I.Basic Definition - Act + Mental State + Result = Crime – Defenses
II.Actus Reus - a voluntary act, omissions do not usually count.
Requires a voluntary and a social harm An act is voluntary if willed the action or if she was sufficiently free that she could be blamed for her conduct. The social harm is the wrong caused by 's voluntary act.
No person may be convicted of a crime in the absence of conduct that includes of which he is physically capable.
No crime unless there is a legal duty to act
Assumption of Care
Peril wrongfully created for another
Same as CL criminal liability imposed for the omission of an act which is physically capable.
Not obtaining reasonably available help can make liable, no matter what ’s physical capabilities.
Can negate the action or serve as an affirmative defense. Done in a state of unconsciousness
Involuntary acts: reflex, convulsion, movements during sleep, movements under or the result of hypnosis, and unconscious movements.
MPC extends CL such that acts done under hypnosis and in states of unconsciousness are "no action."
III.Mens Rea - A mental state is required for most crimes. Strict liability and public welfare offences are the exception. To prove an offense, the prosecution must prove mens rea as to every element of the offense
Intentionally (willfully) – to consciously cause the result or when one is virtually certain that the object will occur as a result of 's conduct.
Recklessness – A heightened criminal negligence or conscious disregard of a substantial and unjustifiable risk.
Negligence – Objective fault should have been aware that his conduct created a substantial and unjustifiable risk that the social harm would result.
Maliciously - when one intentionally or grossly reckless causes the social harm prohibited by the statute.
Purpose - conscious object with conduct & results. Must be aware of the existence or believe or hope that such circumstances do exist
Recklessness - Conscious disregard of a substantial and unjustifiable risk.
Negligence – Should have been aware of a substantial and unjustifiable risk.
Rule of thumb
Purpose = desire for a certain outcome
Knowledge = indifference to a certain outcome
MPC splits intentionally into purpose and knowledge
MPC clear distinction between negligence and recklessness - not on the degree of risk involved but on D's knowledge of the risk.
MPC provides that when it is not clear which element a mens rea applies to, apply it to all elements of the offense
Where the statute is silent on Mens Rea, recklessness is required.
MPC - if one deliberately avoids knowledge because of the belief that knowing would be bad, then satisfies mens rea of knowledge. Requires high probability
CL - Only have to be aware of probable existence of element
For a crime requiring a mens rea of:
Purpose - must be aware of the existence of such circumstances (attendant), or believes or is aware they exist
Knowledge - Aware that his conduct is of that nature or that such circumstances exist: only requires high probability of existence.
Reckless: Conscience disregard of substantial and unjustified risk
Negligence - Should be aware of substantial or unjustified risk
C.Specific Intent/General Intent
Applies to mens rea. Defined by the crime
General Intent – volitional doing of a prohibited act. Only require intent to commit the act constituting the crime. Can infer all mens rea from observing the conduct.
Specific Intent – intent to do some further act or cause some additional consequence beyond that which must have been committed or cause in order to complete the crime. Acts in addition to general intent. Proof of specific intent is required , but it may be circumstantial.
To negate specific intent, a mistake must be honest.
To negate a general intent, the mistake must be honest and reasonable.
MPC does not distinguish between general and specific intent.
This is exclusively a CL issue.
General intent – desired to commit an actus reus;
Special intent – desired to bring about something further
An alternative definition
Specific - intent to do conduct and a further intent.
General - intent to do the conduct.
D.Strict Liability - Where there is no mental state required for an offense
Public welfare and traditional crimes. Created by statute
Under MPC, SL crimes are generally restricted to violations and are punishable by fines, not incarceration - public welfare crimes;
MPC is generally the same as CL.
A.Cause in fact - Causation is only required for result crimes.
Conduct satisfies the but-for test. Actual cause exists when the result that constitutes the criminal offense would not have occurred when it did but for 's voluntary act (or omission)
MPC only requires actual causation and uses the same but-for test as CL.
Cause in fact
MPC only requires actual causation.
To determine proximate cause, one must determine whether the actor was the direct cause and whether there were any intervening actors or intervening causes (coincidences) that severer the causal chain back to
No intervening causes unless the cause is foreseeable or de minimus.
