Unit Seventeen - Prosecution's Burden of Proof (Onus Probandi - the High Burden) - Inferences and Presumptions - Confrontation and Cross-Examination of Witnesses - Right to Remain Silent (Privilege Against Self-Incrimination)

The criminal trial - the drama of the theater, the challenge of the bullring,
the excitement of the contest, and the possibility of fame and glory.
Saddle up, and let's go dancin'!

Leonard Vole (Tyrone Power): But this is England, where I thought you never arrest,
let alone convict, people for crimes they have not committed.
Sir Wilfrid (Charles Laughton): We try not to make a habit of it. 
Witness for the Prosecution (1957)

The subjects for this unit deal with the issues of the burden of proof, the role of presumptions in alleviating the prosecutor's burden of proof, the right to confront witnesses (Sixth Amendment), the privilege not to be compelled to be a witness against yourself in a criminal case (Fifth Amendment), and the exclusionary rule that excludes evidence that has been illegally seized, e.g., by an unreasonable or warrantless search in violation of the Fourth Amendment.

In previous units we have taken a look at how the federal  Bill of Rights was used in connection with the Fourteenth Amendment's Due Process Clause to create a new framework for the investigation and prosecution of crime in state court criminal trials. There is little UCL 5th reading on these constitutional due process issues, search and seizure, right to counsel, privilege against compulsory self-incrimination, right to trial by jury, right to indictment by grand jury, etc.,  which may properly be considered as more procedural than substantive, and are therefore treated in a constitutional criminal procedure course. 

Burden of pleading and and then proving what has been pled - When we consider the "burden of proof" in a criminal case, we are typically thinking about a party's duty at trial to prove a disputed assertion or charge, a burden that includes both the burden of production and the burden of persuasion. Antecedent to that is the question of the burden of pleading, i.e., a party's duty to plead a matter for that matter to be heard in the lawsuit. In criminal cases, the prosecution has the burden of pleading the crime, i.e. asserting the violation in written form. This pleading may take the form of a complaint, a criminal information, or an indictment. A complaint is a document that formally charges the accused with an offense. In Texas, we use a complaint as the charging document in Class C misdemeanors. See Art. 45.018 CCP [Note: If you go to traffic court or justice of the peace court in Texas, you'll stand trial based on a complaint.] A criminal information is a formal criminal charge made by a prosecutor without a grand jury indictment. The information is used to prosecute misdemeanors in most states. In Texas, we use it as the formal charging instrument in Class A and B misdemeanors. An indictment (1) is a formal written accusation of a crime; it is issued by a grand jury and presented by the grand jury (1), (2) to a court for prosecution against the accused person. See Blacks Law Dictionary. In federal cases, the accused is protected by the Fifth Amendment which provides, "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger." [Note: The Fifth Amendment right to indictment by a grand jury is one of the very few rights that is not selectively incorporated; thus, it does not apply in state court proceedings. See Hurtado v. California, 110 U.S. 516 (1884); Albright v. Oliver, 510 U.S. 266 (1994] In Texas, we use the grand jury indictment to prosecute felonies. Article I, Section 10 of the Texas Bill of Rights provides "... no person shall be held to answer for a criminal offense, unless on an indictment of a grand jury, except in cases in which the punishment is by fine or imprisonment , otherwise than in the penitentiary; in cases of impeachment and in cases arising in the army or navy, or in the militia, when in actual service in time of war or public danger."

Regarding the charge filed against the accused, the defense has a lesser burden of pleading in criminal cases. Of course, the defendant must enter a plea of guilty of not guilty to the charge or, if s/he refuses to do so, have the court enter a plea of not guilty for her/him. The defendant's plea to the charge is typically done orally in open court. Some jurisdictions allow a plea of no contest (nolo contendere) which is equivalent to a plea of guilty but may in some jurisdictions limit the accused's plea from being used as a judicial admission against him in a collateral civil trial.  Some jurisdictions may impose a duty on the defense to give formal notice of intent to rely on a particular defense, e.g. insanity, See Art. 46C.051 CCP or defensive evidence, e.g., alibi See Fed. R. Crim. P. 12.1; Williams v. Florida, 399 U.S. 78 (1970)

MPC Burden of Proof: The MPC, Section 1.12, says, "No person may be convicted of an offense unless each element of such offense is proved beyond a reasonable doubt. In the absence of such proof, the innocence of the defendant is assumed." The MPC requires the defense to bear the burden of production re defenses and affirmative defenses. The defense has the burden of introducing evidence that raises either. Affirmative defenses are defined in Section 1.12(3) MPC. The MPC can be more than a bit confusing when one understands how it defines an "affirmative defense." As mentioned, under the MPC, the burden of production, raising the issue, re an "affirmative defense rests with the defense. See Section 1.12(2)(a) MPC This is standard. However, under the MPC, once the affirmative defense is raised by the evidence, the burden of persuasion to rebut its existence beyond a reasonable doubt rests on the prosecution. Regarding the burden of persuasion, defenses are expressly included in the MPC definition of "element" in Section 1.13(9) MPC, and Section 1.12(1) MPC requires that the prosecutor prove each element of the offense beyond a reasonable doubt. Thus, once the affirmative defense is raised, the prosecution has the burden of proving the non-existence of the affirmative defense beyond a reasonable doubt. Some states, e.g., Colorado, follow this unusual MPC approach to the burden of persuasion re affirmative defenses. But many others, including Texas in Section 2.04 TPC, take a very opposite approach re the burden of persuasion in an affirmative defense and require the defense to prove the existence of the affirmative defense beyond a reasonable doubt. See below for more explanations re the Texas approach. Under the MPC, Section 1.12(2)(b), it is only when the MPC or another statute plainly requires the defense to prove a defense by a preponderance of the evidence that the defense will bear the burden of persuasion by that standard. Notice, for instance, that mistake of law under Section 2.04(4) MPC and entrapment under Section 2.13(2) MPC are two examples that require the defense to bear the burden of persuasion by a preponderance of the evidence. .

TPC Burden of Proof: Section 2.01 of the Texas Penal Code makes it clear that all persons are presumed innocent and no person may be convicted of an offense unless each element of the offense is proved beyond a reasonable doubt. Chapter 2 of the TPC also contains the allocation of the burden of proof in cases of an exception contained in the charging instrument (Section 2.02 TPC - the prosecution must rebut the applicability of exception in the accusation beyond a reasonable doubt.), defenses (Section 2.03 TPC - the defense has the burden of production, i.e., raising the defense, by introduction of evidence, whereupon the burden of persuasion rests upon the prosecution to rebut the defense beyond a reasonable doubt.), and affirmative defenses (Section 2.04 TPC - the defense has the burden of production and, unlike the MPC label "affirmative defense", the defense has the additional burden of persuasion by a preponderance of the evidence.). To repeat for emphasis, in Texas the prosecutor bears the burden of production and persuasion beyond a reasonable doubt re exceptions contained in the charging instrument; the defense bears the burden of production re defenses, but once the issue of a defense is raised, the prosecution bears the burden of persuasion in proving the non-existence of the defense beyond a reasonable doubt; finally, the defense bears the burden of production re affirmative  defenses and also bears the burden of persuasion by a preponderance of the evidence. 

The constitutional standard of proof of guilt in criminal cases - beyond a reasonable doubt - In re Winship: The fundamental principle of a fair criminal trial that requires the prosecution to prove each element of the alleged crime beyond a reasonable doubt (PBARD) (Victor v. Nebraska, 511 U.S. 1 (1994)) is part of the concept of due process of law contained in the Fifth and Fourteenth Amendments.  So, even though the federal Bill of Rights does not expressly mention the burden of proof in a criminal case, the USSC read the PBARD requirement into the concept of due process of law. This lets me know that due process may go beyond the expressly enumerated rights in the Bill of Rights. See In re Winship, 397 U.S. 358 (1970). See also Section 1.12 MPC. The Texas Constitution does not state the standard of proof necessary in criminal cases, but it doesn't matter because the USSC ruling in In re Winship governs all state criminal proceedings. There doesn't seem to be any set universally accepted standard definition of what a reasonable doubt is. For a number of years, the Texas Court of Criminal Appeals had a required definition that had to be given in every case. Interestingly, the highly pro-prosecution court recently did away with its former required definition; the case which accomplished this dramatic change was Paulson v. State, 28 S.W.3d 570 (Tex. Crim. App. 2000). See the long list of sample reasonable doubt arguments and the extended discussion of this standard of proof in the sample arguments on the Jury Argument web site.

The Apprendi v. New Jersey, 530 U.S. 466 (2000) case, see Syllabus, was a bombshell that implicated the Sixth Amendment right to a jury and the Due Process right to require that the prosecution prove . It held that, "..other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt." This means that the fact that is in issue, for example, as in Apprendi, a statutory hate crime aspect that increases or extends the punishment for the crime charged, will be treated as an element of the crime that must be determined by a jury and proved beyond a reasonable doubt. Whether the Apprendi rule covers increases in the  minimum penalty seems to be answered in the negative. See Harris v. United States, 536 U.S. 545 (2002) validating McMillan v. Pennsylvania, 477 U.S. 79 (1986). Ring v. Arizona, 536 U.S.584 (2002) held that statutory aggravating circumstances necessary for a death sentence are akin to an element of the offense and must be proven beyond a reasonable doubt and be decided by a jury. The Timothy Ring case is documented by TruTV

The Mullaney v. Wilbur, 421 U.S. 684 (1975) seemed to hold that in addition to the  customary  requirement of proving all the elements of the crime beyond a reasonable doubt, the prosecution also had to disprove beyond a reasonable doubt all exceptions and defenses raised by the evidence that negate elements of the crime, e.g., MPC style intoxication, mistake of fact and diminished capacity. The USSC cleared things up a bit in Patterson v. New York, 432 U.S.197 (1977) when it construed Mullaney narrowly, by making it clear that it is constitutional for states to impose the burden of proof (persuasion) on the defendant to prove some defenses. [So, our Texas approach to affirmative confession and avoidance defenses, e.g., duress, insanity, adequate provocation to reduce the punishment for murder, where the defense has the burden of persuasion by a preponderance of the evidence, seems to be okay from the standpoint of the constitutional allocation of the burden of proof.]

Presumptions that alleviate or lessen the burden of introducing evidence to prove a point: The constitutional requirement that the government must prove the elements of the offense beyond a reasonable doubt places limits on the use of presumptions that lessen the effort the prosecution must put forth to establish a fact via a presumption. Dressler explains the types of presumptions. i.e.,  permissible, mandatory, rebuttable, and irrebuttable. Permissible inferences won't violate due process as long as they are reasonable. But mandatory presumptions, either rebuttable or irrebuttable, do seem to violate due process in that they too easily dispense with the requirement of proof beyond a reasonable doubt.

  • MPC presumptions: Unlike Texas which has Section 2.05 TPC describing the presumption and its legal effect, the MPC does not have a separate statute describing presumptions and their legal effect. Instead, Section 1.12(5) MPC has a discrete part concerning presumptions that states,  When the Code establishes a presumption with respect to any fact which is an element of an offense, it has the following consequences: (a) when there is evidence of the facts which give rise to the presumption, the issue of the existence of the presumed fact must be submitted to the jury, unless the court is satisfied that the evidence as a whole clearly negatives the presumed fact; and (b) when the issue of the existence of the presumed  fact is submitted to the jury, the Court shall charge that while the presumed fact must, on all the evidence, be proved beyond a reasonable doubt, the law declares that the jury may regard the facts giving rise to the presumption as sufficient evidence of the presumed fact. Section 1.12 (6) states, A presumption not established by the Code or inconsistent with it has the consequences otherwise accorded it by law.  The examples are few, but one stands out. Under the MPC murder statute, Section 210.2(1)(b), the jury in a murder case may presume the existence of the culpable mental state of recklessness manifesting extreme indifference to the value of human life if the jury first finds beyond a reasonable doubt that the defendant was engaged or was an accomplice in the commission of, or an attempt to commit, or flight after committing or attempting to commit robbery, rape or deviate sexual intercourse by force or threat of force, arson, burglary, kidnapping or felonious escape. In effect, a MPC presumption is a permissible inference.

