Idea Transcript
Criminal Law Fall 1999 Professor Angela Harris Exam Key General Comments Overall, the exams were quite good in terms of knowledge of the substantive criminal law. Although inevitably there were mistakes about the law, most people lost points not because they got the law wrong but because they just didn't say enough. In a law school exam situation, more is more, and more points went to those who noticed side issues and who pointed out how the prosecution and defense could use the facts in different ways. Thus, the best exams stood out on two counts: issue-spotting and arguing the facts. One very common mistake, related to the virtues just noted, was failing to take notice of opposing arguments. Even when you are doing persuasive writing, you need to be thinking about what the other side will argue so that you can refute their arguments. In an analytical writing situation like this one, it's all the more important to acknowledge contrary arguments, even if you think they can be answered. Many people simply set out their analyses and did not mention the possibility of any dispute. More points went to those who took note of how the prosecution and defense would respond to one another's arguments. A final, less intellectual, general comment: some of you had handwriting from hell. Please, for the sake of your future instructors, consider printing or typing your next exam! Comments on Part A In a common law jurisdiction: Question 1. Can Diane be charged with the felony murder of Roger? If so, what defenses may she raise? Jurisdictions that follow the common law recognize the crime of felony murder, but the common law courts have placed certain limitations on the prosecution of this crime. The obvious underlying felony in this case is burglary. First, has Diane committed burglary within the meaning of the applicable statute? Two clauses seem problematic. First, was it "nighttime" when she and Roger entered Hertha's house? The facts tell us that sundown was "approaching;" this gives Diane's lawyer the chance to argue that it was not nighttime yet and therefore whatever crime Diane committed, it wasn't burglary. The prosecution could point to the fact that it was "gloomy" when they entered the house, and note that the purpose of the nighttime requirement is to recognize that people have a heightened apprehension of danger to themselves and others once it begins to get dark. We need to examine precedent from our jurisdiction to find out whether there is law on the question of when day turns into night. Second, did Diane have the required intent to commit larceny or another felony? Larceny is defined for us as involving the "intent to deprive the other of the property." Diane could argue that, since she secretly resolved to return anything they took from the house, she didn't intend to deprive Hertha of any property. The prosecution could argue that her admitted state of mind did include the intent to deprive; merely returning the property later doesn't mean you didn't steal it in the first place. Assuming that Diane did commit burglary, can burglary serve as the underlying felony for felony murder? First, is it inherently dangerous to human life? The answer may turn on how this jurisdiction approaches this question. In California, for example, the issue of "inherently dangerous to human life" is considered in the abstract. Using this approach, one would have to conclude that burglary is not inherently dangerous to human life because it could be committed in a non-dangerous way. Other jurisdictions, however, consider the issue on a caseby-case basis. Under this approach, the prosecution could argue that this burglary, which involved both alcohol and guns, was in fact inherently dangerous to human life. (The prosecution might also draw on the fact that in common law jurisdictions burglary may sometimes be a "forcible and atrocious" felony for defensive force purposes.) The defense could argue that under the facts as we know them, Roger and Diane thought the house was empty; therefore, the burglary was not inherently dangerous to human life. There are several other judge-made limitations on felony murder that pose an issue here. (1) The homicide did not merge into the underlying felony; the actions that comprised the killing were not included in fact in the actions that comprised the burglary. Even if the prosecution could argue for a merger, the "independent felonious purpose" exception clearly applies here. (2) Was the killing in furtherance of the felony? Diane might argue that the killing was not in furtherance of the felony; as in the airplane crash case, the connection was only a coincidental one. The prosecution could respond that the killing was a foreseeable consequence of breaking into someone's house with the intent of stealing their property, so that the airplane case can be distinguished. (3) The strongest argument in Diane's favor is the agency rule. The person who fired the fatal shot was Patty. Under the agency rule, co-felons are responsible for one another's killings, but if the immediate cause of the death was a third person or law enforcement officer, it is not felony murder. (However, the prosecution could possibly still charge Diane with murder under a second-degree, extreme recklessness theory, under precedents set in California that extend the "gun battle rule" to circumstances where the defendant, although she does not fire the first shot, nevertheless provokes the killing in some way. On this "provocative act murder" theory, the prosecution could argue that bursting into Hertha's kitchen at sundown caused the fatal response.) Diane could also raise duress and intoxication as defenses (see below). Although neither is a defense to felony murder directly, both may negate Diane's responsibility for the underlying felony, and if there is no felony there cannot be felony murder. Question 2. If Diane is charged with attempted burglary, is she entitled to an instruction on impossibility? Arguably, the