Criminal Law Outline
Topic
MPC
1. Introduction
2. Principles of
Punishment
3. Penal Theories in
Action
1.02(1) Purpose
(a) forbid and prevent conduct that
unjustifiably inflicts or threatens
substantial harm
(b) subject control persons whose
conduct indicates they are disposed
to commit crimes
(c) safeguard conduct that is without
fault from condemnation as criminal
(d) give fair warning
(e) differentiate on reasonable
grounds between serious and minor
offenses
1.02(2) Sentencing
3.02
Common Law
Crime- “any social harm defined
and made punishable by law”
Crime = actus reus + mens rea
A conviction may be based on
circumstantial evidence alone if
- the circumstances are such
that they are inconsistent
with any reasonable
hypothesis of innocence.
The power of a jury to nullify the
law is not essential to a criminal
defendant’s right to trial by jury
- legislation defines crime,
not jury
Utilitarian- punishment justified on
the basis of the supposed benefits
that will come from it
(1) general deterrence
(2) individual deterrence
(3) incapacitation
(4) reform
Retributivism- people who commit
crimes deserve punishment
8th amendment – ban on cruel and
unusual punishments
Factors
A.
B.
C.
D.
Notes/ Cases
Nature, Sources, and
Limits on Criminal Law
- English common law
- Criminal statutes
- Constitution (limits)
Pre-Trial
Trial by Jury
Proof of Guilt at Trial
- “reasonable-doubt”
standard
A. Theories
A. Proportionality
Objectives of sentencing
(1) Protect society
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(1) gravity of offense/ penalty
(2) sentences for other criminals in
the same jurisdiction
(3) sentences for same crime in
other jurisdiction
- only review sentences if grossly
disproportionality(??)
4. Modern Role of
Criminal Statutes
1.05
5. Statutory
Interpretation
3.02
(2) Need to punish
(3) Deterrence
A. Legality
(1) no crime without existing law
(2) legislature defines crime, not
the courts or police
(3) rule of lenity- ambiguity must
be red in favor of defendant
A. Statutory Interpretation
Ambiguity in statutory language
is determined by
(1) language/ common law
meaning
(2) specific and general context
(3) prior judicial interpretation
(4) legislative intent
Need for clear statutes
(1) notice for law-abiding citizens
(2) reduce discretion in
enforcement
6. Actus Reus
1.13(2) Act - bodily movement
Actus Reus- physical or external
whether voluntary or involuntary
part of the crime
(1) conduct
- requires voluntary act
(2) harmful result
(3) causation
1.13(3) Not voluntary
(1) reflex
(2) bodily movement during sleep/
unconsciousness
(3) hypnosis
A. Voluntary Act
B. Omissions (“Negative Acts”)
Only punish where there is a
duty to act
Omissions Analysis
(1) Did defendant act?
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(4) bodily movement, not product of
effort or determination
2.01 Omission
(a) omission expressly made
sufficient by the law defining the
offense
(b) legal duty to perform the omitted
act
7. Mens Rea
2.02 Kinds of Culpability
(1) Purposely –
(a) conscious object to engage in
conduct or cause result
(b)aware of existence of attendant
circumstances or believes or hopes
they exist
(2) Knowingly (a) aware of conduct or attendant
circumstances
(b) aware that it is practically certain
that his conduct will cause such a
result
(3) Recklessly (a) conscious disregard of substantial
and unjustifiable risk
(b)disregarding risk involves gross
deviation from the standard of
conduct of a law-abiding person
(d) Negligently –
Common Law Legal Duty
(1) Statute
(2) Relationship
(3) Contractual
(4) Prevent others from aiding/
voluntary assumption of risk
Intent – conscious objective or
purpose is to accomplish that result
or engaged in that conduct
Knowledge- consciously aware
that such result is practically certain
to be caused by his conduct
General and Specific
General – only mens rea needed is
one needed for actus reus
Specific- special mental element
above and beyond mental state
required for actus reus
Example of specific
- intent to commit future act
- special motive
- awareness of attendant
circumstances
(2) If no, was he under duty to
act?
a) If yes, what was the basis of
the duty?
b) what was he obligated to do?