  • TPC presumptions: Section 2.05 TPC contains the process that is utilized when the TPC or another penal law establishes a presumption with respect to any fact. The consequences are spelled out in the section. Read it for specifics. In short, it provides that if there is sufficient evidence of the facts giving rise to the presumption, the issue of the existence the presumed fact must be submitted to the jury, unless the trial court is satisfied that the evidence as a whole clearly precludes a finding beyond a reasonable doubt of the presumed fact; if the the existence of the presumed fact is submitted to the jury the trial court must instruct the jury in terms of the presumption and the specific element to which it applies, as follows: (A) that the facts giving rise to the presumption must be proven beyond a reasonable doubt, (B) that if such facts are proven beyond a reasonable doubt the jury may find that the element of the offense sought to be presumed exists, but it is not bound to so find, (C) that even though the jury may find the existence of such element, the state (prosecution) must prove beyond a reasonable doubt each of the other elements of the offense charged, and (D) if the jury has a reasonable doubt as to the existence of a fact or facts giving rise to the presumption, the presumption fails and the jury shall not consider the presumption for any purpose. A TPC presumption is akin to a permissible inference. See Willis v. State, 790 S.W.2d 307 (Tex. Crim. App. 1990). For examples, the following crimes involve presumptions: assault - Section 22.01(c) and (d) TPC knowledge that person assaulted was a public servant from proof that the person was wearing a distinctive uniform or badge indicating the person's employment as a public servant,  barratry - Section 38.12 TPC; receiving stolen property theft - Section 31.03 (c) (3) TPC knowledge of pawnshop operators and others that personal property has been stolen from knowing or reckless failure to record information, etc.; theft by check - Section 31.06  TPC; money laundering - Section 34.02(b) TPC  presumption that money is proceeds of criminal activity; disorderly conduct - Section 42.01(c)(2) TPC presumption that noise is unreasonable if it exceeds 85 decibels after the actor has been warned by a peace officer or magistrate that the noise is a public nuisance; competence to stand trial -  Section 46B.003 CCP. See Regalado v. State, 872 S.W.2d 7 (Tex. App. - Houston [14th Dist] 1994, pet. ref'd) discussing mandatory presumptions and permissible inferences.

Privilege Against Compulsory Self-Incrimination: Let's consider the discrete elements of a trial -  The Bill of Rights (BOR) says in the Fifth Amendment that you can't compel an accused to testify. Even though the BOR doesn't expressly say an accused has the right to voluntarily testify in his own behalf, the USSC has said that the right is implicit in the concept of due process as a corollary of the right not to be compelled to testify. The privilege against compulsory self-incrimination of the Fifth Amendment applies to state court criminal proceedings, per the USSC in Malloy v. Hogan, 378 U.S. 1 (1964), another case of selective incorporation. In Griffin V. California, 380 U.S. 609 (1965) the USSC held that the Fifth Amendment privilege prevents the prosecution from commenting in jury  argument on the defendant's invocation of his or her right to remain silent at trial.

Subpoena Power: The Sixth Amendment right to compulsory process (the right to subpoena witnesses) is also applied to state court criminal proceedings in Washington v. Texas, 388 U.S. 14 (1967), again, another of those selective incorporation cases. Of course, there are some limitations, e.g., the subpoena power does not allow one to obtain privileged material.

Confrontation: Confrontation with the witnesses against one is a Sixth Amendment right that the accused has with regard to evidence presented against him. See Pointer v. Texas, 380 U.S. 400 (1965). Like many of the other rights in the BOR, it applies through the Due Process Clause to defendants in state court criminal proceedings as well as in federal criminal cases. This same right is interpreted to implicitly afford the defense the right to cross-examine witnesses who appear against the accused.  See Davis v. Alaska, 415 U.S. 308 (1974).

Fourth Amendment Protection Against Unreasonable Search and Seizure and Warrant Requirement: The Mapp v. Ohio, 367 U.S. 643 (1961) held that the Fourth Amendment protection against unlawful search and seizure applied to the states also. It created the so-called "exclusionary rule" that means that evidence that is unlawfully seized in violation of the Fourth Amendment must be suppressed and excluded from evidence. [This is a bit like the objective entrapment test in its effect, because even though the defendant may be guilty of unlawfully possessing or selling or delivering contraband, he can't be convicted because the police overstepped his rights. The exclusionary rule is purportedly there to keep the police in line.]

Populus iamdudum defutatus! (The people have been getting screwed long enough!)


Unit Sixteen - Right to Trial by Jury - Jury Nullification - Peremptory Challenges :

The wisdom of our sages and the blood of our heroes has been devoted to the attainment of trial by jury. It should be the creed of our political faith.
Thomas Jefferson, First Inaugural Address (1801)

This is a quickie. The subject of this unit is another of the Bill of Rights provisions that has been held to apply in state court criminal proceedings. This time it was the Sixth Amendment right to trial by an impartial jury. The USSC in Duncan v. Louisiana, 391 U.S. 145 (1968) (1) held for the first time that the right to a jury trial did apply in state court to everything but "petty offenses." Baldwin v. New York, 399 U.S. 66 (1970) defined a petty offense to be any crime that is punishable by six months or less. So there is a constitutional line drawn between serious and non-serious offenses re the right to a jury trial. If the permissible punishment is six months or less, the offense is presumed to be petty with regard to the Sixth Amendment right to a jury trial in state courts. Apparently, this right to a jury trial in criminal cases does not apply to the adjudicative phase of a juvenile delinquency trial. It seems that the accused has the right to waive his Sixth Amendment right to a jury trial and have the court (judge) act as the trier of fact. Also, I notice that the USSC says that the Sixth Amendment right to a jury trial does not include the right to have a jury determine punishment, only guilt.See Spaziano v. Florida 468 U.S. 447 (1984). Of course, Texas is one of those few jurisdictions, eight or ten I think, that allow the jury the additional power of assessing punishment in ordinary felonies and jail- time misdemeanors when the defendant elects to have the jury determine punishment. See Art. 37.07 TCCP. Indeed, when the prosecution seeks the death penalty, the accused cannot waive trial by jury on guilt and punishment. See Arts. 1.12, 1.13, 1.14 TCCP.

There's also some material that should be consulted about the size of the jury under the Sixth Amendment and whether and when the verdict must be unanimous under the Sixth, etc. The Federal Rules require federal juries to have twelve jurors. But, Texas uses only six in jail time misdemeanor courts, e.g., County Criminal Courts at Law like the ones at the local criminal courthouse, and fineable offense only courts,e.g., justice of the peace and municipal courts, while it has twelve in the pen time courts, e.g., district courts. The USSC seems to allow the states to experiment somewhat as to jury size. Look at Williams v. Florida, 399 U.S. 78 (1970) and Ballew v. Georgia, 435 U.S. 223 (1978) which hold that a twelve-person jury is not required by the Sixth Amendment. The case on Sixth Amendment unanimity is Apodaca v. Oregon, 406 U.S. 404 (1972)holding that a twelve-person state court jury does not have to be unanimous. See also Schad v. Arizona, 501 U.S. 624 (1991). So the USSC doesn't require unanimity in a twelve-person jury, but it does require it in a nonpetty crime if the state uses a six-person jury. See Burch v. Louisiana, 441 U.S. 130 (1979) and Brown v. Louisiana, 447 U.S. 323 (1980). I need to check the Texas Constitution because I think it gives you a greater right to a jury trial and requires a unanimous verdict for conviction in criminal cases (including traffic court, which obviously involves petty offenses). If so, this is another example of the state constitution, e.g., Texas, giving one a greater right than the Bill of Rights of the United States (federal) Constitution. I got an idea of what its like to be a juror by reading the handbook that the federal government supplies to all jurors in federal cases and the local Harris County juror handbook.

We didn't touch on it in a lot in class because the prof was waxing about the way some of the countries of Western Europe handle the adjudication of guilt issue, but I'm interested in this concept of jury nullification. I'm concerned that the American jury has the raw power to disregard the law and do whatever the jurors want to do, even though the jurors are instructed by the judge that they are to follow the law contained in the court's instructions to them. This seems to flow from the fact that there is no appeal from an acquittal in a court of competent jurisdiction and from the fact that the verdict of the jury is general ("guilty" or "not guilty" or "not guilty by reason of insanity") without any reasons having to be given for it. I can see some good and some bad in such a power. Cases like Dougherty make it clear that the federal courts don't think it is a such a good idea to tell the jury of their power to ignore the law and acquit. Most states follow the federal approach and also don't allow defense lawyers to argue this awesome power. Nullification seems to be a power the system doesn't want to encourage the jurors to exercise. I can see why we wouldn't want to have an ad hoc jury system, which is what we would have if jurors regularly substituted their ideas of what the law should be for what the legislature says it is.

I have to admit that the stuff in the casebook about the way other countries handle the criminal process is something I didn't know. Actually, I thought they had juries in most of Western Europe and a lot of other places. I find that even England, where we got the idea of the jury from, has done away with juries in civil cases and also in what we would call misdemeanor offenses (the crimes they try in their so-called Magistrates Courts).

The USSC has held that the Sixth Amendment requires that the jury be drawn from a group that reflects a fair cross-section of the community in federal and state courts. The defense has the burden of showing a systematic exclusion of a particular group in the community. Racial groups and women constitute such groups that may be subjected to improper exclusion.

Also, there is a violation of the 14th Amendment right to equal protection of the law when there is an intentional exclusion of members of certain classes, e.g., racial and gender based, from juries. The clause prevents purposeful discrimination. We have the Batson v. Kentucky, 476 U.S. 79 (1986) case and its progeny which held that the right to equal protection is violated when a peremptory challenge is used to exclude a prospective juror because of race. This is one of those errors of a constitutional dimension that requires a reversal without any harmless error evaluation.

If you are interested in what the professor said about mixed panels, look at 74 Boston Univ. Law Review 777 (1994) and at Vidmar, World Jury Systems, Oxford Univ. Press (2000). For more info on the issue of whether a felony conviction should bar a person from ever serving on a jury, see Kalt, The Exclusion of Felons from Jury Service, 53 Amer. Univ. L. Rev. 65 (2003). If you are interested in some of the techniques used in picking a jury and much more information regarding the Batson procedure see the CCJA page on Jury Selection in Criminal Cases. See also the ABA Standards: Trial by Jury (1994) and "Jury Selection" in the CCJA Bibliography of Advocacy.

Sans souci.


Unit Fifteen - Right to Counsel - Prosecutorial Discretion - Preliminary Hearing - Grand Jury -  Vindictive Prosecution

Put down that slingblade (Some folks call it a kaiser blade.) and listen to me!  Just kidding ... one of my Weird Al Yankovich... or is it Billy Bob Thornton flashbacks.

RIGHT TO COUNSEL -  [Before I get started on what the class was about, I want to wax eloquently on this issue of right to counsel. I'm of the opinion that certain very sensitive aspects of the pretrial criminal investigation and adversary trial, such as: (1) the danger of eyewitness misidentification, (2) the use of government informants who are rewarded for their testimony by receiving property or sentencing concessions or immunity, (3) the danger of involuntary confessions being obtained by fraud, trickery, threat or use of illegal force, (4) the potential misuse of so-called scientific or expert evidence, (5) the existence of police perjury, make it essential that the person accused of any serious crime be allowed to have a lawyer at trial. Interestingly, as one looks back at the history of the criminal trial in common law England, one sees that it was not until the 1730's that the English allowed the accused felon to have a lawyer present at trial to question witnesses. Criminal defense lawyers were totally banned from the trial court.  Strangely enough, accused misdemeanants were allowed to employ trial counsel. Of course, even when there was a right to trial counsel, there was no right to a free court-appointed lawyer.  Until the 1730's, the felony trial was something of a shouting match between the prosecutor, not a public prosecutor as we know it but simply the private person who brought the charge, and the defendant. The judge refereed the confrontation. In those earlier trials, the prosecutor and his/her witnesses were sworn; the defense witnesses and the defendant were not allowed to testify under oath.  Felony trials typically lasted for 30 minutes to 2 hours. A single court might conduct ten trials in a single day. Serious felonies carried the death penalty. Old Bailey, the criminal court for central London, was partially open air, in part because of the stench arising from the indigent prisoners who, pending trial, had been held under intolerable sanitary conditions in the adjacent Newgate jail. Conditions of pretrial confinement were so dreadful that lots of defendants went belly up before they could be tried. JEEZ! Can you imagine this system of sixteenth and seventeenth century common law criminal justice? Note: There is a splendid web site that describes the proceedings at THE OLD BAILEY during the period from 1674 to 1834; I strongly advise everyone in Professor Moses' criminal law class to take a couple of hours and go back in time to the origin of the adversary system of criminal justice - our roots - and wander through the records of the Old Bailey. ]    

In this class session, we consider the Sixth Amendment right to assistance of counsel and a lot of other personal freedoms or protections against the government that were created by the founding fathers when the Bill of Rights was ratified in 1791. The focus of our discussion and reading seems to be on the Warren court's selective extension (incorporation) in the 1960's of many of these federal rights to defendants in state court prosecutions by means of the 14th Amendment's Due Process Clause. There are a whole line of cases that reflect this device of "selective incorporation," e.g., Fourth Amendment - Mapp v.Ohio, 367 U.S. 643 1961) (unreasonable search and seizure); Fifth Amendment - Malloy v. Hogan, 378 U.S. 1 (1964) (privilege vs. compulsory self-incrimination) & Benton v. Maryland, 395 U.S. 784 (1969) (prohibition vs. double jeopardy); Sixth Amendment - Duncan v. Louisiana, 391 U.S. 145 (1968) (right to a jury trial) & In re Oliver, 333 U.S. 257 (1948) (right to a public trial) & Klopfer v. North Carolina, 386 U.S. 213 (1967) (right to a speedy trial) & Pointer v. Texas, 380 U.S. 400 (1965) (right to confront witnesses against oneself) & Washington v. Texas, 388 U.S. 213 (1967) (right to compulsory process for obtaining witnesses); Eighth Amendment - Robinson v. California, 370 U.S. 660 (1962) (prohibition vs. cruel and unusual punishment).  

