legalnut.com - Criminal Law Fall 2004

Facts: Four men trapped on boat at sea w/ little food. Captain Dudley and his first mate Stevens decided to kill Parker the cabin boy and eat him to save the rest of them. Brooks did not assent. Dudley and Stevens charged w/ murder, but sentences to death are commuted to 6 mos.
Can see major issues of criminal law in this caseà mens rea, actus reus, causation (would boat maker be negligent), parties (accomplice and conspiratorial liability), grading of offenses, category of offenses, sentencing, systemic issues and policy issues

B. Purposes of punishment:

1) Deterrence- general or specific; from Bentham’s theory of utilitarianism- humans driven by seeking pleasure and avoiding pain; also to channel human desire for revenge and prevent vigilante activity

Need equation where T<P*C (T=pleasure from crime; P=pain; C=chance of being caught); principle of parsimonyà too much punishment is wasteful
Problem: diff levels of pleasure, hard to determine optimal lvl of sanctioning (social calculus different), assumes rational actor (most debated); some studies show raising C more effective; less linear response to increase sentence; punish as means to end, can be unfair if law enforcement bad; might rationalize prosecuting innocent person for deterrence, as long as govt not caught

2) Incapacitation- Usually incarceration; Forward looking; raises issue if punishing for future crimes

3) Retribution- punishment is end itself; meant to carry blame and stigma, community condemnation; do not punish if not wrong or no choice was made

a. traced to Immanuel Kantà fact people deserve punishment not only good reason to punish but creates duty for society to punish; not utilitarian at all; ex. of society about to disband, still have obligation to execute last murderer before disband

b. Problems: (1) critique of agency or freedom; assume people choose and all equally free in society; left wing critique; bad b/c poor, not poor b/c bad; but hard to find proper upper limit of this critique (society must be equal before criminal justice system, can be applied fully equally) (2) costs of punishing all crimes too high for society (3) provides no yardstick as deterrence does; says nothing of proper severity of punishment; will society tolerate what severe offenders deserve?

4) Consequentialist Retribution or Revenge

Rehabilitation- minimum ideal says fix problem that led to crime and make person safe “for us”; also rehabilitation “for them” to help offender flourish

Problem: high cost and often does not work; creates incentive to commit crime; resources better used on good citizens

Reparation- thru jail, death or monetary payments
Social Cohesion
Expressivism/ Moral Education- punishment express society’s norms and educate society; assumes people obey law b/c believe legitimate and want to follow it

Problem: law not objective and expresses itself differently toward diff communities

II. General Common Law Requirements

A. Actus Reus- act requirement shows our philosophical commitment to autonomy, free speech, and liberty preservation; limits state interference; also shows solid proof of intent and actual harm; targets use of resources; very few crimes that involve only thoughts

**Note that both retributivism and deterrence are thwarted, if the actor did not have free choice.

Voluntary acts

Martin v. State (Alabama 1944, P 173)

Facts- Δ Martin is appealing conviction of drunken behavior in public space b/c his presence on the public highway was not voluntary. He alleges that the police officers brought him out to the highway from his home. Cts says “Appears” in lawà voluntary act requirement.
Rule- Each element of the act must be voluntary. Best for deterrence
Converse rule- If the last act is voluntary, the crime is considered voluntary. (would convict Martin b/c chose to manifest drunkenness)

People v. Decina (New York, 1956, P 156)

Facts- Man who knew he had epilepsy drove and had seizure, killing people on sidewalk; ct convicted; they shift the timeframe, saying that he knew of the risk when he decided to drive—that act was voluntary.
Rule- If there is a voluntary axn that makes involuntary axn foreseeable, then satisfies preference for voluntary action and criminal liability lies. (Very similar to MPC).

MPC- §2.01(1) (r1041)

Rule- If one act is voluntary then voluntary act requirement satisfied. Best for expressivism. Most narrow ruleà A person is not guilty of an offense unless his liability is based on conduct which includes a voluntary act or the omission to perform an act of which he is physically capable.

Proximate cause thy- put forward by Michael Moore; must ask about causal connection b/t first and last act
Voluntary act requirement and thy of punishment

Involuntary Acts

People v. Newton (CA, 1970, r175)

Facts- Δ in altercation w/ police. Δ shot in abdomen and claims he lost consciousness before killed police officer. Ct finds that unconsciousness under CA penal code is complete defense. **Note: doesn’t claim accident b/c felony murder rule.
Rule- Where not self-induced, unconsciousness is complete defense to homicide.

