Criminal Law Diamond

Voluntary act or omission to act

What is conduct?

An omission is a failure to perform a legal duty. This excludes a mere moral duty

What is an omission

1) status: parental, filial, spousal, admiralty/maritime, other situations involving mutual dependence/reliance

2) public officer: police, firefighter, EMS and other publicly employed workers, teachers

3) statutorily imposed duties 

4) voluntary assumption of care

5) creation of risk or harm 

6) contract 

Under the common law, how can legal duties be created? 

Conditions that must be present in conjunction with the prohibited conduct and/or result; everything that is not a forbidden conduct or result 

What are attendant circumstances? 

Result crimes prevent or punish an unwanted outcome

• very few result crimes: arson, homicide, and battery typically

• something that “causes” a result

What is a result crime?

general intent

Under the common law, if a statute doesn’t specify a mens rea, what is applied?

to intentionally cause a forbidden result is to do it purposefully or with the knowledge that the result will obtain 

Define intent 

when no mens rea is set out in the statute - ANY culpable mindset from the MPC can apply

Define general intent

When the statute specifies a mens rea, that mens rea is applied

Define specific intent

Purpose, knowledge, or recklessness will suffice - NO NEGLIGENCE 

In an MPC state, what do you do when no mens rea is stated? 

1) purpose

2) knowledge

3) recklessness

4) negligence

What are the 4 culpable mindsets of the MPC

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

1) if the element involves the nature of his conduct thereof, it is his conscious object to engage conduct of that nature or to cause such a result AND

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

What is purpose

It must be one’s conscious objective to engage in that conduct under those attendant circumstances 

Purpose in regards to conduct crime 

It must be one’s conscious objective to achieve that result

Purpose in regards to result crime

Practical certainty that our conduct will cause the forbidden result; there is knowledge if one is aware of the attendant circumstances

What is knowledge

Practically certain of a fact or attendant circumstance under which you are performing the prohibited conudct 

What is knowledge of a conduct crime

One must be practically certain the result will occur from his conduct

What is knowledge of a result crime

Awareness of a substantial and unjustifiable risk and is a gross deviation from the standards of conduct that a law-abiding person would have observed in the actor’s situation

The risk of which the actor is aware must be substantial and unjustifiable

Recklessness with respect to an attendant circumstance establishes knowledge

What is recklessness

Recklessness - only must be AWARE of the risk

Knowledge - practical certainty that the risk will occur 

What is the difference between recklessness and knowledge 

Unawareness of a substantial and unjustifiable risk, and one’s actions must grossly deviate from the norm of a reasonable, law-abiding citizen 

What is negligence 

• We infer a person’s intentions from their conduct

• We can make inferences about the state of mind - ACTIONS SPEAK LOUDER THAN WORDS - ex: testimony, admissions by defendant, emails, texts, conduct

How do we prove state of mind?

A defendant is liable, regardless of what his mental state was

What is a strict liability crime?

1) Statutory Rape 

2) Bigamy 

• note that mistake of fact is not a strict liability defense 

What are the strict liability crimes at common law? 

No, only violations under MPC 1.04(5)

• Strict liability is allowed for malum prohibition conduct

  • These are acts that are wrong only because they are prohibited by law, like traffic violations

Is there strict liability under the MPC?

Mistake that does not rise to the mens rea level in the statute

• not a defense for strict liability crimes

What is a mistake of fact?

Mistake must be honest 

What is required for a mistake of fact defense at common law for a specific intent crime? 

Mistake must be honest AND reasonable

What is required for a mistake of fact defense at common law for a general intent crime?

In general intent crimes, even an honest and reasonable mistake does not eviscerate the necessary mens rea in a non-strict liability crime when the conduct constituted a moral wrong (this is the minority view)

What is the moral wrong theory for general intent mistake of fact defenses?

When one thinks that one’s behavior is not consistent with crime x, but that it is more consistent with crime y, then under the legal wrong theory, one is guilty of the more serious offense 

What is the legal wrong theory for mistake of fact defenses? 

Mistake of fact must negative the necessary state of mind - ignorance negates the purpose, knowledge, recklessness, or negligence required by the statute

• Ex: If the statute requires that something be done purposefully, then if it is done with negligence, that is not going to suffice for purposefulness except in those instances when knowledge of an attendant circumstance is sufficient to prove purpose

What is mistake of fact under MPC?

NO

Does the Moral Wrong Theory exist in the MPC?

Same as common law, but one is guilty of the less serious crime

What is the legal wrong theory at MPC

Mistakes that arise when a criminal defendant misunderstands or is ignorant of the law as written at the time.

