Crim Law Notecards - Printable (word document)

2.02(2)(a)

Not Voluntary Acts (4)

2.02(2)(b)

Purpose(Subjective)

A person acts purposely with respect to a material element of an offense when:

(i) 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

(ii) if the element involves the attendant circumstances, he is aware of the existence of such circumstances or he believes or hopes that they exist.

(a) a reflex or convulsion;

(b) a bodily movement during unconsciousness or sleep;

(c) conduct during hypnosis or resulting from hypnotic suggestion;

(d) a bodily movement that otherwise is not a product of the effort or determination of the actor, either conscious or habitual

Knowing(Subjective)

A person acts knowingly with respect to a material element of an offense when:

(i) if the element involves the nature and conduct or the attendant circumstances, he is aware that his conduct is of that nature or that such circumstances exist; and

(ii) if the element involves a result of his conduct, he is aware that it is practically certain that his conduct will cause such a result.

§ 2.02(c)

§ 2.02(d)

§ 2.01(4)

Recklessly(Subjective Awareness of Risk; Objective Level of Risk)

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 known 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(Objective Awareness of Risk; Objective Level of Risk)

A person acts negligently with respect to a material 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 known to him, involves a gross deviation from the standard of care that a reasonable person would observe in the actor's situation.

§ 2.01(4)

Under the MPC, possession is only an act if a person is aware he has the thing he is charged with possessingAwareness of control must be for a sufficient time frame to terminate possessionPossession is an act, within the meaning of this Section, if the possessor knowingly procured or received the thing possessed or was aware of his control thereof for a sufficient period to have been able to terminate his possession.

Majority of courts treat possession as requiring knowledge, even if statute is silent *** See p. 207 (p. 9 syllabi)

§ 2.04(1)

§ 2.04(2)

§§ 2.04(3), (4)

§ 2.04(1)

(1) Ignorance or mistake as to a matter of fact or law is a defense if:

(a) the ignorance or mistake negatives the purpose, knowledge, belief, recklessness or negligence required to establish a material element of the offense; or

(b) the law provides that the state of mind established by such ignorance or mistake constitutes a defense.

§ 2.04(2)

(2) Although ignorance or mistake would otherwise afford a defense to the offense charged, the defense is not available if the defendant would be guilty of another offense had the situation been as he supposed. In such case, however, the ignorance or mistake of the defendant shall reduce the grade and degree of the offense of which he may be convicted to those of the offense of which he would be guilty had the situation been as he supposed.

§§ 2.04(3), (4)(3) A belief that conduct does not legally constitute an offense is a defense to

a prosecution for that offense based upon such conduct when:(a) the statute or other enactment defining the offense is not known to the

actor and has not been published or otherwise reasonably made available prior to the conduct alleged; or

(b) he acts in reasonable reliance upon an official statement of the law, afterward determined to be invalid or erroneous, contained in (i) a statute or other enactment; (ii) a judicial decision, opinion or judgment; (iii) an administrative order or grant of permission; or (iv) an official interpretation of the public officer or body charged by law with responsibility for the interpretation, administration or enforcement of the law defining the offense.

(4) The defendant must prove a defense arising under Subsection (3) of this Section by a preponderance of evidence.

2.02(a) Offense Elements

2.02(b) Offense Elements

2.02(c) Offense Elements

Purpose

ConductAttitude Conscious ObjectProbability

CircumstanceAttitude Awareness, Belief, HopeProbability

ResultAttitude Conscious ObjectProbability

Knowledge

ConductAttitude AwarenessProbability

CircumstanceAttitude AwarenessProbability

ResultAttitude AwarenessProbability Practical Certainty

Recklessness

ConductAttitude No DefinedProbability

CircumstanceAttitude No AwarenessProbability Subjective & Unjustifiable

ResultAttitude No AwarenessProbability Substantial & Unjustifiable

2.02(d) Offense Elements

1.13(10)

Willfully

Negligence

ConductAttitude No DefinedProbability

CircumstanceAttitude No AwarenessProbability Subjective & Unjustifiable

ResultAttitude No AwarenessProbability Substantial & Unjustifiable

"material element of an offense" means an element that does not relate exclusively to the statute of limitations, jurisdiction, venue, or to any other matter similarly unconnected with (i) the harm or evil, incident to conduct, sought to be prevented by the law defining the offense, or (ii) the existence of a justification or excuse for such conduct;

Willfully

"Wilfully" – "Wilful" has been held in different jurisdictions to be synonymous with other terms, e.g., "intentional," "an act done with a bad purpose," "an evil motive," or "a purpose to disobey the law."

Distinction between Negligence and Recklessness

Specific Intent

General Intent

Distinction Between Negligence and Recklessness

The line between "criminal negligence" and "recklessness" is not drawn on the basis of the extent of the defendant’s deviation from the standard of reasonable care — the deviation is gross in both cases — but rather is founded on the defendant’s state of mind. Criminal negligence involves an objective standard – the defendant, as a reasonable person, should have been aware of the substantial and unjustifiable risk he was taking); recklessness implicates subjective fault, in that the defendant was in fact aware of the substantial and unjustifiable risk he was taking but disregarded the risk.

Specific IntentGenerally speaking, a "specific intent" offense is one in which the definition of the crime:

(1) includes an intent or purpose to do some future act, or to achieve some further consequence (i.e., a special motive for the conduct), beyond the conduct or result that constitutes the actus reus of the offense, e.g., "breaking and entering of the dwelling of another in the nighttime with intent to commit a felony"; or

(2) provides that the defendant must be aware of a statutory attendant circumstance, e.g., "receiving stolen property

General Intent

An offense that does not contain one of the above features is termed "general intent," e.g., battery, often defined statutorily as "intentional application of unlawful force upon another." This is a general-intent crime, for the simple reason that the definition does not contain any specific intent beyond that which relates to the actus reus itself. The only mental state required in its definition is the intent to "apply unlawful force upon another," the actus reus of the crime.