(3) Did defendant act as
required?
a) If no, was failure “but for”
and proximate cause of the
harm?
b) if yes, did defendant have
requisite mens rea?
C. Social Harm
A. Nature of Mens Rea
B. General Issues Proving
Culpability
1. Intent
- general v specific
- transferred intent
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(a) should be aware of substantial
and unjustifiable risk that material
element exists or will result from his
conduct
(b) gross deviation from the
standard of care of a reasonable
person
2.03(2) Purposely or knowinglyIf actual result is not within purpose
or contemplation of the actor; still
culpable if:
(a) differs only in respect that a
different person or property is
injured
(b) harm contemplated would have
been more serious
(c) actual result involves same kind
or injury
2.03(3) Recklessly or negligentlyif actual result is not within the risk
the actor was aware or should be
aware:
(a) differs only in respect that a
different person or property is
injured
(b) probable harm would have been
more serious
(c) actual result involves same kind
or injury
8. Strict Liability Offenses
1.13(10)
2.05
1.04
Public Welfare offenses
A. Strict Liability
- don’t have to prove mens rea
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Felony- sentence of death or to
imprisonment of more than 1 year
Misdemeanor – determined by MPC
or statute
Petty misdemeanor- sentenced to
max. of 1 year
2.02(9)
9. Mistake and Mens Rea
2.05
1.04
2.04- Ignorance or Mistake
(1) Defense
(a) negates mens rea required
(b) law provides state of mind
established by mistake is a defense
10. Causation
2.02(9)
2.03 Causation
(a) “but for”
(b)relationship between conduct and
result satisfies additional causal
requirements of that law
11. Homicide: Intentional
Killings
210.2
(1)Criminal homicide constitutes
murder when:
(a) purposely or knowingly
(b) recklessly – extreme
indifference to value of
human life
(2) Murder = 1st degree felony
(1) regulated dangerous or
deleterious devices or products or
obnoxious waste materials
(2) heighten the duties of those in
control of particular industries,
trades, properties or activities that
affect public health, safety, or
welfare
(3) depend on no mental element
but consist only of forbidden acts or
omissions
Specific intent- good faith belief of
fact (related to specific intent)
General intent- good faith belief of
fact AND reasonable
* Defense – want to apply mens
rea to all elements
A. Mistake
Defense: if it negates required
mental element of the crime
A. Actual Cause
B. Proximate Cause
C. Concurrence of the
Elements
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12. Homicide:
Manslaughter
13. Unintentional Killings :
Recklessness and
Negligence
14. Felony Murder
210.3(1)(a) Manslaughter
(a) recklessly
(b) Homicide would otherwise be
considered murder
- extreme mental or emotional
disturbance
- viewpoint of a person in the actor’s
situation under the circumstances as
he believes them to be
(2) Manslaughter = 2nd degree felony
A. Unjustified Risk-Taking
210.2(1)(b) Recklessness
presumed if:
-actor is engaged or an accomplice
to the commission of robbery, rape,
burglary, kidnapping, or felonious
escape
15. Capital Murder
210.6 (1)No death penalty
a) no aggravating circumstances
b) substantial mitigating
circumstances
c) defendant plead guilty to 1st
degree murder
d) under 18
e) defendant’s physical or mental
condition calls for leniency
f) evidence not beyond a
reasonable doubt
210.6 (3) Aggravating
circumstances
a) convict under imprisonment
A. Unlawful Conduct
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b) previous murder conviction
c) multiple murders
d) knowingly created great risk of
death to many persons
e) felony murder
f) avoiding lawful arrest/ escape
g) economic gain
h) exceptional depravity
210.6 (4) Mitigating
Circumstances
(a) no prior criminal history
(b) extreme mental or emotional
distress
(c) victim was participant in
defendant’s homicidal act/consent
