Peter Lowe Crim Book OutlineActus Reus1. 201.

(1)
a. A person is not guilty of a crime under the MPC unless the charge is
based on conduct.
2. 1.13(9)
a. Actus reus is divided into conduct, result, and circumstances.
b. Conduct
i. The conduct defined under the MPC can be an Act, and
Omission, or Possession 2.01
ii. Act
1. Affirmative conduct sufficient to satisfy the definition of
the offense
iii. Omission
1. The omission is expressly made by the law defining the
offense OR a duty to perform the act is imposed by law.
2.01(3)
2. i.e. murder when parents let their children starve.
iv. Possession
1. The item possess must knowingly procured or received,
OR the defendant knew of the possession for a
significant enough period of time to be able to terminate
it. 2.01(4)
2. i.e. inmate who possesses a weapon, tool or item for
escape.
c. Result
i. Any consequence that must be caused by the defendants
conduct. Not required as an actus reus.
1. i.e. Bodily injury in assault, however no result a/r in
theft, nor in most offenses
d. Circumstances
i. External conditions when defendant engages in conduct
1. Unlawfully, movable property, of another. All
circumstances that must occur.
3. Problems of interpretation
a. Difficult issues of interpretation can arise when trying to determine if
defendant has committed the a/r of an MPC offense.
b. When attempting to interpret parts of the MPC, always look for
definitions at the end of a section. If not definition than principles of
1.02 aid in construction.
c. If there is an undefined word in the statute you can use 1.02 to
attempt to clarify, OR an argument can be made to use the common
law interpretation
4. Problems of Categorization

a. Watch out for the crime of attempt, that needs to be correctly

categorized under either Conduct, Result, or Circumstance.
The MPC
The Mens Rea
1. 2.02 Defines technical mens rea structure
2. M/R uses four levels, Purpose, Knowledge, Recklessness, and Negligence
a. These four offenses are sufficient for defining any M/R for crimes.
b. Purpose, Purposely, with purpose, designed, intentionally or with
intent
i. Means the a/r components of the offense must be purposely
committed. Not purposely violate criminal law.
ii. Conduct
1. Defendant has a conscious objective/desire to engage in
conduct.
iii. Result
1. Same as above, substitute conduct for result
iv. Circumstances
1. Defendant must be aware, or believe or hope the
circumstances exist.
c. Knowledge, knowing, with knowledge, knowingly
i. Conduct
1. Aware of what is happening or being done. The act is
occurring.
a. Does not mean the defendant needs to know the
law.
ii. Result
1. The defendant be aware that it is practically certain the
conduct will cause the result. Likelihood result will
occur is very high.
iii. Circumstances
1. Must be aware that there is a high probability that the
circumstances exist.
a. High probability defeats willful blindness
defense
d. Recklessness- Default m/r in MPC Recklessness, with recklessness,
recklessly
i. The same 3 point analysis is applied to all three A/R elements
1. Must be a substantial and unjustifiable risk that the
element exists or will result from defendants conduct.
A judgment determines how substantial and
unjustifiable qualifies.
2. Awareness of risk, the defendants simply must be aware
of the risk itself and the facts that make it unjustifiable.
3. The ultimate judgment

