Crim Outline - Doctrinal Chapters

Intro to Omissions

Courts distinguish between misfeasance (wrongful action) and nonfeasance (wrongful inaction). The general rule is that nonfeasance is NOT criminalized.

Types of Legal Duty (Omission)

• Duties imposed by statute

• Duties arising from a status relationship

• Duties created by contract

• Duties arising from voluntary assumption of care

• Duties arising from creation of peril

Duties Imposed by Statute

Filing your taxes, reporting child abuse.

 

[Minority] Some states have enacted statutes with general duties to rescue. These generally carry a small fine, but an untested implication is that if you have a legal duty to act, you can be held criminally responsible for harms resulting from that failure (including death).

Duties Arising from a Status Relationship

Generally, only applies to people with whom you have a direct relationship (e.g., spousal, parent-to-child).

 

A mistress does NOT count.

 

However, a recent case found that the parents of a school shooter DID owe a status duty to the children their son killed.

Duties Created by Contract

When a breach is “sufficiently egregious.”

For example, when a couple contracted to care for an elderly man and he died of neglect.

Duties Arising from Voluntary Assumption of Care

If you voluntarily assume care AND seclude them such that they cannot receive other care, you owe them a duty.

 

When a woman took care of a child, but the mother was still there (albeit, beating the child), the woman was not liable for failure to bring the child to the hospital because the child was not secluded – the mother was present throughout.

Duties Arising from the Creation of Peril

If you acted to create a danger (even if that first act was not criminal), you have a duty to mitigate the risk. Otherwise, you can be criminally liable.

 

When a drug dealer sold heroin, helped him prepare, watched him have a dangerous reaction, then left, he was liable for involuntary manslaughter.

Custodial Duty

·      Estelle held that “deliberate indifference to serious medical needs of prisoners” violates the Eighth Amendment and provides grounds for prosecution.

·      DeShaney drew the line: the state has no general duty to protect against private violence, but “when the State takes a person into its custody and holds him there against his will, the Constitution imposes upon it a corresponding duty to assume some responsibility for his safety and general well-being.”

·      Farmer defined the breach standard: “deliberate indifference” requires that the official actually knew of a substantial risk and failed to act—the subjective recklessness standard.

o   For corporate custodial neglect, the mental state can be a “mosaic” or “collective” mental state that aggregates across employees.

Custodial Neglect Enforcement Gap

1. Standard of Proof: It is difficult to prove subjective recklessness beyond a reasonable doubt

2. Prosecutorial Conflict: DAs need cops to cooperate with them for all other cases

3. Causation: Defense attorneys argue that the inmate's conduct was the proximate cause

For corporate omission, the Responsible Corporate Officer or "Park" Doctrine applies

an officer with “responsibility and authority either to prevent in the first instance, or promptly to correct” a violation has a duty to act. The offense is a strict liability misdemeanor.

Corporate Omission Enforcement Gap

·      The intent problem: corporate decision-making is diffuse; executives claim reliance on subordinates, and the fragmentation that enables corporate respondeat superior liability defeats individual liability.

·      Resource disparity: large corporations sustain defense efforts that dwarf prosecutors’ budgets.

·      Prosecutorial risk aversion: Arthur Andersen taught that corporate indictment carries catastrophic collateral consequences.

Mistake of Law

Ignorance of the law is NOT an excuse for illegal conduct, with the following exceptions:

• Reasonable mistakes about collateral laws

• Statute Requires Knowledge of Illegality

• The offense implicitly requires knowledge of illegality

• Reasonable reliance on official statements about the law

Reasonable mistakes about collateral laws

§  Penal Law: The statute creating the offense

§  Collateral law: Any body of law that determines a factual predicate that the penal law incorporates.

E.g., Bigamy (being married to two people) is illegal. If you relied on an attorney's advice that your out of state divorce was valid and remarried, but there was a mistake about the validity of your divorce, this mistake could be a defense against the bigamy charge.

Statute Requires Knowledge of Illegality

o   For example, you cannot have willfully violated the tax code if you did not know what the tax code said.

The Offense Implicitly Requires Knowledge of Illegality

o   This is debated.

Reasonable Reliance on Official Statements of the Law

o   Only applies when you receive advice from someone with the authority to interpret the law. Your own reading or the reading of a private attorney does NOT count.

§  Reliance on a court decision, administrative ruling, or guidance from a government official is a complete defense, but you need to have directly received the advice and reasonably relied on it.

·      Protesting was okay when police officials said so.

