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Back to Chapter 6… Attempt  Rule: A criminal attempt occurs when a person, with the (1) intent to commit an offense, performs any act which constitutes.

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Presentation on theme: "Back to Chapter 6… Attempt  Rule: A criminal attempt occurs when a person, with the (1) intent to commit an offense, performs any act which constitutes."— Presentation transcript:

1 Back to Chapter 6… Attempt  Rule: A criminal attempt occurs when a person, with the (1) intent to commit an offense, performs any act which constitutes a (2) substantial step towards the commission of that offense.  Substantial step (MPC) -  Beyond Mere Preparation  Tests (created by the courts):  1. “Last act” test – An attempt occurs at least by the time of the last act but this test does not necessarily require that each and every act be performed on every occasion.  2. Physical Proximity test – The D’s conduct need not reach the last act but must be “proximate” to the completed crime.  Nearness to completion  3. “Unequivocal” test – An attempt occurs when a person’s conduct standing alone, unambiguously manifests his criminal intent.  Whether act in ordinary course of events would result in crime but for timely interference.

2 People v. Hawkins  Key Facts:  D entered the students residence and proceeded to her bedroom.  D sat on the edge of her bed and removed his shoes.  Upon waking up and asking D what he was doing, D said he was there to “kick it with her.”.  Victim turned on the lights and ran from the room screaming.  Rule: “An attempt crime is one that falls short of completion through means other than the D’s voluntary relenting.”  Unequivocal Step Test

3  Chapter 7 Justification & Excuse Criminal Law Summer 2011 TA Session Slides

4 Types of Homicide  1. Justifiable  2. Excusable  3. Felonious

5 Justification v. Excuse Justification  Actor has committed an offense.  Denies the wrongfulness of particular conduct that constitutes an offense.  Wrongful act itself becomes lawful.  A person believes that the force he uses is necessary to prevent unlawful harm is justified in using such force if his belief is a correct belief. Excuse  Denies a particular actor’s responsibility for conduct that is wrong.  Actor will not be held accountable.  If a person reasonably but incorrectly believes that the force he uses is necessary to protect himself against imminent harm, his use of force is excused.

6 U.S. v. Lopez  Significance of the distinction between justifications and excuses in the context of accomplice liability.  Case suggests that justifications are transferable from the principal to the accomplice, whereas “ excuses are always personal to the actor,” unless she could satisfy the reqs of an excuse for herself.

7 State v. Leidholm  Distinction btw excuse and justification in the context of self-defense.  Mistaken belief that it is necessary to defend oneself is excusable.  Self-defense is justifiable only if it is based on a correct belief.  It is a complete defense either way, provided the belief is reasonable.

8 Self-Defense  Defense commonly used in homicides, but applies to other assault, attempted homicide or sex crimes.  Aggressor  Not entitled to use the defense of self defense, but if victim responds with excessive force, aggressor regains self defense right.  Initial aggressor can regain right if she withdraws and makes it clear that she has withdrawn and she is attacked after withdrawal.  Use of force in self-defense must be proportional to the amount of force threatened.

9 More on Self-Defense  A non-aggressor may use force to protect against an attack by another when he reasonably believes that he is threatened with the use of imminent use of unlawful force and that (like) force is necessary to repel that attack.  Subjective view – honestly believe imminent threat and responsive force necessary  Objective view – belief must be reasonable.

10 Martin v. Ohio  Facts: D and her husband argued over grocery money. D went upstairs, put on a robe, and came back down with husband’s gun which she intended to dispose of. Husband saw something in her hand, questioned her, and came after her. D shot and killed husband. D claimed self-defense which was an affirmative defense and she had the burden of proof by a preponderance of the evidence.  Due process reqs the prosecution to prove every element necessary to constitute the crime by proof beyond a reasonable doubt.  Requiring the D to prove self-defense did not shift the burden of proof on the elements of the crime.

11 People v. McManus  Facts: D fired into a group of youths to scare them off because they were robbing and assaulting his companion.  If the use of force is justified, it can not be criminal at all.  Justification is an ordinary defense rather than an affirmative defense.  It is neither limited to a particular mens rea nor crime.  A person “may” use physical force to defend himself or a 3 rd person, and his conduct, which would otherwise constitute an offense, is simply not criminal.

12 Use of Force in Self-Protection MPC § 3.04  Use of deadly force not justifiable unless to protect against death, serious bodily harm, kidnapping, or sexual intercourse compelled by force or threat.  MPC 3.04 permits the use of force to prevent or terminate unlawful trespass or unlawful carrying away of property.