a. The Jury must find that the defendant made a

gross deviation from the standard of conduct
that a law-abiding person would observe in the
actors situation.
i. Jury must take into account the
defendants point of view
ii. Also the defendants situation
1. Whether the D is blind, deat, etc.
e. Negligence (Defined in 2.02(2)(D) with negligence, negligently
i. Reasonable belief is reciprocal of negligence, a person who
reasonably believes is not negligent, and someone who is
negligent doesnt have a reasonable belief.
ii. Like recklessness, Negligence requires three steps to all A/R
elements.
1. The nature of the risk, there must be a substantial and
unjustifiable risk.
2. The defendant should be aware of the risk, different
from recklessness. Should have been is the key turn
from recklessness.
3. The ultimate judgment
a. Did the defendant undertake a risk that was a
gross deviation from the standard of care that a
reasonable person would have observed in the
actors situation.
The Analytical Structure
1. Elements are the 3 a/r components contained in any offense AND defense.
1.13(9)
a. Elements equal conduct/result/circumstance in the
offense/defense/grading.
2. Material Elements 1.13(10)
a. An element is material when its a keystone in preventing the evil or
wrongdoing the offense defines.
3. When culpability is required
a. Culpability is not required for public welfare or regulatory offenses.
Crimes that dont require any m/r are violations.
i. Imprisonment cannot be imposed for violations
ii. 2.202(1) has the effect of eliminating Strict Liability from the
MPC. If SL is to be imposed it must say so in the offense.
4. Separate consideration of elements
a. Every element must be proved up to the culpability standard defined
in the offense.
Principles of Construction
1. 2.02(3) Default M/R is recklessness, anything stronger than the level
required would satisfy that level. i.e. prove purpose or knowledge and youve
proved recklessness and negligence.

2. Culpability goes down the line, unless the grammatical structure of the
offense defines it differently. If it is defined without an offense than the M/R
is recklessness.
3. Additional M/R offenses could be added that are separate from what M/R are
required to prove the A/R of the offense. I.e. Breaking and Entering (the
A/R with Recklessness as M/R) with intent to commit a crime(Different
M/R, not attached to an A/R that must be proved.)
a. A different variation is Knowingly breaking and entering with intent
to commit a crime. Knowingly applies to the A/R Break and Enter,
and intent remains the M/R, the same as the first example.
Additional M/R provisions
1. 2.02(6) Conditional intent provision
a. Think theft, intent to steal gold, if the gold you attempt to steal was
not there, yet you still attempted to steal it, 2.02(6) denies you a
defense that you didnt actually take the gold.
i. unless the condition negatives the harm or evil sought to be
prevented by the law defining the offense.
2. 2.02(8) Willfully is equivalent to knowledge.
a. Not used anywhere in the MPC but since the term is so commonly
used, it is defined.
b. Be careful here, Willfulness is different than knowledge in common
law.
Strict Liability
1. Crimes v. Violations
a. Crimes= Imprisonment is authorized for these offenses
b. Violations= Civil penalties, forfeiture etc.
c. Culpability applies to all crimes (recklessness default), not violations.
Strict Liability for violations.
d. There can be SL in the MPC, it is defined by the wording of the statute.
i. I.e. its no defense if the defendant mistakenly believed the
falsification to be immaterial
ii. Its no defense that the actor did not know the victims age to
be less than 10 in statutory rape cases.
2. Violations
a. SL is the norm for violations.
Causation- Did conduct cause result
1. Cause in fact
a. Would the result have happened if the defendant had not acted?
i. Concurrect cause suffice as the basis for conviction. Multiple
causes leading to a single result.
2. Proximate cause
a. Can the Defendant be properly regarded as criminally responsible for
the result.

