Issue
Criminal Law
Common Law v. Model Penal Code
Common Law
MPC
(CMS means culpable mental state)
§ 1.02 Should be proportional to seriousness
of crime.
Proportionality of
punishment
Utilitarian / Retributivist
Principle of Legality
Prohibit retroactive criminal lawmaking;
statutes must be understand to reasonable
law-abiding persons; void-for-vagueness;
lenity doctrine
§ 1.02(3) Anything outside of MPC is not
crime. Does not recognize lenity doctrine.
Requires abilities to be resolved in manner
that furthers general purposes of Cod and
specific provision at issues.
Actus Reus: Voluntary Act
Requires voluntary act. Act – physical
behavior; voluntary – volition movement
§ 2.05 Requires voluntary act, but does not
define voluntary. § 2.01. VA does not
include violation where max penalty is fine
or civil penalty.
Actus Reus: Omission
No legal duty to prevent harm except:
§ 2.01(3)(b) Same as CL. But liability found
in: (1) if law defining offense provides for
it; (2) imposed by law.
Statute, status relationship, contractual rel.,
voluntary assist., creation of risk
Mens rea:
Culpability - D is guilty of crime if she
commits social harm with any morally
blameworthy state of mind.
Elemental - D not guilty, even if she has
culpable mind, if she lacks mental state
specified in definition of crime.
Maliciously: wickedly committed the
prohibited act with awareness of the
foreseeable consequences
Intentionally: acting with a conscious
objective (what the defendant wants to
occur) or conduct causing a result that is
virtually certain to occur (even if defendant
does not want them to arise).
Willfully:
Definition 1: intentionally committed the
prohibited act.
Definition 2: intentionally performed
prohibited act in bad faith, with a wrongful
motive, or in violation of a know legal duty.
Rejects CL meaning of culpability, but
embraces elemental approach
§2.02. 4 level of culpability: purposely,
knowingly, recklessly, and negligently.
Purposely: A person acts purposely with respect to a
material element of an offense when
1.) if the element involves the nature of his conduct or a
result thereof, it is his conscious object to engage in
conduct of that nature or to cause such a result; and
2.) if the element involves the attendant circumstances,
he is aware of the existence of such circumstances or he
believes or hopes that they exist.
Knowingly: A person acts knowingly with respect to a
material element of an offense when
1.) if the element involves the nature of his conduct or
the attendant circumstances, he is aware that his
conduct is of that nature or that such circumstances
exist; and
2.) if the element involves a result of his conduct, he is
aware that it is practically certain that his conduct will
cause such result
Recklessly:
A person acts recklessly with respect to a material
element of an offense when he consciously disregards a
substantial and unjustifiable risk that the material
element exists or will result from his conduct.
The risk must be of such a nature and degree that,
considering the nature and purpose of the actor’s
conduct and the circumstances know to him, its
disregard involves a gross deviation from the standard
of conduct that a law-abiding person would observe in
the actor’s situation.
Negligently:
A person acts negligently with respect to a material
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element of an offense when he should be aware of a
substantial and unjustifiable risk that the material
element exists or will result from his conduct. The risk
must be of such a nature and degree that the actor’s
failure to perceive it, considering the nature and
purpose of his conduct and the circumstances know to
him, involves a gross deviation from the standard of
care that a reasonable person would observe in the
actor’s situation.
Common Law - The MPC always sets out a mental
state:
Specific intent offenses: Is an offense in which a mental
state is set out in the definition of the crime.
General intent offenses: Typically, when no particular
mental state is set out in the definition of a crime, and
therefore, a prosecutor must only prove the actus reus
element of the offense was performed with a morally
blame worthy state of mind. Example: False
Imprisonment
Intent:
-Conscious object (purpose) to cause social
harm or acts with knowledge that social
harm is virtually certain to occur
Narrower than CL
General Intent
-No particular mental state set out in
definition of crime
Rejects CL
Specific Intent
-Mental state expressly set out in definition
Rejects CL
Strict Liability
No mens rea requires; only actus reus
Does not recognize strict liability except
offenses considered “violations.
Mistake of Fact
Does not apply to strict liability
Mistake is defense if it negates mental state
required to establish any element of offense.
