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Criminal Law
University of Kansas School of Law
Stacy, Thomas G.

Dudley & Stephens: Retributive Considerations
Basic retributive argument against
Retributive rationale for War? The death Penalty? Self Defense? How do these apply here?
Does the principle that it is wrong to kill an innocent person resolve the case? Did Dudley & Stephens have a choice not to kill an innocent?
Act/omission distinction. Application in conjoined twins case
Kant Wrong to use on person as a mans to another’s end. Application to conjoined twins case.
A person is not criminal liable for the action of inaction.
Mode of Selection: Why might Dudley have had an obligation to sacrifice himself first?
In Vertical Limit, should father’s consent make a difference?
What’s right right retributive sentence? Any mitigating circumstances?
Basic Points: Understand
The basic idea of two theories
That, as in Dudley & Stephens, these theories generate different analysis sometimes maybe different results.
Theories useful in producing arguments about 1) how ambiguities I n law ought tobe resolved (eg. Is necessity is a defense to homicide?) 2) the appropriate sentence; 3) while existing law ought to be changed.
Basic Principles of criminal Liability
Murder is the intentional killing of a human being.
Intentional — Mens rea/culpability element = D must intend to kill
Killing – Act element an act that results in death
Causation= intent + act must cause result
Human being – Result = death – existent fact = being who’s killing must be human
Which is the missing elements?
D want to kill V; shoots at V but misses
D runs over & kills V, whom D did not see
Baby on track?
D shoots a figure in bed wanting to kill husband. The figure is the family dog, which is killed.
The Act Requirement (Actus reus)
Basic topics:
What is the actus reus of the following offense> It shall be a felony to break and enter any structure with the intent to commit a felony therein.”
3) The act of omission distinction2) Voluntaries1) Identifying the act an offense requires
[Break and Enter] = Act [Any Structure] = existent fact [w/ Intent to] = mens reaus
Why don’t we punish bad thoughts alone?
Why don’t we punish involuntary action?
Action must be voluntary – what does this mean?
Actions that occur while sleepwalking
Action that occur is someone is pushed
Hypnosis? Most states say you are conscious.
People v. Newton
Cal App. 1970
Newton was pulled over – harassed by police. Newton was president of the “black panthers”. Police used a racial slur. Altercation occurred. Shooting began. Newton shot and killed two people. Newton says that he shot the gun when he was unconscious Newton says that jury was given poor instructions because his “unconscious” argument was not given to them.
Multi-state problem – p.23
Act/Omission Problem
Criminal Liability requires action
Special Relationship
Creation of the Danger
Voluntary Assumption of Care
Page 24 Hypo –
Act / Omission
General rule – an omission will not support criminal liability
Baby on train track hypo
The Kitty Genovese Case
8/2000 Michigan killing
cf. French Duty to rescue statute
What are the considerations for and against the general rule
Barber Case
Procedural Posture
Uncle taken off respirator he lives; he is taken off food and water – he dies.
Murder = intentionally killing a human being are docs. Guilty?
Element #1 = Intent to kill – check Practical certainty of causing death = intent to kill
Element #2 = Act requirement = “act” of killing? That’s issue
Element #3 = A human death – Check
Element #4 = a causal link between [1&2] and 3 – Check?
Grand conclusion : If docs. Satisfied act requirement they’re guilty. Given their premeditation, they’re guilty of first degree murder.
Action v Omission – What acts did docs. Take?
Ct: Docs’ omissions –not actions – caused death.
What is analogy ct. use?
Why does the court say case involves omission r/t actions? What does the court mean by “the woefully inadequate framework of the criminal law?”
Did docs have a duty to act, to give patient food and water? According to ct, why not?
The court thinks that this killing is different from other intentional killings, Why?
Physician Assisted suicide?
Purposeful action – offenders purpose to bring about state of affairs of actions
Killing? Did hthe offender have the motive to committee the crimes?
Reckless Action – subjective – actor must be subjectively aware of the risk created by his action.
Voluntarisms –
Hypo – P. 32 Would acts during the seizure support liability? Getting into a car?
Criminal liability requires the act be accompanied by a wrongful intent or some degree of fault.
Degrees of Culpability –
Recklessly –
– D acts negligently with respect to a material element of the offense when he should be award of a substantial and unjustifiable risk that tte material element exists or will result from conduct. a D acts recklessly with respect to material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element\exists or will result from his conduct. D conduct must involve a gross deviation from the standard of care expected of a reasonable person under that circumstance. – a D act knowingly with respect to an element of the offense when he is aware of that element’s existence or is practically certain that his action will bring that element about. – a D acts purposely with respect to an element of the offense when it is his motive or purpose to bring about the existence of that element.
Negligent conduct involves a gross deviation from the standard of

Actus Reus: (killing) Acts that cause the death
General intent; (human) D must know being killed
Existent fact element; (Being) thing killed must be human
Specific intent; (with premeditation) – culpability requirement not attached to an act or existent fact element.
Culpability required – If so this would be a general intent – Act element
Culpability required – If so it = (structure) a Existent fact element General intent
State v. Sterling (KSA 21-3720)(1)(a) – 1984
With intent to injure/defraud an insurer = a specific intent
Therefore, voluntary intoxication is a defense if D as a result of drunkenness lacked the specific intent to injure/defraud an insurer
No help to Sterling – He is not charged with this offense. He was charged under KSA 21-3720 (1)(a) and not (b)
Chapter 3
2 different offenses in Common Law
1) Murder = death penalty
2) manslaughter = imprisonment
Homicide offenses at Common Law
Murder (elements/kinds)
1) Intent to Kill – D Killed Victim Knowingly or Purposely
Intent to Kill = express malice aforethought
2) Intent to do serious bodily harm – D intended to inflict serious bodily harm short of death but the victim died nonetheless
3) Depraved Heart – D subjectively aware of and indifferent to a very high and or very unjustifiable probability that his/her acts would kill victim.
Depraved heart not intent to kill. D was aware of probability the victim’s death would result D was not practically certain that death would result and killing the victim was not the motive/purpose of D’s Act
Felony Murder – The victim’s death occurred in the course of the D’s commission of a common law felony (murder, manslaughter, robbery, rape, sodomy, arson, burglary, mayhem, larceny.) Malice aforethought was implied from the intent to commit a felony.
a. Common-law felony murder rule has two principal functions
i. Makes D liable for murder for accidental killing that occurs in the commission of a felony
1. Makes D liable for murder for killings committed by co-felons.
Manslaughter (elements/kinds) (page 53)
1) Heat of Passion –
– It is a felony to break and enter any structure with the intent to commit a felony therein. is the intentional killing of a human being with premeditation