Torts Outline

8-23-04
-State and local are major crime enforcement
-Federal system left for interstate crimes, something past interest or capabilities of state
-no uniformity of state codes, all 50 have own procedures
-Especially true for sentencing
-American Law Institute formed Model Penal Code (MPC) àpresented to states, none adopted it, but about 2/3 have modeled their state codes after MPCàhave made own variations, but basic structure followed
 
8-25-04
Purposes of Punishment
1. Deterrence
2. Rehabilitation
3. Retribution
4. Incapacitation
 
Rehabilitation
            -grand reform of correctional system
            -does it work? For who?
            -Are we limited in capacity about what we can doàalter their chemical makeup?
            -Lead to sentences with indefinite endsàonly let go when they’ve been rehabilitated.
Incapacitation
            -removal from society
            -California 3 strike system
            -possible crime escalation for more serious offenses on 3rd strike
-Legislature takes courts out of it, no lenient judges, no harsh judges, everyone get same sentence
-Expensive-more then 1yrs tuition to keep a prisoner for 1 year
-Criteria to determine if an individual needs severe incarceration
            -criteria not definite
            -many are social concerns-broken homes, abuse
            -Blameworthiness-accidents, incapacitation is divorced from blameworthiness
-Ex. Bergman not likely to commit another crimeàincapacitation not worth it, but gives perception that he escaped punishment.
Deterrence
            -Bergman not likely to repeat crimeànot necessary
            -Fines for economic crimesànot simply taking away profitsàfine 2 times the gain
            -Cruel & unusual punishmentàgives protection however court has a lot of leeway
-If we move to sentences that would serve as deterrence and juries view sentences as too extreme juries begin to refuse to convictàprosecution suffers because too large of a strain is placed on system and they don’t prosecute deterrence cases.
-Economic crimesàdeterrence not very effective
-Shaming becoming new thingàworks when applied in correct way
-Has to be equivalent to crime can’t be too extremeàmaking drunk drives have bumper stickers on their cars, or publishing names in paper.
            -Punishment for crimes possibly committed is questionable.
Retribution
            -Just desertsàeye for an eye
-Solves problems that arise in other punishment systemsàit’s very fairàyou get what you give
            -Intimately ties to blameworthiness
            -Lead to dramatic changes in Federal and many state systems
-for each crimes there is a set sentence and judges were given right to raise or lower by 10% after a hearing where prosecution and D both gave aggravating circumstances or mitigateà “presumptive model”
-Sentencing guidelines system (Federal) àset grid for each crime and pick things that make the crime better or worse then do the same for individual as see where they meet.
            -differences in sentences explained by differences that are identifiable.
Crime committed
Offender
Sentence
 
8-27-04
Identified harm-assault, sexual offences
            -Controversy over how to define and punish
Private consensual conduct
            -Victimless
            -appropriate to punish?
-Two categoriesàauthority of government to be involved àif they have authority should they exercise the authority?
Lawrence v. Texas
Ø      Offense-help to start with the statuteàprohibits oral and physical contact by individuals of the same sexàonly criteria is that must be of the same sex
Ø      Requirements that any jurisdiction must follow in enact any law
Ø      U.S. Constitutional law pre-empts any state lawsàSupreme Court has the final say on law
Ø      Look anywhere in constitution to challenge the law since not an exact issue in constitution
Ø      Due Processànot shall any person or state deprive anyone of life, liberty, or property without due process of lawàliberty would be jail time, property would be fine
Ø      Griswald case
o       Due process prohibited the state regulation of their contraceptive use
o       Was not allowing contraception inside of marital relationship
Ø      Equal protectionàunequal treatment if warranted is legal its only if it’s unwarranted that it’s illegal
Ø      If right, action, conduct is fundamental enough state will not be allowed to differentiate
Ø      Bowers v. Hardwick
o       Lawrence v. Texas overturned Bowers
o       Bowers wasn’t being prosecuted, but felt it wasn’t right to be able to punish him for homosexual contact
o       Texas case person was being prosecuted
o       Moral opposition to an act is not a good enough reason to enact a law prohibiting an act.
o       Worry that the overturning of Bowers would make it easier to pass laws allowing such things a bestiality child porn, etc.
Ø      Questionàis jurisdiction’s moral judgment enough to make a law without justified harms; Bowers said yesàLawrence overturned it.
Ø      Consensual prostitutionàwhy should the fact that it’s commercial make it criminal?
Ø      Sex outside of marriage is just as immoral as homosexual sexàcould authorities misuse power strictly for things they don’t like?
 