(d) defendant believed to provide
moral justification
(e) accomplice with minimal
participation
(f) duress or domination by another
(g) mental disease or defect at
commission of crime
16. Intro to Rape: Actus
Reus
17. Actus Reus- Force
18. Rape: Mens Rea
19. Justification
213.0-213.9
20. Self Defense
3.04 limited by 3.09
 Introduces criminal liability
for unreasonable use of
force
3.11 – triggering condition
213.0-213.9
213.0-213.9
1.12
A. Burden of Proof
B. Categories of Defenses
Rule on Use of Deadly Force
1. Threat of imminent deadly
harm/serious bodily injury
2. Objectively reasonable belief
3. Necessity
4. Proportional
Criminal Law Outline
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


Assert a right, abstain from
action you have no duty to
take
Retreat with complete safety
o Not obligated to
retreat from
dwelling or
o Work UNLESS other
person also works
there
Aggressor rule 3.04(2)(b)(i):
an actor is an aggressor if he
or she, “with the purpose of
causing death or serious
bodily injury, provoked the
use of force against
him/herself in the same
encounter”
Renunciation rule –
whatever suffices to end the
encounter
o Commits affirmative
o Knowingly be
provoking conflict/
deadly harm
o Still have defense if
started nonlethal
conflict
3.04- Use of force is not
justifiable unless the actor
believes that such force is
necessary to protect
himself”
o subjective
1)aggressor – no SD if not free from
fault
- Had to have deescalated,
retreated and communicated to
another person that they are no
longer the aggressor to be able
to use SD
2) retreat – CL- retreat to the wall
- Had to have a safe avenue of
retreat
- No longer the majority road
- “Stand your ground”
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3.09
If you are reckless or negligent in a
belief, justification is unavailable for
an offense which recklessness or
negligence would suffice as the
mens rea
MPC – negligence not good enough
for manslaughter, but is good
enough for negligent homicide
Common law- gross negligence good
enough for manslaughter
21. Defense of Others
3.06
3.02
Defense of Others
- Minority- Narrow “alter
ego rule”- have right to
defense of others ONLY IF
other party would have
right to self-defense
- Majority- Reasonable
belief that the other
person had right to selfdefense
22. Defense of Property
3.06 – Use of Force for the
Protection of Property
Defense of Property
(a) prevent or terminate an unlawful
entry or other trespass
(b) to affect an entry or re-entry
upon land or to retake tangible
movable property
- gives a home resident the right to
use lethal force against an intruder
when such force is necessary to
prevent the commission of a felony
inside the home.
-Reasonable and justifiable belief
the person is intended to commit a
felony inside
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(i) force is used immediately or on
fresh pursuit after such
dispossession
(ii) actor believes that the person
whom he uses force has no claim of
right to the possession of the
property
3.06 3(d) Use of Deadly Force
o i) attempting to
dispose him of his
dwelling
o ii) attempting to
commit a felony
(only
listed/enumerated
felony)
o no other means
23. Necessity
Home /Castle doctrine
- a place where a person has a right
to stand his [or her] ground and
repel, force by force, to the extent
necessary for its protection.
- No duty to retreat
Defense of Necessity
Test 1
(1) the criminal act must have been
committed in order to prevent a
substantial harm;
(2) there must have been a lack of
an alternative; and
(3) the harm caused must be
proportional to the harm avoided.
Test 2
(1) they were faced with a choice of
evils and chose the lesser evil;
(2) they acted to prevent imminent
harm;
(3) they reasonably anticipated a
direct causal relationship between
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their conduct and the harm to be
averted; and
(4) they had no legal alternatives to
violating the law.