·      It was okay for James Albertini to rely on an appellate court ruling saying that he could pamphlet during a military open house. HOWEVER, this stopped being reasonable the moment that SCOTUS granted cert because it was no longer a final/certain decision.

Mens Reas (MPC v. Common Law)

MPC	Common Law
Purposely	Intentionally
Knowingly	Willfully
Recklessly	Maliciously
Negligently	Unreasonably

Purposely/Intentionally Definition

Conscious object to engage in the conduct or cause the result.

Knowingly/Willfully Definition

Aware conduct is of particular nature of practically certain the result will occur

Recklessly/Maliciously Definition

Consciously disregards a substantial and unjustifiable risk of elements of the offense.

Negligently/Unreasonably Definition

Should be aware of a substantial and unjustifiable risk of elements of the offense.

Knowingly — Mistake of Fact? Common Law

Honest Mistake (even if unreasonable)

Recklessly — Mistake of Fact? Common Law

Honest Mistake (even if unreasonable)

Negligently — Mistake of Fact? Common Law

Reasonable Mistake

When is a mistake of fact a defense? (MPC)

Under the MPC, a mistake of fact is a defense if it negatives the mental state.

MPC “One for All” Rule

Unless otherwise stated, the mens rea applies to ALL material elements. Strict liability applies to non-material elements.

Material Elements

Any elements that do not relate exclusively to:

§  The statute of limitations, jurisdiction, or venue; OR

§  To any other matter similarly unconnected with the harm or evil sought to be prevented by the law defining the offense; OR

§  To the existence of a justification or excuse for such conduct.

When is mistake of fact REFUSED (common law)

Under the Common Law, the defense is refused if the act (with the mistake) is still malum in se (wrong).

o   When mens rea is ambiguous, common law asks whether the intended act (if the facts were as imagined by the defendant), be bad or good?

§  If bad: expand liability (limit knowledge requirement to fewer elements)

§  If good: limit liability (expand knowledge requirement to more elements

Courts distinguish between general and specific intent crimes (mistake of fact)

o   General Intent: The mistake must be reasonable (Reasonable Mistake Doctrine)

o   Specific Intent (requires a particular purpose to achieve a result): An honestly-held mistake serves as a defense regardless of whether it is reasonable (Honest Mistake Doctrine)

Presumption AGAINST strict liability

When a federal statute is silent, we read in knowledge. If a statute in an MPC jurisdiction is silent, we read in recklessly.

Corporate Knowledge

(1) Some jurisdictions follow respondeat superior; or (2) some jurisdictions require proof that a specific employee committed the offense, though that employee need not be individually prosecuted.

Approaches to Statutory Rape:

1)    Majority: Strict liability below a certain age threshold

2)    MPC: Reasonable mistake permitted

3)    Tiered Approach: Strict liability below a lower threshold; reasonable mistake above the threshold OR the state will maintain strict liability but with a lower penalty.

4)    Federal Sex Trafficking Standard: The government has to prove the defendant knew or recklessly disregarded age BUT if the defendant had "a reasonable opportunity to observe" the victim there is no mental state requirement for age.

Strict Liability / Public Welfare Offenses

Crimes for which a reasonable person should know that the activity is subject to stringent public regulation and may seriously threaten the community’s health or safety. No mental state is required for these offenses, which means that the penalties are typically much lower that crimes with a mens rea showing.

Dangerous Items Heuristic

An item being dangerous puts you on notice that it would be regulated. For example, there is a strict liability standard for opiates, even if you are unaware of their status as narcotics.

The Staples Exception

Guns are not considered as dangerous as the other things the court has defined as hazards (such as hand grenades or narcotics); therefore, strict liability does NOT apply. HOWEVER, this case has been an outlier and only applies when there are serious penalties.

Rational-basis Framework

Historically, the court would defer to a government agency’s enforcement structure so long as it was a rational enforcement. Post-Loper Bright, corporations may now challenge any regulatory rule.

"fighting over-criminalization in federal regulations" EO

Because of the "fighting overcriminalization in federal regulations" EO, we are not doing federal strict liability -- everything is going to require a mental state, even for this public welfare issues. Congress can still pass strict liability offenses, but they have to be specifically strict liability -- we will not read it in.

Enforcement tends to be against individuals -- the most common are for driving without a license

We do not often see enforcement against corporations

Responsible Corporate Officer or "Park" Doctrine

An officer with “responsibility and authority either to prevent in the first instance, or promptly to correct” a violation has a duty to act. The offense is a strict liability misdemeanor.