b. When determining proximate cause for the 4 M/Rs, each is analyzed

in light of the requirement of the separate M/Rs required.
i. Different person- Crime still stands. Defendant is guilty of
murder if he means to shoot a but hits b instead.
ii. Different property-Crime Still stands. A/R and M/R are
satisfied.
iii. Lesser Harm-Crime stands at lesser level. Shoots A but doesnt
kill him, guilty of assault.
c. In other situations, its not so simple, facts matter.
i. Similar injury or harm
1. If the actual result is too remote or accidental in its
occurrence to have a just bearing on the actors liability
or on the gravity of the offense, the defendant may not
be guilty for that eventual outcome.
a. I.e. Defendant shoots B with intent to kill, B
doesnt die, and while at the hospital is poisoned
by the nurse, defendant wouldnt be guilty of
murder, nurse would be.
2. Policy argument, shooting intending to kill is not as bad
as actually killing. A line is drawn between the cause of
the defendants death and culpability in the MPC.
2.03(2)(B) and (3)(b)
Proof of the Elements of Crime
1. Proof beyond a reasonable doubt
a. 1.12(1) Prove each element of an offense beyond reasonable doubt
b. 1.13(9) Encompass all actus reus, mens rea, causation, grading
elements, and absence of a defense
i. All material elements must be proved.
2. Prosecutors Prima Facie Case
a. What must be proved can be found under 2.02.
b. How it will be proved will consist of asking jury to make inferences
about if defendant is likely to have met required standard.
3. Defenses and Affirmative defenses
a. 1.12(3) Defines affirmative defenses, any defense so explicitly defined.
And defense of justification or excuse based on information peculiarly
within knowledge of D. Virtually all defenses satisfy.
b. 1.12(2)(A) Defense is affirmative because it shifts burden of
production to D. 1.12(1) prosecutor must rebut defense beyond a
reasonable doubt. Burden of persuasion remains on prosecutor.
4. Presumptions
a. Presumed Fact (Proof case worthy of jury)
i. Element of an offense which is aided by a presumption.
ii. Effectively is a requirement that prosecutor must show enough
facts to persuade the judge that the case is worthy of being sent
to the jury.

iii. If the evidence clearly negative the facts, judge can dismiss
charge.
Derivative Defenses- The Common Law
1. Defenses that negative the elements. The rebuttal of either the act, mind, or
cause.
a. Different from Collateral defenses, which state that even if you show
that all of the elements were committed, I still have a defense.
b. First step- isolate the Actus Reus, and prove that an element is
missing.
c. I.e. I have an alibi that shows I wasnt there that night.
2. Involuntary act
a. The conduct in the A/R must be voluntary.
b. Voluntary means the defendant engaged in an act that there is no act
of will.
c. Its a defense that needs to be proved by the defendant. The
prosecutor must than negative this defense. If the defendant doesnt
claim the defense than it does not need to be rebutted.
i. No choice or capacity of choice existed. Physical rather than a
mental impairment. Sleepwalking or reflexes.
ii. Policy concern, if you make it a general defense for low iq etc.
they will remain free to cause additional harm to others.
1. There could be no punishment, responsibility or blame
in such a world.
d. Voluntary acts leading up to an involuntary act can hold the defendant
liable for the involuntary act
i. i.e. going to a crowded lobby and falling asleep with a gun,
knowing that when you wake up your likely to involuntarily
shoot.
ii. Or knowingly driving with a condition of seizures, and killing
someone when you have a seizure.
3. Involuntary act- Relation to other defenses- different acts have different
policy motivations, and we want to protect against those acts through
specific polcies.
i. Insanity- The insanity defense MUST be used whenever an act
is defended for mental disease or defect. No involuntary act.
ii. English law-If the crime is likely to occur again, involuntary act
is usually not a defense. Thats why mental disease is qualified
as insanity and not involuntary act.
iii. Duress- Hard choices dont qualify under the involuntary act
defense. (Do it or Ill kill your family). Not involuntary, only
involuntary if the defendants conscious isnt acting at all.
iv. Self Defense-Another hard choice question, not involuntary act.
4. Mistake of fact- Missing M/R element
a. First- offense must be classified as SI, GI, or SL.
b. Second-Certain rules be applied.

c.

d.

e.
f.

g.

