Jury Nullification
Define Jury Nullification in your own words.
What is: The jury's ability to decide opposite to the truth and nullify the law; The jury knows the law was violated but decides on a not guilty verdict
Defendant resides in a state that has adopted the Model Penal Code. He has been charged with indecent exposure based on the following facts: Defendant went to a state fair. At one of the demonstrations there, a hypnotist got audience members to come on stage to be hypnotized. Defendant was curious because he had not been hypnotized before. Defendant agreed to participate in the demonstration. While under hypnosis, Defendant undressed upon the command of the hypnotist. Defense counsel wonders whether Defendant has a plausible defense to the charge of knowingly exposing himself to the public. Which of the following best describes the prevailing law?:
A: Defendant’s voluntary act was agreeing to be hypnotized and he should have known of the risk that he would commit such an act. He has no defense.
B: Defendant’s voluntary act was agreeing to be hypnotized, but he lacked the mens rea of the offense.
C: The Model Penal Code drafters concluded that, because a person under hypnosis will not do anything that is repugnant to him, a person cannot avoid liability by claiming that he acted under hypnosis. His better claim, therefore, is that he did not know that he was exposing himself.
D: Under the Model Penal Code, a person does not commit a voluntary act when she acts under hypnosis. Defendant, therefore, may be able to prevail on a showing that he did not act voluntarily.
D. Under the Model Penal Code, a person does not commit a voluntary act when she acts under hypnosis. Defendant, therefore, may be able to prevail on a showing that he did not act voluntarily.
Correct. Section 2.01 uses as an example of a person who lacks the actus reus of an offense a person who acts under hypnosis.
6. Which of the following best describes the mental state of recklessness?
A) The defendant is aware of the risk of harm but disregards it
B) The defendant desires a specific result
C) The defendant should have known the risk but did not care
D) The defendant acts out of a sense of duty
Answer: A) The defendant is aware of the risk of harm but disregards it.
Explanation: Recklessness involves awareness of a substantial risk and consciously disregarding it. The defendant does not intend the harm but is aware that it is likely to occur.
Concerned about reports of sexual abuse of children, the legislature in the state where Defendant resides has passed a law making the rape of a child less than eight years of age a capital offense. During the hearings on the law, legislators heard extensive testimony about the consequences of such crimes, including the high rate of suicide of victims of such abuse, and the need to deter such conduct through severe punishment. Defendant was convicted of sexually abusing a six year old child; the jury sentenced him to death after a hearing at the penalty phase of the trial. On appeal from his conviction, Defendant has challenged the constitutionality of the imposition of the death penalty. Which of the following best describes how the appellate court should rule on Defendant’s challenge to the death penalty?
A Given the social harm caused by Defendant’s conduct, the death penalty is an appropriate punishment.
B The court should grant Defendant’s challenge on Eighth Amendment grounds that the sentence is disproportionate to the harm caused.
C The court should grant Defendant’s challenge on Due Process grounds.
D The Supreme Court has held that the Constitution does not dictate any particular penological policy. As a result, because this law is designed to deter a terrible crime, the death penalty is constitutional.
A Given the social harm caused by Defendant’s conduct, the death penalty is an appropriate punishment.
Incorrect. The Supreme Court has limited the states’ ability to impose the death penalty for crimes where no death occurs.
B The court should grant Defendant’s challenge on Eighth Amendment grounds that the sentence is disproportionate to the harm caused.
Correct. The facts are sufficiently similar to those in Kennedy v. Louisiana, where the Court held that, absent a death, the death penalty was disproportionate and thus, violated the Eighth Amendment.
C The court should grant Defendant’s challenge on Due Process grounds.
Incorrect. It is technically correct in that the Court has made the Eighth Amendment applicable to the states through the Fourteenth Amendment Due Process Clause; but there is another answer that more specifically identifies the correct analysis.
D The Supreme Court has held that the Constitution does not dictate any particular penological policy. As a result, because this law is designed to deter a terrible crime, the death penalty is constitutional.
Incorrect. While the answer is true in cases involving terms of imprisonment, the answer is not true in death penalty cases. In death penalty cases, the Court’s view is best viewed as retributivist.
True or False. In general, the criminal law requires that a defendant’s criminal act be “voluntary” before defendant can be subject to criminal consequences.
A. True.
Correct. See Martin v. State, 17 So.2d 427 (Ala. App. 1944); see also Model Penal Code § 2.01: “The law cannot hope to deter involuntary movement or to stimulate action that cannot physically be performed; the sense of personal security would be undermined in a society where such movement or inactivity could lead to formal social condemnation of the sort that a conviction necessarily entails.”
Can a defense attorney stand up and say to the jury, 'even if persuaded that my client is guilty beyond reasonable doubt, you have the right to acquit this man if you want.'
Yes, however, it cannot be presented as an instruction of the Court, aka jury instruction.
After living together for several months, Defendant and Victor were engaged to be married. Two days before the wedding date, Defendant told Victor that she could not go through with the ceremony. In a rage, he attacked her, beating her badly. When he grabbed a kitchen knife and started to approach Defendant again, she shot him in the abdomen. Stunned, she got up, saw that he was still alive but unconscious, and left the apartment. Victor died several hours later without regaining consciousness. On the assumption that prompt medical attention would have saved Victor’s life, the prosecutor has charged Defendant with negligent homicide for failing to render aid to Victor. Defendant has moved to dismiss the charges on the grounds that she had no duty to render aid. Discuss how the court should rule on that motion.
