Tuesday, October 25, 2011


[Act + Mental State]Concurrence+[Causation(legal cause + cause in fact)] - Defenses = Criminal Liability.
The concurrence of act and mental state with causation (legal/proximate cause: was there a superseding force, and actual/cause-in-fact or but-for cause) minus defenses = criminal liability.
“What distinguishes a criminal from a civil sanction...is the judgement of community condemnation which accompanies and justifies its imposition”

Owens v. State - conviction based on circumstantial evidence alone.
“It makes the drawing of the inference of guild more than a mere flip of a coin between guilt and innocence. It makes it rational and therefore within the proper purview of the factfinder.”

State v. Ragland - use of the word ‘must’ conflicts with idea of jury nullification.
Jury = conscience of the community.

Retributive v. Utilitarian
“Who should be punished? | Of those whom we punish, how much punishment is appropriate?”

The Queen v. Dudley and Stephens

People v. Superior Court (Du) (51)
-Voluntary Manslaughter (intended, not justified)
Objectives of sentencing
1. Protect society.
2. Punish defendant.
3. Encourage defendant to lead a law abiding life.
4. Deter others.
5. Isolate defendant so he can’t commit other crimes.
6. Secure restitution for victim.
7. Seek uniformity in sentencing.


“Actus reus is to be interpreted as the comprehensive notion of act, harm, and its connecting link, causation, with actus expressing the voluntary physical movement in the sense of conduct and reus expressing the fact that this conduct results in a certain proscribed harm, i.e., that it ‘
‘causes’ an injury to the legal interest protected in that crime.”
-No such thing as a thought crime, must be an act or omission.
-Omission: When does a person have a duty to act?

Martin v. State

State v. Utter - Actus Reus
-No crime was committed unless harmful result was brought about by a voluntary act.
-Act must be willed movement or omission of a possible and legally required performance. A spasm is not an act.
-Act involves exercise of the will - something done voluntary.
-Criminal responsibility must be judged at the level of the conscious.
-If a person is unconscious at the time he commits the act which is otherwise criminal, he is not responsible.
-Without consent of the will, human acts cannot be considered as culpable.

OMISSIONS (‘Negative Acts’)
Is there a legal duty to act?
Not mere moral obligation.
-Legal relation to another?
Husband-wife, parent-child, etc.
-A person with a legal duty to act who negligently fails to provide needed care to someone in great
medical distress may be guilty of manslaughter if the person dies as a result of the omission.
-Legal duty to report a fire, reporting child abuse.
-Act followed by omission.
-Creation of a risk (wrongfully puts a person in harm)
-Voluntary assistance.
-The law should prevent people from actively causing harm, but it should not compel people to benefit others.

People v. Beardsley (136) - When is there a duty to act?
-Duty must be a legal duty and not a mere moral obligation.
-If a person who sustains to another the legal relation of protector, as husband to wife, parent to child, master to seaman (servant), etc. knowing such person to be in peril of life, wilfully or negligently fails to make such reasonable and proper efforts to rescue him as he might have done without jeopardizing his own life or the lives of others, he is guilty of manslaughter at least, if by reason his omission of duty the dependant person dies.
-The fact that this woman was in his house created no such legal duty as exists in law.

Barber v. Superior Court (142)
-We conclude that the cessation of ‘heroic’ life support measures is not an affirmative act, but rather a withdrawal or omission of further treatment.
-There is no criminal liability for failure to act unless there is a duty to act.
-A physician has no duty to continue treatment, once it has been proved to be ineffective.
-Is the proposed treatment proportionate or disproportionate to the benefits to be gained versus the burdens caused?

Social Harm - the “negation, endangering, or destruction of an individual, group, or state interest, which is deemed socially valuable.”


“A guilty mind; a guilty or wrongful purpose; a criminal intent.”

