Criminal Law Class Notes 11/7/03


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What should Anderson have been convicted of?


What’s the policy argument for reducing Anderson’s offense to manslaughter.


Some intentional killings, if they are the result of provocation, reduce murder to manslaughter.  But this isn’t a heat of passion case.


How would we characterize the emotion of Anderson?  He was in fear.


Adequate provocation makes someone angry which makes them intentionally kill.  Why does this reduce the level of guilt of an actor in the eyes of the law?  What explains this?  It’s a lot harder to control yourself when you’re very angry.  When we’ve very angry, our self-control is undermined.  But we don’t think one’s self-control is fully undermined by anger.  When you’re angry, you could do a lot of things other than kill.  You could vent your anger in some other way.


Why couldn’t you have fear in place of anger in “heat of passion”?  Fear is an emotion that is like anger in that it makes self-control more difficult.  We may be able to empathize more with fear than with anger.


Anderson’s point is that if you give a defense for killings caused by adequate provocation leading to anger leading to the intent to kill, then it follows that you should give a similar defense with fear in the place of anger.  Dressler seems to argue for just such a partial defense.


The Model Penal Code would actually agree with Anderson, although they wouldn’t use duress to get there and they wouldn’t use the “heat of passion” excuse.  You would go straight to manslaughter based on the fact that the homicide was committed under “extreme emotional distress”.


As to the hypo in Anderson: the driver who has a gun to his head and is told to run red lights and hits and kills someone is said to have an “abandoned and malignant heart”.  If a gun is put to your head, do you really have an “abandoned and malignant heart”?  What defense would you claim?  You could claim necessity, maybe.  It’s the imminent death of two people versus speeding, which is risky but doesn’t lead to the certain death of anybody.


In the opinion, everyone treated duress as a justification.


The Model Penal Code necessity defense allows the intentional killing of an innocent person to save a greater number of lives.  In a Model Penal Code jurisdiction, you could have a complete defense.


But would the person in the hypo act with “extreme indifference to the value of human life”?  Not really, you would be manifesting care about the value of human life.  Depraved heart is basically extreme recklessness.  But what’s recklessness?  You must be aware of a substantial and unjustifiable risk.  Isn’t the risk in the hypo justifiable?  If you use the Hand formula, you’re making the right decision in speeding.  Under no circumstances would you be found recklessness or negligent.  You accidentally killed someone.


So then the defendant is happy!  You have a failure of proof pseudo-defense.  The burden goes back on the prosecutor!  It should be easy for the defendant to be acquitted.  The defendant didn’t have any mens rea!


This case has lots of good stuff in it.  Dressler says both the majority and the dissent are wrong.  Dressler says that the majority said that duress is a justification, which he says is wrong.  The dissent comes up with a hypothetical that’s all wrong on its own according to Dressler.


Ted Bundy


Imagine that we’re defense attorneys questioning our own client.  We’ve decided that we want to go with an insanity defense.


He’s saying something about “forces of nature”.  He’s saying something about God.




Some tests!


1.     M’Naghten test

2.     M’Naghten + “irresistible impulse” or control test

3.     Durham (product test)

4.     Model Penal Code test


There must be some kind of mental illness in order for the insanity defense to kick in.


A person can be mentally ill without being insane.  But you can’t be insane without a mental illness.


Was Bundy mentally ill?  Was Bundy evil?


For the sake of discussion, assume Bundy is mentally ill.  Which insanity test is the most favorable if we’re the defense attorney?


Was Bundy insane?  How about under M’Naghten?  You’re insane if you didn’t know the nature and quality of your actions, or if you didn’t know right from wrong when you did what you did.  Keep in mind what “nature and quality” means.  For example, a five-year-old doesn’t know what killing means exactly.  They might not really understand death.  They get the infancy defense.  But maybe some adults are kind of “adult infants”.


The traditional hypo for the first prong of M’Naghten is that you’re insane if you think you’re squeezing an orange when you’re really squeezing someone’s neck.


Did Bundy know right from wrong?  Did he know legal right from wrong or moral right from wrong?


Bundy knew that what he was doing was a crime.  Bundy believes that he can’t be morally wrong.  Does Bundy believe that he did nothing wrong, or does he believe that society would consider him okay?


Dressler makes a legalistic point: to the extent that a M’Naghten jurisdiction uses the moral right from wrong test, the defendant’s belief about whether he did right or wrong is not the standard.  The question for the psychiatrists and the jury is: Did Bundy know that society thought what he did was morally wrong?  If the answer is yes, then Bundy is not insane under that prong of the test.


If you make the free will choice to act according to your own morality, you must accept the consequences.


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