The Gideon v. Wainwright, 372 U.S. 335 (1963) case is the centerpiece of the right to counsel at trial table. [Note: Clarence Earl Gideon had pretty good representation in the USSC; the USSC appointed future justice Abe Fortas , a Lyndon Johnson crony, to represent Gideon in the Supreme Court case.] In Gideon Justice Hugo Black said, "The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trial in some countries, but it is in ours. From the very beginning, our state and national constitutions and laws have laid great emphasis on procedural and substantive safeguards designed to assure fair trials before impartial tribunals in which every defendant stands equal before the law." It extended the Sixth Amendment right to counsel to indigent persons (1) charged with felonies in state courts. See also, Argersinger v. Hamlin, 407 U.S. 25 (1972), Scott v. Illinois, 440 U.S. 367 (1979), and Alabama v. Shelton, 535 U.S. 654 (2002). Unfortunately, later cases made it difficult overcome the assumption of effectiveness and overturn the conviction for ineffectiveness of court-appointed counsel. See United States v. Cronic, 466 U.S. 648 (1984) and Strickland v. Washington, 466 U.S. 668 (1984) for the rule that trial counsel's performance must be shown by the defendant  to have so undermined the adversary process that the trial cannot be relied upon as having produced a just result and that but for counsel's ineffectiveness there is a reasonable probability that the verdict would have been different. Note that it is difficult to get a reversal under the Strickland test. See Knowles v. Mirzayance,  556 U.S. 111 (2009); Schriro v. Landrigan, 550 U.S. 465 (2007).. The accused has the right to retained counsel of choice. See United States v. Gonzalez-Lopez,  548 U.S. 140 (2006) holding that without any other showing of prejudice the trial court reversibly erred in denying the accused the right to have pro hac vice out-of-state counsel; however, the right to the lawyer of ones choice does not extend to defendants who require court-appointed counsel.  On the issue of whether one has a right to act as his own trial counsel, Faretta v. California, 422 U.S. 806 (1975) said that there is also an unwritten Sixth Amendment right to to defend yourself. See Godinez v. Moran, 509 U.S. 389 (1993). But see Indiana v. Edwards, 554 U.S. 164 (2008) holding that persons competent to stand trial may be denied the right to represent themselves if they still suffer from mental illness to the point that they are not competent to conduct pro se trial proceedings. In Faretta cases, the trial judge does have the power to appoint "stand-by counsel." McKaskle v. Wiggins, 465 U.S. 168 (1984). See Hashimoto, Defending the Right of Self-Representation: An Empirical Look at the Pro Se Felony Defendant, North Carolina Law Review, Vol. 85., page 423 (2007).

I should also mention the line of cases from the USSC that discuss the right of counsel on appeal. They include Douglas v. California, 372 U.S. 353 (1963) providing the indigent, under the equal protection clause of the Fourteenth Amendment, with the right to counsel in one appeal from the trial court to the next level when such appeal is available to non-indigents. See also, Entsminger v. Iowa, 386 U.S. 748 (1967); Anders v. California, 386 U.S. 738 (1967) detailing the duty of court-appointed counsel on appeal, particularly when the appeal is deemed frivolous by counsel - Re Anders, see also Jones v. Barnes, 463 U.S. 745 (1983), Evitts v. Lucey, 469 U.S. 387 (1985),  Smith v. Murray, 477 U.S. 527 (1986),  Pennsylvania v. Finley, 481 U.S. 551 (1987), McCoy v. Court of Appeals of Wisconsin, 486 U.S. 429 (1988), Austin v. United States, 513 U.S. 5 (Per curiam 1994), Smith v. Robbins, 528 U.S. 259 (2000); Swenson v. Bosler, 386 U.S. 258 (1967) indicating that the indigent does waive this right by failing to request it; Ross v. Moffitt, 417 U.S. 600 (1974) holding that the right to a free lawyer does not extend beyond the first appeal as a matter of right and does not apply to appeals from the state court to the USSC for a writ of certiorari; Martinez v. California, 528 U.S. 152 (2000) holding that appellate courts have the right to require that appellants proceed through counsel; Roe v. Flores-Ortega, 528 U.S. 470 (2000); Halbert v. Michigan, 545 U.S. 605 (2005) holding that the Douglas v. California right to counsel on appeal applies to indigents seeking first-tier discretionary appellate review of nolo and guilty pleas.

A couple of recent USSC right to counsel cases bear mention. In Alabama v. Shelton, 122 S.Ct. 1764 (2002), the USSC held that there is a right to counsel in misdemeanors where the sentence is suspended, e.g., a probated sentence where sentence is adjudicated but execution of if is suspended. (Apparently, this rule may not apply to deferred adjudication probation where both imposition and execution of sentence is deferred.) The prof said that Shelton will probably be retroactive to prior misdemeanor cases. See Berry v. City of Cincinnati, 414 U.S. 29 (1973).  It looks like Texas law, Art. 26.04 CCP, already gives indigent misdemeanants charged with jail-time misdemeanors the right to free lawyer.  See Art. 1.051 CCP. Also, in Martinez v. Court of Appeal, 528 U.S. 152 (2000), the USSC held that there is no right of self-representation at the appellate stage. A Texas case caught my eye. In Texas, death row inmates who are attacking their convictions by post-conviction habeas corpus are not entitled to effective assistance of counsel, only competent counsel. See Ex parte Graves, 70 S.W.3d 103 (Tex. Crim. App. 2002). [Note: There's a clarifying book about Clarence Gideon's quest for counsel. See Lewis, Anthony, Gideon's Trumpet, New York, Random House (1964), written by an acclaimed NY Times reporter. Of course, Gideon was the genesis for the emphasis on delivery of indigent defense.] If you want to read the latest on the subject of ineffective assistance of counsel, I recommend this bibliography of articles in the popular media, journals, books and reports; many of the current media (newspaper articles) resources are hyperlinked.

[One thing that bothers me in light of the current fear of terrorist attack -  If we give up these individual rights that other generations have fought and bled to protect because we are afraid of the remnants of a gang of thugs armed with $4 box-cutters and 19 plane tickets and how they may soon start trying to kill us randomly with NBC (nuclear, biological, chemical), will we be losing more than we gain? In the many years since 9/11 there has not been a single attack on U.S. soil that I know of. One idiot with a room temperature IQ was caught with a shoe bomb on a transatlantic flight. Common sense would suggest that many small attacks could have been made. In light of the current "preventive" war instigated by the U.S. against Iraq,  there will probably be future attacks. But I still wonder why so many folks are readily willing to give up the right of personal freedom that was gained by the blood of so many patriots in days gone by. It's a conundrum that my thought process can't unravel. It's strange how, as a student of criminal law, I feel slightly more like a potential murder victim than I did before 9/11 and the subsequent poorly labeled  "war on terror." Even weirder, could I ever be a criminal defense trial lawyer for a terrorist like the moronic "shoe bomber" or the cold-blooded "D.C. (Washington) snipers" or Oklahoma City Bomber Tim Mc Veigh and others yet to come and assert these individual Bill of Rights protections for him or her? Recently, I got an e-mail with this semi-poetic statement appended:

When they took the Fourth Amendment,
I was quiet because I didn't deal drugs.
When they took the Fifth Amendment,
I was quiet because I was innocent.
When they took the Second Amendment,
I was quiet because I didn't own a gun.
Now they've taken the First Amendment,
and I can say nothing about it."]

Dressler doesn't have much helpful information for this and the next two assignments. So I'll try to make up for the gap to help me get a better grasp on the right to counsel and the grand jury. There are some obvious T/F and M/C questions in these readings because the USSC case law is pretty "bright line" specific on the extension of each of these fundamental individual rights. I did hear the professor tell one of the the students after class to look at Art. 26.04 CCP re the right of the indigent Texas misdemeanant to a free lawyer. The prof said that  Art. 26.04 TCCP gives the accused indigent state misdemeanant a broader right to a free lawyer than the USSC does under the Sixth Amendment. It also appears, from looking at Art. 26.04, effective on 1/1/2002, that the Texas Legislature has done some band-aid therapy on the court-appointed attorney mess that we have had here in Texas, particularly in Harris County. [Apparently our longtime local system of judges appointing "go-along to get-along" crony defense attorneys was something of a nation-wide laughing stock to lawyers and the public in other parts of the country, where there are efficiently organized public defender offices. See Burdine v. Johnson, 262 F.3d 336 (5th Cir 2001) (en banc). For many years the indigent's right to counsel allowed Texas trial court judges to play favorites among would-be defenders, as to who gets the court appointments; these same judges can also receive direct political contributions ($$$) from the very lawyers they appoint and pay (+- $18M per annum in Harris County) to represent indigents. I wonder if some Texas judges are sometimes forced to cleave to that which is politically expedient, rather than that which seems right and beyond all reproach. But isn't there something wrong with a process, particularly one that purports to be adversary in nature, that makes trial court judges financially dependent on the criminal defense lawyers who practice before them and vice versa. With the pressure on judges to move their dockets, how can they be entirely politically comfortable with appointing lawyers who will put up a terrific defense for the accused and maybe even tie up the court by insisting on the accused's constitutional right to have a jury trial? If you are interested in reviewing the work of the Texas Task Force on Indigent Defense, you can decide whether the millions of taxpayer  dollars that have been spent on perpetuating an assigned counsel system is meritorious. Read this report:  Lethal Indifference: The Fatal Combination of Incompetent Attorneys and Unaccountable Courts. My own view is that the Houston, Harris County, Texas system remains fatally flawed insofar as providing adequate defense services to the indigent accused. Why? Here are a few reasons: There is no parity between assigned defense counsel and the prosecution with respect to resources; defense counsel is not included as an equal partner in the criminal justice system; assigned defense counsel is not provided with adequate free continuing legal education; defense counsel is not supervised and systematically reviewed for quality, competence, and efficiency according to national and statewide standards; there are inadequate safeguards to ensure that counsel's ability, training, and experience matches the complexity of the case; assigned counsel's workload is not controlled to permit the rendering of quality representation; assigned counsel is not furnished promptly, e.g., upon arrest; and, the public defense function, including the selection, funding, and payment of defense counsel, is NOT independent and free from political influence because the judiciary still maintains too much oversight in deciding who will represent the accused indigent.   The logical solution: A top-notch politically independent PUBLIC DEFENDER'S OFFICE, e.g., San Diego, Seattle, New York and an appointment system that is subject to judicial supervision only in the same manner and to the same extent as retained counsel. There should be state funding and statewide standards to assure uniform quality of lawyering statewide.  Of course, the problem of delivering adequate defense services to indigent accuseds is not specific to Texas or to Houston, Harris County. The problem would not be solved with an inefficient, politically wired public defender office. Our city is not alone in having a questionable system for delivery of defense services; many jurisdictions have underperforming public defense services that are underfunded and understaffed. Here's the way the federals handle court-appointed attorneys when they don't use federal public defenders from local Federal Public Defender Offices.] One other problem in the right to counsel area comes to the surface when a defendant has appealed to the court of appeals and loses there. Within a very narrow thirty day window of time, there is a right to petition the Court of Criminal Appeals for discretionary review; however, there is no constitutional or statutory right to counsel to assist in doing so; as a consequence, many indigent defendants wind up not affording themselves the opportunity to file a pro se petition for discretionary review because their court appointed appellate lawyer failed to advise them of their right to file the petition.

GRAND JURY - I discovered this informative web site on grand juries on the list of links in our own class' web page of links to criminal law sites.  I also found the handbook that the government gives to federal grand jurors and some tips for the unwary from a defense lawyer. I also found a web page that lets me see what hundreds of indictments of infamous people look like.  There's even a site containing the 1977 grand jury testimony of the 13 year-old female complainant in the Roman Polanski sexual assault  investigation. But the second most interesting web page is the one containing the 1903 pages of highly focused grand jury investigation into my man, the late Jacko. Finally, I found my favorite - President Clinton's grand jury testimony in the independent counsel's investigation of the Paula Jones sexual harassment lawsuit before it ripened into the Monica Lewinsky Oval Office up-against- the-wall prison sex case. Is it possible that I'm the only student in the class to look at the links page. If so, should I be keeping this to myself? Nah, because, under that logic, no one will ever read these notes either.