13 Defense of Others MPC § 3.05  Originally defense of others was limited to force used to protect one’s relatives or members of one’s household (husband, wife, parent, child, master, mistress, or servant)  Today it applies to any “PERSON”.

14 State v. Buggs  Self-defense constitutes justification for conduct if:  1. A reasonable person would believe  2. That physical force is immediately necessary  3. To protect oneself against another’s use or attempted use of unlawful physical force  The focus is not the immediacy of the threat, but the immediacy of the response necessary in defense  Imminence and immediacy mean the same thing.

15 Retreat Doctrine  Under common law, a person being attacked was not required to retreat before using deadly force in defense.  MPC reqs actor to avoid use of deadly force if a complete and safe retreat or surrender or by complying with a demand can be made.  Castle Doctrine: is exception where person not required to retreat from home/work

16 People v. Bradley  Facts: D’s conviction of assault was reversed because the court gave a deadly force instruction in the absence of the use of deadly force by the D, who had punched the owner of a grocery store in the eye, when the owner threatened him with a saw.  Deadliness of the force is measured by its potential, not by its actual effect.  Damage of the punch was significant but did not transform ordinary force into deadly force.

17 Commonwealth v. Toon Retreat  Facts: Men fighting in the public street.  Rule: There was a duty to retreat. Deadly force was used, yet in the statute the D must look to retreat before using deadly force. If the D can retreat but fails to do so then he is not entitled to Self-Defense.

18 Rowe v. U.S.  Facts: Victim used offensive language for the purpose of provoking a fight with the D.  Rule: If one removes himself from conflict a claim of self- defense can be revived if the other person attacks them. A clear indication of retreat must be made.  “Though the D may have provoked the conflict, if he withdrew from it in good faith and clearly announced his desire for peace, then, if he is pursued, his rights of self-defense is revived.

19 State v. Kelly  Facts: D, a victim of frequent domestic abuse, fatally stabbed her husband after he attacked her.  Battered woman syndrome  Court held that battered woman syndrome evidence was relevant both to the actuality and the reasonableness of the D’s belief that she was in imminent danger of death or serious injury.  Use of expert testimony to prove BWS.

20 Necessity  Necessity – Common law; Choice of Evils (MPC)  Back-up defense  Necessity – raised when the actor violates the letter of the law because some emergency threatens the actor or another, and none of the usual defenses applies.  The actor must be faced with a choice of evils or harms, and he must choose to commit the lesser of the evils.  Harm that D seeks to prevent must be greater than the harm he reasonably expects to cause by his conduct.  No defense to murder at common law (Dudley & Stephens), but may be under MPC.

21 People v. Goetz  Facts: Goetz shot and wounded 4 black youths on a NY subway.  Self-defense standard is both subjective and objective – the belief must be reasonable, but the reasonableness inquiry takes into account D’s background and other relevant characteristics.  D’s subjective belief in the necessity to use deadly force is judged by an objective standard of reasonableness. ***

22 MPC § 3.02 Justification Generally: Choice of Evils (Necessity)  Justification where physical forces beyond the actor’s control render illegal conduct the lesser of two evils.  Necessity is a justification defense relating to a response to threats from natural events  Conduct that the actor believes to be necessary to avoid harm or evil to himself or to another is justifiable.  Justification unavailable for offenses of recklessness or negligence.

23 People v. Craig  Facts: Protesters organized a sit-in at a Congressman’s office and were convicted of trespass when they refused to leave.  Ds’ necessity claim failed b/c the threat they attempted to avert was not sufficiently immediate or likely to succeed to warrant the commission of a crime (suffering in Nicaragua).

24 Force in Law Enforcement MPC 3.07  Force immediately necessary to effect a lawful arrest  Limitations on use of force.

25 Tennessee v. Garner  Facts: Garner (15) was shot in the back of the head and killed by a police officer investigating a burglary.  When a police officer has a probable cause to believe that a fleeing felon poses a threat of serious physical harm, either to the officer or to others, deadly force may be used to prevent the escape.  Reasonable belief.

26 Consent MPC § 2.11  Consent of the victim is a valid justification defense to some, but not all, criminal offenses.  A victim’s consent to being killed is usually not a valid justification.  Consent to bodily harm is a defense if it is not serious, or reasonably foreseeable from participating in an athletic event.  MPC. § 2.11 provides consent is a defense where it negates an element of the offense.

27 State v. George  Facts: D acted violently to the security personnel at the psychiatric unit and argued that the consented since they took that job and position.  Court rejected D’s claim, holding that statute can not reasonably be construed to provide a defense to such intentional conduct.  Public policy concern to protect public and people in these types of jobs.

