Common Law vs.

MPC
Common Law ACTUS REUS Voluntary Act: Requires a voluntary and social harm. An act is voluntary if D willed the action or if she was sufficiently free that she could be blamed for her conduct Exceptions: 1. Omissions: --No crime unless there is a legal duty to act. (Status, statute, contract, special relationship, assumption of care, created risk) 2. Involuntary Act --Can negate the action or serve as an affirmative defense. Done in a state of unconsciousness MENS REA Types Intentionally (willfully) to consciously cause the result or when one is virtually certain that the object will occur as a result of Ds conduct. MPC ACTUS REUS Voluntary Act: No person may be convicted of a crime in the absence of conduct that includes of which he is physically capable. Exceptions 1. Omissions --Same as CL criminal liability imposed for the omission of an act which D is physically capable 2. Involuntary Acts --Involuntary acts: reflex, convulsion, movements during sleep, movements under or the result of hypnosis, and unconscious movement. MENS REA Types Purpose Conscious object with conduct & results. Must be aware of the existence or belief or hope that such circumstances do exist. Knowledge Conscious awareness that results are practically certain to occur Recklessness Conscious disregard of a substantial and unjustifiable risk. Negligence Should have been aware of a substantial and unjustifiable risk. (Gross deviation normal standard of care) Difference ACTUS REUS No difference except under involuntary act. MPC extends CL such that acts done under hypnosis and in states of unconsciousness are no action.

MENS REA - MPC splits intentionally into purpose and knowledge. -MPC clear distinction between negligence and reckless; not on the degree of risk involved, but on Ds knowledge of the risk -MPC provides that when it is not clear which element a mens rea applies to, apply it to all elements of the offense -Where the statute is silent on mens rea, at least recklessness is

Attendant Circumstances ? Specific Intent/General Intent Applies to mens rea. Defined by Crime General Intent Only require intent to commit the act constituting the crime. Can infer all mens rea from observing conduct. Specific Intent Intent to do some further act or cause some additional consequence beyond that which must have been committed or cause in order to complete the crime. Acts in addition to general intent. Proof of specific intent is required, but it may be circumstancial. STRICT LIABILITY Public welfare and traditional crimes. Created by statute. -Statutory rape

Attendant Circumstances For a crime requiring a mens rea of: (1) Purpose D must be aware of the existence of ACs or believe or is aware they exist (2) Knowledge Aware that conduct is of that nature or that such circumstances exist: only require high probability of existence (3) Reckless Conscious disregard of substantial/unjustified risk (4) Negligence Should be aware of substantial or unjustified risk.

required. Specific Intent/General Intent exclusively a CL issue

MURDER w/ MA Homicide with malice aforethought. Four possible states of mind. Intent to kill [express malice] One may, but need not, infer the intent to kill from use of deadly weapoon Intent to cause SBI [implied malice] Depraved (malignant heart) = extreme recklessness. Acts in the face of an unusually high risk that conduct will cause death or SBH. Felony Murder Rule Generally guilty if kills another during commission of felony.

STRICT LIABILITY SL crimes are generally restricted to violations and are punishable by fines, not incarceration- public welfare crimes; -Statutory rape MURDER Purposely (no SBI) Knowing (no SBI) Reckless (with extreme indifference to human life) Felony Murder Rule No distinguished FM rule, but MPC raises a presumption of recklessness and indifference to human life if the D during the commission or attempt of certain felonies. However, not absolute, prosecutor must still prove it.

STRICT LIABILITY

MURDER MPC includes GBH under recklessness. MPCs mens rea is equivalent to CLs intent. When MPC uses recklessness as mens rea, it is similar to CLs malignant heart killings

