Criminal Law | Criminal Law

Common Law: Four Types of Murder (Malice Aforethought Killings)

1) Intent to kill;
2) Intent to cause grave bodily harm;
3) Recklessness (depraved and malignant heart);
4) Felony-murder

Common Law: Two Types of Manslaughter

1) Heat of passion killing
2) Killings unduly dangerous to life and limb (recklessness)

New York Penal Law: � 25.00; Defenses; Burden of Proof

1) "The people have the burden of disproving [non-affirmative] defenses beyond a reasonable doubt."
2) "Defendant has the burden of establishing such [affirmative] defense by a preponderance of the evidence.

Model Penal Code: �1.12; Proof Beyond a Reasonable Doubt; Affirmative Defenses; Burden of Proving Fact When Not an Element of an Offense; Presumptions (re: affirmative defenses)

3) A ground of defense is affirmative, when
a) "it arises under a section of the Code which so provides; or"
b) "it relates to an offense defined by a statute other than the Code and such statute so provides; or"
c) "it involves a matter of excuse or just

General Rule for EED Killings

1) Must have acted under extreme emotional disturbance (subjective)
2) Must have been a reasonable explanation or excuse for the disturbance (objective)
-Reasonableness determined from viewpoint of a
person in defendant's situation under the
circumstances

EED: State v. Casassa (22 Ill.49 N.Y.2d 668) (1980)

Reasonableness determined from viewpoint of a person in defendant's situation under the circumstances as defendant believed them to be

New York Penal Law �125.25, �125.27: EED mitigates ________?

Defense to Murder, mitigates to First Degree Manslaughter

Model Penal Code �210.3: EED mitigates ________?

Defense to Murder, mitigates to Manslaughter

Common Law: Heat of Passion mitigates _______?

Defense to Murder, mitigates to Manslaughter

General Rule for Heat of Passion

a. "Adequate provocation;"
b. "The killing was in the heat of passion;"
c. "The heat of passion must have been sudden'"
d. "Causal connection between provocation, passion, and the fatal act

Heat of Passion: for provocation to be adequate it must ______?

For provocation to be adequate it must calculated to inflame the passion of a reasonable man to act from passion rather than reason

Heat of Passion: Girouard v. State (321 Md. 532) (1991)

Words unaccompanied by conduct indicating a present intention and ability to cause bodily harm-cannot constitute adequate provocation

Jurisdictions: EED, Heat of Passion

EED: New York Penal Law, Model Penal Code
Heat of Passion: Common Law

New York Penal Law �35.15: Defense of Self/Others with Non-Deadly Force Justified

1. When and to the extent he or she reasonably believes such to be necessary to defend himself, herself or a third person
2. From what he or she reasonably believes to be the use or imminent use of unlawful physical force by such other person

New York Penal Law �35.15: Defense of Self/Others with Non-Deadly Force NOT Justified

a. The target's "conduct was provoked by the actor with intent to cause physical injury to another"
b. "The actor was initial aggressor"
-"except that in such case the use of physical force is nevertheless justifiable if the actor has withdrawn from the e

New York Penal Law �35.15: Exception to Initial Aggressor Limitation on Use of Non-Deadly Force in Self/Others Defense

The use of physical force is nevertheless justifiable if the [initially aggressive] actor has withdrawn from the encounter and effectively communicated such withdrawal to such other person but the latter persists in continuing the incident by the use or

New York Penal Law �35.15: General Rule for Defense of Self/Others with Deadly Force

1. "The actor reasonably believes that such other person is using or about to use deadly physical force"
2. "He or she reasonably believes that such other person is committing or attempting to commit a kidnapping, forcible rape, forcible criminal sexual a

New York Penal Law �35.15: Retreat Limitation in Defense of Self/Others with Deadly Force

Even when confronted with a person using or about to use deadly force, "the actor may not use deadly physical force if he or she knows that with complete personal safety, to oneself and others he or she may avoid the necessity of so doing by retreating (R

New York Penal Law �35.15: Castle Doctrine in Retreat Limitation Defense of Self/Others with Deadly Force

The actor is under no duty to retreat if he or she is: in his or her dwelling and not the initial aggressor (Castle Exception); or "a police officer or peace officer or a person assisting a police officer or a peace officer at the latter's direction;

New York Penal Law �35.15: Defense of Self/Others with Deadly Force includes the Battered Person defense. (True/False)

True

New York Penal Law �35.15: Does New York follow the Alter Ego Rule?

