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Criminal Law
Villanova University School of Law
Pether, Penelope J.

-On exam, compare statute given with MPC and Penn statute
-On exam, work through degrees of murder and try to make arguments for each level
A.How Pennsylvania Defines Levels of Homicide
[1] First degree Murder: Intentional Killings: Malice Aforethought and Premeditation
            -Premeditation can happen in a moment (“twinkle of an eye”) Carroll
                        -Carroll was the military guy who shot his wife in bed – was 1st degree
            -A random and seemingly arbitrary murder, no matter how ruthless, is 2nd degree Anderson
                        -Shows frenzy not premeditation – prosecution faces a presumption that                 unjustified killing is 2nd degree
                        -intent to kill must be formed with pre-existing reflection (deliberation)
            -Anderson gives us 3 elements to consider as a formula for premeditation – not exclusive  nor exhaustive – this is the guy who brutally cut up little girl – not 1st degree
                        1. Planning Activity
                        2. Motive
                        3. Actions demonstrating preconceived design
                        Note: Usually need all 3, or strong evidence of 1, or evidence of 2 and either 1                 or 3
            -Perez chooses to ignore the Anderson test and instead uses totality of circumstances
            -Compare facts of Anderson and Carroll to case at hand
[2] Second Degree Murder: Malice Aforethought Only- Lack of Premeditation
            Three kinds of malice aforethought
                        1. Express: Intentional killing
                                    -Can be reduced to manslaughter if there is provocation
                        2. Implied
                                    a. Intent to cause gross bodily injry
                                    b. Depraved / malignant heart (extremely reckless)
                                                -The problem is that it is very close to involuntary                                         manslaughter
                                                -both are reckless but this is extremely reckless
                                                -Keeping dogs you knew could and would                                                   kill people Fleming
                                                -Extremely drunk driving on the wrong side of the road
                                    c. Felony Murder
                        Note: In other countries, killing while resiting a lawful arrest
[3] Voluntary Manslaughter: Intentional killing in the heat of passion
            -Provocation is partially a defense and simultaneously an element to the charge
                        -Depending on the jurisdiction, depends which side has burden of proving this
            -Depending on jurisdiction depends on whether you have to kill the actual provoker
            -You get the jury instruction of a reasonable jury could infer voluntary manslaughter
            -There are four elements that must be satisfied to prove passion killing
                        1. Intent to kill(in most jurisdiction)
                        2. Adequate or reasonable cause to be provoked
                        3. Severity of Passion such that D lost control
                                    -Some use subjective (did D actually lose control)
                                    -Others use objective (would reasonable D lose control)
                        4. Insufficient time to cool off
                        Note: You can consider 2 and 3 as the same question with a reasonableness test                 see Avery
            -On the exam, go through pieces of the evidence and satisfy the elements
            -you do not need to kill the actual provoker
            -Sex, especially homosexual, is usually insufficient as provocation Page – can be argues as            a total defense as self defense to rape
            -Words are not enough at CL and most jurisdictions except those that follow MPC
                        -Sometimes informational words can be enough
                        -Very little is needed in addition to words Avery
            -Previous provocation is not considered by most jurisdictions but a few do allow the “last             straw rule”           
                        -Past events do help to show reasonableness
            -Some jurisdictions only let you mitigate with this if you are in one of these catagories:
1.      Mutual combat
2.      Assault and battery
3.      Injury to relative or 3rd party
4.      Resisting arrest
5.      Catching spouse in adultery                     
                        -a lover whos not a spouse may not count but it would be closer if it was a long                 time live in lover
                        -what an “act of intercourse” means has varied
            -Heat of passion is not limited to anger it may be from fear, jealousy, desperation, etc.
            -MPC on provocation
                        -No specific provocative act required; doesn’t need to have been caused by the                  deceased;
                        -no fixed category limitation.
                        -Words enough.
                        -No cooling off rule.
                        -“Person in actor’s situation under circs as he believes them to be.” MPC                Commentary says this doesn’t extend to “idiosyncratic moral values.” Expert              psych evidence usually establishes emotional disturbance. Courts tend to set a                    very high hurdle to prove it.