prosecution should not even charge Diane with attempted burglary since the crime is complete: Diane committed the actus reus (unauthorized entrance into a dwelling in the nighttime) with the mens rea (intent to commit larceny). But suppose the prosecutor agrees with Diane that Diane did not succeed in committing burglary because it was not yet nighttime. In that case, Diane might have two possible "impossibility" arguments. First, Diane could argue that it was impossible for her to commit burglary because it was not nighttime. She could argue that this is "legal" impossibility: like the case in which the defendants had sex with a woman without her consent and the woman turned out to be dead, the daylight (like the death) creates an insurmountable juridical bar to the prosecution. The prosecution could respond that this is mere "factual" impossibility: but for the fact that the sun hadn't yet set, the crime would have been committed. This is like the pocket being empty. Whether Diane is entitled to an instruction on impossibility depends on whether the judge sees this debate as being a question of law or fact. However, there is clearly a viable argument here. The second impossibility argument Diane might offer is that the crime could never have been committed because there were no diamonds in the safe; the safe contained worthless costume jewelry. Diane could argue that this is "legal" impossibility because, even if she and Roger did everything they set out to do, they would not have stolen any diamonds. But this argument will fail. This is more like "factual" impossibility, where the pickpocket reaches into an empty pocket. Indeed, this is really not impossibility at all. If Diane and Roger had set out to do everything they planned, they would have in fact committed larceny: they would have stolen Hertha's costume jewelry. The fact that they would have stolen something of lesser value than they expected does not change the fact that they would have deprived Hertha of her property. Question 3. If Patty is charged with the murder of Roger, what defenses may she raise? Patty may raise a series of justifications based on defensive force. First, she may argue that she killed Roger in self-defense. In order to be justified in using deadly force against a person, the defendant must believe that she is faced with a threat of imminent death or great bodily harm, and that belief must be reasonable. Patty could argue that both these requirements are met. It is reasonable when you encounter strange people in your kitchen at sundown to be afraid and to believe that these people may kill you. Patty's lawyer would want to emphasize that Patty was "startled," hence afraid. The prosecution could argue that Patty's belief in her imminent death or great bodily harm was not reasonable. Diane and Roger first froze and then turned to run, and Patty proceeded to shoot Roger in the back. We don't know if any guns were visible; we don't know whether Diane had her gun out, and we don't know if Roger was even armed. No reasonable person would believe that someone running away from you (possibly unarmed) poses an imminent threat of death or great bodily harm. Patty would respond that "detached reflection cannot be demanded in the presence of an uplifted knife." The reasonable person is an ordinary person under the same circumstances as the defendant. The response might be that the reasonable person is not just an "ordinary" person; the reasonable person has some qualities of the ideal person. Finally, as some of you noted, some precedents like Wanrow give special attention to the actor's gender. The defense could point out that the standard is that of the reasonable person of the sex, size, and strength of the actor, and perhaps Patty is a small woman with no training in self-defense. Further, did Patty have a duty to retreat before using deadly force? In the majority of common law jurisdictions there is no such duty, and even in the minority of American jurisdictions that do recognize a duty to retreat, the duty does not apply when one is in one's "castle." The prosecution might argue, however, that the castle doctrine does not apply here, because it was not Patty's house. Further, the prosecution might argue that since Roger and Diane had turned to run (presumably toward the door where they entered), Patty had a clear path of safety in the other direction and should have retreated before using deadly force. The defense would respond that Patty was an invited guest, and this should trigger the castle doctrine. Therefore she had no duty to retreat. Even if she did, the defense might argue that Patty could not be sure that the intruders would really leave if she ran the other way. There is no duty to retreat unless one knows that there is a clear path to safety. Patty can ask for an instruction on "imperfect self defense" if our jurisdiction allows it. The argument would be that even if the jury agrees with the prosecution that Patty did not act reasonably under the circumstances, Patty did not commit murder but rather voluntary manslaughter. Patty could also raise "defense of others," since Hertha was in the house too. However, defense of others requires that the person being defended have the right to use deadly force. The prosecution could argue that since Hertha was upstairs and in no imminent danger, Patty's "defense of others" argument collapses. The response might be that the whole household was in imminent danger from armed intruders, and there was no need for Patty to wait until Hertha was actually about to be hurt. Otherwise, the arguments here would be the same as in selfdefense; Patty would be entitled under both traditional and modern law to defend Hertha, and Hertha would certainly have the right to defend herself against Diane and Roger under the circumstances. The issue would be the same as in self-defense: was Patty's action reasonable? Patty could raise "defense of habitation." The first issue here is whether Patty is entitled to