Orange County Grand Jury 2004-2005
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Coroner Case Reviews:
An Examination of the Process
1. Summary
The Orange County Sheriff-Coroner periodically conducts formal hearings into facts
surrounding the deaths of all persons who die while in custody or at the hands of law
enforcement personnel. The hearings are called “Coroner Case Reviews.” They are
referred to in this report as the “review” or “reviews.”
The 2004-2005 Orange County Grand Jury examined the current review process,
concluding that it is well developed, thorough, and impartial. However, the grand jury
found the process leading up to the formal case reviews to be too long (five to seven
months). Because a case review by the sheriff-coroner is necessary before a death
certificate can be issued, the length of time involved creates both emotional and practical
burdens for the families of the deceased. The length of time between the incident and the
formal review also delays notification to the public as represented by the grand jury.
2. Introduction and Purpose of Study
This study examines the coroner’s review process. The deaths involved occurred as a
result of actions by law enforcement officers in the field—such as officer-involved
shootings—as well as deaths that occurred while the decedent was in jail or otherwise in
custody. The process applies to all police agencies in Orange County. The grand jury
serves as the public’s representative at the reviews.
The study explores the extent to which the reviews are objective and unbiased. It
discusses the resources used in preparing for the formal reviews and the efficiency of the
process. It also compares the process used in Orange County with those used in two
neighboring counties.
The study does not address:
The separate investigative process conducted by the Orange County District Attorney’s
office. This investigation determines if there is any criminal culpability on the part of
law enforcement officers involved in such incidents.
Any administrative investigations conducted separately by either the sheriff-coroner or
the local law enforcement agency involved in these types of deaths. The purpose of
these investigations would be to determine what, if any, violations of departmental
policies or procedures might have occurred and what corrective action might be
necessary.
Orange County Grand Jury 2004-2005
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3. Method of Study
During the 2004-2005 year, the jury attended six coroner’s reviews covering 23 deaths.
Tours, interviews, and reviews of regulations and procedures were conducted with
pertinent agencies and personnel. Comparisons were made with methods used in two
other counties.
State laws, county regulations, memoranda of understanding (MOUs), and agreements
between law enforcement agencies were reviewed. Each staff member who participates in
the reviews was interviewed as to his or her role, the adequacy of resources, and his or
her thoughts about the process. In addition, grand jurors attended a coroner’s review in
Riverside County, which uses a process similar to the one used in Orange County. To get
another perspective, grand jurors visited San Diego County, which uses a different
process.
4. Background
4.1 The Review Defined
The coroner case reviews are conducted solely to:
Confirm the identity of the decedent and the place, date, and time of death
Determine the medical cause of death
Determine the manner of death as one of the following:
Homicide (defined as death at the hands of another)
Suicide
Accident
Natural
Unknown
4.2 History
The elected Orange County Sheriff-Coroner is the combined office of what once were
separate county agencies. They were combined in January 1971. Statewide, 45 of the 58
counties have combined these offices under a law that allows each county to choose the
method of carrying out the coroner function.
In 1985, an MOU was adopted by the Orange County Sheriff-Coroner and the county’s
District Attorney. Essentially, it said the district attorney’s office would conduct all
investigations regarding deputy-involved or in-custody deaths under the sheriff’s
jurisdiction.
Since 1990, based on a protocol adopted by the sheriff and local police chiefs, all cities
“shall request an immediate investigation by an uninvolved agency to determine criminal
culpability, if any, of those involved.” It has become customary for the district attorney’s
office to be invited to lead these types of investigations for all city police departments
except the Huntington Beach Police Department. It has a similar agreement with the
Sheriff’s Department. The purpose of these agreements is to avoid any appearance of a
conflict of interest.
Report—Coroner Case Reviews: An Examination of the Process
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4.3 Current Review Process
Upon notification of a death in which law enforcement personnel are involved, special
investigative teams are notified and dispatched to the scene. These teams involve
investigators from the district attorney’s staff, deputy coroners, and specialists from the
county’s forensics laboratory. Members of these teams are on call 24 hours a day, seven
days a week.
An investigation of the scene is conducted. Physical evidence is collected and preserved.
Photos are taken. Diagrams are drawn. The remains of the victim or victims are
transported to the coroner’s facility in Santa Ana, where an autopsy is normally
performed within 24 hours. Toxicology tests are conducted, and x-rays taken. Interviews
of all witnesses and other appropriate parties are conducted.
The following chart shows the participants in this process, their responsibilities, and
whether they investigate at the scene or report at a later time during the overall review
process.














The results of all the factors mentioned above (i.e., evidence collected at the scene,
autopsy and laboratory findings) are presented at informal preliminary meetings among
those participating in the investigation. This allows for questions and assessments as to
whether further investigation is necessary. The entire process is lengthy and requires

Participant Responsibilities for Coroner Case Reviews
Participant Reports to: Investigates
at Scene
Formal
Review
Process Duties:
District Attorney Investigator
and
Team
District
Attorney Yes Yes
• Leads Investigation
• Coordinates activities of all participants at
the scene on sheriff’s calls
• Collects information from all participants
and prepares final report for DA
Sheriff-Coroner Forensic
Specialist
and
Team
Director
Forensic
Sciences Yes Yes
• Collects physical evidence at scene of
death
• Investigates and analyzes all physical
evidence
• Reports all information and conclusions to
DA investigator and Chief Deputy Coroner
Deputy Coroner
and
Team
Chief Deputy
Coroner Yes Yes
• Investigates physical characteristics of
decedent’s body at the scene to include
location and time of death
• Reports all information and conclusions to
DA investigator and Chief Deputy Coroner
Sheriff Coroner Toxicologist
and
Team
Director
Forensic
Sciences No Yes
• Performs toxicology studies on decedent to
determine presence of drugs
• Reports findings to DA investigator and
Chief Deputy Coroner
Forensic Pathologist*
Contract
Position No Yes
• Performs autopsy on decedent within 24
hours of death to determine medical cause
of death
• Reports results to Chief Deputy Coroner
Grand Jury chart 2005
* This contract is with an Orange County Forensic Pathology medical group. When Orange County Sheriff personnel are involved, a
forensic pathologist from outside Orange County performs this function.
Orange County Grand Jury 2004-2005
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many man-hours to complete. Detailed reports must be written, and time to conduct
laboratory tests is required. The circumstances of each case influence this length of time,
as well as the number of cases being investigated at any given time.
When the information is complete, the final results are presented at a formal Coroner
Case Review, which typically covers three to four cases and takes place from five to seven
months after each incident.

















4.4 Formal Review Sequence
A senior investigator from the district attorney’s staff summarizes a detailed time line
surrounding the death.
A senior forensics specialist presents further details, often accompanied with schematic
drawings, other illustrations, or photos.
The forensic pathologist presents a summary of the autopsy, with an accompanying
diagram, emphasizing the medical cause of death.
The senior toxicologist provides the results of testing that was done to determine types
and amounts of drugs that may have been found.
The chief deputy coroner then announces the recommended medical cause and
manner of death based on the evidence presented.

Review Process Flow Chart





















Grand Jury Chart 2005
Officer
Involved or
In-Custody
Death
Dispatch
to
Scene
Lab
Procedures
Comprehensive
Report Presented
by the office of
Chief Deputy
Coroner
Input from:
D.A. team
deputy coroner
forensic team
toxicologist
pathologist
Formal
Coroner Case
Review
D.A.
Investigative
Team
Forensics
Team
Forensic
Pathologist

Toxicologist
Investigation
at Scene under
Direction
of D.A.
Deputy
Coroner
Orange
County
Grand Jury
Report—Coroner Case Reviews: An Examination of the Process
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Questions are taken from the panel, including members of the grand jury.
The sheriff-coroner, or his designee, is then asked to accept the findings and so indicate
on the death certificate.
4.5 Procedure in Other Counties
Grand jurors visited Riverside and San Diego counties to determine how their cases are
handled.
Riverside: Riverside County also has a sheriff-coroner system and conducts coroner case
reviews in much the same manner as Orange County. The most noticeable difference is
the absence of district attorney involvement in Riverside’s coroner reviews. The Riverside
District Attorney does conduct a parallel investigation to determine responsibility and
culpability, if any, but the sheriff-coroner believes there is no requirement for district
attorney investigators to participate in the coroner reviews. Riverside generally has a lag
time of approximately three months between the incident and the review. As in Orange
County, members of the Riverside Grand Jury attend the reviews.
San Diego: The process is different in San Diego County, where the sheriff does not carry
the combined title of sheriff-coroner. Identification of the deceased, and the cause and
manner of death are determined solely by the county medical examiner. The sheriff has
no input and the decision of the medical examiner is not subject to review by the sheriff.
Any investigation as to culpability is conducted by the district attorney. This system
clearly encourages independence and reduces the potential for conflicts of interest.
However, San Diego’s system appears to require a larger organization than the system
used in Orange County. The San Diego system also inhibits the sharing of information
and the potential for economizing on resources.
4.6 Numbers of Review Cases Conducted Historically
During the past five years
(2000 through 2004), the
number of deaths requiring
Orange County coroner case
reviews has increased
considerably. The chart on
the right illustrates the
increase.
During this same period,
other deaths (non-law
enforcement involved) that
require the coroner to make
similar investigations, such as homicides, suicides, traffic accident deaths, etc., have
increased from 8,144 in 2000 to 9,481 in 2004. The number of deputy coroners has
remained static at 17 and the forensic staff has remained at ten. This results in a 16.4%
increase in the overall workload and contributes to the lag in time conducting coroner
Sheriff-Coroner Review History
Year Deaths:
Shooting Deaths:
In-Custody Total
2000 3 5 8
2001 8 6 14
2002 7 5 12
2003 11 15 26
2004 14 11 25
Total 43 42 85
Grand Jury chart 2005

