Criminal Law MPC Outline

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Criminal Law Common Law/ Model Penal Code Comparisons Professor Brickey, Spring 2002 Actus Rea Common Law Requires affirmative, voluntary act; intention to commit a crime is insufficient to convict if there is no evidence of an act putting that intent into effect. • Mere movement of vehicle does not necessarily constitute act of driving vehicle→there must be an affirmative act by Δ (Taft) • If knowledge that actions could cause harm to another (i.e., you know you can blackout and drive anyway), act constitutes crime (Decina) Possession: Mere presence + Intent to posses + power to possess = conviction • Mere presence ≠ possession • (Kimbrell→watching drugs) Omission: There must be a duty • statutory • status relationship (Biddle) • contract (Moore→chauffer) • voluntary assumption of care (Jones) • There is no duty to do what you are incapable of doing • You must be aware of the circumstances before a duty exists (Teixera) Willful omission→death = murder Negligent omission→death = manslaughter Model Penal Code • There must be a voluntary act or omission Conduct: physical activity (affirmative act), possession Result: consequence Circumstance: external conditions when Δ engages in conduct

Possession: Possession is an act if: • knowingly procured OR • knowingly received the thing OR • was aware of control for sufficient period of time Omission: Liability for the commission of an offense may not be based on an omission unaccompanied by an action unless: • Omission is expressly made sufficient by law defining offense • A duty to perform the omitted acts is otherwise imposed by law

Mens Rea Common Law Criminal Negligence • Gross lack of competency • Gross inattention • Criminal indifference • Gross deviation = recklessness→aware of substantial risk created by conduct and disregards that risk→ (Peterson) • Homicide→neg. homicide if acted with criminal negligence (State v. Howard) • Subjective Test Specific Intent Crime: • Requires actual intention to do more than actus reus, not just general blameworthiness • General malevolence is not an attempt to commit a crime even if it results in an substantive crime • Malice aforethought ≠ specific intent to kill (Shea) General Intent Crime: • Intent to commit an act, serves as actus reus Model Penal Code Criminal Negligence • Should be aware of substantial and unjustifiable risk that a material element exists or will result • Risk must be of nature and degree that failure to perceive = gross deviation from reasonable person’s standard of care

MPC no longer recognizes the distinction between general and specific intent. Rather, it spells out what is required for each crime.

(See above)

Knowledge Common Law Model Penal Code Majority→ subjective test Subjective test Minority→ objective test Deliberate ignorance and Positive Knowledge • If one is aware of high probability of have equal culpability existence of a particular fact, unless he • Knowingly is not limited to positive actually believes it doesn’t exist, he is still knowledge, but includes the state of mind culpable of one who does not posses positive • If there is a high probability of existence, knowledge only because it consciously knowledge is established avoided it. • Willful blindness (Jewel→marijuana)

Willfulness Common Law • Intentional or deliberate→ a voluntary, intentional violation of a known legal duty (Cheek) • It means no more than that the person charged with the duty knows what he is doing. It does not mean that, in addition, he must suppose that he is breaking the law. Model Penal Code ?

Strict Liability Common Law Malum prohibita • Statutory rape, bigamy No need to show culpable mental state (Transferred Intent) Murder Common Law 4 ways to satisfy mens rea requirement: • Intent to kill • Intent to commit serious bodily injury • Reckless/extreme indifference to value of human life (depraved heart) • Intent to commit dangerous felony —no bootstrapping allowed (felony must be independent)→People v. Wilson Model Penal Code 3 ways to prove • Purposefully, knowingly (differs from willingly—did away with malice aforethought) • Recklessly manifesting extreme indifference to human life (depraved heart, subjective view of recklessness) • During a felony —recklessness of act presumed if engaged in commission of robbery, rape, arson, burglary, kidnapping, felonious escape, but felony murder is not adopted per se Model Penal Code Can only be a violation→minor offenses, not crime; fine/forteiture