It's clear that the professor believes that, for most purposes, grand juries are putty in the hands of prosecutors. But he did say that many famous investigations have been launched by means of a grand jury investigation, sometimes independent counsel investigations, e.g., Watergate, Ex-President Clinton, etc. The investigative grand jury becomes a sword in the prosecutor's hand rather than a shield for the accused. Prosecutors wind up using the grand jury's subpoena power to call witnesses and subpoena evidence, e.g., the dark navy Monica dress with Mr. Clinton's telltale DNA love tracks all over the front that lit up like Times Square under luminol spray and sealed the morals and perjury case for impeachment against our ex-President. The prosecutors can then use immunity to defeat a grand jury witness' claim of the privilege against compulsory self-incrimination by giving the witness use immunity for what s/he says in front of the grand jury. I can see how you could build a case from scratch, just using the grand jury to make people talk.  If the witness has immunity and doesn't talk, s/he's subject to a judicial finding of being in contempt of the grand jury and will be ordered to jail until s/he purges himself of contempt by answering the questions of the grand jury, like the poor lady in the Carradine case who refused to testify against the Blackstone Rangers Chicago street gang members. [Idea: Could the authorities get some answers in the current multi-pronged investigation of terrorism by using a grand jury investigation and sharing the information uncovered with intelligence agencies and the military. That would seem to be an extension of the grand jury's power.] Note: The Fifth Amendment requirement of indictment in a capital or infamous crime in federal cases has been held by the USSC not to apply to state court criminal defendants. See Hurtado v, California, 110 US 516 (1984). But look at the Texas Bill of Rights, and you'll find that Texas affords this right as a matter of state constitutional law. For the procedure of selecting grand juries in Texas, see TPC Chapter 19 - Organization of the Grand Jury, Chapter 20 - Duties and Powers of the Grand Jury, Chapter 21 - Indictment and Information.

One of the chaps in our class asked the professor whether a prosecutor had a duty to present exculpatory evidence to the grand jury.  The prof said that the USSC doesn't require it . See U.S. v. Williams, 504 U.S. 36 (1992). But, he said some state jurisdictions do require it. See Nev. Rev. Stat. Sec. 172.145(2); Sheriff, Clark County v. Frank, 734 P.2d 1241 (Nev. 1987); Johnson v. Superior Court of San Joaquin County, 539 P.2d 792 (Cal. 1975). I thought that grand juries in theory were supposed to serve as the both a shield and a sword. If they are so totally under the thumb and control of prosecutors, it's hard for me to see how they can be anything but a sword? At any rate, the prosecutors seem to call the shots. The prof's indicated that the average time spent by Harris County grand juries in reviewing each felony case for indictment is + or - 3 minutes.]

The prof talked briefly about the Texas examining trial under Art. 16.01 CCP and the way a Texas prosecutor can avoid an examining trial by obtaining a "hurry-up" indictment from the grand jury. The Texas "examining trial" is equivalent to the federal "preliminary hearing." Both are antecedents to consideration of the case by the grand jury.  Some states, e.g., California, use the preliminary hearing as an alternative to a grand jury in felony cases. If I remember that's what happened with the ubiquitous  "OJ." in his L.A. murder trial.

Other sources of rights:  The Declaration of IndependenceUS Constitution .   [Historical Note: As future lawyers and protectors of the Constitution, perhaps we all need to read the documents that set up the framework of this huge multi-tiered and hued nation that we inhabit. One day before the beginning of spring 2003, the President ordered our troops to war against the nation of Iraq. Article I, Section 8, of our Federal Constitution gives Congress power to declare war. Art. II, Section 2 makes the President Commander in Chief of the armed forces.  But it's not necessary that Congress to declare war for a President to give the order to attack a foreign country.  I think Congress has declared war only four times: 1812, Spanish-American War, World War I, and World War II. In a war, intentional killing is sanctioned, promoted, and rewarded with medals. The winners sometimes try the losers for war crimes. The moral order of  proscriptions against homicide that we have studied in the crimes course for the past eight weeks may seem to be tipped on its head, but the lawful conduct of war is one of the circumstances in which deadly force is authorized. Look at Section 9.21 (c) TPC.  Anger and fear seems to rule the war days. The side that starts it, the first aggressor or, in situations like Panama and Iraq, the preemptive attacker, has to have motivation, e.g., hate or fear of the folks it is trying to kill or desire for something they have. I wonder: Is there a potential danger that we may lose our own Constitution in the process of winning wars we wage against rogue individuals and countries? If that happens, will we have lost it all? I worry that at some point Due Process of Law may seem expendable and that economy of operations may beckon us to concentrate the power of our nation in the executive branch, with the co-equal branches, i.e., Congress and the courts, deferring to the will of the Commander-in-Chief. As ex-President Bush tried to stack the deck against suspected terrorists by detaining them indefinitely, weren't we deviating from the democratic process? If so, does this presage tyranny? In trying to protect what we have, I hope that we don't lose a couple of things that make life worth living for each of us 300,000,000 points of light... individual liberty and tolerance under the rule of law. Is the Republic in danger from forces within? If our Constitution ever does come under attack, it's us future lawyers who will need to be in the front lines supporting and defending it.  Wasn't it James Madison who wrote:

"I believe there are more instances of the abridgement of freedom of the people by gradual and
silent encroachments of those in power than by violent and sudden usurpations.]  

Wrap time. "And so," in the words of Dr. Samuel Pepys, "to bed." And as Scarlet said, "Tomorrow is another day."

UNIT FOURTEEN - Entrapment

The power of a government is abused and directed to an end for which it was not constituted when employed
to promote rather than detect crime and to bring about the downfall of those who, left to their own devices,
might well have obeyed the law. Human nature is weak enough and sufficiently beset by temptations
without government adding to them and generating crime.

Justice Felix Frankfurter
Sherman v. United States, 356 U.S. 369 (1958)

The subject for this unit is entrapment (1), (2). For some reason, through five editions Dressler's UCL still doesn't deal with the defense of entrapment. He continually leaves us law students hanging out to dry on this one. To me, it makes zero sense to ignore entrapment as a defense since it is a defense at the federal level and also in virtually all the states, including Texas in Section 8.06 TPC and Section 2.13 MPC in one form or another. See Bullets II. I notice, however, that it is not a defense that the U.S. Constitution mandates. We have it in federal courts because of the pronouncements of the USSC. We have it in Texas because our legislature put it in the penal code. Apparently, entrapment is a concept that is pretty much unique to the US and was not part of the English common law or for that matter the law of Western Europe. Hey, we Americans are smart. We have learned the hard way not to put too much trust in government officials, including ones with badges and guns. Many politicians are suspect. (Like papa used to say "politics" is a two part word - poly meaning "many" and tics meaning "blood sucking parasites.")  Maybe we should also be almost as wary of the people we allow to have physical authority over us as we are of common street hoodlums in dark alleys and high-ranking executives deceptively urging us to buy more stock in their bankrupt company! Anyway, one of the important things about entrapment is that it only applies to agents of the government, i.e., law enforcement agents and their operatives including informants, but not private persons. (More about that below)

Some crimes are comprised of nothing but willing participants. In this sense, there may be no identifiable victims who can be expected to come forward report the crime or otherwise "go the the cops." Such crimes include prostitution, gambling, pornography, and drug trafficking (all those vices that some folks really get off to). Some call these "victimless crimes." [Note: The landmark federal case on entrapment, United States v. Russell, 411 U.S. 423 (1973), involved an undercover sting to arrest some meth cookers. Allow me to say that I know some good people who have had their lives ruined by meth. If you don't know about this highly destructive drug, look at the documentary World's Most Dangerous Drug VIDEO . Some drugs are not "victimless."]

If we expect law enforcement to apprehend and courts to prosecute wrongdoers in these so-called "victimless crimes," it becomes necessary to use undercover officers (1 - the law enforcement rationale), (2 - drug law enforcement from the crime control perspective) and informants (1 - the law enforcement view) (To the defense, informants are known as "snitches" or "rats.") to become active participants in the planning and commission of the crime. If there were no legal right for the law enforcement agents or operatives to be participants in the offense, the officers might be viewed as complicitors (parties, accomplices, principals) in the crime. Of course, many of us believe that "Every man (or woman) has his (or her) price." If you can find out what that price is and agree to pay it, you can get people to do lots of things that may be defined as criminal. See the federal cases of Lopez v. United States, 373 U.S. 427 (1963) and Osborn v. United States, 385 U.S. 323 (1966) discussing the use of informers.

The early American C/L didn't provide for the defense of entrapment. The defense got its legs in federal court when the USSC in the 1932 case of Sorrells recognized that the government couldn't conceive an offense and procure its commission by one who wouldn't have perpetrated it except for the persuasion and inducement of the government agent.

The entrapment defense seeks to strike a balance between what the law enforcement folks may do by way of investigation and what they cannot do by way of instigation of crime.The reasons for having such a defense are apparently to put a lid on how active the law enforcement community can be in improperly creating crime and to be sure that we are focusing our law enforcement resources on evil-minded crooks rather than using our resources to bend otherwise law-abiding folks into criminals by using overwhelming government pressure. When the government pushes our buttons to induce us to commit crime, entrapment may come into play as a defense. [I personally think everyone has a breaking point beyond which they will commit a crime. The folks in power just have to know what buttons to push - some of the buttons are money, power, sex, fame, greed, hate, fear, ethnicity, and religion.]

One thing I need to remember is that entrapment won't even be an issue unless there is an agent of the government involved in allegedly inducing the defendant to commit the offense. Notice that this would include not only a law enforcement agent, but also anyone acting under instructions from a law enforcement agent. So, as a private person, I can't entrap anyone, and a private person cannot entrap me in a way that the criminal law recognizes as an entrapment defense.

There are two views or approaches to the defense of entrapment. The first is the "subjective test" that focuses on the accused's predisposition or propensity to engage in the wrongdoing. It is based on the idea of drawing a line between the so-called "unwary innocent" and "unwary criminal." This subjective test allows the prosecution to show bad character evidence reflecting on the likelihood that the accused was predisposed to commit the crime, e.g., proof of prior convictions or prior bad acts or misconduct. The second approach is the "objective test" that focuses on the conduct of the law enforcement agent. I need to recheck MPC Sec. 2.13 for the objective "law abiding person" test, i.e., "persons other than those who are ready to commit it." The MPC follows the objective approach, looking principally at what the government did and not at the defendant's predisposition. Instead, the MPC inquiry focuses on what influence the government's conduct (inducement) would have on a law-abiding person, i.e., whether it would have induced a law abiding non-predisposed person to commit the offense 

In a sense, entrapment is like an exclusionary rule that excludes evidence because of police misconduct, except entrapment is a complete defense.  I may also read the professor's analysis of entrapment in his Guns material on reserve in the library. Someone said it contains an analysis of the federal rule of entrapment, the MPC test, and the TPC Sec. 8.06 entrapment test along with the Texas case styled England v. State, which presently "interprets" the Texas test as a largely subjective one, even though the same exact test was previously interpreted by an earlier court as being an objective test. [That makes me remember the Texas Monthly Article I saw in the November 2004 Issue, where they asserted that the Texas Court of Criminal Appeals is the "worst court in Texas" and that it is "ruled by a bunch of pro-prosecution, right-wing ideologues with one goal in mind: keeping inmates behind bars, no matter what." The Bushrod reaction is - maybe they've got the right idea.] Under the subjective test, police seem to be allowed to use special inducements to lure or target people with a known criminal history. [My question: Is it fair to add a bigger bait to hook the fish that is admittedly the hungriest? It seems like the guy with a prior record is dead meat for the undercover cop's table.] Using the defense of entrapment in a subjective (predisposition) test jurisdiction is risky for the defendant if the defendant has priors or a history of violations or clear motive to commit the offense because the character issue of subjective predisposition will allow the prosecution to introduce evidence to the jury of the prior convictions for similar offenses and prior acts of misconduct by the defendant that indicate a predisposition and evidence of motive to commit the offense; whereas, this evidence wouldn't be admissible as part of the entrapment issue in jurisdictions that follow the objective MPC test. Also, I plan to read the law about when you can claim entrapment and still testify that you didn't do the crime. [TX: no - Hubbard v. State, 770 S.W.2d 31 (Tex. App - Dallas 1989); McEntyre v. State, 717 S.W.2d 140 (Tex. App. - Houston [1st] 1986); Garrett v. State, 625 S.W.2d 809 (Tex. Crim App. 1981); Reed v. State, 421 S.W.2d 116 (Tex. Crim. App. 1967); Federal: yes - Mathews v. United States, 485 U.S. 58 (1988)]

This Jacobson case, the one about the Bare Boys magazines (1 - article re Jacobson) and the sequacious 56-year old veteran tuned rural farmer, seems to require under the federal subjective (predisposition) test that the government must establish that the defendant was predisposed to commit the offense and that the defendant's predisposition was not the product of government conduct; also, the Jacobson case makes it clear that even under the federal subjective test the prosecution must show that the defendant was predisposed before the government went to work on him. In other words, if he becomes predisposed only because of government conduct, he is considered as not being predisposed and is entitled to claim entrapment under the federal subjective entrapment test. Other older federal entrapment cases are Sorrells v. United States, 287 U.S. 435 (1932); Sherman v. United States, 356 U.S. 369 (1958); Osborn v. United States, 385 U.S. 323 (1966);and  Hampton v. United States, 425 U.S. 484 (1976). The case of Mathews v. United States, 485 U.S. 58 (1988) held that the defense of entrapment is available in federal court to defendants who deny the existence of one or more elements of the crime.whenever there is sufficient evidence from which a reasonable jury could find entrapment.