Orange County Grand Jury 2004-2005
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case reviews. The cases in which law enforcement is not involved take an average of two
months to complete.
5. Observations
Interviews conducted by the grand jury revealed that the entire process is time
consuming, taking five to seven months to reach the formal review stage. This creates a
burden for the loved ones of the deceased who must wait for a death certificate. This is
important because death certificates are needed by survivors to settle a decedent’s legal
affairs. For example, death certificates are required by banks, insurance companies, the
Internal Revenue Service (IRS), Social Security, and any transactions involving changes of
ownership.
The grand jury also learned that if death certificates are signed within 60 days of a death,
official copies may be obtained from the county in a timely manner. After that, it may take
up to ten weeks to obtain a copy from the state.
The grand jury sees the formal reviews as thorough and objective in preparation and
presentation. The participants involved in the process are professionals. The illustrations
and schematic drawings of the scene are informative. Perhaps by using computer
technology, they could be even more illustrative of the circumstances surrounding the
incidents.
The participants commented to the grand jury that there is excellent communication and
cooperation among the involved agencies–welcome factors in any investigation.
Further, the appearance of any conflict of interest is dispelled by the objective
participation of the district attorney’s office in the role of lead investigator. The taxpayer
is well served by the competence of the investigators at all levels of this process and the
state-of-the-art forensics equipment available for these investigations.
The grand jury represents the public at the formal review sessions and has the power to
conduct an independent investigation of events presented at these reviews. However, the
long period of time between an incident and the formal review dilutes the potential grand
jury oversight role.
Report—Coroner Case Reviews: An Examination of the Process
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6. Findings
Under California Penal Code Sections 933 and 933.05, responses are required to all
findings. The 2004-2005 Orange County Grand Jury has arrived at the following findings:
6.1 The coroner case review is thorough, objective, and accurately determines the
information required of the sheriff-coroner as to the cause and manner of death.
6.2 The five- to seven-month time difference between the incident and the formal
hearing is too long. This delays issuance of death certificates. It also delays
notification of the public as represented by the grand jury.

Responses to Findings 6.1 and 6.2 are required from the Orange County
Sheriff-Coroner.

7. Recommendations
In accordance with California Penal Code Sections 933 and 933.05, each recommendation
will be responded to by the government entity to which it is addressed. The responses are
to be submitted to the Presiding Officer of the Superior Court. Based on the findings, the
2004-2005 Orange County Grand Jury makes the following recommendations:
7.1 The coroner case review is sound and should be continued. (See Finding 6.1.)
7.2 The sheriff-coroner should develop ways to reduce the time between the incidents
and the formal hearings (see Finding 6.2).

Responses to Recommendations 7.1 and 7.2 are required from the Orange
County Sheriff-Coroner.

8. Bibliography
1. Constitution of the State of California
2. California Government Code; 27491, 24300-24308, 27460-27472
3. California Health and Safety Code; 102850-102870
4. 1985 Memorandum of Understanding between Sheriff-Coroner and District Attorney
5. 1990 Operational and Procedural Protocol–Orange County Chiefs of Police and
Sheriff Assn.
6. Web Site: www.ocsd.org/coroner
7. Web Site: www.riversidesheriff.org/coroner
8. Web Site: www.sdcounty.ca.gov/public/safety
9. Web Site: www.sdsheriff.net/sheriff1.html
Orange County Grand Jury 2004-2005
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Criminal Law Outline

1. Classification of Crimes

• Malum in Se: Crimes that are inherently dangerous, bad, or immoral.
• Malum Prohibitum: Offenses that are not prohibited because of any basic immortality but out of necessity to regulate the general welfare (prohibition against driving on the wrong side of the road).
• 
  

2. Punishment Theories

1. Retribution:

• Person is punished only when punishment deserved.
• All cases determined on individual basis.
• Backward looking-based on what the person did.
• Concerned with a person’s blameworthiness for crime.
• Moral culpability of an offender gives society the “duty to punish.”
• Punishment is the way in which society expresses its denunciation of wrong doing
• The moral desert of an offender is a sufficient reason to punish

2. Utilitarianism

• Punishment stems from society as a whole.
• No reason to punish unless there is societal gain.
• More sympathetic to the elderly and mentally ill.
• Justify punishing past offences by greater good of preventing future offences.

3. Rehabilitative

• Based on improving the human being.

• The purpose of punishment is to change the character of the offender, to adjust that character to the social order
• Embraces any strengthening of the offender’s disposition and capacity to keep within the law, which is intentionally brought about by human effort otherwise than through fear of punishment
• Aim of punishment is not only to keep offenders from causing harm, but in the reverse, to actually give/teach them the skills to contribute to society and better themselves

4. Deterrence Question

• General meaning is to send message to the community to deter people at large and is future oriented. Specific Meaning is to deter future crime by the individual.

Case Examples:

• Regina v. Dudley and Stephens: Defendants murdered boy when cast out to sea with no rations. Defendants receive only six months. Retributivist would question if six months is enough of a sentence to serve justice. Question of whether murder justifiable. Court finds that it was willful murder and the situation was no justification for murder. Ds found guilty for murder.
• US. v. Bergman: A white collar crime case. Addresses what appropriate punishment should be and how deterrence is involved. Court says that public humiliation does not serve the function of imprisonment and sentence him to four months’ imprisonment. he was sent to jail because it is punishment for his crime (embezzlement). Prison does not serve the purpose of rehabilitation but for punishment in his case.
• US v. Johnson: D. participated in fraud scheme to steal checks. Court reduced sentence because Johnson had family.

3. Defining criminal conduct

1. General

• Actus Reus and Mens Rea are the two basic elements to every crime.
• Actus Reus-the act; Mens Rea: the criminal state of mind.
• To constitute a crime, the act must incur with the intent (the intent must accompany the doing of the act, and the actus reus must be attributable to the mens rea.
• The act must be prohibited for a crime to exist.

2. Actus Reus: Objective elements. Culpable Conduct: Voluntary acts are culpable when they are in violation of law or statute. The actus reus is the actual commission or omission of some act prohibited by law.

• Conduct (Must have this, not guilty on thoughts alone)

(1). Act, or

(2). Omission

• An “act” is any event subject to control of the will and is voluntary.

3. MPC on Actus Reus:

MPC- 2.01 (1) & 2.01 (2):

• Excludes liability in absence of voluntary act.
• Involuntary Act: “Act which is done by the muscles without any control by the mind such as a spasm or reflex action or a convulsion.” Hypnotized acts are not voluntary.

A habitual action done without fault is a voluntary act. Possession is an act if the person knowingly procured or possessed or received the thing possessed.

Rule: Involuntary actions are not an act of Actus Reus

• Martin v. State: D. was arrested at home and taken onto highway where he committed acts in his drunken condition including loud and profane language. The statute refers to someone who “appears” in public place. Court says a voluntary appearance is assumed so can’t be convicted and have to pay fine. Not voluntary = Not culpable. He can’t be held accountable for an involuntary act. From retributivist perspective there was no moral blameworthiness so fundamentally wrong to hold someone for what they are not responsible for. Utilitarian perspective: unclear of what the deterrence is in holding but not all acts have to be voluntary to be convicted. Rule: A person can’t be convicted of a crime when his conduct is not voluntary.

• People v. Newton: D. was charged with voluntary manslaughter for killing police officer during a struggle. During the struggle, the de. Was shot and wants defense of unconsciousness available as defense and the jury instructed. Court held that when there is evidence of involuntary unconsciousness then refusal of that jury instruction is prejudicial error. Rule: Unconsciousness, where not voluntarily induced, can be a complete defense to murder. Unconsciousness includes situations where the D. can act physically but is not conscious of what they are doing.

Rule:

Can NOT be convicted for having a condition that you don’t act on (i.e., based on status).

• Robinson v. California: Whether person can be convicted for the status of being a narcotics user even if never used narcotics in that state. Decision seemed more constitutional based. Person can’t be found guilty for mere status. Rule: The act may involve the status or condition of an individual, such as those crimes punishing individuals for vagrancy or drunkenness.

• Powell v. Texas: D. charged with being intoxicated in a public place. Chronic alcoholics do not suffer from such an irresistible compulsion to drink that they are unable to control themselves in public. He knowingly failed to take precautions against committing criminal act and his chronic alcoholism is not a defense.

B. Omissions

• In order to hold someone guilty for an omission, they must have had a duty to act.

• Misprision of Felony: Concealment of treason or felony by one not participating in the crime.

• Utilitarians: would impose a good Samaritan rule on many cases.

• Good Samaritan rules are rare because a personal decision to offer help and feared they will diminish freedom.

• Four primary situations where a D will have a legal duty to act, and will be held liable for an omission even if the statute in question explicitly outlaws only positive acts. These include: Special relationships exist (eg family); A contractual duty requires action; The D caused the danger; and the D undertakes assistance.

• MPC 2.01 (3): No Liability for omissions unless: “omission is expressly made sufficient by the law defining the offense or “a duty to perform the omitted act is otherwise imposed by law.”

• Pope v. State: D. didn’t stop frenzied religious mother from abusing her child. Rule: D. had no legal obligation to help the child under her supervision and can’t be punished for failing to fulfill a moral obligation so she can’t be punished for her omission. (She was not required by statute to assist).

• Barber v. Superior Court: Though the doctors removed life support intentionally and with knowledge this was not an unlawful failure to perform a duty. Rule: Doctors will only have criminal liability for removing life support if they had a duty to continue to provide. (here no duty because they learned patients desires through the wife).

• Jones v. US: D. not guilty for failing to provide for baby who lived with mother in his house. There was no evidence that he had a legal duty to care for child. Rule: When person criminally charged with an omission to act, the government must prove there was a legal duty to act. Moral duty not enough to hold someone liable.

• Cruzan v. Director, MI Dept. of Health: MI has right to deny right to die of woman on life support (to remove life support).