• Holmes: mistake of law is never an excuse - difficult to prove

• No mistake of law for strict liability crimes

What is a mistake of law defense?

Any law that is not the one the defendant is prosecuted under, nor a law required to be read in pari materia 

What is non-governing law?

The law one is prosecuted under 

What is governing law? 

Ignorance of the law is no excuse

What is the default rule for mistake of law at common law?

Non-governing law is treated like a mistake of fact

• Specific intent = honest mistake required

• General intent = honest and reasonable mistake required

How is non-governing law treated at common law?

No excuse

• Except when the statute requires awareness of the law, Due Process concerns, or reliance on a statement of law is later found to be erroneous or invalid

How is governing law treated at common law?

Ignorance of the law IS an excuse under 2.04(3) circumstances

What is the default rule for mistake of law under the MPC?

Treated like a mistake of fact - must negate the necessary mens rea

How is non-governing law treated under the MPC?

Excuse only under certain circumstances

1) When the statute requires awareness of the law

2) Lack of both knowledge and opportunity for notice of the law (ex: statute hasn’t been published or otherwise made available)

3) Reliance on an official statement of law is later found to be erroneous or invalid

How is governing law treated under MPC?

When there is a result crime

When is causation discussed?

But for test - result would not have happened but for the defendant’s conduct 

Substantial factor test - two defendants, acting independently, commit two separate acts, each of which alone is sufficient to bring about the prohibited result 

• Note: to accelerate a result is to cause that result 

  • If one accelerates the death that the other caused, they both caused the death 

What two tests are used to discuss actual cause at common law? 

Foreseeability - whether the result is so unforeseeable that it is outside the scope created by the risk of the defendant’s conduct, or is it within the risk such that it is fair to task the defendant with the cause of the crime

What is the test for proximate cause at common law?

When there is an intervening force

• Ex: An act of God

• Ex: The victim makes a free and deliberate decision that contributes to the forbidden result

• Ex: Apparent Safety Doctrine: when a defendant’s active force has come to rest in a position of apparent safety, the court will follow it no longer

When does proximate cause become an issue?

But for causation is required, and substantial factor is subsumed by it 

What does the MPC say about causation? 

• Premeditated and Deliberate (intentional) murder

• 3 types of definitions of premeditated and deliberate: schrader, guthrie, and morrin

1st Degree Murder at Common Law

In a Schrader jurisdiction, premeditation and deliberation can happen in the “twinkle of an eye”, meaning that it can happen almost instantaneously

Definition of premeditation and deliberation in a Schrader jurisdiction

In a Guthrie jurisdiction, the killing is done after a period of time for prior consideration before a jury can infer premeditation and deliberation. Any interval of time between the forming on the intent to kill and the execution of that intent, which is of sufficient duration for the accused to be fully conscious of what he intended, is sufficient to support of conviction of 1st degree murder. 

Definition of premeditation and deliberation in a Guthrie jurisdiction 

In a Morrin jurisdiction, the interval between the initial thought and the ultimate actions should be long enough to afford a reasonable man time to subject the nature of his response to a “second look”

Definition of premeditation and deliberation in a Morrin jurisdiction

Unintentional, when a death results from the commission of a felony specifically listed in the 1st degree murder statute

There is a strict liability nature - don’t have to prove the mens rea of the death, but rather of the felony attached

Merger rule = the predicate felony must be completely independent of the homicide

1st Degree Felony Murder

Intentional murder, but not premeditated and deliberate, and there is no defense of manslaughter 

2nd degree murder (intentional) 

Unintentional killing, but done with extreme recklessness to the value of human life

• there is an awareness of the risk, and a disregard for it

2nd degree: Depraved heart (reckless+) murder

Unintentional murder, when a death results from the commission of a felony that is inherently dangerous to human life

2nd degree felony murder

the unlawful killing of another human being without malice aforethought

• may either be intentional (voluntary) or unintentional (involuntary)

Manslaughter

Intentional killing because of adequate provocation

Voluntary Manslaughter

• Done in the heat of passion

• No cooling off period

• Provocation must come from victim

• Words alone aren’t adequate provocation (except in jurisdictions that specify it)

What constitutes adequate provocation?

1) Mutual combat

2) Extreme assault and battery

3) Finding your spouse sleeping with someone else (for some states)

4) Defendant’s illegal arrest

5) Injury or serious abuse of the defendant’s close relative

6) If none of the above fit, ask “would it inflame the passion of a reasonable man and tend to cause him to act in the moment from passion rather than reason”

What are the generally recognized provocations for manslaughter?

