Common Law-MPC Breakdown
GENERAL (MISCELLANEOUS)
Common Law
Legality-a person may not be punished unless his
conduct was defined as criminal at time offense
was committed; law must be construed in light
most favorable to defendant
Burden of persuasion-split in jurisdictions-1)
some require prosecution to prove conduct that
negates an excuse or justification, 3) others do
not
Presumptions-
Model Penal Code
§1.02-Does not recognize the lenity principle;
instead requires that ambiguities be resolved in
a manner that furthers the general purpose of
the Code/provision
§1.12, 1.13-requires the prosecution to prove
conduct that negates an excuse or justification
§1.12-does not recognize mandatory
presumptions but permits permissive
presumptions
ACTUS REUS
Common Law
Voluntary-may be defined simply as any
volitional movement. Habitual conduct may be
deemed voluntary. Acts deemed involuntary may
include: spasms, seizures, and bodily movements
while unconscious or asleep
Omissions-no legal duty to act unless: 1)special
relationship, 2) contract, 3) creation of risk, 4)
assumption of voluntary assistance, 5) statutorily
imposed (eg: taxes)
Model Penal Code
§2.01 (1) & (2)-involuntary act includes
reflexes, convulsions, conduct during
unconsciousness, sleep, or due to hypnosis, as
well as any conduct that “is not a product of the
effort or determination of the defendant, either
conscious or habitual
§2.01(3)-liability based on an omission when:
1) if the law defining the offense provides for it,
2) if the duty to act is “otherwise imposed by
law” including duties arising under civil law,
such as torts or contracts
MENS REA
Common Law
Culpabilitygeneral intent
 Less culpable state of mind than specific
specific intent
 Uses various levels interchangeable and
they overlap; not structured like MPC
Strict Liability- no culpability requirement;
rarely used other than for “public welfare”
offenses and statutory offenses; mistake of fact
or law is NOT a defense
Model Penal Code
§2.02-wants to replace general and specific
intent with Levels of Culpability:
 Purposefully
 Knowingly
 Recklessly
 Negligence
§2.02-does not recognize strict liability, except
with respect to regulatory “violations.”
Requires proof of some form of culpability
regarding each material element
Common Law-MPC Breakdown
MISTAKE OF FACT
Common Law
Specific Intent Crimes-any mistake that negates
requisite mens rea can eliminate or mitigate an
offense; disregarding a material fact is the same
as knowledge of it
General Intent-mistake must be both honest
AND reasonable; if mistake was unreasonable,
actor will be guilty
Model Penal Code
§2.04(1)-defense if it negates the mental state
required to establish any element of the offense
or if the law allows the state of mind resulting
from mistake to be a defense
§2.04-defense NOT available if the defendant
would be guilty of another offense, had the
circumstances been as he supposed; he would
only be guilty at the level of the lesser offense
(different from legal wrong doctrine)
Moral & Legal Wrong Doctrines
MISTAKE OF LAW
Common Law
Fair Notice-ignorance of the law is no excuse;
everyone is presumed to know the law
Mistake that Negates Mens Rea-mistake of law,
based on the understanding of a different law,
that negates the mens rea can be a defense to a
specific intent offense (whether reasonable or
unreasonable), but not to a general intent offense
Model Penal Code
§2.04(3)(a)-exception where: 1) a defendant
does not believe that his conduct is illegal, and
2) the statute defining the offense is not known
to him and was not published or otherwise
reasonably made available to him before
violation
§2.04(1)-a different law mistake or ignorance of
the law is a defense if it negates a material
element of the offense
CAUSATION
Common Law
Actual Cause-uses the but for test with:
 Substantial factor
 Acceleration
 Multiple actual causes
Proximate (Legal) Cause-a direct cause of social
harm is also a proximate cause; proximate cause
chain can be broken by an intervening force
 Apparently Safe Doctrine
 Intended Consequence Test
 Free, Deliberate, Informed Human
Intervention
Model Penal Code
§2.03(1)(a)-only applies the but-for test
§2.03(2), (3), (4)-the but-for test is the
exclusive meaning of causation. MPC treats
matters of “proximate causation” as issues
relating to defendant’s culpability; to find a
defendant culpable, the harm must not be “too
remote/accidental from that which was
designed or risked. When the offense has no
culpability requirement, causation is not
established unless the actual result is a probably
consequence of defendant’s conduct. (applies to
felony murder especially)
Common Law-MPC Breakdown
HOMICIDE
Common Law
Generally-defined as “the killing of a human
being by another human being; beginning of life
defined as birth; end of human life defined as
“brain death”; Divided into: murder and
manslaughter
Modern Law: no year and a day rule
