BASIC REQUIREMENTS
Actus Reus Willed bodily movt; omissions; vol. intox. MPC 2.01
Omissions Gen. no duty to act except if duty imposed by statute,
common law duty/relnship (husb/wife; parent/child); contract. MPC 2.01
Mens Rea broad: culpability; narrow: elemental, provd by defn
-Intentionally 1) desire/conscious object or 2) acts w/ knowlg that harm
is virtually certain to occur (syn: willfully)
-Specific-Intent extra purpose (burglary, larceny)
-General-Intent vol. doing of prohibited act w/ extra purpose
MPC 2.02 on Mens Rea: steps:
1) ID material elements of crime + 2) determine mens rea for each
Purposely-conscious objective to engage (conduct+result); knowledge of
circumstance or believes or hopes they exist (circumstance)
Knowingly-aware that conduct is illegal; knowledge of circumstance;
aware result is practically certain to follow
Recklessly-Consciously disregards substantial & unjustifiable risk
Negligently- when D shouldve been aware, inadvertently creates
substantial and unjustifiable risk
*if no mens rea in statute; element established if purpose, know, or reckl.
HOMICIDE
MURDER-killing w/ malice aforethought. Malice:
1. Intent to kill (infer intent w/ deadly weapon rule)
-If Willful, Deliberate & Premeditated M1
2. Intent to inflict great bodily harm M2
3. Depraved Heart (extreme reckless disregard for val. human life M2
(e.g., Russian roulette, shooting in crowded room)
4. Felony-Murder (F-M)-death resulting from commission of a felony
MPC 210.2-Murder-killing purposely, knowingly, or recklessly
manifesting extreme indifference to life (*No F-M)
F-M Rule-strict liab (SL) no regard to mens rea (still req: causation)
If predicate felony is specified (arson, rape, robbry, burgy FM1; if
not, FM2); F-M extends to an accomplice to felony
F-M Limitations:
1) Only inherently dangerous felonies predicate fel=inher. Dang.
-case-by-case analysis; CA-examine predicate fel. in abstract
2) Merger Doctn-F-M only if predicate is independent/collat of homicide
-test: Does not merge if assaultive conduct = indep. felonious purpose
-test: CA: would application of F-M to this felony expand F-M too much?
-test: Chun predicate merges if felony is assaultive in nature
3) Killings Not in Furtherance if homicide did not happen during crime
req: 1)time&distance req. *temporary safety?* 2) causation
-No F-M after fel. has ended (i.e., reached temp. safey); app. dur. escape
-Not in furtherance-if accomplices unanticipated actn was not in
furtherance of the crime (e.g., robbery then accomplice ends up raping!)
-Killings by non-felons: 1) Agency approach-No F-M for killing by
someone other than or s associates (No F-M if accomplice is killed by
cops or victim) REBUTTAL: Provocative Act Doct.-form of DPM
(extrm. Recklessness) if s conduct would have triggered the killing
2)Proximate Cause (minority) F-M applies to any death that is
proximate result of the predicate felony
MANSLAUGHTER unlawful killing w/o malice aforethought.
Voluntary Manslaughter - Must meet:
1) Heat of Passion
2) (Legally) Adequate Provocation (objective)
-no trivial battery, mere words, observation of adultery
-OK for aggravated assault, mutual combat, serious crime re: relative
3) Before cooling time elapses
MPC 210.3 Manslaughter: (1) recklessly w/o manifesting extreme
indifference to value of life; OR (2) murder mitigated by extreme mental
or emotional disturbancefor which there is a reasonable explanation or
excuse (EMED-subjective s viewpoint as he believed ; reas-objective)
Involuntary Manslaughter killing recklessly or w/ gross negligence
(>civil negligence; gross deviation); MPC 210.4-Negligent Homicide
MISTAKE OF FACT gen. failure of proof
1) ID nature of crime (SL, Specific or Gen Intent?) 2) Apply rule
SL MOF is not a defense (no mens rea req.) Typically for malum in se
crimes like child molestation or malum prohibitum crimes, court looks to:
of course). If result is not what was trying to achieve, still on the hook if
the only difference is level of harm or another person or thing was
harmed; or result is same kind of harm and result is not too remote.