Intervening Acts - Intervening acts can sufficiently break the chain of causation;
Dependent intervening acts: occur where the intervening actor acts because of a condition brought upon by the D’s prior conduct. However, if the dependant intervening actor was grossly negligent, this is sufficient to break the chain of causation.
Voluntary Intervening Act: occur where the intervening actor acts voluntarily. Intentional acts always break the chain of causation; reckless acts are sometimes sufficient (depending on court).
MPC handles proximate causation within the mens rea as to results. Whether the result was too distant or accidental in occurrence to have a just bearing on 's liability or on the gravity of the offense.
If the result deviates too far from what is foreseeable, then one will be exculpated for purpose and knowledge crimes. If not, then will be convicted even if there is an intervening actor.
For risky crimes, the result must have been foreseeable in order to convict
For MPC, proximate causation is handled within mens rea.
Purp/Know: Causation not established if result was not what was intended, unless:
1. just a different person (Transferred Intent)
2. Injury less than intended
Reck/Neg: Causation not established if result not within risk the actor was or should have been aware of, unless:
1. just a different person (Transferred Intent)
2. Injury less than risked
Exceptions to forseeability:
Take the Victim as you find him - Condition unforeseeable, but still liable
Transferred intent - Result unforeseeable but still liable
Voluntary intervening act - Result foreseeable but not held liable.
1.Accomplice - An accomplice is one who intentionally assists another person to engage in conduct that constitutes the offense
Principal in the 1st degree – Actually engage in the act or omission that constitutes the criminal offence
Principal in the 2nd degree – incites or abets and is present, either actively or constructively at the time of the crime
Accessory before the fact – incites or abets but is not present at the time of the crime.
Accessory after the fact - intentionally assists the principal after the crime.
Actus reus, mens rea and principal’s completion of the offense
Abetting or inciting - The must have directly of indirectly encouraged of facilitated the commission of the offence.
Abetting -is any significant assistance in the commission of an offense
The aid must impact upon the actual perpetrator
aid does not have to be necessary for the successful commission of the offense.
perpetrator doesn’t’ have to be aware of the of the accessory’s assistance.
Inciting – encouragement even if not accompanied by physical aid.
Perpatrator must be aware of encouragement
Being present at crime with prior agreement to aid is sufficient encouragement
Mens rea Mental state required for commission of the target offense
Intend for action to assist or encourage in the successful completion of the crime
Generally, this second element can be inferred from the first.
Accomplice is liable for all crimes that are a reasonably foreseeable result of the contemplated crime. Some jurisdictions allow 's to be accomplices to reckless or negligent crimes.
Principal – Acting with the requisite mens rea, actually engages in the act or omission that causes the crime, or acts through an irresponsible or innocent agent (Innocent Instrumentality) to commit the offence
Accomplice – incites or abets with requisite intent before or during the commission of the offense. Includes solicitation and omission when a duty is present.
Purposefully promotes or facilitates in the commission of a crime.
Must act with culpability sufficient for the commission of the offense
Note that this is especially significant in jurisdictions with felony murder because it makes an accomplice in the conduct (underlying felony) strictly liable for the resulting death because he had the requisite mens rea as to the result. This is how MPC deals with accomplice liability in reckless or negligent contexts.
MPC - no actual assistance for accomplice liability is necessary. Agreement to aid is enough.
MPC - accomplice can be convicted even if the perpetrator has not yet been prosecuted, has been convicted of a lesser crime, has been acquitted, or is feigning.
MPC - does not recognize the natural and probable consequences rule for homicide found in CL. MPC - one who is legally incapable of committing an offense may be accountable for the crime if another person for whom he is legally accountable commits it.
MPC - knowing facilitation is not enough to establish liability. A victim cannot be an accomplice.
MPC includes the crime of attempt to aid and abet.
CL - If the perpetrator is justified, then there is no accomplice liability because there is no crime.
CL- excuses do not transfer from perpetrator to accomplice
A victim accomplice (underage girl in statutory rape) cannot be an accomplice unless there is a legislative exception.
Knowing or reckless facilitation is sufficient to establish complicity in some courts
Substantiality of aid can also create complicity. Complicity may also be established if there is sufficiently substantial benefit to the knowing facilitator.