Obviously it makes sense to set a thief to catch a thief. But, one of the things that bugs me about using informants to catch crooks is that our government (the guys who carry badges and guns, while the rest of us carry umbrellas and lunch pails) may use big crooks to catch little crooks and let the big crooks "walk" for their help. Why use sharks to catch minnows? Somehow that seems wrong.

In Texas, entrapment is a defense. That means the defense has the burden of raising the issue (production), but, once raised, the prosecution must prove beyond a reasonable doubt (the burden of persuasion) that the defendant was not entrapped. The same is true in federal court. Of course, some jurisdictions keep the burden of persuasion on the defense.

The constitutionally based due process "outrageous government conduct" defense, hinted at in Russell, appears not to have gained any widespread acceptance. [Note: Remember that Rehnquist's opinion had said in dictum, "While we may some day be presented with a situation in which the conduct of law enforcement agents is so outrageous that due process principles would absolutely bar the government from invoking judicial processes to obtain a conviction, the instant case (i.e., Russell) is distinctly not of that breed."] The idea was that wholly aside from entrapment there would be some situations where the conduct of the government in involving itself in criminal activity would be so egregious and forbidden that due process would bar conviction of the defendant who might be precluded from the entrapment defense because of predisposition. This argument turned out to be a non-starter and was subsequently repudiated by Rehnquist in Hampton  It looks like all that defendants have is the non-constitutionally based defense of entrapment. [My question is this: Isn't the policy of preventing "outrageous government conduct" already built into the Section 213 MPC objective test of entrapment? To me, it seems to be.]

Looking ahead - It looks like we are getting ready to make another major change of topics. I am reading ahead and notice that the next three readings cover what might be called constitutional due process or constitutional criminal procedure, .i.e., the application of provisions of the Bill of Rights to defendants in the criminal justice process and the implications of delivering certain basic and fundamental procedural rights to accused criminal defendants across the U.S. in both federal and state court proceedings. In the readings that follow those, we discuss the inchoate crimes of solicitation, conspiracy, and attempt and then examine the theory of complicity that allows one person to be held vicariously criminally liable for the crimes of another.

Carpe diem.

Unit Thirteen - Defense of Habitation (The Castle Exception) -  Use of Force to Resist & Effect Arrest - Use of Force to Defend Property - Use of Force in Law Enforcement - Citizen's Arrest - Consent to Force

Home is the place, when you have to go there, they have to take you in.
Robert Frost - The Death of the Hired Man

The poorest man may, in his cottage, bid defiance to all the force of the Crown. If may be frail, its roof may shake,
the wind may blow through it. The storms and rain may enter, but the King may not.
All his forces dare not cross the threshold of the ruined tenement.
William Pitt

(1) "Go ahead, make my day."      (2) "You gotta ask yourself one question: 'Do I feel lucky?' Well, do ya, punk?"
  (1) Harry Callahan (Clint Eastwood) Sudden Impact  (2) Harry Callahan (Clint Eastwood)  Dirty Harry
[Harry's conduct with perps is the thing law school questions re use of force are made of.
Watch  any or all of 'em and  decide if the law enforcement Inspector is legally justified?  (1 - 2 - 3 - 4)]

Ciaody everybody. The subject for this unit is defense of property and use of force in law enforcement. The MPC deals with use of force in defense of self, others, property, and in law enforcement in Sections 3.04-3.07. The TPC does so in Sections 9.41 - 9.44 and 9.51 - 9.53.

On defense of property, it appears that the C/L valued human life, even the life of a thief, over the value of property. Therefore, it permitted only the use of non-deadly force to defend property. From the reading, it seems that at C/L one could use non-deadly force to protect real or personal property from imminent damage, destruction, taking, trespass, or dispossession. The defender could also use non-deadly force to reenter real property to recover personal property immediately after it had been taken. If I am understanding this correctly, at C/L if a property owner used deadly force against a thief who was simply stealing property without any threat of deadly force, the thief has the right to respond with deadly force to the property owner's use of deadly force. Why? Because the property owner's use of deadly force solely to protect his property was "unlawful force." The C/L does seem to recognize a special right to use deadly force to protect your dwelling with deadly force when there is something more than a mere trespass to it. From the reading, most (certainly not Colorado from the "make my day" defense of dwelling statute) jurisdictions seem to require that the right to use deadly force in defense of the dwelling (home) occurs only when the wrongdoer intends to commit a felony within the dwelling or intends to seriously threaten its occupants.

On the issue of recapture of property that has been wrongfully taken from someone, my understanding is that the C/L courts also do not allow the use of force or deadly force to get it back, except where non-deadly force is used to recapture the property immediately after the dispossession, i.e., in hot pursuit.

Checking the MPC Sec. 3.06, I find that it permits the use of non-deadly force to defend real or personal property - to defend against entry or trespass onto real property or to prevent another from taking personal property.

The TPC Secs. 9.41 and 9.42 cover the use or force and deadly force to protect property. The prof said the old Texas unwritten cattleman's rule is that "We don't have any cows that need stealing, but we do have some rustlers that need hanging!" So, the old-timers out West gave them a fair trial and hung 'um. It looks like Texas has a more generous rule regarding the right to use deadly force to protect property than the C/L and MPC.  Note: I can't find any specific "Castle Doctrine Exception" in Texas that gives you an automatic right to use deadly force against an intruder who's trying to break into your home - except that under Sec. 9.32 (b) the Texas retreat rule seemingly doesn't apply when you have an intruder committing the offense of unlawful entry against our habitations. As the teacher pointed out, even that statute is poorly drafted, e.g., it says "force" not "deadly force." Even with the 2007 changes to the TPC, Texas still doesn't seem to have a statute like the Colorado "make my day" statute that assures the citizens "absolute" security in their homes from illegal entry. Should we?  That could be a good policy question for our group to discuss, but it won't be on the Multistate Bar Exam.

We also discussed the use of  force and deadly force (1) in law enforcement (VIDEO). [The last several sessions have all been talking about defenses that justify or excuse a person in" using force or deadly force against another person.] This is really a two part consideration. One part is the right to use deadly force in the prevention of crime. (In Texas, I think they may call this "use of force or deadly force to prevent the consequences of certain named crimes.") The other part is the right to use force in the arrest or the prevention of escape of those who have already been arrested.

Shooting the Texas nighttime bicycle thief in the back with a deer rifle as he pedals off on your bike: As to this question of whether you can use force an/or deadly force to prevent the consequences of certain named felonies, the teacher asked us what force a Texas bike owner could use if she were in her third floor apartment and saw someone break the lock on her bicycle and start riding off on it. Let's take a peek at the Texas statute on use of deadly force to defend property; it looks like Sec. 9.42 TPC would allow the bike owner to use deadly force, e.g., a deer rifle with a scope, if the theft of the bike were at nighttime and it was reasonable to assume that the bike could not be recovered by any other means unless she used deadly force to prevent the thief from escaping with the bike. If she plugged the bike thief during the daytime, she's SOL under the deadly force in defense of property provisions That part of Sec. 9.42 (2) (B) TPC applies to one who is fleeing with property immediately after committing the property crime of burglary, robbery,  aggravated robbery, or theft during the nighttime. If it were a daytime theft, the statute wouldn't justify the use of deadly force to prevent the escape with the property. [Wow! It would take a pretty cold heart to drill a bicycle thief in the back. But I guess there aren't any bikes that need stealing in Texas. Maybe I'd just try to "wing" the dude.] You can also use deadly force under Sec.9.42 (2) (A) TPC to prevent the imminent commission of the property crimes of arson, burglary, robbery, aggravated robbery, theft during the nighttime, or criminal mischief during the nighttime.

On the issue of the use of force by peace officers and citizens to apprehend (arrest) and to prevent escape of criminal suspects (1), I think the common law rule is: Peace officers, e.g., police, have the C/L power to use non-deadly force when they reasonably believe it necessary to make a lawful arrest for any crime (felony or misdemeanor). Deadly force may be used by peace officers if they reasonably believe it to be necessary to prevent a felon from escaping or fleeing from arrest. This must be the fleeing felon rule. So, at C/L, in the case of the guy who is riding off on the stolen bicycle, it looks like the C/L might have allowed us to use deadly force to stop the bicycle thief if the bicycle theft was a felony. Whether it was a felony would seem to depend on the value of the bike. If it was expensive enough to be of the value that makes it a felony, the traditional C/L approach would appear to allow the use of deadly force by police, not to protect property, but to stop the fleeing felon. Apparently, deadly force cannot be used at common law to prevent the misdemeanant who is fleeing from arrest though it might be necessary in response to deadly resistance by the misdemeanant. Tennessee v. Garner, 471 U.S. 1 (1985), emphasized by the prof, puts Fourth Amendment (protection from illegal seizure by agents of the government) constitutional limits on the common law authority of peace officers, e.g., police, to use deadly force to arrest (apprehend ) a fleeing felon. (1 - article re deadly force by cops) (2) But notice that the Bush court recently upheld the action of a cop who used his prowler (cruiser) to tap a fleeing misdemeanant's car causing the guy to become a paralytic in the ensuing wreck. See Scott v. Harris, 550 U.S. 372 (2007) holding that the fleeing crook's actions posed a serious threat of serious bodily injury or death to others. To me, Garner and Scott indicate that deadly force by law enforcement agents (acting for the state) to arrest a fleeing felon or misdemeanant is allowed only when: (1) it is necessary to prevent the felon/misdemeanant from escaping arrest, (2) if practical, a warning is given, and (3) the officer has probable cause to believe the fleeing felon poses a serious threat of death of serious bodily injury to others if he is not arrested. So, peace officers of any kind (cops to FBI) are not allowed to use deadly force to arrest a fleeing suspected felon/misdemeanant who is unarmed and non-dangerous. So with them, it's the old "Stop or I'll shine my flashlight on you" dilemma. (My question is, "How do they know whether he's packing heat or has a bomb strapped to his waist?" I suppose it will depend on reasonable appearances and the prevailing circumstances.) Since the Fourth Amendment protects us only from the government, Garner doesn't apply to arrests by non-governmental persons, such as lay citizens. [ I need to keep in mind that arrest situations in real life and on the exam  may also give rise to self-defense, defense of others, and defense of property scenarios.]

The teacher called our attention to Sec. 9.51 and 9.52 TPC dealing with the right of peace officers and citizens to use force and deadly force to make arrests. Looks to me like Texas citizens acting on their own can make arrests, but can only use force, not deadly force. Peace officers and citizens, under direction of a peace officer and in the  presence of the peace officer, can use force and deadly force in the appropriate circumstances under the TPC. Under 9.52 TPC, in the case of escape, a peace officer or a corrections officer can use any force (including deadly) that is immediately necessary to prevent the escape of a person from the correctional facility.

Consent to Assault/Battery - Let us now consider briefly the the issue of consent as a possible defense to assault (or battery) type crimes that involve the use of force.  The MPC deals with consent to force in Section 2.11. I know the TPC and MPC have aiding suicide crimes. But what about sports, sex, surgery, etc, where one consents to another person doing things to her/him that one wouldn't allow any yoyo from the street to do? TPC Section 22.06 creates a defense to assault, aggravated. assault, and deadly conduct (See Sec. 22.05 TPC) when there was not SBI or threat of it or when it is part an occupation or recognized medical treatment or recognized scientific treatment. But what about where SBI or death is inflicted. Consent doesn't seem to be a defense to what would otherwise be criminal homicide.  Favorite animals we like to fight and bet on include chickens (cockfights), dogs (dogfights) and men (prize fights). So, what if an amateur or professional boxer kills an opponent in the ring or a amateur or pro hockey player "high-sticks" an opponent to the temple and kills him or her? Like, I went to a fight and a hockey game broke out! Consent doesn't seem to be a defense. The level of crime, if any, would appear to depend on the mens rea of the actor. If the athlete intends to kill or knowingly kills the opponent, it would seem to be murder in Texas.

Parents Using Force (Spanking) Against Children - "Do not withhold discipline from a child; if you punish him with the rod, he will not die. Punish him with the rod, and save his soul from death." - Proverbs 23:13-14 This one last thing that troubles me: Should parents, stepparents, and/or people in loco parentis (in the place of the parents, e.g., guardian) be able to use physical force to discipline their kids? If we use violence or the threat of it to settle disputes with our kids, are we teaching them that corporal punishment is the way to deal with controversy? They don't allow corporal punishment of prisoners doing time. Supposedly, we don't torture prisoners of war or "enemy combatants." (Pretend drowning doesn't count - See Bullets VII) On the other hand, I turned out okay, and, when I was a kid, my mom and dad, who were great people, occasionally used the threat of corporal punishment to make me behave. Research seems to suggest that parents who spank their kids may risk creating some long-term behavior problems with violence and depression in their kids. If we allow corporal punishment of kids, where do we draw the line between discipline and abuse? Does a permissive society that is totally focused on developing little Johnnie's self-esteem by not spanking him allow kids too free a rein? As to teacher's' right to use force on students for purposes of discipline, the stats show that twenty-seven states (not Texas, which does allow educators to use non-deadly force for discipline, see Section 9.62 TPC) ban school corporal punishment.  Nearly all states ban it in day-care, group homes, and foster care families .What do you think the public policy should be? See MPC Section 3.08 justifying the use of force (not deadly force) toward a person if the actor is the parent or guardian or other person similarly responsible (in loco parentis) for the general care and supervision of a minor or a person acting at the request of such parent guardian or other responsible person and (a) the force is used for the purpose of safeguarding or promoting the welfare of the minor, including the prevention or punishment of his misconduct and (b) the force used is not designed to cause or known to create a substantial risk of causing death, serious bodily harm, disfigurement, extreme pain or mental distress or gross degradation. [Note: Section 3.08 MPC also has provisions applying to teachers, guardians, doctors, prison wardens and persons responsible for the safety of a vessel or an aircraft.] 