Regina v. Cunningham
Malice must be taken not in the old vague sense of wickedness in general, but as requiring either (i) an actual intention to do the particular harm that in fact was done, or (ii) recklessness as to whether such harm should occur or not (i.e. the accused has foreseen that the particular kind of harm might be done, and yet has gone on to take the risk of it.)
-It does not require any ill will towards the person injured.

People v. Conley
“a person who, in committing a battery, intentionally or knowingly causes great bodily harm, or permanent disability or disfigurement, commits aggravated battery.”
-A person must intend to bring about the particular harm defined in the statute.
Intent: A person intends, or acts intentionally or with intent, to accomplish a result or engage in conduct described by the statute defining the offense, when his conscious objective or purpose is to accomplish that result or engage in that conduct.
Knowledge: A person knows or acts knowingly or with knowledge of: (b) The result of his conduct, described by the statute defining the offense, when he is consciously aware that such result is practically certain to be caused by his conduct.
-Problems of proof are alleviated by the ordinary presumption that one intends the natural and probably consequences of his actions.

Battery- Even the slightest unlawful touching, if offensive, satisfies the actus reus component of the offense.
Intent- ordinarily defined to include not only those results that are the conscious object of the actor-what he wants to occur-but also those results that the actor knows are virtually certain to occur from his conduct, even if he does not want them to arise.
Transfer of Intent

1. Can only transfer the intent of one death, if 2 die.

2. Can’t transfer intent from hitting a person to object.

Specific Intent (158)
An offense in which a mental state is expressly set out in the definition of the crime.

1. To emphasize proof relating to a particular state of mind.

2. Purpose or knowledge - “extreme recklessness”

3. Intend to act + something else.

4. Identify ‘above and beyond doing the act’.

General Intent (158)
When no particular mental state is set out in the definition of the crime, and a prosecutor need only prove that the actus reus of the offense was performed with a morally blameworthy state of mind. (look for words like ‘knowledge’ ‘intent’ in the offense)

1. Any offense where defendant has a blameworthy state of mind.

2. Negligent or reckless standard.

3. Look at actus reus-what was the mind of defendant in committing the act?

4. Moral culpability- “doing b/c I want to do wrong.”

A person who, in committing a battery(attendant circumstance), intentionally or knowingly(mens rea), causes great bodily harm, or permanent disability or disfigurement commits “aggravated battery.”

Model Penal Code - Four levels of culpability. (160)
Purpose/Knowledge, Recklessness (involves conscious risk creation), Negligence (does not require a state of awareness).

State v. Nations (164) -Willful Blindness, “Knowledge of attendant circumstances”.
Knowingly = actual knowledge. “A person acts knowingly with respect to attendant circumstances when he is aware those circumstances exist.”
-When knowledge of the existence of a particular fact is an element of an offense, such knowledge is established if a person is aware of a high probability of its existence (unless he actually believes it does not exist.)
-Def.’s refusal to learn the age of young child dancing in disco bar proves Def. was ‘aware of a high probability’ that child was under 17. Def. was conscious of “a substantial and unjustifiable risk” that the child was < 17. Disregard of risk = gross deviation from norm. This however is not knowledge, it is recklessness, nothing more.

Flores-Figueroa v. United States (170) Problems in Statutory Interpretation.
(use of the word knowingly)


United States v. Cordoba-Hincapie (175)
If the punishment of the wrongdoer far outweighs regulation of the social order as a purpose of the law in question, then mens rea is probably required.
If the penalty is light, involving a relatively small fine and not including imprisonment, then mens rea probably is not required.

