Criminal Law

Standard of Proof

Guilt Beyond a Reasonable Doubt

What must the state meet?

Burden of proof (guilt beyond a reasonable doubt) for all elements of a criminal statute to make a conviction

Will the defendant be convicted if the State cannot meet it’s burden?

No

What will happen if the prosecution fails to prove any of the necessary elements beyond a reasonable doubt OR if the defense can create reasonable doubt regarding any of the elements?

Not guilty verdict

What is a reasonable doubt standard?

A subjective state of certitude

What are improper jury instructions of reasonable doubt?

Quantification of reasonable doubt - use of mathematical certainty (percentages or numbers), scientific certainty, “beyond all doubt” is IMPROPER

Any instruction that lowers the burden of proof for reasonable doubt is a violation of the Due Process Clause

Any instruction that suggests a higher degree of doubt than required for acquittal is a violation of Due Process (ex. “grave uncertainty”, “substantial doubt”, “moral certainty”) (Improper to strictly rely on moral certainty in a reasonable doubt jury instruction

Reasonable doubt cannot create a reasonable likelihood of a conviction insufficient to meet the constitutional standard

Constitution neither prohibits nor requires courts to define reasonable doubt

Reasonable Doubt Rule

The burden of proof in US criminal cases is guilt beyond a reasonable doubt. A jury cannot convict unless the prosecution satisfies its burden of proof. The Constitution neither prohibits courts from defining reasonable doubt nor requires them to do so. Definition, taken as a whole, cannot create a reasonable likelihood of a conviction insufficient to meet the constitutional standard. Any attempt to quantify the standard likely impermissibly lowers the prosecutor’s burden of proof. There is a difference in "moral certainty" and "evidentiary certainty." In US criminal cases, we care about evidentiary certainty, not moral certainty, which may impermissibly lower the prosecution’s burden of proof.

What is jury nullification?

the ability to acquit an individual of a crime (against the weight of the evidence) if a jury does not agree with the law

•   A jury is not entitled to an instruction on jury nullification by the defense) — may nullify, but is not required to be informed of the ability to do so

•   New Hampshire Jury Nullification Law: “in all criminal proceedings the court shall permit the defense to inform the jury of it’s right to judge the facts and the application of the law in relation to the facts in controversy” — only state to have this law

Jury Nullification Rule

Jurors have the power of jury nullification, i.e., the power to issue a verdict contrary to the weight of the evidence. Jurors have no right to be informed of this power. Although a jury is entitled to acquit on any ground, a defendant is not entitled to inform the jury that it can acquit him on grounds other than the facts in evidence. If defense counsel attempts to do so, the trial court may make an appropriate corrective instruction. The juror also can't let the judge know that they will nullify. Doing so risks the jury being removed entirely

What is the presumption of innocence?

-  Presumption of Innocence: the jury must presume that the defendant is innocent of all crimes charged

•     Defendants have a right to a jury instruction on the presumption of innocence

•     A proper jury instruction will command the jury to start deliberations from the premise that there is an absence of guilt, while an improper instruction will command the jury to deliberate from the premise that there is an absence of sufficient proof of guilt.

What are the two phases of a criminal trial?

1) Guilt/Innocence

2) Sentencing

What are the goals of sentencing?

1. Reflect the seriousness of the offense

2. Promote respect for the law

3. Provide appropriate punishment

4. Deter criminal conduct (deterrence may be emphasized over rehabilitation

5. Provide the defendant with needed care or treatment

What do trial judges consider in sentencing?

Defendant’s character, background, prior record, etc.

Defendant’s history, character, rehabilitative potential, as well as the seriousness of the offense, need to protect society, need for deterrence and punishment must be EQUALLY weighed

Judges discretion is used broadly (within statutory limits)

When does a court have a jurisdiction to disturb sentencing?

Court has NO jurisdiction to disturb, because of alleged excessiveness, a sentence within the statutory limits UNLESS:

 (a) the statute violates the constitutional injunction against cruel and unusual punishment, OR

(b) the sentence is as a result of partiality, prejudice or pressure or corrupt motive.

What are appellate court's role in sentencing?

To determine:

(1) whether the exercise of discretion by the sentencing court was based upon findings of fact grounded in competent, reasonably credible evidence;

(2) whether the sentencing court applied the correct legal principles in exercising its discretion;

 (3) whether the application of the facts to the law was such a clear error of judgement that it shocks the conscience

What is the eighth amendment rule regarding cruel and unusual punishment? 

The Eighth Amendment states “excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

A punishment can be found cruel and unusual under the Eight Amendment for one of two reasons: (1) if it makes no measurable contribution to acceptable goals of punishment (deterrence, isolation, retribution, rehabilitation) and hence is nothing more than the purposeless and needless imposition of pain and suffering, and (2) if it is grossly out of proportion to the severity of the crime.