[4] Involuntary Manslaughter
            -PA uses “grossly negligent”
                        -includes both reckless and negligent of MPC standard
                        -Reckless defined:
                                    -Adverts to/aware of risk of death and goes ahead and does it                                 anyway.
                                    -Risk of causing death has to be substantial and unjustifiable.
                                    -Nature and degree of risk must be so great that disregarding them                          is a gross deviation from the standard of conduct a                                          reasonable person would follow in that situation.
                                    e.g. jumping a 41 inch gap over Ohio river Knoller
                                    e.g. selling sterno’s with ethenol to alcoholics who drink it and die
                                    e.g. Thomas: “the defendant for a base, antisocial motive and with                          wanton disregard for human life, does an act that involves a high                             degree of probability that it will result in death.”
                                    e.g. Phillips: “the killing is proximately caused by “an act, the                                  natural consequences of which are dangerous to life, which act was                                     deliberately performed by a person who knows that her conduct                           endangers the life of another and who acts with conscious disregard                                 for life.”
                        -Negligent means you should have known but didn’t – Definition:
                                    -A reasonable person would have perceived the risk but you didn’t.
                                    -Risk of causing death substantial and unjustifiable.
                                    -Nature and degree of risk must be so great that disregarding them                          is a gross deviation from the standard of conduct a                                          reasonable person would follow in that situation.
                                    -Criminally negligent differs from civil because you must grossly                             deviate from the standard of care Robertson
            -If you drunk ski there is an argument you are reckless if you have skill – should know      better and also if you don’t – you know you suck so you should be careful
[5] Vehicular Manslaughter
            -Policy reason for this to exist – we want juries to convict even if they are empathetic
B. How The MPC Defines Homicide
-Differs from Penn because
            -There are no degrees of murder
            -There is an addition of negligent homicide
            -Manslaughter includes voluntary AND involuntary
                        -Involuntary is reckless standard
            -Relative culpability is assessed at sentencing
[1] Murder
            -Purposeful and knowing killing OR Extreme Indifference to Human Life
                        -Encompasses (PA 1st degree) but doers not require “premeditation”                       -Encompasses malignant heart(2nd degree murder under PA)
            -Know MPC definitions of knowledge and purpose
[2] Manslaughter
            -Encompasses “passion killing” under PA but replaces it with “extreme mental or  emotional disturbance”
            -Know cases where they use this
                        -Martinez wasn’t entitled to a jury instruction on the lesser included offense of                  manslaughter at his murder trial: his evidence that he intended to hurt the victim                established intent to cause sbh, which constitutes murder in TX if                                combined with an act clearly dangerous to human life which cases the death of               a person; further, his claim of self-defense also precluded a recklessness                         instruction: self-defense is intentional.
            -MPC definition of substantial-balance likelihood of harm and magnitude of potential harm
                        -Look at the nature of D’s conduct and the way in which D carried it out
                                    -In cases of inherently dangerous conduct the former is enough
            -Working out if a risk is unjustifiable involves weighing the nature and purpose of your     conduct against the risk it creates. Thus if your purpose is antisocial and the risk is small,     the risk may be unjustifiable, whereas if the conduct is meritorious and the risk is great, as     in a hazardous surgical operation, the risk is likely justifiable, rather than unjustifiable.
            -Know MPC definitions of reckless
                        (c) Recklessly.- A person acts recklessly with respect to a 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. The risk must be                   of such a nature and degree that, considering the nature and purpose of the                         actor’s conduct and the circumstances known to him, its disregard involves a                      gross deviation from the standard of conduct that a law-abiding person would                   observe in the actor’s situation.
[3] Negligent Homicide
            -There must be a gross deviation – not like any deviation as in civil
            -Does this mean reckless is in no mans land? (not manslaughter merely negligent)
            -Know the cases that differentiate this from manslaughter
            -MPC definition of negligent
                        (d) Negligently. – A person acts negligently with respect to a material element                    of an offense when he should be aware of a substantial and unjustifiable risk                   that the material element exists or will result from his conduct. The risk must be                        of such a nature and degree that the actor’s failure to perceive it, considering the                 nature and purpose of his conduct and the circumstances known to him,                 involves a gross deviation from the standard of care that a reasonable person                      would observe in the actor’s situation.