i. If prosecutor must prove X for M/R, not X is a defense for

defendant.
Specific Intent
i. Defendant must have actually believed the mistaken fact to be
true.
ii. Defense for SI- An honest mistake of fact
1. Honest means the defendant must actually have
believed the mistake of fact to be true
a. Larceny, that the defendant belonged to him.
This is an honest mistake to SI, a defense.
General Intent- Ordinary negligence defense
i. An honest AND reasonable mistake of fact is a defense.
ii. Honest means the defendant must actually have believed the
mistake of fact to be true, and reasonable means a reasonable
person in defendants shoes.
SI vs GI- Review 205-206
i. Hinges on the M/R stated in the statute. You can have both SI
and GI in a statute, at which point you apply GI to the statute.
Strict Liability
i. Mistake of fact is not a defense for SL- Freed for an example
1. I.e. serving alcohol to a minor, SL, MoF not a defense.
ii. Mistake of fact is a defense to a GI if the defendants mistake is
honest and reasonable and if the conduct would not be
criminal if the facts were as the defendant believe them.
iii. If an element distinguishes criminal from non criminal, than GI
honest and reasonable apply, BUT if its an element only relates
to seriousness of a crime, than SL applies, no MoF defense.
1. I.E. intending to burn down an enemies house and
accidently burning down his neighbors. No MoF
defense, SL.
2. If the above was allowed to be GI, no crime.
iv. Mistakes related to grading elements are SL only in GI crimes,
no SL if related to SI crimes.
SL- Immoral behavior- Does not apply to all offenses or jurisdictiions.
i. If the underlying behavior is immoral on the facts than SL will
be applied.
ii. If the underlying behavior is not immoral on the facts than GI
will be applied.
1. The married man who marries after his wife is lost at
sea, he has sexual intercourse outside of marriage, and
his wife returns.
a. SL- Still guilty of adultery, b/c engaging in sexual
intercourse outside of the marriage is immoral
2. A woman marries a man already married. Then has
sexual intercourse.

a. GI- Not guilty of adultery if she can prove she

honestly and reasonably thought she was
married. Not immoral.
5. Mistake of Criminal Law
a. Ignorance of the Criminal Law is not a defense.
i. If permitted to be a defense it would undermine the very
notion of criminal law.
1. The downside to this rule is it can be unfair.
ii. Socialization allows people to know what the law is, and is a
justification for ignorance of the law not being a defense.
b. Mistaking criminal law is a violation of social norms, not just a
mistake of fact.
c. In general we want to provide a defense for non culpable mistake of
fact and deny a mistake for mistakes of criminal law.
d. Encompasses not only the mistake of not knowing a law, but also the
interpretive mistake of what a specific law means.
e. M/R backing up the rule, knowing youre committing the act is
enough, doesnt matter if you know its illegal.
f. Exceptions
i. Interpretation of M/R, extremely rare
ii. Misled by official authority
1. A defendant who is vindicated based on a SC ruling that
is later overturned, is still innocent
2. Other random exceptions, after being given the go
ahead to demonstrate near a courthouse, later arrested
and acquitted that it was a violation of due process to
convict.
iii. Strict Liability unfair
1. SL should be excused as a defense if not only the
defendant didnt know the action was a crime, but also a
reasonable person wouldnt know the action is a crime.
(principle case Lambert v. U.S.). Lambert didnt know
she had to register as a convicted felon, no one told her,
and a reasonable person wouldnt know, Acquitted.
iv. Due Diligence Effort to Ascertain the Law
1. Controversial and not widely accepted.
6. Mistake of the Non-Criminal Law- (i.e. mistake over whether you are actually
divorced)
a. SI
i. An honest mistake of the law that negates specific intent is a
defense.
ii. Larceny by taking property you think is your own is a defense.
iii. MoNCL is treated the same as MoF under common law.
b. GI
i. Mistakes of NCL apply ignorance is not an excuse and deny
defense.