raise this defense, since she was only a guest not a member of the permanent household. Patty could argue that because she was invited and related to the owner she should be entitled to raise this defense. Moreover, she was apparently acting as Hertha's caretaker, and as such might be considered a guardian and acting to some extent in Hertha's interests. The older common law recognizes the right to use deadly force to prevent someone from entering your home; the newer common law requires a threatened forcible and atrocious felony, which burglary probably is in this case. However, since Diane and Roger were already in the house, the prosecution could argue that defense of habitation does not entitle Patty to use deadly force. We should do more research in our jurisdiction to discover whether there are any statutes on defense of habitation, since this is an area in which legislatures have recently been active in trying to protect homeowners from home invasion. If there is a "Make My Day" statute in force, Patty might have a better chance. Patty could also raise the law enforcement defenses. Deadly force is justified when used by a private party to prevent a forcible and atrocious felony from being committed. Burglary may be a forcible and atrocious felony, depending on the manner in which it is committed, and the fact that Roger and Diane were armed may suggest that this particular burglary was forcible and atrocious. However, since the crime had already been committed once the unauthorized entry was made, this defense does not strictly apply. The better defense to raise is arrest of a felon; deadly force is authorized against a person who has committed a forcible and atrocious felony, as long as the defendant has caught the right perpetrators. Again, this particular burglary could be considered forcible and atrocious, and Roger and Diane are the perpetrators (subject to the issues discussed in question 1). But states typically require the actor to give some notice before using force, and Patty did not do this. Patty could raise the defense of protection of prope Finally, some of you suggested that the word "startled" suggests that Patty might have a voluntary act defense: perhaps she acted on reflex rather than through volitional action, and thus the shooting was not really "her act." The response might be, of course, that she must have had to aim in order to shoot Roger in the back; this seems to be a suspiciously precise reflex. Question 4. If Diane is charged with the attempted murder of Patty, what defenses may she raise? Diane could argue lack of intent, since attempted murder requires a specific intent to kill. She could argue she only meant to frighten or injure Patty and not to kill her. However, her use of a deadly weapon suggests that she at least meant to cause serious bodily injury to Patty, and the jury could infer from her actions that she really did mean to kill. Diane may raise self-defense and defense of others. Patty clearly poses a threat of death or great bodily harm to her, since she just shot Roger. A reasonable person in that situation would probably resort to deadly force. However, one issue is whether Diane has lost the right to self-defense because she was an aggressor. By unlawfully causing the deadly encounter in the first place, the prosecution might argue, Diane created the conditions for the attempted killing. The traditional common law approach requires the defendant to be "without fault" in order to successfully claim self-defense. The response might be to break up the incident into two different encounters. Diane and Roger turned to run away when they discovered the house was occupied. At that point the first encounter ended and a new one began. It was Patty who first used force in the second encounter, and therefore Diane is innocent and entitled to use deadly force in her own protection. (Another way to argue this would be to argue that Diane withdrew from the encounter and clearly communicated that withdrawal, hence regaining her right to self defense, when she turned to run away.) Diane may also raise intoxication as a defense (see question 7). Finally, Diane might be able to raise heat of passion as a defense. At least under older common law, "mutual combat" was considered provocation as a matter of law. The prosecution might argue that this doctrine is no longer good law, and that there is no "mutual" combat since Diane was an onlooker to the incident between Patty and Roger. This situation does not seem to fit the traditional categories of legally adequate provocation. Diane could respond that the modern trend is to let the jury decide what constitutes provocation, and a rational jury could certainly believe that shooting one's spouse is an action that would cause a reasonable person to be overcome by emotion. There is no cooling time problem here, there seems a clear causal link between the provocation and the shooting, and the person shot at was the provocateur. The result might be, then, attempted voluntary manslaughter rather than murder. (This does not pose a logical problem because voluntary manslaughter encompasses the intent to kill.) Question 5. If Hertha is charged with the attempted murder of Diane, what defenses may she raise? Since Hertha is stipulated to be a paranoid schizophrenic and killed Diane because she believed Diane to be an alien, her first resort may well be insanity. Most common law jurisdictions use the M'Naghten test, which asks whether the defendant understood the nature and quality of her acts, and if so, whether she understood that her actions were wrong. Hertha's lawyer could argue that Hertha failed the very first part of the test - she did not understand the nature of her acts, since she believed she was exercising deadly force when in fact she was not. Even if she understood the nature and quality of her acts, she did not understand that they were wrong, since she believed that she was not killing a person and thought she was actually helping humanity (see MPC question 3 below). The prosecution's response would have to be that she did in fact understand the nature and quality of her acts (she knew she was throwing orange slices), and she did know society would disapprove (see MPC question 3 below). Jurisdictions that follow the M'Naghten test are split between "legal wrong" and "moral wrong" jurisdictions. If our jurisdiction is a "legal wrong" jurisdiction, then Hertha cannot claim insanity as long as she realized that what she was doing was criminal (it is criminal to try to kill someone appearing to be a person, and it is also criminal to assault such a being). Hertha might argue that she did not realize what she was doing was legally wrong, since the object of her attack was to her mind not a person and the law does not protect the interests of aliens. The prosecution might protest that her concept of a "human-alien hybrid" does admit the possibility that Diane was at least part human and therefore protected by the criminal law. If our jurisdiction is a "moral wrong" jurisdiction, then even if Hertha recognized that her target was protected by the criminal laws, she can be excused as insane if she believed that society would approve of her actions if it shared her understanding of the circumstances underlying her actions (this is the Wilson test discussed in the book). Indeed, some judges would hold that she is excused as insane merely if she believes that society's rules do not apply to her. The prosecution might respond to Hertha's insanity defense that because she had (presumably deliberately and knowingly) stopped taking her medications, she was really more like Mr. Decina: she bears responsibility for becoming actively psychotic. Thus, the prosecution could argue that, using a broad time frame, Hertha is more like someone who became voluntarily intoxicated rather than someone who is blamelessly not responsible. Therefore, she should not get the benefit of the insanity defense. Hertha has a defense of legal impossibility. Although she may have committed assault in tossing orange slices at Diane, what she did was not proscribed by the law of murder and so she cannot be charged with attempted murder. To charge her would violate the legality principle; it would be like allowing her to "make up the law against herself." The analogy would be to the hypothetical in the book of the man who puts his hand on a woman's shoulder believing this constitutes rape. Hertha may also raise the defense of inherent impossibility. You simply cannot kill a person by tossing orange slices at her. This is like the voodoo killing cases; the charges should be dropped because there was simply no social harm created. The prosecutor may respond that, as in the voodoo cases, the fact of Hertha's culpability is more important. Her intent shows that she is a dangerous person and next time may use more effective means of killing. Another way to get to the same result might be for Hertha to argue that she never got beyond preparation. Some common law jurisdictions require that the actor come unacceptably close to completing the crime in order to commit the actus reus. Hertha, obviously, never came close to actually killing Diane. Hertha could raise the defense of necessity, but it would fail because it rests on a mistake. A necessity defense can only succeed if the jury, looking at the situation from an objective point of view, agrees that Hertha did the right thing under the circumstances. But the jury in this case would be forced to conclude that Hertha did not do the right thing at all, since her understanding of the "circumstances" was objectively wrong. Hertha's claims of self-defense, defense of habitation, defense of others would also most likely fail, since Diane withdrew from the conflict and clearly indicated that withdrawal by her words and actions and based on the facts no reasonable person would have been an imminent danger of death or great bodily harm. Hertha could have a law enforcement defense (see question 3 above) if Diane's burglary is considered forcible and atrocious. Finally, Hertha could raise lack of mens rea. She did not intend to kill any human being; she only wanted to rid the world of half-alien invaders. Question 6. May Diane introduce evidence of battered women's syndrome? To what issues might this evidence be relevant? Diane might introduce evidence of BWS in support of a duress defense: she could argue that she committed burglary (if she did; see question 1) or attempted burglary (if she did; see question 2) under duress. The common law defense of duress requires a threat from a person of death or great bodily harm, and no reasonable escape except by committing a crime. Certainly Roger threatened Diane with bodily harm, and she could argue it was great bodily harm. Diane could use the BWS evidence to bolster this part of the argument: women who have been beaten before have accurate knowledge about anticipated beatings. Therefore, relying on this evidence, a jury could find that Diane was experiencing a reasonable fear of great bodily harm. The prosecution could respond that Diane could have either escaped before the burglary occurred or, using a broader time frame, that she could have left the relationship and thus was not genuinely under duress. Diane could respond with BWS-related evidence showing how high the risk of death or great bodily harm is for women who leave their battering partners. Diane could also point out that once Roger was out of the picture, she withdrew from the conflict. Some jurisdictions distinguish sharply between the use of BWS to support a "subjective" claim and an "objective" claim, allowing the former and not the latter. The prosecution could argue that the standard for duress is not the reasonable battered woman; it is the reasonable (non-battered) person. Under this approach, BWS evidence may be admitted to show that Diane was sincerely afraid of death or great bodily harm or sincerely believed there was no escape, but not to show