C. Felony Murder Rule
-Does not exist in the MPC
[1] The Rule in Practice
                        -Predicate Felony
                        -Causation of death
                        -“in the course of and in furtherance of the commission or attempt, or in                    immediate flight from”
            -You can replace intent to commit a felony with the mens for committing murder
            -There is a problem with it because you can be guilty of murder with a mens rea of             negligence instead of intent, knowledge, or malignant heart
            -There are limitations to the application of it
            [A] Inherently Dangerous Felony v Dangerous Act
                        a. Inherently Dangerous Felony
                                    -Limits it to a specific list of felonies in that jurisdiction
                                    -Relatively easy to prove
                        b. Dangerous Act
                                    -Can apply to any felony, tougher to prove, based on how                                        dangerously you carried out the felony
                                    -Majority uses this in Anderson
            [B] Merger
                        a. Lesser Homicides
                                    -Cannot apply rule to a homicide or all homicides become murder
                        b. Assault
                                    -Most killing involves assault- cant just make it murder
                                    -Independent Felo

                                 -e.g. Lynch where knowledge=”reason to know”>lower than MPC
            b. Willfully
                        -You have to go to legislative intent to really figure this out so apply all                  possibilities on the exam
                        -There are some common definitions
                                    -MPC says knowingly
                                    -Supreme Court says doing something with a bad motive
                                    -Sometimes it can mean intentional
                                    -It can have many different meanings.
                                    -Sometimes just means “intentional.”
                                    -Supreme Court has also interpreted it to mean “an act done with a                                     bad purpose” or “an evil motive” and later “voluntary, intentional                                   violation of a known legal duty.” Can also mean “a purpose to                           disobey the law.” Fields, the supp case, gives us an example of this.
                                    -MPC, 2.02 (8), P. A4, says it means knowingly, “unless a purpose                          to impose further requirements appears.”
                                    -In real life, you have to go to the legislative history of the offense                          and perhaps to the common law to work out which meaning is                            appropriate.
            c. Specific v General Intent
                        -It matters when applying certain defenses
                                    -Mistake of fact
                                    -Mistake of law
                                    -Voluntary intoxication
                                    -Diminished capacity
                        -General – no specified mens, merely morally blameworthy state of mind
                                    -general intent crimes have a mens that relates solely to the actus;   
                        -Specific – morally blameworthy for crime alleged and mental state
                                    -specific intent crimes need another mental state beyond the mens                           that applies to the actus (which is the general intent to commit the                                  actus reus of the offense), which can be –
                                                -intent to commit a future act, separate from the actus                                              (assault with intent to commit another crime);
                                                -special purpose for committing actus (offensive contact                                          on another with intent to cause humiliation); OR
                                                -proof of awareness of an attendant circumstance                                         (intentional sale of obscene literature to a person known                                      to be under the age of 18 years).
                        -Makes a difference in:
                                    -Mistake of fact
                                    -Mistake of law
                                    -Voluntary intoxication
                                    -Diminished Capacity
                        -Kimes – Whether it is general or specific intent that is required for the crime of                 assaulting a federal officer
                                    -Court says since statute does not limit to specific, general will do
                                    -Courts are split on this
            d. Transferred Intent
                        -Only a theory in criminal law
                        -Intent to kill cannot transfer to intent to destroy property
                        -Some jurisdictions do not allow a D to be charged with actual murder an               attempted murder of intended victim
                                    -Some think intent is not a commodity that can be used up
            e. Ostrich Instructions
                        -Jewell Instruction
                                    1) Deliberately Avoiding Obtaining Knowledge
                                    2) High Probability of the knowledge required
                        -Safety to investigate is not a defense Heredith
                        -Review of Jewell Instruction is abuse of discretion not de novo Heredith
                        -There is no motive prong in Jewell Heredith
                        -A factual argument is successful if facts are like Sanchez
            f. Strict Liability
                        According to Morisette
                                    -Usually for regulations involving public welfare
                                    -Usually for neglect or inaction instead of aggressive wrongdoing
                                    -Usually reasonably easy not to commit the offense
                        -Look to legislative intent to figure out if strict liability should apply Staples
                                    -If legislature created degrees for statutory rape maybe it should                             not be strict for the in between (13-16) like it should be for under                                    13       
                        -Using the word “reasonably” in a statute suggests the legislature intended an