Abettor – Must render the assistance gave ineffective
Wholly depriving his prior assistance of effectiveness,
Provide a timely warning of the plan to law enforcement
Make an effort to prevent the commission of the offence
1.Attempt - an act done with the intention of committing a crime, that falls short of completing a crime
Mens Rea -
For the Attempt - Specific intent to commit the acts or cause the resulting target crime.
For the Target crime - Intent necessary for the target crime (specific or general depending of the offence) For strict liability must only show intent to attempt, no target crime mens rea
Reckless crimes – Courts generally do not try for attempts of reckless crimes.
Negligent crimes - Attempt to commit is logically impossible
Proximity test – conduct must be physically proximate to the intended crime. Focuses on what remains to be done.
Indispensable Elements – Control over all factors in the commission of the crime. Nothing must be left undone
Probable desistance - Likelihood that would cease efforts to commit the crime given the conduct has already committed.
Unequivocal (res ipsa loquitur) – An act amounts to attempt only if it firmly shows the ’s intent to commit the crime. The act “speaks for itself”
Last Proximate Act - test has been universally rejected, is traditional common law
Attempt is a misdemeanor.
Mens Rea -
For the attempt – Purposely or knowingly engages in conduct which would constitute the crime if the attendant circumstances were as believes them to be.
For the Target crime – acts with the kind of culpability otherwise required for the commission of the offense.
However, here too, the mens rea for attempt is often higher than the one required for the target offense. Generally, the required mens rea is purpose.
must perform a substantial step toward committing the crime.
’s conduct must be corroborative of 's purpose.
.Attempt is a felony.
Under MPC, may still be held for the attempt even if the target offense is neither committed nor attempted by or anyone else.
CL - no definitive Actus Reus test
MPC - does not use general vs. specific intent language.
Most states no attempt for Felony Murder
mistake of fact
no mistake of law
no factual impossibility
Traditionally never a se. Abandonment is a se when it is complete and voluntary. Once 's actions have passed the point of being an attempt is not generally a se.
No mistake of fact
No mistake of law
No factual impossibility
No hybrid impossibility
Is a se only if:
It is fully voluntary and not made because of the difficulty of completing the crime or because of an increased risk of apprehension
It is a complete abandonment of the plan made under circumstances manifesting a renunciation of criminal purpose, not just a postponement
MPC – Only “true” legal impossibility is a defense
’s conduct is an attempt if it was only prevented by 's mistake of fact.
agreement to commit a criminal act or series of acts, or to accomplish a legal act by unlawful means.
Object of Agreement - need only be unlawful / wrongful.
Nature of the Agreement - need not be written or even express. Can be implied from the action of the actors
Act Doctrine - no further act is necessary in most jurisdictions.
Merger - does not merge into an attempt or the completed offense.
Specific intent crime with 2 parts:
intent to agree
intent to carry out the object crime.
Some courts allow conviction if the second mens rea (as to object crime) is merely knowledge.
Attendant Circumstances - court has held that mens rea here is the same as for the substantive crime, even if it is strict liability.
Number of Parties Needed - two or more with the requisite mens rea (multilateral theory).
Punishment - some jurisdictions treat all conspiracies as misdemeanors, usually graded in relation to the target offense.
Pinkerton Test - all members of a conspiracy can be held as accomplices of the crime and of any foreseeable result of it. Liability holds even if the co-conspirator did not assist the perpetrator.
Agreement to commit a crime; attempt to commit a crime; solicit another to commit an offense; aid another in planning or commission of an offense.
Object of Agreement - must be a criminal act.
Nature of Agreement - ?
Act Doctrine - No overt act is required for serious (1st or 2nd degree) felonies, but required for all other offences.
Merger - merges unless there are further conspiratorial crimes to be carried out.
purpose to promote or facilitate the object crime.
Mere knowledge is not usually enough, but can be when combined with a stake in the success of the object crime.
Attendant Circumstances - Code is silent here, expressly leaving this to the court to decide.
Number of Parties Needed - one with the requisite mens rea (unilateral theory).
Punishment - punishment is the same for conspiracy as for the object crime in all cases but 1st degree felonies.