Model Penal Code
§210.1-a person is guilty of criminal homicide
if he unjustifiably and inexcusably takes the life
of another human being purposefully,
knowingly, recklessly, or negligently; Divided
into: murder, manslaughter, and negligent
homicide
MURDER
Common Law
Act-unlawful killing of another human being
with malice aforethought
Mental State-malice aforethought
 Intent to kill-awareness of consequences
 Intent to cause harm: awareness of
consequences
 Awareness of risk of human life: acting
with an abandoned heart
 Intent to commit a felony: strict liability
attaches
Degrees First: premeditation (think) and
deliberation (evaluate); must have some
time to reflect
 Second: no premeditation; still
intentional, no justification
Felony Murder-defendant is guilty of murder if
he kills another during the commission or
attempted commission of a felony; strict
liability-must only prove elements of the felony
Model Penal Code
§210.1-A homicide is murder if the defendant
intentionally takes a life, or if he acts with
extreme recklessness
§210.2(1)-murder when:
 Committed purposefully or knowingly
 Committed recklessly under
circumstances manifesting indifference
to the value of human life (may be
implied)
MPC does not recognize degrees
§210.2(1)(b)-extreme recklessness is presumed
if the homicide occurs while the defendant is
engaged in, or is an accomplice in, the
commission, attempted commission, or flight
from one of the dangerous felonies specified in
the statute; Adds felonious escape to list of
inherently dangerous felonies
Common Law-MPC Breakdown
MANSLAUGHTER
Common Law
Mental StateVoluntary manslaughter Intentional killing committed in sudden
heat of passion as a result of adequate
provocation
Involuntary manslaughter Unintentional killing resulting from the
commission of a lawful act done in an
unlawful manner
 Unintentional killing during the
commission or attempted commission of
an unlawful act – “misdemeanormanslaughter”
Model Penal Code
§§210.3(1), 6.06,(2); 210.4-generally, a person
is guilty of manslaughter if he:
 Recklessly kills another; or kills another
person under circumstances that would
ordinarily constitute murder, but which
homicide is committed as the result of
“extreme mental or emotional
disturbance for which there is a
“reasonable explanation or excuse”
 EMED intended to incorporate
common law sudden heat of passion
and diminished capacity
Involuntary manslaughter in common law is
called negligent homicide in MPC (210)
The code Does Not recognize any form of the
criminal homicide based on the misdemeanormanslaughter rule
Common Law-MPC Breakdown
DEFENSESSELF DEFENSE
Common Law
Use of Non-deadly Force-non-aggressor must
have a reasonable fear of imminent force
Use of Deadly Force-only justified when
defendant reasonably believes that it is necessary
to prevent imminent and unlawful use of deadly
force by the aggressor.
Cannot be used if a non-deadly response will
apparently suffice
Minority-Imperfect rule applies
Retreat Rule-Slight Majority: American rule (no
duty to retreat in any situation); Minority-retreat
required if defendant knows he can do so in
complete safety unless in home or place of work
DEFENSE OF OTHERS
Common Law
Majority-the use of force may be justified if it
reasonably appears necessary for the protection
of the third party
Model Penal Code
§3.04-does not specifically require the
defendant’s belief to be reasonable, however, as
nearly all justification defenses, it has been
modified by §3.09, which re-incorporates a
reasonableness component
§3.04(2)(b)-justifiable when defendant believes
it’s immediately necessary to prevent himself
against:
 Death
 Serious bodily injury
 Forcible rape
 Kidnapping
Imperfect rule applies
§3.04(2)(b)(ii)-One must retreat if he knows he
can do so with complete safety unless in his
home or place of work unless being assailed by
a coworker
Model Penal Code
§3.05(2)-basically the same
Common Law-MPC Breakdown
DEFENSE OF PROPERTY
Common Law
Property-Force Allowed-under no circumstances
may a person use deadly force to prevent
dispossession
Habitation-3 approaches (allow deadly force)
 Deadly force permissible if reasonable
belief that such force is necessary to
prevent an imminent and unlawful entry
of dwelling
 ADDED to early law-intruder intends to
injure any occupant(s) or commit a
felony
 Narrow Approach-all of the above PLUS,
the felony must be a forcible felony or
kill or seriously injure
Model Penal Code
§3.06(3)(d)(ii)-permits deadly force where the
defendant believes that:
 The other person is attempting to
commit arson, burglary, robbery, or
felonious theft or property destruction
 Such force is immediately necessary to
prevent commission of the offense; and
EITHER
 The other person previously used or
threatened deadly force
 Use of non-deadly force would expose
him/another to substantial danger of
serious bodily injury
§3.06(3)(a)-limits non-deadly force to:
 Force is not immediately necessary