(1) Inherently dangerous test: felony must be inherently dangerous in many jurisd. (2) Merger rule Felony must be independent from murder (3) Causation Limitation *Natural &Probable consequence doctrine PROVOCATION (To mitigate) Must be committed in sudden heat of passion under adequate provocation Heat of passion Adequate Provocation Aggravated assault or battery Mutual combat Serious crime against close relative MANSLAUGHTER 1: VOLUNTARY Voluntary Manslaughter: Homicide without malice aforethought. Heat of passion Intentional killing committed in response to legally adequate provocation MANSLAUGHTER 2: INVOLUNTARY Involuntary Manslaughter Unintended killing. Criminal Negligence: Killing resulting from gross negligence (This would include MPC recklessness as well) Unlawful Act : Misdemeanor manslaughter an unintentional killing that occurs during the commission of an unlawful act. ATTEMPT Mens Rea For the Attempt Specific intent to commit the acts or cause the resulting target crime. For the Target Crime Intent

PROVOCATION (To mitigate) Extreme Mental or Emotional Disturbance (EED) Homicide committed under the influence of EED MPC equivalent of provocation

PROVOCATION MPC requires that D be aware of the risk being taken (recklessness). MPC use of EED is a broader form of the CL provocation defense MANSLAUGHTER

MANSLAUGHTER Reckless Unlike reckless M, here the conduct, although reckless, does not manifest an extreme indifference to the value of human life. (Mens rea = normal MPC mens rea) Extreme mental or emotional disturbance (EED) NEGLIGENT HOMICIDE Negligent A criminally negligent cilling.

NEGLIGENT HOMICIDE MPC N.H. = CL Involuntary MS

ATTEMPT Mens Rea For the attempt Purpose or knowingly engages in conduct which would constitute the crime if ACs were as D

ATTEMPT Under MPC, D may still be held for the attempt even if the target offense is 2

necessary for the target crime (Specific or general depending on the offense). For strict liability, must show only intent to attempt, no target crime mens rea. Reckless crimes Courts generally do not try for attempts of reckless crimes, and negligent crimes legally impossible Actus Reus Tests Proximity test, etc. (See Notes) Attept is a misdemeanor SOLICITATION Actus Reus Consummated when the actor communicates the words or performs the physical act that constitutes an invitation, request, command, or encouragement of the other person to commit an offense. Mens Rea: Solicitation is a specific intent offense. Solicitor must intentionally commit the actus reus of the request with the specific intent that the person commit the target offense. Unsuccessful Solicitation: A solicitation does not occur unless the words or conduct of the solicitor are successfully communicated to the solicited party. (State v. Cotton) Relationship of Solicitor to Parties: A person is NOT guilty of solicitation if they just ask another person to assist them with a crime. Must ask them to do crime themselves.

believed them to be. For the target crime D acts with the kind of culpability otherwise required for the commission of the offense. However, here too, the mens rea for attempt is often higher than the one required for the target offense. Generally, the required mens rea is purpose. Actus Reus D must perform a substantial step toward committing the crime. Ds conduct must be corroborative of Ds purpose Attempt is a felony SOLICITATION Actus Reus Consummated when the actor communicates the words or performs the physical act that constitutes an invitation, request, command, or encouragement of the other person to commit an offense. Mens Rea: Same as C, different language. A person is not guilty of solicitation unless he acts with the purpose of promoting or facilitating the commission of the solicited offense Unsuccessful Solicitation: One with an unsuccessful attempt to communicate a solicitation is guilty of solicitation. Relationship of Solicitor to Parties: Person is still guilty of solicitation no matter how they ask them to contribute to crime. Defense: Renunciation: If solicitor complete renounces intent and persuades solicited party not to

neither committed nor attempted by D or anyone else. CL no definitive Actus Reus test MPC does not use GI/SI Most states no attempt for Felony Murder

SOLICITATION MPC doesnt recognize unsuccessful solicitation. CL not guilty if just asking to assist with crime, MPC guilty for that. MPC has a defense of renunciation.

commit the offense.