Pinkerton Doctrine is rejected - if the conspiracy goes beyond the intended purpose, one is not guilty of any foreseeable crime unless he can be said to have aided and abetted in its commission.
MPC - knowledge is not enough. CL - knowledge may be enough.
MPC does not speak on attendant circumstances.
Object of agreement must be criminal under MPC vs. unlawful / wrongful in CL
MPC is unilateral.
CL lets off if state cannot prove that there was another person with the requisite mens rea.
Overt act requirements differ. MPCe merges and CL does not.
MPC has heavier punishments.
MPC rejects the Pinkerton Doctrine.
CL Attendant Circumstances is counter-intuitive because how can you agree to do something of which you are not aware.
CL - In jurisdictions that do not accept Pinkerton, you can be a conspirator and not an accomplice.
Hearsay evidence may be brought in to prove the conspiracy, but not the substantive offense.
No factual Impossibility
No legal impossibility
once the offense is completed (once there is agreement) abandonment is not a defense. Can relieve liability for future crime of former conspirators.
No factual impossibility
No legal impossibility
if the conspirator renounces his criminal purpose and thwarts the success of the conspiracy under circumstances demonstrating a complete an voluntary renunciation of criminal intent.
1.Murder - unlawful killing of a human being
Homicide with malice aforethought.
Malice Aforethought has four possible states of mind
intention to kill another human - One may, but need not, infer the intent to kill from the use of a deadly weapon
intention to inflict serious bodily harm (great bodily injury)
Gross recklessness (malignant heart)- Acts in the face of an unusually high risk that conduct will cause death of serious bodily harm. Under certain exceptional circumstances.
Felony murder - during the commission or attempted commission of a felony in which death results.
A killing committed purposely or knowingly, or gross recklessness. Premeditation and deliberation are not required.
Gross recklessness – reckless under circumstances manifesting extreme indifference to human life.
MPC includes GBH under recklessness.
MPC's mens rea is equivalent to CL's intent.
When MPC uses recklessness as the mens rea, it is similar to CL's malignant heart killings.
Statutes have been enacted whick give degrees of to CL murder
first degree includes certain enumerated types of homicide (lying in wait; by poison, etc.); or a willful, deliberate, and premeditated (WDP) killing; or felony murder (enumerated felonies include arson, rape, robbery, or burglary).
All other forms are 2nd degree murder. "malignant heart" is usually 2nd degree
a.Provocation - mitigates murder to voluntary manslaughter
Must committed in sudden heat of passion under adequate provocation
Extreme Mental or Emotional Disturbance - Homicide committed under the influence of extreme mental or emotional disturbance for which there is reasonable explanation or excuse.
MPC equivalent of provocation
MPC requires that be aware of the risk being taken (recklessness). MPC’s use of EMED is a broader form of the CL provocation defense.
EMED v Heat of Passion (HoP) EMED applies to all types of homicide vs. HoP se only applies to intentional homicides
EMED words alone may be adequate vs. HoP where they are not
EMED has no cooling time requirement and HoP does.
b. felony Murder
One is guilty if she kills another person, even accidentally, during the commission or attempted commission of any felony.
Inherently dangerous test – The lower bound for acceptable felonies. The felony must be inherently dangerous.
Merger Rule – Upper bound for acceptable felonies. Felony must be independent from the murder. This excludes felonies arising during the commission of a murder.
The causation limitation requires that the killing be in furtherance of the felony. The mere fact that a death occurs during the commission of a felony will not necessarily subject the felon to felony M.
The central issue is the foreseeable risk of death. In most jurisdictions, no felony M if the person who commits the homicide is a non-felon who is resisting the felony.
A few states apply a proximate causation test which holds a felon responsible for the killing by a non-felon if the felon proximately caused the death / set in motion the events that lead to the death.
Suicide Exception - if the co-felon shoots himself, it is not homicide at all, but a suicide
Does not distinguish felony murder, but MPC raises a presumption of “recklessness and indifference to human life” if the during the commission or attempt of certain felonies. However, this is not absolute, the prosecution must still prove it. The jury is simply permitted to infer extreme indifference to human life from the commission of the felony. may present evidence that the felony was committed the in a manner that does not manifest extreme indifference to human life. It is up to the jury to decide. Therefore, gross recklessness during a felony can be a predicate for felony M.
