v. Smith Connecticut Penetration & Non Consent Typically Negligence --Statements of “No” (as described above) In the Interest of MTS New Jersey Penetration Without Affirmative Consent Typically Negligence --Freely given affirmative consent. --Silence/ambivalence not enough Statutory Rape Washington, D.C. Sex with someone Under a Certain Age Strict Liability: no mental state necessary No Resistance Necessary: People v. Barnes, Supreme Court of California, 1986 Complainant went to defendant’s to smoke marijuana. She told him she wanted to leave, he continued his advances. Reared back as if to hit her, flexed his muscles, wouldn’t open the door for her. They had sex and exchanged kisses, then she left immediately California Statute: Does not require evidence of resistance to convict of rape. Holding: That statute is valid. State needed to prove: Use of force or fear of bodily injury on the person against the will of the complainant. Open up time frame: pattern of threatening behavior prior to the act. Fear of bodily injury throughout the entire circumstance. Resistance could be considered evidence of use of force or fear, but not necessary. BUT: Physical Force is still required: used to determine lack of consent. Reasons behind shift: Scientific evidence that some victims respond by freezing, don’t resist. Especially complicated when it is acquaintance rape. No Force or Resistance: Just Non-Consent State v. Smith, Supreme Court of Connecticut, 1989 Woman meets man at bar, goes back to his house. He requests a kiss, and she said she didn’t want to do anything else. She spit on him, he told her he make it hard on her, or she could make it easy on herself.” They had sex. Statute: Does not require evidence of force or threat of force. Holding: No express force requirement means that the only act necessary is Actual awareness of non-consent is not necessary. If a reasonable person would have realized this is non-consent, it doesn’t matter what the defendant realizes. KTT: Even though this statute removes need for force, we still look to woman’s testimony for evidence: helps us to establish non-consent. Sex Without Consent In the Interest of MTS, New Jersey Supreme Court, 1992 15-year-old claims that 17-year-old living in her house raped her. Sexual conduct without affirmative consent is sufficient. Force necessary to achieve sexual intercourse is sufficient. Defense: Need evidence of physical as well as force to engage in the act.
Gross Negligence vs. Extreme Recklessness: Not a Bright Line Gross Negligence: Generally, the standard for Involuntary Manslaughter Extreme Recklessness: The standard for Second Degree Murder CONSCIOUS disregard of substantial risk + extreme indifference to human life. Distinguishing Factors: Actor’s awareness of the risk involved The act itself: is it inherently dangerous? Does the act have any social utility? Hypos: 1: child in car but leave AC on, spends time in store and baby has died and AC has cut off when she returns. Either Second Degree or Involuntary Manslaughter 2: Same situation except parent turns car off, doesn’t crack window, and baby dies. Second Degree Murder with Implied Malice. Awareness of Risk: intended to be there for only 5 minutes, had AC on (knew it was super hot). IV. First Degree Premeditated Murder Intent to Kill + Premeditation AND Deliberation Rules: Distinguished from second degree murder in two ways: Evidence indicative of planning or preparation (premeditation), and Some jurisdictions say seconds are enough (Watson) Deliberation (thinking the act, actor turns over the act in her mind and makes the deliberate decision to kill). Some jurisdictions use cold blood (1st degree) v. hot blood (2nd degree) distinction (Austin) Second Degree Murder: intentional, but impulsive/unplanned; First Degree: planning, formed purpose, decision and design to kill. Act: Killing Mens Rea: Not only intent to kill (purpose or knowing), but also both premeditation and deliberation. State MUST prove Both Premeditation and Deliberation Separately Some states identify specific behavior that can serve as a proxy for premeditation and deliberation: in wait Torture Explosives Poison In these jurisdictions, state must prove malice (deliberate intention to kill), but the enumerated behaviors, once proven, serve as a proxy for mens rea. Evidence to Establish: Premeditation: Express statements Motive or reason that will allow the killer to benefit from the death. Manner of killing: poisoning or bomb take time to assemble and make threat or evidence of hostility made to others
Liable for both Pinkerton and accomplice for bank 1 robbery. Brent: Liable under Pinkerton but not accomplice for David’s theft. Courtney: Liable under Pinkerton but not accomplice for David’s theft. Conspiracy Provides Short-Cuts and Benefits to Prosecutors: Trials: makes it easier to get evidence out. Allows prosecution to shore up weaker bits of evidence against certain individuals in the conspiracy. Exception to Hearsay Prohibition: Statements made by co-conspirators in furtherance of conspiracy are admissible in trials against other co-conspirators. Statute of Limitations: Begins after the LAST overt act of the conspiracy. Types of Conspiracies: Single: Government will favor one large single conspiracy if it stretches the nets of Pinkerton liability and increases high pressure advantages of a joint Multiple: If government wants to rack up a large number of conspiracy accounts against the hub, favor multiple prosecutions. Establishing Knowledge of a Conspiracy: Rimless Wheel: Separate conspiracies between the hub and each actor individually. Single Conspiracy: Requires a connection between all the actors and the hub. Prove by showing that each seller KNEW OR SHOULD KNOWN that there was a larger conspiracy. Doesn’t require actual knowledge that each seller knew the other seller, but each seller has to know or should have known that there were other sellers. Prove by: Interdependency Statements Observations Repeated use of the same conspirators would draw suspicion implies there are more conspirators. Proceeds of a single transaction seem insufficient to justify risk. Interdependence: links in the chain. Today, with unilateral conspiracies, a conspirator can be found guilty even if co-conspirators are not found guilty. Defenses There are two types of defenses: Justification for the Act Excuse These are both defenses that are used after the state has proven the elements of the offense. Distinct from defenses like mistaken identification or alibi, where the defendant is actually refuting the state’s case. Justification: Actor commits a crime that advances some social interest. Self defense or defense of others. Assumes some social utility, which makes the conduct justified.