unless defender first requests desistance
by interfering party (not required if
defender believes request would be
useless, dangerous or would
substantially harm property
 One may not use force if it would
expose trespasser to substantial risk of
serious bodily injury
§3.06(3)-deadly force allowed if intruder is
seeking to dispossess of the dwelling and force
is immediately necessary, even if occupant does
not feel he is going to be harmed
Common Law-MPC Breakdown
LAW ENFORCEMENT PURPOSES
Common Law
Crime Prevention-deadly force, there is a split
(for police or private citizens):
 Minority-deadly force may be used if
actor reasonably believes person is
committing a felony
 Majority-deadly force may be used when
a forcible/atrocious felony is being
committed
Effectuation of an Arrest-non-deadly force is
allowed
Deadly force (police)-allowed he has probably
cause that subject poses significant threat of
death or physical injury to others and such force
is necessary to prevent escape
Deadly force (citizens)-allowed in the following
circumstances:
 Offense is a forcible felony
 He must notify the suspect of intention to
make the arrest
 He must be correct in his belief that the
suspect committed the offense
Model Penal Code
§3.07(5)-deadly force allowed if there is a
substantial risk that person is going to cause
death or serious bodily injury to another unless
stopped and use of deadly force presents no
substantial risk to bystanders
§3.07-Non-deadly force is justified if the
defendant:
 Believes force is immediately necessary
AND
 Makes known to other person the
purpose of the arrest; or
 Believes that other person
understands the purpose of the arrest
or that notice cannot reasonably be
provided
§3.07-A citizen may never use deadly force.
A police officer, or a citizen assisting someone
he believes is a police officer, may use deadly
force if the arrest is for a felony and the officer:
 Believes it’s immediately necessary;
 Makes known to the suspect the purpose
of the arrest or believes that the person
understands the purpose or that notice
cannot reasonably be provided
 Believes it creates no substantial risk of
harm to innocent bystanders; and
EITHER
 Believes that the crime included the
use or threatened use of deadly force;
or
 Believes that a substantial risk exists
that the suspect will kill or seriously
harm another if his arrest is delayed
or if he escapes
Common Law-MPC Breakdown
NECESSITY
Common Law
Conditions-the conditions that must be met to
raise this defense are stricter than MPC (see
outline).
Model Penal Code
§3.02-does not require that the harm be
imminent or that the defendant approached the
situation with “clean hands.” The common law
limitations regarding natural forces, homicide
cases, and property and personal are
inapplicable to the MPC’s necessity defense.
DURESS
Common Law
As a Defense-Majority: duress is never a defense
to murder
Minority: uses the “Imperfect Rule” allowing
mitigation of murder to manslaughter
Courts are split whether as to allow duress as a
defense to felony-murder
INTOXICATION
Common Law
Voluntary intoxication-will never be a defense to
general intent crimes, but may be a defense to
specific intent crimes if it negates the mens rea
Involuntary intoxication-treated the same as
insanity
Model Penal Code
§2.09-does not require the threat to be imminent
or deadly.
Duress can be an absolute defense for any crime
– “defense of general applicability”
Model Penal Code
§2.08(4)-(5)-because MPC uses levels of
culpability uses levels of culpability rather than
the common law levels of intent, it is a much
broader defense under the MPC, because it can
be applied more often, with 1 exception:
 Where the crime has a reckless level of
culpability, if the defendant would have
been aware of the risk while sober, the
defense is inapplicible
§2.08(4)-Also treated the same as insanity, but
using the MPC structure of insanity (includes
pathological intoxication)
INSANITY
Common Law
Tests-uses the four tests
Model Penal Code
§4.01 Uses strictly the MPC test
Common Law-MPC Breakdown
DIMINISHED CAPACITY
Common Law
Mens Rea-mental abnormality does not excuse
conduct, but may negate an element, most
always mens rea, and is thus a failure of proof
defense
Some jurisdictions do not recognize the defense
INCHOATE CRIMES
Common Law
Punishment-defendant will be punished for the
actual crime
Model Penal Code
§210.3(1)(b)-homicide that would otherwise
constitute murder is manslaughter if it is
committed as the result of extreme mental or
emotional disturbance for which there is a
reasonable explanation or excuse, determined
from the viewpoint of a person in the
defendant’s situation under the circumstances
as he believes them to be
Model Penal Code
§5.05-provides for punishment of the inchoate
offense at the same level as the substantive
crime, with the exception of crimes that carry a
maximum penalty of life imprisonment.