MPC §2.01(2) (P1041) defines acts that it considers involuntary (again, largely drawn from common law)

Includes: (1) reflex or convulsion, (2) bodily movement during unconsciousness or sleep, (3) conduct during hypnosis (or resulting from a hypnotic session), and (4) (catch-all) a bodily movement that otherwise is not a product of the effort or determination of the actor (can argue mental defect puts act into this category; also irresponsible actor)
Only punish voluntary acts b/c: (1) we feel safer punishing only people who choose; (2) punishing choice respects people’s ability to choose.

Omissions – punished same as act

Good Samaritan: Pope v. State (Maryland, 1979, P183)

Facts- Woman took in mother and small boy, then watched as mother beat infant to death. Ct found no duty to care for child. b/c the mother was always present. Acts of care, i.e. taking in mother and child cannot subject Good Samaritan to prosecution. Cannot punish for failure to fulfill moral obligation.
Rule- Must have legal duty to act.

Legal Duty Req’t: Jones v U.S. (District of Columbia, 1962, P190)

Facts- Jones’s involuntary manslaughter conviction for failure to provide for infant set aside b/c should have given instruction on legal duty. Child was living in his home. Conflict over whether paid or mother Shirley also there full time.
Rule- Must have legal duty to act. Sources—

Legislative (primary source): from criminal statutes (tax evasion) or civil legislation (civil law that says have duty to report accident you are in; not criminal; but creates duty that transforms innocent omission into criminal liability)
Contract- individually made law; necessity of fulfilling enforceable contract is legal duty
Status relationship- either applied by law or assumed; ex) duties in marriage, teacher/ student, innkeeper/ guest, master/ apprentice
Voluntary assumption of care- secludes that helpless person from other people (courts not consistent if seclusion necessary element)
Creation of Peril

MPC §2.01(3) Liability for commission of offense may not be based on omission unless: (a) statute defines omission as sufficient OR (b) duty to perform omitted act is imposed by law.

** All from civil lawà

Pros of system: Gives place to look for answer

Cons of system: civil law creates duty for other reasons (spreading costs, etc); not purposes of criminal law; civil law also lacks moralistic cast that criminal law has; civil law sometimes goes beyond moral intuitions (tort), sometimes falls short

Beardsley v. People (Michigan 1907, P194)

Facts- man had his lover at his home and provided her with alcohol when she attempted suicide. He hid her in the basement rather than attempting to get any aid.
Rule- Ct says no duty b/c morally repugnant to think married man has duty to lover.

People v. Olivier (California, 1989, P195)

Facts- A woman invited a man home from the bar and provided him with a spoon for heroin at his request. He then passed out and she left him to go to the bar. When her daughter called, she instructed her to pull the body outside, and did not seek him.
Rule- The court found that there was a duty, because she took him from a public place, where others might have aided him; see voluntary assumption of care

Regina v. Stone and Dobinson (Queen’s Bench, 1977, r194)

Facts- Δs are the decedent’s brother and his live-in housekeeper/ mistress. The decedent came to live with them, and paid a small amount of rent before dying of anorexia after not receiving proper nursing care. The defendants washed her, and tried to find her doctor, but failed in these attempts.
Rule- (Law had not recognized status relationship between siblings. ) Court found ∆s had duty—voluntary assumption of care since ∆s took deceased into their home.

Jones v. State (Indiana 1942, P196)

Facts- Δ raped 12 yr old girl. Then let her drown after she fell into river b/c distraught. Ct held he had legal duty b/c caused peril.
Rule- Creation of peril- quasi-tort liability (also from common law) also creates legal duty

B. Mens Rea –Evil mind; general (moral culpability) vs. specific (element of crime)

Regina v. Cunningham (Queen’s Bench, 1957, r204)

Facts-∆ charged with larceny and offenses against Person act for stealing gas meter. Gas started flowing out of the meter. ∆ leaves. Victim becomes partially asphyxiated. Statute requires Δ act maliciously. Ct sets aside b/c wrong instruction to jury.
Rule- For an act to be malicious the Δ must have purpose or foresee the consequence of his actions, not simply “wickedly” commit the act.
CL often describes

