Criminal Law Class Notes 9/30/03


There are four definitions of malice at common law, and we have talked about the first definition completely.  Now we will proceed to the other three definitions.


We will consider cases where the defendant does not intend to kill, but may still be found guilty of murder.  The defendant takes an unjustified risk.


If we have a continuum of risk-taking, there will be some risk-taking that is entirely innocent at one end.  Further down the line, there is risk-taking that might constitute negligence at a tort level, followed by risk-taking that might constitute negligence in criminal law.  Finally, at the other end of the spectrum we’ll have recklessness, and in some jurisdictions even extreme recklessness.


These cases talk about express and implied malice.  This can be found in, for example, § 188 of the California Penal Code.


At common law, when the court talks about express malice it is talking about intent to kill.  Implied malice suggests any of the other three formulations of malice.




Berry v. Superior Court


Berry was charged with second degree murder as well as cultivation of marijuana and keeping of a fighting dog.  Berry had a pit bull which was trained and kept as a fighting dog.  It killed a neighborhood child.


No one claims that there was intent to kill.


What is the prosecutor’s theory in claiming that this is second degree murder?  What does the statute say?  How do we know that this is second degree murder?  The statute lists everything that might be first degree murder, and what happened doesn’t fit.


Based on the evidence given in this case, did Berry act with an “abandoned and malignant heart”?  The defendant knew that there were children in the neighborhood.


Consider the hypothetical where a surgeon does a very high-risk surgery to try to save a patient and the patient dies.  Is this depraved heart murder?  Why not?  What is different between this case and Berry’s dog?  The reason for Berry’s risk is different than the reason for the doctor’s risk.


Recall the Learned Hand formula: if B > pL, it’s not efficient to expend the burden (B) to prevent a loss (L) with a certain probability (p).


In a sense, this formula answers the question of whether a risk was justifiable.  A risk is unjustifiable when a reasonable person would not take that risk.


In our surgeon case, the probability of harm if the surgery is carried out is very high and the gravity of harm is very high.  However, the alternative is to let the patient die.  This makes this risk justifiable.  This would not constitute any kind of wrongdoing.


In the Berry case, the reason that Berry is taking the risk that someone will die from the pit bull just doesn’t stack up to the doctor’s reason for taking a high risk.


So, did Berry’s conduct create a high probability or very high probability of death?  What were the odds that the tethered pit bull would maul someone to death?


What about time-framing?  Are we talking about the odds that a kid will get mauled on a particular day, or the odds of something happening in a week, or a month, or ever?[1]


Dressler says that what matters is the reason for the risk that the defendant has taken.  If the reason for taking the risk is virtually socially useless (or not socially acceptable), then virtually any risk is unjustifiable.


In the Model Penal Code, both the definitions of both recklessness and negligence include a “substantial and unjustifiable risk”.


If you take this literally, then you could get into a strange situation: if a tiny risk is unjustifiable but not substantial, you might not be found culpable.  But another way to view this is to look at it as a “substantially unjustifiable risk”.


If a risk is “barely” unjustifiable, then we can say that a person is negligent in a civil context.  However, if a risk is grossly unreasonable, the person may be criminally negligent or even reckless.


If the value or reason for a risk is nearly zero, then even a tiny risk may be grossly negligent.


The line between recklessness and negligence in the Model Penal Code is awareness of the “substantial and unjustifiable risk”.


In California, for example, in order to be guilty of “depraved heart” murder, you must be aware of the “substantial and unjustifiable risk”.


Some courts may use the words “negligence” and “recklessness” interchangeably.  This is bad.  Most courts today use these terms the way the Model Penal Code does.


A reckless killing, at common law, is considered murder.  Extreme recklessness, or “extreme indifference to human life”, will make for an easy case for murder at common law or under the Model Penal Code.


Let’s say that we have a reckless killing and a criminally negligent killing.  Under the California Penal Code, of what crime will the defendant be guilty if he is criminally negligent?  Manslaughter does not include malice, and in turn, the involuntary branch does not include “heat of passion” and says that the act is committed “without due caution and circumspection”.[2]


If you do a lawful act that might cause death, but do it in an unlawful (negligent) manner, you may be found guilty of involuntary manslaughter.


State v. Hernandez


What is at issue?  It’s some of the evidence introduced at trial.  The defendant argues that the drinking slogans found in his car speak only to his character rather than his awareness of risk.  His awareness of risk was not at issue because the prosecution charged him with a crime that does not require such awareness.


Evidence should be admissible if it is relevant to the case.  Because this is a case of manslaughter, this evidence is not relevant.


So if you’re a prosecutor, the cynical lesson to take home is to charge the defendant with the highest possible crime that you can plausibly prove.  If the prosecutor had charged the higher crime, it would have become plausible to admit the evidence of the bumper stickers.  That stinks.


The defendant gets off because the prosecutor was too lenient!


Let’s say that the prosecutor had charged murder and had tried to introduce the evidence of the bumper stickers.  What argument would the defendant attorney make to keep the drinking slogans from being introduced into evidence?  You mustn’t admit evidence if it’s relevant to the case, but you also mustn’t admit evidence that is more prejudicial than it is relevant (even if, in fact, it is relevant).


For example, in the O.J. Simpson case, it was argued that evidence that he beat his wife should not be admitted.  The argument would be that the prejudice that would be created would outweigh the relevance of the evidence to proving the offense.


The argument is that we don’t need the bumper stickers to prove recklessness because it is reasonable to believe that everybody knows the effects of drinking and driving.


Didn’t Hernandez have a “don’t give a damn” attitude?  Isn’t this a matter of character rather than conduct?  However, the reality is that “depraved heart” murder moves us from judging conduct to judging character.


Now let’s look at the Model Penal Code again.  We have seen that at common law, when someone is found to be reckless, they possess malice and thus they have committed murder.  If they are criminally negligent, they have committed involuntary manslaughter.  If they don’t meet criminal negligent, they will not be criminally liable.


Under the Model Penal Code, if someone commits homicide recklessly, it could be either murder or manslaughter.  Manslaughter is a reckless killing, while murder can be a “reckless plus” killing.  Any smart lawyer in a Model Penal Code jurisdiction will charge murder and the defendant will try to bring it down to a lesser level such as recklessness.


If the person killed negligently, they can be charged with negligent homicide, which isn’t even in common law.  It’s new.


Say the Hernandez case had been prosecuted in a Model Penal Code jurisdiction.  Let’s say the prosecutor charged negligent homicide.  What is the argument for the prosecutor to let the bumper stickers in as evidence?  The Model Penal Code says that when negligence is sufficient to establish an element of an offense, that element is also satisfied by acting purposely, knowingly, or recklessly.


The Model Penal Code has a continuum of culpability.  The Model Penal Code says that if a person is charged with negligence and the prosecutor is able to prove purposefulness, knowledge, or recklessness, it does not preclude the prosecutor from convicting for negligence.


This seems quite logical.  Let’s say a person is charged with negligent homicide.  The defendant could go on the witness stand and make an argument that he intended to kill.  Then, absent this rule from the Model Penal Code, we might be led to believe that we must acquit the defendant of negligent homicide.


The Model Penal Code allows a prosecutor to win a lower charge even if a case proves a greater charge.


Back to Class Notes

[1] At trial, couldn’t Berry argue that he knew so little about children that he didn’t have an “actual appreciation” of the risk that a child would get hurt?  I guess the prosecution would counter that he warned parents about the dog.

[2] This is language straight outta Blackstone.