§ 2.04(1). Exception: defense of Mistake of
Fact unavailable to D who would be guilty
of another offense, so Code permits
punishment at level of lesser offense. §
2.04(2).
Specific intent crime – not guilty if MOF
negates specific-intent portion of crime (if he
lacks intent required in def. of crime, e.g.
“knowingly,” “negligently,” etc.) Does not
have to be reasonable mistake.
General-intent crime – not guilty if Mistake
of Fact was reasonable, but guilty if
unreasonable. Under legal wrong doctrine,
allows punishment level of higher offense.
Mistake of Law
Ignorance of law is not excuse.
Exceptions:
 Reliance on official statement of
law
 Fair notice
 Failure of Proof: strict liability,
specific intent, general intent.
Same as CL
Exceptions:
 Same as CL
 Fair notice only applies where: (1)
D does not believe his conduct
illegal and (2) statute defining
conduct not known to him or not
punished or not reasonably
available to him. § 2.04(3)(a)
 N/A
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Cause-in-Fact
“But-for” test and substantial factor test
Applies only “but-for” rule. § 2.03(1)(a)(b)
(1) Conduct is of the cause of a result when:
(a) It is an antecedent but for which the result in
question would not have occurred; and
(b) The relationship between the conduct and result
satisfies any additional causal requirements imposed by
the Code or by the law defining the offense.
Proximate Cause
Foreseeability of intervening cause, apparent
safety doctrine, free, deliberate informed
human intervention
Unlike CL, “but-for test is exclusive
meaning of “causation” under MPC. It treats
proximate cause as issues relating to D’s
culpability. So result can’t be to remote or
accidental from act.
Assault and Battery
Assault Elements
Mens Rea
1. Voluntary
2. Intentionally
Actus Rea
1. Defendant
2. Act/result: Apparent present ability
to carry out
3. AC: an unlawful attempt
4. AC: to commit a violent injury
5. AC: upon another person
Battery Elements
Mens Rea
1. voluntary
2. willfully
Actus Rea
1. Defendant
2. AC: unlawful application
3. Act/result: of force
4. AC: on another person
Aggravated Assault § 211.1
(in MPC battery is encompassed in assault)
CMS
1. Purposely
2. Knowingly Or
3. Recklessly
Act
1. Defendant
2. Act: attempts to cause or causes
serious bodily injury
3. AC: to a person
(deadly weapon theory only requires bodily
injury)
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Robbery
Robbery Elements
Mens Rea
1. Voluntary
2. Intentionally
Actus Rea
1. Defendant
2. Act/result: Takes away property
3. AC: Of another
4. AC: Permanently depriving them of
it
5. By means of force or fear
Theft by Unlawful Taking or Disposition
§ 223.2
CMS
1. Voluntary
2. Purposely
Act
1. Defendant
2. Act: Unlawfully takes
3. AC: Movable property of another
4. AC: depriving them of it
Robbery Elements § 222.1
CMS
1. Voluntary
2. Purposely
Act
1. Defendant
2. Act: Committing or fleeing scene
of attempted theft
3. Act: inflicts serious bodily injury
on another (alternate theories are
threatening to inflict serious bodily
injury or a first or second degree
felony)
Burglary § 221.1
CMS
1. Voluntary
2. purposely
Actus Rea
1. Defendant
2. Enters a building
3. for the purpose of committing a
crime therein
Burglary
Burglary
Mens Rea
1. voluntary
2. intentionally
Actus Rea
1. Defendant
2. Act: breaks and enter
3. AC: a dwelling
4. AC: with the intent to commit a
felony therein
Murder
Unlawful killing of another human being w/
malice aforethought “depraved heart
murder.” Malice: intent to kill, intent to
cause grievous bodily injury, extreme
recklessness, felony murder.
§ 210.1(1) Purposely or knowingly causing
the death of another human being. Or
recklessly causing the death of a human
being under circumstances manifesting an
extreme indifference to human life.