MPC § 2.02 (PP1041&208) gives us four categories;

Purpose- This requires a conscious objective.à “I want to hurt Mrs. Wade by administering poison”
Knowledge- does not require an objective, but instead requires the defendant be practically certain the bad consequence will transpire from her actions.à “If I rip the gas meter off the wall for the money, it is practically certain I will administer poison to her.” (> 90%) (also terrorist and air force one; know will kill other, not purpose, but blow it up anyway)
Recklessness- grossly deviate from standard of care reasonable person would do (> than torts standard); risk must be unjustifiable and substantial (< than practically certain); must have knowledge of risk. You could call this “conscious risk creation.” à - “I know there is a chance that this will poison Mrs. Wade”
Negligence- The defendant is not aware of the substantial and unjustified risk, but should be. It is also a gross deviation from the standard of care that a person would normally exercise; **Common law and MPC differ on diff. b/t reckless and negligent; in common law, negligence often involves lower degree of risk; in MPC, only difference is in awareness

Regina v. Faulkner (1877, p 206)

Facts- Faulkner Δ was sailor on ship; while trying to steal a bottle of rum, he set fire, destroyed the ship with fire and injured himself. Δ convicted under the Malicious Damage Act. The judge had instructed the jury that did not have to find that he intended to burn the ship. He aid if found tried to steal rum and ship burned as stated, then guilty.
Rule- Reversed b/c to find malice court held that intention or least recklessness has to be established.

Santillanes v. New Mexico (New Mexico, 1993, 211)

Facts- Δ was involved in altercation w/ 7 yr old nephew and cut his neck. Convicted of child abuse for “negligently causing child” to be placed in situation that may endanger child. Trial court judge refused to instruct of definition of negligence like that in Model Penal Code, but instead said negligence one “A reasonably prudent person [. . .] would not do”
Rule- Adopts MPC standard of criminal negligence; diff from CL civil negligence.

Strict Liability in CL crimes and US v. Morissette (Supreme Court 1952, r237)

Facts- Morissette snuck on to Air Force base and took bomb casings he claims he thought were abandoned. He then flattened them and sold them for profit. He was convicted of “knowingly converting” govt property. Δ claimed honestly thought abandoned and appealed on grounds that trial judge erroneously instructed jury that no intent necessary.
Rule- Reversed. Exceptions to mens rea as element of crime should not be extended to common law crimes such as larceny; Justice Jackson: mens rea not connected to revenge and retaliation but to deterrence and reconciliation (not always true)

Strict Liability in Public Welfare Offenses and US v. Balint (Supreme Court 1922, r236)

Facts- Δ was convicted under Narcotic Act of 1914 for selling derivatives opium or coca leaves. Δ appealed on grounds that indictment did not charge that they knew they were selling prohibited narcotics.
Rule- Ct allows conviction to stand b/c certain statutes have public policy as purpose and require seller of drugs to ascertain quality of what he is selling. Likely considering difficulty in proving knowledge.

Strict Liability in Public Welfare Offenses and US v. Dotterweich (Supreme Court, 1943, r236)

Facts-Δ was president and general mngr of pharmaceuticals co, which distributed drugs manufactured by other cos. Twice manufacturer’s and therefore, co’s labels were incorrect and so co. and Dotterweich charged w/ distributing misbranded products. Co. acquitted. Dotterweich convicted and sentenced to fine and 60 days probation.
Rule- Congress meant to impose burden on those w/ at least some opportunity of informing selves as to illicit commerce that may harm public, rather than put burden on completely on totally helpless public
Consequences are small and crimes are not infamous; often regulatory offenses; MPC codifies as “offense” separate from “crime” punishable only fine;

Staples v. US : Strict Liability in Public Welfare Offenses

Facts- Δ punished under law where possession of unregistered firearm punishable by up to 10 yrs. in prison; “it shall be unlawful to possess….”; firearm defined as “fully automatic weapon”; no mens rea in statute; Δ had filed away bar on rifle to make it fully automatic; claims thought only semi-automatic sawed off shotgun; knew he possessed gun but didn’t know nature of thing; fact: 50% of homes in US have lawfully registered handguns in them; seems to pub welfare but punishment is high
Rule- legislation meant to regulate circulation of firearms, therefore public welfare offense, strict liability and no mens rea needed; but then cites tradition of owning handgun in US; different from hand grenades; wouldn’t alert a person to regulation and doesn’t think was legislative intent; also says 10 yrs. too long to dispense w/ mens rea; felonies are not public welfare offenses, therefore must prove mens rea

C. Causation

Reasons for Causation requirements- Two people A and B each shoot at victims X and Y; as soon as A shoots X, overcome w/ remorse and tries to save him, but X dies anyway; B shoots Y and is happy about it, but Y somehow lives; A convicted of capital murder and executed; B is not; What explains difference?