• Jones v. State: D. did have a duty to rescue and was criminally liable for an omission when he didn’t rescue a child who had jumped in a creek and drowned after he raped her.

• People v. Kevorkian: issue is whether the due process clause encompasses fundamental right to commit suicide and, if so, whether it includes right to assistance?

2. Mens Rea: A guilty or wrongful purpose; a criminal intent. The intent required is not the same for all crimes. (negligence may be sufficient in some crimes).

• Refers to the mental state required to accompany the act that produces or threatens the harm.

• Unless the D is being held strictly liable for an offense, the prosecution must prove one of four levels of mental culpability for each material element of the offense. (Either purpose, knowledge, reckless, or negligence.)
• Two definitions. In the broad sense: moral blameworthiness. In the narrow sense: the level of intentionality.
• One definition - All that needs to be shown is that an actor had some “ill will or intent,” when the crime was committed
• Currently, this definition has evolved to include four levels of culpable mental state: purposely, knowingly, recklessly, and negligently. These are described in detail in the Model Penal Code § 2.02 – page 1137-1138
1. Intent-Each crime has own standard as to what kinds of intent required. At common law there were three types of mens rea: general, specific, and criminal negligence.

1. General: Requires only that the accused meant to do the act committed. (that the prohibited result was substantially certain to flow from the intentional conduct)
2. Transferred: When person has required intent to do an act, he may be held responsible for results he didn’t intend.

2. Malicious: Requires that the D. acted recklessly with foresight of the actual consequence, or it requires actual intent to do the particular harm done. It does not require that an ill will toward the person injured by shown.
3. Wanton or Reckless Conduct: This consists of the intentional failure to take reasonable care when confronting a known risk. Recklessness is where the D. foresees that such harm might occur but does the act anyway.

Note that establishing culpable conduct is a very technical part of the penal code.

2. Mens Rea – Culpable Mental States – prosecution must prove the level of mens rea required for each element of a crime. It is a very technical part of the Modern Penal Code. See the exercises on page 213-214.

MPC § 2.02 General Requirements of Culpability:

(1) Minimum requirements. Except as provided in §2.05, a person is not guilty of an offense unless he acted purposely, knowingly, recklessly, or negligently, as the law may require, with respect to each material element of the offense. [Material elements are actus reus: 1) Conduct; 2) Circumstances surrounding conduct; 3) Result of conduct.] (have to prove one of these elements with each voluntary act?)

2. Kinds of Culpability Defined.

1. Purposely

1. If element involves conduct or a result thereof, it is his conscious object to engage in conduct of that nature or to cause such a result; and

2. If element involves the attendant circumstances, he is aware of the existence of such circumstances or he believes or hopes that they exist.

(Acting knowingly is usually enough, but it implies that you did what you did for a specific criminal purpose, have a specific intent, or know the circumstances involved will get you the result you want.)

2. Knowingly

1. If element involves conduct or the attendant circumstances, he is aware that his conduct is of that nature or that such circumstances exist; and

2. If element is result of conduct, he is aware that it is practically certain that his conduct will cause such a result. (knew could or would happen, didn’t care, and acted).

3. Recklessly

One acts recklessly when one consciously disregards a substantial and unjustifiable risk that material element exists or will from his conduct. The risk must be of such nature and degree that it involves a gross deviation from that standard of conduct of a reasonable law abiding person. (Here one knows of danger and is “indifferent” to it.)

4. Negligently

One acts negligently when one should be aware of a substantial and unjustifiable risk that the material element exists or will result from his conduct. (It does not involve awareness, but) it is a gross deviation from the standard of care a reasonable law abiding person would take. (Here the “act is inadvertent and the fault is inattentiveness.”)

MPC 2.02: A person not guilty of offense unless acted purposely, knowingly, recklessly or negligently. p.1137.

-Recklessly involves consciously creating the risk and risk is unjustifiable.

-Establishing Knowledge can be difficult to prove. (see it, smell it, hear people talking about it).

• Note: MPC distinguishes between “reckless” and “negligent” conduct as follows:

Recklessness: The D. acted with conscious disregard of a substantial and unjustifiable risk to another.

Criminal Negligence: The D. failed to perceive a substantial and unjustifiable risk to another resulting from his conduct in contravention of the standard of care of the reasonable person.

1. The court will apply criminal negligence to a statute that requires negligence, unless the statute otherwise provides for civil negligence to be the mens rea element. ****

MPC § 2.02

(3) Culpability Required Unless Otherwise Provided. When the culpability sufficient to establish a material element of an offense is not prescribed by law, such element is established if a person acted purposely, knowingly, or recklessly.

• knowledge for conduct (see Voluntary Act Requirement)
• recklessness for circumstance and result

(4) Prescribed Culpability Requirement Applies to All Material Elements. When the law defining an offense prescribes the kind of culpability that is sufficient for the commission of an offense, without distinguishing among the material elements, such provision shall apply to all the material elements of the offense, unless a contrary purpose plainly appears.

• Regina v. Cunningham: D. accused of unlawfully and maliciously causing victim to inhale coal gas and endanger her life. Issue: was the act malicious? Court doesn’t convict because jury wasn’t allowed to consider whether even if d. didn’t intend injury if he foresaw that the injury could occur. Rule: A person can’t be convicted under a statute that requires criminal intent when he did not actually intend to do the harm done and did not foresee the result. The court must prove had a mens rea element in the crime. It has to prove both an actus reus and mens rea element.

• Santillanes v. New Mexico: D. cuts nephew’s neck with knife during argument. D. requests criminal neg. standard but court refuses civil neg. standard instead. Criminal negligence (mental element present) vs. civil negligence. The court said you can’t be charged criminally under a statute for having civil negligence because the stigma attached requires a mental state that warrants that contempt. Therefore, when a criminal statute is silent as to the element of negligence required, the court will interpret to be criminal negligence. Criminal negligence is a “gross deviation” from a standard of care that a reasonable person would take; civil is any deviation. Rule: Felony punishment requires criminal negligence not ordinary civil negligence.

The court will infer that one is knowledgeable and not just reckless when one is found to be practically certain of a risk and acted to avoid having knowledge.

MPC § 2.02

(7) Requirement of Knowledge Satisfied by Knowledge of High Probability. 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 high probability of its existence, unless he actually believes that it did not exist.

US v. Jewell: D convicted of knowingly transporting MJ in car from Mexico to U.S. concealed in a secret compartment; D testified that he knew compartment was there but not drugs. The court held that acting to avoid knowledge when the defendant knew of a practically certain risk that what he was doing was illegal is a form of “knowledge.” Although the judge’s instruction was worded here as the definition of recklessness, here there must be a HIGH probability that risk exists; under recklessness, probability must just exist.

What distinguishes willful blindness definition of knowledge from recklessness?

• Subjectively aware of a high probability of risk
• Conscious effort to avoid learning
• UNLESS: you really believe it doesn’t exist.

3. Mistake of Fact: honest but unreasonable mistake of fact is a defense as long as not reckless.

• an unconscious ignorance of a material fact. It is a common defense challenging the mens rea necessary to convict.

Under common law, a reasonable mistake negates a general or specific intent. Specific intent crimes mention a particular mens rea; general intent crimes don’t. A reasonable mistake, therefore, negated any type of crime. An unreasonable mistake could only negate a specific intent crime.

MPC § 2.04 Ignorance or Mistake (p. 1139)

(1) Ignorance or mistake as to a matter of fact or law is a defense if:

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

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

(2) Although ignorance or mistake would otherwise afford a defense to the offense charged, the defense is not available if the D would be guilty of another offense had the situation been as D supposed. In such case it will reduce the grade and degree of the offense of which D may be convicted to those of the offense of which he would be guilty had situation been as D supposed.

If it does negate the mens rea required then the defendant has to be acquitted.

Step 1: Figure out what mens rea is required for the crime.

Step 2: What level of mistake will negate mens rea?

a) Any mistake, reasonable or unreasonable, will negate purpose or knowledge.

• 2 kinds of unreasonable mistakes: negligent and reckless.
• Reckless mistake – you consciously disregard the risk you could be wrong (“maybe I’m wrong but I think I’m right”)
• Negligent mistake – risk does not even occur to you, but it would to a reasonable person.

b) A reasonable or negligent mistake negates a recklessness mens rea.

c) Only a reasonable mistake negates a negligent mens rea.

d) Strict liability negates any mistake (because no mens rea required).

4. Where mistake of fact is of age of a child then strictly liable even if a reasonable belief. No mens rea is required. The mistake can be used in sentencing but not as a defense of the act itself.

• Regina v. Prince: D. takes girl under 18 from father. Majority holds d. liable even though he believed she was over 18 because the act committed was wrong in itself (taking girl away from father without permission. Rule: Reasonable but mistaken belief in a particular fact not a defense to a strict liability crime.

• People v. Olsen: D. convicted for having intercourse with minor even though he mistakenly believed she was over 18. Rule: A Good faith belief that a person is over 16 years old is not a valid defense to a statutory rape charge.

M.P.C. 2.04 (1) & (2): p.1139

• Ignorance or Mistake is a defense when it negatives the existence of a state of mind essential to the commission of an offence.
• If d’s believe unreasonable he would be found guilty.
• Even if person makes reasonable mistake but it reflects .badly on his character he would be held liable.

5. Strict Liability: Where liability is imposed without demonstrated culpability. E.g., manufacturing and traffic violations. Usually small fines and no possibility of jail. Statutory rape the exception due to policy reasons.

• As a general rule, SL should not be assumed courts have held that conduct that is prohibited by the statute (malum prohibitum) without the possibility of of imprisonment, can be a strict liability offense even if it is not explicitly stated in the statute.

General Rule:

Strict liability is usually not imposed where the penalties are high, and offense is one of “public welfare.” Usually the courts impose that crime has to have mens rea to convict. Require some indication of congressional intent to dispense with mens rea element-silence alone does not mean that Congress intended to dispense with mens rea requirement.