Staples v. United States (177) Firearm act.
Is possession of a firearm not registered to the person a strict liability issue?
-In a system that requires a “vicious will” to establish a crime, imposing severe punishments for offenses that require no mens rea would seem incongruous.
(Public Welfare offenses)

Garnett v. State (186) Statutory Rape
weakness of strict liability (188)
-We think it sufficient clear, however, that Maryland’s second degree rape statute defines a strict liability offense that does not require the state to prove mens rea; it makes no allowance for a mistake-of-age defense.
(Model penal code generally rejects strict liability)


People v. Navarro (194)
“so long as he believes it to be his own, he cannot feloniously steal it.”
“if no specific intent or other special mental element is required for guilt of the offense charged, a mistake of fact will not be recognized as an excuse unless it was based upon reasonable grounds.”
-An honest mistake of fact or law is a defense when it negates a required element of the crime.
-Defendant was entitled to an acquittal since the specific intent required to be proved as an element of the offense had not been established.
-Mistake of fact: reasonable and in good faith when defendant charged w/ a specific intent crime.
-General Intent: have to act reasonable.
-Specific Intent: can act unreasonable if in good faith.

Perkins Rule - Mistake of Fact
1) Is the offense general intent, specific intent, or strict liability?

[Specific Intent]: Does the mistake of fact relate to the specific intent portion of offense?

Yes: Elemental Analysis: Does the mistake negate the specific intent element of the offense? If it does → Not guilty, acquitted.

No: Treat the offense as if it were a general intent crime.

[General Intent]: Did the defendant act with a morally blameworthy state of mind?

Reasonable or unreasonable?

Unreasonable: acted with culpable state of mind, can convict.

Reasonable: Morally innocent, entitled to defense for want of men’s rea.

Can apply Moral Wrong or Legal Wrong doctrine.

[Strict Liability]: A mistake of fact is never a defense.

Elemental Analysis → No element of mens rea to negate.

Culpability Analysis → Blameworthiness = irrelevant.


-The intent to commit an act that is immoral furnishes the requisite culpability for the related, but unintended, outcome.

-We can justify punishing without mens rea because you know it’s wrong.

a) Was mistake of fact reasonable? → convicted.

b) Was mistake of fact unreasonable?

→What was it you reasonably thought you were doing?

Was the def.’s conduct immoral had the situation been as he supposed?


-Authorizes punishment based on the harm that an actor caused, the actus reus of the greater offense, while ignoring the fact that the actor’s men’s rea was at the level of the lesser crime.

-Punish for the higher crime of the two.

People v. Marrero (199)
“The mistake of law defense should not be recognized, except where specific intent is an element of the offense or where the misrelied-upon law has later been properly adjudicated as wrong.”
“I didn’t know it was the law”, “Someone else told me it was not the law”, “I didn’t know the law applied to me.”
Reasonable Reliance
1. Reliance on self-investigation - Never will give a defense.
2. Authoritative person - Sometimes, if has authority in a specific intent crime.
3. An old law replaced by new law. - Will give a mistake of law defense
(must have a specific intent element)


Requires the voluntary act caused the social harm.
Velazquez v. State
“A defendant’s conduct is a cause-in-fact of the prohibited result if the said result would not have occurred ‘but for’ the defendant’s conduct.”
Substantial Factor Test: Occurs when two defendants, acting independently and not in concert with one another, commit two separate acts, each of which alone is sufficient to bring about the prohibited result.
The defendant’s conduct is a cause-in-fact of a prohibited result if the subject conduct was a substantial factor in bringing about the said result.

Oxendine v. State
-In order to convict Oxendine of manslaughter, the State had to show that his conduct caused his death.
Causation: the antecedent but for which the result in question would not have occurred.
Acceleration: Speeds up process of ‘end result’ (social harm).
“but for his infliction of the second injury, would have victim have died when he died?”
“A doctor’s testimony can only be considered evidence when his conclusions are based on reasonable medical certainty that a fact is true or untrue.”
“Reprehensible and repulsive as the conduct of the defendant is, nevertheless it is not proof of manslaughter.”
Aggravation- hurts more but does not cause the death/social harm. (the previous act caused the death.)
[x beats y on day 1, z beats y on day 2, y would have died on day 5, but for z beating him which caused him to die on day 3.]


Causation is only an issue in a result offense (i.e. homicide) not a DWI.

1. Figure out whether social harm would have occurred absent Def.’s action,

if so; no but for causation: Not a cause.

if not; but-for-causation: Am a cause.