that those beliefs were reasonable. In any case, the evidence could be used to bolster Diane's credibility when she tells her duress story. BWS evidence would probably not be helpful in Diane's defense against attempted murder. It does not add anything to her self-defense or defense of others claim. BWS evidence could, however, go to support Diane's involuntary intoxication claim (see question 7 below). A jury is more likely to believe that Diane was coerced into drinking if it takes into account Diane's prior beatings at Roger's hands. Question 7. May Diane introduce evidence of intoxication? To what issues might this evidence be relevant? An initial question is whether Diane's intoxication should be characterized as voluntary or involuntary, since involuntary intoxication is the more expansive defense. One circumstance under which intoxication is considered involuntary is when it is "coerced." Diane could argue that her intoxication was coerced, since Roger threatened her by saying "I said drink, damn it!" Diane could use BWS evidence to support the argument that this statement was backed by the threat of great bodily harm. Involuntary intoxication is generally an excuse if it negates the mens rea of the crime. Diane would have to argue that she was so drunk that she did not intend to take anything from Hertha; indeed, in some jurisdictions she may have to argue that she was so drunk that she was temporarily insane. Diane could also argue that she was too drunk to form the specific intent to kill Patty, and therefore is not guilty of attempted murder. The prosecution's response will be that Diane's intoxication was voluntary, not involuntary, because Roger's cursing doesn't rise to the level of coercion. He did not hold a gun to her head and force her to drink. Perhaps she could have quietly stopped before the point of intoxication and Roger would not have noticed. Even if Diane's intoxication is considered voluntary rather than involuntary, however, the traditional common law approach allows voluntary intoxication as a defense against specific intent crimes if the defendant argues she was too intoxicated to form the necessary mens rea. Both burglary and attempted murder are specific intent crimes; therefore, even if Diane's intoxication is deemed voluntary, she has a shot at a defense against both crimes. The prosecutor's response will be that Diane may have been drunk, but not so drunk that she was unable to form the relevant mens rea. As to the burglary, if Diane was sober enough to form a secret intent to return anything stolen, she was sober enough to form the intent to take property in the first place. As to the attempted murder, she was sober enough to take in what happened to Roger and respond to it quickly. Moreover, as to the burglary, the prosecution could argue that the intent to commit the burglary was formed before the intoxication took place, and "liquoring up" was just a way to implement the already formed intent. If our jurisdiction permits intoxication as a defense only when it amounts to temporary insanity, the prosecution will argue that Diane clearly understood the nature and quality of her acts and knew that they were wrong. In a Model Penal Code jurisdiction: Question 1. If Hertha is charged with attempted murder, is she entitled to an instruction on "extreme mental or emotional disturbance"? An initial question is whether EMED is an appropriate defense to attempted murder, as opposed to murder. The prosecution might argue that MPC section 210.3 only applies in cases involving "a crime that would otherwise be murder." Here the crime charged is attempted murder, not murder, and so arguably the instruction is inappropriate. The defense would respond that an instruction on this defense is necessary to answer the charge of attempted murder. Under section 5.01(1) of the MPC, in order to be guilty of an attempt one must have the mental state necessary for the completed crime. But Hertha arguably does not have the mental state for murder because she was suffering from an extreme mental and emotional disturbance. Hertha will argue that she fulfills the criteria of MPC section 210.3: she tried to kill Diane because of an extreme mental or emotional disturbance for which there is a reasonable explanation. Since the reasonableness of the explanation is to be determined from the viewpoint of a person in the actor's situation under the circumstances as she believes them to be, the jury should recognize that from Hertha's point of view it was reasonable that she would be extremely overwrought by the appearance of Roger and Diane in her kitchen. Even leaving aside Hertha's psychotic belief system, it would be extremely upsetting to come into your kitchen and come upon the scene Hertha came upon. Since she could not be guilty of the completed crime of murder, only manslaughter at best, the charge of attempted murder must fail (since under section 5.01(1) of the MPC, in order to be guilty of an attempt one must have the mental state required for the completed crime). The prosecution could respond that no rational jury would grant this defense, because "circumstances" is meant to describe external circumstances, not subjective, idiosyncratic states of mind. The prosecution might argue that this is like the Casassa case, where the court identified both a subjective and an objective element in the defense. The court in that case held that despite the defendant's peculiar subjective belief that he was having a relationship with the victim, he actually was not and it was not reasonable for him to think he was, so there was no reasonable excuse for his homicidal behavior. Finally, the prosecution could object that Hertha recklessly caused herself to have this disturbance by stopping her medications. Since this is the case, she should not be permitted to raise the defense. But the defense could respond that this argument concedes she was reckless at best, and recklessness is not sufficient for attempted murder; therefore