Revenge- Society’s desire for vengeance, esp in death cases, will be greater.
Retributivism- One of retributivist (non-Kantian) purposes of punishment is to channel society’s natural desire for revenge.
Can argue no deterrent or rehabilitative purpose for Δ; maybe deterrence for revenge among victim’s family;
Reparation- kind of reparation for victim or victim’s family; should this be left to tort?

Three categories of causation problems that often arise:

Exceptional victim- unusually susceptible; “egg-shell” skull problem; ex) punch someone w/ hemophilia; Common law says take victim as you find him. MPC asks if consciously aware of risk (recklessness) or should have known but didn’t (negligence).
Unintended results- intend harm to victim, but extent or way of harm different; ex) hit different victim, or shoot at victim and miss but victim has heart attack and dies; Common law says take victim as you find him. MPC asks actual injury represents same kind of injury or harm as probable result or as that designed or contemplated in MPC §2.03 (r1041)
Intervening acts and events- (1) natural event, like lightening or (2) third party event; set house on fire and victims run outside and struck by lightening; shoot someone and dies at hospital b/c of malpractice (3) victim causes own death, i.e. refuses care, etc; Common law asks whether new and intervening cause or whether natural and probable consequence of ∆’s action. MPC asks about remoteness of harm, forseeability by ∆.

Stephenson v. State and CL causation

Facts- Δ Stephenson assaulted and tried to rape decedent Madge on a train. They then struck, bit and beat her. They forced her off the train in Hammond where they checked into a hotel room. Madge, struck with shame, asked for permission and money to go out to buy a hat. The chauffeur accompanied her to buy a hat and to the drug store where she bought some mercury tablets. Upon returning to her hotel room, she took the poison. Δ had her drink a bottle of milk, and suggested she go to a hospital, but she refused. Δ then drove her home. Her parents called a doctor. But as a result of her wounds, the poison, and her refusal to eat, she died 10 days later. Δ was charged with murder.

Rule- Upheld murder convicted b/c rendered Δ an “irresponsible actor” (emotional disturbance, shame of rape, fear, necessity b/c no hope of escape) and b/c “natural and probable consequence” of his actions (related to foreseeability in Decina; but does it make sense that less responsibleà less foreseeable?; could have used omissions doctrine (sequestered, didn’t go to hospital); two reasons for conviction independently sufficient
Ct says like Valade (girl jumped from window of hotel to escape attacker), not like Preslar (where women slept outside after beaten by husband w/o “necessity”)

US v. Hamilton (Supplement 1)

Facts- Δ in a fight on the street w/ John Slye. In course of fight, Slye was knocked to ground and Δ kicked Slye several times w/ boots in face. Slye was brought to hospital and arms were restrained, but restraints later removed. In course on night, Slye convulsed and pulled tubes out. Coroner found cause of death was wounds caused by Δ. Δ argues that not simply failure to seek treatment but positive act of Slye caused death.
Rule- if you cause harm that starts chain of causation (causi causati) and can make links then first actor is responsible; limited by “year and a day” later then cause; used as cutoff before medical advancements
Shows menu of standards CL judge can use; choose on own discretion if not in statute

MPC on Causation §2.03 (Pp1042-3)- Rare b/c staircases by mens rea

(1) Conduct must be antecedent of result—“but for” is necessary but not independently sufficient condition; AND
(2) When purposes or knowledge an element of offense, element not est if actual result not w/in purpose or contemplation of actor unless:

differs only in target person or property or designed harm is more serious than actual harm (transferred intent) OR
actual result involves same kind of injury or harm as designed or contemplated and not too remote or accidental to have just bearing on liability

(3) Same substandard as above for reckless (transferred mens rea + actual result w/in risk of which consciously aware) or negligence (transferred mens rea + actual result one of which should have been aware, i.e. equal to or less severe than probable harm)
(4) When causing result is material element of crime for which law imposes strict liability, element not est unless actual result is probable consequence of actor’s conduct.