2. If no but-for cause, “Substantial Factor Test” (use when there are 2+ separate but concurrent acts and that act brings about the social harm.

Questions: “Would the result had occurred in absence of both acts?

“Was the particular Def.’s act a substantial factor in bringing about the social harm?

Cumulative But-For causation analysis

Two independent/concurring acts, but social harm by either are non fatal wounds.

Look at jointly to find but-for analysis.


-Have to have Actual + Proximate cause for criminal liability.
I. Direct Cause
No event of significant cause intervened.
II. Intervening Causes

An independent source comes into play after defendant’s voluntary act or omission occurs.

When cause relieves a defendant of liability, intervening effect = superceding cause.

1) Apparent Safety Doctrine - Dangerous forces come to rest.

“when defendant’s active force comes to rest in a position of apparent safety, court will no longer follow it.”

2) De Minimus Contribution

-Def.’s causal responsibility = exceptionally insubstantial compared to the

intervening cause.

-The giant (larger) force = real cause of the harm.

3) Foreseeability of the Intervening Cause

-Were intervening parties acts reasonably foreseeable?

-Unforeseeable cause = superceding in nature.

a) Responsive - Bizzare + Unforeseeable.

-Occurs because def.’s acts, in relation to those acts.

-Must be highly abnormal/bizarre AND unforeseeable.

-Grossly negligent/reckless medical care = sufficiently abnormal.

b) Coincidental - A cause independent of def.’s act.

-A force that does not occur in response to def.’s actions.

-Def. placed victim in situation where I.C. could independently act on him.

-Intervention must not be foreseeable.

4) Intended Consequences Doctrine - Mens Rea

-You intend what you do, and it happens.

-Def. wanted X poisoned and it happened.

5) Human Intervention, free, deliberate, informed.

-victim’s own choice (voluntary, knowing, intelligent) causes own harm.

6) Omissions

-Omission by the victim (not wearing seat belt) can never be a superseding cause.

People v. Rideout (220) - Two components of causation: Factual and Proximate cause.
-For a defendant’s conduct to be proximate cause, injury must have been direct + natural result of def.’s actions.
-The second accident only occurred after Keiser had reached a position of safety.
-Had the second accident occurred before Keiser could extricate himself from the vehicle and get to the side of the road, then the causal chain would have been intact.
-Keiser made the voluntary decision to return to the vehicle, despite the danger.

Velazquez v. State (229) -Gross negligence of the deceased.
-Passenger’s reckless act of grabbing steering wheel was an independent intervening act which superceded the def.’s wrongful conduct.
-The deceased killed himself by his own volitional reckless act (driving).
-No one forced him...He did all the things himself.

State v. Rose (232) - Concurrence of the elements.
-Unable to conclude on evidence that Def. is guilty. Do not know how, when decedent died.
-No culpable negligence on part of def. up to/including time which decedent struck by car.


People. V Eulo (247) - The protected interest: “Human Being”
-Our penal law defines homicide in terms of conduct which causes the death of a person.
-If victim’s death were prematurely pronounced due to a doctor’s negligence, but that negligence would not constitute a superseding cause of death relieving defendant’s of liability.
-Policy change on what defines death.

State v. Guthrie (253) - Degrees of Murder: the deliberation-premeditation formula.
-”Give me a definition of what 1st and 2nd degree murder is”
1st degree murder: Intent (Malice) + Deliberation + Premeditation.
2nd degree murder: distinguished by lack of deliberation + premeditation
Deliberate: To measure and evaluate about a course of action with a mind that is free from influence of passion.
Premeditation: To think beforehand.
-How much time beforehand?
There must be some period between formation of intent and the actual killing to indicate killing is by prior calculation and design.