Purpose of the Question
My goal in posing this question is fairly narrow. Omission liability in the United States is quite rare and arises in relatively few cases. In most, the issues are not challenging (e.g., a parent has a duty to get adequate care for his child). The purpose of this question is to get students to explore one area where the law is uncertain and presents interesting analytical questions.
Sample Answer
Negligent Homicide
A criminally negligent homicide is an involuntary manslaughter that involves a gross deviation from the standard of care that a reasonable person would exercise in the same situation. Because Defendant had just been beaten by Victor and he was approaching her with a knife, her act of shooting him in the abdomen was likely justified as she was acting in self-defense, exerting a force proportional to the one directed at her and she was not the first aggressor. The prosecutor’s theory of actus reus is not based on the gunshot, but on omission because Defendant failed to render aid to Victor.
Omission: Duty to Aid
The general rule is that there is no criminal law duty to act to prevent harm to another. An omission may serve as a voluntary act only when a common law (or statutory) duty to act exists and the defendant was physically capable of performing the act. A duty to act may exist if the defendant has a special status relationship with the person in peril, such as a spousal relationship, but here the couple was only engaged to be married. A duty may arise from a contractual relationship as well, but the facts do not indicate any oral or written contract between the parties.
More fitting, when a defendant creates the risk that puts the other person in harm’s way, usually negligently, she may be held criminally liable for failing to render aid. In some jurisdictions, a duty arises from non-culpable risk creation, such as self-defense. Defendant was probably capable of summoning help, even though she had been badly beaten by Victor, because she was able to leave the apartment. Defendant saw that Victor was still alive, and knowing she had shot him at close range in the chest, she probably possessed the criminally negligent state of mind that involves a gross deviation from the reasonable standard of care.
Therefore, assuming a doctor can testify that prompt medical attention would have saved Victor’s life, Defendant’s omission may serve as sufficient actus reus for negligent homicide. The court can deny Defendant’s motion to dismiss.
Analysis
This answer is quite good, if a bit over-inclusive. The call of the question directs the writer to discuss whether Defendant had a duty to aid the victim. Some of the discussion does not address that precise question.
At the same time, the initial discussion that focuses on self-defense is important to explain why Defendant was not at fault in bringing about the need for a rescue. The answer also explains some of the general principles of law relating to the duty to act: In U.S. law, the duty to aid another person is narrow. As the answer indicates, one may have a duty to act based on certain relationships (spouses, for example) or based on the existence of a contract. As the student says, those are inapplicable.
The question forces students to deal with a rule that has divided courts around the country: if a person puts another person in a position of danger, does that person have a duty to aid the other person? Some courts have held that the duty arises only if the defendant was at fault in putting the person in a position of danger. Here, that would not be the case because Defendant was not at fault when she shot her aggressor. She would have a duty to aid the victim in a jurisdiction that defines the duty broadly and requires the person to come to the other’s aid without regards to whether the person was at fault in putting the other person in a position where that person needs aid.
Defendant resides in a state that has not adopted the Model Penal Code. Defendant is a widely acclaimed antiques appraiser. A person approached her about buying an antique set of vases, valued at thousands of dollars. The person who approached her was willing to accept a few hundred dollars for the vases. Excited about getting such a good buy, she ignored the fact that the person was offering the vases at an unrealistically low price. Had she thought about it, she would have realized that the vases must have been stolen. After she purchased them, she discovered that they were stolen when the police arrested her for the “knowing receipt of stolen property.” Defense counsel wonders whether Defendant's lack of awareness that the goods were stolen is relevant at trial. Which of the following offers the best advice to defense counsel?
A. Defendant should have known that the vases were stolen. Therefore, she is guilty of the offense.
B. Defendant's lack of awareness of the value of the vases, if believed by the jury, should negate the mens rea of the offense.
C. Defendant was willfully blind about the value of vases. As a result, the jury should find defendant guilty of the offense.
D. Defendant should be found guilty of the offense because she knowingly received the vases and because the vases were stolen. That is all that the statute requires.
A Defendant should have known that the vases were stolen. Therefore, she is guilty of the offense.
Incorrect. The mens rea of the offense is “knowledge,” not “negligence.” As a result, the prosecution cannot prevail if it merely proves that Defendant should have known that the vases were stolen.
B Defendant's lack of awareness of the value of the vases, if believed by the jury, should negate the mens rea of the offense.
Correct. The mens rea of the offense is “knowingly,” and it modifies not only the receipt of the vases, but also the element that they were stolen.
C Defendant was willfully blind about the value of vases. As a result, the jury should find defendant guilty of the offense.
Incorrect. Although the answer is plausible, the facts do not suggest that she took steps to avoid finding the truth as typically required to show willful blindness. In addition, even if a defendant takes step to avoid to the truth, she still does not act with knowledge if she does not know of the existence of the material element, here that the vases were stolen.
D Defendant should be found guilty of the offense because she knowingly received the vases and because the vases were stolen. That is all that the statute requires.
Incorrect. This answer suggests that the mens rea term modifies only the next word in the statute. That is not how a court would interpret this offense: typically, the mens rea term should modify all material elements of the offense.