• Morissette v. US Supreme Court: D entered air force bomibing area and appropriated some old bomb casings. His defense was that he honestly believed the government had abandoned the casings. Larceny offense almost always requires a mens rea of the circumstances (i.e., that property belongs to someone else). Here D had a mistake of fact that the property he took was abandoned when it was not. The mens rea element should have been reckless; if he was only negligent, then no mens rea and he is not guilty. No reason for strict liability.

• US v. Staples: D was convicted of violating the National Firearms Act by possessing a weapon capable of automatically firing more than one shot with a single pull of a trigger. Court doesn’t convict. Rule: A D can’t be convicted of possessing an automatic weapon without proof that he knew his rifle could fire automatically.

• Regina v. Sault St. Marie: MPC sec. 2.05 makes pub. Welfare offenses not crimes but violations. Court holds that the basic justifications for absolute liability in public welfare offenses (the need for a strong incentive and administrative efficiency) do not override the violation of fundamental principles of penal liability.

6. Mistake of Law:

• Ignorance or personal misinterpretation of the law a person is being tried under is not a valid defense. An official misstatement of the law the person is being tried under, if reasonable, can be a valid defense.
• Mistake of law must negate mens rea to be a defense. Mistaken about law that defines criminal conduct (= no defense) v. Mistaken about element of the crime that negates required mens rea (= defense) [some side law that is included in the main crime]
• Apples example. Neighbor accuses you of stealing apples.
• You honestly think the apples are from your tree à mistake of fact; not guilty.
• You think you are entitled to take his apples because the branches were hanging over your property line, although this is not the law à mistake of law; not guilty – mens rea has been negated. (Mistake about law of property, not larceny.)
• You think you can just take the apples à GUILTY.

MPC §2.04(3)

A belief that conduct does not legally constitute an offense is a defense to a prosecution for the offense based on such conduct when:

(a) statute or other enactment defining the offense is not known to the actor and has not been published or otherwise reasonably made available prior to the conduct alleged; or

(b) he acts in a reasonable reliance upon an official statement of the law, afterward determined to be invalid or erroneous contained in (i) statute or other enactment (ii) judicial decision (iii) administrative order or grant of permission (iv) official interpretation by body with responsibility to do so.

• Under common law, mistake of law does not relieve Ds of criminal liability.
• Generally, under MPC, mistake of law not an affirmative defense and excuses no one. Are exceptions. 1) Reasonable reliance: if d. focuses on the official word of the law that comes out erroneously. 2) Fair Notice Principle: applies in very narrow circumstances where d. can argue didn’t get a fair notice of what the law is. 3) Ignorance or mistake of law about another law changes mens rea. 4) Defense if crime is defined so that d. had to be aware.

• People v. Marrero: D was a federal corrections officer who carried a loaded gun but was not licensed to do so. Had two defenses that one he was exempt because a peace officer, two, he reasonably believed the statutory exemption applied to him as a federal corrections officer. Court said no because didn’t base his assumption on an “official statement” that in fact authorized his conduct. Roberts contends that defendant should have argued a mistake about the law of peace officers (not law of concealed weapons) and that the mistake negated his mens rea. Bad decision. Rule: A misinterpretation of a statute is not a valid defense to a crime that does not require an intent to violate the statute.

• Cheek v. United States: D was convicted of willfully evading taxes and failing to file a tax return. D’s defense was that he believed that he owed no taxes and that the tax laws were unconstitutional. Congress provided for a mistake of fact of the law would negate mens rea in the tax code. Error in that instruction to jury based on negligence; statute said you had to know to file a return. Leniency due to complexity of the tax code (more an exception than a rule). Ignorance of the law is a defense when the crime by its terms requires that a person know of the existence of the prohibition.

• US v. Albertini: D received bar letter from commander of naval base telling prohibiting him from entering the base. D still entered and participated in demonstration. A person can not be convicted for engaging in conduct that an appellate court has held constitutionally protected if the appellate court’s decision is overturned after the person engages in the conduct.

• Cultural Defense: Generally not accepted. May be valid as a regular mistake of law (related to some other law – not the crime involved). More relevant in mitigation than in excuse.

7. RAPE

1. 1. Mens Rea: Most courts hold negligence as the mens rea required for rape, and only allow mistake of fact defense when the D honestly and reasonably believed V consented. Spouses can now rape each other, before couldn’t. Two steps to deciding:
• what was D awareness of lack of consent;
• what standard should D be held to?

• General Rule: Reasonableness of Mistake of Consent: If statute requires knowledge that she doesn’t consent, then any honest mistake, reasonable or unreasonable, will defeat mens rea.

• Regina v. Morgan: D invited three other men to come to his house and have sexual intercourse with his wife. D’s wife testified that she did not consent. The reasonableness of a D’s actual belief with respect to an element of the crime should not be determinative of his guilt. After decision, Parliament changed mens rea from knowledge to recklessness, so honest and reasonable, or negligent mistake would no longer negate mens rea. Although they let conviction stand on ground that no reasonable jury would have believed the mistake.

• Commonwealth v. Sherry: Court held negligence is standard mens rea as to consent, not knowledge as Ds argued (Ds should have known she was not consenting – objective standard); therefore, only a reasonable mistake will acquit (if knowledge required, any mistake of fact would acquit). V didn’t have to use physical force to resist, as long as can show didn’t consent. Rule: The accused’s subjective belief that the victim did not object to intercourse did not constitute a defense to the crime of rape.

• To Determine Consent 1) jury decides if affirmative consent by V 2) consent freely given, 3) if D said V did, jury to decide if D thought of consent was reasonable. 4) Affirmative consent is not silence.

2. ACTUS REUS: Generally rape consists of 1) force or threat 2) no consent 3) sexual penetration. In most states, force is a required element of rape. Usually when there is no force, not a criminal offense unless the V is underage, unconscious, or mentally incompetent. Look to force as proof victim did not consent.

Force or Threat of Force Requirement:Resistance from victim often read into force requirement; resistance goes to: 1) proof of consent; 2) defendant’s mens rea; and 3) force requirement (D has to use force because she is resisting). Victim’s Fear can negate the force requirement if V didn’t resist b/c of reasonable fear (Hazel v. State).

• State v. Rusk: D meets V in bar and he gives her a ride home and eventually rapes. Pat did not resist, so appellate court acquitted. Supreme Court found enough threat of force in putting hands on neck and saying he would kill her to justify conviction and reversed. The reasonableness of the victim’s fear is a factual question for the jury.

• State in the interest of M.T.S.: V is 15 yr old girl who lives with her family and V claims she awoke to D raping her. Court looked to assault and battery and saw nonconsensual touching as a crime and applied it to rape. No force or resistance requirement; ruling turns on lack of affirmative, freely-given consent. (Jury still has to believe there was no consent and D acted unreasonably.) NJ is considered radical Sup. Ct. Court holds that the statutory requirement of physical force does not mean the use of force to overcome lack of consent.

• Commonwealth v. Berkowitz: Even though lack of consent, “forcible compulsion” requirement not met, and not enough threat to prevent resistance when D locked the door. Must be a threat that would prevent resistance by a person of reasonable constitution. D acquitted of rape but convicted of indecent assault. The court holds that the fact that a victim merely says “no” will not establish that force was used. That evidence will go to the issue of consent only.

• State v. Thompson: D is high school principal alleged to have forced one of his students to have intercourse with him by threatening to prevent her from graduating. Court dismisses sexual assault charges because you can’t stretch the definition of force to include intimidation, fear or apprehension.

• People v. Liberta: D and V married. Court holds that the statutory marital exception to rape is not a valid defense. The marital exception is still around but note that many states have modified their laws.

• Corroboration and Jury Instructions: There are special difficulties with proving and disproving rape, so rules of evidence have been constructed specific to this area. Corroboration is sometimes required because of the severity of sentences, it is difficult to defend against, for racial and sexual discrimination reasons.

• US. v. Wiley: Court holds that independent corroborative evidence is regarded as sufficient when it would permit a jury to conclude beyond a reasonable doubt that the victim’s version of what happened was not fabricated.

• Cross-Examination and Shield Laws: Generally, character evidence is not admissible to prove conduct. Most jurisdictions have “rape shield” laws that generally bar evidence of the victim’s unchastity on the issue of consent.

• State ex rel. Pope v. Superior Court: Court holds that evidence of a victim’s unchaste character can’t be used to impeach the victim’s credibility.

• State v. DeLawder: D was charged with statutory rape of a girl under 14. D wanted to discredit the witness using evidence revealing her ulterior motives (at time of rape she thought she was pregnant by somebody else and didn’t want mother to know). Court holds that a D can use evidence of prior bad acts when such evidence may directly reveal the witness’s biases, prejudices, or ulterior motives.

• Government of the Virgin Islands v. Scuito: D was convicted of forcible rape and D seeks psychiatric examination of the woman because of her reputation for drug abuse. The trial judge has discretion as to whether to order a psychiatric examination of an alleged rape victim.

• Commonwealth v. Stockhammer:

8. HOMICIDE:

• There are three types of homicide. Justifiable: If is commanded or authorized by law (when doing an execution of death, in preventing an escape), Excusable: May be accidental or in self-defense, Comment: Excusable as a result of the person committing the act (infants, feeble minded persons etc.), Criminal: The killing of another human being without justification or excuse.

• Note that causation can be very difficult to establish in homicide cases.

• Note that where there exists a legal duty to act, an omission to so act will constitute criminal homicide if such omission results in the killing of another human being.

1. Definition: MPC Article 210 Criminal Homicide:

§ 210.0 Definitions: (1) “human being” means a person who has been born and is alive;

§ 210.1 Criminal Homicide: (1) A person is guilty of criminal homicide if he purposely, knowingly, recklessly or negligently causes the death of another human being. (2) Criminal homicide is murder, manslaughter, or negligent homicide.

