Criminal Law Common Law/ Model Penal Code Comparisons
Professor Bergelson, Spring 2004
Actus Rea
Common Law
Requires affirmative, voluntary act; intention
to commit a crime is insufficient to convict if
there is no evidence of an act putting that
intent into effect.
 Mere movement of vehicle does not
necessarily constitute act of driving
vehicle→there must be an affirmative act
by Δ (Taft)
 If knowledge that actions could cause
harm to another (i.e., you know you can
blackout and drive anyway), act
constitutes crime (Decina)
Possession:
Mere presence + Intent to posses + power to
possess = conviction
 Mere presence ≠ possession
 (Kimbrell→watching drugs)
Omission:
There must be a duty
 statutory
 status relationship (Biddle)
 contract (Moore→chauffer)
 voluntary assumption of care (Jones)
 There is no duty to do what you are
incapable of doing
 You must be aware of the circumstances
before a duty exists (Teixera)
Willful omission→death = murder
Negligent omission→death = manslaughter
Model Penal Code
 There must be a voluntary act or omission
Conduct: physical activity (affirmative act),
possession
Result: consequence
Circumstance: external conditions when Δ
engages in conduct
Possession:
Possession is an act if:
 knowingly procured OR
 knowingly received the thing OR
 was aware of control for sufficient period
of time
Omission:
Liability for the commission of an offense
may not be based on an omission
unaccompanied by an action unless:
 Omission is expressly made sufficient by
law defining offense
 A duty to perform the omitted acts is
otherwise imposed by law
Mens Rea
Common Law
Criminal Negligence
 Gross lack of competency
 Gross inattention
 Criminal indifference
 Gross deviation = recklessness→aware of
substantial risk created by conduct and
disregards that risk→ (Peterson)
 Homicide→neg. homicide if acted with
criminal negligence (State v. Howard)
 Subjective Test
Specific Intent Crime:
 Requires actual intention to do more than
actus reus, not just general
blameworthiness
 General malevolence is not an attempt to
commit a crime even if it results in an
substantive crime
 Malice aforethought ≠ specific intent to
kill (Shea)
General Intent Crime:
 Intent to commit an act, serves as actus
reus
Model Penal Code
Criminal Negligence
 Should be aware of substantial and
unjustifiable risk that a material element
exists or will result
 Risk must be of nature and degree that
failure to perceive = gross deviation from
reasonable person’s standard of care
MPC no longer recognizes the distinction
between general and specific intent. Rather,
it spells out what is required for each crime.
(See above)
Knowledge
Common Law
Model Penal Code
Subjective test
Majority→ subjective test
Minority→ objective test
Deliberate ignorance and Positive Knowledge
 If one is aware of high probability of
have equal culpability
existence of a particular fact, unless he
actually believes it doesn’t exist, he is still
 Knowingly is not limited to positive
knowledge, but includes the state of mind
culpable
of one who does not posses positive
 If there is a high probability of existence,
knowledge only because it consciously
knowledge is established
avoided it.
 Willful blindness (Jewel→marijuana)
Willfulness
Common Law
 Intentional or deliberate→ a voluntary,
intentional violation of a known legal duty
(Cheek)
 It means no more than that the person
charged with the duty knows what he is
doing. It does not mean that, in addition,
he must suppose that he is breaking the
law.
Model Penal Code
?
Strict Liability
Common Law
Malum prohibita
 Statutory rape, bigamy
Model Penal Code
Can only be a violation→minor offenses, not
crime; fine/forfeiture – what about statutory
rape, felony murder?