Defendant has been sentenced under a recidivist statute based on his criminal record. His record consists of four prior convictions. His earliest conviction was for burglary; his second conviction was for forgery; his third conviction was for grand theft; and his fourth conviction was for the sale of marijuana. His current conviction was for forgery. Most of his crimes were committed under the influence of alcohol. Under the state statute where he was convicted, he was sentenced to a term of life in prison. He has filed a motion in which he has challenged his sentence as grossly disproportionate in violation of the Eighth Amendment to the Constitution. Which of the following best describes how the court should rule on his motion?
A. The court should deny Defendant’s motion. The Supreme Court has held that the Eighth Amendment does not allow challenges to terms of imprisonment.
B. The court should deny Defendant’s motion as long as Defendant is parole eligible within a reasonable amount of time.
C. The court should grant Defendant’s motion. On similar facts, the Supreme Court ruled that the defendant’s sentence was grossly disproportionate.
D. The court should grant Defendant’s motion because the Supreme Court has ruled that recidivist statutes violate double jeopardy. As in this case, the new sentence punishes Defendant again for crimes for which he has already been punished.
A The court should deny Defendant’s motion. The Supreme Court has held that the Eighth Amendment does not allow challenges to terms of imprisonment.
Incorrect. The position described is the position taken by only three justices on the Court and has not commanded a majority.
B The court should deny Defendant’s motion as long as Defendant is parole eligible within a reasonable amount of time.
Correct. The facts are similar to two Supreme Court cases (Rummel v. Estelle and Solem v. Helm): the critical difference in the two cases was that Helm was subject to a true life sentence. Here, the facts do not indicate whether Defendant has received a true life sentence. If not, it would seem to come within Rummel and the sentence would not violate the Eighth Amendment.
C The court should grant Defendant’s motion. On similar facts, the Supreme Court ruled that the defendant’s sentence was grossly disproportionate.
Incorrect. The facts are similar to two Supreme Court cases (Rummel v. Estelle and Solem v. Helm): the critical difference in the two cases was that Helm was subject to a true life sentence, Rummel was not. Here, the facts do not indicate whether Defendant has received a true life sentence. If not, it would seem to come within Rummel and the sentence would not violate the Eighth Amendment.
D The court should grant Defendant’s motion because the Supreme Court has ruled that recidivist statutes violate double jeopardy. As in this case, the new sentence punishes Defendant again for crimes for which he has already been punished.
Incorrect. The Supreme Court has not so held.
Which of the following “acts” are not considered to be “voluntary?”
A. A reflex or convulsion.
B. A bodily movement during unconsciousness or sleep.
C. Conduct during hypnosis or resulting from hypnotic suggestion.
D. A bodily movement that is not otherwise a product of the effort or determination of the actor, either conscious or habitual.
E. All of the above.
F. None of the above.
A. A reflex or convulsion.
Incorrect.
B. A bodily movement during unconsciousness or sleep.
Incorrect.
C. Conduct during hypnosis or resulting from hypnotic suggestion.
Incorrect.
D. A bodily movement that is not otherwise a product of the effort or determination of the actor, either conscious or habitual.
Incorrect.
E. All of the above.
Incorrect.
F. None of the above.
Correct. None of the above. The Model Penal code provides that following are not considered to be voluntary acts within the meaning of this Section: (a) a reflex or convulsion; (b) a bodily movement during unconsciousness or sleep; (c) conduct during hypnosis or resulting from hypnotic suggestion; (d) a bodily movement that otherwise is not a product of the effort or determination of the actor, either conscious or habitual.
What is the rationale behind jury nullification?
The double jeopardy doctrine requires that someone cannot be retried and jury has the power to acquit, so once done the matter cannot be reheard.
There's a difference between power and authority. Legal authority of the jury includes: to follow the law, and if find guilty beyond reasonable doubt, jury must convict. If there is a reasonable doubt, they must acquit. Jury's are never instructed on whether someone is guilty or not guilty. Juries have the power and authority to nullify BUT they do NOT have a legal right to require the Court to inform them of that legal right.
Defendant resides in a state that has not adopted the Model Penal Code. She has been charged with possession of heroin based on the following facts: Defendant and Buddy were visiting Pal in jail. Pal had asked Buddy to sneak some heroin into the jail. Buddy knew that Defendant always baked a cake for Pal before they visited him. Buddy slipped a packet of heroin between two layers of the cake. Police arrested Defendant when an officer discovered the heroin in the cake that she was holding on her way into the jail. At trial, Defendant hopes to introduce her lack of awareness of the heroin as a defense. Which of the following best describes the law governing this issue?
A. Her lack of knowledge negates the actus reus of possession.
B. Her lack of knowledge is relevant only if the offense of possession of heroin includes a mens rea. Her lack of knowledge cannot negate the actus reus because she possessed the heroin.
C. Her lack of knowledge is irrelevant. Because of concerns that offenders could circumvent drug laws, such laws are strict liability offenses.
D. Her voluntary act was transporting the cake. As a result, her lack of knowledge of the heroin is irrelevant.
A Her lack of knowledge negates the actus reus of possession.
Correct. Similar to §2.01(1) of the MPC, most courts require that possession be construed as requiring that the offender be aware that she possesses the thing she is charged with possessing. Thus, even if the offense includes no mens rea, the state must still prove the actus reus of possession.
