Criminal Law Class Notes 10/3/03


A police interrogation


A prosecutor questioned this guy who was throwing rocks across the street.  A district attorney, who knows the law in New York, is well-qualified to examine him with respect to the particular elements of “depraved-heart” murder.


There are a few different offenses that could be charged.  There is second degree murder, second degree manslaughter, and criminally negligent homicide.


Recklessness requires “a conscious awareness of a substantial and unjustifiable risk”.  Was this person reckless?  He was consciously aware of the risk because he was looking out for people while he was throwing the rocks.


On the other hand, might this suggest that he is only negligent?  Does this demonstrate that he was not aware of the risk of killing someone with the big rock?


On the third hand, why is this not extreme indifference?  We only need to show a “depraved heart”, extreme recklessness and indifference to human life.  He was looking out to keep from hitting people to some extent, which seems to show that he was not indifferent to human life.


A classic example of a prosecutor in action: “Could a pebble have landed in the garden below?”  And then: “Well, shouldn’t you have known that the big rock wouldn’t make it?”


Note that this guy was intoxicated.


If you don’t think it’s murder, why not?


Defense attorneys want to present their client in the best light and make them seem sympathetic to the jury.


State v. Williams


Were the Williamses negligent?  Keep in mind that the standard of negligence that had to be proven in this case was civil negligence, or in other words, tort-level negligence, not gross negligence.  Even the state of Washington no longer follows this rule.


Why did the Williamses worry that the welfare department was going to take their kid away?


Would their culture have had some effect on their behavior?  Would they distrust authority more than someone who wasn’t a minority?


One of the most important facts of this case, according to Dressler, is the fact that they were Sheshont Indians living on a reservation.  They were treated by the authorities a lot differently than other people.  This helps explain what was going through their minds.


There are very different perceptions of the police in different segments of society.  Some people always believe the police, and others assume that they are probably liars.  The reason is that different groups have had different experiences of police officers.


If we’re going to talk about negligence, and we’re going to talk about whether or not the Williamses lived up to an objective standard of behavior, should we consider their status as Sheshont Indians on a reservation as part of their situation, or should we keep it purely objective?


“This is an area of the law that is in deep flux.  This is where lawyers make their money.”


If the answer is that yes—we’ll consider the Williamses’ situation—the defense may put on evidence that would explain the experience of being on a reservation and the concerns that Indians may have that other people may not have.  If the answer is no—the standard is purely objective—this evidence could not be admitted.


Is the parental duty so fundamental that it transcends cultures?

Should their education level be taken into account when comparing their behavior to that of a reasonable and prudent person?


We could decide that one of the above items is relevant and not the other.  It’s not all or nothing.  But once we go from a purely objective standard and let in some characteristics, we start having a potential “slippery slope” problem.  However, if we can find a rational, principled explanation for what should be admitted as evidence, then we no longer have a slippery slope problem.


Which characteristics we bring in and which we shall exclude may depend on the situation.  We may decide, in light of the underlying issue, to let in some evidence of the defendants’ subjective mindset.


In light of what we’re trying to evaluate, why do we need this information?


Besides the issue of whether or not the Williamses were negligent, what else is critically necessary to determine whether the Williamses should be punished?  There’s a proximate cause issue here.  We need to know the moment at which the Williamses should have known they had to take the child to the doctor.


If we assume that any reasonable person would have taken the child to the doctor before the Williamses did, we need to know when it would have been too late to save the child’s life.  In other words, if a reasonable person would have taken the child to the doctor too late for the doctor to do anything, then the Williamses shouldn’t be held responsible.  If it didn’t matter that they were slower than the norm, they shouldn’t be held responsible.


How about the case of Christian Scientists?  If they are sincere in their beliefs, should they not be held responsible if someone dies while they pray and don’t get medical attention?  If we defend “unreasonable” religious beliefs, is this an oxymoron?


Shall we make a distinction between culture and religion?


Culture is something that is “a part of you” in a certain way, whereas religion is something that you choose to believe in.  It could be argued, therefore, we can be less sympathetic towards people who choose to follow a belief system that asserts that prayers can cure acute meningitis.


Going back to Williams, should we be punishing negligence at all?  The Model Penal Code does not look kindly upon punishment of negligence.  Are we punishing people for character rather than their actions?  Should we incarcerate people for negligence?


Is there a deterrence argument for punishing negligent behavior?


Is there any basis for ever punishing a person who is incapable of living up to the objective standard?  It’s hard to blame someone who is not capable of being otherwise, but on the other hand, from a utilitarian perspective, we may want to keep these people off the street.


Do we have less respect for Sam and Tiffany’s behavior in Note 4, p. 282 because their reason for neglect is so stupid?  Does the fact that they were completely oblivious to the risks to their child make their omission worse than the Williamses’ actions?  Generally, we would like to come down harder on Sam and Tiffany than the Williamses, but it is hard to justify this result based on law.


The felony-murder rule


A defendant is a prisoner in a minimum security prison.  He decides to escape and lets his wife know of his plans.  He asks her to bring his car to the prison so he can drive away.  He asks her to take the car to the mechanic, who finds everything in perfect condition.  She leaves the car for him to escape.  He drives a block or two away, driving completely legally when a child runs out from nowhere.  He slams on the brakes, but the brakes fail and he hits and kills the child.


Who is to blame?  Is the mechanic to blame?  Or is it that “shit happens”?  What crime is this under the New York Penal Law?


He would be guilty of second degree murder based on the felony murder rule.


He didn’t intent to kill the child.  He didn’t act with a depraved heart.  He didn’t intent to cause grievous bodily harm to the child.


He has an interest in liberty that he’s not entitled to because he’s a prisoner and he’s clearly guilty of the crime of escape, which is a felony.  But arguably, he killed the child totally by accident.


How can we justify trying him for murder?


People v. Fuller


Would the defendants have been found guilty of first degree murder if the doors had not been locked?  No!  Is that just?


Could you make a plausible case for depraved heart murder in this case?  Maybe, but that would be second degree murder.


How can we justify the difference between first degree murder and manslaughter based on the fact of the doors being locked?


We are just about the only “real” country in the world that still uses this rule.  Legislators love this rule; scholars think it sucks (except the Crumps).


Mr. Lucky is a pickpocket who steals Dressler’s wallet, which has enough money in it to constitute felony theft.


Mr. Unlucky takes a wallet from someone else, who, noticing what has just happened, dies of a heart attack.  Mr. Unlucky will be charged with felony theft and murder.


But the only difference between Mr. Lucky and Mr. Unlucky is pure luck.  Why would we punish these two people differently?


You don’t get punished for social harm unless you are blameworthy.  It can be argued that felony murder is a strict liability crime.


99% of cases of real world felony murder do not require the felony-murder rule to convict.  Usually, you can show a depraved heart.  Usually, when a prosecutor uses the felony-murder rule, they already have intent to kill or depraved heart.


What about deterring felons from dangerous behavior during the commission of their crime?


Compare this to the rationale that the felony-murder rule will help deter the underlying felony.  This seems totally bogus, because why don’t you just up the penalty for that felony?


Let’s say, on the other hand, we can’t deter felons.  Maybe we can get the felon to at least commit their felony in a way that reduces the risk that human life will be taken in the process.  Maybe, for example, this will give the escapee an incentive to escape safely.


Dressler believes that this is the best utilitarian argument for the felony-murder rule.  He doesn’t necessarily think it’s correct.  He says it is subject to empirical analysis.


Ask yourself as you look at the next two cases whether this rationale makes sense.


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