MODEL PENAL CODE1
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The MBE tests the Common Law of crimes for the most part.
Occasionally a question fact pattern will give us a statute
that changes the Common Law. An example is a statute
that creates degrees of murder. The MBE does not, so far
as I can recall, test the Model Penal Code.
Until July 2006 the Colorado Bar Exam essays tested the
Common Law only.2 The July 2006 Crim Law essay asked
the applicant to identify possible crimes under both the
Common Law and the MPC. This outline is intended to
supplement my Common Law Crim Law outline.
INSANITY DEFENSE
a. Background. Three insanity rules that are pretty much
Common Law.
i. The M’Naughten Rule. A defendant has the
defense of insanity if he can show that as a result of
a mental disease or defect the Defendant
1. did not know that his act was wrong
2. or did not understand the nature of his act.
ii. The Irresistible Impulse Rule. M’Naughten plus. If
the Defendant was unable to control himself.
iii. Durham. Now abandoned, a federal court made
rule, essentially a broader reading of the
M’Naughton plus rule.
b. MPC. Defendant has the defense if as a result of a
mental disease or defect he
i. Lacks substantial capacity to appreciate the
wrongfulness of his conduct or
ii. To conform his conduct to the law.
c. Majority rule is probably MPC approach.
c. Procedure. The D must raise the defense. D must give
notice to the prosecution. Half the states require
prosecution to prove sanity beyond a reasonable doubt.
Copyright 2007 by Daniel Wilson. Unauthorized use is prohibited and will be reported to the appropriate
licensing authority.
2
Last year the call of the question of a Crim Law essay asked the applicant to identify possible Common
Law crimes. The score sheet then gave credit for aggravated assault, which is of course not a Common
Law crime.
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Half the states require D to prove he is insane by a
preponderance of the evidence.
HOMICIDE
a. Murder. MPC does not recognize intent to cause serious
bodily harm murder and folds it into recklessness and
extreme indifference to human life. A death caused by
recklessness without extreme indifference is
manslaughter.
b. Felony Murder. MPC abolishes rule but allows a
rebuttable presumption of recklessness or extreme
indifference when the accidental killing occurs during the
commission, or as an accomplice to, attempt to, or in
flight from: robbery, rape, kidnapping, escape.
c. First degree murder. In many jurisdictions, whether
through statute or case law, an intentional killing done
with premeditation and deliberation. MPC rejects and
does not distinguish between first degree and second
degree murder.
d. Provocation in voluntary manslaughter. Common Law
rule is the standard is completely objective—would an
ordinary person been sufficiently provoked. MPC allows
a degree of subjectivity. Was this defendant provoked.
e. Involuntary Manslaughter. MPC requires both
recklessness and that the D be aware of the risk.
f. Negligent Homicide. Requirement of awareness of risk
not required.
g. MPC abolishes misdemeanor manslaughter.
Other crimes against the person.
a. MPC abolishes Mayhem, replaces it with aggravated
assault.
b. A point of confusion: In C/L assault is similar to tort
assault—something like creating a fear of imminent
harmful or painful contact. C/L battery is similar to tort
battery. Statutes definition of assault is like battery.
Sometimes its hard to tell if ‘assault’ means assault or
battery.
c. Aggravated battery = aggravated assault or slight injury
caused by deadly weapon or with the intent to kill.
d. Anal penetration sufficient for rape.
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e. Consent element in rape. C/L rape is sexual intercourse
with a woman who is not D’s wife without consent. Does
the intoxication of victim = lack of consent? In MPC might
= lack of consent only if D caused the intoxication.
f. Statutory Rape. Reasonable mistake as to age of victim
is a defense.
Theft Crimes
a. The problem with theft crimes is they developed as a
mixture of judge made law and statutes. C/L larceny is
the taking and asportation of tangible personal property of
another WITH the specific intent to permanently deprive.
What if the actor only intended to borrow and then
decided to keep the property? What if the actor found lost
property? Or if property is misdelivered? MPC solves the
problem by creating the category of theft crimes. The
actor is liable for theft if he acts with the purpose to
deprive the owner or if he fails to take reasonable
measures to restore the property to the owner.
b. That means if the actor finds lost or mislaid property or
property is misdelivered to him he is liable for theft if he
fails to take reasonable measures to restore the property
to the owner.
c. Element of personal property. MPC recognizes the crime
of theft of services.
d. Intent to permanently deprive. Keeping property for a
long time satisfies this requirement.
e. Taking goods exposed for sale with intent to pay later is a
defense to larceny/theft.
f. MPC consolidates larceny and embezzlement into theft
by unlawful taking or disposition. False pretenses and
larceny by trick is theft by deception. Blackmail and
extortion are theft by extortion. We still have crime of
receiving stolen property.
Miscellaneous.
a. Intoxication is not a defense unless it negates an element
of the crime. Cannot be a defense to a recklessness
crime.
b. Justification and Excuse. Unreasonable mistake is a
defense to intent crimes. If the crime is a recklessness
crime mistake is not a defense if the mistake was
reckless. MPC applies this standard to all defenses, not
just mistake.
c. Attempt requires a substantial step.
d. MPC recognizes unilateral conspiracy. An overt act is
only required if the crime is a serious one.