B Her lack of knowledge is relevant only if the offense of possession of heroin includes a mens rea. Her lack of knowledge cannot negate the actus reus because she possessed the heroin.
Incorrect. Defendant would, of course, be able to negate the mens rea if the offense includes a mens rea. But similar to §2.01(1) of the MPC, most courts define the actus reus of possession as requiring that the offender be aware that she possesses the thing she is charged with possessing.
C Her lack of knowledge is irrelevant. Because of concerns that offenders could circumvent drug laws, such laws are strict liability offenses.
Incorrect. While some states do make drug possession offenses strict liability offenses, even those states require that the prosecutor prove the actus reus.
D Her voluntary act was transporting the cake. As a result, her lack of knowledge of the heroin is irrelevant.
Incorrect. The answer is a non-sequitur. The question is whether she knew that she possessed the thing that she is charged with possessing, the heroin, not the cake.
Defendant resides in a state that has not adopted the Model Penal Code. He has been charged with bigamy, defined as the act of knowingly entering into a marriage with one person while still married to another person. It is punishable by up to one year in prison. The following are the facts that gave rise to the charges: Defendant went to an attorney to secure a divorce. The attorney filed for a divorce on Defendant’s behalf in another state because the divorce laws in the state where Defendant resides are restrictive. Defendant’s lawyer secured the divorce in the other state and told Defendant that he was now legally divorced and able to remarry. Unfortunately, the lawyer’s advice was incorrect. Defense counsel asks you, “Do you think that the state has sufficient evidence to convict my client if it proves the foregoing facts?” Which of the following offers counsel the best advice?
A. No. Defendant has a defense to the charge of bigamy. The statute provides a mens rea term; the term “knowledge” modifies whether he was still married. He did not believe he was. As a result, he should be acquitted.
B. No. Bigamy is a general intent crime. As a result, he can show that his mistake was reasonable.
C. Yes. Bigamy is a strict liability offense and the mens rea will not attach to his status of still being married.
D. Yes, but sending Defendant to prison is unconstitutional. The Supreme Court has held that imposing strict liability in such cases violates the Eighth Amendment’s prohibition against cruel and unusual punishment.
A No. Defendant has a defense to the charge of bigamy. The statute provides a mens rea term; the term “knowledge” modifies whether he was still married. He did not believe he was. As a result, he should be acquitted.
Incorrect. Bigamy is a classic strict liability offense and courts do not attach the mens rea to a defendant’s status of still being married. That is especially true here where the mistake is one of law, not fact.
B No. Bigamy is a general intent crime. As a result, he can show that his mistake was reasonable.
Incorrect. Bigamy is a classic strict liability offense and courts do not attach the mens rea to a defendant’s status of still being married. Further, because Defendant’s mistake was a mistake of law, even if this were a general intent crime, he would not have a defense.
C Yes. Bigamy is a strict liability offense and the mens rea will not attach to his status of still being married.
Correct. Courts typically have read bigamy statutes as creating strict liability offenses.
D Yes, but sending Defendant to prison is unconstitutional. The Supreme Court has held that imposing strict liability in such cases violates the Eighth Amendment’s prohibition against cruel and unusual punishment.
Incorrect. Despite a strong argument that incarcerating someone for conduct that is otherwise innocent is unconstitutional, the Supreme Court has never so held.
Frustrated with repeat offenders who clogged the courts, the legislature in the state of Oreida enacted a recidivism statute that provided for a term of 25-years-to life in prison upon an offender’s third conviction for any felony. It also provided that, upon conviction of multiple additional offenses, the judge should make additional mandatory minimum terms run consecutively, not concurrently. The law also provided that an offender’s record as a juvenile counted in determining if the offender came within the law.
Defendant was convicted of committing two robberies when he was sixteen years old. Now, thirty years old and addicted to heroin, Defendant was found guilty of three counts of theft. The trial court has sentenced him to 75-years-to-life in the prison, consistent with the law described above. Defendant’s attorney has filed a motion, claiming that the sentence is unconstitutional because it violates the Eighth Amendment to the Constitution. Discuss how the court should rule on that motion.
Sample Answer
The Eighth Amendment to the U.S. Constitution prohibits the imposition of “cruel and unusual punishment.” In terms of sentencing, the Supreme Court has generally held that the punishment inflicted must not be grossly disproportional to the offense committed. There is no bright-line rule addressing the proportionality of punishment, except that in non-homicide offenses against individuals (for example, rape), the death penalty has been found to be a disproportionate form of punishment.
The Supreme Court has instead approached the proportionality of punishment by weighing several factors. The Court tends to be quite deferential to state legislatures that enact “three strikes” or recidivist laws, recognizing an interest in public safety and a need to isolate or incapacitate certain repeat offenders in order to protect that interest. The Court weighs the gravity of the offense compared to the harshness of the penalty. The gravity of the offense is measured not just by the instant crime, but also by the previous offenses. Therefore, the court here should not just look at the three counts of theft, which were not likely dangerous and involving weapons, but also at the prior burglary convictions, which would have involved entering an inhabited building, potentially endangering the lives of others.