Contrast with Rehaif, holding that the government must prove the individual defendant knew he belonged to a prohibited category under a gun statute.

First Degree Murder

Requires both the intent to kill AND premeditation and deliberation (i.e., evidence that the defendant planned the killing or at least formed the intent to kill before acting on it)

The Pennsylvania Rule

Premeditation is satisfied whenever there is a conscious decision to kill, no matter how quickly that decision is formed

The practical effect is that the difference between first and second degree murder is how much mercy the jury thinks the defendant deserves.

Second Degree Murder

Requires intent to kill, but without premeditation. This is when the defendant intended to kill the victim but acted on impulse to do so.

The “mystifying cloud of words”

Cardozo thought that if we were going to give the jury the discretion to choose the grading, then we should be clearer.

Voluntary Manslaughter

"Applies when a defendant who would otherwise be guilty of murder killed in response to adequate provocation, acting in a heat of passion before a reasonable person would have cooled off."

Elements:

1)    Adequate provocation (would cause a reasonable person to lose control) that occurred immediately prior to the killing

a.     You CANNOT have willfully caused the situation.

2)    Actual heat of passion: Defendant was actually provoked and acting under passion rather than cold deliberation.

3)    Insufficient cooling time: The killing occurred before a reasonable person would have “cooled off”

Causal connection: The provocation is what causes the defendant’s heat of passion.

Historically Recognized Categories for Adequate Provocation

i.     Assault/Battery

ii.     Mutual Combat

iii.     Illegal Arrest

iv.     Serious abuse of a close relative

v.     Sudden discovery of a spouse’s adultery (a minority of states have abrogated this)

MPC Murder

All intentional homicide is graded as murder, with no demarcation between premeditated and unpremeditated.

MPC Manslaughter

A homicide that is either (1) committed recklessly or (2) that would otherwise be murder but was committed under the influence of extreme emotional disturbance. EED places NO categorical limitations on what counts as provocation, abolished the cooling-time period, and the disturbance does not need to have been caused by the victim.

Loss of Control Defense

England and Wales replaced the defense of provocation with "loss of control"

 

This defense requires a "qualifying trigger":

Fear Trigger	Anger Trigger
Fear of serious violence from the victim against the defendant or another identified person	(1) Things done or said that constituted "circumstances of an extremely grave character" (objective gravity) and (2) caused the defendant "a justifiable sense of being wronged" (objective justification)

 

Two explicit exclusions:

1. Sexual infidelity along cannot be a qualifying trigger

2. A defendant who acts in a "considered desire for revenge" is barred from the defense entirely.

(Unintentional Killing) Ordinary Negligence — Definition

Failure to perceive a risk that a reasonable person would perceive

(Unintentional Killing) Ordinary Negligence — Typical Grade

Civil Liability Only – No criminal liability in any jurisdiction

(Unintentional Killing) Gross/Criminal Negligence — Definition

Substantial failure to perceive a substantial risk that the defendant should have been aware of.

(Unintentional Killing) Gross/Criminal Negligence — Typical Grade

Negligent Homicide (MPC) or Involuntary Manslaughter (Common Law)

 

E.g., the nurse who checked out the wrong medication after overriding the cabinet

(Unintentional Killing) Recklessness — Definition

Conscious disregard of a substantial and unjustifiable risk. Includes when they thought they were being careful but an ordinary man under the same circumstances would have realized the gravity of the danger.

(Unintentional Killing) Recklessness — Typical Grade

Involuntary Manslaughter

(Unintentional Killing) Extreme Recklessness — Definition

Recklessness manifesting extreme indifference to human life

(Unintentional Killing) Extreme Recklessness — Typical Grade

Second Degree Murder (“Depraved Heart”)

Perspectives on criminal negligence:

1)    Thomas: There must be an objective standard. Everyone needs to have the same rules – if we treat some people as incapable of meeting that standard, we belittle them.

2)    Huigens: Does your conduct indicate good or bad character? Good character is less culpable, bad character is more culpable.

Drunk Driving Homicide (4 Approaches)

1)    Murder: Some states allow drunk driving deaths to be charged as second-degree murder under depraved-heart theories.

a.     Watson Advisement: In CA, a warning is given to every person convicted of a DUI that drunk driving is extremely dangerous to human life and that a subsequent DUI death can be charged as murder. This creates knowledge.

2)    Standalone Statutes (majority)

a.     Strict Liability Statutes: Prosecution just needs to show that the person was intoxicated and caused the death

b.     Recklessness: Virginia requires "proof that the defendant's conduct was so gross, wanton and culpable as to show a reckless disregard for human life before imposing aggravated penalties."