Death penalty goals = deterrence of capital crimes and retribution (if sentence to death does not meet these goals then it is unnecessary)

The execution of insane prisoners by means of forcible medication does not meet the social goal of retribution

What is the proportionality principle for the Eighth Amendment? What is the 3 factor test to determine violations of the proportionality principle?

A punishment violates the Eighth Amendment if it is disproportional to the crime committed

3 factor test:

1. Gross disproportionality

(a) length of the prison term in real time - (ex: sentence = 10 but parole eligible = 5, then real time is 5 years)

(b) the sentence triggering criminal conduct (behavior of the offender;       ex: violent or non-violent crime, severity of victim injury, # of victims, property taken?, value of property taken, etc.)

                    (c) criminal history (first-time offender? repeat offender?)

          2. Sentences in the same jurisdiction

-     What sentences are criminals similarly situated given in the same jurisdiction?

          3. Sentences in other jurisdictions

       - What sentences are criminals given in a different jurisdiction

What are some case examples of proportionality in action?

-     Rummel: repeat offender (all felonies); justified higher sentence - life w/ poss of parole

-     Solem: repeat offender (6 prior non-violent felonies); unjustified higher sentence  - life w/o poss. of parole; priors were non-violent; in same jurisdiction no one had even been sentenced to life w/o poss of parole

-     Harmelin: first time offender; 672 g of cocaine; justified life imprisonment w/o parole

-     Ewing: repeat offender (3 burglaries & 1 robbery); justified 25 years to life imprisonment; state’s public interest is to deter, plus defendant has a long record of doing the same crime — California 3 Strikes Law

What is the South Carolina two strikes, three strikes law?

-     defendants can be sentenced to life imprisonment -

-     3 strikes if two priors felony convictions;

-     2 strikes if one prior is a more serious felony conviction

-     Proportionality Rule used in sentencing

When is the death penalty warranted?

only as an option in cases of murder or crimes against the state (ex. treason)

What is the principle of legality?

Principle of Legality states “that conduct cannot may not be treated as criminal unless it has been so defined by [a competent] authority before it has taken place”

Due Process Clauses and Rules

•    Courts cannot interpret an existing statute in a new way and apply it retroactively to punish a defendant— this is a violation of the Due Process Clause because the criminal statute does not give fair warning of the conduct it prohibits.

•   A judicial alteration of the common law doctrine violates principle of fair warning, and must not be given retroactive effect, only where it is unexpected and indefensible by reference to the law which had been expressed prior to the conduct at issue.

Ex Post Facto Clauses and Rules

Laws cannot be applied retroactively to punish a defendant in 4 types of statutes:

1.      Laws that make an action done before the passing of the law (which was innocent when done) criminal; and punishes such an action

2.      Laws that aggravate a crime, or makes in greater than it was, when committed

3.      Laws that change the punishment and inflict a greater punishment than the law attached to the crime, when committed

4.      Laws that alter the legal rules of evidence, and receives less, or different testimony than the law required at the time of the commission of the offense, in order to convict the offender

Courts have found that ex post facto applies at both the conviction and sentencing phases of trial.

Rule of Lenity:

any ambiguities in criminal statutes are construed against the government and in favor of the criminal defendant

Void for Vagueness:

Two ways a statute can be void for vagueness:

1.      The statute (a) fails to give adequate notice to ordinary people so that they can understand what conduct it prohibits OR (b) fails to establish minimal guidelines to govern law enforcement enforcing the law                                         OR

2.      The statute is written so broadly that it can encourage arbitrary and discriminatory enforcement by law enforcement

A statute fails to give adequate notice if it is written in such a way that an ordinary layperson would not be able to understand the conduct that the statute prohibits. A statute fails to give minimal guidelines if no training is provided to law enforcement on how to enforce the statute, and when a statute is written so broadly that it can encourage discriminatory and arbitrary enforcement by law enforcement.

What is the Act Requirement (or Actus Reus)?

The Act Requirement:

Every crime in this country contains an actus reus requirement, the requirement that the defendant (1) voluntarily engage in a prohibited act, or, in some cases, (2) fail to act in the face of a legal duty. Mere preparation does not satisfy actus reus. Defendants can’t be convicted of status crimes like being an addict, homeless, or a pedophile.

What are the four types of involuntary acts (cannot support a criminal conviction)?

1. Reflex or convulsion

2. Unconsciousness or sleep

3. Hypnosis or hypnotic suggestion

4. Other bodily movement that otherwise it not a product of the effort or determination of the actor, either conscious or habitual. An automatistic state, or a state of mind in which the person does not have conscious or willful control over his actions and thus lacks the ability to be aware of and perceive his external environment.

