Actus Rea Common Law Model Penal Code Requires affirmative, voluntary act; intention to commit There must

be a voluntary act or omission a crime is insufficient to convict if there is no evidence of an act putting that intent into effect. Conduct: physical activity (affirmative act), possession constitute act of driving vehicle must be an affirmative act by (Taft) If knowledge that actions could cause harm to another (i.e., you know you can blackout and drive anyway), act constitutes crime (Decina) Possession: Mere presence + Intent to posses + power to possess = conviction Mere presence possession

Mere movement of vehicle does not necessarily

Result: consequence Circumstance: external conditions when engages in conduct Possession: Possession is an act if: knowingly procured OR knowingly received the thing OR was aware of control for sufficient period of time 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

(Kimbrellwatching drugs)

Omission: There must be a duty statutory status relationship (Biddle)

contract (Moorechauffer) 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 omissiondeath = murder Negligent omissiondeath = manslaughter

Mens Rea Common Law Criminal Negligence Gross lack of competency Gross inattention Criminal indifference Model Penal Code Criminal Negligence

Should be aware of substantial and

Gross deviation = recklessnessaware of substantial risk created by

conduct and disregards that risk (Peterson)

Howard) Subjective Test Specific Intent Crime: Requires actual intention to do more than actus reus, not just general blameworthiness results in a substantive crime Malice aforethought specific intent to kill (Shea) General Intent Crime: Intent to commit an act, serves as actus reus

Homicideneg. homicide if acted with criminal negligence (State v.

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

General malevolence is not an attempt to commit a crime even if it

(See above)

Common Law Majority subjective test Minority objective test Deliberate ignorance and Positive Knowledge have equal culpability

Knowledge Model Penal Code Subjective test

If one is aware of high probability of existence of a

Knowingly is not limited to positive knowledge, but

includes the state of mind of one who does not posses positive knowledge only b/c it consciously

particular fact, unless he actually believes it doesnt exist, he is still culpable If there is a high probability of existence, knowledge is established

avoided it.

Willful blindness (Jewelmarijuana)

Common Law

Willfulness Model Penal Code ?

Intentional or deliberate a voluntary, intentional violation of a known legal duty means no more than that the person charged w/ duty knows what he is doing. It does not mean that, in addition, he must suppose that he is breaking the law. Common Law Malum prohibita Statutory rape, bigamy No need to show culpable mental state (Transferred Intent) Murder Common Law 4 ways to satisfy mens rea requirement: (1) Intent to kill (2) Intent to commit serious bodily injury (3) Reckless/extreme indifference to value of human life (depraved heart) (4) Intent to commit dangerous felony no bootstrapping allowed (felony must be independent)People v. Wilson

Strict Liability Model Penal Code Can only be a violationminor offenses, not crime; fine/forteiture

Model Penal Code 3 ways to prove (1) Purposefully, knowingly (differs from willingly did away with malice aforethought) (2) Recklessly manifesting extreme indifference to human life (depraved heart, subjective view of recklessness) (3) 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: circumstances surrounding it, but the matters immediately antecedent & having direct causal connection w/ it as well as acts immediately following it 1st degree: Poisoning, Lying in wait, Willful, Deliberate, Premeditated, Felony 2nd degree: Depravity of heart, No intention to kill

Embraces not only the actual facts of transaction &

Only 1st 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 Voluntary: Intent to kill, but in the heat of passion with no malice aforethought Model Penal Code No distinction between voluntary and involuntary

recklesslyaware of the risk, but consciously

Objective test for sufficiency of provocation

disregards it; advertant; subjective; gross deviation disturbance (heat of passion)reasonable person in actors circumstances as he believes them to be (subjective)

4 requisites 1) acts in response to provocation which would cause a reasonable man to lose his self-control (actualmere words are not enough) 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

purposeful, but committed under extreme mental

2nd degree
Negligent Homicide Committed negligentlyought to have been aware of the risk; inadvertent; objective

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 preparations are made Dangerous Proximity Test: looks at what is left to be done yet not always required focus on the actors actions beyond mere preparation Model Penal Code particular result which is an element of the crime Belief that it will cause the result without further conduct 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 Six circumstances which shall not be held insufficient as a matter of law: lying in wait, searching for, following victim reconnoitering the place contemplated possession of specially designed materials possession of materials at or near place of commission soliciting an agent to engage in conduct Legal Impossibility: The only defense

does anything with the purpose of causing a

if the last proximate act is done, always sufficient,

must have culpability to commit a crimethere can be no attempt of negligent homicide

unlawful entry

Legal Impossibility: 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: circumstance unknown to the actor prevents him from bringing about that objective Never a defense Hybrid Impossibility: (Brickey)

when s actions sets in motion, even if fully carried

No factual Impossibility Defense

Objective of is proscribed by criminal law, but a

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 Requesting someone to commit a crime Communication not required of conduct indicates solicitation No corroboration needed No overt act required Falls short of an attempt Model Penal Code 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

A substantive crime in and of itself

Solicitation merges into conspiracy

In some jurisdictionsattempted solicitation

Abandonment Common Law Involuntary abandonment never a defense Not a defense if the crime is completed 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

Conspiracy Common Law 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 coconspirators substantive crime even if committed by only one member, without a new agreement Once agreement made, no withdraw from conspiracy, only from substantive offense Whartons 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 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 Some jurisdiction require actual action: mere preparation may be okaybut more than knowledge, promotion of venture If tried in same trial, need two for conviction; if separate trials, can have just one conspirator Model Penal Code 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

All members of conspiracy may be liable for the

For the individual to terminate his part in the

conspiracy, must advise others of abandonment or inform law enforcement of the conspiracy

Unilateral Theory: individual is liable if he agrees with another person Rejection of Pinkerton: just being a member of a conspiracy, with no other aiding, is not enough to be convicted of substantive crimemust use accomplice liability 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 Code

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 Must have same mens rea as principal Accessory Before the Fact: Aids and abets the commission of a crime 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

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

Can be constructivea look out

Not present at the time of the crimemerged with

conviction of AAF. Liable for all foreseeable consequences

Conviction of principal is not condition precedent to

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

Ignorance or Mistake Common Law Mistake of Law: Never a defense (traditional view) Follow MPC (modern view) Model Penal Code Mistake of Law: A defense if it negates the mental state required State of mind established constitutes defense

Mistake of Fact:

with another offense had 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 error Mistake of Fact:

Not available as a defense if would have been charged

D only for specific intent crimesmust lack

mens rea for crime Must be an honest mistake Mistake of age is no defense

Based on s subjective belief Mistake of age is no defenseno defense if under 10

Intoxication Common Law Model Penal Code

Voluntary Intoxication:

Voluntary Intoxication:

Not a defense but may be used if it negates specific

intent

Defense if it prevents an accuse from having the

Inadmissible to negate general intentnegligence

Involuntary Intoxication:

required state of mindbut not always a complete defense Does not negate recklessness or criminal negligence Involuntary Intoxication: Presence or threat of force/duress

Defense if intentionally ingests a substance, but

mistakenly believes that it is not intoxicating