Criminal : Week of October 30

Review

Strict liability crimes: they originate largely from the regulatory environment, rather than common law. Generally they are intended to impose a high duty of care in some areas. On appeal, the reviewing court will determine whether the crime does require some level of scienter after all, even if the statute is not written that way (see Collova). Also, these are generally public welfare offenses, not "infamous" crimes (see Morissette).
Sometimes, the legislature wants to make extra things strict liability as well, e.g. Herman (sentencing enhancer for drug delivery w/in 1000 ft of school). Here, the courts look at legislative intent, and if the primary purpose is to accomplish a social good, proof of criminal state of mind is sometimes eliminated. This is different from Collova, where the underlying offense was innocent: here it is criminal, and the state has already proved criminal intent to deliver, so the state doesn't need to prove whether the defendant knew how close the school was.
Competency to Proceed: the statute defines the standard directly. It's based on the USSC Dusky case, which we did not read, but which we saw referenced, where the parts of the due process right are stated: rational and factual understanding of charges and penalties, must be able to assist counsel with preparing the case.
Anyone can raise competency at any time. Why do people freak out in the middle of trials? Sometimes it is because they are mentally ill, and sometimes it's because they are assholes. [Prof. Smith]. Defense counsel has a special duty to raise competency, though (Johnson): holding this concern back cannot be a matter of strategy. Remember that the court is the finder of fact, and is not bound by the experts' opinions. Note that if the person is not going to be competent in the future, it's probably commitment time.
Clients of questionable competency are a major challenge for defense attorneys. The disorder strongly affects the relationship. It can even put you in opposition with the client, if you are raising competency.
Not Guilty by reason of Mental Disease or Defect: again, the statute defines this. Impairments of thought or mood or both... the idea is that you're unable to understand the wrongfulness of conduct, or perhaps you do but cannot conform your conduct to the standards of the law. "Command hallucination," e.g., in schizophrenia.
The decision about what plea to enter is reserved exclusively to the client. This includes the not guilty by reason of mental disease or defect plea: they have to acquiesce and agree that you can enter that plea. They may be quite ill, but not like doctor/hospital, and refuse to enter that plea. When a client enters this plea, it initiates the bifurcated trial process in WI.
Bifurcated trial: guilt or innocence phase. If the state proves all elements of at least one offense, then we move on to the mental responsibility phase. This is when we introduce evidence on the client's history of mental illness. If this plea succeeds, the defendant is not guilty, and there's a process of commitment (not to exceed the maximum term associated with the offense). If the jury rejects the plea, then the guilty verdict from the first phase stands.
In the mental responsibility phase, the defendant has the burden of production, and must prove that he/she is not responsible by the greater weight of the evidence (and 5/6 of the jurors must agree).
In Steele we saw a bad example of when to present psychiatric testimony. This evidence is only admissible in the mental responsibility phase, otherwise we undermine the purpose of the bifurcated trial, subject jurors to duplicate testimony, and introduce confusing matters of opinion when we're trying to find facts about the elements of the crime.
Problem 12: at the end of the story, the client is charged with first-degree reckless homicide. Somehow that got left out...

October 30

Felony Murder: causing of death doesn't have to be done with any mental state beyond what is required for the underlying felony.
Serne: excerpt from a charge to the jury. In this era, it was common to be expansive and personalized in instructing the jury. So there's commentary on the specific contours of the case, even though the judge is trying not to go over the line and influence the jury. In Federal court, there's a little more leeway like this, but in WI, everything is pattern instructions. "There was either a willful murder or no murder at all:" there's no constructive homicide, but if you mean to commit a felony and someone dies, that counts. Don't look to rational plain meanings of words like "malice aforethough" to understand this: it's all about case law. The definition may be overly broad, though, perhaps it would be nice to limit application of this principle to deeds that pose serious danger to people.
Two doctrines limiting the application of felony murder: limit to situation in which the death is a natural and probable consequence of the felony, or limit it to cases where the felony is malum in se as opposed to prohibitum. The drawback of the first approach is that it's hard to define: it puts a foreseebility test ahead of punishing the consequences (basically, it's little different from recklessness/negligence), whereas the appeal of felony murder is that it's simple to apply, and it puts people on notice that their felonious conduct may bring severe consequences.
In Wisconsin, there was a great deal of debate over felony murder: should we have it? what should it cover? what should the penalty be?
You can't be convicted of both the felony murder and the underlying felony, because the underlying felony is a lesser included (note that this is different from bail jumping: you can be convicted of bail jumping and whatever crime you did your jumping with).
State v. Oimen
Commentary in class
Basically, here, the question is, "does the statute really mean what it says? is it really that broad?"
Yes. Anyone can be the victim. Anyone can be the killer. It's just: is the felony a substantial cause, and is the defendant guilty of the felony?
State v. Rivera
Commentary in class
The same as Oimen, almost literally.
There's no such thing as attempted felony murder (because strict liability crimes have no intent component), but one guy has pled guilty to it (Joshua Briggs in Sauk County). The state claims this wasn't a problem.
Public attitudes have changed regarding drunk driving.
State v. Peckham
Commentary in class
Does the state have to prove negligence? No, OWI is itself negligence.
Some people feel like Peckham got the shaft because the court says, "it must be assumed that there existed a causal connection between the intoxication and the death" (citing Resler). The legislature actually relaxed the standard in 1965. But then lobbying in the other direction (MADD) causes the 1981 revision we've got now.
Note that the causal connection isn't between the intoxication and the death: it's between the driving and the death (the elements are that operation of the vehicle caused the death, and that the actor was intoxicated at the time).
State v. Caibaiosai
Commentary in class
Again, the prohibited behavior is combining being intoxicated with operating a motor vehicle. If that results in death, you've got a felony.
The causal connection is between the defendant's unlawful conduct, not just intoxication.
A trial judge must instruct on the affirmative defense if there's evidence to support it. You can't claim your own negligence is your defense. It has to be exonorating evidence.
Note that there is often some time between the accident and the test. In WI, blood alcohol tests are valid if taken within 3 hours of driving. The jury hears that it doesn't create a presumption of PAC, but it's evidence that can go to establish the point. Experts try to extrapolate the "blood alcohol curve" to try to establish the blood alcohol content at the time of the accident.
Portable bar defense: if you have had an accident, you may want to ingest some alcohol in the presence of witnesses. This complicates BAC calculations: the open container violation is way less than OWI.