Murder
Mens Rea
1. voluntary
2. malice aforethought
 intentional
 purposely
 deliberation
 premeditation
Actus Rea
1. Defendant
2. Act/result: Kills
3. AC: Human being
Murder (second degree. attempt to cause
serious bodily harm)
Mens Rea
1. Voluntary
Murder § 210.2
CMS
1. Voluntary
2. Purposely
3. knowingly
Act
1. Defendant
2. Act/result: Kills
3. AC: Human being
Murder § 210.2
CMS
1. Voluntary
2. recklessly
Act
1. Defendant
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2. Intentional
Actus Rea
1. Defendant
2. Act/Result: Kills
3. AC: Human being
4. AC: (hoping to cause serious bodily
harm)
Depraved Heart Murder (second degree)
Causing the death of a person in a manner
manifesting wanton and wilful indifference
to human life.
2.
3.
4.
Act/result: Kills
AC: Human being
With extreme indifference to
human life
Mens Rea
1. Voluntary
2. Recklessly
Actus Rea
1. Defendant
2. Act/Result: Kills
3. AC: Human being
4. AC: (with disregard for homicidal
risk)
Felony Murder
Felony Murder
Killing a person while participating in a
forcible (inherently dangerous) felony.
Mens Rea
1. Voluntary
2. Intentionally (goes to commission
of a felony)
Acuts Rea
1. Defendant
2. Act/Result: kills
3. AC: human being
4. AC: during the commission of a
felony
Manslaughter
Manslaughter
Unlawful killing of a human being without
malice aforethought (negligent).
Voluntary Manslaughter
Killing a human being in a “heat of passion”
upon adequate provocation.
Mens Rea
1. Voluntary
2. Intentional
Actus Rea
1. Defendant
2. Act: Kills
3. Human being
4. Shortly after he/she adequately
provoked defendant into a heat of
passion
§ 210.2(1)(a) Extreme recklessness is
presumed if the homicide occurs while actor
is engaged or accomplice in commission of
or attempt to commit flight after committing
or attempting robbery, rape or deviate sexual
intercourse by force or threat of force, arson,
burglary, kidnapping, or felonious escape.
§ 210.3 Manslaughter
Recklessly kills another or kills another as
result of extreme mental or emotional
disturbance
CMS
1.
2.
Act
1.
2.
3.
4.
5.
Voluntary
recklessly
Defendant
Act: Kills
Human being
While under the influence of
extreme emotional disturbance
For which there is a reasonable
explanation
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Involuntary Manslaughter
Killing a human being under circumstances
manifesting a wanton or reckless (grossly
negligent) disregard for human life.
Mens Rea
1. Voluntary
2. Grossly negligently
Actus Rea
1. Defendant
2. Act: Kills
3. Human being
4. While committing a non-felony
offense or
5. by an act likely to cause death or sbi
Misdemeanor Manslaughter
Misdemeanor-manslaughter=killing
occurs during commission of unlawful
act.
Negligent Homicide
None – perhaps killing with criminal
negligence
§ 210.4 Negligent Homicide
CMS
1. Voluntary
2. negligently
Act
1. Defendant
2. Act: Kills
3. Human being
Riot
Disorderly Conduct
Riot
Disorderly Conduct
Rape
Sexual intercourse by male with female not
wife without her consent.
Riot 250.1
Disorderly Conduct 250.2
Loitering of Prowling 250.6
§ 213.1(1). Male is guilty of rape if he acts
purposely, knowingly, or recklessly when
having sexual intercourse with a female
under these circumstances…..
Forcible Rape
Resistance requirement: If man uses
moderate force, common law requires her to
resist to the utmost, and if male overcomes
that resistance, then there is forcible rape.
But she doesn’t have to resist serious or
deadly force.
No resistance requirement: Defines solely in
terms of males act of aggression and does
not require proof of resistance by victim
Prosecution must prove both lack of consent
AND force or threat of force.
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Inchoate crimes
Treated as lesser offense than substantive
crimes
Provides punishment of inchoate offense at
same level as substantive crimes, except for
crimes that carry max penalty of life
imprisonment.
Solicitation
Solicitation
Mens Rea
1. Voluntary
2. Intentionally
Actus Rea
1. Defendant
2. Act: counsels
3. AC: another
4. Result: to attempt/commit a crime
§ 5.02 Solicitation
CMS
1. Voluntary
2. Purposely
Act
1. Defendant
2. Act: Encourages or requests
3. AC: another
4. Result: to engage in specific
criminal conduct
Attempt
Mens rea: he must intentionally commit
actus reus of attempt and he must perform
these acts with specific intent of committing
the target crime.