Code does not have an express felony M rule.
If the felony is one of the enumerated felonies (arson, burglary, robbery, or rape), then this M is 1st degree. If not, then it is 2nd degree.
Voluntary MS – homicide without malice aforethought
"Heat of passion" - Intentional killing committed in response to legally adequate provocation
Imperfect justification – A killing that is the result of an act, lawful in itself, but done in an unlawful manner.
Involuntary MS – unintended killing
Criminal Negligence – Killing resulting from gross negligence. (This would include MPC recklessness as well)
Unlawful Act “Misdemeanor manslaughter” - an unintentional killing that occurs during the commission of an unlawful act. Includes malum in se (wrong in itself) felonies and misdemeanors.
Reckless - unlike reckless M, here the conduct, although reckless, does not manifest an extreme indifference to the value of human life
Extreme Mental or Emotional Disturbance (EMED)
if not the aggressor is justified in using force if
reasonably believes it is necessary to defend ’s person
must be threatened with a physical harm
reasonably believed the threatened harm is unlawful
The force used must be proportional.
Deadly force must additionally show
reasonable belief is imminently facing deadly force.
had no opportunity to retreat (Old common law standard)
may always use non-deadly force to protect oneself against an unlawful aggressor.
When is the aggressor, he loses his right to use force. may purge himself of his status as the aggressor and regain his right to self-defense by removing himself from the fray and successfully communicating that fact.
If , as the aggressor uses non-deadly force, and victim responds with deadly force, may immediately regain his right to self-defense.
does not have to retreat within 's own dwelling even if one could do so in complete safety.
if not the aggressor is justified in using (deadly) force if
honestly believes such force is immediately necessary to protect ’s person
harm is unlawful
Deadly force is justified if one faces a threat of death, GBH, forcible rape, or kidnapping. A threat without that purpose is not deadly force, even if a weapon backs up the threat.
If know/realizes he can be completely safe by retreating must
if unlawfully starts a non-lethal conflict, he does not lose his privilege of self-defense if V escalates it into a lethal assault.
Retreat is required within one's home or office if the actor was the initial aggressor and he wishes to regain his right to self-defense or even if he was not the aggressor
no duty to retreat from home, even from a co-dweller.
MPC looks at the 's subjective belief, the belief need not be reasonable.
If 's belief was negligently or recklessly formed, one can be liable for reckless or negligent use of deadly force
MPC replaces imminence with the phrase "immediately necessary" so that one may use force sooner under than CL.
MPC - deadly force is more broad than CL one who acts with the purpose causing death or GBH qualifies
In CL force not likely to cause death or GBH is not deadly force even if it was the 's purpose to kill.
MPC does not include the non-deadly aggressor
is justified if he reasonably believes that he is avoiding the greater evil.
Balance of evils must be positive.
There must not be an alternative.
The harm must be imminent.
may not have created the necessity.
can never take another's life out of necessity.
se only applies when a natural force created the necessity.
When the balance of evils is negative, may be held strictly liable.
is not justified unless not only reasonably believe that is avoiding the greater harm, but is actually avoiding the greater harm.
Balance of evils must be positive.
There is no immediacy requirement a
may not have intentionally caused the necessity.
may take a life if the balance of evils is positive. se may apply in homicide cases
This se applies but not limited to emergencies created by natural forces, nor is limited to physical harm to persons or property.
If 's belief is mistaken, can be held for crime requiring either negligence or recklessness.
If negligently or recklessly caused the necessity, he may be held for crimes of negligence and recklessness.
MPC requires that 's reasonable belief actually be true.
MPC does not have an immediacy requirement.
MPC if caused it accidentally, he can still claim necessity though if he recklessly or negligently created the necessity, he may be held for crimes of recklessness and negligence.
MPC allows se in cases where a natural force did not create the necessity.
B.Excuse - wrongful conduct, but under the circumstances, D is not morally culpable or blameworthy
may be excused if
was threatened with death or GBH (or if a 3rd party is so threatened) by another human
reasonably believes that the threat is genuine
felt that the threat was "present, imminent, and impending" at the time of the act
felt that the only way to avoid the harm was to give in to the threat
was not at fault in exposing himself to the threat.