MURDER: MPC § 210.2 Murder: (1) Except as provided in section 210.3(1)(b), criminal homicide constitutes murder when:

(a) it is committed purposely or knowingly; or

(b) it is committed recklessly under the circumstances manifesting extreme indifference to the value of human life. Such recklessness and indifference are presumed if the actor is engaged or is an accomplice in the commission of, or an attempt to commit, or flight after committing or attempting to commit robbery, rape or deviate sexual intercourse by force or threat of force, arson, burglary, kidnapping or felonious escape. (2) Murder is a felony of the first degree.

• Murder is the unlawful killing of a human being by another human being with malice aforethought this includes the intent to kill, the intent to inflict serious bodily harm, and a depraved heart (reckless conduct that a reasonable person would realize creates a high degree of risk or death or serious bodily injury to another may constitute murder).

• MPC grading for Murder is a killing committed: purposely, knowingly, or recklessly under circumstances manifesting extreme indifference to human life.

• Malice aforethought is used to describe four states of mind: 1) the intention to kill a human being 2) the intention to cause grievous bodily harm to another 3) an extremely reckless disregard for the value of human life, or the intention to commit a felony, the commission of which leads to death.

• Malice aforethought encompasses any of several different mental states:

1. Intent to Kill: In most cases the intent may be inferred from the D’s conduct.
2. Intent to inflict great bodily injury: Proof that the D intended to inflict serious bodily injury, even though there was no conscious desire to cause death, will support a murder conviction.
3. Intent to commit a felony: If a death occurred while the D was in the process of committing a felony, malice aforethought is present.
4. Intent to resist lawful arrest: Under old law this constituted malice aforethought but now killing is a murder only if one of the other malice aforethought tests is proven.
5. Awareness of a high risk of death- “depraved mind” or “abandoned and malignant hear”.

• Malice aforethought: “the killing of a human being without justification, excuse, or mitigating circumstances and with either the intention to kill or the intention to inflict grave bodily harm to another.”

• First degree murder is all homicide with malice aforethought that is either encompassed within the felony-murder rule of the jurisdiction or willful, deliberate, and premeditated.

• Second degree murder: are those murders committed with the intent to kill but lacking premeditation and deliberation. All killings committed with malice afortheought and that are not specifically raised to first degree murder are typically classified as second degree murder.

1. Premeditation v. (Deliberation):

• Premeditation is when think about killing and plan it ahead of time – thought process before the act – goes to timing. Preparation prior to crime may be evidence of premeditation.
• Deliberation is when weigh the pros and cons of killing – goes to quality of thought.
• Time usually determines if premeditated. Some court say time is irrelevant, and any amount of time is sufficient.

• Commonwealth v. Carrol: Premeditation can happen in a split second; not much of a distinction between purpose to kill and premeditation. Court inferred premeditation from: 1) Use of a deadly weapon on a vital part of her body (and 2 shots); and 2) she was sleeping (cooling-off period?). Case could be criticized as washing away distinction between first and second degree murder. A person may be guilty of first degree murder when acting out of an irresistible impulse.

• People v. Anderson: (killed 10 yr old girl, drunk, mom gone, brother came back. Here, the more brutal the crime, the less evidence of premeditation – stabbed so many times, evidence of blind rage.) More of a careful elaborate discussion about what premeditation involves. Premeditation is evidenced by:

1. planning activity
2. motive
3. manner of killing (consistent with preconceived design)

1. Must be evidence of all 3 for premeditation to be shown, or very strong evidence of 2 coupled with either 1 or 3. There must be clear evidence of premeditation to justify a first degree murder conviction.

• Premeditation can be assumed in some homicides where, poisoning, torture, lying in wait, etc.
• Theory behind premeditation is it identifies an evil, malicious intent. Questionable. What about killer who could not care less?
• MPC only looks at “intent to commit murder” to deal with this issue. No categories (degrees) for most heinous (except mitigation for provocation).

2. Manslaughter:

• Requisite mens rea is reckless behavior. The code establishes a single manslaughter offense which is a killing committed recklessly or under the influence of extreme mental or emotional disturbance for which there is a reasonable explanation or excuse.

MPC § 210.3 Manslaughter: (1) Criminal homicide constitutes manslaughter when:

(a) it is committed recklessly; or

(b) a homicide which would otherwise be murder is committed under the influence of extreme mental or emotional disturbance for which there is reasonable explanation or excuse. The reasonableness of such explanation or excuse shall be determined from the viewpoint of a person in the actor’s situation under the circumstances as he believes them to be.

(2) Manslaughter is a felony in the second degree.

Voluntary manslaughter – intentional killing without malice; A killing that would otherwise be murder but that was committed in response to adequate provocation.

Involuntary manslaughter-unintentional, reckless killing; can be upgraded if recklessness is severe.This is the result of criminal negligence.

3. Common law view of Provocation: Provocation as mitigation is permitted when a reasonable person in the D’s situation would be enflamed with passion and lose self control. “Emotional rage”, “uncontrollable passion.”

4. State v. Thornton (p. 405) – Husband shoots wife’s lover in the hip. D found his wife in bed with a stranger and shoots him in the hip. Court says that the provocation of finding one’s wife in bed with another serves as a defense to the first degree murder charges and his is remanded for resentencing for voluntary manslaughter.

5. Girouard v. State: D stabs his wife excessively after she demanded a divorce. Traditional circumstances allowing provocation mitigation limited to: a) sudden discovery of a spouse’s adultery; b) extreme assault and battery of D or someone in D’s family; c) mutual combat; d) illegal arrest. Words alone are not enough.

6. Provocation requirements: 1) reasonable person in D’s situation would have been enraged (reasonableness test); 2) V has to be the Provoker (not an innocent bystander. D can reasonably mistake the identity of person who provoked, is a defense); 3) No period of time lapse, or short period in some courts (cooling-off period), or Rekindling (see Maher).

7. Maher v. People: Provocative act does not necessarily have to be done in presence if jury finds reasonable. Reasonableness of provocation is a question of fact. (more lenient approach in Maher is recognized in most states today.) – Husband shoots wife’s lover in bar after seeing them come out of the woods. To be admissible, provocation does not have to have been committed in the D’s presence.

8. Note MPC approach is different.

1. People v. Casassa: Stalker kills woman he dated. 1) broadens the defense of provocation; 2) sets up objective standard of reasonable explanation or excuse (of which there is a subjective component – “in the actor’s situation”) with subjective standard (extreme emotional disturbance). 3) looks somewhat at D’s life experience (reasonable “in the actor’s situation”). But court refused to base mitigation on a person’s personal, idiosyncratic problems only, in exclusion of external factors. External factor (reasonableness) killed the defense here.Provocation is an affirmative defense “extreme emotional disturbance” defense replaced heat of passion, it is broader in scope and allows for something to brew and then cool off, and still have defense.

1. No longer set categories for provocation
2. Provocation can apply regardless of who is killed (can kill innocent 3^rd party).

Traditional Approach	MPC Approach
You had to be provoked in classic, defined ways.	Provocation is anything that triggers an “extreme emotional disturbance.”
Cooling-off period (reasonable standard, but usually no more than a week).	No cooling-off period (but initial event must still be triggering factor).
Must kill provoker.	Can kill anybody.
Provocation is a matter of law.	Extreme emotional disturbance is a question of fact.

The objectivity of the Standard:

Director of Public Prosecutions v. Camplin: D was a 15 yr old boy who hit the deceased with a pan after being buggered by the deceased. D should be judged against a reasonable standard according to his gender and age. Adds a subjective component to objective test; objective test must be applied from defendant’s perspective or based on certain characteristics of the defendant (here, age).

• Subjective in terms of what defendant was thinking
• Objective in terms of was there reasonable explanation for defendant’s state of mind
• Subjective component in putting self in defendant’s shoes to determine objectivity ( - “in the actor’s situation”).

1. Legislative Grading of Intended Killings: The creation of Homicidal Risk

For unintended deaths 4 outcomes: 1) no liability at all; 2) civil liability (malpractice); 3) manslaughter (Welansky); 4) murder (Malone). Mens rea is the key to 3) & 4).

MPC § 210.4

(1) Criminal homicide constitutes negligent homicide when it is committed negligently.

(2) Negligent homicide is a felony of the third degree.

Distinguishing Civil and Criminal Liability

Look at:

• degree of risk (greater in a criminal case);
• degree of serious harm;
• how gross the deviation of what a reasonable person would do;
• justifiability of taking the risk.
• MPC imputes awareness of the risk. Awareness may also be more egregious in a criminal case.

Conduct becomes criminal when it moves beyond negligence and gross negligence to “wanton and reckless conduct” which is: intentional conduct by omission or commission which has high probability of substantial harm resulting, or indifference to human life. Negligence must be “culpable”, “gross” or “reckless” to be criminal – extreme indifference to human life.

2. Commonwealth v. Welansky: While D was hospitalized for an illness his nightclub burns down that doesn’t have adequate exits. A person can be convicted of manslaughter merely for permitting hazardous conditions to exist on his business premises. Example of wanton an reckless conduct that the court found criminal.

3. Note that: In criminal law, V’s contributory negligence is never considered. For car accidents, usually don’t know criminal liability unless driver was extremely careless because accidents happen frequently, the risk is big, and so unless extra degree of deviation, no charge.

4. MPC: homicide is manslaughter when committed recklessly, and negligent homicide when committed (grossly) negligently.

5. State v. Williams: Negligence can be enough for manslaughter. Baby dies of toothache. Parents convicted of manslaughter. Why punish? General deterrence maybe, but D’s were simply negligent. Did they have the culpability for this. Subjective would take into account culture, education, race; Objective is reasonable person standard. Tensions: Punishment for negligence sets a standard that people need to act responsibly v. Negligent people are just careless and should only be held to civil liability / fear that people will be too careful.