What are the five situations where there is a duty to act?

1. Statute imposes a duty to care for another

2. A status relationship to another (parent/child, husband/wife)

3. Contractual duty to another

4. Voluntary assumption of care and secluded the helpless

5. Engages in a voluntary act, places victim in perilous position, then fails to remediate the situation

There are generally no “Good Samaritan” statutes that impose criminal liability for failure to act

What is the difference between conduct crimes and result crimes?

Conduct Crimes: defendant can be prosecuted REGARDLESS of whether the act or failure to act led to the prohibited result (like a DUI when the defendant doesn’t hit anyone/anything)

Result Crimes: defendant can ONLY be prosecuted IF his act or failure to act therefore AND CAUSED prohibited result

What are the two types of causation the prosecution must prove to convict a defendant of a RESULT crime?

There are three ways to show Actual Causation, but the prosecution only needs to demonstrate one. (1) "But for” Causation: “But-for” the defendant's act, the result would not have happened, or if the defendant had not performed the prohibited act, the prohibited result would not have occurred. (2) Substantial Factor: This actual cause test is used when there are multiple causes, each alone sufficient to bring about the harmful result, operating together to cause it. In addition, (3) a defendant is an actual cause of a prohibited result if he hastened or accelerated the result.

Proximate Causation refers to a cause that is legally sufficient to find the defendant liable. Proximate cause is based on the foreseeability of the result. A Dependent Intervening Cause is foreseeable and is not sufficient to break the causal chain; therefore, in the case of a dependent intervening cause, the defendant can still be found to be the proximate cause of the prohibited result. An Independent Intervening Cause is one that is so unusual, abnormal, or extraordinary that it is unforeseeable and severs the causal chain. Therefore, in the case of an independent intervening cause, a defendant cannot be found to be the proximate cause of the prohibited result.

Mens Rea General Rules

The mens rea is the mental element required for a criminal conviction.

The prosecution must prove the required mental element beyond a reasonable doubt.

For result crimes, prosecution must prove that the defendant’s act and prohibited result were accompanied by the prescribed mental state.

Jurors can, and usually must, infer that the defendant possessed the requisite mens rea from the surrounding circumstances, BUT cannot be told that they shall presume or infer a mental state from the presence of attendant circumstances.

What is the purposeful/intentional mens rea?

Conduct Crimes: Prosc must prove it is the defendant’s goal or conscious objective to engage in the prohibited conduct

Result Crimes: Prosc must prove it is the defendant’s goal or conscious objective to cause the prohibited result

What is transferred intent?

A defendant’s intent to engage in the prohibited conduct and cause the prohibited result can be transferred from the intended victim to the actual victim, allowing the defendant to be convicted of a crime based upon the result caused to the actual victim. For the doctrine of transferred intent to be applied, the harm caused must be in the same category as the harm intended.

•   Under SC law, transferred intent applies even if defendant harms intended victim

-      Defendant’s intent to cause prohibited result (ex: death) to victim A can transfer to victim B; defendant can be convicted of a crime based upon the result caused to victim B

-     Must be in the same category of harm

What is a knowing/willful mens rea?

Conduct Crimes: Prosc must prove the defendant was consciously aware that he was engaging in prohibited conduct

- Continuing crimes: until act is completed, overlap between actus reus and mens rea will suffice. The actus reus starts when the crime starts and ends when the crime ends.

Result Crimes: Defendant was consciously aware that he was engaging in prohibited conduct and he was consciously aware that his conduct was practically certain to cause the prohibited result.

What is willful blindness/deliberate ignorance (knowing mens rea)?

Defendant acted with willful blindness if (1) circumstances would have made a reasonable man suspicious of the legality of his actions; (2) defendant could confirm or dispel his suspicions, yet (3) deliberately avoided confirming or dispelling his suspicions.

Reckless Mens Rea:

Conduct Crimes:

The defendant consciously disregarded a substantial and unjustifiable risk created by engaging in certain conduct.

Result Crimes:

The defendant consciously disregarded a substantial and unjustifiable risk that his conduct would cause the prohibited result.

Criminally Negligent Mens Rea:

Conduct Crimes:

Negligent mens rea, the prosecution must prove that the defendant consciously disregarded a substantial and unjustifiable risk created by engaging in certain conduct.

Result Crimes:

Negligent mens rea, the prosecution must prove that the defendant should have been, but was not aware of a substantial and unjustifiable risk that his conduct would cause the prohibited result.

What is the separate mens rea requirements for Arson:

(1) intentionally, maliciously causes an explosion, sets fire to, burns, or causes to be burned or aids in such a way that

(2) results in damage to a building, structure, or any property,

(3) resulting either directly or indirectly in death of serious bodily injury of another

What are examples of strict liability and criminal statutes punishable by strict liability? Is mens rea required?