CONSPIRACY Actus Reus Agreement to commit criminal act or series of acts, or to accomplish a legal act by unlawful means. Object of Agreement - Need only be unlawful/wrongful Nature of Agreement Need not be written or even express Act doctrine No CL requirement; most jurisdictions now require overt act. Merger Does not merge into an attempt or the completed offense Mens Rea Specific intent with 2 parts: (1) Intent to agree, (2) Intent to carry out target crime Some courts allow conviction if the mens rea to target crime is merely knowledge ACs Court has held that mens rea is the same as for the substantive crime, even if it is strict liability. Number of parties needed Two or more with the requisite mens rea (Plurality) Punishment Sometimes misdemeanors, usually graded in relation to target offense Pinkerton Test All members of a conspiracy can be held as accomplices of the crime and of any foreseeable result of it. Liability holds even if coconspirator did not assist perpetrator

CONSPIRACY Actus Reus Agreement to commit a crime; attempt to commit a crime; solicit another to commit an offense; aid another in planning or commission of an offense. Object of Agreement Must be a criminal act. Nature of Agreement ? Act Doctrine: No overt act is required for serious (1st-2nd deg) felonies, but required for all other offenses. Merger Merges unless there are further conspiratorial crimes to be carried out. Mens Rea Purpose to promote of facilitate the target crime. (Mere knowledge is not usually enough but can be when combined with a stake in the success of target crime). ACs Code is silent here, leaving court to decide Number of Parties Needed One with the requisite mens rea (Unilateral) Punishment - Punishment is same for conspiracy as for target crime except first degree. Pinkerton Test Rejected. If the conspiracy goes beyond intended purpose, not guilty of foreseeable crime unless aided and abetted. Defense Renunciation

CONSPIRACY -MPC knowledge is not enough. CL knowledge may be enough. MPC does not speak on ACs Object of agreement must be criminal under MPC and unlawful/wrongful in CL MPC is unilateral CL lets D off if state cannot prove that there was another person with requisite MR Overt act requirement differ. MPC merges, CL doesnt MPC heavier punishments MPC rejects Pinkerton CL ACs is counterintuitive; how can you agree to do something when unaware Hearsay evidence may be brought in to prove conspiracy but not the substantive 4

offense. Defense Abandonment

SELF DEFENSE Necessity Use only amount of force necessary and DF only use to repel Appears to be only option (Belief of threat) Genuine and reasonable belief (even if incorrect) use of force is Necessary and P. Proportionality Response must be proportional. Retreat Required Majority: no retreat (American stand your ground) Minority: Retreat to the wall. Exception, castle doctrine. Immediacy Threat must be immediate (not the force) Non-Aggressor Clean hands requirement, must not be aggressor. BWS

SELF DEFENSE Necessity Force must be necessary to protect against death, SBI, kidnapping. Belief of threat Purely subjective Proportionality Response must be proportional Retreat Required If D knows he can retreat to complete safety Exception: at work if not coworker or home.

SELF DEFENSE MPC is purely subjective rule. Actor has to believe use of force is immediately necessary. MPC lacks immediacy requirement MPC lacks strict proportionality MPC Retreat requirement: Only retreat if you know there to be complete safety. MPC Castle Doctrine; no retreat if in home/place of work

BWS

BWS

DURESS (excuse) Three Elements: An immediate threat of death or serious bodily injury A well-grounded fear that the threat will be carried out No reasonable opportunity to escape

DURESS (excuse) Coercion to commit a crime D must show that he committed the offense because he was coerced to do so by another persons use, or threat to use, unlawful force against him or a third party.

DURESS No immediacy requirement for MPC

Coercion to commit a crime Threat Human Forces Coercion must (1) A person of reasonable be from human forces (threat of firmness would have committed 5

death/SBI) Threat (1)Another person threatened imminently to kill or grievously injure her or another person unless she committed crime; and (2) She is not at fault for exposing herself to threat. Nature of threat: (1)Deadly force is required lesser threat such as minor physical injury will not excuse (2)Deadly force must be imminent, present, and impending (3)Reasonable belief the Ds actions must be based on reasonable belief that coercer is serious about threat and has capacity to harm. Homicide not covered NECESSITY (justification) Elements An actor is justified in committing an offense if the actor is substantially certain that these factors exist: (N-I-P) Necessary - Committing the offense is necessary to prevent a harm If any lawful way to prevent harm, actor cant use necessity defense. Imminent - The harm is imminent Prevention - Actor believes that failing to prevent harm would be worse than offense Substantially Certain The actor cant commit an offense because he believes a harm will probably occur if he fails to act, or that the harm is probably imminenthe must be sure about the facts. (This is a

the offense. (2) Cant put himself in the situation Nature of coercion: Unlike common law, neither deadly threat nor imminancy requirement.