Reckless/criminal 

Involuntary Manslaughter 

When the actor unjustifiably, inexcusably, and in absence of mitigating circumstances, kills another: 1) purposely or knowingly, or 2) recklessly, under circumstances manifesting extreme indifference to the value of human life

Murder under MPC definition

Equivalent to intentional murder in common law (MPC does not make the distinction between premeditated and deliberate homicide)

Purposefully or knowingly under MPC

AKA recklessness+ - manifesting extreme indifference to human life

• this includes homicide that occurs while the actor is engaged in, or is an accomplice in, the commission or attempted commission of, or flight from, one of the dangerous felonies specified in the statute

Extreme recklessness under MPC

1) (unintentional) Recklessly killing another or 2) (intentional - mitigated) killing another under circumstances that would ordinarily be murder, but it is done because of extreme mental or emotional disturbance for which there is a reasonable cause

Manslaughter under MPC

When the killing is committed with criminal negligence

• Criminal negligence = gross deviation from the standard of care; when one isn’t aware, but should be aware of a substantial and unjustifiable risk

• this does not exist at common law

Negligent homicide under the MPC

Actus Reus 

• Conduct - breaking and entering 

• Attendant circumstances - without permission into the dwelling place of another at night 

Mens Rea

• General intent crime 

• plus a felonious intent 

What is the definition of burglary at classic common law? 

Actus Reus

• Conduct = Entering

• Attendant Circumstances = a building or occupied structure, or separately secured or occupied portion thereof

  • Unlike common law, doesn’t have to be a dwelling

Mens Rea

• Purpose to commit a crime therin

  • Unlike common law - doesn’t have to be a felony

What is the definition of burglary under the MPC?

Rape is a conduct crime (no forbidden result)

• Non-consent is key

What kind of crime is rape?

When a victim misrepresents that he and the victim are having sex at all - no consent to the act of sexual intercourse 

• This is deception about the fact that sex is going on (Ex: Larry Nassar - USA Gymnastics) 

Nullifies consent 

What is fraud in the factum? 

When a victim consents to sexual intercourse, but there is fraud in the way the sex is induced (Ex: Have sex with me and I’ll give you $2,000)

Does not nullify consent - they consented to sex - that’s all that matters

What is fraud in the inducement

Actus Reus 

• Conduct = carnal knowledge (vaginal intercourse) 

  • By a man of a woman

• Attendant circumstances = without consent; forcibly or by threat of force 

Mens Rea 

• General intent crime = satisfied by negligence 

Rape at common law 

1) Brown

2) Rusk

3) Alston

4) Berkowitz

5) MTS

What are the 5 standards of force at common law?

Under the Brown standard, physical force must overcome the victim’s physical resistance to the utmost.

• This is the victim using every physical means or faculty within their power to resist penetration

• This is the highest standard of force and resistance - makes it harder to prove rape.

What is the Brown standard of force?

Under the Rusk standard, the physical force or threat of physical force must be sufficient to overcome the victim’s physical or verbal resistance or will to resist

• Important: verbal resistance is sufficient

What is the Rusk standard of force?

Under the Alston standard, physical force or threat of physical force must be sufficient to overcome the victim’s resistance or will to resist

• Threats of force must be related to the sex act 

What is the Alston standard of force? 

Under the Berkowitz standard, the moral, psychological, or intellectual forced used to forcibly compel a person into sexual intercouse is sufficient to overcome the victim’s resistance or will to resist

• The sexual penetration itself is considered the force.

What is the Berkowitz standard?

Under the MTS standard, the force used is simply enough to achieve penetration

What is the MTS standard?

Cannot prove the actus reus or mens rea beyond a reasonable doubt

What is a failure of proof defense?

Even though you can prove that the defendant committed the crime, you are not criminally liable because of this affirmative defense

• These are facts that are extrinsic to the proof of the defense

What is an affirmative defense?

1) Necessity - use of force against another is not justifiable unless it is necessary

2) Proportionality - a person may not use force that is disproportionate to the threat that motivates the force

3) Reasonable belief - a person may be able to successfully assert a justification defense, even if he is wrong about the circumstances, if he reasonably believed the force and was necessary and proportionate under the cricumstances

What are the 3 elements of justification defenses?

One can use self defense when unlawful force is being employed in the moment, or there is a reasonably apparent threat of immediate and unlawful force. 

What is self defense under common law? 

NO

Can an aggressor plead self-defense?

Even if you weren’t initially the aggressor, if you escalate the situation, you become the aggressor

What is the rule about aggressors under the common law?