MPC Characteristics

Principles of Statutory Interpretation

Forms of Utilitarianism:

General Deterrence

MPC Characteristics eschews the "culpability" meaning of "mens rea";

discards the common law distinction between "general intent" and "specific intent";

limits mens rea to four terms: "purposely"; "knowingly"; "recklessly"; and "negligently";

requires application of mens rea to every material element of a crime, including affirmative defenses.

Principles of Statutory Interpretation

A single mens rea term — of whatever specific type — modifies

each actus reus element of the offense, absent a plainly contrary

purpose of the legislature.

Forms of Utilitarianism - General Deterrence

A person is punished in order to send a message to others (the

general society or, at least, persons who might be contemplating

criminal conduct) that crime does not pay.


Specific Deterrence


Rehabilitation

Principles of Restitution:

Just Deserts

Forms of Utilitarianism – Specific Deterrence

Advocates of this form of utilitarianism believe that the criminal

law can prevent future crime by reforming an individual, by

providing her with employment skills, psychological aid, etc., so

that she will not want or need to commit offenses in the future.

Forms of Utilitarianism - Rehabilitation

Advocates of this form of utilitarianism believe that the criminal law can prevent future crime by reforming an individual, by providing her with employment skills, psychological aid, etc., so that she will not want or need to commit offenses in the future.

Principles of Retribution – Just Deserts

Punishment of a wrongdoer is justified as a deserved response to

wrongdoing. Retributivists punish because of the wrongdoing—

the criminal gets his just deserts—regardless of whether such

punishment will deter future crime.

Retribution - Rationale

Rationale of Voluntary Act Requirement

Rationale of Mens Rea Requirement

Retribution – Rationale

Wrongdoing creates a moral disequilibrium in society. The wrongdoer obtains the benefits of the law (namely, that other people have respected his rights), but he does not accept the law’s burdens (respecting others’ rights). Proportional punishment of the wrongdoer— “paying his debt”—brings him back into moral equilibrium. Another justification is that both crime and punishment are forms of communication: one who commits a crime sends an implicit message to the victim that the wrongdoer’s rights are more important than others’ rights; punishment is a symbolic way of showing the criminal—and reaffirming for victims—that this message was wrong. Punishment proportional to the offense defeats the offender: it brings him down to

Rationale of Voluntary Act Requirement

Utilitarian A person who acts involuntarily cannot be deterred.

Therefore, it is useless to punish the involuntary actor. It results in pain without the benefit of crime reduction.

Retribution A more persuasive justification for the voluntary act

requirement is that blame and punishment presuppose free will: a person does not deserve to be punished unless she chooses to put her bad thoughts into action.

Rationale of Mens Rea Requirement

Utilitarian Argument It is frequently asserted that a person who commits the actus

reus of an offense without a mens rea is not dangerous, could not have been deterred, and is not in need of reform. Therefore, her punishment would be counter-utilitarian. (There is a competing utilitarian argument set out in the Main Outline.).

Retribution The mens rea requirement is solidly supported by the

retributive principle of just deserts. A person who commits the actus reus of an offense in a morally innocent manner, i.e., accidentally, does not deserve to be punished, as she did not choose to act unlawfully.

Goals of Criminal Law

Justification:Retribution

Justification:Isolation/Incapacitation

Goals of Criminal Law

(1) Prevent Crime

(2) Promote Human Autonomy

(a) Secure in one’s person

(b) Secure in one’s property

(c) Secure government

(d) Balance degree of security v. loss of freedom

Justification: Retribution

(1) Revenge(a) Institutional outlet for Societal revenge to prevent

vigilantism(2) Expiation

(a) Allow accused to rid himself of guilt(3) Critique

(a) Dogma; no empirical support for either(4) Strongest Argument:

(a) Better for State to administer justice and revenge rather than have vigilante justice

Justification: Isolation/Incapacitation

(1) Prevent crime by isolating ∆

(2) Critique – unable to predict dangerousness

(a) Who?

(b) How Long?

(3) Support – May be good for habitual offenders

Justification:Rehabilitation

Justification:Deterrence

Justification:Socialization

Justification: Rehabilitation

(1) Prevent crime by isolating ∆

(2) Critique

(a) Lack of “know how”; unwilling to fund

(b) Immoral to fundamentally change a person

Justification: Deterrence

(1) Prevent crime by Intimidation – Bentham Model; Cost Benefit Analysis

(2) Prevent crime by Socialization/Education(a) Specific Deterrence: deter ∆ by punishing ∆(b) General Deterrence: deter others by punishing ∆

(3) Critique:(a) Not effective with acts of passion/emotion(b) Not effective with ∆ already at rock bottom(c) No proof that crime rate would change(d) Question of how severe to work

(4) Support: works because of rational cost/benefit analysis

Socialization

(1) Related to deterrence

(2) Punishment is societal institution that draws boundaries; creates acceptable patterns of behavior

Justification:Integrated Theory of Punishment

Enumerated Specific Intent Crime

Formula for IdentifyingStrict Liability Crimes

Integrated Theory of Punishment(1) Crime prevention is a necessary but not sufficient condition of

punishment(2) Blame is necessary but not a sufficient condition of punishment

(a) Blame as limit because uncertain about traditional punishment justifications

(b) Blame as limit because crime prevention is not the only purpose of criminal law (also promote human autonomy)

(c) Examplesi. Mens Rea

ii. Actus Reusiii. Defense/Excuse (self-defense, insanity, accident,

etc.; excuses cut into value of swift & sure

Enumerated Specific Intent Crimes

1. Solicitation2. Attempt3. Conspiracy4. First-Degree Premeditated Murder5. Assault6. Larceny & Robbery7. Burglary8. Forgery9. False Pretenses

Formula for Identifying Strict Liability Crimes

The crime concerns administrative, regulatory or morality issues

Actus ReusDefinition and Rationale

Actus ReusRationale for Voluntary Behavior

Actus ReusWhat is Involuntary Behavior?