24. Duress
2.09- Duress
(1) Available if : actor engaged in
conduct
charged
to
constitute
an
offense
BECAUSE he was coerced to
do so by the use of, or a
threat to use, unlawful force
against his person or the
person of another, that a
person
of
reasonable
firmness in his situation
would have been unable to
resist
(2) Unavailable
if:
actor
recklessly or negligently
placed themselves in the
situation
- This section does not
preclude 3.02 necessity
defense
25. Intoxication
Duress
(1) D must reasonably believe that
the threatened harm is imminent
(upon D’s failure to comply)
(2) Must reasonably believe that he
or she has no reasonable
opportunity to escape
(3) Must reasonably believe that
threat is one of death or serious
bodily injury
- Limited to threats from another
person
- Does not apply to murder
- Clean hands i.e., D was not
negligent in creating the conditions
giving rise to the claim of duress
Voluntary Intoxication
Voluntary Intoxication
- Defense to 1.) specific-intent
MPC 2.08 and 4.01- Hostile to
crimes (NOT general-intent
strict(absolute ) liability
crimes) AND 2.) actually negates
2.08 (1) - Look to see if there is an
specific-intent element
implicit mens reas, if not listed
- Compare to mistake of fact
default= recklessness (only
crime distinction
applicable if negates material
specific/general intent
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26. Insanity
element, that element is usually
mens rea)
2.08 (2)- Self-induced
intoxication- not a defense to
recklessness
2.08 (3) - intoxication does not
constitute mental disease under
4.01
- Arguments about long-term
alcoholism /addiction as a
mental disease
2.08 (4) – not self-induced or
pathological = affirmative
defense
- Did not self- induced
intoxication prevent you from
understanding criminality of
conduct
2.08 (5) - definitions
Involuntary Intoxication
2.08 (5) - pathological
-
Specific intent- mens rea
modified actus reas
o General/specific
only in common law
4.01- Mental Disease or Defect
excluding Responsibility
Insanity Tests
1. Right-wrong test
4.01(1)- Not responsible for criminal
conduct if at the time of such
conduct as a result of mental disease
or defect he lacks substantial
capacity either
(1) to appreciate the
criminality (wrongfulness) or
his conduct OR
- “knowledge of good or evil”
2. The M’Naghten Rule – Most
common test (Binary – you
know, or you don’t)
- Dual pronged test- Must be
clearly proved that, at the time
of the committing the act, the
party accused
Involuntary Intoxication
- defense to both general
and specific intent
1. Coerced
2. Pathological
3. Intoxication by innocent
mistake
4. Unexpected intoxication
resulting from ingestion of
medically prescribed drug
Criminal Law Outline
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(2) to conform his conduct
to the requirements of the
law
“appreciate”, “substantial” –
broader than “total” and
“complete” requirement of
other tests
(i) Cognitive incapacity- Defect of
reason, from disease of the mind, as
to not know the nature and quality
of the act OR
(ii) Moral incapacity- If he did know
it, that he did not know that what
he was doing was wrong
- Criticism- Doesn’t recognize
volitional or emotional
impairments, only cognitive
incapacity
3. The “Irresistible Impulse” or
“Control” Test
-
-
-
Due to mental illness, though a
person abstractly knows the
given act is wrong, he is by an
insane impulse, irresistibly
driven to commit it
Inquire into both cognitive and
volitional components of
behavior
Criticism – excludes acts that
are not “sudden and explosive
fits”; only deals with one type of
mental illness
4. The “Product” Test
-
-
“an accused is not criminally
responsible if his unlawful act
was the product of mental
disease or defect”
Designed to facilitate full and
complete expert testimony and
permit jury to hear all relevant
information
Criminal Law Outline
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27. Inchoate Offenses :
attempt
5.01- Attempt
Conduct- 5.01 (a) purposely
engages in conduct that would
constitute a crime if the attendant
circumstances were as he believes
them to be
Harm/ Results – 5.01 (b) when
causing a particular result is an
element of the crime, does or omits
to do anything with the purpose of
causing or with the belief that it will
cause such result without further
conduct on his part
5.01(c) purposely does or omits to
do anything which, under the
circumstances as he believes them
to be, is an act or omission
constituting a substantial step in a
course of conduct planned to
culminate in his commission of the
crime
Criticism – ability of expert
witness to usurp jury’s function;
“trial by label”
Tests for Actus Reus of Attempt