If a 75-year sentence is considered grossly disproportional to all of defendant’s convictions, then the court should also consider the penalties imposed within Oreida for similar offenses and the penalties imposed in other jurisdictions for the same offense. However, these factors tend not to weigh in favor of the defendant because courts often defer to the legislature’s decision to differentiate between penalties for similar crimes and because the Constitution does not require uniformity of punishment among states. However, the facts do not state that defendant is entitled to parole, a fact that weighs in favor of finding the statute unconstitutional, especially considering the seventy-five year sentence is virtually a life sentence for a thirty-year-old (should he survive until his release date, he would be 105).
Given that the Supreme Court found a sentence of 25 years to life was not excessive where the defendant was convicted of stealing three golf clubs, and had previously been convicted of robbery and three burglary counts, it does not seem likely that this Oreida statute would be found to violate the Eighth Amendment.
Analysis
The answer covers most of the important issues posed by the question. The student might have fine-tuned one point and made an additional argument.
The statute is similar to California’s three-strikes law that was the subject of two Supreme Court cases during the early 2000s. Lockyer v. Andrade, 538 U.S. 63 (2003) involved a defendant whose three-strikes sentences for two acts of petty theft with a prior was 50 years-to-life. The Court avoided the question whether the sentence violated the Eighth Amendment’s prohibition against cruel and unusual punishment. The case involved the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). The Court found that the state court’s interpretation of prior Supreme Court precedent was not unreasonable, thereby denying review of the sentence. In Ewing v. California, 538 U.S. 11 (2003), a divided Court found that Ewing’s 25 years-to-life sentence for grand theft was constitutional. The student might have fine-tuned the answer by explaining how the student extracted the governing rule from the divided Court opinions. Justice O’Connor wrote a plurality opinion, joined by only two other justices, in which she laid out the rules that the student relied on above. Justices Scalia and Thomas joined in the result, but argued that the Eighth Amendment does not include a proportionality principle governing terms of imprisonment. The four dissenting justices largely – if not entirely – agreed with Justice O’Connor’s statement of the legal test.
More importantly, the student should have made a counter-argument to the conclusion that the sentence is constitutional. Obviously, a 75-year minimum term is much longer than is a 25-year minimum term. Indeed, it begins to look like a true-life sentence. As such, the case comes much closer to the facts and holding in Solem v. Helm, where the Court found that a true-life sentence imposed on a repeat offender did violate the Eighth Amendment.
Which of the following statements is the most correct regarding when an individual can be held criminally liable for an omission to act?
A. When a statute imposes a duty to care for another.
B. When one stands in a certain status relationship to another (e.g., parent-child).
C. When one has assumed a contractual duty to care for another.
D. When an individual has voluntarily assumed the care of another and so secluded the helpless person as to prevent others from rendering aid.
E. All of the above.
Which of the following statements is the most correct regarding when an individual can be held criminally liable for an omission to act?
A. When a statute imposes a duty to care for another.
Incorrect.
B. When one stands in a certain status relationship to another (e.g., parent-child).
Incorrect.
C When one has assumed a contractual duty to care for another.
Incorrect.
D. When an individual has voluntarily assumed the care of another and so secluded the helpless person as to prevent others from rendering aid.
Incorrect.
E. All of the above.
Correct. In fact, all of the statements are accurate so “all of the above” is the most accurate statement. See Jones v. United States, 308 F.2d 307 (D.C. Cir. 1962).
Arguments against Jury Nullification, explain as many as you can think of.
What is:
1. By and large, when juries have felt free to apply their own law the result was what Professor Randall Kennedy has described as a “sabotage of justice.”
2. Consider, for example, the two hung juries in the 1964 trials for the murder of NAACP field secretary Medgar Evers, or the 1955 acquittal of J.W. Millam and Roy Bryant for the murder of fourteen-year-old [African-American] Emmett Till.” History is replete with such “shameful examples of how nullification has been used to sanction murder and lynching.”
3. Nullification frustrates the sole purpose of the jury. As this Court has instructed juries for some thirty years now, the word verdict comes from two Latin words meaning roughly “to speak the truth.” Nullifiers, however, would render verdicts without regard to the truth. Once juries begin to deviate from this core function, our justice system has no more legitimacy than a Kangaroo court.
4. There are undoubtedly well-intentioned would-be nullifiers who believe that they are aiding the cause of justice. In fact, they are undermining the jury’s core function. By adding fuel to the flames of anti-jury sentiment, nullification threatens to erode the jury system and along with it the rule of law and the independent judiciary.
Defendant, who suffers from epilepsy, lives in a state that has not adopted the Model Penal Code. He has been charged with negligent homicide based on the following facts: on the way home after work, he had a seizure and lost consciousness. His car then careened off the road and struck and killed a pedestrian. Defense counsel has moved to dismiss the charge on the ground that Defendant's lack of consciousness prevents his conviction. Which of the following answers best describes how the court should rule on that motion?
A. The court should deny the motion. Defendant's act of driving is a sufficient voluntary act to support his conviction and he has no other plausible defense.
B. The court should grant the motion. The prosecutor has the burden of proving that Defendant committed a voluntary act and cannot do so on these facts.
C. The court should grant the motion. On these facts, there is no evidence of Defendant's mens rea to support a conviction.
D. The court should deny the motion. But Defendant may be able to meet his burden of persuasion that he did not act voluntarily.
A. The court should deny the motion. Defendant's act of driving is a sufficient voluntary act to support his conviction and he has no other plausible defense.