Actus Reus Definition & Rationale

Definition: An exertion of the will manifested in the external world or non-occurrence involving breach of a legal duty to act

Rationale : Criminal law punishes acts, not thoughts(1) Proof of Problem – how do we prove thoughts(2) Problem of Scope – everyone would be criminal (bad

thoughts)(3) No real harm with thoughts alone

Note: Solicitation and conspiracy involve acts (speaking thoughts

Actus Reus – Rationale for Voluntary Behavior

(1) Cannot deter involuntary conduct

(2) No need to isolate what is involuntary

(3) No need to rehabilitate in prison what is involuntary

(4) No blame with involuntary conduct

What is Involuntary Behavior?

Behavior that the ∆ cannot control:

(1) Reflex(2) Somnambulism (sleepwalking or other bodily movement

while unconscious)(3) Seizure(4) Hypnosis(5) Other behavior beyond control of actor

**Cannot punish for this because the justifications do not work

Actus ReusMartin v. State

Actus ReusPeople v. Newton

Actus ReusPeople v. Decina

Actus Reus – Martin v. State

“Highway Drunk”

1. Arrested while drunk at home and taken to highway

2. Convicted of appearing drunk on public highway

3. A person cannot be convicted of a statute requiring them to appear at a particular location if they are involuntarily or forcibly brought there

Actus Reus - People v. Newton

“Black Panther”

1. Newton is involved in shooting with police in which an officer is killed and Newton is shot in abdomen

2. Expert testimony showed that abdomen wounds produce shock reaction and unconsciousness

3. Unconsciousness, when not self-induced, is a complete defense to a charge of criminal homicide

4. Unconsciousness defined as when subject physically acts but is not

Actus Reus – People v. Decina

“Epileptic Driver”

1. Voluntary act was getting into car and driving when he knew he had epileptic attacks

2. Voluntary act must be reckless

3. Sudden/Unforeseen condition (heart attack) is different because the actor does not have control.

OmissionsLegal Duty to Act

OmissionsRationale for Legal Duty to Act

OmissionsPope v. State

Omissions – Legal Duty to Act

Failure to Act may result in criminal liability where there is a legal duty to act

1. Duty based on contract – Jones

2. Duty based on statute – selective service

3. Duty based on status – parent/child

4. Duty based on assumption of care - Pope

5. Duty based on creation of peril

Omission– Rationale for Legal Duty to Act

Rationale for Legal Duty to Act Requirement with Omissions

1. Tough to draw line among all the non-actors

2. Tough to prove why there was a failure to act

3. Few omissions are criminal – population doesn’t fear passive behavior

4. Tradition of individualism – not encourage others to intervene

Omissions – Pope v. State

“Devil Child”1. Jones took in mother and child for weekend

2. Mother suffered from mental illness, had an episode of religious frenzy

and beat child to death

3. Jones did not stop mother or seek medical care for child

4. Charged with child abuse under theory that she was responsible for child

and abused it by omission

5. Court held that Pope did not fall within class of persons “responsible for

supervision of child” since mother was always present.

OmissionsJones v. United States

Mens ReaTraditional Concepts

Mens ReaBackground

Omissions – Jones v. United States

“Starving Baby”

1. Jones took care of baby, Green, whose mother lived with Jones for

unknown period of time

2. Green died as a result of failure to provide food and medical care

3. Prosecute for manslaughter on legal theory that Jones had assumed

contractual duty to care for Green, which she failed to do

Mens Rea – Traditional Concepts

1. Mental State of the Actor

2. Intentionality with which he Acted

3. What the actor intended, knew, or should have known

4. In general, “a vicious act without a vicious will is no crime at all”—

Blackstone (some actual foresight of the harm for which ∆ is being

punished is necessary.)

Mens Rea - Background

1. Most statutes include mens rea but it is so inherent that it does not need to be written in.

2. Without mens rea, the justifications for punishment do not work

3. Mens rea must be read into all the material elements of the crime (nature of conduct, prohibited result, attendant circumstances) unless the statute says otherwise

Define Attempt

Durham Test

ALI/MPC Approach to Insanity

The specific intentAND

a substantial step beyond mere preparation

Durham Test

Crime was a product of mental disease or defect (but for the disease)

Suffered from a mental disease and as a result lacked

capacity to appreciate the criminality of his conduct OR

conform his conduct (combination of M’Naghten and

irresistible impulse tests)

Burden of Proof on Insanity

Voluntary intoxication is no defense to

Establish Involuntary Intoxication

Presumed Sane; ∆ must present some evidence

Crimes requiring malice, recklessness, or negligence, or to strict liability crimes

1. Under Duress

2. Without Knowledge

OR

3. Pursuant to Medical Advice

No criminal liability based on infancy under ____ years of age.

Reubuttable presumption of no criminal liability on infancy under ___ years of age.

OffensesDescription of Major Elements

7

14

Offenses - Description of Major Elements

1. Mental state a. intent, knowing, reckless, “criminal negligence”

2. Actus Reus a. prohibited result – homicide

3. Actus Reusa. prohibited conduct – possessing drugs

4. Attendant Circumstancesa. age of victim in a statutory rape

Assault with Intent to Kill

Larceny

Burglary

Assault with Intent to Kill

Whoever intentionally does a violent act against

the person of another with the intent to kill is

guilty of a Class C felony.

Larceny

Whoever unlawfully takes and carries away the

personal property of another with the intent to

steal is guilty of larceny.

Burglary

Whoever intentionally breaks and enters the

dwelling of another at night with the intent to

commit a felony is guilty of burglary.

Receiving Stolen Property

Rape

Failure to act may result in criminal liability where there is a legal duty to act

when…

Receiving Stolen Property

Whoever unlawfully receives or conceals property

stolen by another knowing that the property was stolen

is guilty of a Class C felony.

Rape

Whoever intentionally has carnal knowledge of one

against the will of the other is guilty of rape.

