Criminal Law Common Law/ Model Penal Code Comparisons

Professor Bergelson, Spring 2004

Actus Rea

Common Law Model Penal Code

Requires affirmative, voluntary act; intention  There must be a voluntary act or omission
to commit a crime is insufficient to convict if
there is no evidence of an act putting that Conduct: physical activity (affirmative act),
intent into effect. possession
 Mere movement of vehicle does not
necessarily constitute act of driving Result: consequence
vehicle→there must be an affirmative act
by Δ (Taft) Circumstance: external conditions when Δ
 If knowledge that actions could cause engages in conduct, ex breaking in at night
harm to another (i.e., you know you can
blackout and drive anyway), act Not voluntary acts:
constitutes crime (Decina)  Reflex or convulsion
 Bodily movement during
unconsciousness or sleep
 Conduct during hypnosis
Possession: Possession:
Mere presence + Intent to posses + power to Possession is an act if:
possess = conviction  knowingly procured OR
 Mere presence ≠ possession  knowingly received the thing OR
 (Kimbrell→watching drugs)  was aware of control for sufficient period
of time
Omission: Omission:
There must be a duty Liability for the commission of an offense
 statutory may not be based on an omission
 status relationship (Biddle) unaccompanied by an action unless:
 contract (Moore→chauffer)  Omission is expressly made sufficient by
 voluntary assumption of care (Jones) law defining offense
 creation of peril  A duty to perform the omitted acts is
 duty to control conduct of another otherwise imposed by law
 duty of a landowner

 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
 Mens Rea

Common Law Model Penal Code

Criminal Negligence Criminal Negligence
 Gross lack of competency  Should be aware of substantial and
 Gross inattention unjustifiable risk that a material element
 Criminal indifference exists or will result
 Gross deviation = recklessness→aware of  Risk must be of nature and degree that
substantial risk created by conduct and failure to perceive = gross deviation from
disregards that risk→ (Peterson) reasonable person’s standard of care
 Homicide→neg. homicide if acted with  Recklessness is default mens rea if not
criminal negligence (State v. Howard) enumerated in statute
 Subjective Test Material elements
Proving Mens Rea:  Conduct
 Intent  Attendant circumstance
 Knowledge Elemental Analysis:
 Recklessness: conduct whereby the  Every material elment in every statute
actor does not desire harmful must be modified by one of the mental
consequences but nonetheless culpability states
foresees the substantial possibility for
harmful consequences and
consciously assumes the risk of such
consequences
Knowingly is default mens rea if not
enumerated
Specific Intent Crime: MPC no longer recognizes the distinction
 Requires actual intention to do more than between general and specific intent. Rather,
actus reus, not just general it spells out what is required for each crime.
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: (See above)
 Intent to commit an act, serves as actus
reus
 Knowledge
Common Law
Majority→ subjective test
Minority→ objective 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)
Model Penal Code
Subjective test
 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 Code

Malum prohibita Can only be a violation→minor offenses, not
 Statutory rape, bigamy crime; fine/forfeiture – what about statutory
 Public welfare offenses rape, felony murder?
 Determine that the statutory word is a
material element and not a sentencing
factor nor mere element of the crime.
If it is last 2 STOP
 If statute contains mens rea word,
then it is likely that the MR word
modifies all material elements of the
offense
If no mens rea:
 If it prohibits something like a
common law crime, it is prob not
strict liab
 If it carries a sever penalty prob not
SL
 Complex regulatory scheme may be
SL if 1 and 2 are not true
 If D would have been guilty of a
crime even under facts as supposed,
many states will impose SL on greater
crime theory

Murder
Common Law Model Penal Code
4 ways to satisfy mens rea requirement: 3 ways to prove
 Intent to kill  Purposefully, knowingly (differs from
 Intent to commit serious bodily injury willingly—did away with malice
 Reckless/extreme indifference to value of aforethought) caused death
human life (depraved heart)  Recklessly manifesting extreme
 Intent to commit dangerous felony indifference to human life (depraved heart,
—no bootstrapping allowed (felony must be subjective view of recklessness)
independent)→People v. Wilson  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 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 Only 1st degree
 Intentional and premeditated and
deliberate killing
 Poisoning
 Lying in wait
 Willful
 Deliberate
 Premeditated
 Felony
nd
2 degree:
 Intentional but not premeditated and
deliberate killing
 Depravity of heart
 No intention to kill
 Was the killing a “murder”? (malice
aforethought)
 If so, was it premitated, delibrate and will
full?
 If yes, it was first degree, if not, second
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 Model Penal Code