No need to show culpable mental state
(Transferred Intent)
Murder
Common Law
4 ways to satisfy mens rea requirement:
 Intent to kill
 Intent to commit serious bodily injury
 Reckless/extreme indifference to value of
human life (depraved heart)
 Intent to commit dangerous felony
—no bootstrapping allowed (felony must be
independent)→People v. Wilson
Death must be shown to have occurred
Criminal liability for the natural and probable
consequences of unlawful acts
Res gestae:
 Embraces not only the actual facts of the
transaction and the circumstances
Model Penal Code
3 ways to prove
 Purposefully, knowingly (differs from
willingly—did away with malice
aforethought)
 Recklessly manifesting extreme
indifference to human life (depraved heart,
subjective view of recklessness)
 During a felony
—recklessness of act presumed if engaged
in commission of robbery, rape, arson,
burglary, kidnapping, felonious escape, but
felony murder is not adopted per se
surrounding it, but the matters
immediately antecedent and having direct
causal connection with it as well as acts
immediately following it
1st degree
 Poisoning
 Lying in wait
 Willful
 Deliberate
 Premeditated
 Felony
nd
2 degree:
 Depravity of heart
 No intention to kill
Only 1st degree
Premeditation
 No set time required, only that intention occurred at time of killing or beforehand
(Schrader)—decision overruled in so far as it suggests that premed and delib could come
into existence at time of killing
 If there is assault by both parties and sudden emotion, it becomes voluntary manslaughter
 Court in Forrest gives 6 circumstances used to determine premeditation
o Want of provocation on part of dead
o Conduct and statements of defendant before and after killing
o Threats and declarations of defendant before and during course of occurrences
giving rise to killing
o Ill-will or previous difficulty between defendant and victim
o Dealing of lethal blows after deceased rendered helpless
o Evidence that the killing was brutal
Manslaughter
Common Law
Voluntary:
 Intent to kill, but in the heat of passion
with no malice aforethought
 Objective test for sufficiency of
provocation
 4 requisites
1) acts in response to provocation which
would cause a reasonable man to lose
his self-control (actual→mere words are
not enough)
2) heat of passion
Model Penal Code
No distinction between voluntary and
involuntary
 recklessly→aware of the risk, but
consciously disregards it; advertant;
subjective; gross deviation
 purposeful, but committed under extreme
mental disturbance (heat of passion)—
reasonable person in actor’s circumstances
as he believes them to be (subjective)
 2nd degree
3) lapse of time not enough to cool off
4) had not cooled off
Involuntary:
 Criminal negligence required
 Unintended killing caused during the
commission of an unlawful act not
amounting to a felony
Should be aware
Negligent Homicide
 Committed negligently—ought to have
been aware of the risk; inadvertent;
objective
Attempt
Common Law
Intent to commit a crime + performance of an
act toward its commissions + failure to
commit the crime
 the attempt is the direct movement
towards the commission after the
preparations are made
Dangerous Proximity Test:
 looks at what is left to be done
 if the last proximate act is done, always
sufficient, yet not always required
 focus on the actor’s actions
 beyond mere preparation
Δ must have culpability to commit a crime—
there can be no attempt of negligent homicide
Legal Impossibility:
 when Δ’s actions sets in motion, even if
fully carried out as he desires, would not
constitute a crime (Oviedo)
 courts look at objective acts performed to
determine criminality without reliance on
accompanying mens rea
 COMPLETE DEFENSE
Factual Impossibility:
Model Penal Code
 Δ does anything with the purpose of
causing a particular result which is an
element of the crime
 Belief that it will cause the result without
further conduct
Substantial Step Test: (Subjective Test)
 focuses on what has already been done
 acting with culpability for the commission
of the crime
 purposefully engages in conduct which
would constitute crime if circumstances
were as he believes them to be
Six circumstances which shall not be held
insufficient as a matter of law:
 lying in wait, searching for, following
victim
 reconnoitering the place contemplated
 unlawful entry
 possession of specially designed materials
 possession of materials at or near place of
commission
 soliciting an agent to engage in conduct
Legal Impossibility:
The only defense
No factual Impossibility Defense
 Objective of Δ is proscribed by criminal
law, but a circumstance unknown to the
actor prevents him from bringing about
that objective
 Never a defense
Hybrid Impossibility: (Brickey)
 Objective is criminal, but there is a factual
mistake as to the legal status of the goods
(shooting at a tree stump, shooting a dead
man)→Booth, Rojas
No hybrid defense
Solicitation
Common Law
Requesting someone to commit a crime
 Communication not required of conduct
indicates solicitation
 No corroboration needed
 No overt act required
 Falls short of an attempt
 A substantive crime in and of itself
 Solicitation merges into conspiracy
 In some jurisdictions→attempted
solicitation
Model Penal Code
 Commands, encourages another to engage
