Criminal Law Class Notes 12/4/03


We will finish our assignments on schedule, so Monday will officially end the materials.  Tuesday will be exclusively to discuss the exam.


Bailey v. Commonwealth


Bailey is charged with involuntary manslaughter, which requires the mens rea of criminal negligence.  Bailey tries to argue his way out of criminal liability.  What’s his argument that puts the case in this section of the book?  Bailey argues that he can’t be the principal in the first degree because he didn’t kill ‘em.  The government concedes that Bailey is not a principal in the second degree or an accessory before the fact, so there’s apparently nothing left.


Why is Bailey not a principal in the second degree?  He wasn’t at the scene of the crime.  What about accessory before the fact?  He didn’t do any preplanning with the officers.  The whole idea of derivative liability is a sense of agency.  The reason why an accomplice derives liability from the perpetrator is that because of their relationship, you can say “Your act is my act.  Your killing is my killing.  When you commit a crime, I’ll have to take responsibility too.”


How can Bailey be a principal in the first degree?  They use the “innocent instrumentality” doctrine.  They say that Bailey isn’t an accomplice, but rather, he is the actual perpetrator.  You can be the principal in the first degree even if you don’t pull the trigger if you use an innocent dupe.  The police officers are sort of like a pit bull that you sic on someone.


Some would argue that a gun is an innocent instrumentality.  The police officers had no mens rea.


Or, say you point a gun at someone and you tell them that you will kill them unless they rob a bank.  That person will be excused because of duress.  If the coercer coerced somebody, we let the coerced person off, and the coercer gets convicted for the crime.


How would this case be decided under the Model Penal Code?  § 2.06(2)(a) gets us there.  There are two ways we’ve looked at where you can be held responsible for the conduct of another: you can be an accomplice, or you can cause an innocent person to carry out your evil deeds for you.


(2) A person is legally accountable for the conduct of another person when:

(a) acting with the kind of culpability that is sufficient for the commission of the offense, he causes an innocent or irresponsible person to engage in such conduct.


Innocent means someone who would lack the mens rea for the crime or would be excused from the crime.  Irresponsible more or less means insane.


What if Murdock had killed one of the officers before getting killed by the police?  Would Bailey be guilty of criminal homicide of the officer?  Say we’re the prosecutors.  We know we want to get Bailey.


Can we make Murdock an innocent instrumentality?  What will the defense say?  We might say that Murdock isn’t innocent after all.  Would we have been able to punish Murdock for killing the police officer if he had survived?


Could we make a claim for self-defense for Murdock?  Does Murdock have a valid self-defense claim?  It seems that Murdock put himself into the situation.  He could have stayed in the house.  Maybe we can make Murdock an aggressor.  The common law and the Model Penal Code say that if you don’t have an obligation to be in a place where you’re at risk, you can’t claim self-defense.


You can make a strong case that Murdock is protected in his house but he’s not covered by self-defense outside of his house.  He picked up a gun and when outside to deal with the alleged threat.


Let’s assume, arguendo, that we could make a justifiable claim that Murdock was allowed to come outside.  What’s another obstacle to Murdock winning his self-defense claim?  We would need to show that Murdock could reasonably conclude that he is about to be subject to an unlawful deadly threat.  We will give him his defense if his belief is reasonable.  However, if it’s an unreasonable belief, then you lose the defense.  As a prosecutor, we would think that Murdock is not only the aggressor, but also that his belief is unreasonable.  If we could convict Murdock of a crime, we can’t use the innocent instrumentality argument.


Are we prepared to say that Bailey was Murdock’s accomplice?  No way!  They didn’t have a common goal.  Why can’t Bailey be the accessory before the fact to Murdock?  The two people must have common motives and a common design.  Bailey and Murdock are enemies of each other.  They have antagonistic purposes.


We can’t get Bailey as an accomplice and we can’t get them through the innocent instrumentality doctrine.  But we think that Bailey’s own conduct was the cause of the harm.  § 2.06(1) says that you can be held responsible for a crime based on your own conduct.


(1) A person is guilty of an offense if it is committed by his own conduct or by the conduct of another person for which he is legally accountable, or both.


There might be a proximate cause issue here.  Don’t do proximate causation analysis in criminal law the way you did it in Torts.


You gotta come up with something.  You make do with what you’ve got.


State v. Hayes


Why is it that Hill is not guilty of the burglary and larceny charges for which the government has charged Hayes?  Hill has no mens rea.  He had no intent to commit either crime.  He was just trying to trap Hayes.


But why does Hayes get off?  There’s no liability to derive from!  Hill didn’t commit a crime.


We can’t get Hayes on the innocent instrumentality doctrine, because Hill manipulated Hayes rather than vice versa.


So if you’re Hill and you want Hayes convicted, you help Hayes go through the window.


What could we get Hayes for under the Model Penal Code given these events?  We could get him for solicitation.  But there’s also something that we can get him for.  We could convict him of attempted burglary…really, attempting to aid and abet a burglary.


We can also get him for larceny at common law or under the Model Penal Code.  These days, with penal codes that get thicker and thicker and thicker, there’s usually a way to convict a person of a crime if you are creative enough.


United States v. Lopez


This was a TV movie!


“Intolerable prison condition” claims: a person escapes prison and tries to avoid conviction for the break based on the conditions in the prison.  It makes sense if the prison is on fire to try to escape because it’s necessity.


There was a case involving a serious diabetic who wasn’t getting his insulin.  He escapes because he feels that he’ll go into diabetic shock if he doesn’t get his insulin.  He was prosecuted for escape.  There was a prison where the heat went off and some prisoners escaped claiming cold as an intolerable prison condition.


There are a lot of these cases.  The defendant, even if they win their case, will get sent back to prison to serve out the term they were already serving.


Michigan calls this claim duress.


Duress is an excuse, necessity is a justification.  This has some relevance to Lopez.  Necessity is balancing evils from a societal perspective.  If we’re going to balance those evils, we would take into account whether Lopez will be dangerous on the outside.  Is she a serial killer, or is she a car thief?  If she’s a serial killer, we’d rather use duress rather than necessity.


But we’re not interested in her, we’re interested in McIntosh.  It definitely matters to him whether Lopez’s defense is characterized by justification or excuse.  Justifications are “universal” and excuses are “personal”.  If we believe that Lopez’s leaving the prison was justified, then McIntosh becomes the accomplice in a justified act, that is, something we think is good not bad.


But if what Lopez did was wrong though excusable, then we say something bad has happened.  We’ll excuse her because her life was at risk, but we won’t excuse him because his life wasn’t at risk.  We will say that something bad has happened that someone must pay for.


Or suppose Lopez escapes but is not liable because she’s insane.  Is there any reason McIntosh should be able to benefit from her insanity?  No way!


Dressler says that this case is great because this judge realizes that this is the issue.


In the Lopez case, McIntosh would be convicted as an accomplice of a crime that occurred but is “invisible” to us because we’re letting her off on the grounds of duress.  She intended to escape.  We’re just letting her off because of her excuse.  McIntosh is not using Lopez as an instrumentality.


A statute might be drafted in a way that only a certain kind of person can be convicted of the crime, for example, an inmate.  Under that theory, only an inmate can be a principal in the first degree.  Other jurisdictions just say we don’t care.


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