Failure to act may result in criminal liability where there is a legal duty to act

1. Duty based on contract (Jones)

2. Duty based on statute (selective service)

3. Duty based on status (parent/child)

4. Duty based on assumption of care (Pope)

Rationale for legal duty to act requirement with omissions

OmissionPope v. State

OmissionJones v. United States

Rationale for legal duty to act requirement with omissions

Tough to draw line among all the non-actorsTough to prove why there was a failure to actFew omissions are criminal – population doesn’t fear passive behaviorTradition of individualism – not encourage others to intervene

Omission – Pope v. State “Devil Child”(1) Jones took in mother and child for weekend(2) Mother suffered from mental illness, had an episode of religious

frenzy and beat child to death(3) Jones did not stop mother or seek medical care for child(4) Charged with child abuse under theory that she was responsible for

child and abused it by omission(5) Holding: Pope did not fall within class of persons "responsible for

supervision of child" b/c mother was always present(6) Misprision of felony: failure to report felony (Not recognized

anymore in US)

Omission – Jones v. United States “Starving Baby”

(1) Jones took care of baby, Green, whose mother lived with Jones for unknown period of time

(2) Green died as result of failure to provide food and medical care(3) Prosecute for manslaughter on legal theory that Jones had assumed

contractual duty to care for Green, which she failed to do(4) Court held that there must be a legal duty to convict for act of

omission

Mens ReaGenerally

Mens ReaBackground

Mens ReaRegina v. Cunningham

Mens Rea - Generally

A. Mental state of the actor

B. Intentionality with which he acted

C. What the actor intended, knew, or should have known

D. In general, “a vicious act without a vicious will is no crime at all” – Blackstone (Some actual foresight of the harm for which ∆ is being punished is necessary.

Mens Rea - Background

a. Most statutes include mens rea but it is so inherent that it does not need to be written in.

b. Without mens rea, the justifications for punishment do not work

c. Mens rea must be read into all material elements of the crime (nature of conduct, prohibited result, attendant circumstances) unless the statute says otherwise

Mens Rea – Regina v. Cunningham

Facts:D broke gas meter and as a result, gas seeped through house and killed his prospective mother-in-law. Short of money. Stop tap w/in 2 feet

Holding:“Maliciously" meant that ∆ intended to do harm or have foresight of the prohibited

In our view, it should have been left to the jury to decide whether, even if the appellant did not intend the injury to Mrs. Wade, he foresaw that the removal of the gas meter might cause injury to someone but nevertheless removed it. We are unable to say that a reasonable jury, properly directed as to the

Mens ReaRegina v. Faulkner

N-MPCTerms

MPC TerminologyMaterial Element

Mens Rea – Regina v. Faulkner “Rum Runner”

(a) Barry, J. = subjective standard - ∆ actually was aware of conduct/foresaw the behavior prohibited

i. ∆ intended prohibited behaviorii. ∆ knew he was engaged in prohibited behavioriii. ∆ knew he act might cause the prohibited behavior (reckless)

(b) Fitzgerald, J. – agrees with Barry but would add objective standard. ∆ is vicious if ∆ SHOULD HAVE FORESEEN prohibited behavior/SHOULD HAVE KNOWN his act MIGHT cause the prohibited behavior (negligent).

i. ∆ intended prohibited conduct (intentionally)ii. ∆ knew he was engaged in prohibited conduct (knowingly)iii. ∆ knew his act might cause prohibited conduct (recklessly)iv. ∆ SHOULD have known his act might cause prohibited conduct

(negligently)(c) Arguably “blame” contemplates choosing to do wrong/act; to choose one must be

N-MPC - TermsNon-MPC Terms – terms are far from self-defining or not mentioneda. Include “intent”b. Include “reckless”c. May include “negligence” [Santilles; Hazelwood]

(1) Santilles (p. 211)(a) D cut nephew's neck and was convicted of child abuse

in state that defined it as "negligently" placing child in danger

(b) Judge gave civil negligence instruction that did not distinguish between civil and criminal negligence (risk v. gross risk)

(2) Hazelwood(a) Criminal Negligence more culpable than tort

MPC Terminology – Material ElementMens reas applied to material elements of the crime, including nature of conduct, attendant circumstances (facts surrounding the event) and prohibited resultMaterial Element:

a. “material element of an offense” means an element that does not relate exclusively to the statute of limitations, jurisdiction, venue or to any other matter similarly unconnected with (i) the harm or evil, incident to conduct, sought to be prevented by the law defining the offense, or (ii) the existence of a justification or excuse for such conduct;

MPC - TerminologyPurpose

MPC - TerminologyKnowing

MPC - TerminologyReckless

MPC Terminology - PurposeSubjective

(1) A person acts purposely with respect to a material element of an offense when: (i) 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 (ii) if the element involves the attendant circumstances, he is aware of the existence of such circumstances or he believes or hopes that they exist.

(a) Conscious purpose to engage in conduct/cause result(b) Aware of attendant circumstance

MPC Terminology - KnowingSubjective

(1) A person acts knowingly with respect to a material element of an offense when: (i) if the element involves the nature and conduct or the attendant circumstances, he is aware that his conduct is of that nature or that such circumstances exist; and (ii) if the element involves a result of his conduct, he is aware that it is practically certain that his conduct will cause such a result.

(a) Aware of conduct/attendant circumstance(b) Aware that result is practically certain from ∆'s act

MPC Terminology - RecklessSubjective Awareness of Risk/Objective level of Risk

(1) 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 known 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.

(a) Actor must consciously (subjective) disregard risk of material element(b) Risk must be so substantial & unjustifiable that a law abiding citizen

would call it grossi. Look to nature of risk

ii. Look to degree of riskiii. Look to nature of conductiv. Look to degree of conduct

MPC - TerminologyNegligence

MPCDistinction between

General Intent & Specific Intent

Common LawGeneral Intent

MPC Terminology - RecklessSubjective Awareness of Risk/Objective level of Risk

(1) A person acts negligently with respect to a material 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 known to him, involves a gross deviation from the standard of care that a reasonable person would observe in the actor's situation.