Death must be shown to have occurred Criminal liability for the natural and probable consequences of unlawful acts Res gestae: • Embraces not only the actual facts of the transaction and the circumstances surrounding it, but the matters

immediately antecedent and having direct causal connection with it as well as acts immediately following it st 1 degree • Poisoning • Lying in wait • Willful • Deliberate • Premeditated • Felony nd 2 degree: • Depravity of heart • No intention to kill

Only 1st degree

Premeditation • No set time required, only that intention occurred at time of killing or beforehand (Schrader)—decision overruled in so far as it suggests that premed and delib could come into existence at time of killing • If there is assault by both parties and sudden emotion, it becomes voluntary manslaughter • Court in Forrest gives 6 circumstances used to determine premeditation o Want of provocation on part of dead o Conduct and statements of defendant before and after killing o Threats and declarations of defendant before and during course of occurrences giving rise to killing o Ill-will or previous difficulty between defendant and victim o Dealing of lethal blows after deceased rendered helpless o Evidence that the killing was brutal Manslaughter Common Law Voluntary: • Intent to kill, but in the heat of passion with no malice aforethought • Objective test for sufficiency of provocation • 4 requisites 1) acts in response to provocation which would cause a reasonable man to lose his self-control (actual→mere words are not enough) 2) heat of passion 3) lapse of time not enough to cool off Model Penal Code No distinction between voluntary and involuntary • recklessly→aware of the risk, but consciously disregards it; advertant; subjective; gross deviation • purposeful, but committed under extreme mental disturbance (heat of passion)— reasonable person in actor’s circumstances as he believes them to be (subjective) • 2nd degree

4) had not cooled off Involuntary: • Criminal negligence required • Unintended killing caused during the commission of an unlawful act not amounting to a felony Should be aware

Negligent Homicide • Committed negligently—ought to have been aware of the risk; inadvertent; objective

Attempt Common Law Intent to commit a crime + performance of an act toward its commissions + failure to commit the crime • the attempt is the direct movement towards the commission after the preparations are made Dangerous Proximity Test: • looks at what is left to be done • if the last proximate act is done, always sufficient, yet not always required • focus on the actor’s actions • beyond mere preparation Δ must have culpability to commit a crime— there can be no attempt of negligent homicide Model Penal Code • Δ does anything with the purpose of causing a particular result which is an element of the crime • Belief that it will cause the result without further conduct Substantial Step Test: (Subjective Test) • focuses on what has already been done • acting with culpability for the commission of the crime • purposefully engages in conduct which would constitute crime if circumstances were as he believes them to be Six circumstances which shall not be held insufficient as a matter of law: • lying in wait, searching for, following victim • reconnoitering the place contemplated • unlawful entry • possession of specially designed materials • possession of materials at or near place of commission • soliciting an agent to engage in conduct Legal Impossibility: The only defense

Legal Impossibility: • when Δ’s actions sets in motion, even if fully carried out as he desires, would not constitute a crime (Oviedo) • courts look at objective acts performed to determine criminality without reliance on accompanying mens rea • COMPLETE DEFENSE Factual Impossibility: • Objective of Δ is proscribed by criminal

No factual Impossibility Defense

law, but a circumstance unknown to the actor prevents him from bringing about that objective • Never a defense Hybrid Impossibility: (Brickey) • Objective is criminal, but there is a factual mistake as to the legal status of the goods (shooting at a tree stump, shooting a dead man)→Booth, Rojas

No hybrid defense

Solicitation Common Law Requesting someone to commit a crime • Communication not required of conduct indicates solicitation • No corroboration needed • No overt act required • Falls short of an attempt • A substantive crime in and of itself • Solicitation merges into conspiracy • In some jurisdictions→attempted solicitation Model Penal Code • Commands, encourages another to engage in specific conduct which would constitute a crime or an attempt of that crime with purpose of promoting/facilitating its commission • Affirmative defense to persuade other person not to commit crime or prevent commission of the crime if renunciation is complete and voluntary

Abandonment Common Law Involuntary abandonment never a defense Model Penal Code Requires complete and voluntary renunciation • Not voluntary is motivated by increase in probability of detection Affirmative defense if you persuade accomplice not to do so or otherwise prevent commission; requires that crime not be completed • Not complete if it is merely a decision to postpone conduct Even if last act is done, if defendant fixes so as to prevent, still a defense