However, the trial judge has authority to
dismiss a prosecution of an inchoate offense, or
to impose a sentence for a crime of a lower
degree than otherwise allowed if defendant’s
conduct was so inherently unlikely to result in a
crime
ATTEMPT
Common Law
Substantial Step-various tests
Impossibility-legal impossibility is a defense,
however, the MAJORITY of jurisdictions do not
recognize it; factual impossibility is not
Abandonment (Renunciation)-MAJORITY does
not recognize the defense of abandonment;
MINORITY follows MPC
Model Penal Code
§5.01(2)-recurrent factual circumstances in
which a defendant’s conduct, if strongly
corroborative of his criminal purpose, “shall not
be held insufficient as a matter of law”
§5.01(1)-there is no defense of hybrid legal
impossibility; MPC does not expressly address
the defense of pure legal impossibility
§5.01(4)-a person is not guilty if:
 He abandons his effort to commit the
crime OR prevents it from being
committed
 His conduct manifests a complete and
voluntary renunciation of his criminal
purpose
Common Law-MPC Breakdown
SOLICITATION
Common Law
Model Penal Code
Relationship-no solicitation occurs if the
§5.02(1)-the relationship of the solicitor to the
solicitor intends to commit the substantive
solicited party need not be that of accomplice to
offense himself, but requests assistance by
perpetrator
another (It must be the intention that the solicited
party will be the one carrying out the offense)
CONSPIRACY
Common Law
Agreement-MAJORITY: the MPC approach
MINORITY: there must be two persons involved
(bilateral)
Mens Rea-MAJORITY: MPC
MINORITY: allow conviction based on the
parties’ mere knowledge that such result would
occur from their conduct
Corrupt-Motive Doctrine-in addition to the usual
mens rea requirement of conspiracy, the parties
must also have a corrupt or wrongful motive for
their actions
Wharton Rule-where a crime definitionally
requires two parties, it cannot be prosecuted as a
conspiracy
Pinkerton Doctrine-where defendant has
conspired to commit a crime, he will be guilty of
all acts done to further the crime
Model Penal Code
§5.03-sets out “types of agreements”
Establishes a unilateral approach which proves
that a person is guilty of conspiracy with
another person if he agrees with another to
commit an offense.
§5.03-provides that the conspiratorial
agreement must be made “with the purpose of
promoting or facilitating” the commission of
the substantive offense, thus a conspiracy does
not exist if one is aware of, but fails to share,
another person’s criminal purpose
MPC does not recognize the corrupt-motive
doctrine
MPC does not recognize the Wharton Rule
MPC does not recognize the Pinkerton
Doctrine; a person is not accountable for the
crimes of another
Common Law-MPC Breakdown
ACCOMPLICE LIABILITY
Common Law
Generally-defendant will be guilty of any offense
that is a natural and probable consequence of
the crime he aided and abeted
Mens Rea-MAJORITY-a person is NOT an
accomplice in the commission of an offense
unless he shares the criminal intent with the
principal
MINORITY-a person may be an accomplice if
he knows that his assistance will aid in a crime,
but lacks the purpose that the crime be
committed
Model Penal Code
§2.06-accomplice only liable for the acts he
purposefully commits
§2.06-accomplice liability exists only if one
assists “with the purpose of promoting or
facilitating the commission of the offense
Accomplice liability may also be found in cases
involving recklessness or negligence when
causing a particular result is an element of a
crime:
 He was an accomplice in the conduct
that caused the result; and
 He acted with the culpability, if any,
regarding the result that is sufficient for
commission of the offense
A person who is legally incapable of
committing an offense personally may be held
accountable for the crime if it is committed by
another person for whom he is legally
accountable