Mens rea is not required.

Crimes that do not require proof that the defendant possessed a certain mens rea are known as strict liability or absolute liability offenses. There are two types of criminal statutes to punish strict liability offenses. The first type are statutory rape laws. The second are public welfare offenses (victimless crimes, driving with license suspended, possession of an unregistered firearm). 

Constitutional Innocence Defense: violation of Due Process Clause if interpretation as strict liability could lead to the prosecution of innocent and maybe constitutionally protected behavior individuals. 

What is concurrence?

Concurrence is the final element of a crime that the prosecution must prove beyond a reasonable doubt. Concurrence means that there must be temporal overlap between the actus reus and mens rea, or that they must occur at the same time. Generally, there are two types of concurrence defenses: (1) A defendant claiming he did not possess the requisite mental state to be convicted of the crime until after the prohibited result had already occurred; and (2) A defendant claiming that the mens rea did not coincide for snapshot crime.

For example, a defendant can only be convicted of this crime if the defendant possessed the mens rea of intent to commit a felony or theft when he committed the actus reus of entering the dwelling place of another without authority.

What is Mistake or ignorance of fact?

Mistake or ignorance of fact arises when a criminal defendant misunderstood some fact that negates a required element of the crime.

General intent crimes are defined as the state of mind required for the commission of certain common law crimes not requiring specific intent, and they usually, but not always, take the form of recklessness or negligence. If a crime is a general intent crime, a defendant can only prove a mistake or ignorance of fact defense if his mistake or ignorance was (1) honest, AND (2) reasonable.

Specific intent crimes involve the defendant (1) intentionally or knowingly performing an act (2) with an intentional or knowing goal in mind. Mistake or ignorance of fact is a defense to specific intent crimes as long as the mistake or ignorance of fact was honest, regardless of if it was reasonable.

Mistake or ignorance of fact is only a defense when it negates the mens rea of the crime. Mistake and ignorance of fact cannot be raised if the defendant is charged with a strict liability offense.

What is mistake of law?

A Mistake of Law argument might arise when the defendant knows the true facts but is mistaken about their consequences.

General intent crimes are defined as the state of mind required for the commission of certain common law crimes not requiring specific intent, and they usually, but not always, take the form of recklessness or negligence. A mistake of law must be honest and reasonable for general intent crimes.

Specific intent is intentionally or knowingly doing an act with an intentional or knowing goal in mind. A mistake of law must merely be honest for specific intent crimes.

In both cases, the mistake must negate the mens rea associated with the crime charged.

What is ignorance of law?

Ignorance of law is generally no defense, but there is one exception. Ignorance of law can be a defense only when there is a statute that places an explicit obligation on the government to provide notice to the defendant. (ex. general intent crime, failure to file tax returns)

What are the elements for murder that must be proven beyond a reasonable doubt?

The elements for murder that must be proven beyond a reasonable doubt are (1) the actus reus of killing or causing death, (2) the mens rea, (3) causation, and (4) concurrence.

What is the mens rea requirement for homicide?

The mens rea for murder in South Carolina and in most jurisdictions is malice aforethought, which encompasses four mental states: (1) intent to kill, (2) intent to inflict serious bodily injury, (3) evidence that the defendant acted with extreme indifference to the value of human life and caused the death of the victim, and (4) and intent to commit a felony

What are two examples of express malice within malice aforethought?

For intent to kill, the prosecution must prove that the defendant’s conscious goal or objective was to kill the victim. The prosecution can prove the defendant committed prior bad acts against the victim to prove animus between the defendant and the victim and to prove the defendant’s specific motive was to kill or harm the victim. However, prior bad acts cannot be used to prove the defendant is a generally violent person. For intent to inflict grievous bodily harm, the prosecution can convict the defendant of murder if it can prove the defendant intended to cause grievous bodily harm to the victim and that harm resulted in death.

What are the two examples of implied malice for malice aforethought?

Depraved Heart Muder and Felony Murder Rule

Depraved Heart Muder:

Another way the prosecution can prove malice aforethought is by presenting evidence that the defendant acted with extremely reckless indifference to the value of human life and caused the death of the victim. This is also called depraved heart murder. It is an example of implied malice. The extremely reckless indifference to the value of human life mens rea has (1) a subjective element, which is that the defendant acted with extremely reckless indifference to the value of human life, and (2) an objective element, which is that it was highly probable that the defendant’s act or omission would result in death. Because this mens rea is an example of implied malice, after the prosecution has proven that the defendant acted with extremely reckless indifference to the value of human life, the jury may infer, but is not required to infer, that the defendant acted with malice.