it is still proper to negate the culpability needed for attempt. The prosecution could argue that Hertha's failure to take her medication means that the excuse for her disturbance is not reasonable. The response might be to suggest a narrow time frame rather than a broad one. Question 2. If Hertha is charged with attempted murder, is she entitled to an instruction on mistake? Yes. Under the MPC, mistake of fact or law is a defense when it negates the mens rea necessary for the crime. The crime of murder is a form of criminal homicide, and criminal homicide is defined in section 210.1 as causing the death of "another human being," which in turn is defined in section 210.0(1) as "a person who has been born and is alive." Hertha believed that Diane was not in fact a human being, but a "human-alien hybrid." Because of this mistake, she lacked the purpose or knowledge necessary for murder (and hence attempted murder). Some of you identified a different mistake on Hertha's part: the belief that citrus can kill. But this mistake does not eliminate Hertha's mens rea. As many people noted, this case seems tailor-made for an application of section 5.05(2). Hertha's conduct seems so inherently unlikely to result in the commission of a crime that the judge may choose to either impose sentence for a crime of a lower grade than attempted murder, or dismiss the prosecution altogether. Question 3. Is Hertha entitled to an insanity instruction in a "wrongfulness" jurisdiction? The analysis here is the same as the analysis under the common-law M'Naghten rules (see question 5 above). In a "wrongfulness" jurisdiction, Hertha will be judged insane if she believes that society would morally condone her actions if it shared her view of the circumstances, and that condition appears to be met here. The prosecution's response would be that Hertha in fact could appreciate that society would not approve of her actions; her repeated rebuffs by the FBI, for example, could be offered to show that she knew that she was in the minority in her beliefs. Comments on Part B Since this part of the exam was designed to give free rein to your thoughts on various theory and policy issues, there was no one "right" way to answer it. A few basic starting points can be recognized, however. House Bill 4335 makes three significant changes to the Model Penal Code structure: it eliminates the MPC's equivalent to felony murder, it makes it possible for a defendant who is merely negligent to be convicted of murder, and it substitutes for the felony murder provision a return to the old common law position that voluntary intoxication is an aggravating rather than mitigating circumstance. (A tip of the hat to Mr. Saab for inspiring this provision.) In addition, because the bill no longer contains a cross-reference to section 210.3(1)(b) on extreme mental or emotional disturbance, it is possible although not certain that the drafters intended to eliminate the EMED defense. As to the removal of felony murder, one could argue that this is not a radical change; the MPC drafters had already substantially strayed from the common law doctrine of felony murder by restructuring it as a species of reckless murder rather than as a kind of strict liability crime. One could argue that even were House Bill 4335 to become law, prosecutors could still charge defendants with murder in drugstore robberies and other felony murder-like situations. Recklessness manifesting extreme indifference to the value of human life would have to be proved rather than presumed, but assuming compelling facts juries might be quite likely to find such recklessness and extreme indifference even without a presumption. Nevertheless, the removal of this provision raises questions about the value of the felony murder doctrine from a policy and theory perspective. The addition of negligence as a mental state that can lead to a murder conviction is quite at odds with the original vision of the MPC drafters. Assuming that H. 4335 is the only change to be made to the code, it creates a situation where a negligent killing can either be treated as a third degree felony - negligent homicide - or a first degree felony subject to the death penalty, all depending not on the actor's culpability but on whether the "circumstances" manifested extreme indifference to the value of human life. Since, as we have seen throughout the semester, the MPC drafters in general are much more concerned with individual culpability than with objective social harm, this provision seems out of step with the rest of the code. The response might be that if the circumstances manifest extreme indifference to the value of human life, then one can safely treat this as going to the actor's culpability after all. But if that is the case, why disrupt the MPC drafters' tidy distinctions between negligence and recklessness? Just leave out the reference to negligence altogether. A similar argument is that it is confusing and perhaps contradictory to mix the notion of negligence with the idea of "circumstances manifesting extreme indifference to the value of human life." Is it possible to both be merely negligent (not recognizing the risk to a person's life) and kill someone in circumstances manifesting extreme indifference to the value of human life? Perhaps an honest faith healer would fit the bill (remember the guy with the colored lights and lemonade).But in that kind of circumstance, wouldn't a jury probably conclude that the actor really did recognize the risk and was therefore reckless rather than negligent? The addition of negligence to the murder provision is also at odds with the position that for both utilitarian and retributive reasons negligence is not a sufficient basis for criminal conviction. (See excerpts from the MPC commentaries on pp. 280-81 of the casebook.) Although the MPC drafters ultimately concluded that criminal responsibility for negligence may provide an incentive for people to be more careful before they act, to equate negligent