ATTEMPT inchoate, a specific-intent crime
Complete attempt-actor performs all the acts that she set out to do but
fails to attain criminal goal
Incomplete attempt-when actor does some of the acts necessary but quits
or is prevented from continuing
RULE: (1) must intentionally commit the act constituting the actus reus
of an attempt; and (2) must perform these acts with the specific intention
of committing the target crime
Mens rea for result crimes: not guilty unless his actions in furtherance
of prohibited result are committed w/ specific purpose of causing unlawful
result. (no such thing as attempted involuntary manslaughter & most states
say no to attempted felony-murder). *mens rea for attempt can sometimes
be > target crime e.g., attempted murder req. specific intent to kill; but
reckless (DPH) can be enough for murder.
Mens rea for conduct crimes: same mens rea for target crime (e.g.,
attempted reckless driving by putting blindfolds before starting car)
Mens rea for Attendant Circumstance: depends, see statutory rape,
some say that if is reckless as to the Vs age, then guilty of attempt.
Others say if offense is SL, then no special requirement reqd.
Actus reus for attempt: (preparation v. attempt): TESTS:
-Last Act-(rejected, impractical) liable only if performed all acts she
believed were necessary to commit target crime
-Physical Proximity-Direct movt toward committing offense; power to
commit crime almost immediately
-Dangerous Proximity-When is dangerously close to success-consider
in terms of 1) nearness of danger, 2)greatness of harm, 3) degree of
apprehension felt
-Indispensable element-No attempt unless possesses necessary
instrumentality to commit crime (like a gun for murder)
-Probable Desistance-Attempt if reaches a point where he wouldve
voluntarily discontinued his efforts to commit crime
-Equivocality Test-Attempt if s conduct alone unambiguously shows
criminal intent.
MPC 5.01 on Mens Rea for Attempt (subjective) 1) Is attempt complete
or incomplete? 2) Is it a result crime or a conduct crime?
-COMPLETE ATTEMPT RESULT CRIME MPC 5.01(1)(b)
must have PURPOSE or BELIEF
-COMPLETE CONDUCT MPC 5.01(1)(a) must have
PURPOSE (ATTENDANT CIRCUMSTANCE Required: It is enough
that the actor possessed mens rea required to commit the target crime)
INCOMPLETE ATTEMPT MPC 5.01(1)(c) Substantial Step
MPC 5.01(2) step must be strongly corroborative of s criminal
purpose (e.g., lying in wait, investigating place, possession of materials)
*MPC 5.01(3) Attempting to Aid: Different from common law, can be
convicted of attempt even if the crime was not committed or attempted by
another if (1) has purpose to aid and (2) assistance would have made
an accomplice [X-reference to MPC 2.06 Accomplice Liability]
DEFENSES TO ATTEMPT
Factual Impossibility-not a defense to a crime; happens when fails to
consummate crime b/c of an attendant circumstance that doesnt know
or beyond her control (e.g., attempt to pick pocket but pocket was empty)
Legal Impossibility-sometimes a defense. thinks hes committing a
crime but commission is impossible because of a factual mistake regarding
the legal status of some attendant circumstance that makes up an element
of the offense (e.g., D receives unstolen property thinking it was stolen)
[*NOTE:you can frame this as factual impossibility, wants it to be legal]
Pure Legal Impossibility-always a defense, when law does not make s
goal illegal (doing something thats legal with a guilty conscience like
selling booze after repeal of prohibition).
MPC 5.01(1)(a)-(b)-impossibility replaced/abolished b/c of focus on
subjective (if D receives unstolen product but believes it to be stolen, shes
guilty under (1)(a) completed attempt, conduct crime
MPC on Aggressors same as C/L but only for deadly aggressors, then
has to break off struggle; if non-deadly aggressor is met with deadly force,
he doesnt lose privilege; limited to same encounter (i.e., before retreat!)