Felony Murder Rule

Another way the prosecution can prove malice aforethought is by establishing that the defendant committed felony murder. Felony murder is another example of implied malice, meaning the jury may infer malice if all of the elements of felony murder are met, but the jury is not required to infer malice. The first element of felony murder is that the felony murder rule only applies to foreseeably dangerous felonies. When deciding if the defendant’s felony was foreseeably dangerous, and if the felony murder rule can apply, the court considers two factors: (1) in a general sense, how dangerous is the felony to human life?; and (2) what were the specific circumstances of the commission of the felony at hand? The second element of felony murder is that the defendant or someone acting in concert with the defendant must be the actual cause of the victim’s death. The prosecution does not have to prove proximate cause for felony murder because foreseeability is already built into the analysis. According to the Merger Rule, felony murder does not apply when the defendant’s felony was inherent in the act of murder itself. For the felony murder rule to apply, the defendant must have had committed a felony that had some purpose other than harming the victim who died.

Is malice implied in murder?

Yes

Capital Murder:

There only three sentences that can be imposed on a defendant convicted of murder: (1) the death penalty, (2) life imprisonment; or (3) a mandatory minimum sentence of thirty years. Mandatory death penalty statutes, which require the judge or jury to impose a death sentence for certain crimes, are unconstitutional. The death penalty can only be imposed after jurors balance aggravating and mitigating circumstances. The defendant can knowingly and voluntarily waive the requirement that a jury must decide whether to impose the death penalty.

An indictment does not need to mention which aggravating circumstances the prosecution will seek to prove. The jury (or judge) must find that at least one aggravating circumstance applies to be able to give the defendant the death penalty. The prosecution must prove aggravating circumstances beyond a reasonable doubt.

What are some examples of statutory aggravating circumstances in SC?

(a) Statutory aggravating circumstances:

(1) The murder was committed while in the commission of the following crimes or acts:

(a) criminal sexual conduct in any degree;

(b) kidnapping;

(c) trafficking in persons;

(d) burglary in any degree;

(e) robbery while armed with a deadly weapon;

(f) larceny with use of a deadly weapon;

(g) killing by poison;

(h) drug trafficking as defined in Section 44-53-370(e), 44-53-375(B), 44-53-440, or 44-53-445;

(i) physical torture;

(j) dismemberment of a person; or

(k) arson in the first degree as defined in Section 16-11-110(A).

(2) The murder was committed by a person with a prior conviction for murder.

(3) The offender by his act of murder knowingly created a great risk of death to more than one person in a public place by means of a weapon or device which normally would be hazardous to the lives of more than one person.

(4) The offender committed the murder for himself or another for the purpose of receiving money or a thing of monetary value.

(5) The murder of a judicial officer, former judicial officer, solicitor, former solicitor, or other officer of the court during or because of the exercise of his official duty.

(6) The offender caused or directed another to commit murder or committed murder as an agent or employee of another person.

(7) The murder of a federal, state, or local law enforcement officer or former federal, state, or local law enforcement officer, peace officer or former peace officer, corrections officer or former corrections officer, including a county or municipal corrections officer or a former county or municipal corrections officer, a county or municipal detention facility employee or former county or municipal detention facility employee, or fireman or former fireman during or because of the performance of his official duties.

(8) The murder of a family member of an official listed in subitems (5) and (7) above with the intent to impede or retaliate against the official. "Family member" means a spouse, parent, brother, sister, child, or person to whom the official stands in the place of a parent or a person living in the official's household and related to him by blood or marriage.

(9) Two or more persons were murdered by the defendant by one act or pursuant to one scheme or course of conduct.

(10) The murder of a child eleven years of age or under.

(11) The murder of a witness or potential witness committed at any time during the criminal process for the purpose of impeding or deterring prosecution of any crime.

(12) The murder was committed by a person deemed a sexually violent predator pursuant to the provisions of Chapter 48, Title 44, or a person deemed a sexually violent predator who is released pursuant to Section 44-48-120.

What are some examples of some mitigating circumstances in SC?

(b) Mitigating circumstances:

(1) The defendant has no significant history of prior criminal conviction involving the use of violence against another person.

(2) The murder was committed while the defendant was under the influence of mental or emotional disturbance.

(3) The victim was a participant in the defendant's conduct or consented to the act.

(4) The defendant was an accomplice in the murder committed by another person and his participation was relatively minor.

(5) The defendant acted under duress or under the domination of another person.

(6) The capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired.

(7) The age or mentality of the defendant at the time of the crime.

(8) The defendant was provoked by the victim into committing the murder.

(9) The defendant was below the age of eighteen at the time of the crime.

(10) The defendant had mental retardation at the time of the crime. "Mental retardation" means significantly subaverage general intellectual functioning existing concurrently with deficits in adaptive behavior and manifested during the developmental period.