Not a defense if the crime is completed

Conspiracy Common Law An agreement between 2 or more persons to do either an unlawful act or a lawful act by unlawful means • Agreement + Objective + Mens Rea • It is not necessary that each conspirator agree to commit the substantive object crime; also not necessary to have tacit agreement between co-conspirators • All members of conspiracy may be liable for the substantive crime even if committed by only one member, without a new agreement • Once agreement made, no withdraw from conspiracy, only from substantive offense Wharton’s Rule: an agreement between 2 people to commit a particular crime cannot be prosecuted as a conspiracy when the crime necessarily requires the participation of 2 persons for the completion Pinkerton Rule: criminal act must be foreseeable and done in furtherance of the conspiracy for all members to be found guilty of substantive crime without any liability • Some jurisdiction require actual action: mere preparation may be okay—but more than knowledge, promotion of venture • If tried in same trial, need two for conviction; if separate trials, can have just one conspirator Model Penal Code Guilty if with purpose of promoting/facilitating commission of crime, agrees with such other person or persons that they or one or more of them will engage in conduct which constitutes such crime or an attempt or solicitation to commit such crime • All members of conspiracy need not know each other • For the individual to terminate his part in the conspiracy, must advise others of abandonment or inform law enforcement of the conspiracy Unilateral Theory: individual is liable if he agrees with another person

Rejection of Pinkerton: just being a member of a conspiracy, with no other aiding, is not enough to be convicted of substantive crime→must use accomplice liability • No person can be convicted unless an overt act is done by him or co-conspirator • Overt act may be mere preparation • Abandonment presumed if there is no overt act

Parties to a Crime (Accomplice Liability) Common Law Principal in the 1st Degree: • The person who actually commits the crime Principal in the 2nd Degree: Model Penal Code Guilty of offense if committed by own conduct or by someone for whom legally accountable Accomplice When:

• Person who aided, counseled, encouraged the commission of the crime • Present at the time the crime was committed • Can be constructive→a look out • Must have same mens rea as principal Accessory Before the Fact: • Aids and abets the commission of a crime • Not present at the time of the crime— merged with principal 2nd Accessory After the Fact: • Aids criminal after crime committed • 3 Elements *Felony must be completed *Knowledge of felony *Aid the Felon • Individual and separate crime • Conviction of a principal is not a condition precedent to the conviction of an accessory after the fact. Liable for all foreseeable consequences

• Solicits another person to commit crime • Aids/agrees/attempts to aid in planning or committing • Has legal duty to prevent commission of crime but fails to do so • Conduct by law establishes complicity

Rejects foreseeable consequences doctrine→accessory not liable for crimes beyond those which were intended to aid or encourage

Ignorance or Mistake Common Law Mistake of Law: • Never a defense (traditional view) • Follow MPC (modern view) Model Penal Code Mistake of Law: • A defense if it negates the mental state required • State of mind established constitutes defense • Not available as a defense if Δ would have been charged with another offense had the situation been as he supposed A belief that conduct is not offense is a defense when: • Statute not known and has not been published prior to conduct alleged • Reliance on official statement of law determined to be invalid or in error

Mistake of Fact: • Defense only for specific intent crimes— must lack mens rea for crime • Must be an “honest” mistake • Mistake of age is no defense

Mistake of Fact: • Based on Δ’s subjective belief • Mistake of age is no defense—no defense if under 10

Intoxication Common Law Model Penal Code Voluntary Intoxication: Voluntary Intoxication: • Not a defense but may be used if it negates • Defense if it prevents an accuse from specific intent having the required state of mind→but not always a complete defense • Inadmissible to negate general intent→negligence • Does not negate recklessness or criminal negligence Involuntary Intoxication: Involuntary Intoxication: • Presence or threat of force/duress • Defense if Δ intentionally ingests a substance, but mistakenly believes that it is not intoxicating •

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