Under traditional rule, a person was not permitted to use deadly force if he could retreat safely, because this negated the necessity of killing the attacker (this is now minority) 

Modern rule in most jurisdictions is the “stand your ground” laws 

• Eliminates the duty to retreat 

What is the rule about retreating under the common law? 

Under the MPC, the use of force is justifiable when the actor believes that the force is immediately necessary for the purpose of protecting himself

• There is no explicit statement of it being reasonable, but still required under 3.09.

• same rule for aggressor applies and deadly force

What is the rule for self-defense under the MPC?

There is a duty to retreat under the MPC, unless you are in your home

What is the rule for duty to retreat under the MPC?

Under the M’Naughten Rule , the defendant suffers such a defect of reason arising from a disease of the mind that

1) she did not know the nature and quality of the act that she was doing and

2) if she did know it, she did not know that what she was doing was wrong - does not have a grasp of morality.

• Note: the person who understands morality but is unable to understand the law is not immune, whereas the person who understands the law but not morality is immune

What is the M’Naghten Rule of criminal insanity under the common law?

The Parson’s rule addresses both cognitive and volitional aspects of the defendants mind. It looks at an irresistible impulse. If the defendant has a complete incapacity to control or restrain their acts or impulses, they have an affirmative defense of criminal insanity. 

What is Parson’s rule regarding criminal insanity under the MPC? 

If the commission of the crime is the product of disease, one can claim mental insanity

What is Durhams’ Rule (New Hampshire only)?

A person is not responsible (has an affirmative defense) if at the time of the conduct, as a result of mental disease or defect, he lacks substantial capacity either to appreciate the criminality (wrongfulness) of his conduct or to conform his conduct to the requirement of law.

• MPC speaks only to a substantial capacity - here, the MPC is more forgiving than the common law

What is the defense of criminal insanity under MPC?

This is a failure of proof defense - you did not have the mens rea for the offense because you were involuntarily intoxicated. 

What is the rule for involuntary intoxication? 

Voluntary intoxication is not an affirmative defense - but it can mitigate a crime to one with a lower mens rea

What is the rule for voluntary intoxication?

Traditionally, infancy is a defense

• some states recognize that below a certain age (minority of states), children cannot undertake crime

• most states will recognize that children can commit crimes

What is the rule for infancy?

These are crimes that you can commit when you are trying to commit a crime 

What are inchoate crimes? 

Requires 2 or more people

Mens Rea: specific intent to agree/purpose

• it is the specific intent to undertake an unlawful act or a crime

Actus Reus: agreement between two or more people to commit a crime

• Sometimes this can be inferred from direct evidence or circumstantial evidence

Each conspirator is responsible for all actions of the other conspirator.

There is no conspiracy with respect to reckless result crimes, negligent result crimes, nor conspiracy to felony murder

Describe conspiracy

Actus Reus

• Agreement between actors to commit a crime

  • Modern day common law usually requires some overt act in favor of the specific intent of the conspiracy

    • Overt act need not be illegal

• When conspiring, you may be convicted of conspiracy and the underlying crime

Mens Rea

• specific intent - to form an agreement and for one or more of the parties to undertake the conduct that constitutes a crime

Describe conspiracy at common law

Actus Reus

• One agrees with such other person that they or one of them will engage in conduct that constitutes such crime

• One agrees to aid such other person or persons in the planning or commission of such crime or of attempt or solicitation to commit such crime

• Can only be convicted of conspiracy, not conspiracy and the underlying crime

Mens Rea

• Purpose of promoting or facilitating the commission of a crime

Describe conspiracy at MPC

Only requires one person

Mens Rea: specific intent/purpose

Actus Reus: requires an overt act - something beyond mere preparation

Describe an attempt

Complete - when the actor performs all that he sets out to do, but fails to attain his criminal goal 

• Ex: When D intends to kill V, buys a gun, loads it, and shoots but misses V 

• Conduct is performed, but desired criminal result is not achieved 

Incomplete - when the actor does some of the acts necessary to achieve the criminal goal, but he quits or is prevented from continuing 

• Ex: When D intends to rob a bank, but a police officer shows up before completion 

What is the difference between a complete and an incomplete attempt 

Mens Rea - specific intent to undertake the crime

Actus Reus - there must be some overt act that brings us into dangerous proximity of completing the intended crime

What is attempt under the common law?

1) Appreciable fragment test (Mims)

2) Physical proximity

3) Indispensable element test

4) Probable distance test

5) Res ipsa/unequivocally test

6) Stokes test

7) Oviedo

What are the different standards of measuring dangerous proximity?