(a) Reasonable person would be aware of substantial and unjustifiable risk that material element exists

(b) Risk must be so substantial & unjustifiable that reasonable person would call it gross

i. Look to nature of riskii. Look to degree of risk

iii. Look to nature of conductiv. Look to reason for conduct

MPC – Distinction General/Specific Intent

The MPC rejects general/specific intent

Common Law – General IntentGeneral Intent Crimes: act + intent to do act without intent to commit additional crime or cause additional harm (i.e., no mens rea req’d beyond mens rea to do prohibited act).

a. Rape(1) Whoever intentionally has carnal knowledge of one against

the will of the other is guilty of rapeb. Assault

(1)c. Breaking & Entering

(1)

Common LawSpecific Intent

Common LawSignificance of Distinction between

General Intent & Specific Intent

Mistake of Fact DefenseGeneral Rule

Common Law – Specific IntentSpecific Intent Crimes: act + intent to do act + intent to commit some added crime or causes added harm (i.e., intent to commit further crime/cause further harm beyond the act prohibited)

a. Larceny(1) Whoever unlawfully takes and carries away the personal property

of another with the intent to steal is guilty of larcenyb. Burglary

(1) Whoever intentionally breaks and enters the dwelling of another at night with the intent to commit a felony is guilty of burglary

c. Assault with intent to kill(1) Whoever intentionally does a violent act against the person of

another with the intent to kill is guilty of a Class C felony

CL-Significance of Gen/Spec. Intent

a. Intoxication may be a defense to specific intent crime if it negates specific intent, but intoxication is not a defense to general intent crime

b. Mistake of fact may be offense to specific intent crime if it negates specific intent even if mistake is unreasonable; but mistake of fact may be defense to a general intent crime if it negates mens rea but only if it is reasonable

Mistake of Fact – General Rule

General Rule: ignorance/mistake of fact is a defense if it negates mens rea (umbrella example)

Only applies to material elements

Mistake of Fact DefenseLimitation

Mistake of FactLesser-Legal/Moral Wrong Doctrine

Effect

MPC § 2.204(2)

Mistake of Fact – Limitation

Limitation: lesser legal/moral wrong doctrine [Prince]

Based on idea that we learn from community ethic rather than laws

Critics say community ethic should not control what is criminal; moral duties should not be identified with criminal duties

(1) Mistake of fact may be no defense if facts as ∆ believed them to be amount to a moral wrong

(2) Mistake of fact may be no defense if facts as ∆ believed them to be amount to a legal wrong

(3) ∆ runs risk of greater offense

MOF-Effect of Lesser Legal/Moral Wrong

The lesser legal wrong doctrine operates as a limitation on the mistake of fact defense. Where a ∆ claims a lack of mens rea due to a mistake of face, the lesser legal wrong doctrine prevents the use of that defense if the accused would have been committing some other crime under the facts as she believed them to be. In some jurisdiction, the result is the accused will be convicted and punished for the crime charged. In other jurisdictions, the accused will be punished for the grade of crime associated with the act he believed he was committing.

MPC - § 2-204(2) Mistake of Fact

Adopts lesser legal wrong doctrine:(1) Under it, D punished for crime as he supposed it

MPC Mistake of Age exceptions:(1) Defense of reasonable mistake not available where

criminality turns on child being under 10(2) Defense of reasonable mistake is available where

criminality turns on child being below critical age other than 10

Mistake of FactRegina v. Prince

Mistake of FactStrict Liability

Mistake of FactNo Defense to Strict Liability

Rationale

Mistake of Fact – Regina v. Prince“Tender Years Girl”

Prince took 14 year old girl away, believing her to be 18

Convicted under statute that unlawful to take girl under 16

Nothing in statute indicates awareness of age is necessary and the act of taking her away was wrong in itself

Fact that D was engaged in moral wrong substitutes for technically absent mens rea

Mistake of Fact – Strict Liability

Mistake of fact is no defense to a strict liability element/crime

- (∆ runs the risk of the greater offense)

MOF – No Defense to Strict Liability - Rationale

Rationale:1. Legislature made age element strict liability to protect young

from exploitation by adults2. Policy of protecting young outweighs policy against

punishing people without blame3. Language argument supports legislative intent to make age

element strict liability [probation provision]

People v. Olsen "Shawn M"Mistake of age is no defense to strict liability element

Common LawMistake of Fact

Exceptions

MPC § 2.04(1)Mistake of Fact

Exceptions

Strict Liability & Regulatory OffensesBackground

Exception – Mistake of Fact Must Be Honest and Reasonable1. Some jurisdictions

a. Specific intent crimes – mistake of fact is a good defense even if unreasonable

b. General intent crimes – mistake of fact is a good defense only if it is reasonable

2. Other jurisdictions – mistake of fact must be reasonable in all cases3. Honest & Reasonable mistake limits applied to general intent crimes with

a subjective mens rea standard transforms the crime to one of negligencea. Rationale – defense too easy to allegeb. Rationale – defense too tough to disprovec. Otherwise ∆ will lie and escape justiced. Distrust juries to discern the truth

4. Reasonableness requirement is consistent with blameworthiness when applied to crime with objective mens rea standard

MPC- MOF - Exceptions

1. MPC 2.04 (1) mistake is good defense if it negates purpose, knowing, reckless, negligence.

a. Purpose – good defense even if unreasonableb. Knowing – good defense even if unreasonablec. Reckless

i. Lack of awareness due to – ok even if unreasonableii. Lack of gross deviation from standard of law abiding

citizen due to mistake – mistake must be reasonabled. Negligence – mistake = good defense only if reasonable

Strict Liability & Regulatory Offenses Background

1. No requirement of blame

2. Actus reus still necessary

3. MPC has no strict liability offenses

Often a question of statutory interpretation

Strict Liability & Regulatory OffensesBackground

Strict Liability CrimesCharacteristics (7)