(1) Physical proximity
- Overt act required for an attempt
must be proximate to the
completed crime, or directly tending
toward the completion of the crime,
or must amount to the
commencement of the
consummation
Overt act- open act; could
argue that if victim didn’t
know then it wasn’t overt
(2) Dangerous proximity
- The greater the gravity and
probability of the offense, and
the nearer the act to the crime,
the stronger is the case for
calling the act an attempt
- Peaslee and Rizzo
- May allow event to be farther
away if the offense is more
grave
(3) Indispensable element
- Variation of proximity tests
which emphasizes any
indispensable aspect of the
criminal endeavor over which
the actor has not yet acquired
control
(4) Probable Desistance
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-
If, in the ordinary and natural
course of events, without
interruption from an outside
source, it will result in the crime
intended
(5) Res Ipsa Loquitur
- When the actor’s conduct
manifests an intent to commit a
crime
28. Attempt
Mens Rea for Attempt
Criminal attempts require 2
“intents”
(1) Actor’s conduct (conduct
that constitutes the
attempt) must be
intentional
(2) Commit act with specific
intention of committing the
completed offense
29. Impossibility
(1) Factual impossibility intended end constitutes a crime
but she fails to consummate it
because of a factual circumstance
unknown to her or beyond her
control
-Not a defense under MPC or
common law- Not a defense AT ALL
(2) Legal impossibility - occurs
when a defendant believes his
conduct is criminal but in actuality,
it is not
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-Common law: recognizes as
defense
-MPC: not explicitly, but is
recognized as a defense
(3) “Hybrid” legal impossibility-
30. Abandonment
5.01(4) – Abandonment
- affirmative defense that he
abandoned his effort to commit the
crime or otherwise prevented its
commission under circumstances
manifesting a complete and
voluntary renunciation of his
criminal purpose
31. Solicitation
5.02 – Criminal Solicitation
(1) definition- if with the purpose of
promoting of facilitating it
commission, he commands,
encourages or requests another
person to engage in specific conduct
that would constitute such crime or
an attempt to commit such crime or
which would establish his complicity
if D’s goal was illegal, but
commission of the offense was
impossible due to the factual
mistake by regarding the legal
status of some factor relevant to
her conduct
-Some courts will recognize as
defense
- Example: Defendant receives
unstolen property believing it was
stolen
- Does not recognize defense
of abandonment
- Once the defendant has
gone so far as to have
committed a punishable
attempt, the crime is
“complete”, and he cannot
abandon the crime
Solicitation
(1) actus reus – inviting, requesting,
commanding, hiring or encouraging
another to commit a particular
offense
(2) mens rea
(1) intent to perform the
acts of constituting the
solicitation
-
Criminal Law Outline
in its commission or attempted
commission.
32. Conspiracy
5.03 – Criminal Conspiracy
(1) Definition- guilty of conspiracy
with another person or persons to
commit a crime if with the purpose
of promoting or facilitating its
commission he:
(a) agrees with such other
person(s) that they or one
more of them will engage in
conduct that constitutes
such crime or an attempt or
solicitation to commit such
crime; or
(b) agrees to aid such other
person or persons in the
planning or commission of
such crime or of an attempt
or solicitation to commit
such crime
Mens rea- purpose of promoting or
facilitating commission of the crime
5.04
Unilateral – only need one person to
agree with intent to agree
(2) specific intent that the
other person commits the
solicited offense
Conspiracy
(1) formation of agreement – not
necessary to establish an overt act(
some jurisdictions)
-If overt act is required- no matter
how preliminary or preparatory in
nature
(2) Specific Intent
(a) intent to combine with
others
(b) intent to accomplish the
illegal objective
Mens Rea – purpose or intent
inferred from knowledge
-Intent inferred from knowledge
(1) purveyor of legal goods for
illegal use
(2) when no legitimate use for the
goods or services exist
(3) when the volume of business
with the buyer is grossly
disproportionate to any legitimate
demand, or when sales for illegal
use amount to a big proportion of
the seller’s total business
Bilateral- need both people to agree
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EXAM
-
20 questions , 1 essay
IRAC
Point out weaknesses in argument
If explained already, can say “as above”
Multiple choice – casebook plus , CALI lessons