Voluntary:
 Intent to kill, but in the heat of passion
with no malice aforethought prompted by
legally adequate porvocation
 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
2) heat of passion
3) lapse of time not enough to cool off
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
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
Negligent Homicide
 Committed negligently—ought to have
been aware of the risk; inadvertent;
objective

Rape

Common Law Modal Penal Code

“Carnal knowledge of a woman forcibly and Second Degree Rape:
against her will”
 sexual intercourse by a man with
woman not his wife
 by force or threat of force
 without consent
 with a victim who could not consent
because she was unconscious,
mentally disables, or of a young age
 by fraud in factum
Actus Reus:
 a voluntary act by the defendant,
though intentional intercourse is
seldom in dispute
 must prove penetration
Mens Rea:
 Does not specify Mens Rea of rape
 Prosecutor had to prove that the
defendant intentionally had
intercourse with a woman he knew
was not his wife
Modern Statutes
 Obtaining sexual intimacy with
another
 By force or threat of force
 Without legally effective cnsent due
to incapacity
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
 sexual intercourse (broadly defined)
 by a man with a woman not his wife
 by force, or
 by threat of serious physical harm or
kidnapping to the victim or a third
person
First Degree Rape:
 Satisfy elements of rape AND inflicts
serious bodily harm on anyone, or
 The complainant was not a “voluntary
social companion of the actor and had
not previously permitted him sexual
liberties”
Gross Sexual Imposition
Intercourse by a male with a female not his
wife if he
 Compels her to submit by any threat
that would prevent resistance by a
woman of ordinary resolution; or
 Knows that she is so mentally
impaired that she is incapable of
appraising the nature of her conduct;
or
 Knows that she is unaware that a
sexual act is being committed upon
her or that she mistakenly believes the
actor is her
Model Penal Code
Mens Rea
 Must purposely engage in all
elements of conduct made criminal
by the crime attempted
 Acted with the purpose or belief his
 preparations are made act would cause a particular result
 To do the act  Whatever mens rea toward
 To accomplish the result circumstances
 Under the same circumstances
Dangerous Proximity Test: Substantial Step Test: (Subjective Test)
 looks at what is left to be done  focuses on what has already been done
 if the last proximate act is done, always  acting with culpability for the
sufficient, yet not always required commission of the crime
 focus on the actor’s actions  purposefully engages in conduct which
 beyond mere preparation would constitute crime if circumstances
 weigh several factors, including the were as he believes them to be
seriousness of the offense, community
resentment, and closeness in space and
time to completing the crime
Δ must have culpability to commit a crime Six circumstances which shall not be held
—there can be no attempt of negligent insufficient as a matter of law:
homicide  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: Legal Impossibility:
 when Δ’s actions sets in motion, even if The only defense
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: No factual Impossibility Defense
 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
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
The Equivocality Test: Renunciation:
  Some argue the actus reust of
attempt by itself show actor is
trying to commit a crime
 For D; prosecutor may not use any
other evidence to demonstrate that
actor was implementing criminal
diesing
Probable Desistance
 Only an act that would normally be
sufficient to result in the
commission of a crime but for the
intervention of some outside person
or event is sufficient for the actus
reaus of attempt
Mens Rea:
 Did she act with the same mens rea Did she have
required by the crime attempted?
 Did she also intend to commit the
act and to cause the result and
intend the same circumstances as
required by the crime attempted?
Actus Reus:
Analyze with the following steps
 Last act— did the D do everything
that he could do and is the result
now beyond control
 Equivocality— would reasonable
people, observing only the d
conduct, necessarily conclude that
he was trying to Commit a crime
 Proximity— in light of seriousness
and scope of harm, did d come
close in space and time to
completing offense
 Permits D to intro ev. that he
abandoned his effort to commit the
crime or otherwise prevented its
commission, under circumstanes
manifesting a complete and
voluntary renunciation of his
criminal purpose
 Only available when the target
offense has a result or circumstance
as a material element
 Must be voluntary. Must not have
changed mind because it was more
difficult to complete crime
 Must be complete. Must not have
waited for a better oppurtunity
Mens Rea:
 The purpose to do all the conduct
elements of the target offense?
 The purpose to cause the result (or
believe she would cause the result)
of the target offense?
 The same mens rea toward the
circumstance elements as required
by the target offense?
Actus Reus:
 Did D behavior strongly
corroborate his criminal purpose?
 If he searched for victim,
familiarized himself with crime
secen, unlawfully entered a
building where he might commit a
crime, had special tools essential
for crime, or solicited an innocent
agent to the crime, a jury could (but
is not required to) find him guilty
of attempt.
  Probable desistance— D start a
chain of causation sufficient to
result unless another person or
event would prevent it
Abandonment
Common Law
Involuntary abandonment never a defense
Not a defense if the crime is completed
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:
 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:
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
Model Penal Code
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
  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
Ignorance or Mistake
Common Law
Mistake of Law:
 Never a defense (traditional view)
 Follow MPC (modern view)
 Can be defense in specific intent through a
showing that the D had not intention to
commit the criminal action element of the
charge
Mistake of Fact:
 Defense only for specific intent crimes—
must lack mens rea for crime
 Must be an “honest” (reasonable) mistake
for general intent crimes
 Mistake of age is no defense
 Any mistake of fact is defense to specific
intent crimes
Rejects foreseeable consequences
doctrine→accessory not liable for crimes
beyond those which were intended to aid or
encourage
Model Penal Code
Mistake of Law:
 Never a defense unless reasonably
rely on advie to legality of conduct
 A statute
 Jduical decision
 Administrative order or grant of
permission
 Official interpretation of the public
officer or body charged by law with
resp for interpretaion
Mistake of Fact:
 Based on Δ’s subjective belief
 Mistake of age is no defense—no defense
if under 10
 A defense if it negates purpose,
knowledge, belief, recklessness or
negligence required to establish a material
element of that offense
 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
 Intoxication