3)    General Manslaughter: Arizona uses a “dangerous instrument” theory, where the vehicle is considered a “dangerous instrument” that enhances felony manslaughter.

4)    Aggravated DUI: Several states treat DUI deaths as enhanced DUI offenses rather than as a form of homicide

Felony Murder — Rule

A person who causes a death during the commission of certain felonies is guilty of murder, regardless of whether they intended to kill or even foresaw that a death might occur.

Misdemeanor Manslaughter — Rule

An unintentional killing during the commission of a misdemeanor constitutes involuntary manslaughter, without proof of criminal negligence or recklessness.

Felony Murder — Predicate

Enumerated Felonies: Typically, things like burglary, arson, rape, etc. These are automatically graded as first degree.

 

Unenumerated Felonies: For example, drug trafficking, fleeing police. Typically graded as second degree OR require a showing that the felony was “inherently dangerous to human life”

Misdemeanor Manslaughter — Predicate

Oklahoma Rule: Any misdemeanor can serve as the predicate for first-degree manslaughter, with causation as the limitation

Felony Murder — Limiting Doctrines

• Inherently Dangerous Felony Requirement

• Merger Doctrine

• Agency v. Proximate Cause

Misdemeanor Manslaughter — Limiting Doctrines

• Malum in se Requirement

• Dangerousness Requirement

• Proximate Cause Requirement

Inherently Dangerous Felony Requirement (Elements/California Approach)

If the elements of the crime could theoretically be committed without endangering anyone (like fraud) then it is NOT inherently dangerous.

Inherently Dangerous Felony Requirement (Facts/Majority Approach)

Examines the felony as actually committed, asking whether the defendant’s particular conduct posed a serious risk of death.

Merger Doctrine

Assaultive felonies “merge” with homicide and are not eligible for the felony murder rule.

Agency Theory (majority)

Felony murder only applies when the defendant or co-felon does the killing. Otherwise, the prosecution must still prove mens rea.

Proximate Cause Theory (minority) — Felony Murder

A felon is liable for any death that is a “reasonably foreseeable” result of the felony, regardless of who fired the fatal shot.

Malum in se Requirement

Some states hold that this rule only applies for malum in se misdemeanors and NOT malum prohibitum misdemeanors.

Dangerousness Requirement (misdemeanor manslaughter)

California holds that the predicate misdemeanor must be "dangerous under the circumstances of its commission" – that is, committed with gross negligence.

Proximate Cause Requirement (misdemeanor manslaughter)

The unlawful aspect of the defendant’s conduct must itself be causally connected to death.

Driving without a license was considered unrelated, having a gun without a license was considered related because that misdemeanor was thought inherently dangerous.

Felony Murder Reform Approaches

1)    Complete Abolition: Hawaii and Kentucky

2)    Independent proof of malice: MA, MI

3)    Replaced with lesser charge: OH

4) Major recent reform: CA, CO, IL, MN

MPC Approach to Felony Murder

Every form of criminal homicide needs proof of a culpable mental state

Constructive Possession

A defendant is considered in possession of contraband without having physically touched it IF they “knowingly has both the power and the intention at a given time to exercise dominion or control a thing.”

Legislative response to constructive possession

NY allows an inference that all occupants of a vehicle possess any firearms or drugs in the car; prosecution still bears the burden of proof.

Mens Rea for Possession

If the drugs are scheduled, the defendant just needs to know that they have “drugs”

Felon-in-Possession

It is a federal crime for any felon to have or transport a firearm or ammunition

Quantity Thresholds

States have different approaches of determining how guilty people are based on how much of the drug they have.

The Meaning of “Use”

Receiving a firearm in exchange for drugs is NOT “using” the gun. However, giving a gun to receive drugs IS “using” the gun.

Gun Regulation

Under Rahimi, for a gun regulation to be constitutional, it needs to be aligned with “general principles” of a historical analogue from the Founding era.

Attempt Doctrine

	Attempt	Predicate Crime
Mens Rea*	Purpose as to the result (some jurisdictions: They acted with the belief the result would occur)	Whatever the target crime requires for non-result elements
Actus Reus	Proximity test – “dangerously near” (common law) OR “substantial step”	Not required (that’s the whole point!)

*Note: this means that the mens rea for attempt is often HIGHER than the completed crime since you need purpose with regard to the result.

Attempt — How close to completion?