BystanderRiskMPC 3.09(3)-not justified if use of deadly force is reckless
or negligent regarding innocent bystanders
NECESSITY (Choice of Evils) residual justification; affirmative D
RULE: D can use necessity D if he was presented w/ choice of evils he
must choose between violating relatively minor offense to prevent a
substantial harm to person or property; CONDITIONS:
1) clear & imminent danger
2) action will be effective in averting danger
3) no effective legal way to prevent harm
4) harm > violating law
4) legislative purpose hasnt weighed balance of harm
5) clean hands
LIMITATIONS: (1) some states limit defense to natural forces; (2)
@C/L does not apply to homicides; (3) no necessity for intangibles like
economic harm or reputation; (4) NO defense for civil disobedience
PRISON ESCAPES: Unger-threat of rape; Lovercamp-strict
requirements: specific threat of death, GBH, or sexual assault; appeals to
authorities and courts are useless; no violence toward innocent people incl.
guards; prisoner immediately reports to cops once hes safe
MPC 3.02(1) on NECESSITY- justified if (1) he believes conduct is
necessary to avoid harm; 2) harm avoided is greater than harm sought by
law avoiding conduct; 3) no legislative intent to exclude conduct
MPC is broader, it rejects imminency req.; also rejects clean hands; and
applies even for homicide prosecutions
DURESS excuse; affirmative D; coercion by another person
RULE:
1) Actor faced immediate or imminent harm from another person
2) threat was death or GBH to himself or another relative
3) that was reasonable to take seriously
4) actor not at fault for being in that situation
5) trad: no homicide/murder (some jx mitigates via imperfect duress)
*Unlike necessity which is justified and helpers are not liable because no
crime was committed; duress is personal to the actor and any
accomplice is liable because someone has to be blamed!; duress also
applies even if coerced actor commits the greater evil
Prison escapes can be analyzed under DURESS but rarely, because
usually, actor-prisoner is not being coerced to escape; prison escape is
excuse so helpers (helicopter pilot) may be found liable
Situational Duress another excuse, expands duress to cover natural
forces as a coercer (Regina v. Dudley & Stephens)
BWS can also be admitted for duress along with learned helplessness
MPC 2.09(1) RULE: affirmative defense is (1) D was compelled to
commit offense by use or threated use of force and (2) a person of
reasonable firmness in her situation wouldve been unable to resist;
MPC 2.09(2) doesnt apply if actor recklessly placed herself in the
coercive situation. If she negligently placed herself, D is available for all
offenses not requiring negligence.
-MPC abandons imminent threat (see Toscano insurance fraud coercion
case); and is available for homicides too
-Like C/L MPC only applies duress to human coercion (no situational
duress), and protects only bodily injury; BWS tempered by person of
reasonable firmness)
INSANITY excuse; individualized
1) MNaghten Test (Cognitive) insane if, @ time of act, person
suffering from mental disease or defect that resulted in (1) not knowing
the nature and quality of the act or (2) if she knew that, she didnt know
the act was wrong.
-know can be defined narrowly or broadly
-nature & quality squeezing a lemon but really squeezing Vs neck
-wrong AM cts are split bet. Moral v. legal wrong (if moral, whether
D violated societal standards objective)
-many jx follow MNaghten Test, pretty narrow test
2) Irresistible Impulse (Control) Add to MNaghten. Insane if (1) acted
from irresistible & uncontrollable impulse; (2) lost power to choose
between right and wrong and free agency was destroyed; or (3) Ds will
has been otherwise completely destroyed and out of her control
-still narrow, b/c req. total incapacity and excludes non-impulsive
behavior
3) ALI/MPC 4.01(1) Test (1) Mental disease or defect she lacked (2)
substantial capacity to appreciate criminality of conduct [cognitive] or
(3) substantial capacity to conform conduct to requirements of the law
[control]
-uses appreciate not know
-avoids impulse. Also modifies substantial capacity instead of total
incapacitation required by pervious tests
4) Durham Rule (broad, least used) D not criminally responsible if
unlawful act was caused by a mental disease or defect
5) Federal Test By clear and convincing evidence, as the result of
severe mental disease or defect, she was unable to appreciate (1) nature
and quality of conduct or (2) wrongfulness of her conduct
DIMINISHED CAPACITY
Two categories where actors abnormal mental condition short of
insanity will occasionally exonerate or more often, mitigate a crime.