actors with purposeful, knowing, and reckless actors as the proposed amendments to section 210.2 does violates the scheme seen elsewhere in the code, where negligent crimes are consistently punished less harshly than the same crime committed with purpose or knowledge. (The exception is rape law, which is unique in the MPC for abandoning the four states of mind altogether.) A discussion of the utilitarian and retributive arguments about negligence liability would be appropriate here, but no matter how you come out on the issue there is still the problem of internal coherence in the new code. There is also a potential constitutional problem that the inclusion of negligence as a culpable state of mind for murder creates. One could imagine an eighth amendment claim that putting a person to death for a merely negligent homicide is cruel and unusual punishment. Perhaps this argument would not go very far: the Court's handling of the Harmelin case suggests that the Court intends to give great deference to individual legislatures' handling of punishment issues. On the other hand, "death is different," and the Court has taken eighth amendment claims much more seriously when it comes to capital cases (as the Coker decision suggests). The inclusion of negligence also raises "grading" problems within the homicide statute. Should negligent killers ever be lumped in with purposeful and knowing murderers? The response might be that the requirement of "circumstances manifesting extreme indifference to human life" reduces the force of this retributive argument. Still, even if the circumstances look bad, a finding of negligent supposes that the actor honestly, even if totally unreasonably, did not recognize the risk of death. Such a person arguably is on a different moral ground than the serial killers of the world and should not be treated the same. Finally, H. 4335 instructs the jury to presume extreme indifference to the value of human life when the actor is voluntarily intoxicated. Under existing MPC section 2.08(2), when recklessness establishes an element of the offense, if the actor, because of voluntary intoxication, is unaware of a risk of which s/he would have been aware if sober, this unawareness is immaterial. Thus, even under the MPC before H. 4335, the actor's unawareness of the risk because of intoxication cannot stop a prosecution for extremely reckless homicide. This provision goes further; it doesn't just take away voluntary intoxication as a defense to reckless crime but uses it as a way to establish extreme recklessness. One immediate problem with this proposal is that it does not define voluntary intoxication. Is this meant to be the same thing as intoxication that is not self-induced, defined in section 2.08? Or does it have a different meaning? If this term is undefined it could lead to legality problems. A court interpreting this provision might feel compelled to apply the rule of lenity in cases where the defendant only had, for example, one beer. There might even be the basis for a constitutional challenge to this provision under the due process clause, using the void for vagueness doctrine. A murder statute that fails to define a key term does not give fair notice to the people who may be charged, particularly since voluntary intoxication of alcohol is so common in our society and has not been regarded as a crime since Prohibition. And perhaps this lack of definition also means the ability of cops to exercise their biases. As a policy issue, the arguments we discussed in class concerning intoxication as a defense are obviously relevant. In favor of this provision, one could argue that it provides an incentive for people and especially people planning crimes not to get drunk. The connection between crime and alcohol consumption is obvious even from the cases we read in the book. The provision also responds to the retributive argument that getting drunk is a form of reckless behavior. The connection between intoxication and criminal behavior is something that people are well familiar with, such that it is fair to treat people who get drunk as deliberately taking the risk that they will do something stupid and possibly harmful. Several of you pointed out that this provision might have been written as a response to a rash of drunk driving incidents in which a person is killed. Against this provision, one could argue that although voluntary intoxication should be taken into account by a jury on a case by case basis to decide whether the actor was reckless, it goes too far to presume "extreme indifference to the value of human life" every time the actor was voluntarily intoxicated. Mistakes and accidents do happen, and sometimes they are unforeseeable even given that the actor chose to get drunk. Should a drunken bar fight that accidentally kills someone be equated with purposeful and cold-blooded murder? Even drunk driving, which not infrequently kills, is arguably not as culpable as intentionally taking a life. Many of you considered this new provision to be a kind of strict liability: the proposal removes a list of serious felonies as the predicate for extreme recklessness and replaces them with voluntary intoxication. Thus, as in felony murder, the intoxication itself seems to replace the mens rea otherwise needed for committing the killing. Considered this way, the provision seems problematic in many ways (why eliminate the list of felonies and include intoxication? Does this provision meet the usual tests for strict liability crimes? Is the mental state associated with voluntarily becoming intoxicated really "evil" enough to justify responsibility for everything that later occurs?). The provision also creates fairness problems. Suppose bar patron A isn't drunk and bar patron B is, and both engage in a fight in which someone accidentally is killed. Is it fair to convict B of murder and A only of negligent homicide, as this provision seems to permit? Suppose bar patron B isn't even over the legal limit? On the other