§ 5.01(1) (2) Mens rea: Requires purpose to
cause result that constitute substantive
offense or if he believes result will occur,
even if it is not his purpose.
Actus reus – last act test, physical proximity
test, dangerous proximity test, etc.
Actus reus – act must constitute substantial
step
Principal in first – [perpetrator ] physical
commits crime or uses innocent
instrumentality or human agent to do sọ
Principle in second –
[accomplice/aider/abettor] intentionally
assist in actual or constructive presencẹ
Accessory before fact – [accomplice/inciter]
not actually or constructively present.
Accessory after fact – [criminal protector]
intentionally assist after completion of
crime.
Mens rea: intent to aid and intent that aid
will result in commission of underlying
crime.
Actus reus – assistance must be effectual
Natural & probably consequence doctrine –
if second crime occurs in commission of
first, accomplice will be held liable for
second too.
§ 2.06 Accessory before fact may be
punished w/o regard to statutes of
principal’s prosecution.
Accessory after fact no longer treated as
party to crime committed by principal in
first, but subject to separate or lesser
offense, such as misprision.
Mens rea: Must purposely assist with
purpose of promoting or facilitating
commission of crime.
Actus reus: attempt suffices
Accomplice liability
Derivative Liability:
- Accomplice may be convicted of any
offense committed by primary party with
accomplice intentionally assistance
- Accomplice is not guilty of aiding and
abetting, but of substantive offense
committed by perpetrator.
Rejects natural and probable consequences
doctrine and holds that actor is only liable
for acts he purposely commit.
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Conspiracy Liability
Agreement does not have to be express;
knowledge of all parties not required; must
facilitate some acts.
§ 5.03 To be guilty of conspiracy: commit
offense, attempt to commit, solicit, aid.
Affirmative Defenses
Justification Defenses
Common Law
Self-defense, Defense of
Others, Defense of
Property, Defense of Law,
Defense of Habitation
Self Defense (w/ deadly force)
Retreat – Must treat if complete safety is
available (in most states), except that nonaggressor need not retreat if he is attacked in
on his own dwelling or cartilage.
Triggering Condition
 Actual or apparent threat of
unlawful use of deadly force against
defendant
Proportionality
 Equal force may be used by
defendant
Necessity
 If there is no other alternative
Exculpatory Mental State
 Reasonable man/ordinary man
under like circumstances
Defense of Others (w/ deadly force)
Triggering Condition
 Actual or apparent threat of
unlawful use of deadly force against
another
Proportionality
 Equal force may be used by
defendant
Necessity
 If there is no other alternative
Exculpatory Mental State
 Reasonable man/ordinary man
under like circumstances
MPC
§ 3.04(1)&(2) Use of Force in SelfProtection
Triggering Condition
 Unlawful use of force upon
defendant
Proportionality
 Equal force may be used by
defendant
Necessity
 If it is immediately necessary
 No completely safe retreat
available
Exculpatory Mental State
 belief of defendant
§ 3.05 Use of Force for the Protection of
Other Persons
Triggering Condition
 Unlawful use of force upon another
Proportionality
 Equal force may be used by
defendant
Necessity
 Intervention is immediately
necessary
 Protected person cannot retreat
with complete safety
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Exculpatory Mental State
 belief of defendant
Defense of Property
Triggering Condition
 Actual or apparent threat to
defendant’s property
Proportionality
 Non-deadly force may be used by
defendant
Necessity
 If there is no other alternative
Exculpatory Mental State
Reasonable man/ordinary man under like
circumstances
Defense of Habitation
Triggering Condition
 Breaking and entering of defendants
home
Proportionality
 deadly force may be used by
defendant
Necessity
 If there is no other alternative
Exculpatory Mental State
 Reasonable man/ordinary man
under like circumstances
Defense of Law (w/ deadly force)
Triggering Condition
 Actual or apparent of commission
of a felony
Proportionality
 deadly force may be used by
defendant
Necessity
 If there is no other alternative
Exculpatory Mental State
 Reasonable man/ordinary man
under like circumstances
Imperfect Self-Defense
Traditional rule is that if any element
necessary to prove self-defense is lacking,
defense is wholly unavailable. But some
states now allow incomplete or imperfect
self defense to murder.