MENS REA FORM FAILURE OF PROOF DEFENSE
- Failure of Proof - evidence of abnormal mental condition is introduced
to negate mens rea (usually). D was so mentally disturbed that D could not
or did not form the mens rea for the crime. Some states limit this defense
to specific-intent crimes like murder
Practically: this functions as a partial defense even when
specific intent crime is mitigated, theres always a general intent crime
that D can be prosecuted for (reduction from FDM to say, SDM).
- No defense approach mental condition is only admissible to prove
insanity, not diminished capacity
- MPC approach: Defense to All Crimes Evidence that D suffered
from mental disease or defect @ time of conduct is admissible if relevant
to prove that he lacked a mental state as an element of the charged offense
DIMINISHED RESPONSIBILITY AFFIRMATIVE DEFENSE
Usually only a defense for murder. Abnormal mental condition partially
excuses or mitigates guilt even if has requisite mens rea for the crime
(very disfavored). RULE: Evidence of mental abnormality can be
introduced to mitigate murder CA Backdoor approach disguising
diminished responsibility as a failure of proof defense by allowing a miniinsanity defense by redefining mens rea definition of malice aforethought
overruled by legislature.
MPC on DIMINISHED CAPACITY 210.3(1)(b) Mitigates murder to
manslaughter is homicide committed as a result of extreme mental or
emotional disturbance for which there is a reasonable explanation or
excuse *Reasonableness of actors explanation or excuse for EMED is
determined from viewpoint of person in actors situation under the
circumstances he believed them to be (cf. EMED for provocation). **See
difficulty: EMED in diminished responsibility cases is hard because
EMED standard is partially objective while diminished capacity is
subjective.
INTOXICATION
Disturbance of mental or physical capacities resulting from intro of any
substance in the body.
Voluntary Intoxication When is culpable for being intoxicated
(Usually, being vol. intoxicated is reckless conduct)
-Failure of Proof #1: MENS REA
can claim that intoxicated actor did not have the voluntary act
requirement (Less common)
-Affirmative Defense/Excuse #1: Temporary Insanity common law
does not recognize this defense
-Affirmative Defense/Excuse #2: Fixed Insanity from habitual use of
intoxicants and disorder remains even when not under the influence
Use traditional insanity defense
Involuntary Intoxication is not to blame for being intoxicated via:
(1) coerced into taking substance; (2) if person ingests intoxicant by
innocent mistake; (3) if actor becomes unexpectedly intoxicated from Rx
(did not know or had reason to know that Rx was likely to produce that
effect); and (4) pathological intoxication temporary psychotic reaction,
applies only if actor had to reason to know he was susceptible to such a
reaction. GEN RULE: involuntary intoxication is entitled to acquittal in
all circumstances in which voluntary intoxication is a defense.
MPC 2.08 on INTOXICATION GEN RULE: is not guilty if
intoxication negates any element of the crime. EXCEPTION: Relates to
crimes of recklessness MPC 2.08(2) if person due to voluntary
intoxication is unaware of a risk that he wouldve known if he was sober,
that unawareness is immaterial for prosecution of crimes requiring
recklessness or +.
-Same with voluntary act if acted while unconscious, then involuntary,
even if self induced
-Intoxication as an Affirmative Defense Even if all elements of the
crime are satisfied, MPC recognizes intoxication as affirmative defense if
(1) the actor suffered from pathological or involuntary intoxication AND
(2) actors condition qualifies under ALI Insanity Test (this is still an
intoxication defense, not an insanity defense)