I'm getting weary. Maybe I'll come back and add some stuff to this later. Some of it is probably doctrine that I will want to know. [Fact: We are more than half-way through the semester! Let us be grateful for small blessings. Pax.]


The Homicidal Infant - D sees 4 year old V1 holding a loaded pistol with a hair trigger at the head of 1 year old V2. D reasonably concludes that the only way to keep V1 from shooting V2 is to shoot V1. D does so with intent to wound, and V1 dies from the gunshot. Is D liable for any type of criminal homicide? What crime? Any defenses? Defense of a third party? Was V1 "unlawfully attacking" V2? Note that V1's defense would be age (immaturity) or perhaps lack of mental capacity. See MPC Section 3.11(1).

The Mistaken Hunter Killed by the Birdwatcher - The proverbial hunter is just about to shoot the proverbial bird-watcher under the mistaken belief that the bird-watcher is a deer. May the bird-watcher who recognizes that he is going to be shot by the hunter use deadly force in self-defense against the hunter? Is the hunter using unlawful force against the birdwatcher? May a third party, who sees this, use deadly force to protect the bird-watcher?  Would the hunter be criminally liable if he shot the birdwatcher? What defense would the hunter have? Mistake negating mens rea?

What Effect Does the Existence of a Defense Have on the Unlawfulness of the Aggressive Conduct - If the person who attacks you is not criminally responsible, e.g., insane, a child, coerced into attacking you, or mistaken about whether you present a danger, may you nevertheless defend against that person when s/he uses force against you? The MPC says "yes" because it allows you to defend against conduct that is excused, as in those examples, but not against conduct that is justified. See Section 3.ll(1). The courts of other jurisdictions typically say, "Yes."

A Coercive Threat Against Property - D, with a match and a can of gasoline in his hands, threatens V1 that if V1 doesn't punch V2 in the tummy, D will set fire to V1's new Lexus parked beside D. V1 strikes V2 in the stomach. V1 is charged with assault of V2. Does V1 have a duress defense? Doesn't duress smack of self-defense or defense of a third party in the sense that it applies to defending yourself or another, not your personal property against unlawful force?

Acting Under Superior Orders - Superior officer D1 orders subordinate D2 to shoot innocent civilians in a war. Does D2 have a legal duty to refuse to carry out the order? Is D2 guilty of murder if he follows the orders or does he have a defense? See MPC Section 2.10. The TPC contains no guidance re the defense of acting under superior orders.

Note: Reckless Injury of Innocent Third Persons - It seems that, in most states, if the defendant is lawfully exercising self-defense but accidentally hits a third person (TP), the self-defense claim is good re the injury to TP. But if the D is reckless or criminally negligent as to TP and kills or injures TP, D may be liable for criminally negligent homicide or manslaughter or any assault where recklessness or criminal negligence can be the mens rea.
See MPC Sec. 3.09(3) and TPC Section 9.05.

Unit Twelve  Self-Defense (Perfect & Imperfect) - Defense of a Third Party :

Percy Foreman's Theory of Self -Defense to Murder - You make the jurors
so mad at the victim that they want to dig him up and kill him all over again.

She shot him in the back before he hit her first.

Don't ever hit your mother with a shovel. It leaves a dull impression on her mind.

Beat your child once a day. If you don't know why, he does.
Chinese Proverb

Never start an argument with your hands in your pockets.

Unit Twelve keeps us in the middle of the justification and excuse defenses. In this Unit it's self-defense (1), (2) a legal concept whose niceties have evolved in the common law over nine centuries but whose basic structure has changed little. Let's start with the battered spouse and battered child syndromes (1 - Wiki), both of which appear to be specialized offshoots of self-defense, particularly when to the normal person it looks like the battered spouse or battered kid kill the other spouse or the parent under circumstances where danger doesn't appear imminent. [Note: Take a look at these two books by Lenore Walker to understand the syndrome - The Battered Woman, HarperCollins (1979) and Terrifying Love: Why Battered Women Kill and How Society Responds, Harper Collins (1989).] Both of those syndromes create a highly subjective gloss that is put on the customary requirement that the danger be reasonably imminent or immediate before one can act is self-defense. What do we do with the spouse who shoots or stabs her sleeping spouse? Consider the case of Janice Leidholm who stabbed to death her abusive husband, Chester, while he was making Z's. Janice and Chester spent time beating on each other. [Was it Janice who said, "Chester wasn't a sensitive man; he never cried when I hit him."] I'm against domestic violence ( 1) and  violence against women (1); I'm even sympathetic to battered men,; but is execution the proper remedy? Have we over-glorified these pistol packin' mommas and made being a "victim" a popular status? Are we too ready to see women as less blameworthy than men or more likely to be victimized? These preemptive (preventive) strikes (kinda like the "preemptive," but maybe more like "preventive," rules-of-war changing attack we launched against Iraq based on the presence of alleged "weapons of mass distraction" and the discredited connection between the late Saddam and Al Kaeda) may be okay in war, but they look like criminal homicide (premeditated intent to kill murder) to me. [Back in the Civil War days there was a saying, " A woman, a dog, a walnut tree - the more you beat 'em the better they be." That philosophy today leads directly to a Borneo death cell. Without doubt, male assaults on females and kids are per se ironclad wrong. Even irreverent W. C. Fields (1880-1946) said, " I never struck a woman in my life, not even my own mother." Men who worry about being knifed in their sleep should be apprised that no woman has ever shot a man while he was washing dishes.] Maybe these are MPC manslaughter killings of people acting under the influence of extreme "emotional" (maybe "mental" too, if there is a mental disease or defect involved) disturbance for which is a reasonable excuse. In Texas, Art. 38.36(b) CCP. might entitle Leidholm to put on evidence of family violence and produce expert evidence concerning the battered spouse syndrome in connection with their justifiable self-defense claims. [Note: Re the Texas procedure that lets a defendant get some proof (factual and expert) of the battered spouse or child into evidence -  Just in case this is on the test, I looked up Art. 38.36 (b) CCP that says the accused could show that s/he had been a victim of acts of "family violence" as defined by Sec. 71.01 of the Family Code.  I started wondering what that definition was. So, I also looked it up. It says that "family violence" means: "An act by a member of a family or household against another member of the family or household that is intended to result in physical harm, bodily injury, assault, or sexual assault or that is a threat that reasonably places the member in fear of imminent physical harm, bodily injury, assault, or sexual assault, but does not include defensive measures to protect oneself."] As a backup position in Texas, Janice Leidholm might claim the killing to be adequately provoked emotional killings for which their punishment should be mitigated, assuming there was something the husband did to adequately provoke them to deadly action before cooling time set in. One might look at these killings as diminished capacity killings where the accused was under emotional (and /or Section 210.3(1)(b) MPC mental) strain. Imperfect self-defense might also work, if TX or the C/L had it, which they don't. He was your man, and he did you wrong, but lay that pistol down babe! I checked the FBI Uniform Crime Reports and found that 75% of murder victims are males. One-third of female murder victims were killed by a husband or boyfriend. [Aside: Ms. Andrea Yates (1) who drowned her five small children and was eventually acquitted of capital murder might have difficulty successfully claiming extreme mental or emotional disturbance under Section 210.3 (b) MPC manslaughter. Why? One could argue that there was that there was no "reasonable" explanation or excuse for her extreme mental or emotional disturbance. Provocation (mitigated murder based on emotional , g., sudden passion, disturbance) in Texas wouldn't work because the children didn't adequately provoke her.]

Self-defense is sometimes described as nature's eldest law. A philosopher said, "Civilization is nothing more than the effort to reduce the use of force to the last resort." The things that stand out re self-defense are that under the C/L and TPC there must be a reasonable belief (the MPC in Sec. 3.04 says only "believes") that force is immediately necessary to protect oneself against the other person's use or attempted use of unlawful force. So, I'm looking for reasonable belief that one is in immediate danger of an unlawful bodily attack. First, what do we mean by "unlawful"? "Unlawful force" is defined in MPC Section 3.11(1). TPC Section 1.07(48) defines "unlawful" as "criminal or tortious or both and includes what would be criminal or tortious but for a defense not amounting to justification or privilege." (emphasis mine) The C/L and TX seem to require both  the actual subjective belief and that it be objectively reasonable, but the MPC in Sec. 3.04 seems to make it simply an actual  subjective belief, as modified by Sec. 3.09 MPC. Also, the amount of  force that a defender uses in response to an unlawful attack must be reasonable and proportionate.  This means that I can't justifiably kill someone for intentionally elbowing me in these crowded school elevators, i.e., one is not allowed to meet  the threat or use of non-deadly force with deadly force. Remember the Roman saying, "Arma in armatos sumere jura sinunt." - The laws permit the taking up of arms against armed persons. Under TPC 9.31(b) (1), it also looks like one can't use force against another person as a response to words alone. Another thing is that self-defense involves the right to use force to defend against unlawful force.  "Unlawful" is defined in TPC Section 1.07 (48) to mean criminal and/or tortious and includes what would be criminal or tortious but for a defense not amounting to justification or privilege. (Texas obviously got that definition from the MPC Section 3.11 (1).  If the force being used against one is lawful, e.g., a lawful arrest, then the right of self-defense won't be available. That takes me to another interesting thing that I noticed -  the right of self-defense can be exercised against so-called "apparent attack" as well as against "actual attack." That seems to mean that if you are reasonably mistaken about being under attack, you are justified in using force in self-defense, even if you find out, after the dust has settled, that you really weren't in danger at all. It makes sense to me that a defender should be allowed to act based on reasonable appearances. [Note: Our study group came with the hypo of A who shoots and kills B under the erroneous belief that B was about to shoot and kill her (A), when in truth B was trying to protect A by shooting murderer C, who was about to stab A in the back. Our question is whether A has a self-defense claim for shooting innocent B. Would self-defense require that A's erroneous belief that she was under deadly attack by B have to be reasonable? If  A's mistaken belief was sincere and in  good faith but was unreasonable, would A's killing of B be only imperfect self-defense (in those jurisdictions that recognize it) or simply no defense at all?] Why wouldn't errors or mistakes of judgment on the part of a would be defender just be handled as the mistake of fact defense rather than self-defense? Maybe mistake of fact wouldn't work if it only negates a mens rea. These self-defense cases almost always involve an intent to kill or injure, even though there is a mistake re whether there is an actual danger.On the other side, I can see how you could argue that it isn't right that we justify or even excuse killing an innocent person. [Note: The only USSC case I could find on the issue of self-defense is Martin v. Ohio, 480 U.S. 228 (1987), holding that it did not violate due process to place the burden of production and persuasion on the defense; the high court did not hold that there was a constitutional right to self-defense.]

Force vis a vis Deadly Force - There are two types of force that the TPC and MPC recognize -  force and deadly force. (Which is this? First, second or third throw? If it kills you it's definitely deadly.) The way I understand this is that a defender may use force to respond to unlawful force. [It also looks like a person who is an attacker has no right to use force (or deadly force) in self-defense against the defender, unless the original attacker withdraws from the attack in a way that advises or notifies the original defender that the attacker is truly abandoning the attack, so that the danger from the original attacker has ceased.] Also, re deadly force, a defender can only respond with deadly force when threatened or attacked with deadly force. "Deadly force" is defined in Sec. 9.01 (3) TPC as force that is "intended or known  by the actor to cause, or in the manner of its use or intended use is capable of causing, death or serious bodily injury." All other forms of force would be considered simply as force (non-deadly force). "Serious bodily injury" is defined in TPC Sec. 1.07 (46).