NECESSITY (justification) Elements (1)Necessary (2)Chose lesser of two evils (3)No other law speaks to situation Reasonable Must have a reasonable belief Mens Rea Cant do necessity recklessly or negligently if the situation was brought about by the defendant in a reckless or negligent manner.

NECESSITY MPC doesnt require imminency MPC reasonable belief vs. Common Law substantial certainty No natural force requirement for MPC (not really anymore for CL either) MPC does not rule out homicide

subjective standard, actor doesnt have to be correct) Proportionality: If committing the offense would create worse situation than allowing the harm to occur, the actors defense will fail. Reasonable Belief: An actors belief that he needs to choose lesser of two evils must be reasonable. Exceptions Blameworthiness: If DF created harmful situation, no necessity Homicide: At C.L. a necessity defense cannot be used to justify a homicide. INSANITY MNaghten Rule D is insane if, at the time of the criminal act, he was laboring under such a defect of reason, arising from a disease of the mind that he (1) did not know that nature and quality of the act he was doing; or (2) if he did know it, he did not know that what he was doing was wrong. Irresistable Impulse test D was insane if (1) She acted from an irresistible and uncontrollable impulse; (2) She lost the power to choose between right and wrong and to avoid doing the act in question, as that her free agency at time destroyed, or (3) Ds will destroyed to point beyond her control. Product (Durham Test) D would not have committed offense, but for not being mentally insane.

INSANITY Substantial Capacity One is not responsible for his criminal conduct if, at the time of the act, as a result of mental disease or defect: D lacked substantial capacity to (1) appreciate the wrongfulness/criminality of Ds conduct and (2) conform Ds conduct to the requirement of the law.

INSANITY MPCs incorporates both a cognitive and volitional test. MPC lacks the impulse language MPC makes it easier to find insanity because of appreciate language MPC does not require full cognitive lost, partial works!

MISTAKE Mistake of Fact Must negate mens rea of crime charged. Specific Intent Crimes N/G if mistake of fact was in good faith; can be unreasonable General Intent Crimes N/G if mistake of fact was REASONABLE and in good faith. Moral Wrong Test Some CL jurisd. punish for morally-wrong conduct Legal Wrong Test If believes was committing lesser illegal crime, will be guilty of higher/real offense Mistake of Law No defense, but exceptions. Exceptions (1)Authorized Reliance Doctrine = Must have reasonably relied on official authorized statement that was defected. OR (2) Lambert Principle = If omission and crime with no notice. Violates due process. IMPOSSIBILITY Legal Impossibility (A Defense) Pure Legal Impossibilty: When an actor engages in lawful conduct that she incorrectly believes constitutes a crime. . Hybrid Legal Impossibility: When an actors goal is illegal, but commission of the offense is impossible due to a mistake by the actor regarding the legal status of some factual circumstances relevant to her conduct. .

MISTAKE Mistake of Fact Must negate the mental state required to establish any element of the offense Legal Wrong Exception Will hold D for a lesser offense when he believed he was committing crime, but was a lesser crime. Strict Liability Like CL, no MoF for strict liability.

MISTAKE Examples MoF 1. D steals Diamonds believing theyre glass. MPC = petty larceny; CL = grand larceny 2. D steals glass believing its diamonds. MPC = petty larceny and attempted grand larceny, CL = petty larceny and attempted grand larceny

Mistake of Law No defense unless there is an express negation. Specification in Statute that knowledge of law is required.

MoL CL and MPC approaches similar. In gen, unless falling into unrecognized exception, ignorance of law is no defense.

IMPOSSIBILITY IMPOSSIBILIITY Legal Impossibility Rule: If not a crime, even if DF believes it is; it is impossible to commit and qualifies for the defense. --If there is no law; there can be no crime. --If there IS a law and you dont break it, but you think you do, you are guilty of attempt. Factual Impossibility Same as CL

Factual Impossibility (No Defense) when an actors intended end constitutes a crime, but he fails to complete the offense because of factual circumstances unknown to him.