How can the defendant get their death sentence reversed through Victim Impact Evidence?

There is no per se bar to the admission of victim impact evidence, but the defendant can get his death sentence reversed if he can prove that such evidence was so unduly prejudicial that it rendered the trial fundamentally unfair under the due process clause. Generally, the prosecution may present victim impact evidence to remind the sentencer that the victim is an individual whose death represents a unique loss to society. However, the prosecution cannot introduce any material that is irrelevant or inflammatory, or that diverts the jury’s attention from its proper role or invites an irrational, purely subjective response.

What is Voluntary Manslaughter?

A defendant can be convicted of the lesser offense of voluntary manslaughter rather than murder if the prosecution can prove all the elements of murder—(1) a voluntary act or omission in the face of legal duty (actus reus), (2) malice aforethought, (3) concurrence, and (4) causation—but the defendant creates reasonable doubt that two additional elements existed at the time of the killing: (1) sufficient legal provocation, and (2) heat of passion.

What is sufficient legal provocation?

Sufficient legal provocation is such an act or event that would naturally disturb the sway of reason and render the mind of an ordinary person incapable of cool reflection and produce what may be called an uncontrollable impulse to do violence. This is based on an objective standard of the reasonable person. Mutual quarrel can constitute sufficient legal provocation that will allow for a voluntary manslaughter instruction if the defendant did not have adequate time to cool off before killing the victim. Voluntary manslaughter instructions can be given where the victim is the initial aggressor. In the case where the victim is the initial aggressor, the defendant likely also has a good case he was acting in self-defense. A victim’s overt, threatening act toward the defendant can constitute sufficient legal provocation. A defendant can also get an instruction for voluntary manslaughter if the overt, threatening act was directed toward someone else, such as a friend or relative of the defendant. In this case, it is also likely that the defendant would have a defense of others defense available to him. Mere words, no matter how offensive, cannot constitute sufficient legal provocation. Some courts have carved out an exception for informational words, which convey factual information about events that have already occurred. However, in South Carolina, informational words are not sufficient legal provocation. Adultery, when a spouse walks in on their partner in the act of adultery, and false or unlawful arrest can serve as sufficient legal provocation.

What is heat of passion?

focuses on (1) whether the particular defendant was actually provoked into losing his control, and (2) whether too much of a cooling-off period occurred between the legal provocation and the act of killing such that the defendant had cooled off OR the ordinary person would have cooled off.

What is involuntary manslaughter?

Under South Carolina law, involuntary manslaughter is the criminally negligent killing of a human being. A person charged with involuntary manslaughter may be convicted only upon a showing of criminal negligence under the definition that “criminal negligence is defined as the reckless disregard for the safety of others.” A person convicted of involuntary manslaughter must be imprisoned not more than five years. Criminal negligence under this definition means one of two things: (1) the unintentional killing of another without malice, but while engaged in an unlawful activity not naturally tending to cause death or great bodily harm; or (2) the unintentional killing of another without malice, while engaged in a lawful activity with reckless disregard for the safety of others. Mens rea is somewhere between reckless and criminal negligence. NOTE: For exam purposes, use "criminal negligence" mens rea.

What is self-defense generally?

Self-defense is a defense in which a defendant responds to charges against him accusing him of committing an act of violence by claiming that his violent act was both necessary and proportional to the threat launched against him.

What are the four elements of self-defense?

South Carolina requires a defendant who used attempted or actual lethal force to present some evidence regarding each of the following four elements to get a jury instruction on self-defense:

(1) The defendant must be without fault in bringing on the difficulty, meaning the defendant cannot be the initial aggressor. There is an exception if the defendant is the initial aggressor but then communicates to his adversary his intent to withdraw and in good faith does attempt to withdraw.

(2) The defendant must have been in actual imminent danger of losing his life or sustaining serious bodily injury, or he must have actually believed he was in imminent danger of losing his life or sustaining serious bodily injury. The defendant has to present evidence that the danger he faced or thought that he faced was imminent or about to happen. The amount of force used by the defendant must be proportional to the force that he faced

(3) If the defendant incorrectly believed he was in imminent danger of losing his life or sustaining serious bodily injury, that belief must have been reasonable. This element asks jurors to consider whether a person of ordinary firmness and courage would have entertained the belief that he was in imminent danger and the circumstances were such as would warrant a person of ordinary prudence, firmness, and courage to strike the fatal blow in order to save himself from serious bodily injury or death. The reasonable person in a given case is a reasonable person with the defendant’s particular history and personal characteristics (age, size, etc.)

(4) The defendant had no other probable means of avoiding the danger. Under common law, there was a duty to retreat unless doing so would increase his danger of being killed or suffering serious bodily injury.

