Criminal Law Common Law/ Model Penal Code ComparisonsProfessor Brickey, Spring 2002

Actus Rea

Common Law Model Penal CodeRequires 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)

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:Mere presence + Intent to posses + power to possess = conviction Mere presence ≠ possession (Kimbrell→watching drugs)

Possession:Possession is an act if: knowingly procured OR knowingly received the thing OR was aware of control for sufficient period

of timeOmission: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 = murderNegligent omission→death = manslaughter

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 Model Penal CodeCriminal 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

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

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)

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

General Intent Crime: Intent to commit an act, serves as actus

reus

(See above)

Knowledge

Common Law Model Penal CodeMajority→ subjective testMinority→ objective test

Subjective test

Deliberate ignorance and Positive Knowledge have equal culpability Knowingly is not limited to positive

knowledge, but includes the state of mind of one who does not posses positive knowledge only because it consciously avoided it.

Willful blindness (Jewel→marijuana)

If one is aware of high probability of existence of a particular fact, unless he actually believes it doesn’t exist, he is still culpable

If there is a high probability of existence, knowledge is established

Willfulness

Common Law Model Penal Code 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.

Strict Liability

Common Law Model Penal CodeMalum prohibita Statutory rape, bigamy

Can only be a violation→minor offenses, not crime; fine/forteiture

No need to show culpable mental state

(Transferred Intent)

Murder

Common Law Model Penal Code4 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

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

Death must be shown to have occurredCriminal liability for the natural and probable consequences of unlawful actsRes 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

1st degree Poisoning Lying in wait Willful Deliberate Premeditated Felony

Only 1st degree

2nd degree: Depravity of heart No intention to kill

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 deado Conduct and statements of defendant before and after killingo Threats and declarations of defendant before and during course of occurrences

giving rise to killingo Ill-will or previous difficulty between defendant and victimo Dealing of lethal blows after deceased rendered helplesso Evidence that the killing was brutal

Manslaughter

Common Law Model Penal CodeVoluntary: Intent to kill, but in the heat of passion

with no malice aforethought Objective test for sufficiency of

provocation 4 requisites1) 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 passion3) lapse of time not enough to cool off4) had not cooled off

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

Involuntary: Criminal negligence required Unintended killing caused during the

Negligent Homicide Committed negligently—ought to have

been aware of the risk; inadvertent;

commission of an unlawful act not amounting to a felony

objective

Should be aware

Attempt

Common Law Model Penal CodeIntent 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

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

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

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

Δ must have culpability to commit a crime—there can be no attempt of negligent homicide

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: 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

Legal Impossibility:The only defense

Factual Impossibility: Objective of Δ is proscribed by criminal

law, but a circumstance unknown to the actor prevents him from bringing about that objective

Never a defense

No factual Impossibility Defense

Hybrid Impossibility: (Brickey) No hybrid defense

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

Solicitation

Common Law Model Penal CodeRequesting 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

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 Model Penal CodeInvoluntary abandonment never a defense Requires complete and voluntary

renunciation Not voluntary is motivated by increase in

probability of detectionNot a defense if the crime is completed 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 conductEven if last act is done, if defendant fixes so as to prevent, still a defense

Conspiracy

Common Law Model Penal Code

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

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

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

Unilateral Theory: individual is liable if he agrees with another person

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

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

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

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 Model Penal CodePrincipal in the 1 st Degree : The person who actually commits the

crimePrincipal in the 2 nd Degree : 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—

Guilty of offense if committed by own conduct or by someone for whom legally accountable

Accomplice When: 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

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

Ignorance or Mistake

Common Law Model Penal CodeMistake of Law: Never a defense (traditional view) Follow MPC (modern view)

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 errorMistake 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 CodeVoluntary Intoxication: Not a defense but may be used if it negates

specific intent Inadmissible to negate general

intent→negligence

Voluntary Intoxication: Defense if it prevents an accuse from

having the required state of mind→but not always a complete defense

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