MURDER: The unlawful killing of a human being with malice aforethought.
One who intentionally kills another w/o justification, “self defense” or mitigating circumstance, “heat of passion” or excuse, “insanity” is guilty of killing with “malice aforethought” - “express malice” and guilty of common law murder.
Elements: Human being, born alive, death to human being (result of an action by another human being) Victim’s death has to be natural + probable consequence of actions.
MALICE (Common Law)
-4 Mental States
1. Intent to kill
2. Intent to inflict serious bodily harm.
3. Extreme recklessness (depraved heart), don’t intend, but don’t care if you do-high prob. of death.
4. During the commission/enumeration of a felony.
Murder has malice, manslaughter does not have malice.

Justifiable homicide “no fault” - did not create a criminal act - justified by necessity (war, self defense)
look at the act, not the actor “We don’t have a reason to criminalize, not wrong.”
Excusable Homicide Due to accidents, misadventures, acts of insanity (still morally wrong)
“person should not be punished b/c of X, i.e. medical impairment/insanity, etc.”

FELONY MURDER-”Felony is what I want to accomplish, not murder”
Strict liability for death caused during a felony (any death) i.e. Robbery, Burglary, Rape, Arson (serious felony)
Example: Robbing a bank with a gun, accidentally shoot teller or security guard shoots teller, police officer shoots accomplice, etc. Defendant charged for that murder.
-Usually first degree murder.

MANSLAUGHTER (does not require malice) C/L
-Gross/Criminal Negligence
-Killing During a Misdemeanor
-Intentional killing accompanied by ‘heat of passion’ as a result of sudden adequate provocation.
-no time to cool off.
[MPC Involuntary]
-Killing occurs during the course of committing an unlawful act
-Death occurs during negligent commission or omission of an otherwise lawful act.
(public safety, “white collar crimes”)

Mitigation of Murder to Manslaughter if:
Adequate provocation: Have to have been provoked (battery, adultery, assault), words are not enough to provoke. Provocation has to have fueled killing.
Heat of passion: In such an unreasonable state that you cannot control self.
-Any period of reflection is not reasonable.

Gravity of Provocation - subjective. (unique characteristics)
Level of Self-Control - objective. (like age/sex)

Midgett v. State (258) - 1st and 2nd Degree Murder.
-There must be evidence of premeditation and deliberation with intent to convict of first degree murder. In this case there was no premeditation and deliberation present.
-Defendant intended not to kill his son, but to further abuse him (not first degree)
-If his intent was to kill the child, it was in a drunken rage while disciplining (not first degree)
-We find the evidence is sufficient to sustain a conviction of second degree murder.

State v. Forrest (261) - Premeditation + Deliberation.
-First degree murder is the intentional and unlawful killing of a human being with malice and with premeditation and deliberation.
-Premeditation and deliberation relate to mental processes and ordinarily are not readily susceptible to proof by direct evidence. Instead must be proved by circumstantial evidence.
[Circumstances to consider in determining if killing was by premeditation and deliberation]
1. Want of provocation on part of the deceased.
2. The conduct and statements of the defendant before/after the killing.
3. Threats and declarations of the defendant before and during the course of occurrence giving rise to the death of the deceased.
4. Ill will or previous difficulty between the parties.
5. The dealing of lethal blows after the deceased has been felled and rendered helpless.
6. Evidence that the killing was done in a lethal manner.

Girourd v. State (264).
-Provocation by words alone is not sufficient to charge a person with manslaughter instead of murder.
[Facts that may mitigate murder to manslaughter]
1. Discovering spouse in act of sexual intercourse with another
2. Mutual combat.
3. Assault/Battery.
(injury of defendant’s relative or a 3rd party, death resulting from an illegal arrest)
*They create passion in defendant, not considered a product of free will.

[Rule of Provocation]

1. There must be adequate provocation.

-Calculated to inflame the passion of a reasonable man and tend to cause him to act for the moment from passion rather than reason.

2. Killing must have been in the heat of passion.

3. Sudden heat of passion (no cooling down period)

4. Causal connection b/t provocation + passion + act.

-Words + present intention | ability to cause bodily harm.

-Defendant could could not fear bodily harm.

