Criminal : Week of October 16

Reading for

• Recklessness (according to statutes):
  • Creates an unreasonable and substantial risk of death (objective) Note that some risks are substantial, but reasonable: NASCAR, surgery, coal mining, etc.
  • Is aware of the risk (subjective): the prosecutor must convince the fact finder that the actor is aware Note that voluntary intoxication is not an excuse
  And according to jury instructions:
  • There's a nice list of statutes where recklessness is used; this can be helpful if you're looking for lesser included offenses
  • Also some cites on sufficiency of the evidence: there's not a requirement that the act have resulted in great bodily harm (e.g., recklessly endagering safety).
• Commonwealth v. Welansky
  Commentary in class
  Sort of surprising that the defense could lose this one, given that the defendant was hospitalized for the whole time surrounding the events of the crime.

  There were 492 fatalities. This is also an interesting case in the sense that he was considered to be the personification of the corporation because he so dominated operations there, so he couldn't hide behind the shield of corporate identity.

  He's held to a slightly higher standard, in the sense that he should have known that fire is an ever-present danger, and his act was primarily an omission (i.e., not an affirmative act). But a business has a duty of care, where customers are concerned, according to the court.

  Their test for the knowledge is an objective one (like the reasonable person test): "a man can be reckless within the meaning of the law, even though he himself thought he was careful." Knowing facts that would cause a reasonable person to know of the danger is equivelent to knowing the danger here.

• Remington notes four different standards for grading non-intentional conduct:
  

  Number	Degree of risky awareness	Type or nature of harm
  1	Objective - Should have known	Ordinary negligence - Unreasonable risk
  2	Objective	Objective - Substantial risk
  3	Subjective - Aware of circumstances	Objective - Substantial risk
  4	Subjective - Aware of circumstances	Subjective - Aware of harm

  So by the time you get down to #4, you're really pretty close to intent, actually. Looking back at Welansky, WI has the concept that certain walks of life imply a need for specific care. There are specialized statutes that deal with caretakers, using dangerous weapons, operating a motor vehicle, regulatory statutes for businesses that criminalize behavior that would perhaps be non-criminal in a lay person. We hold people in some occupations to a higher standard, essentially.
• Mayes v. The People
  Commentary in class
  Generally you don't want to defend against "the people," but in Illinois, you know it was a rigged election, so it's a little less indimidating.

  First issue: did facts constitute murder? Well, the jury believed the testimony of the witnesses, not the defendant, and that was reasonable. No need to reverse.

  Second issue: jury instructions regarding intent of glass-throwing. Trial judge gave the instructions that the defendant wanted, but prefaces them with a condition about "an abandoned and malignant heart." This shows the kind of colorful epithets and language that used to turn up as courts tried to express this kind of extremely unacceptable behavior.

• Commonwealth v. Coleman
  Commentary in class
  In this case, 2nd degree = voluntary, with malice, but without intent to kill.

  So he voluntarily fires the gun, his malice consists in his conscious disregard for safety (presumed knowledge that someone is still in the back of the bus), even though he didn't have killing on his mind.

• Montgomery v. State
  Commentary in class
  Depravity of mind is not a separate element (i.e., we don't have to prove that the mind was actually depraved). So the absense of a premeditated design is all it takes to reduce from first degree to second. In first degree, the depravity is inherent in the intent. In second degree the only difference is the absense of intent-- we don't need to have a witness about the mind, we just show murder without intent.
• Note that you get charged based on what the law was when you committed the crime, so grandparents could still get charged under old statutes ("depravity of mind"). Interesting trivia.
• State v. Edmunds
  Commentary in class
  Medical testimony shows severe injuries, indicative of impact. The bulk of the injuries were typical of violent shaking.

  She's got basically three theories of defense:

  1. It was the parents who did the shaking
  2. Even if I did shake it, how was I to know the injuries would be so severe? It's not something an ordinary person would be aware of, and shaking itself is not so outrageous as to show utter disregard for human life
  3. Plus, I called 911, which shows that I actually have regard for human life.
  The court says these arguments are irrelevant: the test for utter disregard is objective, not subjective. The basic test: acts of acts of the defendant and the surrounding circumstances as generally considered by mankind. It's not a matter of what she knew, but what a reasonable person would have known. What she should have known, in other words.

  This is part of why we get to Jensen, below, because the supreme court needed to rule on this objectiveness issue.

• Shaken-baby standards are getting controversial again: lengths of time for post-injury survival are getting longer. This raises reasonable doubt about who did it, in some cases.
• State v. Jensen
  Commentary in class
  Same issue as Edmunds: claim that utter disregard is not proved by the evidence.
• A non-party brief = an amicus brief. Just provides some additional perspective.

October 18

• Negligence vs. Recklessness: the "should" is the only dang difference. Is it a case where they DID know, or just one where they SHOULD have known?
• Ordinary care: this is objectively determined (what a reasonable person would exercise under similar circumstances)
• What is a "high degree" of negligence vs. "ordinary?" It's for a jury to decide-- there's really no standard set forth. It's supposed to be higher than a civil suit. Partly this is defined by negligence in handling guns, fire, etc.: negligence in those contexts is worse somehow than negligence with safe things.
• Hart v. State
  Commentary in class
  Jury-room style discussion illustrates how a fact-finder has to decide if there was negligence. Lots of the facts here are things that we all do. Does the fact that he does them all simultaneously make him negligent? Or is it the consequences? Or are we all negligence?
• State v. Cooper
  Commentary in class
  Not much to say.
• People v. Clemente
  Commentary in class
  Reasonable care standard.
• State v. Olsen
  Commentary in class
  Again, we're probably criminalizing based on the result.
• OAR : Operating After Revocation. It's a very common acronym.