6. Line between Murder and Manslaughter: Recklessness Plus.

MPC defines unintentional killings as murder when:

• It is committed recklessly, and
• There is “extreme indifference to the value of human life”.
• The line is “extreme indifference to human life.” Takes recklessness and because so evil, now intentional. [Ordinary recklessness is manslaughter.] Look at 1) magnitude of risk; 2) justifiability of risk to find the PLUS element. Raises manslaughter to murder.

7. Commonwealth v. Malone: D age 17 was convicted of second degree murder for killing his 12 yr old friend while playing Russian poker. Malevolence towards victim is not an essential element of malice.

8. United States v. Fleming: D was driving drunk, unintentionally killed victim; so reckless (higher degree of risk and higher awareness of risk) and so indifferent to human life. Was aware of risk (because MPC imputes recklessness if voluntarily intoxicated), so murder. The difference between malice (recklessness + gross indifference), which can support murder conviction, and gross negligence, for manslaughter, is awareness of the risk/degree of risk. – [in this case. Under MPC, can’t have negligent manslaughter. Gross negligence required for criminally negligent homicide.]

THE FELONY MURDER RULE:

• Another raising of manslaughter to murder when a person kills another unintentionally while committing a felony or fleeing from one. Most courts take it to mean “in furtherance of or in flight from a felony” when immediate preparation, actual commission, and immediate escape. Used when D has no intent to kill, but is reckless. The felony supplies the extreme indifference to human life which is sufficient to convict a reckless killer of murder. A mens rea device only; does not prove objective elements (causation or complicity).

• A killing will be a felony murder if it was caused with the intent to commit a felony. All co-felons are liable if one of them accidentally caused a death, even when a co-felon is killed, although courts many times will fin and exception in the latter situation.

• Justifications for the Rule: Deter felonies by adding to the threat of conviction and punishment for the felony. To discourage the use of violence during the commission of felonies by imposing the threat of additional punishment if the felon causes death.

• Note that some states have imposed restrictions on this rule. Examples: Death must be foreseeable, felony must be dangerous (depends on the state-some states limit this rule to apply to felonies of a specific nature);

• Agency Theory: You can hold a co-felon liable for killing someone in furtherance of the felony. However, you can’t hold them liable if the shop keeper or other person kills a co felon. Only when death is caused by D or someone acting as D’s agent in furtherance of the felony. Since intervening actors (police, victims) are not agents to the felony, a killing by one of them cannot give rise to felony murder. Note this is the majority rule.

• Proximate Cause theory is the minority vies. Issue is not identity of killer but whether killing was a foreseeable risk in the commission of the felony.

1. Transfers mens rea from the felony committed to the killing. Supplied the elements of mens rea for prosecutor. It is said to be done because the person committing the felony caused the risk that harm might occur. Imputes mens rea by acts or situation. Goes against what we have studied about mens rea.

• Regina v. Serne: D insured his property and the life of his boys. While family sleeping, D set fire to the house. The felony-murder doctrine does not apply regardless of the dangerous nature of the felony involved.

• State v. Canola: Storeowner kills co-felon; accomplice not responsible. Agency theory – killing must be done by co-felons (defendant, accomplice, or someone acting in furtherance of the felony). 2) What if co-felon killed store owner? Most courts hold co-felon responsible under agency theory. In furtherance of felony; co-felon an agent of defendant. 3) What about if store owner shot and killed customer? Not in furtherance of felony, then usually no; most states use agency theory. But some states say yes if causation. The felon may not be guilty of murder for the killing of a co-felon by a victim of the felony.

• Proximate cause theory – issue is not identity of killer but whether killing was a foreseeable risk in the commission of the felony. Minority view

• MPC: felony murder rules present a rebuttable presumption of reckless indifference to human life that defendant can disprove; only applicable to certain felonies. Juries then have option of only convicting of manslaughter. Not widely adopted.

• Taylor v. Superior Court: D is a get away driver in a robbery of a liquor store who was charged with the murder of his accomplice. If the co-perpertrator’s conduct is sufficiently provocative of lethal resistance to support finding of implied malice he may be charged with murder when the victim of the crime kills his fellow perpetrator.

9. DEATH PENALTY

• Under common law, crimes classified as felonies were punishable by the death penalty.

• Gregg v. Georgia: D was found guilty of murder and sentenced to death under GA law. Court holds that capital punishment is not per se cruel and unusual punishment.

• McCleskey v. Kemp: An accused cannot rely on statistical evidence of racial disparity in sentencing to prove that the sentencing procedure is unconstitutional.

10. CAUSATION

• Criminal conduct generally requires not only conduct but also a specified result of that conduct.

1. Some crimes do not require a specific result (example=conspiracy)
2. Two elements of causation: actual causation and proximate causation.

• Only relevant when there is a result element. It is the link between conduct and result and D’s accountability for the result. Result elements – creating a false document or tampering with, or death in murder.

A.Foreseeability and Coincidence:

To determine proximate cause:

1) Is defendant an actual cause of the result? Can be more than one actual cause.

• But for test – but for defendant’s actions, would result have happened?
• If D is not an actual cause, he is not proximate cause.
• Scientific question of fact.

Was the result foreseeable from D’s behavior?

• Moral judgment.
• MPC – is result “too remote” from D’s behavior that it’s not fair to hold her accountable for it. Must be sufficiently direct and sufficiently foreseeable.

Was there a superseding cause?

• Usually not superseding unless intervening actor is grossly negligent or more. Ordinary negligence of intervening actor will not break causal connection.

Was the result reasonably foreseeable? Looked at from the viewpoint of others, not D. If too remote, then not foreseeable. It is intuitive judgment of the jury here.

• People v. Acosta: D was proximate cause of helicopter crash. Pilots’ negligence not enough to break causal connection between D and pilots’ deaths. [Criminal law = questions of foreseeability, not contributory negligence.] Court says there was enough evidence that D’s conduct was the proximate cause of the deaths but not sufficient evidence of malice.

• People v. Arzon: D set fire to a couch in an abandoned building. Fire fighters responded to the fire but couldn’t stop it and some ended up dying from inhaling smoke from a second fire. D’s actions don’t have to be the sole cause of harm as long as ultimate harm should have been foreseeable. It is the foreseeability of placing V in harm’s way. A D’s actions don’t have to be the sole cause of another’s death in order to support a murder conviction. The but for cause was enough in this situation.

• Intervening cause that breaks the causation chain is a superceding cause, and D not liable. So after but for and proximate cause, see whether intervening cause is present. If fireman was shot by sniper, then D not liable, break in the chain.

• Forseeability of the intervening cause: if the intervening cause is the dependent or responsive cause it is likely that actor will be criminally responsible-is the intervening cause something that happens in reaction. If A shoots B and B dies from direct result of med. Malpractice at hospital still likely that A will be held criminally responsible for B’s death unless the response is highly abnormal or bizarre. If med. Malpractice simple negligence not likely will get off but if gross negligence won’t be held accountable.

• Coincidental intervening cause: If A beat up by B and left on the road and then walks into road and dies. If victim faced in intervening situation this will generally relieve the assailant if actions not foreseeable.

• Apparent Safety Notion: Courts will look at whether dangerous forces have intervened into the case. If victim rejects place of apparent safety. Almost like an assumption of risk dotrine. Presler case someone in fight with husband and they are thrown out into the cold and she decides not to bother her father so sleeps in barn and freezes to death so she rejects a place of apparent safety.

• Third Party: Person will likely be relieved of crim. Responsibility if there was free intervention from a free deliberate of third person might relieve someone of crim. Responsibility. Drag race example.

• Question of the Intended consequences doctrine: Focuses on D’s mens rea. If there are intervening human causes in between but if person started ball rolling and intended to kill and person in fact died. If A gives poison to B to kill C. B puts poison on mantle next to tea C drinks before going to bed. If another third party comes in and moves poison and puts in another place and someone else dies A is still likely to be held liable despite the intervening cause of movement. The more accidental the intervention, you can still be held responsible for a crime.

• Depends on Degree of Intervening Cause: Say doctor was negligent in treating V, then not intervening. If doctor was grossly negligent, or reckless, then maybe superseding.

• Proximate Cause: Comes into play when you have intervening forces that arguably cloud issue of who is responsible for another person’s death. How to decide which cause is the proximate cause. Is no coherent formula. They select the proximate cause-in cases are arguments from both sides trying to convince a fact finder as to what is proximate cause will bring in moral intuitions, community sense of justice and then conecept of foreseeability that hangs over all issues.

• But for versus proximate cause. Hypo: A has fight with B B goes into street and is hit by car. With proximate cause need some sort of mens rea. In this example, would be a but for cause but not a proximate cause.

Subsequent Human Actions

• People v. Campbell: D gives friend gun and encourages him to kill himself. If V is mentally responsible then giving one the means to kill one’s self, and V commits suicide, Superceding cause, D not liable. D not liable. Deliberate, intervening volitional act breaks the causal connection between defendant and death. If using foreseeability doctrine could likely find him liable. This is case rule: a voluntary action of a responsible human actor can break the chain of causation even if it is foreseeable. One could argue that by giving him alcohol that that choice was not free, but court decides that D can’t be responsible for someone else’s suicide.

• Stephenson v. State: D abducted woman and took her to a train with intent to rape. V not mentally responsible, D had control over V, so when V took poison, D was responsible, even though died of not eating and other causes. If intervening act is NON-volitional, causal connection is not broken. How dependent and connected is intervening act on defendant’s act? A person can be convicted of murder for inflicting an injury that contributes substantially to a death, although other causes also contributed to the death.