(Model penal code recognizes that words cause extreme emotional disturbance)
Attorney General For Jersey v. Holley (276) - When words are enough (England).
1. Gravity of provocation - subjective
2. Level of self-control - Objective
Would a reasonable person (person of ordinary self-control) react in such a way?
Consider age + sex
“The powers of self-control possessed by ordinary people vary according to their age, and more doubtfully, their sex.”
“Once words could amount to provocation, the gravity of provocation could depend on ‘the particular characteristics or circumstances of the person whom a taunt or insult is addressed.’”

People v. Casassa (285) - Extreme Emotional Disturbance.
Def. breaks in to ex-gf’s apartment, lays in bed, offers her alcohol, she refuses, he kills her.

Must be an objective test- explanation and excuse must be reasonable.

Defense to 2nd degree murder: Def. acted under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse.

Heat of Passion → Immediate.

E.E.D. → Not so immediate.

1. Def. must have acted under influence of extreme emotional disturbance.

2. Reasonable explanation or excuse (based on Def.’s situation).

Ultimate Test = objective, must be a reasonable explanation/excuse.

Murder to manslaughter = heat of passion only.
-Can’t have time to cool off or to reflect.
Passion = result of adequate provocation.
-Passion has to be the only motive for the killing.
Words not adequate.

Unintentional Killings: Unjustified Risk Taking

People v. Knowller (296) - Implied Malice.
Dogs kept by attorneys, show aggression, kill woman in the apartment building.

Express: manifested a deliberate intention to deprive life.

Implied: No considerable provocation appears/abandoned malignant heart.

Requires def’s awareness of the risk of death to another.

Phillip’s Test

Malice = implied when killing is proximately caused by act with consequences that are dangerous to life.

Act = deliberately performed by a person who knows conduct endangers life of another, acts with conscious disregard for life.

→ Requires no issue of awareness of high probability of causing death, only conscious disregard for life.

Must be a conscious disregard for life, not merely conscious disregard that serious bodily injury will occur.

State v. Hernandez (304)
Were the slogans relevant for criminal negligence?
General Evidence Rule: Can’t bring evidence that suggests “bad person”

In order for evidence to be relevant, it must logically tend to support or establish a fact or issue between the parties.

State v. Williams (308)
Def. did not take sick baby to doctor out of fear of CPS. Baby died.
Is negligence sufficient to charge a defendant with manslaughter?
-Yes, negligence is sufficient.

Simple/Ordinary Negligence

-Failure to exercise ‘ordinary caution’ necessary to make out the defense of excusable homicide.

Ordinary Caution

-The kind of caution a man of reasonable prudence would exercise under same/similar conditions.

Proximate Cause

-Was duty to furnish care activated after too late to save life?

If yes: No proximate cause.


-Reasonable person must be able to recognize child’s symptoms require medical attention.

Under MPC, would not be guilty. Negligent homicide must be a ‘gross deviation’.

Unintentional Killings: Unlawful Conduct
A felony + a killing = a murder.

People v. Fuller (316)
Burglary followed by police chase.
Does the felony-murder rule (FMR) apply in a burglary case where the murder was unintentional?
-Yes, def. can be prosecuted for first degree murder.

What are the predicate felonies?
Implied by the dangerousness of the conduct involved in.
→ Eliminates the burden of the prosecution to show/establish malice.
Def. has to know conduct = dangerous to life (conscious conduct).
Inherently dangerous felony.
Merger Doctrine: Elements of a felony needed to establish homicies.
-2 crimes merge.
When felony = complete, no longer responsible for deaths afterwards.

People v. Howard (327) - Inherently dangerous felony limitation.
Routine chase in the course of a routine traffic stop.
-Can def. be charged with murder under 2DFMR relying on (section) being inherently dangerous?

→ No, 2DFRM does not apply in this case. Not all conduct in section = inherently dangerous.


A homicide that is a direct causal result of a commission of a felony inherently dangerous to human life constitutes at least 2DM.

→ Can the felony be committed w/o creating a substantial risk that death will occur?

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