Duress is not a defense to an intentional killing. Some states recognize an imperfect defense whereby murder is reduced to manslaughter.
Duress is an affirmative defense to unlawful conduct by if
was compelled to commit the offense by the use or threatened use of force by the coercer upon her or another
A person of reasonable firmness in 's situation would (also) have been unable to resist the coercion.
se is not available if recklessly placed herself in the position where she would likely be subject to coercion.
If negligently put herself into such a position, the se is available to her for all cases except those in which negligence suffices to establish culpability.
MPC abandons the CL requirements of deadly force and immanency in favor of excusing whenever a person of reasonable firmness would also have yielded to coercion;
MPC se is one of general applicability may be used in murder cases
MPC does not require that an imperiled party be s relative.
MPC similar to CL in that se is limited to threats or use of unlawful force and does not apply to coercion by natural sources.
MPC does not recognize se when any interest other than bodily integrity is threatened.
M'Naghten Rule – is insane if, at the time of the criminal act, he was laboring under such a defect of reason, arising from a disease of the mind, that he
Did not know the nature and quality of the act he was doing; or
If he did know it, if he did not know that what he was doing was wrong (i.e. he did not know the difference between right and wrong).
Irresistible impulse test - that states that was insane if
She acted from an irresistible and uncontrollable impulse;
She lost the power to choose between right and wrong and to avoid doing the act in question, as that her free agency was at the time destroyed; or
The 's will … has been otherwise than voluntarily so completely destroyed that her actions are not subject to it, but are beyond her control.
Pure cognitive test concerned with 's ability to appreciate the nature and quality of his conduct.Is the current law
Substansial capacity- One is not responsible for her criminal conduct if, at the time of the act, as a result of a mental disease or defect:
lacked substantial capacity to
Appreciate the wrongfulness/criminality of conduct or
To conform conduct to the requirements of the law
MPC incorporates a revised version of the M'Naghten test + pure cognitive test.
Must negate mens rea of the crime charged. .
not guilty if MoF negates the specific intent portion of the offense.
For general intent offenses not guilty if MoF was honest and reasonable. Guilty if MoF was honest, but unreasonable
Moral Wrong test – If granted MoF, will hold for a higher offense when were the situation as he supposed it to be, his conduct constituted this lesser offense.
Must negate the mental state required to establish any element of the offense.
Logical Relevance Test - figure out the mens rea for each and every element of the crime.
If granted MoF, will hold for a lesser offense when were the situation as he supposed it to be, his conduct constituted this lesser offense.
steals diamonds believing they’re glass - MPC petty larceny; CL grand larceny. steals glass believing it‘s diamonds, MPC petty larceny and attempted grand larceny and CL petty larceny and attempted grand larceny.
MPC – Look at the world through the ’s eyes in a factual (not legal) manner
MPC/CL - No mistakes get you off for strict liability.
No defense, but exceptions.
Exceptions - mistake must be reasonable and honest.
Reliance on Official Statement
No reasonable notification/publishing
Specification in Statute that knowledge of law is req’d.
MPC does not recognize a defense of mistake of law unless there is express negation
Specification in Statute that knowledge of law is req’d.
Reliance on Official Statement
No reasonable notification/publishing
CL and MPC approaches are similar. In general, unless falling into a recognized exception, ignorance of the law is no defense.
MPC codifies the CL reasonable reliance doctrine.
None; that is, the person who tries to shoot someone with a water gun, thinking it was a real gun, would not have a defense of factual impossibility. If the facts were as he believed them to be the victim would be dead. Some cases look like factual impossibility but are not; ex. man attempts to kill victim with voodoo doll. While this is impossible, it is inherently impossible, not per se factually impossible; in the voodoo case the victim would still be alive if the facts were as he supposed them.
Same as common law.
Cannot punish for a crime that is not a crime.
Hybrid legal impossibility - Where the actors goal is illegal but impossible due to a factual mistake of a legal status of an attendant circumstance. ie. Man has sex with girl thinking she is 15 when she is really 18. Some courts recognize this se
Same as common law. No Hybrid legal impossibility. (MPC looks at mens rea)