1. ComplicityPurpose (Dual)Solicits, aids or agrees or attempts to aid; or fails to prevent + duty MurderPurpose, knowledge, extreme reck. Causes death ManslaughterRecklessly or, Murder, but EED Causes death Neg. Hom.NegligentlyCauses death

2.  EED 1. Was Defendant under EED? (Subjective) 2.Was there a reasonable explanation or excuse for EED? (Objective and subjective)  Necessity:  1. Belief that conduct is necessary to avoid a greater harm (Subjective)  2. Weighing of evils - Harm or evil avoided is greater than that sought to be prevented.  3. Legislature has not precluded defense.  4. Multi-tiered approach to blame issue. (Could support finding of negligent homicide)

3. + Facts & Inferences (Pros) + Facts & Inferences (Defense) Began to plan on 18 th day, 2 days in advance (purposeful, planned act) Brooks dissented (necessity?) Dudley committed the act of killing Prayers offered (again shows purposeful, planned act) Extreme conditions/for both EED & Necessity (Had no supply of water & no supply of food in rescue boat, Subsisted for 3 days on 1 lb of turnips, Caught a turtle on 4 th day, up to 20 th day) Plan made on 18 th day, when had gone 7 days w/o food & 5 w/o water.

4. (Pros)(Defense) Stephens & Dudley went to Parker & told him that time had come Parker did not consent; did not threaten others Did not draw lots Dudley kept knife & no remorse Death was probable - not certain Lifeboats not adequately stocked (negligent/reckless?) 1000 mi. from land Parker most likely to die & men would have died soon w/o eating No rescue in sight Fortuity of rescue (mermaids) Parker’s family has forgiven men Public sympathy 3 lives saved w/ 1 death Honest belief shown by conduct

5. Negotiation Results  Man.  No Settlement  Minimum Sentence 5 yrs: –Will serve one yr, with 4 yrs suspended (possibility of having sentence commuted)  5 Yrs. Deferred.

6. Negotiation Results  Man.  No Settlement  5 Yrs probation  5 yr. Suspended Sentence

7. Negotiation Results  Man.  Neg. Hom.  7 Yr. Suspended Sentence  6 months in jail with intensive psych. Counseling, 6 months probation with monthly psych evaluations.

8. Common LawMPC Clear & Imminent Danger (examine alternatives) ------------ Reasonable belief actions will abate danger Honest Belief Maj: Judge weighs evils? Legislature has not precluded defense Same Without blameReck. = Reck. MR Neg. = Neg. MR Maj: Not for homicideAll crimes Maj: Forces of Nature---------------

9. Justification v. Excuse  Justification: Society deems that the defendant made the right choice and did the right thing under the circumstances of the case.  Excuse: Society does not condone the defendant’s conduct, but rather excuses it on the basis that he or she can not be held responsible for the conduct.

10. Toscano (p. 845)  Use or threat of harm to you or another  Present, imminent & pending  Induce a well-grounded apprehension of death or serious bodily harm (used to be just death) to a man of ordinary fortitude and courage  Not Reckless

11. Duress Defense  Whether the standard of reasonableness is subjective or objective.  Source of the threat.  Whether the threat should be imminent.  Whether the defense should be excluded for certain types of crimes (e.g. homicide).  Whether particular types of threats are required.  Whether the defendant should be free from fault.

12. Duress Defense  Whether the standard of reasonableness is subjective or objective. –Common Law: Reasonable fortitude –MPC: Reasonable firmness

13. Duress Defense  Source of the threat. –Most jurisdictions require that the source of the threat be another person.

14. Duress Defense  Whether the threat should be imminent. –Common Law: Present, imminent & Pending –MPC: ------------------

15. Duress Defense  Whether the defense should be excluded for certain types of crimes. –Common Law: Homicide (including felony murder?) –MPC: -------------------

16. Duress Defense  Whether particular types of threats are required. –Common Law: Death or serious bodily harm. –MPC: Unlawful force.

17. Duress Defense  Whether the defendant should be free from fault. –Common Law: Yes –MPC: Sort of. Reckless:Defense is barred. Negligence: Negligence Mens Rea

18. Definitions  Competency: –Person, as a result of a mental disease or defect lacks capacity to understand the proceedings against him/her or to assist in defense.  Execution: –Ford v. Wainwright (1986): bar on execution of insane. –Atkins v. Virginia (2002): bar on execution of the mentally retarded.

19. M’Naghten (p. 879)  Defect of reason or defect of mind; and –Did not know the nature of the act, or –Knowing the nature of the act, did not know that it was wrong.  Problems with test: –Complete impairment –Restriction to impairment of cognition –Artificial restriction on expert testimony