Common Law Model Penal Code

Voluntary Intoxication:
 Not a defense but may be used if it negates
specific intent
 Inadmissible to negate general
intent→negligence
Involuntary Intoxication:
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:
 Presence or threat of force/duress
 Defense if Δ intentionally ingests a
substance, but mistakenly believes that it
is not intoxicating


Duress
Common Law
Requires the following elements for claim of
Duress
 A well founded fear, generated by
 A threat from a human being of
 An imminent (or “immediate”)
 Serious bodily harm or death
 To himself (or sometimes a near
relative)
 Not of his own doing
Not allowed for homicide
Modal Penal Code
 Retains common law requirement that
the threat be one of personal injury
 Allows threat of “unlawful force” to
support duress, thus allowing the
threat of minor physical harm
 Requiring the threat involved would
have similarly affected a “person of
reasonable firmness in the defendants
situation”
 Duress is a claim in all prosecutions,
including homicide
 There is no restriction to “imminent
harm”
 The threat may be to any person

Necessity
Common Law Modal Penal Code
There must be  D must believe that his conduct is
 A threat necessary to avoid harm to himself or
 Imminent injury to the person or others and that the harm inflicted by
property committing a criminal act is less
 For which there are no alternatives serious than that sought to beavoided
except the commission of the crime by the criminal law
  The d’s acts must prevent an equal or
more serious harm
 The d must not have created the
conditions of his own dilemma
Rejects common law provisions
 Does not require that the actual
infliction of harm be imminent
 Does not distinguish between threats
from human versus nonhuman forces
 Does not restrict the claim to
instances involving a threat of death
or serious bodily harm
 Does not preclude the defense in a
homicide
 If D put himself in position, still has
necessity defense but will be charged
with lesser crime

Self Defense

Common Law Modal Penal Code

Requires  Retreat is required before deadly force
 A threat of may be used except at D’s home or
 Imminent office, but only where the defendant
 Unlawful “knows he may retreat in complete
 Serious bodily harm safety”
 To the extent there are, or appear to
be, no available alternatives to the
defendant except use of force
 Nonculpability on the part of the
Defendant in bringing about the
situation
Stand your ground (some states)
 No requirement of retreat, whether in
house or in a place where has right to
be
 Presumption that a person using
deadly force while in dwelling had
reasonable fear of imminent death
 Presumption that a stranger forcibly
and unlawfully entering a dwelling
intends to commit an unlawful act
involving force or violence
 A ban on arresting the killer unless
law enforcement determines probable
cause of unlawful force
 Immunity from both civil and
 criminal if justified

Proportionality and Subjectivity

 Use no more force than necessary to
repel aggressor
 Whether necessary depends on factors
relating to the D and the aggrssor