At common law, there is a duty to retreat unless doing so would increase danger of being killed or suffering serious bodily injury.

What is the Protection of Persons and Property Act?

There is no duty for a defendant to retreat from his home or his car before using or attempting lethal force. According to SC Code Section 16-11-420(D), a person who unlawfully and by force enters or attempts to enter a person’s dwelling, residence, or occupied vehicle is presumed to be doing so with the intent to commit an unlawful act involving force or a violent crime.

According to SC Code Section § 16–11–420(A), a homeowner or car owner whose home or car is broken into is presumed to have reasonable fear of imminent peril of death or great bodily injury to himself or another person when using deadly force that is intended or likely to cause death or serious bodily harm to another person if (1) the person against whom deadly force is used is in the process of unlawfully and forcefully entering, or has unlawfully and forcibly entered a dwelling, residence, or occupied vehicle; and (2) the person who uses deadly force knows or has reason to believe an unlawful and forcible act is occurring or has occurred.

According to SC Code Section 16-11-450(A), a person who uses deadly force as permitted by the provisions of this article or another applicable provision of law is justified in using deadly force and is immune from criminal prosecution and civil action for the use of deadly force, unless the person against whom deadly force was used is a law enforcement officer.

The burden of proof at an immunity hearing is a preponderance of the evidence. The defendant has to prove that two elements are more likely than not in order to achieve immunity: (1) that the victim forcefully entered or attempted to enter his home or occupied vehicle; and (2) that he knew or had reason to believe that an unlawful and forcible entry or unlawful and forcible act was occurring or had occurred.

What is battered spouse syndrome as a defense?

Defendants are allowed to present evidence on Battered Spouse Syndrome and its effect on the elements of self-defense (goes to admissibility NOT sufficiency)

How do we go about self-defense in non-lethal cases?

There are three elements for self-defense in non-lethal cases.

(1) The defendant must be without fault in bringing on the difficulty, meaning the defendant cannot be the initial aggressor. This is the same as it is for self-defense in lethal cases.

(2) The defendant must have been in actual imminent danger or be must have actually believed he was in imminent danger. For nonlethal force cases, the danger only needs to be of some bodily injury, not serious bodily injury or death.

(3) If the defendant’s claim of self-defense is based on the belief that he was in danger of some bodily injury, the defendant must prove that the reasonable man would have held the same belief and that the circumstances were such as would warrant the reasonable man to respond with the amount of force that the defendant used.

The fourth element for self-defense in lethal cases, the duty to retreat, does not apply in non-lethal cases. The defendant never has a duty to retreat if he merely uses non-lethal force.

What is the defense of others defense?

One is not guilty of taking a life of an assailant who assaults a friend, relative, or bystander if that friend, relative, or bystander would likewise have the right to take the life of the assailant in self defense

For the trial court to give a defense of others charge, there must be some evidence adduced that the defendant was indeed lawfully defending others. There are two issues with asserting the defense of others charge.

(1) There might be no evidence that the defendant was lawfully defending others, and (2) the friend, relative, or bystander may not have been entitled to a self-defense charge for some reason (ex. The friend was the initial aggressor).

What is the defense of property/habitation?

2 elements required for jury instruction:

1.      Victim committed a trespass by unlawfully entering the defendant’s property without permission or refusing to leave after being asked and;

2.      That the chosen means of ejectment, up to and including lethal force, were reasonable under the circumstances

Defendant does not need to present evidence that he/she believed he/she was in imminent danger of sustaining serious bodily injury

What are the three elements required for the necessity defense?

1.      There was a present and imminent emergency arising without fault on the defendant’s part

2.      The emergency gave rise to well-grounded apprehension of death or serious bodily injury if the criminal act was not done

3.      No reasonable alternative to avoid the threat of harm except to commit the criminal act

A private necessity defense can be used when the defendant committed a crimnal act to prevent death or serious bodily injury to himself. A public necessity defense can be used when the defendant committed a criminal act to prevent death or serious bodily injury to someone else. Historically, necessity was only a defense to natural causes of harm, but is now applied to human and natural causes.

DEFENDANT BEARS THE BURDEN OF PROOF OF PREPONDERANCE OF THE EVDENCE; NOT DEFENSE TO MURDER IN S.C.

What are the three elements of a duress defense?

1. Present and imminent degree of coercion

2. That coercion was of such a nature as to cause a reasonable apprehension of death or serious bodily injury if the criminal act was not done

3. There was no reasonable way, other than committing the crime, to escape the threat of harm

The duress defense only applies to human causes of harm. 

DEFENDANT BEARS THE BURDEN OF PROOF OF PREPONDERANCE OF THE EVDENCE; NOT DEFENSE TO MURDER IN S.C.; not viable defenses when the life of one is taken to save the lives of many as well. 