• Commonwealth v. Root: Subsequent actions that recklessly risk the result. Criminal definition of proximate cause should be used, not civil. Drag racing cases had different results. Drag racing was reckless, but other driver caused [his own] death of V. Volitional nature of intervening act distinguishes from Acosta. D’s conduct was not a sufficiently direct cause of the death.

• State v. McFadden: where civil definition of proximate cause was enough (foreseeability over “direct causal connection”). There was sufficient causation to uphold a conviction of involuntary manslaughter of a D who participates in a drag race with another person who strikes another vehicle and kills someone, when the D did not impact with any other cars. Adopts proximate cause standard. Rejects assumption of the risk doctrine. D convicted because the fact of D’s participation doesn’t in itself bar D from invol. manslaughter. Analysis seems to follow the analysis established in the MPC. Emphasis in MPC to hold them to higher standard. They distinguish their analysis from Root.

• Commonwealth v. Atencio: Russian roulette. When a person shoots himself to death as part of a game of Russian roulette, the other players are criminally liable for the death.

• People v. Warner-Lambert: Employees worked in factory and went to extinguish factory. There was an explosion because company used two agents that could potentially cause this explosion and people died. Corporation was warned about the danger and danger was foreseeable. The explosion occurs even though you don’t exactly know what caused the explosion. Case is dismissed by the court after the Grand Jury indicts this is a very rare event in criminal law. Court dismisses the indictment because says wasn’t a sufficient direct cause between explosion and the injuries. The explosion couldn’t be just the but for cause also had to be the higher proximate cause standard.

• What the causal philosophy is behind the decisions? Think about the actors in first two cases have law officers and police officers and in third example it’s the corporation that gives a lot of jobs to the community and a serious monetary judgment might make them leave the community.

11. ATTEMPT

1. Attempt under common law and most state statutes consists of 1) specific intent to commit a crime and 2) an act in furtherance of that intent which goes far enough toward completion of the crime. Look at Causation – the harm that resulted and Mens rea- what D intended.
2. A kills B. Various mental steps towards the commission of a crime. Attempt considers where to place criminal liability. If A decides to shoot and kill B:

1. Conceives idea
2. Mulls it over
3. Decides to go for it
4. Makes some preparations
5. Takes a subtstantial step
6. Completes crim/reaches goal

First two steps are not attempt, or crime. 3 reaches

4 and 5 is where you enter attempt. You have incomplete attempts, where someone takes steps towards completing a crime but then person is prevented from continuing because of intervention. This is biggest area of contention. When do we want to hold someone criminally responsible and when do we want law enforcement to intervene? We may allow them if too early to just pick up suspicious people who are not guilty.

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4. The mens rea of attempt: the intent to commit the acts or cause the results constituting the target crime, and the intent necessary to for the target crime (attempted murder requires intent to cause death).

5. Actus Reus of attempt: is an act that progresses sufficiently toward commission of the attempted offense. A number of criteria have been used or suggested to determine whether the D’s act is sufficient (Act must go beyond mere preparation, D must have committed the last proximate act before commission of the offense, D must have obtained control over all factors indispensable to the crime (nothing left undone), the act itself must show unequivocally that D intended to complete the crime, D’s conduct must be physically proximate to the intended crime etc. )

6. Note that Impossibility doesn’t usually work as defense for liability of attempt. (except for voodoo etc.) Also not usually accepted that withdrawl or abandonment will avoid liability. (but can use as evidence that person lacked the requisite intent).

7. Both at common law and under most modern statutes, it is a crime to attempt the commission of any felony or misdemeanor.

8. In most states the D is not punished as much if fails, and need knowledge of result to convict. This is majority view. MPC punishes failures as much as completed crime if Mens Rea is there and as long as mens rea knowledge of result is not needed.

9. MPC § 5.01 Criminal Attempt

(1) A person is guilty of attempt to commit a crime if, acting with the kind of culpability otherwise required for the commission of the crime, he:

(a) purposely engages in conduct which would constitute the crime if the attendant circumstances were as he believes them to be; or

(b) when causing a particular result is an element of the crime, does or omits to do anything with the of purpose of causing or with the belief that it will cause such result without further conduct on his part; or

(c) purposely does or omits to do anything which, under the circumstances as he believes them to be is, an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.

(2) Conduct shall not be held to constitute a substantial step under (1)(c) unless it is strongly corroborative of the actor’s criminal purpose. (3) conduct designed to aid another in commission of a crime. (4) Renunciation of criminal purpose.

Mens Rea:

Under common law, must have intent to cause harm (attempted murder

à

intent to kill). Under MPC, knowledge of result is sufficient (“belief that it will cause such result”).MPC:

Conduct: purposely engage

(intent) Result: knowledge or purpose

Most common law and statutes require a mens rea of purpose or specific intent for attempt: People v. Kraft (585)- mens rea of purpose or intent to kill was not present, so not attempted murder. (Although if he had succeeded, he could be convicted of murder based on recklessness + gross indifference.) If bomb on plane to blow up plane, not kill pilot, then not attempt. Need intent to kill; knowledge is not enough. Just knowing risk of death is recklessness, not enough for attempt under Kraft. Under MPC result element is purpose or knowledge and D could be.
Note must establish intent to convict on attempt charges. Hypo: If a D wants to destroy his competitor’s plane and he puts a bomb on plane and sets timer to go off at certain time. The bomb is discovered by his friend who is the pilot of the plane, if the bomb had gone off the pilot would clearly have been died. Under the Kraft rule, can we convict D of attempted murder? He didn’t purposefully intend to kill pilot, so can’t be charged under Kraft rule.

MPC 5.01 (b) p. 1156: Since he had the requisite knowledge that if bomb blew up and someone was on the plane, you might get a different result under the MPC in that circumstance because arguably the D has knowledge that the result if the bomb went off would be death of pilot.

Hypo: D makes plans to purchase truckload of cigarettes and he notices that the cigarettes belong to someone else. Just as he is about to purchase cigarettes, police swoop in and arrest him for attempted trafficking of stolen property. He knows that it is stolen property.

Under MPC 5.01 (1) ©

f he says he knows then yes convicted of attempt. What if he is mistaken about the fact that they are stolen? Then he wouldn’t be found guilty of attempt under the code-he didn’t have the strong enough intent because he doesn’t have the knowledge or belief required. (One take)

Might be an element of mistaken belief-depends upon mens rea required etc. The purchaser could be held liable depending on whether recklessness was –
No such thing as attempted manslaughter. No attempted felony murder rule.

The MPC requires a substantial step in completing the crime. What constitutes a substantial step? The six steps of a crime, the first two are sort of pre mens rea the next two the formation of mens rea the fourth and fifth steps the final step is th

Reading regarding substantial step etc. brings in two rules.

Traditional rule at Common Law: Proximity approach, an attempt is not punishable until the last step is taken. The last step doesn’t necessarily mean that you have to have completed the crime its just an act that is seemingly sufficient so if you pull the trigger and the gun is not loaded this is enough to be charged with attempt.

Various concerns with how to charge for attempt. We can’t be sure to know whether someone intends to follow through with their actions. Early on in the crime obviously harder to know what to do. The further along we get down that spectrum. Until they follow through can’t really be certain. The second concern is even if actor intends to follow through in the acts we can’t be sure whether or not they would have changed their mind. Third concern: animates more modern approaches the concern that says we don’t have the luxury of waiting until the actor either forms intent to a substantial degree of certainty or more. The intention in these cases is about the interrelation between these three concerns. The more you emphasis third concern, that police need to intervene early the greater the chance that an innocent person might be convicted early.
“Belief” part of 5.01(1)(b) only refers to crimes with a result element. For crimes without result element, look to “the kind of culpability otherwise required for commission of the crime.” D tries to purchase stolen cigarettes but is caught first. Statute says: “it is a crime to purchase stolen goods.” Elements are: 1) purchase (conduct à knowledge), and 2) goods are stolen (circumstance à recklessness). If he recklessly tries to purchase stolen cigarettes, he can be convicted under MPC, but not under common law, which requires intent. No attempt liability for recklessness under either common law or MPC. Cannot “attempt” to do something recklessly.
People v. Kraft: D fired at victims after making them pull off the hwy. D has evidence that he had a psychiatric condition that negated the intent element. A person cannot be convicted of attempted murder in the absence of evidence of an intent to kill the victim.
McQuirter v. State: Black man follows white woman on street in AL while she is walking home. She goes into neighbors house and he is convicted of attempted rape. The appellate court says that he can consider the race because “no white woman would never agree to have sex with a black man.” Is there enough evidence of intent here? Are there facts in this opinion that could lead an unbiased court to convict him? Have a police officer who testified that D. intended to commit assault and it’s the jury’s call whether to believe the confession or disbelieve. A confession is only as good as the evidence that corroborates that evidence. The question the MPC asks-is is there evidence that strongly corroborates the intention of the actor. In many cases all you have is the naked confession. An unbiased court could have convicted because they could have believed the officer’s recount of the confession.

Under the MPC the McQuirter case would be decided –assuming that the confession is true do his actions constitute a substantial step? Assuming these facts likely that it would be convicted-could argue was it a substantial step? The bottom line is that while the appellate court opinion is distasteful and unbiased court could have found him guilty as well.

MPC test has parts of the proximity test and part of the equivality test which prevents a conviction when you look at the intent of the actor when it is equivocal and it is not clear. When we look at the other cases, find that MPC doesn’t fully avoid the dangers of drawing the lines that are too early for determining the intent etc.

Preparation:

• MPC 5.01(2) Conduct which may be held SUBSTANTIAL STEP under subsection (1)(c). Conduct shall not be held to constitute a substantial step unless it is strongly corroborative of the actor’s criminal purpose, including but not limited to: 1) lying in wait; 2) getting victim to place of crime; 3) watching the place of crime; 4) unlawful entry; 5) possession of material for the crime; 6) taking the materials to the scene of the crime; 7) soliciting an agent to engage in that crime. Focuses on what has already been done.