Strict LiabilityRationale

Strict Liability & Regulatory Offenses – Historical Context

Industrial Revolution:

1. Congested cities2. volume/velocity of traffic3. Dangerous industries4. Wide distribution of goods

Characteristics of Strict Liability Crimes

1. Public health & welfare offenses

2. Penalty small

3. No stigma

4. Malum prohibitum – only wrong b/c statute prohibits it

5. ∆ in position to prevent harm

6. Generally deal with neglect rather than aggressive act

Strict Liability - Rationale

1. Need deterrent impact of criminal law to enforce regulations (teeth)

2. Obstruct purpose (enforcement) of statute if require proof of mens rea

3. Prevention of harm to society to society is in general a greater good

than punishing only those who are blameworthy

4. Not efficient to prove mens rea for every offense

5. Need societal guidelines

Strict LiabilityVicarious Liability

Strict LiabilityUnited States v. Balint

Strict LiabilityUnited States v. Dotterweich

Strict Liability – Vicarious Liability

1. Courts generally uphold convictions of employers for

illegal conduct of their employees, even in absence of

evidence of employer fault

2. Less agreement when sanction is imprisonment rather than

fines

3. Most courts do not have vicarious liability for parents and

children

Strict Liability – United States v. Balint

Court held there wasn’t any need for D to know he was selling a prohibited drug

Court reasoned that there is no need to prove mens rea in case where the purpose of the statute would be obstructed by need to prove mens rea

Need to protect innocent buyer outweighs injustice to innocent seller

Strict Liability – United States v. Dotterweich

∆ did not need to be aware that drugs were mislabeled

Protecting public from misbranding is greater good than putting innocent D in jail

Strict LiabilityState v. Guminga

Strict LiabilityState v. Baker

Strict LiabilityRegina v. City of Sault Ste. Marie

Strict Liability – State v. Guminga “Underage Drinker”

Restaurant owner Guminga charged because waitress served underage girl

Criminal penalties based on vicarious liability are a violation of substantive due process

Must balance private and public interests served, and in this case, private interests outweighs public interest

(1) Statute serves public interest by providing additional deterrence to violation of liquor laws

(2) Private interests affected include loss of liberty and damage

Strict Liability – State v. Baker “Speeder”

Baker was going 20 miles over limit because his cruise control was stuck

If the defendant could show that his speeding was involuntary, it could constitute a valid defense to the charge

Defendant operated his vehicle and voluntarily activated the cruise control

Strict Liability – Regina v. City of Sault Ste. Marie

Arguments in favor of absolute liability:1. Protection of social interests requires high standard of care2. Administrative efficiency requires that mens rea not be proved in minor offenses3. Penalties are slight for most absolute liability offenses

Arguments against absolute liability:1. Violates fundamental principle of penal liability2. Public interest argument is not sufficient because it can be advanced in all offenses3. No evidence that higher standard of care results from absolute liability4. Only convicts innocent since those with any culpability could be convicted under

recklessness or negligence

Offers third grading for offences for which there is no necessity to prove mens rea, leaving it open to the accused to avoid liability by proving he took reasonable care

Strict LiabilityMorissette v. United States

MPCStrict Liability

Mistake of Law & Mens ReaGeneral Rule & Rationale

Strict Liability – Morissette v. United States

Morisette took and converted what he honestly believed to be discarded casing off Air Force land

Court held that mens rea necessary for crime since larceny is not characteristically strict liability

“The contention that an injury can amount to a crime only when inflicted by intention is no provincial or transient notion. It is as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil.”

MPC – Strict Liability

No strict liability crimes

MOL & Mens Rea – General Rule & Rationale

General Rule – ignorance/mistake of law is no excuse [or normally knowledge of the criminal law on which charge is based is not an element of the crime]

Rationale:1. encourage people to know the law2. people presumed to know the law3. otherwise compromise value of criminal law as not of

objective norms4. mistrust jury – too easy to allege/too tough to prove

Mistake of Law & Mens ReaCaveat 1

Mistake of Law & Mens ReaCaveat 1 Examples


Mistake of Law & Mens Rea – Caveat 1Caveat – ignorance of law may be defense if the law requires knowledge of the criminal statute that ∆ of charge as an element of the crime [Cheek; Liparota(p.278)]

Often a problem of statutory interpretation(1) Language argument

(2) Inference from complicated statute [Cheek]

(3) Inference from nature of conduct as essentially innocent [Liparota (p.278); Bryan (p.278)]

(4) Legislative history

Mistake of Law & Mens Rea – Caveat 1 Examples

Cheek v. United States "Tax Evader"(1) Cheek charged with willfully failing to file tax returns(2) Congress added "willfully" to statute to carve out this caveat

and show that mens rea was necessary

Ratzlaf v. United States(1) Court reversed conviction of "structuring" a transaction since

it was not done willfully(2) Court construed "willfully" as requiring proof that D knew of

the existence and meaning of criminal statute

Mistake of Law & Mens Rea – Caveat 2

Caveat – due process may make punishment unconstitutional without proof citizen knew/should have known of criminal prohibition [Lambert]

(1) Failure of ex-convict to register in L.A.(2) Insufficient notice to satisfy due process

a. Punish passive omissionb. Nothing in circumstances alert ∆ to consequences of

behavior





Lambert v. California(1) Lambert was a convicted felon and did not register in L.A.(2) Requirement of notice is engrained in due process(3) There are no circumstances that would prompt a person to

inquire about duty to register(4) Lambert, on becoming aware of duty, was given no

opportunity to comply with law(5) This action is passive and D has insufficient information to

know that this passive act is wrong (different from other activities like murder, larceny, etc.)

(6) Lambert is the only case of its kind

Mistake of Law & Mens Rea – Caveat 3

Caveat – Ignorance of law as to a collateral legal matter should be a good defense if it negates mens rea.

(1) Ignorance is of a law – thus then the criminal law that is basis of change ? ?