Reading for November 1

Exam will be open book; state the rule, state the definitions, apply the facts to the rule... maybe some short answer problems.

Causation

The typical criminal charge has an act, a mental state, some harm, and a connection between the act and the harm. Causation is the connection.
There's the general jury instruction for causation, but most specific instructions contain the relevant elements in this.
There's no statutory definition of "substantial" with respect to causation. There are various things: "but for," degrees of participation, etc. But just because you meet the "but for" test doesn't mean that your conduct was a substantial factor.
Causation is trickier when the mental state is recklessness or negligence. Sometimes the connection is less clear than when there's direct intent.
Note that intervening medical malpractice or negligence is does not necissarily mitigate the causation of the outcome by the initial act. If the medical attention is undertaken in response to a life-threatening condition caused by the defendant, than intervening medical matters do not break the causative connection. It also doesn't mean that you're necessarily convicted-- just that the charge isn't thrown out.
"Substantial" is a pretty relative thing.
Note that the year-and-a-day rule is no longer the law in Wisconsin.
Henderson v. Kibbe
Commentary in class
Defense thinks that there should have been an instruction on causation. The objection makes some sense: how were the criminals to know that the guy was going to sit in the middle of the traffic lane?
But both the defense nor the prosecution stressed causation in their theories of the case, and this is clearly a pivotal issue in the elements of the crime.
So when you're reviewing for error, you read the instruction that the judge gave and compare it to the one that should have been given. But there's no specific instruction on causation, and the judge didn't issue one either, so what basis could there be for comparison? So they talk about foreseeability, and what an adequate instruction would have to tell the jury. The court did issue an instruction on recklessness, and that is considered to be sufficient to describe the causal connection. In other words, even though there was no specific instruction on causation, the instruction given did provide the jury with the same essential content.
State v. Serebin
Commentary in class
Sufficiency of the evidence: was cutting the staff of the nursing home a substantial causative factor? He's just doing his job, after all.
Reckless homicide has two elements: reclkess conduct and causing death.
The state did prove the reckless conduct: he had ample notice that there was risk (nurses, state agency, etc.).
You can have reckless conduct, but not have causation, and this is a case of that. There's no proof that more staff would have saved the victim. The theory that another staff member would have made it possible to spot the wandering oldster is too speculative to support criminal conviction.
Serebin was found guilty of patient neglect: there's no element of causation in that statute.

Omissions

Generally so far the crimes we've seen may not involve intent, but they at least involve some sort of voluntary affirmative act (e.g., engaging in conduct). Here we're talking about failure to do things.
MPC: liability requires either a voluntary act or a failure to perform an act that you're able to do. Involuntary reflexes, acts while asleep or under hypnosis, etc., are excluded.
There has to be notice that there's a duty to perform the omitted act in order to have liability. This can be statutory (i.e., duty to file a tax return) or common-law (i.e., parent's duty to care for child).
Fain v. Commonwealth
Commentary in class
For 1879, this defendant has pretty much everything you'd want in a defense: experts, lay testimony, etc. The trial court acts like a modern Wisconsin court rejecting evidence about the capacity to form intent: "oh no, can't say that, it's confusing."
Jones v. United States
Commentary in class
Failing to perform a legal duty to child, but Jones is not the mom, just a friend.
State ex rel. Cornelier v. Black
Commentary in class
Probable cause: a practical common sense evaluation. A measure of plausibility. More than a mere possibility. But it need not be more probable than not. The standard of review assumes that the facts in the complaint are true.
State v. Ward
Commentary in class
Possibly the statute is interpreted too broadly. Here's an oddity: even the jury instructions wouldn't save you here: you'd have to know the Sostre decision.
The problem (Beth!)