Correct. This fact pattern is from a leading case that held that defendant was guilty of the offense. His voluntary act was the act of driving, even if at the time of the death, he was unconscious.
B. The court should grant the motion. The prosecutor has the burden of proving that Defendant committed a voluntary act and cannot do so on these facts.
Incorrect. Although the prosecutor does have the burden of proving the voluntary act, the prosecutor can do so on these facts because Defendant voluntarily drove his vehicle.
C. The court should grant the motion. On these facts, there is no evidence of Defendant's mens rea to support a conviction.
Incorrect. Defendant's mens rea is demonstrated by his decision to drive the car with knowledge that he is subject to a seizure.
D. The court should deny the motion. But Defendant may be able to meet his burden of persuasion that he did not act voluntarily.
Incorrect. Defendant does not carry the burden of persuasion on whether he has committed a voluntary act. That is the prosecutor's burden.
Defendant resides in a state that has adopted the culpability provisions of the Model Penal Code. He has been charged with bigamy, defined as the act of knowingly entering into a marriage with one person while still married to another person. It is punishable by up to one year in prison. The following are the facts that gave rise to the charges: Defendant went to an attorney to secure a divorce. The attorney filed for a divorce on Defendant’s behalf. The attorney’s secretary called Defendant and told him that his divorce was final. The secretary called the wrong client; Defendant’s divorce was still several weeks from being granted. In the interim, Defendant married again. Defense counsel asks you, “Do you think that the state has sufficient evidence to convict my client if it proves the foregoing facts?” Which of the following offers counsel the best advice?
A. Yes. Your best argument may be to challenge the constitutionality of a term of imprisonment based on these facts.
B. No. The mens rea term of “knowingly” modifies the other material elements. Here, your client did not know that he was still married.
C. Maybe. Bigamy is a general intent crime. As a result, Defendant can prevail if he can show that his mistake was reasonable.
D. No. The Supreme Court has held that imposing strict liability in such cases violates the Eighth Amendment’s prohibition against cruel and unusual punishment.
A Yes. Your best argument may be to challenge the constitutionality of a term of imprisonment based on these facts.
Incorrect. The MPC’s culpability provisions include §2.02(4), which provides that when a mens rea term is provided in the statute, the mens rea modifies all of the material elements of the offense unless a contrary intent clearly appears. Here, knowledge should modify the element that Defendant was still married.
B No. The mens rea term of “knowingly” modifies the other material elements. Here, your client did not know that he was still married.
Correct. The MPC’s culpability provisions include §2.02(4), which provides that when a mens rea term is provided in the statute, the mens rea modifies all of the material elements of the offense unless a contrary intent clearly appears. Here, knowledge should modify the element that Defendant was still married.
C Maybe. Bigamy is a general intent crime. As a result, Defendant can prevail if he can show that his mistake was reasonable.
Incorrect. The Model Penal Code abandoned the distinction between general and specific intent crimes. Instead, the mens rea provisions are found in §2.02. Further, mistakes may negate the mens rea. See §2.04(1). Here, because the mens rea is knowledge, Defendant would merely have to negate evidence showing that he knew that he was still married in order to secure an acquittal.
D No. The Supreme Court has held that imposing strict liability in such cases violates the Eighth Amendment’s prohibition against cruel and unusual punishment.
Incorrect. Despite a strong argument that incarcerating someone for conduct that is otherwise innocent is unconstitutional, the Supreme Court has never so held.
3. Subconstitutional proportionality review. In Coker and Ewing, the Court applied principles of proportionality derived from the Constitution’s prohibition on “cruel and unusual punishments.” Among the recently approved changes to the Model Penal Code’s sentencing provisions is this addition:
The appellate courts may reverse, remand, or modify any sentence, including a sentence imposed under a mandatory-penalty provision, on the ground that it is disproportionately severe. The court shall use its own judgment when applying this provision.
Model Penal Code: Sentencing § 7.09(5)(b), at 497 (Proposed Final Draft 2017) (approved Apr. 24, 2017). This provision gives an appellate court statutory authority to review the proportionality of sentences “us[ing] its own judgment.” Assume you are a state legislator. Would you vote to include this provision in your state’s penal code?
SAMPLE OPINION, NO RIGHT ANSWER. As a state legislator, I would vote to include the provision in the state's penal code that allows appellate courts to reverse, remand, or modify any sentence on the ground that it is disproportionately severe, using their own judgment. This provision aligns with the principles of proportionality review under the Eighth Amendment, which prohibits cruel and unusual punishments.
The Eighth Amendment's proportionality principle, as interpreted by the Supreme Court, forbids only extreme sentences that are "grossly disproportionate" to the crime United States v. Yousef, 327 F.3d 56, United States v. Reingold, 731 F.3d 204, United States v. D.W., 198 F. Supp. 3d 18. This principle has been applied in various cases, such as Harmelin v. Michigan, where the Court emphasized that proportionality review should be guided by objective factors and does not require strict proportionality between crime and sentence United States v. D.W., 198 F. Supp. 3d 18. Additionally, the Court has recognized that successful challenges to the proportionality of a sentence are exceedingly rare outside the context of capital punishment United States v. Yousef, 327 F.3d 56, United States v. Reingold, 731 F.3d 204, United States v. Snype, 441 F.3d 119.