Retreat  - Some folks subscribe to the proposition: Of all the alternatives, running is the best. Remember "Run Forrest, run." They reason that if God didn't want us to retreat, why did He give us legs? Other folks say its wrong to require law abiding people to have to run  from a bully. After all, isn't it the American way to stand our ground against evil wrongdoers. The issue of retreat comes up when you are defining when the right of self-defense will justify use of force or deadly force in self-protection. This seems to be important: No jurisdiction, except possibly Texas under the new idiotic Sec. 9.31 (e), (f) TPC, requires that a defender retreat before resorting to the use of force (not deadly force, only force) in circumstances that would otherwise give rise to the right to respond with force. So, under the C/L, MPC, and hopefully the TPC, there would never be a question of a retreat requirement when the defender is defending only with non-deadly force. It seems the C/L rule is that the defender may (not must) stand his ground and resort to deadly force when s/he is attacked with deadly force and it appears reasonably necessary. The MPC seems to protect bullies and thugs from being killed or seriously hurt when they, the bully or thug, attack an innocent law-abiding victim. From what I understand of the MPC retreat rule in Sec. 3.04(2)(b)(ii),  the general rule is that a defender can't use deadly force if there is a safe avenue of retreat available to the defender and he knows of it. So, if such an otherwise innocent person stands his ground and defends with deadly force against an unlawful deadly force attack, he will be deprived of the right to self-defense, i.e. he won't be able to rely on self-defense at his trial.. Thus, a hypothetical rugged self-reliant individualist who chooses to stands his ground against the unlawful deadly attack and uses deadly force, rather than retreating, couldn't rely on the self-defense at his MPC assault/murder trial. [ I wonder how many of those lily-livered folks who wrote the MPC have ever been mugged! The police can't be everywhere. If they are not there to protect me, I want to be legally able to meet fire with fire, if I choose to do so. If the unlawful deadly attacker may jump me in the future, I think the risk should be on him as to when I will or won't respond to his deadly attack. Why should the burden be on me to always flee, even though I'm in a situation where I feel capable of defending myself from his deadly attack? The next time he attacks it may be without warning, except when I feel the knife in my back or the bullet in my chest. If I can be sure that the original attack is isolated and that the deadly attacker won't ever attack me again, maybe the MPC rule makes sense.] There are exceptions to the MPC retreat requirement re the home or place of work and an exception to the exception. It looks like the initial aggressor still has to retreat from the home.  So, if H attacks W in the home, W would not have to retreat under the MPC. [Hint to myself: If the attacker's weapon is a gun, the retreat requirement would seem unlikely; but, if it is a knife or club, the defender may be able to get away without increasing the danger to herself. Also, never take a knife or club to a gun fight.] The old TPC retreat rule really sucked! Until September 1, 2007, it used to say that to retreat before using deadly force if "a reasonable person in the actor's situation would have retreated." Whoa! That gave me absolutely zero advance notice of when I have to retreat. The defending person who stood his ground and met  an unlawful deadly attack with deadly force found out after the fact from the jury whether he should have retreated. If I was ordinarily negligent, in the jury's eyes, for failing to high-tail it, I was completely deprived of my right to use deadly force in self-defense. And each individual jury made up its own mind about what the rule of reasonable retreat should be. On the same facts a stand-your- ground West Texas jury might have said a reasonable person would not retreat, whereas, a pantywaist Houston jury may have said a reasonable person would have run as though infused with the blood of hill country jackrabbit. That old rule seemed to violate the principle of legality or advance notice and also made Texas retreat law an ad hoc creature that depended completely on the whims of the particular jury as to whether I negligently failed to skedaddle before responding to an unlawful deadly force attack with deadly force.  On the retreat issue in TX, the defense lawyer wanted a bunch of "Nazi-U-boat captain" types who would gun down their own mother and wouldn't run from anything and the prosecution  wanted a "bunch of cowardly, Casper Milquetoast, avoid-violence-at-any-cost" jurors who would run from their own shadows. It all depended on the attitude of the jurors about standing up against a wrongful deadly attack or running. At least, the MPC retreat rule provides a concrete objective standard that can guide the actor in determining whether retreat is required. New Texas Retreat Law: With the new retreat law enacted on September 1, 2007, the rules of retreat changed. Why the Texas Legislature said anything about retreat in Sec. 9.31 (e), ((f) TPC, I don't know! The dimwit who wrote it obviously did not know that no jurisdiction has ever required retreat before moving to force, as opposed to deadly force. Now we don't know in Texas. As to retreat before using deadly force, see Sec. 9.32 (c)(d) which says "(c) A person who has a right to be present at the location where the deadly force is used, who has not provoked the person against whom the deadly force is used, and who is not engaged in criminal activity at the time the deadly force is used is not required to retreat before using  deadly force." and "(d) For purposes of Subsection (a)(2), in determining whether an actor described by Subsection (c) reasonably believed that the use of deadly force was necessary, a finder of fact may not consider whether the actor failed to retreat." See Silver Bullets II for more on Texas retreat.

I noticed that Texas also has a provision in the deadly force self-defense statute, Section 9.32 (a) (2) (B) TPC, that allows an actor who reasonably believes force is immediately necessary to protect her/himself against another's use or attempted use of force to use deadly force against another to prevent the other's imminent commission of any of a group of specific named felonies that endanger the person, i.e., aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery.  Of course, the defender has to be in a situation where he would be justified in using force to defend (not deadly force) against the threat to his person, but with these crimes that shouldn't be a problem. Think about how this could also play into the right of one person to defend another under Sec. 9.33 TPC when a third person sees one of these named inherently dangerous felonies apparently being perpetrated against a seemingly endangered innocent victim.  (See below.)

Self-Defense Exam Tip:  Regarding self-defense, first, I need to figure out if self-defense is an issue. It's bound to show up somewhere on the essay or objective portions of the exam. Then I need to figure out who is the aggressor (one who is an actual or apparent attacker) and who is defender (one who reasonably believes herself under unlawful physical attack). If I have an ostensible aggressor, I have to ask whether my defender has a right to stand her ground when resorting to the use of deadly force against the aggressor. Even if deadly force is a reasonably proportionate response, e.g., where my defender is threatened with appears to be serious bodily injury or death, she still may have to "hoof it" if the jurisdiction, e.g., MPC, has a retreat requirement.

Defense of Another (Third Party) -Another thing we need to know concerns the right to defend a third party (defense of others). There is just a little information on this in Chapter 19 UCL. Apparently, the C/L started off allowing a person to defend his immediate family from violence or threat of it. But the TPC and MPC allow one to use force to defend strangers. Jurisdictions across the US are split on this next issue, i.e., alter-ego vs. objective approach, but I only need to know the C/L, MPC, and TPC approach. There are two ways of looking at the defense of a third party. One view says that the defender has no more right to defend the third party that the third party actually has to defend herself. This is the so-called alter ego approach that puts the defender in the shoes of the person she is defending and limits justifiable force to what the party being defended could have justifiably done in her own defense. Th alter ego approach is now the minority rule, but used to be the majority rule. The other view, the objective approach, is to look at the situation from the objective viewpoint of the defender and permit defense of others if it reasonably appears to the defender that the third party is being unlawfully attacked, even though it turns out that such is not actually the case. It looks like TPC Sec. 9.33 (1) and MPC Sec. 3.05 adopt this latter objective view and reject the alter ego approach. Should public policy encourage intervenors to come to the aid of persons who appear to be under unlawful attack by an aggressor? If so, it would seem logical that we would reject the alter ego approach which is akin to strict liability if the intervenor acts reasonably based on appearances but is incorrect in assessing which person is the unlawful aggressor.

Provoking the Difficulty - I haven't covered the concept of provoking the difficulty as a forfeiture of self-defense. MPC Sec. 3.04(2) (b) (i) precludes self-defense for a person who, with the purpose of causing death or serious bodily injury, provokes the use of force against herself in the same encounter.  The TPC Sec. 9.31(b)(4) applies provoking the difficulty as a bar against use of force and deadly force.  I need to study  the concept of  imperfect self-defense as a mitigating concept that might lower a murder to a manslaughter if the defendant unreasonably but in sincere good faith thought he was in danger of loss of life or serious bodily injury; I notice that the TPC, like the traditional common law, doesn't recognize imperfect self-defense. The MPC does seem to recognize imperfect self-defense. See MPC Section 3.09(2). [Note: War - I do want to note that use of deadly force in the lawful conduct of "war" appears authorized by Sec. 9.21 TPC and Sec. 3.03(2)(b) MPC. Do we first have to ask ourselves if the war was lawful before we consider whether the conduct pursuant to it was lawful? I wonder if war is analogous to self-defense. If so, would I be justified in killing someone in self-defense on the ground that the person might possibly be a deadly danger to me at some undetermined time in the future? What if  a superpower lays preemptive waste to a toothless third world country, blowing up its infrastructure and shedding rivers of blood of innocent women, men, and children equivalent to 9/11 every week for six years, all in the name of ridding the "enemy" of a scourge of "weapons of mass destruction" that don't exist and breaking its then non-existent ties to terrorism? (1) Can that sort of aggression by a state be styled as legitimate preemptive self-defense? If not, then what is the legal or moral justification? Are there rules permitting war? Johann Wolfgang Goethe said, "There is nothing more frightening than ignorance in action."]  Bene vobis.

Note: Even though the C/L, TPC, and MPC use different approaches, it looks like you can't use self-defense in any crime against the person where the mens rea is criminal negligence or recklessness when you act with criminal negligence or recklessness. By definition, it would seem that under the C/L and TPC the defendant who acted recklessly or with criminal negligence would not reasonably believe that he was under imminent threat. Under MPC Sec. 3.09 (2), when you're reckless or negligent  in believing that force was necessary, you are expressly denied self-defense for any crime where the mens rea is recklessness or negligence. The net effect seems to be the same under the C/L, TPC, and MPC, except that under the MPC imperfect self-defense does seem to be available to purposeful and/or knowing killings, though under the C/L and TPC imperfect self-defense  is not recognized as a defense to murder.                 
Unit Eleven - Duress (Compulsion, Coercion)  - Necessity (Justification)

Actus me invito factus, non est meus actus - An act done by me against my will is not my act.

Law is mighty. Necessity is mightier.

Well, I washed the Cheeto dust off my hands. So, here I go again with my comments, analyses, and ruminations - this time on the unit discussing the defenses of duress and necessity. [Aside: I found an article on the Internet written by a defense lawyer about defenses (1); it discusses various defenses utilized in federal court; notice that what he calls "affirmative defenses" is not nearly as sophisticated as our Texas Penal Code Section 2.04 definition of an affirmative defense; most of what he calls "affirmative defenses" are really more properly thought of simply as "confession and avoidance" defenses, where the defense says " Yeah, he did it but .."; notice also that alibi is really a reasonable doubt defense, not a confession and avoidance defense. Here's another discussion of defenses to crime (1) by the ubiquitous Criminal Justice Professor O'Connor.]

Anyhow, let's get to the defenses of duress and necessity. I think they are located in the MPC in Secs. 2.09 (duress) and 3.02 (The MPC calls necessity "choice of evils.") and in the TPC in Secs. 8.05 and 9.22, respectively.

Duress (also called "Coercion." or "Compulsion") - Duress occurs when one (D) is threatened with physical harm to himself or another unless he commits some otherwise criminal harm. The idea is that D is doing wrong (causing harm) because he's compelled to do so due to coercive threat of physical harm, i.e., D's will is overcome. The common law has long recognized duress as as excuse for most crimes because D was coerced into choosing to commit the otherwise criminal act or suffer imminent grievous/serious bodily harm or death if he does not comply with the treat. At common law, duress is available to all crimes except murder, attempted murder and treason. Unlike necessity, it's not required that a greater harm is prevented by the harm that one does under duress, i.e., there's no proportionality test for duress. There's no choice-of-evils calculus. On the issue of duress, Sec. 8.05 TPC follows the traditional common law that limited the defense (affirmative re the BOP and the POE standard in TX.) to situations where there was a reasonable belief of impending death or "serious bodily injury," except that the TPC allows mere threats to suffice in misdemeanors. TPC does not expressly limit the threat to humans but the MPC does because the threat must be "unlawful.". (Check out the definition of SBI in Sec. 1.07 TPC.) Texas duress also requires that the threat be "imminent," which eliminates its use in many situations. See Anguish v. State, 991 S.W.2d 883 (Tex. App-Houston-[1 Dist] 1999) setting up a two-prong test. The MPC 2.09 seems to allow the excuse of duress in cases where the threat is not quite that serious and in cases where the threat is of future harm, i.e., there is no MPC requirement that the threat be "imminent," if it was enough that a person of reasonable firmness in the actor's situation would have been unable to resist. A good hypo can be found in the federal case of United States v. Contento Pachon where the accused claimed that there was a mysterious dope smuggler named Jorge who threatened that some harm could come to the Pachon's family if he didn't swallow the bindles of coke and smuggle them into the US. And what about poor Ms. Carradine, defendant in People v. Carradine, 287 N.E.2d 670 (Ill. 1972), (1) who was so frightened  by threats of reprisals from the Blackstone Rangers that she was willing to do six months in the slammer for contempt due to her refusal to testify as a witness after she and her family were threatened by "the Stones"? Do you see the duress working there? If you don't talk, you go to jail. If you do talk, you go to heaven. One chap in class thought these "Stones" were Mick and Keith's band, but in fact they were and are a prison street/gang that preceded groups like MS-13? If you don't think these gangs are dangerous, look at the 2006 documentary World's Most Dangerous Gang VIDEO. Punishment for contempt of court seems okay in the abstract, but as applied or distributed to Ms. Carradine, punishment seems unjust to me.