hand, perhaps the elevation of negligence into the murder provision is meant to be read as saying that both bar patrons are murderers. Moreover, as some of you noted this provision is confusing when viewed in context, because the death penalty provisions of the MPC permit intoxication to be considered a mitigating circumstance. Does this mean that the drafters wanted intoxicated killers to be guilty of murder but not put to death? Or is this just an oversight? Finally, some of you argued that this provision raises constitutional due process problems regarding the state's burden to prove every element of the crime beyond a reasonable doubt; but given the Court's recent decision in the Egelhoff case, it is more likely that the provision will just be seen as rewriting the substantive law or creating a new rule of evidence, rather than unconstitutionally lightening the prosecution's burden of proof. The effects of Senate Bill 5181 are less clear. First, this language seems to amend only the definition of negligence. Does this mean that when using the standard of the "law-abiding person" mentioned in the definition of recklessness, the jury is free to take these aspects of the actor's identity into account? If so, what sense if any does that make? If the point of this amendment is to make the law more evenhanded and "colorblind," then this should be done across the board and not just when it comes to negligence. This provision should be a separate subsection (11) that would apply whenever the jury must use a reasonableness or "law-abiding-ness" standard. In favor of S. 5181 on the merits, one could make an equity argument. As several people said in class when we discussed State v. Williams, there should only be one standard of reasonable behavior; culture should not make any difference, and neither should wealth or education. We live in a highly diverse society, and there needs to be some common standard against which we all can expect to be judged. Against the provision, one might point out that it seems to cut against the highly subjectivized culpability approach of the MPC generally. Consider, for example, the extreme mental or emotional disturbance defense, or the defensive force defenses, which are all defined in the MPC by placing the jury directly into the actor's shoes. Such a subjective approach suggests that the jury will automatically take into account wealth, etc. as it affects the actor's perspective on her circumstances. In this context, S. 5181 seems contradictory. It suggests an "objective" standard that relies on an imaginary, abstract reasonable person. This opens up the venerable debate over whether subjective or objective standards for conduct are preferable. Against this provision, one could also argue that these factors should be taken into account when a jury has to evaluate an actor's "situation" or "circumstances," because they make a difference. We know that the common law approach permits juries to use the standard of a reasonable person of the sex, age, and presumably race-ethnicity of the accused. The argument (as we saw, for example, in DPP v. Camplin) is that it is sometimes impossible to morally evaluate the actor's response without doing so. The reasonable young person might react differently than the reasonable mature person; the reasonable person of color might be sensitive to insults that the reasonable white person would not. S. 5181, for example, seems to endanger battered women's syndrome evidence by making it impossible for the jury to consider "gender" when determining the actor's circumstances. Based on this example, one could argue that the proposed amendment raises equal protection problems. Some of you argued, for example, that ruling out these factors that the jury is supposed to take into account will simply result in juries using the default of a white, straight, adult, American-born, WASP man as their image of a reasonable person, and that this denies equal protection to people who don't fit that profile. The response might be that the provision has a rational basis (same treatment of all defendants) and does not have to meet a higher standard because it does not single out any person or groups of people because of their race, ethnicity, or gender. Indeed, S. 5181 might have been directed toward cases such as the Goetz case, in which the defense attempted to inflame the passions of New Yorkers by playing the "race card." If S. 5181 is made law it might be a shield against the covert use of racism and homophobia by reminding the jury that such factors are not to be taken into account in deciding what is reasonable. From this perspective the bill is fulfilling the spirit of the equal protection clause, not contravening it. One might argue that as a practical matter a standard this purely abstract will be impossible for a jury to imagine and apply. What would the reasonable person without gender, race, age, education, etc. be like? Does it make any sense to apply the standard of this entity to real life people who always bring with them these attributes? Perhaps the provision could be salvaged by permitting the jury to take into account these identity matters when ascertaining the actor's "situation" or "circumstances," but not when identifying and applying the ultimate standard of care. Finally, several of you pointed out that this bill seems to cover most of the demographic characteristics we treat as relevant to a person's "situation" in this society, but not all of them. Religion, for example, is left out. Does that mean that the jury is intended to imagine the reasonable Christian Scientist but not the reasonable woman? Is this intentional, or an oversight that makes the provision less effective as an attempt at creating a single objective standard? The bill also does not rule out idiosyncratic personal circumstances, personal history and experience, and so forth. If the goal is a truly objective, ideal reasonable person, then these considerations should be ruled out as well.