The proposed provision in the Model Penal Code: Sentencing § 7.09(5)(b) would provide a statutory basis for appellate courts to exercise their judgment in reviewing sentences for proportionality, which is consistent with the Eighth Amendment's protections. This would ensure that sentences are not excessively harsh and are proportionate to the severity of the crime, thereby upholding the constitutional rights of defendants United States v. Reingold, 731 F.3d 204, United States v. D.W., 198 F. Supp. 3d 18, United States v. Snype, 441 F.3d 119.
Furthermore, the provision would empower appellate courts to address any potential injustices in sentencing, promoting fairness and justice within the legal system. Given the established legal framework and the importance of proportionality in sentencing, I believe this provision would be a valuable addition to the state's penal code United States v. Reingold, 731 F.3d 204, United States v. D.W., 198 F. Supp. 3d 18, United States v. Snype, 441 F.3d 119.
Which one of the following statements regarding the mental state of “reckless” under the Model Penal Code is incorrect?
A. A person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and purpose of the actor’s conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a law-abiding person would observe in the actor’s situation.
B. The defendant’s disregard of the risk must involve a departure from the standard of care that a reasonable person would exercise in the actor’s situation.
C. The risk must be of such a nature and degree that, considering the nature and purpose of the actor’s conduct and the circumstances known to him.
D. The defendant’s disregard of the risk must involve a gross deviation from the standard of conduct that a law-abiding person would observe in the actor’s situation.
A. A person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and purpose of the actor’s conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a law-abiding person would observe in the actor’s situation.
Incorrect.
B. The defendant’s disregard of the risk must involve a departure from the standard of care that a reasonable person would exercise in the actor’s situation.
Correct. The MPC in Sec. 2 defines the mental state of “reckless” in the following way: “Recklessly. A person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and purpose of the actor’s conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a law-abiding person would observe in the actor’s situation.” Answer B is incorrect because it states that the defendant’s disregard of the risk must involve a departure from the standard of care that a reasonable person would exercise in the actor’s situation.
C. The risk must be of such a nature and degree that, considering the nature and purpose of the actor’s conduct and the circumstances known to him.
Incorrect.
D. The defendant’s disregard of the risk must involve a gross deviation from the standard of conduct that a law-abiding person would observe in the actor’s situation.
Incorrect.
Although jurors are almost never informed of the nullification power before they begin deliberating, what should a trial judge do if the jury asks the judge directly during deliberations if it has the power to nullify?
In the case of People v. Dillon, 34 Cal. 3d 441, the California Supreme Court addressed the issue of jury nullification during deliberations. The majority opinion in Dillon held that a trial judge is not required to inform the jury of its power to nullify the law. Specifically, the court stated that it cannot be seriously argued that a trial judge must advise jurors that they can follow or ignore the law as they choose when asked directly by the jurors. The court emphasized that such advice might achieve pragmatic justice in isolated instances but would more likely result in anarchy People v. Williams, 25 Cal. 4th 441, People v. Partner, 180 Cal. App. 3d 178, People v. Sanchez, 58 Cal. App. 4th 1435.
Justice Kaus, in his concurring opinion, suggested that when a jury inquires about its ability to return a more lenient verdict than the law justifies, the court should inform the jury of its power to render such a verdict and its immunity from punishment if it chooses to exercise that power. However, this view was expressly rejected by the majority People v. Williams, 25 Cal. 4th 441, People v. Partner, 180 Cal. App. 3d 178, People v. Sanchez, 58 Cal. App. 4th 1435.
Therefore, if a jury asks a trial judge directly during deliberations if it has the power to nullify, the judge should not inform the jury of this power, adhering to the majority opinion in People v. Williams, 25 Cal. 4th 441, People v. Partner, 180 Cal. App. 3d 178, People v. Sanchez, 58 Cal. App. 4th 1435.
Federal law makes it an offense for a person without proper documentation, to enter, “or * * * at any time [be] found in, the United States.” 8 U.S.C. § 1326(a). Suppose a person is knocked unconscious, kidnapped and brought to the United States. Is he guilty? Should he be? See United States v. Macias, 740 F.3d 96 (2d Cir. 2014).
The individual must have knowingly and voluntarily entered or remained in the United States United States v. Vasquez Macias, 740 F.3d 96. Since the person in question was brought into the country against their will and without their knowledge, they lack the necessary intent to be convicted under this statute.
Defendant owned a grocery store. Customers who had food stamps often asked if they could swap food stamps for cash, thereby allowing them to buy goods not authorized under the food stamp program, like alcohol and narcotics. After figuring out how to make money doing so, Defendant started swapping food stamps for cash and then redeeming them for the face value of the food stamps. She has been charged with the following federal offense based on the foregoing facts: “it is a felony for any person to knowingly use, transport, possess or alter coupons in any matter not authorized by the regulations governing this program.” Defense counsel wonders if she can introduce Defendant's testimony to the effect that she was unaware that redeeming the coupons as she did was in violation of the regulations governing the food stamp program. Which of the following offers the best answer to defense counsel's question?
A. No. The testimony would, in effect, be a defense of ignorance of the law. In the American criminal justice system, defendants are required, in effect, to know the law.
B. Yes, but don't expect Defendant to prevail on these facts. She is not likely to be able to carry her burden to prove that her mistaken belief was reasonable.