ii. Is this a fair policy? Low does not think so. He thinks MoNCL
under GI should be the same as MoF. Modern courts ignore the
difference and treat both the same.
c. MoF and MoNCL are very difficult to differentiate.
i. If a reasonable MoF is not a defense, than a reasonable MoNCL
will not be a defense either.
7. Intoxication
a. Might be offered as a defendant to show that both the A/R and the
M/R of a given crime is missing.
i. Definition1. Any substance introduced into the body, alchohal,
drugs, medication etc. are all included.
2. Voluntary intoxication is the voluntary act of
introducing the substances.
3. Involuntary Intox. is unforeseeable or unanticipated
reaction to drinking and drugs. Close to insanity.
b. Admissibility to negate A/R
i. No act- Defendant could not have possibly performed the
physical act, the defendant was so intoxicated that he was
comatose. Rare case. Doesnt matter if intox was vol. or invol.
ii. No Voluntary Act
1. Not a defense, intoxication is not considered in a
voluntary/involuntary act.
c. Admissibility to negate SI
i. Jurisdictional questions, some jurisdictions allow others do
not.
1. If the evidence of voluntary itox. Is relevant to the the
evidence and the SI, vol. intox can provide a reasonable
doubt and be a defense. Prosecution must establish SI.
Only valid in 40% of states.
2. Another 40% allow a defendant to take a stance that if
he lacked capacity to form SI required, than its a
defense. Defendant is required in this case to prove both
burden of production and burden of persuasion.
3. The final 20%- evidence of Vol. Intox. is not admissible
at all. SC has said this is constitutional.
d. Admissibility to Negate GI
i. Every jurisdiction prevents vol. intox. evidence from being
admitted.
ii. Because N is the standard of GI, the intox is irrelevant, unless
the standard of behavior is to be reasonably drunk (its not)
8. Evidence of Mental Diseasea. Page 225.

Criminal Homicide-Common Law

I.
II.

III.
IV.
V.

Two grades Murder and Manslaughter

Person
a. Birth
i. Traditionally, a person must be born alive and independent of
its mother before it can be considered a victim. (see Keeler)
ii. There are other crimes to killing unborn children (feticide,
infanticide)
b. Death
i. Killing any person still alive can still be homicide.
ii. No generally accepted definition of when death occurs, point of
contention.
Causation
a. Defendant must specifically cause the action.
b. Year and Day Rule- mostly abolished.
Murder
Causing the death of a person with malice aforethought
a. Malice aforethought
i. Intent to kill with a deadly weapon
ii. Intent to inflict serious injury, grievous bodily harm.
iii. Extreme Recklessness- Extreme indifference to human life
1. Actual awareness of risk is debated. Issue isnt decided
but Low thinks Defendant should actually know death is
possible.
iv. Felony Muder- Death occurred while defendant engaged in a
felony.
b. History- Unitl 1496 murder was the only homicide offense.
i. Manslaughter
1. Murder is all offenses committed with malice
aforethought. Manslaughter became all homicides not
punished by death.
ii. The Degree Structure
1. First vs second degree murder- First is willful,
deliberate, and premeditated.
2. Second degree murder is any killing with malice
aforethought that is not in the first degree
c. Felony Murder
i. The only difference between MPC and Common Law is the
language described. The rule in Common Law is when murder
occurs during any felony committed by the defendant.
ii. Virtually all jurisdictions constrain felony murder to only
felonies that are inherently dangerous to life.
iii. The murder must have proximate cause to the felony
iv. The felony must be independent of act which were necessarily
a part of the homicide.

v. Time frame of felony is when the crime begins and the

immediate flight from its commission is over.
vi. Felony murder Hypo- Agency theory has become the prevailing
view, if a cop kills an innocent bystander while attempting to
stop a felony, the felons are not guilty of murder.
1. If the felon was extremely reckless, than the felony
murder rule isnt needed because the person can be
convicted of murder.
vii. Defense to felony murder if the defendant can prove 4 things
1. The defendant did not commit the homicidal act or
encourage its commission.
2. The defendant was not armed
3. The defendant had no reasonable ground to believe
anyone else was armed
4. The defendant had no reasonable ground to believe that
any other participant in the felony intended to engage in
life-endangering conduct.
d. Manslaughter
i. Any criminal homicide committed without malic aforethought.
Can be voluntary or involuntary.
ii. Voluntary Manslaughter
1. Consists of cases where Malic Aforethought would exist
but for the presence of outside forces.
a. Provocation- Killing can be reduced to voluntary
manslaughter if it was committed in the heat of
passion.
b. Heat of passioni. Defendant actually provoked- Must have
lost control of normal restraints in
response to some provoking event.
ii. Provocation must have been legally
adequate. (Know legally adequate when
you see it, i.e. catch adultery)
iii. Reasonable reaction
2. Cooling Time
a. Faces the same three kinds of question as above.
3. The effect of mistake
a. A mistake must be honest and reasonable for it
to qualify
4. Imperfect jurisdiction- Doctrine is recognized, the
conviction is for voluntary manslaughter.
iii. Involuntary Manslaughter
1. Recklessness or Negligence
2. Misdemeanor Manslaughter