(2) Bigamy Example


Regina v. Smith(1) Smith rented apartment and put some stereo equipment in (2) Smith charged with intentionally destroying property of

another(3) Smith was mistaken of the legal effect of putting wiring in

(became a fixture)(4) Smith's mistake was not about criminal law but about

collateral property law that made the wire property of the landlord

Mistake of Law & Mens ReaException

Mistake of Law & Mens ReaException - Examples

Homicide Generally

Mistake of Law & Mens Rea – Exception

Exception – ignorance of law may be a good defense when the accused acted on an official statement of the law later determined to be invalid contained in a statute, court opinion, administrative order, or interpretation by one charged with duty to interpret the law (MPC §2.04(3))

(1) Interpreted narrowly(2) “One charged with interpreting the law”

a. Judge sitting on benchb. Lawmakerc. Attorney general

Mistake of Law & Mens Rea – Exception - Examples

Albertini “Protestor”

(1) Albertini participated in demonstrations at base, relying on a court decision that made it constitutional

(2) Persons should be able to depend on last controlling court decision

(3) Without this exception, entrapment would be sanctioned

(4) Persons have right to fair warning of conduct which gives rise to criminal liability (ex post facto laws not allowed)

Homicide - Generally

Every killing of one human being by another human being.

HomicideCommon Law

Murder

HomicideCommon Law

Malice Aforethought Definition

HomicideCommon Law

Malice Aforethought Aliases

Homicide – Common Law - Murder

Killing with Malice Aforethought (term of art) Intent to kill

o Intent can be transferred from one to another Depraved Heart killing Intent to do serious bodily harm Felony Murder Absence of legally sufficient provocation to eliminate

malice

Homicide – CL – Malice Aforethought Definition(Term of Art)

The term “malice aforethought” is not used literally. “Malice Aforethought” is a term of art that describes a number of mental states that render a particular homicide murder. “Malice aforethought” is what separates murder from manslaughter at common law. “Malice aforethought” resulting in a homicide being labeled murder incudes: (i) intent to kill; (ii) intent to inflict serious bodily harm; (iii) depraved heart killing, and; (iv) felony murder. Where an intended killing is committed in the heat of passion, malice aforethought it not present.

Homicide – CL - Malice Aforethought Aliases

Most Commonly Defined As: intent to cause death or serious bodily harm knowledge that act will cause death or serious bodily

harm intent to commit any felony intent to oppose by force any officer in line of duty o Changes in concept of mens rea resulted in wider

meaning for malice aforethought

HomicideCommon LawManslaughter

Grading 1794 PA ModelGenerally

Grading 1794 PA ModelFirst Degree Murder

Generally

Homicide – Common Law - Manslaughter

Manslaughter = killing without malice aforethought

Heat of Passion Killing with “Criminal Negligence” Misdemeanor Manslaughter

Test

Grading 1794 – 1 st Degree - Generally

Punishment probably by death

With Malice Aforethought


Premeditation & Deliberation


Intended Killing


Premeditation & DeliberationCommonwealth v. Carroll

Grading 1794 – 1 st Degree – P & D Rationale – planned dispassionate killings are the most blameworthySome courts find premeditation and deliberation as long as there was time to form intent to kill and jury finds such intentSome courts find premeditation & deliberation only if there is evidence of conscious reflection on the act of the killing

Evidence of planning Evidence of motive (prior relationship) Evidence of nature of wound (single wound) Is premeditation & deliberation the appropriate grading factor?

See Appendix X

Grading 1794 – 1 st Degree - Intended

When the killing is intended:

Torture

Lying-in-wait

Poison

Premeditation & Deliberation

P&D Examples - Commonwealth v. Carroll "Sleeping Wife Shooter"

Carroll shoots wife while she sleeps after argument

No time too short for premeditation

Court holds that whether intention to kill and the killing, that is, the premeditation and the fatal act, were within a brief space of time or a long space of time is immaterial if the killing was in fact intentional, willful, deliberate and premeditated


Premeditation & DeliberationState v. Guthrie


Premeditation & DeliberationAnderson

Grading 1794 PA ModelFirst Degree MurderUnintended Killing

P&D Examples - State v. Guthrie "Crazy Co-Worker"

Guthrie and coworkers were joking around when it went too far and Guthrie stabbed coworker

Court held that conviction of 1st degree murder could not be sustained because of lack of P&D

To allow State to prove premeditation by showing that intention came into existence at time of killing eliminates distinction between first and second degree murder

Person who premeditates is more culpable than spur of the moment killer For P&D there must be some period between formation of intent to kill

and the actual killing which indicates the killing is by prior calculation and design

P&D Examples - Anderson "Guest Killer"

Anderson stabbed girl over 60 times Followed view of Guthrie court that there has to be evidence of reflection

on act to convict for first degree murder D was convicted by jury of 1st degree with P&D and conviction was

reversedo No evidence of planningo No motiveo Stab wounds indicated explosion of violence

Most would consider Anderson more culpable than some who can be convicted of 1st degree

Raises question of whether P&D is good factor to distinguish grading of murder

Grading 1794 – Unintended Killing = FM

Where the killing is unintended = Felony Murder

How does it work?1. Commission of a felony (rape, robbery, burglary, kidnapping,

arson, forcible sex crimes)a. Only need to prove elements not felony, not homicide

2. Death during felony3. Causal Connection

a. Criminal act is Proximate Cause of death


Felony Murder Rationale (5)


Felony Murder Criticisms (9)


Limitations to the Felony Murder RuleGenerally (7)

Grading 1794 – Unintended - FM Rationale1. Deter dangerous felonies2. Deter accidental killings during felony

a. Felons more careful during the course of a felony3. Holmes (Public Policy) – special rule of there is disproportionate

number of accidental/NY killings during feloniesa. Public safety outweighs blame requirement