C. No. The Defendant obviously knew that she was using and transporting the coupons. That is all that the statute requires the prosecution to prove.
D. Yes. “Knowingly” modifies all of the material elements of the offense, including whether the use, etc., was in violation of the regulations. The jury should find Defendant not guilty if they believe her testimony.
A No. The testimony would, in effect, be a defense of ignorance of the law. In the American criminal justice system, defendants are required, in effect, to know the law.
Incorrect. The maxim that ignorance of the law is no excuse would not be relevant to the analysis in this fact pattern. The issue is a matter of statutory construction: does the mens rea term modify the other elements of the offense?
B Yes, but don't expect Defendant to prevail on these facts. She is not likely to be able to carry her burden to prove that her mistaken belief was reasonable.
Incorrect. If “knowingly” modifies all of the material elements of the offense, Defendant does not have to prove that her mistake was reasonable. Instead, her mistake must merely negate the mens rea element.
C No. The Defendant obviously knew that she was using and transporting the coupons. That is all that the statute requires the prosecution to prove.
Incorrect. That may be a plausible interpretation of the statute; but, that is not what the Supreme Court hold in Liparota v. United States. Instead, the Court held that the mens rea term modified the element of the offense that the defendant's conduct was in violation of the relevant regulations.
D Yes. “Knowingly” modifies all of the material elements of the offense, including whether the use, etc., was in violation of the regulations. The jury should find Defendant not guilty if they believe her testimony.
Correct. The answer states, in effect, the holding in Liparota v. United States, the Supreme Court case addressing the facts developed in this question.
Defendant brutally murdered an elderly couple when he was fourteen years old. After hearing all of the evidence, the jury recommended that the judge sentence Defendant to death. The trial court instead imposed a sentence of life without benefit of parole. Defense counsel has moved to reduce the sentence to a life sentence with the benefit of parole. Which of the following best describes how the court should rule on defense counsel’s motion?
A The court should deny the motion. The Supreme Court has held that offenders who commit murder when they are less than 18 years old may be sentenced to life without benefit of parole.
B The court should deny the motion. The Supreme Court has held that a sentence of life without benefit of parole is proper even for an offender who was less than 18 years old when he committed his offense if the state introduces evidence of aggravating circumstances.
C The court should grant the motion. The Supreme Court has held that a sentence of life without benefit of parole imposed on an offender who was less than 18 years old when he committed his offense violates the Eighth Amendment’s prohibition against disproportionate punishment.
D The court should grant the motion. But counsel should have asked the court to impose a term of years, instead of life with the possibility of parole. The Supreme Court has held that any sentence of life imposed on an offender who was less than 18 years old when he committed his offense violates the Eighth Amendment’s prohibition against disproportionate punishment.
A The court should deny the motion. The Supreme Court has held that offenders who commit murder when they are less than 18 years old may be sentenced to life without benefit of parole.
Incorrect. The Supreme Court has held to the contrary.
B The court should deny the motion. The Supreme Court has held that a sentence of life without benefit of parole is proper even for an offender who was less than 18 years old when he committed his offense if the state introduces evidence of aggravating circumstances.
Incorrect. The Supreme Court has held to the contrary.
C The court should grant the motion. The Supreme Court has held that a sentence of life without benefit of parole imposed on an offender who was less than 18 years old when he committed his offense violates the Eighth Amendment’s prohibition against disproportionate punishment.
Correct. The answer describes the Supreme Court’s holding in Miller v. Alabama.
D The court should grant the motion. But counsel should have asked the court to impose a term of years, instead of life with the possibility of parole. The Supreme Court has held that any sentence of life imposed on an offender who was less than 18 years old when he committed his offense violates the Eighth Amendment’s prohibition against disproportionate punishment.
Incorrect. In Miller v. Alabama, the Supreme Court held only that a sentence of life without benefit of parole violated the Eighth Amendment, not any life sentence.
Under the MPC, suppose that a statute provides a mental state, but does not indicate which elements of the crime to which the mental state applies. Which one of the following statements is correct regarding how the MPC would resolve this situation?
A The mental state applies only to the actus reus of the crime, but not to a required result or attendant circumstances.
B The mental state applies to the actus reus and any required result, but not to any required attendant circumstances.
C If the statute has a required result, the mental state applies only to that element of the crime.
D If the law does not distinguish among the material elements, the MPC generally provides that such provision shall apply to all the material elements of the offense.
Under the MPC, suppose that a statute provides a mental state, but does not indicate which elements of the crime to which the mental state applies. Which one of the following statements is correct regarding how the MPC would resolve this situation?
A. The mental state applies only to the actus reus of the crime, but not to a required result or attendant circumstances.
Incorrect.
B. The mental state applies to the actus reus and any required result, but not to any required attendant circumstances.
Incorrect.
C. If the statute has a required result, the mental state applies only to that element of the crime.
Incorrect.
D. If the law does not distinguish among the material elements, the MPC generally provides that such provision shall apply to all the material elements of the offense.
Correct. Under MPC 2.02 (4), “When the law defining an offense prescribes the kind of culpability that is sufficient for the commission of an offense, without distinguishing among the material elements thereof, such provision shall apply to all the material elements of the offense, unless a contrary purpose plainly appears.”