in specific conduct which would constitute
a crime or an attempt of that crime with
purpose of promoting/facilitating its
commission
 Affirmative defense to persuade other
person not to commit crime or prevent
commission of the crime if renunciation is
complete and voluntary
Abandonment
Common Law
Involuntary abandonment never a defense
Not a defense if the crime is completed
Model Penal Code
Requires complete and voluntary
renunciation
 Not voluntary is motivated by increase in
probability of detection
Affirmative defense if you persuade
accomplice not to do so or otherwise prevent
commission; requires that crime not be
completed
 Not complete if it is merely a decision to
postpone conduct
Even if last act is done, if defendant fixes so
as to prevent, still a defense
Conspiracy
Common Law
An agreement between 2 or more persons to
do either an unlawful act or a lawful act by
unlawful means
 Agreement + Objective + Mens Rea
 It is not necessary that each conspirator
agree to commit the substantive object
crime; also not necessary to have tacit
agreement between co-conspirators
 All members of conspiracy may be liable
for the substantive crime even if
committed by only one member, without a
new agreement
 Once agreement made, no withdraw from
conspiracy, only from substantive offense
Wharton’s Rule: an agreement between 2
people to commit a particular crime cannot be
prosecuted as a conspiracy when the crime
necessarily requires the participation of 2
persons for the completion
Pinkerton Rule: criminal act must be
foreseeable and done in furtherance of the
conspiracy for all members to be found guilty
of substantive crime without any liability
 Some jurisdiction require actual action:
mere preparation may be okay—but more
than knowledge, promotion of venture
 If tried in same trial, need two for
conviction; if separate trials, can have just
one conspirator
Model Penal Code
Guilty if with purpose of
promoting/facilitating commission of crime,
agrees with such other person or persons
that they or one or more of them will
engage in conduct which constitutes such
crime or an attempt or solicitation to
commit such crime
 All members of conspiracy need not
know each other
 For the individual to terminate his part in
the conspiracy, must advise others of
abandonment or inform law enforcement
of the conspiracy
Unilateral Theory: individual is liable if he
agrees with another person
Rejection of Pinkerton: just being a member
of a conspiracy, with no other aiding, is not
enough to be convicted of substantive
crime→must use accomplice liability
 No person can be convicted unless an
overt act is done by him or co-conspirator
 Overt act may be mere preparation
 Abandonment presumed if there is no
overt act
Parties to a Crime (Accomplice Liability)
Common Law
Principal in the 1st Degree:
 The person who actually commits the
crime
Principal in the 2nd Degree:
 Person who aided, counseled, encouraged
Model Penal Code
Guilty of offense if committed by own
conduct or by someone for whom legally
accountable
Accomplice When:
 Solicits another person to commit crime
the commission of the crime
 Present at the time the crime was
committed
 Can be constructive→a look out
 Must have same mens rea as principal
Accessory Before the Fact:
 Aids and abets the commission of a crime
 Not present at the time of the crime—
merged with principal 2nd
Accessory After the Fact:
 Aids criminal after crime committed
 3 Elements
*Felony must be completed
*Knowledge of felony
*Aid the Felon
 Individual and separate crime
 Conviction of a principal is not a
condition precedent to the conviction of
an accessory after the fact.
Liable for all foreseeable consequences
 Aids/agrees/attempts to aid in planning or
committing
 Has legal duty to prevent commission of
crime but fails to do so
 Conduct by law establishes complicity
Rejects foreseeable consequences
doctrine→accessory not liable for crimes
beyond those which were intended to aid or
encourage
Ignorance or Mistake
Common Law
Mistake of Law:
 Never a defense (traditional view)
 Follow MPC (modern view)
Mistake of Fact:
Model Penal Code
Mistake of Law:
 A defense if it negates the mental state
required
 State of mind established constitutes
defense
 Not available as a defense if Δ would have
been charged with another offense had the
situation been as he supposed
A belief that conduct is not offense is a
defense when:
 Statute not known and has not been
published prior to conduct alleged
 Reliance on official statement of law
determined to be invalid or in error
Mistake of Fact:
 Defense only for specific intent crimes—
must lack mens rea for crime
 Must be an “honest” mistake
 Mistake of age is no defense
 Based on Δ’s subjective belief
 Mistake of age is no defense—no defense
if under 10
Intoxication
Common Law
Model Penal Code
Voluntary Intoxication:
Voluntary Intoxication:
 Not a defense but may be used if it negates
 Defense if it prevents an accuse from
specific intent
having the required state of mind→but not
 Inadmissible to negate general
always a complete defense
intent→negligence
 Does not negate recklessness or criminal
negligence
Involuntary Intoxication:
Involuntary Intoxication:
 Presence or threat of force/duress
 Defense if Δ intentionally ingests a
substance, but mistakenly believes that it
is not intoxicating
