Criminal Law Class Notes
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.
NO
TAPE!
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
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
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
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.
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.