No

New York Penal Law �35.15: People v. Goetz (68 N.Y.2d 96) (1986)

New York Penal Law �35.15 requires that the actor "reasonably believes." Reasonable belief requirement of use of deadly force is an objective standard based on the "circumstances" facing a defendant or their situation, including age, sex, physical attribu

Model Penal Code Rule (��3.04(1)-3.04(2)): Self-Defense with Force Justified

i. "The actor believes that such force is immediately necessary;
ii. For the purpose of protecting himself against;
iii. The use of unlawful force by such other person on the present occasion.

Model Penal Code Rule (��3.04(1)-3.04(2)): Self-Defense with Force NOT Justified

1. If the actor does not "believe that such force is necessary to protect himself against death, serious bodily harm, kidnapping or sexual intercourse compelled by force or threat"
2. "With the purpose of causing death or serious bodily harm, provoked the

Model Penal Code Rule (��3.04(1)-3.04(2)): Retreat Limitation on Self-Defense with Force

The actor knows that he can avoid the necessity of using such force with complete safety by retreating or by surrendering possession of a thing to a person asserting a claim of right thereto or by complying with a demand that he abstain from any action w

Model Penal Code Rule (��3.04(1)-3.04(2)): Castle and Workplace Doctrines in Retreat Limitation on Self-Defense with Force

The actor is not obliged to retreat from his dwelling or place of work, unless he was the initial aggressor or is assailed in his place of work by another person whose place of work the actor knows it to be (Castle [and Workplace] Exception)

Model Penal Code Rule (��3.04(1)-3.04(2)): Nature of Actor's Belief in Self-Defense with Force

A person employing protective force may estimate the necessity thereof under the circumstances as he believes them to be when the force is used, without retreating, surrendering possession, doing any other act which he has no legal duty to do or abstaini

Differences between New York Penal Law �35.15 and Model Penal Code Rule (��3.04(1)-3.04(2)); Self-Defense

1) New York Penal Law �35.15 requires that actor's belief be reasonable, while Model Penal Code �3.04 just requires actor's good faith belief

Common Law: General Rule for Self-Defense

1. Must have been a threat, actual or apparent, of the use of deadly force against the defender;
2. Threat must have been unlawful and immediate;
3. Defender must have believed that they were in imminent peril of death or seriously bodily harm; and
4. The

Common Law: Battered Spouse Defense and the Imminency Requirement for Self-Defense

Battered Spouse Defense must be sufficiently extreme to defeat the Imminency requirement.

Common Law: Necessity Requirement for Self-Defense

To warrant the use of deadly force in self-defense, there must be present...an attempt by the defender to do all within their power consistent with their own personal safety to avoid the danger and need to take a life

Common Law: Self-Defense; State v. Wanrow (88 Wash.2d 22) (1977)

This belief must not have only been honestly entertained, but also objectively reasonable in light of the surrounding circumstances. The reasonableness of a person's actions in self-defense must be considered in the light of her own perceptions of the sit

Common Law: Proportionality Requirement for Self-Defense

Deadly force may not be used to repel a nondeadly attack, even if it is the only way to avoid injury.

Model Penal Code �3.04; Defense of Others Justifiable

1) "the actor would be justified under Section 3.04 in using such force to protect himself against the injury he believes to be threatened to the person whom he seeks to protect;
2) "Under the circumstances as the actor believes them to be, the person who

Model Penal Code �3.04; Retreat Doctrine Limitation on Defense of Others

When the person whom the actor seeks to protect would be obliged to retreat, to surrender the possession of a thing or to comply with a demand if he knew that he could obtain complete safety by so doing, the actor is obliged to try to cause him to do so

New York Penal Law �35.20; Defense of Habitation/Property Justified

Any person may use physical force upon another person when:
1) He or she reasonably believes such to be necessary to prevent or terminate;
2) What he or she reasonably believes to be the commission or attempted commission by such other person of a crime

New York Penal Law �35.20; Defense of Habitation/Property: Who Can Use What Level of Force for Arson?

Any person, regardless of privilege, possession, or control of premises, can use deadly force to prevent or terminate the commission of arson on premises.

New York Penal Law �35.20; Defense of Habitation/Property: Who Can Use What Level of Force for Criminal Trespass?

A person in possession or control of any premises, or a person licensed or privileged to be thereon can use non-deadly force to prevent or terminate the commission of criminal trespass on premises.

New York Penal Law �35.20; Defense of Habitation/Property: Who Can Use What Level of Force for Burglary/Attempted Burglary?

