Criminal Law Class Notes 9/29/03


In tomorrow’s class, we’ll watch a video clip of a police interrogation.  For tomorrow, we’ll read Berry (about a pit bull) and Hernandez.


In our last class, we talked about the common law “heat-of-passion” doctrine that may mitigate murder to manslaughter (in particular, voluntary manslaughter).  Today, we’ll talk about how the Model Penal Code handles this doctrine.


People v. Casassa


Following this case, a note questions whether the Model Penal Code defense of extreme emotional disturbance should be eliminated.


What did the victim do in this case to provoke the defendant?  She basically dumped him.  Would the defendant be entitled to a jury instruction on “heat-of-passion” under common law?  No, because the only provocation was the victim’s words.


At common law, words alone are never adequate provocation to partially justify or partially excuse homicide.


Does this case go to the jury?  No, because the defendant waived a jury trial.


Under New York law, what must the defendant prove to mitigate to manslaughter?  New York talks about “extreme emotional disturbance” while the Model Penal Code talks about “extreme mental or emotional disturbance”.  The latter would include not just anger or other disturbances, but also psychiatric problems and “diminished capacity”, which is not to say “insanity”.


Nobody is arguing that there is a reasonable explanation or excuse for killing the victim.  Rather, the defendant is arguing that the extreme emotional disturbance that he suffered was reasonable.  In other words, the defendant must show that he has a reasonable reason for being in the condition he was in.


Was the defendant entitled to go to the jury/factfinder on the question of whether the extreme emotional disturbance was reasonable?


Note that this was a bench trial.


If the judge finds that there was extreme emotional disturbance, then the jury would decide whether or not that disturbance was reasonable.


The Model Penal Code, unlike the common law, does not talk about “adequate provocation”.  Instead, it only talks about extreme mental or emotional disturbance.


This opens many opportunities to go to the jury that would not be permissible under common law.


The Model Penal Code has both an objective and a subjective test for the reasonableness of the extreme emotional disturbance that is put forward as a partial excuse.


The commentary to the Model Penal Code is the single most important source for gaining a greater understanding of the Code.


The word “situation” in the Model Penal Code section on manslaughter is ambiguous by design.  However, they also say that “it is clear” that you must take some things into account and exclude some other things.  You mustn’t destroy the normative message of the law by creating such oxymorons as “reasonable assassins”.  In between the extremes, however, there are many factors that a jury might or might not take into consideration.  It’s your role as an attorney to make the argument why a jury should come out a certain way.


The Model Penal Code claims that the bottom line is whether the jury can be sympathetic to a defendant in a particular case.


But is Arnold’s situation a case of moral values?  Not exactly.  It’s more that he has factual misunderstandings of the world.


We don’t want to fixate on the exam too soon.  We’ll talk a lot about the exam on December 9th at 12:30 PM.


Let’s try a sort of practice exam question.


O Pioneers! and some exam advice


Always write out the name of the case at the top of the exam.  Talk about different victims separately and identify them.


State v. Frank (Death of Emil)


This is a reminder to your reader and to yourself that you are dealing with the prosecution of Frank for Emil’s death rather than for Marie’s death.


In this case, however, let’s talk about the death of Marie.


State v. Frank (Death of Marie)


Let’s do this under common law.  The first thing to do is to state the definition of murder if you think murder is plausible.


Murder is defined at common law as “the unlawful killing of a human being by another human being with malice aforethought”.


What’s the first issue that we should always start with?


1.    Voluntary act


When we have a legal term, we must define it.


At common law, all crimes require proof that the conduct included a voluntary act.  A voluntary act is defined as “a willed muscular contraction”.


Are there any facts in this case that would support a claim by Frank that the killing did not include a voluntary act?

The text states that Frank started to act “just as a man who falls into the fire begins to act” and “the gun sprang to his shoulder”.  Frank may argue that this tends to show that he did not act voluntarily.


Note that in 99.9% of all cases, there is a voluntary act.  But there will be a few cases where you can make an argument to the contrary.


Are there always two sides to every argument?  No, not always.  A lawyer has to spot the real issues that he must be prepared to argue.  If there is an argument for the other side, you must be ready, having already thought of it yourself.  On the other hand, you can’t go making up issues out of thin air.


2.    Social Harm


The social harm is the killing of another person.


Don’t create an issue that isn’t there.  “There will be enough issues on an exam to worry about without having to create one for yourself.”  Remember the story: “Let’s say the victim is a fetus…”  No, no, no.


3.    Mens rea


Malice is defined as…


The four types of malice are…


The most logical starting point is to argue that there was intent to kill.  Do the facts support that?  “Think of being a lawyer as being a storyteller.”  You explain to the jury one “story” of how the events took place and what inferences we should draw from the facts.


It could be argued that at the time of the killing Frank intended to kill because…


On the other hand, other evidence tends to show that Frank has no such intent…


We should be able to put forward both sides of this argument.  It’s possible that the jury could buy either story.  It’s your job on an exam to tell both stories, assuming there are plausible arguments both ways.


Which form of malice does the prosecutor have the best chance of proving?


It may be argued that the act of shooting a gun at people could fall into the “depraved heart” category of malice.


Can we reduce the offense to manslaughter?  Even if we conclude that he did intend to kill, you can have manslaughter if the conduct satisfies the four elements of “heat-of-passion”.  Was Frank adequately provoked?  In Girouard, we discovered that you must actually observe adultery going on.


Don’t forget about…


4.    Actual Causation – Frank is the “but for” cause of the death of Marie.

5.    Proximate Causation – There are no intervening causes between the firing of the gun and the death of Marie.


“Separate victims should be treated separately.  Different crimes should be treated differently.  You deal with each crime separately.”

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