinner. T and defendant went back to his apartment, where defendant made advances that were resisted. Defendant threatened T, which compelled her to submit to sex.

2. Rule: The government’s burden is to establish beyond a reasonable doubt that the complainant’s words and actions objectively demonstrated non-consent. This is an objective standard of consent, to be determined by a “reasonable person” standard. Consent, not force, is the operating issue.

iv. In the Interest of MTS (NJ 1992), pg. 929

1. Reminder: Victim consented to a session of kissing and heavy petting with MTS (who lived in same house). C.G. was awake at the time of penetration, but did not consent to the sexual act. (Two parties had different versions).

2. Rule: Criminality turns on the absence of affirmative assent, which can be determined by reasonable manifestation, either verbal or non-verbal. Force is irrelevant under this statute since it is only the force necessary to complete the act.

v. Resistance/force → force → non-consent → affirmative assent

 (Historical)     (Barnes - CA) (Smith – CT)  (In the Interest of MTS - NJ)

vi. Minority of jurisdictions – abolished resistance requirement

Majority – require only degree of resistance reasonable under circumstances, or sufficient to indicate non-consent
Extreme minority – require affirmative assent
MPC – defines rape solely in terms of male’s acts of aggression and does not require proof of resistant by the victim

Mens Rea

i. People v. Mayberry (CA 1975), pg. 957

1. Reminder: Defendant harassed victim as she was walking to the grocery store, she denied his request for sex, but after he attacked her she had sex without refusing again (thought it hopeless), though she tried to change his mind. Was there a possible mens rea defense that defendant did not know sex was nonconsensual?

2. Rule: The reasonableness of a mens rea defense (mistake of fact, for example) is a question of fact that must be determined by a jury. Mens rea for rape is a negligence standard (“reasonable”).

3. Note: Public Policy debate as to whether shifting focus onto defendant’s mens rea (negligence) would shift focus away from victim and to defendant (Estrich), or whether it would actually place the burden of proof on the victim to show that she adequately demonstrated non-consent (Henderson). You don’t want to put the victim on trial. Who should be penalized for mixed messages? Rape laws should help us recognize that fact-finders can’t understand accused’s act and mental state without understanding complainant’s intent, which complicates the formulas.

ii. Evidentiary Issues

1. Rape Shield Laws: court must decide whether information about victim’s sexual past is relevant to case (relevancy rules) – rarely allowed. Need to balance the rights of the accused with the privacy of the complaining witness.

2. Corroboration Rule: At common law, the testimony of the alleged rape victim did not need to be corroborated in order to convict for rape. However a minority of states (& MPC) has instituted a corroboration requirement by statute or case law.

RAPE MENS REA	RAPE ACTUS REUS
1. Intentional (purpose/knowing)	1. Force & non-consent
2. At least reckless	2. Non-consent manifested by verbal or physical resistance
3. At least grossly negligent	3. Lack of affirmative expression of consent
4. At least negligent	4. Non-consent (subjective)
5. Strict liability	5. Irrelevant

Potential Relevant Elements

- Mental state (both parties)
- force/threat of force (nature of threat)
- what is the prohibitive conduct?
- consent v. manifestation of consent
- relationship between victim and defendant/context of crime
- evidence requirements