III. Homicide

Problem of grading-

Pre-MPC NY law- one extreme that tried to interdependently define every type of murder
Sweden-does not define murder except as taking of life of another; also causing a death in different offense; no attempt to say what states of mind or action; just leaves up to finders of fact; allows individualization of cases, but can lead to inconsistency
US CL and MPC- middle ground; grades into large categories and leaves a lot of discretion at sentencing

Homicide in general:

MPC- MPC does not have degrees of murder; has whole list of mitigating and aggravating circumstances; shifts from intentionality to factors; completely ignored until 1972 when Supreme Court struck down death penalty b/c no guidance as to how to consider death penalty; dissenting opinion advised to redraft statutes; 35 states adopted MPC formulation; ** now most states have CL degrees w/ overlay of MPC
CL- Murder- worst kind of killing; at common law, had only one penalty- death; whole project to differentiate was driven by death penalty

Chart CL vs. MPC

Common Law	Model Penal Code §210.3 (P1076)
(1) Murder needs “malice aforethought” or “malice prepense” •Malice aforethought is a technical term of art standing in or certain mental states: --intent to kill --intent to cause GBH; like MPC recklessness --“reckless indifference” to value of human life; If knows act are likely to cause death or GBH, even if have no intent to either kill or cause GBH; take such an enormous risk that have “depraved heart” or “malignant heart”; don’t care enough about welfare of others; assumed to intend the natural and probable consequences of axns --“felony murder”; intent to commit another felony --killing of police officer while resisting arrest; now generally folded into felony murder	(1) Murder must be either: (1) purposeful; (2) knowing; (3) recklessness + w/ extreme indifference to value of human life; (4) if falls into list of felonies, there is a presumption of extreme indifference, but it is rebuttable w/ burden shifted to Δ. §210.1 P 1076
(2) Manslaughter •Voluntary manslaughter is a killing that would be murder but lacks malice aforethought because done in heat of passion with adequate provocation, i.e. mitigating factors; no cooling off; can’t be verbal; must be by victim •Involuntary manslaughter is death that is result of reckless or gross negligence	(2) Only one grade of manslaughter. Reasonable extreme emotional distress OR reckless (conscious running of substantial risk of death; gross deviation from standard of care); determine reasonableness of EED based on person in Δ’s situation under circumstances as he believes them to be §210.3 (P1077)
(3) Negligent homicide only requires ordinary civil negligence	(3) Negligent homicide requires MPC negligence (reasonable person would have known risk was substantial and unjustifiable) §210.4 P 1077
(4) Misdemeanor manslaughter analogous to felony murder	(4) MPC does not adopt misdemeanor manslaughter

Intended Killings

First degree

a. PA Statute- PA first to develop idea of 1^st degree murder; CL defines specific kind of murder eligible for death penalty; P 393

First degree- intentional killing; killing by means of poison, lying in wait, or any other willful, deliberate and premeditated killing; Treat this as “purposeful +”; highest mental culpability; above purposeful on MPC scale
Second degree- felony murder
Third degree- all other murders; (super reckless; depraved heart; intent to commit GBH; knowing w/o intent)

Commonwealth v. Carroll (Pennsylvania, 1963, P396)

Facts- Δ convicted of 1^st degree murder for shooting wife, while she was lying in bed, after long night of arguing and troubled marriage. Appeals on grounds that too short a time to form intent.
Rule- Court says that shooting twice at point blank falls under “intent to kill;” all you need for deliberation and premeditation is formation of intent to kill; no time too short

How do you prove intent under PA formulation?

Statements of intent
Juries can infer from circumstances

BUT…..

State v. Guthrie (West Virginia, 1995, P 400)

Facts- Δ (mentally unstable) was being teased at restaurant by co-worker; suddenly pulls out knife and stabs him.
Rule- Must be evidence Δ considered and weighed decision to kill before can fulfill premeditation and deliberation requirements of first-degree murder; must be some time lapse; same ruling in CA
Have to prove pre-thought out murder; more in line w/ textual meaning

Reasons for staircasing-

Deterrence- Those who think it over more susceptible to deterrence.
Law and Economics- Those who plan less likely to be caught, so should make penalty higher.