§ 3.06 Use of Force for the Protection of
Property
Triggering Condition
 Unlawful trespass
 Unlawful taking of movable
property
 Wrongful obstruction
Proportionality
 Non-deadly force may be used by
defendant
 Deadly force may be used in
protecting a dwelling.
 Deadly force may be used in the
case of arson, burglary, robbery or
felonious theft or property
destruction when deadly force is
threatened or must be used to avoid
serious bodily harm.
Necessity
 Retainer or recovery of property
unlawfully dispossessed
 Request to desist must be made
unless it is useless or dangerous
 Right to pass
Exculpatory Mental State
 belief of defendant
§ 3.07 Use of Force in Law Enforcement
Triggering Condition
 arrest must be made
Proportionality
 non-deadly force may be used
 deadly force may be used if the
offense is a felony and the actor is
or is assisting an authorized peace
officer and it will create no
substantial risk to others and the
crime involves use of deadly force
or arrest creates substantial risk of
serious bodily injury
Necessity
 lawful arrest
Exculpatory Mental State
 belief of defendant
Only recognizes imperfect defense where D
asserts justification defense. But if D acts
recklessly or negligently, justification
defense is not available to him, thus no
imperfect defense.
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Necessity
Necessity/Choice of Evils
Only available in emergencies created by
natural forces, non-homicidal cases, and
protection of persons and property.
Harm must be imminent, and D approached
situations with “clean hands.”
Triggering Condition
 Physical force of nature leaves a
choice of two evils
Proportionality
 Alternative to the crime is the
greater evil
Necessity
 Crime must be committed to avoid
the greater evil which
Exculpatory Mental State
 Reasonable beleif
Insanity
Excuse Defenses
M’Naughten Test
“at the time of committing the act, the party
accused was laboring under such a defect of
reason, from disease of the mind, as not to
know the nature and quality of the act he was
doing, or if he did know it, that he did not
know that what he was doing was wrong.”
§ 3.02 Necessity/Choice of Evils
Although both cognition and volition is
required, defense is still broadened because
it requires actor to appreciate, not know, his
conduct would cause harm.
Triggering Condition
 Impending harm or evil to
defendant or another
Proportionality
 Harm sought to be avoided is
greater than harm sought to be
avoided by the crime
Necessity
 Crime must be committed in order
to avoid harm or evil
Exculpatory Mental State
 Reasonable belief of actor
§ 4.01 Mental Disease or Defect Excluding
Responsibility
(1) When as a result of mental disease or
defect , the defendant lacked substantial
capacity to appreciate the criminality
(wrongfulness) of his conduct (2) when, as
a result of mental disease or defect, the
defendant lacked substantial capacity to
conform his conduct to the requirement of
law.
MPC insanity test differs from M’Naghten
in that it allows for partial cognitive
impairment and volitional impairment
(inability to control behavior). Also it only
requires actor to appreciate, not know, his
conduct would cause harm.
Diminished Capacity
At common law diminished capacity is not
an affirmative defense. It is only triggered
when the defendant’s diminished capacity
negated the requisite mens rea of the offense.
Under the MPC § 4.02 diminished capacity
is similar to a rule of evidencing allowing
evidence of diminished capacity to be
presented when it is relevant to negate the
culpable mental state. Also can be used to
mitigate sentencing in capital offenses.
Duress
Duress
Narrow application because it requires
immediate force. Also cannot be used as
justification for homicide.
§ 2.09 Duress
Broader in application because only an
unlawful force is sufficient.
1.
An immediate threat of death or serious
bodily injury to him/herself (or
1.
2.
3.
Duress as a defense for homicide
Threat of unlawful force to anybody
Person of reasonable firmness in the
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2.
3.
4.
Intoxication
sometimes close relative)
A well grounded fear that the threat will
be carried out
No reasonable opportunity to escape the
threatened harm
Defendant was not at fault in exposing
himself to the threat
Generally not a defense to any crime or can
only be used to negate a specific intent mens
rea.
defendant’s situation
§ 2.08(1)(2) Can be offered only to negate
the cms of purposely or knowingly
Rotten Social Background
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