• Common Law must catch at LAST STEP, give criminal time to repent. Looks at what remains to be done. Steps are: 1) Idea; 2) reaching a decision; 3) Intent – mens rea here, but need acts to convict; 4) preparation – court not sure if can convict or not; 5) Beginning step; 6) Final step or completion.

• Traditional “Proximity” approach - Commonwealth v. Peaslee (593) – wanted to burn down building and changes his mind ¼ mile away. Not convicted because not in proximity. People v. Rizzo (595) court held not a substantial step until would-be robber found victim, too remote. Remote acts v. immediate acts.

1. Alternatives to Proximity approach – a) Substantive crimes were developed by statute and common law to make attempt out of “merely preparatory” conduct. State v. Young (601) – Innocent act with unlawful purpose: school sit in, enough with intent and first step, even if act is not improper by itself. Usually applies to burglary and assault crimes. b) Control over all indispensable elements. Nothing must be left undone that would prevent D from committing the crime. c) Probable distance- given conduct done, would lead to commission with out any outside interference. d) RIL, considered alone, would D’s acts or behavior, not looking at mens rea, establish the intent.

Commonwealth v. Peaslee: D was arrested for arranging combustibles in a house and soliciting someone to start the fire. It is not necessary that an accused carry through with the last act of his criminal purpose to be held liable for attempt.
State v. Young: The state may punish a person who commits an otherwise innocent act because of the person’s unlawful purpose in so acting.
US v. Jackson: Bank robbery case. A D can be convicted of attempt when he did not commit the last proximate act necessary to effect a particular result that is an element of the offense.

Impossibility:

• Factual Impossibility – D thinks that possible to commit crime under the circumstances, but for a reason unknown to D it is factual impossible. If circumstance were as D believed and completed the acts, it would be a crime. Guy picks a pocket, no wallet, but if there was then it is a crime and so there is an attempt here. Mistake of results – can’t be completed. NOT A DEFENSE.

• Legal impossibility – D mistakenly believes his conduct is prohibited by law. Not a crime, even if completed due to the facts. Circumstance are not as D believed, and D completed, then not illegal. Can be completed, but not a crime. Common Law Defense only, not MPC.

• Factual and legal impossibility are not a defense under the MPC because mens rea is the same under both circumstances. If circumstance as D believed them to be, and they were illegal, then guilty if done. Under common law, legal impossibility is a defense.

• The general rule under common law, situations where asking whether person should be convicted for a crime in which cannot possibly succeed for one reason or another. At common law have notion that legal impossibility is defense but not factual impossibility.

• Factual Impossiblity: in both legal and factual, actor has requisite mens rea and has done everythin in their power to succeed. In factual, the crime is thrawted because of something unknown to D. A pickpocket who sticks hand into the empty pocket of victim or the impotent man trying to having nonconsensual sexual intercourse, or the abortionist in state where its illegal to begin abortion on a non pregnant woman, firing a gun into an empty bed thinking the bed is occupied. In these cases the crime is not consummated, because in one instance the criminal chose the wrong victim (no money wallet) or the actor wasn’t physically capable of committing crime (ie impotent man) or used inappropriate means to kill someone. Lawmakers are far less sympathetic to these crimes because in each of these cases have an actor who has clearly demonstrated that they had intent to commit crimes but because of circumstances beyond their control these things don’t come to pass.

• Still some circumstances where factual imposs. Works as a defense very rarely. If A intends to kill B and takes steps and tells everyone but the method is ridiculous and any reasonable person would think murder was impossible. (voodoo doctor consulted example).

• Mistake as to surrounding circumstances: D has set out to do things believing that this would be a crime. In fact, however, because he misunderstands the surrounding circumstances, his conduct, if completed, would not actually constitute a crime, but if the circumstances were as he believed them to be, his intended conduct would constitute a crime. This is also not a defense under the MPC. D receives un-stolen property believing it is stolen. D offers a bribe to a juror but person is not a juror. D kills a corpse thinking the person is alive. Concerned with mens rea and the actor’s intent and his dangerousness is clearly manifested.

Lady Eldon’s lace case………

Which was beyond the control of the D. or which he was unaware. What do we do with these cases? What is the modern approach? Under the MPC-The D is guilty if what they did is a crime if the facts-because the MPC if they think the MPC is reasonably assumed.

MPC doesn’t do away with the legal impossibility defense because legal impossibility because if someone is committing a crime even

The less that we have a manifestation of criminality here, the more it seems like we are punishing a criminal for his thoughts. When shooting a scarecrow because you think it is human you haven’t caused any serious social harm and it is problematic to punish someone for their thoughts which is a question that resonates throughout the case. Looking at this objectiverly, easier to infer criminal intent. Confession evidence could be used to fill in the gap for the mens rea element. There is a concept in addition to impossibility there is a concept of ABANDONMENT.

MPC recognizes defense of abandonment under very limited circumstances. The D must very completely and voluntarily renounce their criminal purpose. Go into store and stick a gun at somebody and ask for money and teller says they don’t have key and the person says ok that is not a complete and voluntary renunciation because the last act has been completed in the cycle. If the D resists and says no they are not going to give the money that is also not going to be considered a complete and voluntary renunciation.

At common law abandonment was the way that sentencing could be reduced but wasn’t a complete defense. Can’t reverse the damage simply by moving.

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People v. Jaffe: D made offer to buy goods which he thought were stolen but before he could purchase them they had been returned to their rightful owner. Cloth not really stolen as D thought, even if act was completed, not a crime. LEGAL impossibility. Under MPC, Jaffe could have been convicted. A person cannot be convicted of an attempt to receive stole goods if the goods were in fact not stolen goods.

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People v. Dlugash: D could have shot V when already dead, so pure legal impossibility to kill again, but could be convicted on attempted murder because really dealing with a crime, V died, and NY used MPC and allowed for conviction, so no impossibility defense here. A person may be guilty of an attempt if completion of the crime was impossible.

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Impossibilities that are defenses under common law and MPC –Even if D has intent, but attempt is: 1) inherently impossible (impossible based on rules of nature and science) then D acquitted. E.g., attempt of murder by using voodoo. 2) pure legal impossibility - when D thinks it’s a crime, but it is not. Basically would be a violation of due process.

12. EXCULPATION

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Principles of Justification: Self Defense – Protection of Life and Person.

Self Defense is a true defense, not just a failure of proof by prosecutor. Prosecutor proves all elements required for the crime. D then has affirmative defense, in some cases, against guilt for no sentence to be given.

1. Justifiable Defense – self defense, necessity – okay when Benefits > Costs
2. Excuse – mental illness or duress in some cases.

For the Defense to work need two things 1) Necessary – harm was reasonable and imminent

3. actions taken were necessary to meet the degree of harm- they were reasonable under the circumstances. a) Deadly force rule – can only use when threat of death or severe injury.

MPC 3.04 (1) use of force is justifiable when the actor believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by such other person on the present occasion. NO REASONABLE REQUIREMENT IN MPC.

• People v. Goetz: Common Law: shot kids on subway. Physical force is justified “when and to the extent he reasonably believes such to be necessary to defend himself or a third person from what he reasonably believes to be the use or imminent use of unlawful physical force by such other person.” (803). 2 prongs: 1) D has to reasonably believe force he uses is necessary; 2) D has to reasonably believe unlawful physical force is imminent. To use deadly force, D has to either: 1) reasonably believe attacker is using or about to use deadly physical force, OR 2) reasonably believe attacker is committing or attempting to kidnap, rape, sodomize or rob. Prosecutor charge was whether D’s conduct was that of a “reasonable man in D’s situation.” Dispute: how much subjectivity does that allow in? Social standards of reasonableness. A self-defense claim must be evaluated based on what a reasonable person in the D’s position would have believed.

• State v. Kelly: Expert testimony regarding the battered-woman’s syndrome may be admissible to prove a claim of self-defense.

• State v. Norman: D had been badly abused by husband. She finally kills him. The court holds that the trial court should not have instructed the jury as to the right of perfect self-defense.

• State v. Abbott: If you can retreat, and you are not in your own home, there is no need for you to use deadly physical force. Under MPC if Retreat Opportunity: if an opportunity to retreat appears, instead of using deadly force, need to retreat, unless in own home. Only required when 1) actor knows can avoid use of deadly force with complete safety by retreating.

• US v. Peterson: An aggressor cannot claim self-defense if he does not first withdraw from the conflict.

• Common law rule: Must be a threat, unlawful, immediate the Defender must believe they are in imminent peril and a response is necessary to save himself. There are three components: Necessity-whether a nondeadly response will suffice or opportunity for D to retreat, Proportionality-measures the level of force that is being made by the aggressor is the force being threatened deadly? Reasonable-is the belief on the part of the victim genuine and reasonable that he needs to respond with force. The aggressor has no right to claim self defense. A person who starts a non-deadly confrontation is considered an aggressor unless his conduct is lawful. If a police officer intervenes it does not give a party the right to respond as long as the force is not excessive. Also this idea that a person can regain his right to self defense if he somehow withdraws from the fray and successfully communicates this to the victim.

• Notion of the retreat: A nondeadly aggressor may regain right to self defense if victim responds to deadly force if the non deadly aggressor avails himself to a safe retreat. If there is no safe haven they can use self defense. There is a majority rule (non aggressor need not retreat before using deadly force) and minority rule (the nonagressor still must retreat rather than use deadly force if he can do so safely and aware of a safe haven). There is an exception if in own home-is an exception for co-dweller is generally not considered.

• Incomplete self defense: generally situations where the nondeadly aggressor fails to retreat, or the D kills his aggressor and the belief that he will die is unreasonable, or D fails to understand that nondeadly force would suffice. Incomplete because of the mistake in D’s judgment, because of lack of perfection in the understanding on the part of the victim as to whether or not he can use deadly force.