Common Law	Model Penal Code
“Dangerously near” to completing the crime. Mere preparation is insufficient MINORITY	Any “substantial step” that strongly corroborates criminal purpose. MAJORITY

Attempt — What if the crime was impossible?

Common Law	Model Penal Code
Legal impossibility (You thought it was illegal to import lace, but it isn’t) is a defense, but factual impossibility (you bought “cocaine,” but it was actually baby powder) is not. MINORITY	Impossibility is irrelevant. It is sufficient that the defendant believed the circumstances made the conduct criminal. MAJORITY

Attempt — Can the defendant change their mind?

Common Law	Model Penal Code
No. Once it is “dangerously near” it cannot be undone.	Yes. Voluntary and complete abandonment is an affirmative defense, but the defendant must actually prevent the crim. Renunciation motivated by fear of detection does not qualify.

How severely is attempt punished?

Common Law	Model Penal Code
One grade below the completed offense or half the maximum. MAJORITY	Same grade as completed offense. MINORITY

Kill Zone Theory

A defendant who intends to kill a primary target may be convicted of attempted murder of others with a “zone of fatal harm” IF there is a reasonable inference that the defendant intended to create a zone of fatal harm and kill everyone within it to ensure the primary target’s death.

Locus poenitentiae

A place for repentance; allows defendants who have taken preliminary steps to change their minds before liability attaches. Under the common law, once someone reaches the dangerously close threshold, you cannot come back down from that. Under the MPC you can.

Impact of the substantial step test (attempt)

The “substantial step” test creates the opportunity for stings and manufacture. In the Whitmer kidnapping case, the CIs and undercover agents had suggested so much that only two of the defendants were actually convicted.

Accomplice Liability

Attaches the underlying offense to those who help another person commit it. Generally punished equally with those who complete the offense, with accessory after-the-fact (helping someone escape detection or punishment) being a separate, lower-grade offense.

Accomplice Liability Doctrine

Mens Rea: (1) The mental state required by the underlying offense (including any specific intent); (2) Purpose to aid the principal

·      “Stake-in-the-Venture” Requirement

·      Knowledge must arise early enough to permit a genuine choice whether to continue participating.

Actus Reus: Aiding or attempting to aid.

·      Presence alone is insufficient, but presence WITH encouragement will satisfy.

·      The person that you are aiding doesn’t need to know that you are aiding them – see case where a judge was guilty of stopping a warning from going out to a victim even though the killers did not know he was doing that.

Natural and Probable Consequences (NPC) Doctrine

An accomplice could be held liable not only for the crime they intended to aid but also for any other crime that was a "natural and probable consequence" of the agreed-upon criminal activity

Some states have amended this so that to be convicted as an accomplice to MURDER, the accomplice must have personally possessed malice or have been a “major participant in the underlying felony who acted with reckless indifference to human life.”

How does derivative liability work for accomplice liability?

Where the principal commits no crime (Hayes), there is nothing to derive liability from; where the principal commits the crime but has a personal defense (Vaden), the accomplice’s liability remains intact.

[accomplice liability] Gebardi Exception (codified in the MPC)

A person is not an accomplice if “the offense is so defined that his conduct is inevitably incident to its commission”

This means that a kingpin’s underlings cannot be charged as accomplices to the kingpin, but third parties can (see Pino-Perez). However, the underlings could be reached by calling them accomplices to the outside supplier.

Twitter v. Taamneh

The Court required a "concrete nexus" between the defendant's assistance and the specific criminal act. Generalized platform operation, even with knowledge of criminal misuse, does not constitute aiding and abetting.

Conspiracy — Agreement

Common Law	MPC
Can be inferred from coordinated conduct	Requires actual agreement

Conspiracy — Mens Rea

Common Law	MPC
Intent to agree + Intent to commit the offense (specific intent must encompass all ESSENTIAL elements)	Purpose as to all elements

Conspiracy — Actus Reus

Common Law	MPC
Agreement + Overt act in furtherance of the crime	Agreement + Overt act in furtherance of the crime

Conspiracy — Pinkerton Liability

Common Law	MPC
Conspirators liable for foreseeable crimes of coconspirators	No vicarious liability beyond accomplice doctrine

Conspiracy — Cumulative Punishment

Common Law	MPC
Conspiracy + substantive offense	Merger: no cumulative punishment

Conspiracy — Withdrawal

Common Law	MPC
Affirmative steps to defeat conspiracy + communication to coconspirators OR disclose to law enforcement	Withdrawal terminates future liability