What is the main rule of mental defenses?

Under the Due Process Clause, a defendant is not competent to stand trial if he lacks the capacity (1) to understand the proceedings against him, OR (2) to assist in his own defense as a result of a lack of mental capacity. The defendant bears the burden of proving that he is incompetent to stand trial by a preponderance of the evidence.

According to South Carolina Section 44-23-410(A), the judge “shall” instigate the relevant procedures to determine whether a defendant is competent to stand trial whenever the judge has reason to believe that the defendant on trial before him lacks the capacity to understand the proceedings or aid in his own defense. This means that the trial judge has the discretion to order a competency examination, and a refusal by the judge to grant an examination will not be disturbed on appeal without a clear showing of an abuse of that discretion.

Even if the parties do not request a competency examination, the court can grant one sua sponte. Incompetence to stand trial is only focused on mental state throughout the trial, not when the crime was committed.

What is Guilty but Mentally Ill?

According to South Carolina Section 17-24-20(A), a defendant is guilty but mentally ill if, at the time of the commission of the offense, he had the capacity to distinguish between right and wrong or to recognize that his act was wrong, but because of some mental disease or defect, he lacked the capacity to conform his conduct to the requirements of the law. While the defendant has the burden of proving mental illness, all that the defendant needs to get a GBMI instruction is some evidence of such a mental illness. To win on a GBMI defense, the defendant must prove the mental illness by a preponderance of the evidence. The purposes of GBMI statutes are (1) to reduce the number of defendants being completely relieved of criminal responsibility and (2) to insure mentally ill inmates receive treatment for their benefit as well as society’s benefit while incarcerated. GBMI emphasizes the mental state of the defendant at the time of the commission of the crime, not at the time of trial.

What is Not Guilty by Reason of Insanity?

If the defendant is able to prove that he is not guilty by reason of insanity (NGRI), he receives no criminal sentence and is instead immediately sent to a mental health facility for evaluation and treatment.

According to South Carolina Code Section 17-24-10, NGRI (1) is an affirmative defense prosecution for a crime that, at the time of the commission of the offense, the defendant, because of mental disease or defect, could not distinguish moral or legal right from moral or legal wrong or to recognize the particular act charged as morally or legally wrong. (2) The defendant has the burden of proving the defense of insanity by a preponderance of the evidence. (3) Evidence of a mental disease of defect that is manifested only be repeated criminal or other antisocial behavior is not sufficient to establish the insanity defense.

South Carolina uses the M’Naughten test for insanity defenses, which focuses on whether the defendant had the ability to distinguish right from wrong at the time of the offense, as reflected in Section 17-24-10.

What is the Diminished Capacity Rule?

South Carolina has never had the diminished capacity defense. The diminished capacity doctrine allows the defendant to offer evidence of his mental condition concerning mental capacity to show they lacked the requisite mens rea for the crime charged. Many states that previously had the diminished capacity doctrine have eliminated the defense.

What are the two types of intoxication defenses?

-     Involuntary intoxication defense: a defendant unknowingly drinks alcohol or takes drugs to the point of intoxication

-     Voluntary Intoxication: (this is really an insanity defense) defendant must prove that habitual intoxication has rendered him permanently unable to distinguish right from wrong — if there is a history or long-term brain injury, can be insanity defense

-     In S.C., voluntary intoxication does not relieve individual from criminal responsibility

What is Entrapment defense?

Under South Carolina law, the defense of entrapment contains two elements: (1) government inducement; and (2) lack of predisposition. The defendant may establish an entrapment defense even if he does not testify at trial. To get a jury instruction on entrapment, the defendant must merely present some evidence of government inducement and lack of predisposition. The prosecution must then prove beyond a reasonable doubt that at least one of those two elements did not exist to secure a conviction. A prior criminal record, especially for a same or similar crime, will often defeat a claim of entrapment due to predisposition. In addition, the government merely providing the defendant with an opportunity to commit a crime is insufficient government inducement to receive a jury instruction on entrapment.

What is Solicitation?

Solicitation is an inchoate offense, meaning it is an offense that is imperfectly formed or formulated. Solicitation is the common law offense whereby it is only necessary that the actor, with intent that another commit a crime, have enticed, advised, invited, ordered, or otherwise encouraged that person to commit a crime. The solicited crime does not need to be committed. Solicitation requires proof of (1) an intentional mens rea, and (2) an actus reus of enticing, advising, inviting, ordering, or otherwise encouraging another person to commit a crime. The actus reus of enticing, advising, inviting, etc. another person to commit a crime must be substantial and unequivocal. It is not solicitation if the defendant is loosely suggesting to another person.