28 Lawrence v. Texas  U.S. Supreme Court holds that a statute criminalizing consensual homosexual sex among adults in private violates the right to liberty under the due process clause.  Statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual.

29 Duress MPC § 2.09  Affirmative defense that the actor was coerced by the use or threat of unlawful force against his person or the person of another, which a person of reasonable firmness in his situation would have been unable to resist.  Common law - duress was no defense (excuse) to murder.  MPC – duress is a defense to murder  Not available if the actor recklessly or negligently placed himself in a situation  Defense generally unavailable to a threat of “future” harm  Generally requires an “immediate” or “Imminent” threat.

30 Duress  Duress is an excuse relating to a response to human threats.  Threats of slight injury, fear of retaliation or destruction of property generally not sufficient to overcome will of person of ordinary courage to claim duress.  D must take advantage of reasonable opportunity to escape.  D must terminate his conduct as soon as claimed duress has lost its coercive force.  MPC limits to personal duress and not circumstantial or situational duress.

31 Dixon v. U.S.  D who purchased firearms for her boyfriend claimed duress.  Rule: No indication that the government statute intended for prosecution to prove the defense. Since duress is an affirmative defense it was up to D to prove.  MPC would place burden on government to disprove the existence of duress beyond a reasonable doubt (MPC 1.12 and 1.13 (9)(c))  No indication Congress intended to impose the burden on the government.

32 Entrapment MPC § 2.13  Proved if the government agent implants in the mind of an innocent person the disposition to commit the alleged offense and induces its commission in order that the government may prosecute.  Police may employ “trickery, artifice, and stratagem” to trap an unwary criminal but it is improper when a criminal design originating with the government, is used to induce an innocent person.  Entrapment is not proved if the government induces a “predisposed” person to commit the offense.  Defense framed in terms of the “perpetration” by a law enforcement official of certain acts.

33 People v. Calvano  Facts: D raised defense to entrapment to a heroin sale on Nov. 11 and duress to heroin sale on Nov. 19. Nov. 15 – D sold a white powder that was not heroic, which did not result in conviction.  State permitted to introduce evidence to disprove D’s denial of Nov. 15 transaction to counter his entrapment and duress defenses.  Evidence was relevant “to rebut the denial, implicit in each defense, of criminal intent.”  Court treats duress and entrapment as analogous, as both exert pressure on a person to commit a crime, though by different means – one through threats or coercion, the other through enticements or encouragement by a public servant.  Acts were intermediate and found relevant to the jury’s consideration of D’s disposition and volition.

34 Insanity  Defense to criminal liability.  Execution of mentally retarded persons is prohibited. (Atkins v. Virginia)  Execution of persons under 18 at the time of the crime is prohibited. (Roper v. Simons)

35 Insanity Tests  Durham “Product Rule” – Exculpated from criminal responsibility those whose forbidden acts were the product of a mental disease or defect. (overruled by Brawner – adopting MPC insanity standard)  Insanity Defense Reform Act (18 USC §17(a)) – D has the burden of proving, by clear and convincing evidence that at the time of the offense, as a result of a severe mental disease or defect, he was unable to appreciate the nature and quality or wrongfulness of his acts.  M’Naghten – whether the D was laboring under a defect of reason, from a disease of the mind, as not to know the nature and quality of his act, OR if he knew, he did not know it was wrong. (limited to at the time of committing the crime)  Irresistible Impulse Test – A diseased mental condition that caused the party’s reasoning powers to deprive him of the will power to resist the insane impulse to perpetrate the deed, though knowing it to be wrong.

36 MPC Insanity Test  MPC §4.01 – A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the criminality (wrongfulness) of his conduct or to conform his conduct to the requirements of law.  Terms “mental disease” or “defect” do not include an abnormality manifested only by repeated criminal or otherwise anti-social conduct.

37 Incompetence v. Insanity  Incompetence – To be competent to be tried, an accused must at the time of the trial – rather than at the time of the offense – be able to understand the nature and seriousness of the charges and cooperate with attorney – rather than tell right from wrong or control conduct. (MPC 4.04)  Execution of incompetent person is cruel and unusual punishment.

38 Infancy  An infant (minor) is exempt from criminal liability on the basis of age.  Persons below a certain age:  transferred to juvenile court rather than criminal court  Not subject to conviction but order of delinquency  Not to punishment but treatment  Not in a prison but a juvenile facility  MS – Age 13 for criminal liability


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