4. Arguably more MPC – no principled rationale for Felony Murder Rule

5. Lesser legal wrong theorya. ∆ is already blameworthy and runs risk that things will turn out

Grading 1794 – Unintended - FM Rationale1. Rule of doubtful origin2. Rule of unjust - strict liability homicide

a. Rule Adjusts strict liability3. Rule abolished in land of its origin4. Rule subjected to significant limitations indicating it's disfavor5. Rule not needed - other themes work for culpable killings6. Conviction without blame7. Violates principles of just punishment8. Cannot deter accidental killings9. Number of killings during felonies relatively low

Limitations to the Felony Murder Rule Generally

1. Felony must be dangerous2. Death must be proximately caused by the felony3. Limit to mala in se felonies4. Limit to common law felonies (must be common law felony)5. Killing must be committed in course of felony6. Underlying felony must be independent (not LIO) of the

homicide – murder7. Felony-Murder as Second Degree Murder

Where Felony Murder is not available, consider depraved heart as an alternative legal theory


Limitations to the Felony Murder RuleFelony Must be Dangerous

Regina v. Serne


Limitations to the Felony Murder RuleFelony Common Law Felony


Limitations to the Felony Murder RuleKilling During Course of Felony

FMR Limitations – Dangerous – Regina v. Serne"Burned Boy"

1. Narrows f-m to an act known to be dangerous to life and likely in itself to cause death, done for the purpose of committing a felony which causes death, is murder

2. Makes conviction dependent more on act than the felony, making it similar to depraved heart theory

D already blameworthy so it is not a big step to Murder

Courts look at felony in abstract rather than as committed so that they can further limit rule

1. CA Case: D sold cancer cure (grand theft) and wrapped victim in kerosene-soaked blankets. Grand theft in abstract is not dangerous so D

FMR Limitations – Must be CL Felony

At common law, most convictions received death penalty so they would be punished harshly anyway

FMR Limitations – Killing During Course of Felony

1. Felon did the killing/shooting2. Non-felon was killed3. Must be “during the felony”

a. One view – on the premise (old view)b. Another view – totality of circumstances (time, place,

manner, etc.)


Limitations to the Felony Murder RuleUnderlying Felony Independent


Limitations to the Felony Murder RuleFelony Murder as 2nd Degree Murder


Limitations to the Felony Murder RuleAaron & Dillon Cases

FMR-Limitations-Underlying F must be Independent ( not LOI ) of Homicide-Murder The predicate felony is the felony the prosecution is using to say f-m applies

If predicate felony is a necessarily lesser included offense of murder, that cannot serve as the predicate felonyHypo: D killed victim with deadly weapon. Prosecutor wants to prosecute as assault with deadly weapon rather than murder (easier to prove) and then use f-m rule for the homicide. Court says you cannot do this. Allowing this would make distinction between murder (1 & 2), manslaughter and involuntary manslaughter irrelevant

Legislature could not have meant the f-m rule to wipe out distinctionsHypo: Prosecution for burglary (1st degree felony murder). Burglary is breaking and entering inhabited dwelling at night with intent to commit felony (felony intended was assault with deadly weapon). Burglary in abstract is not lesser included offense. As committed, the burglary was a lesser included offense.

There are questions about whether the felony should be viewed in abstract or as committed. Looking at it as committed will limit the f-m rule more. Hypo: Robbery (take and carry away property of another with intent to steal by force). Could argue that if robbery was committed with deadly weapon could be merged with homicide. Now when looked at felony as committed, they merge and wipe out f-m rule. Legislature did not intend this to happen either. CA Supreme

Court comes up with limitation on merger limitation. If felony as committed seems to merge, if there is an "independent felonious" purpose, the merger won't work. So, if you take away assault with deadly weapon and still have felony (larceny in this case) merger doctrine does not apply. Burglary is only time this doesn't work

FMR – Limitations – FM as 2 nd Degree Murder

(a) Most statutes list felony-murder for 1st degree and say, "All other murder shall be murder in the 2nd degree"

i. Some states read this that all other killings in the course of felony are 2nd degree murder

ii. Some states read this as having no 2nd degree felony-murder

Felony Murder – Aaron & Dillon Cases

Aaron & Dillon Cases(a) Both statutes read that "Murder which is perpetrated…or

which is committed in the perpetration, or attempt to perpetrate (designated felonies) is murder of the first degree…"

(b) In Aaron, Michigan court read this as having no f-m rule but simply enhancing punishment for proven murders done during course of felony

(c) In Dillon, CA court interpreted same statute as a f-m rule

Common LawSecond Degree Murder

Intended


Unintended


UnintendedCommonwealth v. Malone

CL – 2 nd Degree Murder - Intended

Where the Killing is Intended:a. But without premeditation & deliberation; ANDb. Without provocation sufficient to eliminate malicec. What is the "vicious will" required for a second-degree murder conviction when

the killing is factually intended?1. Where the killing is factually intended, proof that the intentional killing was

done without premeditation and deliberation and without legally sufficient provocation is required.a. Premeditation and Deliberation:b. Provocation: Are these conditions met?

i. Would a reasonable man have been provoked? YESii. Was the ∆ provoked? YES

iii. Would a reasonable man have cooled? NOiv. Did the ∆ cool? NO

CL – 2 nd Degree Murder - Intended

Where the killing is Unintended - Depraved Heart Murdera. What is the standard?

i. Not clearly defined (definitions of depraved heart "carry more flavor than meaning")

ii. Should it be subjective or objective?1. Yes, b/c Murder = Felony2. Murder is heavily punished3. Probably form of reckless

iii. ∆ is aware his act risked death of anotheriv. Level of the risk is gross +; depraved + malignant heart; "man endangered risk";

manifest indifference to life"1. Shooting into crowded room2. Driving while drunk; driving on sidewalk; missing stop plights;

careening off other cars3. Acting with base anti-social motive

v. Could include acting with intent to do serious bodily harmvi. Degree of risk must be greater than that of involuntary manslaughter

CL – 2 nd Degree – Commonwealth v. Malone

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