a. Any death that occurs during a misdemeanor, is

involuntary manslaughter. Has been limited
similarly to Felony Murder.
Criminal Homicide- MPC
I.
Introduction
a. Section 210.1 (1) of the MPCi. Guilty of criminal homicide when a person Purposely,
knowingly, recklessly, or negligently causes the death of
another human being.
b. 210.2
i. Criminal homicide is punished as murder, manslaughter, and
negligent homicide
c. Justification and Excuse
i. Not specifically mentioned in 210.1, but under 1.13(9) facts
which negate a justification or an excuse are an element of
every crime. Self defense, insanity, and all other justification
and excuse defenses are available.
d. Person- Someone who has been born and is alive.
II.
Murder
a. Common Law Malice aforethought casesb. Intent to Kill
i. Defendant intended to kill or knew that death would almost
certainly result are explicitly included in 210.2(1)a.
c. Intent to inflict serious injury
i. Cases where the defendant intended to inflict serious injury, or
knew the practical certainty of that result are collapsed into
extreme recklessness
d. Extreme Recklessness
i. Recklessness will apply, but an additional manifestation of
extreme indifference to the value of human life is also
required.
e. Felony murder
i. Abolished in the MPC. However, most states have kept there
own felony murder rules in place in some form.
f. Policy rationale for rejection of degree structure
i. Does not include the degree structure for murder, the reason is
that willful, deliberate, and premeditate do nothing to really
distinguish moral culpability. I.e. Defendant that discharges
machine gun with extreme recklessness without intent would
not be held to the highest degree of murder, where as someone
who euthanizes at request of patient would.
III.
Manslaughter
a. The MPC drops voluntary vs. involuntary. It puts reckless and
negligent homicide into different grading categories.
b. Provocation- Provisions of 210.3(1)(B) are derived from common law
provocation mitigation. MPC provides a manslaughter vs murder

IV.

charge if the defendant can show he was under the influence of

extreme mental or emotional disturbance with a reasonable excuse.
i. The defendants emotional condition are what count
ii. No need to prove that a provocation be adequate (second step
in analysis of common law) because Ds emotional condition is
the only thing taken into account.
iii. Moderate Objectivity of Standard- D is measured against an
objective standard. The standard is less rigid then common
law, because it allows for situation to be taken into account,
i.e. blindness, shock, or extreme grief.
iv. Cooling time eliminated, No separate cooling time needed,
because reasonable explanation or excuse takes into account
cooling time.
v. Effect of mistake- governed by the language under the
circumstances as he believes them to be. The defendant will
be judged on the basis of the facts he perceived. Mistake does
deprive defendant of defense.
c. Diminished Responsibility
i. Ambiguity of the word situation in 210.3.1.b. and mental
disease or defect could potentially lead to defenses.
ii. MPC uses deliberately broad and ambiguous language to
expand the provocation idea should they be so inclined.
iii. Extreme mental or emotional disturbance language in
210.6.4.b , invitation to use the limitation as a mitigating factor
in capital murder cases.
Capital Punishment
a. 210.6 is very influential, but Am. Law. Inst. Purposely didnt take a
position on the matter.
b. Two ideas where 210.6 is based
i. Bifurcation- Capital punishment should be made in a separate
hearing, allows both prosecutor and defendant to lay out past
arguments that may be barred from murder trial. The jury
must make any finding of fact required for the imposition of
the death penalty, but the judge can make the finally ruling.
ii. Criteria for decision- Announced criteria should be established
for Captial cases. Under 18, no capital punishment.
Aggravating circumstances required for capital punishment
can be found in 210.6.3, potential mitigating factors in 210.6.4
iii. Mental condition, extreme mental or motional disturbance, and
cognitive or volitional impairment can all call for leniency