PREPARATORY, HOMICIDE, AND ASSAULT CRIMES OF ARIZONA'S NEW CRIMINAL CODE - SOME POTENTIAL ISSUES

• NCJ Number: 56571
• Journal: Arizona Law Review Volume: 20 Issue: 3 Dated: (1978) Pages: 643-667
• Author(s): T HAGEN
• Date Published: 1978
• Length: 25 pages
• Corporate Author: University of Arizona
• Publication Format: Article
• Language: English
• Country: United States of America

Annotation

ISSUES THAT MIGHT ARISE FROM THE TREATMENT OF PREPARATORY (INCHOATE) OFFENSES, HOMICIDE, AND ASSAULT IN ARIZONA'S REVISED (1977) CRIMINAL CODE ARE DISCUSSED.

Abstract

THESE OFFENSES WERE CHOSEN FOR ANALYSIS BECAUSE THEY TEND TO GENERATE LITIGABLE ISSUES. INCHOATE OFFENSES ARE THOSE IN WHICH THE INTENDED CRIME IS NEVER COMMITTED. THE REVISED CODE'S SECTION ON INCHOATE OFFENSES RAISES QUESTIONS ABOUT THE STANDARD TO BE USED IN DISTINGUISHING ACTS OF PREPARATION FROM ACTS CONSTITUTING ATTEMPT; ABOUT THE ACCEPTABILITY OF A DEFENSE TO CONSPIRACY BASED ON THE ACQUITTAL OF ALL CO-CONSPIRATORS BUT ONE; AND ABOUT THE VIABILITY OF ENTRAPMENT AND DUE PROCESS DEFENSES IN SITUATIONS INVOLVING GOVERNMENTAL PARTICIPATION IN A CONSPIRACY (E.G., UNDERCOVER DRUG LAW ENFORCEMENT EFFORTS). THE CODE'S SECTION ON FIRST-DEGREE MURDER LEAVES OPEN TO INTERPRETATION THE REQUIREMENT OF 'A LENGTH OF TIME TO PERMIT REFLECTION' FOR PREMEDITATION. ALSO LIKELY TO RAISE QUESTIONS IS THE CODE'S BROADENING OF THE FELONY-MURDER RULE (UNDER WHICH THE PROSECUTION NEED NOT PROVE PREMEDITATION TO CHARGE A DEFENDANT WITH FIRST-DEGREE MURDER FOR HOMICIDE OCCURRING DURING THE COURSE OF CERTAIN FELONIES) TO INCLUDE THE OFFENSE OF SELLING NARCOTICS. CONSPICUOUSLY ABSENT FROM THE CODE'S SECTION ON ASSAULT AND RELATED OFFENSES (ENDANGERMENT, THREATENING OR INTIMIDATING, SIMPLE AND AGGRAVATED ASSAULT, UNLAWFUL ADMINISTRATION OF DRUGS) ARE PROVISIONS FOR A DEFENSE BASED ON A VICTIM'S CONSENT TO AN ASSAULT. NEITHER DOES THE CODE PROVIDE FOR A REDUCTION IN CHARGE WHEN VICTIM PROVOCATION OF AN ASSAULT CAN BE SHOWN. CASE AND STATUTORY LAW PERTAINING TO THESE ISSUES IS REVIEWED. TWO CONCLUSIONS ARE REACHED: (1) WHETHER THE ISSUES WILL REACH THE COURTS AND, IF THEY DO, HOW THEY WILL BE RESOLVED REMAINS TO BE SEEN; AND (2) MORE IMPORTANT THAN DISCUSSING ANY LEGAL ISSUE IS UNDERSTANDING THE SOCIAL FRAMEWORK IN WHICH THE ISSUE HAS ARISEN. (LKM)