Mitigation and Manslaughter

Category originally created to get people out of death penalty whose crimes weren’t as bad
Voluntary manslaughter- mens rea same as murder but some mitigating circumstance; under retributive thy, less choice and so punish less
Cassassa v. People (New York, 1980, P 415) and MPC formulation

Facts- Victim ended a brief relationship with Δ, and soon after he began stalking her. One night he came to her apartment to try to rekindle things or kill her. She declined to restart their relationship and he stabbed and then drowned her. He claims that he acted under EED, which was reasonable in his situation of mental disturbance.

Rule- Appeals Court says two standards must be met for EED: Subjective question- was he disturbed?; Objective- would reasonable person have been disturbed? Trial ct w/in rights to find EED, but too particular to him to be reasonable
MPC §210.3 P 1077 says, must be

EED for which there is reasonable excuse
for actor in his situation under the circumstances as he believes them to be; word “situation” purposely ambiguousà not ideologies but maybe handicaps and circumstances; real question is if can arouse sympathy; allows time to simmer that CL does not

D.P.P. v. Camplin (England, 1978, r421) and CL formulation

Facts- A boy was sodomized and mocked by the deceased. He responded by killing his attacker with a frying pan.
Rule- (1) must consider reasonable child, b/c children more impulsive (2) usually taunts targeted at specific culture or group, so if part of that group, more provocation; ** Ct later changes to “sufficiently excusable”à like MPC leaves reasonableness to jury
CL requirements:

cannot just be words,
must be by victim (though mitigation can work in transferred intent).
Must be in “hot blood”; “sudden and intense passion” and
“serious provocation”; most judges take “reasonable person” idea from perspective of Δ; but serious provocation judgment is objective

Bedder – man kills prostitute who makes fun of his impotence; ct uses totally objective standard and says will not consider reasonable impotent man, only reasonable man

Common Law	Model Penal Code
1. Victim does the provoking. Disturbance or event caused by person killed 2. More specific—looks at adequacy of provocation (list of specific paradigmatic examples) 3. Words usually not be enough 4. Heat of passion means immediate response (no cooling off period)	1. Don’t have to kill the person who created the emotional disturbance. 2. Not look at adequacy—just whether a reasonable excuse for emotional state. 3. Words may be enough 4. Long term emotional disturbances and simmering allowed (immediate action not necessary)

Unintended Killings

Involuntary manslaughter- lower mens rea requirement; but problem is some risk creation is murder, some manslaughter, some negligent homicide and some carries only tort liability

Risk creation = Murder

Commonwealth v. Malone (Pennsylvania 1946, r439)

Facts- Δ charged w/ 2^nd degree murder in PA for killing Long while playing Russian Roulette; shot gun three times; thought only one bullet
Rule- Judge says does not matter what the chance was b/c acted w/ “depravity,” “hardness of heart,” wickedness, and malice; “wanton and reckless” disregard for friend’s life à recklessness + and stand-in for intent.

United States v. Fleming (District of Columbia, 1984, r443)

Facts- Δ driving very drunk on wrong side of highway at very high speeds and swerving. Hits car and kills woman. Charged with second-degree murder. Had CL PA murder def.
Rule- Proof of malice does not require malice toward victim or intent to kill. Malice is “reckless and wanton and a gross deviation from reasonable standard of care…” to such a high degree that jury is warranted to find Δ was aware of serious risk of death or bodily harm.

Risk creation = Manslaughter

CL: Commonwealth v. Welansky (Massachusetts, 1944, r425)

Facts- Δ owner of bar; on full night while Δ in hospital, decorations caught on fire and many killed b/c poor signs and locked doors. Δ charged w/ invol manslaughter.
Mens rea for involuntary manslaughter in MA (CL-> statute) is “wanton or reckless”; act or omission must have probable, substantial consequence; only defense at CL is that risk not great enough
At CL only difference b/t recklessness and negligence is degree of risk; MPC considers awareness as well
Rule- Wanton or reckless behavior does not need to be affirmative action, in premises liability cases can be failure to live up to duty of care. Says must be “wanton and reckless,” only action must be willful not result. Must be high degree of likelihood that substantial harm results.