Imminent harm. I read Sec. 8.05 TPC as requiring that the threat of imminent death or serious bodily injury be "imminent." To me, that means that threats to do future harm wouldn't cut it in Texas, at least in felonies. Carrumba, that limits duress! If someone threatens me in Texas, I think I have to reasonably believe they have me in the cross-hairs of their rifle scope for it to be an imminent threat. Looks like both felony and misdemeanor duress in TX would include threats to do harm to third parties. [Note: The prof throws out the possibility that a terrorist might get an innocent person to carry out a terroristic act by threatening the innocent person's family. If the innocent survived and was tried, depending on the circumstances, it looks like duress might be available. This reminds me of the Johnny Depp real-time film, "In the Nick of Time," (1- VIDEO) (2- VIDEO) (3 - VIDEO) where some political plotters threatened to kill Johnny's kidnapped kid unless Johnny killed the governor within the hours. Think about the film as a criminal lawyer. If he had killed the governor, could he claim duress under the c/l, MPC, and/or TPC?] It's comforting to see that the MPC and TPC have each abolished the C/L presumption that a woman acting in the presence of her husband is coerced. Note, in Dixon v. United States, 548 U.S. 1 (2006) the USSC held that duress in federal court can properly be a defense the the accused is required to raise and prove by a preponderance of the evidence.    

Threat to harm property. Another important thing I notice is that a threat to destroy or damage property doesn't constitute a threat under the C/L, MPC or TPC.  So, if A threatens to imminently destroy all of B's worldly goods unless B runs a stoplight, it looks like there's no duress defense for B if he violates the traffic law.

Intentional killing in response to threat. The common law approach precludes a duress defense in scenarios where a person, to save his own life, intentionally kills an innocent. The common law viewed this as morally reprehensible. On their faces, the MPC and TPC would allow a duress defense in such a situation.

Person  of reasonable firmness. Notice that the MPC and TPC duress defense each rely on the standard of a threat that a person of reasonable firmness in his situation would be unable to resist (MPC) or  force or threat of force that would render a person of reasonable firmness incapable of resisting the pressure (TPC) as the reference for duress or compulsion. .

Threats to harm anther when the other is a stranger. One last thing on the issue of threats to use unlawful force to physically harm "others" - the common law limited coercive threats to another to members of the actor's family. Neither the MPC nor the TPC places any limits on who the other person is. Thus, duress is available under the MPC and TPC when the operative threat is to a stranger.

TIP: For an exam, after you have decided that an actor has a valid claim of duress, think about the liability of the person doing the threatening or coercing. Isn't this person liable under the c/l as the principal in the first degree. Isn't he legally accountable under MPC complicity Section 2.06 because he, while acting with the kind of culpability that is sufficient for the commission of the offense, caused an innocent or irresponsible person to engage in the criminal conduct? Under TPC Section 7.02(a)(1), did he while acting with the kind of culpability required for the offense cause or aid an innocent person to engage in conduct prohibited by the definition of the offense?

Necessity (also called "Choice-of Evils" and "Justification")- There's a legal maxim that says, "Of two evils, we should always choose the less." On this question of necessity (1 - hypos), (2 - history), (3 - abolishing), (4) , I notice that Sec. 3.02 MPC (They call it "choice of evils" not necessity.) doesn't refer to the reasonable person standard, but Sec. 9.22 TPC (necessity) does require a "reasonable" belief that the conduct is immediately necessary to avoid the greater evil. Also, the TPC requires the use of "ordinary standards of reasonableness" in the balancing test. The MPC allows a belief to be enough, subject to the provisions of Section 3.02 (2) MPC that the choice-of-evils defense is not available for any offense for which recklessness or negligence suffices to establish culpability when the actor was reckless or negligent in bringing about the situation requiring a choice of harms or evils or in appraising the necessity for his conduct. So choice-of-evils would be available in offenses where acting purposely or knowingly is the operative mental element even if the defendant was reckless or negligent in bringing about the choice-of-evils situation or in appraising he necessity for his conduct. Sec. 3.02 MPC makes choice of evils available only when one believes it is necessary to avoid a harm or evil to himself or another. The MPC doesn't say "physical" harm or evil, so it will apply to harm to property of the actor or another. That makes sense in the "burning of one house to save twenty" scenario. MPC Sec. 3.02 does not require that the evil be imminent. Imminence under the MPC is simply one factor that can be considered under the MPC in determining whether there is a necessity and in balancing the evils. In comparison, TPC Sec. 9.22  allows the necessity defense only when the conduct is immediately necessary to avoid "imminent" harm. Would the sailors in Dudley and Stephens be able to sacrifice the cabin boy earlier under the MPC necessity provision than under the TPC? I think so. The TPC necessity defense would also encompass harm to property as well as to the person. I would think that it would rarely if ever be reasonable to sacrifice a human life just to save property. But, less than deadly force against a person might be reasonable to save property in some circumstances. Also, a guy in the class figured out that TPC necessity is a defense rather than an affirmative defense for purposes of the BOP because of Sec. 9.02 TPC. [Note: For a discussion of the duress and necessity defenses by the USSC, take a peek at United States v. Bailey, 444 U.S. 394 (1980) an escape case. To get an idea of how restrictive the federal "justification" defense can be, check out the 6th Circuit's opinion in the recent Billy Ed Kemp weapons case. My question: In light of the scare re domestic terrorism, could the US military lawfully shoot down a hijacked private passenger plane and knowingly cause the death of a couple of hundred innocent passengers to avoid the greater harm of the plane being used as a missile to strike a city center or a nuclear power plant? If so, would the defense to the knowing killing of all the innocents aboard the plane be defense of another or necessity?]

Medical Marijuana - Another hot necessity or choice-of-evils issue is whether there should be a "medical necessity" defense that would allow pot to be dispensed for medical purposes.   (1- the NORML view). A Time poll (3% margin of error) on 10-23-02 revealed that 80% of adult Americans favor this medical necessity defense. Only 34%, the dudes with the signs that say "POKE SMOT," wanted pot legalized (double the number from '86), and 72% thought people caught with pot for recreational use should get off with only a fine. [Note: For the recent USSC case re the effect on interstate commerce of growing marihuana for personal medicinal (on a physician's advice) use, see Gonzales v. Raich, 545 U.S. 1 (2005); see the earlier United States v. Oakland Cannabis Buyers Cooperative, 532 U.S. 483 (2001) which held that the federal drug laws trumped the California Medical Marihuana law to the extent that enforcement of the Controlled Substances law was not preempted by the California law. See also Then and Now for a discussion of the broader social issue of legalizing pot.] 

Civil Disobedience and Necessity - From the reading, I gather that while juries who are allowed to know the defendant's motives may on occasion acquit an abortion clinic protestor or nuclear plant trespasser, as well as folks passing out free needles to addicts or cancer patients possessing weed for palliative purposes, the appellate courts seem pretty uniform in holding that there is no necessity defense to such acts of civil disobedience, particularly in cases of so-called indirect civil disobedience when the law the accused is charged with violating, e.g, criminal trespass, is not the law or policy that is being protested. The typical reason for rejecting the necessity claim seems to be either that the danger was not imminent and/or that the legislature or constitution has already spoken. Still, civil disobedience can be a thing of moral value if one is willing to take the punishment. Remember what MLK Jr. said, "I submit that an individual who breaks a law that conscience tells him is unjust, and who willingly accepts the penalty of imprisonment in order to arouse the conscience of the community over its injustice, is in reality exhibiting the highest respect for law." 

Dropping Oneself in the Choice-of-Evils Grease  - What happens with duress and necessity if the defendant negligently or recklessly has a part in creating the conditions that cause his dilemma? Doesn't the C/L deny the defenses? See MPC Section, 3.02 (2), 3.09 (2), and Sections 8.05(d), 9.22(1) TPC? See Silver Bullets II. This is something that I definitely need to remember in case we have a duress or necessity scenario on the exam. I don't want  to say that a situation is definitely duress or necessity where the actor has somehow forfeited his right to the defense.

Fighting Over a Life Jacket - When I was leaving, I heard our the teacher talking with student after class about the situation of  a couple of shipwreck survivors out in the ocean fighting over a single life preserver that will only support one. It seems like necessity wouldn't apply under either the MPC or Texas to the necessary choice of committing homicide if one of the guys is going to die, and it's just a question of which one. The balance of evils is 1-1. If A grabs and dons the preserver first where it is floating in the water and then fights B off when B tries to take it from her (A), whereupon B drowns as B was reasonable certain to do, it seems like something like self-defense should at least excuse (but, like duress, maybe not justify) the killing of B, assuming A knowingly caused B's death. Otherwise, the law would require us all to be heroes and give the life preserver to the other guy. It's probably not MPC duress because there's no person (only the ocean) threatening A or B (who might be best friends back on land). However, Section 8.05 TPC duress does not on its face limit duress to human threat. So maybe duress would work in Texas. But, what if A is bobbing around in the life preserver and B comes up and hits (assaults) A and forcibly removes the preserver from A, whereupon A sinks and drowns, as was reasonably certain to occur. It seems like B should be more likely to be liable for an intent to kill murder than A would be where A had possession of it and fought B off and B drowned. Maybe the former situation would be one where B might be strictly liable for felony murder. (Of course, larceny of a life preserver may not be a felony, and the underlying assault may not be a felony and/or might "merge" with the homicide.) This would be different from Dudley & Stephens where two seamen killed and ate a cabin boy and the Holmes case of an overweighted lifeboat where a few souls were jettisoned to save many more. St Augustine is quoted as saying, "Necessity has no laws." When we say that need has no laws, we are recognizing that in some instances humans are forced by laws of nature to do things that they might otherwise find reprehensible.  I'm feeling temporarily brain dead, so I'll just make a note check out the UCL5th hornbook readings to get a lasso over the defenses of duress and necessity. The prof hinted that they will both could well be on the exam somewhere. [Prayer as an Alternative to Human Sacrifice: Two shipwrecked sailors had been adrift on a raft for days. desperate, one knelt and began to pry: "Oh Lord, I know I haven't lived a good life. I've drunk too much booze. I've lied and cheated. I've done so many things I's ashamed of, but Lord, if you just save me I promise..." "Hold it," interrupted his shipmate, " Don't say another word! I think I just spotted land."

Burden of Proof in Texas Defenses and Affirmative Defenses: One thing I've noticed about the burden of proof on defenses. In Texas, under Sections 2.04 TPC, the defense has the burden of production and persuasion (by a preponderance of the evidence) on "affirmative defenses." But, under Section 2.03 TPC, as to "defenses," while the burden of production stays with the defense, once it's been met, the burden of persuasion is on the prosecution to remove all reasonable doubt as to the existence of the defense. Maybe that's why they call defenses "cockroach defenses; it's not so much what the little critters eat and carry out; it's what they crawl over and dirty up. It may be hard for the prosecutors to find and remove beyond all reasonable doubt all those little defensive roach droppings. 

TIP: On the exam, I gather that necessity usually occurs in the context of an emergency where the actor's choice is between two unlawful acts one of which when compared with the other clearly provides a overall benefit. In the scenario, the actor takes the law into his own hands, breaking it for a greater purpose. You'll have to do the required balancing. Did the actor seek to avoid a harm that was greater than the harm sought to be prevented by the law he did break? Paix.

bushrod springwater's*
random notes 2
moses - criminal law

UNITS  11 - 17

Mr. Springwater* is a skeptic not a cynic.
copyright  © 2001-2012  Ray Moses
all rights reserved
Moses and his #!%$# Dressler question!  What does he think we are - students?
I'll promise not to escalate to deadly force if you will.
Mens Rea; Culpable Mental State; Intent; Knowledge; Wilful Blindness; Recklessness; Criminal Negligence; Strict Liability; Actus Reus; Omission; Princliple of Legality; Homicide; Murder; Felony Murder; Voluntary Manslaughter; Negligent Homicide; Mental Illness; Incompetency to Stand Trial; Infancy
Inchoate Crimes; Attempt; Impossibility; Solicitation; Conspiracy; Renunciation; Complicity; Aiding and Abetting; Accomplice; Pinkerton Rule; RICO; Larceny; Theft; Embezzlement
Embezzlement; Receiving and Concealing; Robbery; Burglary; Extortion; False Pretense; Mail/Wire Fraud; Sex Offenses; Rape
Sudden Impact  '83
Dirty Harry '71
Duty to Retreat
An argument in favor of the proposition?
Lenore Walker
Decoy Cop
Cops may be crooked.
(Thirteen were indicted here.)
Jailers respond to a "vicious" assault by a prisoner! Legitimate force by peace officers or cops gone wild?
Undercover stings can be dangerous for cops.
Grand jury proceedings are conducted in secret - no camera allowed. This clip from Rockford gives us a little insight as to what may go wrong..
A clip from a classic film depicting what might go on in the jury deliberation room.
Interrogation of U.S.  Senator Larry Craig re encounter with cop in airport restroom.
Does Livingstone Parish, LA, Deputy Chris Sturdivant appear to choke Adam Stogner to death during this traffic stop? (1)
No charges vs. cop.
The floor hit her?
Is this hockey fight akin to professional boxing or is there some  criminal battery?
Documentary re right to counsel in capital cases where the death penalty is in play.

Watch this film with Henry Fonda as Clarence Earl Gideon.
Documentary re the Gideon case. - with the late  reporter and author Anthony Lewis