8-30-04
The Elements of a crime
Always starts with a statute
Make sure all the elements are there for prosecutor to prove
If legislative history pre-supposes something about a statute it’s not bad for a court to “add” something into a statute that isn’t there, if not a legislative history it’s a little questionable
Martine v. State
HYPO: Martin goes into public voluntarily and someone gave him a bottle of alcohol, and he has never drank before and he becomes unknowingly very loud and profane when he drinks, is he guilty then? àYes-enough general knowledge about drinking to know it’ a possibility
HYPO: If your out in public and don’t drink because you know how you get when you get drunk but at a bar you order and coke and unknown to you there’s a lot of alcohol in itàguilty then? àno
HYPO: He’s drunk in his home voluntarily, home burns down and meust leave the home and then he’s drunk in publicàguilty then?
In Alabama have to define culpability
Martin may be guilty under the MPC article 2.01 because he did the act of drinking voluntarily
There’s generally a crux in a statute, in this case it’s being in public
 
Do you really need an Actus Reus component at all?
Probably need other means for public safety
 
What makes something involuntary?
 
People v. Newton pg 173
Penal code dismisses guilt, when a person is not conscious of the act
Failure to instruct the jury on unconsciousness as a complete defense to murder
Court has responsibility to tell jury all relevant law to a case, if instructions wrong appellate court almost always reverses decision.
 
Missouri defines voluntary act as a bodily movement from a conscious person as a result of effort or determination
§         Want to make sure individual is responsible for their actions.
 
9-1-04
Actus Reus-voluntary act must be present to have a crime
 
People v. Decina
§         Epileptic seizure-involuntary
§         Voluntarily got into the car and drove even though he knew he was prone to these
§         If had never had a seizure before it would have been different
§         HYPO: Someone places a stolen ipod in your backseat and you didn’t say anything about its acceptance-guilty? What if didn’t know it was there?
§         HYPO: Hotel paid in advance day 1 D paid, day 2 girlfriend paid, day 3 not paid, who has possession of drugs on table when police come?
§         California statute-if in place where drugs are being used, you are guilty, except if don’t know, or can’t leave.
Omissions
Pope v. State
No voluntary act, failure to act
Strong moral obligation, but not a legal one
Failure to secure assistance causes liability
Absence of action can constitute cruel and inhumane treatment
HYPO: as arriving to class see someone on Oak and you either have to help or go to class, you go to class are you liable?-no àbasic premise not our brothers keeper
D could be responsible under contractual obligation or assumed duty to care for child
Conviction overturned because jury wasn’t instructed on the issue of duty.
 
Good Samaritan responsibilities imposed on society?
Pros
People get help
Cons
Where do you draw the line?
Negative consequences for helping people?
End up with too many rescuers and get in each others way?
 
Distinction between Pope and JonesàPope under a specific statuteàhomicide not nearly as specific
Omission may serve for homicide even though it is the opposite of an act.
 
9-3-04
-Can be guilty for whatever result end up to be which could be homicide.
-Man has mistress in a hotel room, she begins to overdoes, and he doesn’t call for help for fear of being caught by wife, so he lets her die.
            -Questions:
                        -Did he have a duty to help her?
-Beardsley says if not in formal relationship of husband and wife, duty doesn’t exit
-Woman took a person out of a bar who was extremely drunk and brought him into her home, he then used her bathroom to do some drugs, woman was aware what he was doing and she left the home. Later the daughter calls and says he’s lying in the middle of the floor, mother says to drag him out back behind the shed. He dies. 
            -Questions: 
-Did a duty get imposed when she invited him into her home?
-Did a duty get imposed when she removed him from a public place where it’s possible he would have gotten help?
-HYPO: invite boss over whom you don’t like, he begins to choke and you and wife watch him die-Beardsley says you are off the hook
-Cases tend to fight over whether there is a duty, not what the duty is.
-law applies duties in very narrow cases and then the answer is obvious
-voluntary assumption of care of helpless person
-if all we are saying is that taking a person from a public place and putting them in private place-does that make the duty more significant?
 
If capable of helping an wont put you in danger then you have a duty to help if you accidentally cause harm
Distinction between accidentally or maliciously
Legally the punishment is the same
What if justifiably put someone in peril?
HYPO: Someone pulls a gun on you, and you push them onto the train tracks and know them unconsciousàduty to help? àCourt says yes if there’s no longer a danger to you.
Things that turn out wrong, depending on mental state may create no criminal liability
 
Barber v. Superior Court
Act?
Pulling plug is an act, but question to court is whether it is an act of is not continuing treatment. àputs it into the future
Pulling the plug is failure to give treatment because turning of the machine simply fails to give the next injection, breath, etc.
MPC-visualized individual, if moving an act, if not moving it’s an omission
HYPO: What if the spouse pulls the plug herselfàact of omission? àSpouse is taking affirmative act and taking the decision away from the doctor
 
Omission
don’t have duty to continue treatment once it has been determine to be ineffective
What about when next of kin says must sustain life?
Must continue treatment
What about if person next to them could be saved that machine? àdoes that justify taking it away from the person who will likely die anyway even with treatment
 
Euthanasia v. assisted suicide
Michigan courts decided assisted suicide is not homicide, but passed law that assisting suicide is illegal
California-individual can make decision if able, family if not