A person in possession or control of any premises, or a person licensed or privileged to be thereon," or
"A person in possession or control of, or licensed or privileged to be in, a dwelling or an occupied building" can use deadly force to prevent or ter

New York Penal Law �35.20; Defense of Habitation/Property: Who Can Use What Level of Force for Damage to Premises?

Any person may use physical force to prevent or terminate commission of damage to premises

New York Penal Law �35.05(2); General Rule for Necessity Defense

1) "necessary as an emergency measure"
2) "to avoid an imminent public or private injury which is about to occur"
3) "by reason of a situation occasioned or developed through no fault of the actor"
4) "and which is of such gravity that, according to ordin

New York Penal Law �35.05(2); Why is Political Necessity not a Defense?

The necessity and justifiability of such conduct may not rest upon considerations pertaining only to the morality and advisability of the statute, either in its general application or with respect to its application to a particular class of cases arising

What type of defense is necessity?

Affirmative Justification

Model Penal Code �3.02; General Rule for Necessity Defense

1) the harm or evil sought to be avoided by such conduct is greater than that sought to be prevented by the law defining the offense charged; and"
2) "neither the Code nor other law defining the offense provides exceptions or defenses dealing with the spe

Differences between Necessity Defense in New York Penal Law �35.05(2) and Model Penal Code �3.02

1) New York Penal Law �35.05(2) has an imminency requirement for the injury
2) New York Penal Law �35.05(2) requires a more dramatic difference in the weighing of harms
3) New York Penal Law �35.05(2) requires that the injury be public or private, while M

Common Law; General Rule for Necessity Defense

1) The act charged must have been done to prevent a significant evil
2) There must have been no adequate alternative
3) The harm caused must not have been disproportionate to the harm avoided

New York Penal Law �40.00; When Duress Defense is Available

Actor "was coerced to do so by:
1) "the use or threatened imminent use
2) "of unlawful physical force upon him or a third person,
3) "which force or threatened force a person of reasonable firmness in his situation would have been unable to resist.

What type of defense is duress?

Affirmative Excuse

New York Penal Law �40.00; When is Duress Defense Not Available

The defense of duress...is not available when a person intentionally or recklessly places himself in a situation in which it is probable that he will be subjected to duress.

New York Penal Law �40.00; What is the Policy Behind When is Duress Defense Not Available

To prohibit gang members from raising the defense

Model Penal Code �2.09; When Duress Defense is Available

[Actor] "was coerced to do so by:
1) the use of, or a threat to use,
2) unlawful force against his person or the person of another,
3) which a person of reasonable firmness in his situation would have been unable to resist.

Model Penal Code �2.09; When is Duress Defense Not Available

The defense...is unavailable if the actor recklessly placed himself in a situation in which it was probable that he would be subjected to duress. The defense is also unavailable if he was negligent in placing himself in such a situation, whenever neglige

Model Penal Code �2.09; Husband's Command Limitation for Duress Defense

It is not a defense that a woman acted on the command of her husband, unless she acted under such coercion as would establish a defense under this Section. [The presumption that a woman, acting in the presence of her husband, is coerced is abolished.]

Differences between Duress Defense in New York Penal Law �40.00 and Model Penal Code �2.009

1) New York Penal Law �40.00 requires that the has an imminency requirement for the threatened force
2) New York Penal Law �40.00 requires that the unlawful force be physical
3) New York Penal Law �40.00 precludes duress defense when actor intentionally p

Jurisdictions: Where Duress Defense can apply to Murder

Can Apply: neither New York Penal Law nor Model Penal Code preclude it
Cannot Apply: Common Law

Key Difference between Duress and Necessity Defenses; United States v. Contento-Pachon (723 F.2d 691) (1984))

Actor's free will must be overcome by an outside force rather than exercised to achieve the greater good

What type of defense is voluntary intoxication?

Affirmative Excuse

New York Penal Law �15.25; Voluntary Intoxication Defense Permissible When

Whenever it is relevant to negative an element of the crime charged.

New York Penal Law �15.25; Recklessness Presumption with Voluntary Intoxication

A person who creates such a risk but is unaware thereof solely by reason of voluntary intoxication also acts recklessly with respect thereto.

Model Penal Code �2.08; Voluntary Intoxication Defense Permissible When

Intoxication of the actor is not a defense unless it negatives an element of the offense.

Model Penal Code �2.08; How Can Self-Induced or Pathological Intoxication Negate an Element of the Offense

If by reason of such intoxication the actor at the time of his conduct lacks substantial capacity either to appreciate its criminality [wrongfulness] or to conform his conduct to the requirements of law.

What type of excuse is insanity?

Affirmative Excuse