MPC – manslaughter and negligent homicide

Manslaughter- Recklessness is standard for equivalent of involuntary manslaughter. Recklessness under MPC requires not only substantial risk but also conscious awareness of risk while common law requires only the substantial risk without awareness. MPC trying to serve theory of retribution—punish person who is aware of risk. Can also better deter people who are aware of risk as opposed to people who are unaware

ii. negligent homicide- MPC negligence (reasonable person would have known risk was substantial and unjustifiable) §210.4 P 1077

Tort Negligence: State v. Williams (Washington, 1972, r431)

Facts- Uneducated, poor N.Am. parents did not bring child w/ toothache to hospital, even though knew sick. Child dies of gangrene and Δ convicted of involuntary manslaughter. In WA mens rea required for manslaughter is ordinarily negligent that departs from ordinary standards of care, i.e. tort negligence
Rule- Meets negligent mens rea b/c reasonable person would have brought kid to doctor, even if reasonable person would not have thought the kid would die; sufficient under WA statute

Debate over tort negligence as standard- Why WA dumped statute?

Subjective vs. Objective

Objective- what a reasonable person would do? Hold everyone to same standard and punish those who don’t reach standard even if had no chance of making it
Subjective- Consider Δs situation; bring liability in line w/ culpability; some who could meet standard will slip thru by claiming they could not

CL Negligent homicide- Every state has gap b/t mens rea that suffices for lowest form of murder and unreasonable killing that is not culpable (since WA removed tort negligence standard)

merely negligent behavior people would not realize they were taking deadly action and so would not deter, e.g. reasonable people don’t throw cigarette butts into forest, but not many such acts kill people
Argument against is that everyone is negligent sometimes and would be too common; would lose moral opprobrium attached to criminal punishment

Felony Murder- originated w/ English system where all felonies were capital offenses; homicide now only capital offense, but FM rule remains; trend has been to limit rule, not eliminate it; problem is that liability not linked to culpability

People v. Stamp and Unlimited FM Rule

Facts- Δ Stamp held up the business of Carl Honeymoon and forced him to lie on ground at gunpoint. After Δ fled, Honeymoon died of a heart attack. Doctors said he was not in good health and had heart condition and the fright of the robbery was a shock to his system. Δ was charged with first-degree murder.
Rule- Must only prove causation, not foreseeability, to convict of 1^st degree murder.

Purposes of Modern FM Rule

Retributivism- strict liability inconsistent w/ this purpose; b/c no choice made to kill anyone
Deterrence- 3 possible ways

deter from committing underlying felony (Why not raise penalty on felony?-> certainty of imposition of higher penalty),
deter those who will commit felony to be more careful during felony (Depends on empirical question on whether those who commit felonies will fear FM rule),
might deter people who commit felonies and plan to kill will, b/c state will not have prove intention

Consequentialist retribution-people who do bad things should bear consequences; but this is inconsistent w/ larger project of staircasing by mens rea

Modern Limitations on FM Rule

Aaron in Michigan- MI has PA statute that says any “murder” committed in course of certain felonies is 1^st degree murder; lawyer argues and court agrees that use of word murder means had to prove mens rea of malice aforethought; no other place with PA statute has interpreted it that way
Dillon CA approach- refused MI reading; but 8^th amendment against cruel and unusual punishment says punishment must be proportional and so 1^st degree is too high; so bump it down to 2^nd degree murder
People v. Phillips (CA Supreme Court- 1966) P 459

Facts- Δ told the parents of a child with eye cancer she should not do procedure to remove eye as doctors had recommended. He offered to perform an operation for $700 that would be less invasive. The child died 6 mos later. Δ charged and convicted of 2^nd degree murder.
Rule- “inherently dangerous felony” theory- fraud can’t be basis for FM even though felony caused death b/c not inherently dangerous by statutory definition; Most common limitation in US
Rationale: trying to bring people who get FM closer in line with those who have mens rea close to homicide

PA Statute- added 2nd degree in statute for felony murder; names crimes that are “inherently dangerous”; in reality only a small % of these crimes lead to death (rape, armed robbery, arson, kidnapping, etc)
People v. Smith (CA, 1984) P 466

Facts- Δ beat his child to death. Δ was convicted of 2