Common Law Actus Reus 1.

Has to be an act 2. No actus reus where actions compelled by govt 3. Has to be truly voluntary (concept of volitionality) 4. Omissions not considered actus reus under typical circumstances, but there are exceptions

MPC 2.01 Requirement of Voluntary Act; Omission as Basis of Liability (1) voluntary acts (2) enumerated not voluntary acts w/in meaning of this Section (3) omission (4) possession

Mens Rea

Variety of terms, or Intent: conscious object/purpose or knowledge to a virtual certainty Knowledge (actual knowledge or willful blindness): aware of the fact or correctly believes in fact at issue Distinction btw General Intent: the voluntary/ intentional commission of the morally blameworthy act (actus reus) ex: breaking & entering Specific Intent: must be GI + doing the morally blameworthy act to achieve an effect or a purpose. Committed the voluntary or intentional act w/ an intent to do a future act or the achievement of some further consequence (or act of consequence). ex: burglary Courts use canons of construction to discern legislatures intent as to what mental state is required, and what element(s) of the crime the mental state modifies

2.02 General Requirements of Culpability (1) purposefully conscious object and aware of attendant circumstances (2) Knowingly aware of attendant circumstances; certain of result (3) Recklessly consciously disregards a substantial and unjustifiable risk; (objective/subjective standard reckless disregard if it is a gross deviation fr. Lawabiding person in actors situation) (4) Negligently should be aware, but failure to perceive risk is gross deviation from standard of a reasonable person in the actors situation 2.02(3) if no MR specified by statute default is purposely/knowingly/recklessly 2.02(4) applies to all material elements 2.02(7) Knowledge: if a person is aware of a high probability of the existence of a particular fact which is an element of an offense, unless he actually believes that it does not exist. 2.02(8) Knowledge satisfies wilfullness

Transferred Intent Defendant who attempts to kill one person but accidentally kills another instead is criminally liable. Suesser (cited in Scott p 210) Birreuta (if you kill both intended and unintended victim, dont need to punish more intent is used up)

2.03(2): Divergence Between Result Designed or Contemplated and Actual Result or Between Probably and Actual Result Same as CL

Strict Liability

Morissette: mere omission of intent from statute does not eliminate that element from the crime (courts generally find some implicit MR) Garnett: Courts can use plain language and legislative intent to find intentional omission of MR requirement to mean that statutory rape is a strict liability crime.

2.05: (1)(a) Rejects strict liability (culpability requirements 2.01, 2.02) except for violations (as opposed to crimes); (b) by legislative purpose in statute

Mistake & Ignorance

relies on distinction btw general and specific intent Mistake of fact: Specific intent crime: an honest mistake that negates the specific intent required for the commission of the offense is a complete defense. The mistake need not be reasonable as long as it is in good faith. General intent crime: a mistake of fact that negates an element of the crime must be both honest and reasonable to exculpate Some CL jurisdictions use a moral wrong or legal wrong test (e.g. Bell v. State p. 238)

No fact/law distinction 2.04: Ignorance or mistake as to a matter of fact/law is a efense if: (a) the ignorance or mistake negatives the purpose, knowledge, belief, recklessness or negligence required to establish a material element of the offense (b) provided by law (2) not a defense if D would be guilty of another offense had the situation been as he supposed. but available for mitigation (Legal Wrong Doctrine) (3) is a defense if (a) no notice or (b) in reasonable reliance upon an official statement of the law, afterward determined to be invalid/erroneous, (i) in a statute; (ii) judicial decision; (iii) administrative order; (iv) official interpretation of the public officer or body charged by law w/responsibility for the interpretation (4) burdenof proof on defendant

Mistake of law: Entrapment by Estoppel: an affirmative defense to Ds who commit crimes upon reliance on official statements of the law, whether set forth in judicial rulings or in oral or written statements by officials. U.S. v. Clegg and Tallmadge (turns on apparent authority)

Regina v. Prince: if the Ds conduct is morally wrong there is no violation of the culpability principle if the conduct is criminally punished w/out regard to MR Bell: Legal wrong doctrine Causation Must prove both: actual/but-for cause proximate cause CL apparent Safety doctrine 2.03 (1) Conduct is the cause of a result when: (a) it is an antecedent but-for which the result would not have occurred, and (b) the relationship btw conduct and result meets any addl. Causal reqs in the law

Homicide: Under both common law and MPC approach, malice aforethought doesnt mean evil, its a term of art for the mens rea of murder

Unjustified and unexcused (unlawful) killing of another human being 2 main categories: murder: the unlawful killing of a human being by another human being w/malice aforethought

MPC: defines homicide as a fxn of its mens rea terms Homicide: purposeful, knowing, reckless, or negligent killing of another human being Murder: either purposely Manslaughter: unlawful killing of or knowingly; or a human being by another human recklessly w/extreme being w/out malice aforethought.: indifference to human life voluntary (provocation); and (*important for involuntary (culpable negligence) distinction btw murder 4 Intents that support Malice: and manslaughter Intent to kill (express malice) manslaughter is not extreme indifference/just An intent to commit serious indifference) bodily injury (implied malice) there are no degrees for murder/homicide in the Depraved heart (complete/ MPC conscious disregard for human life) 210.1: definition of criminal homicide Felony murder rule (have an 210.2: murder (a) intent to commit the underlying purposefully or felony during the course of which knowingly or (b) somebody is injured/killed) reckless/extreme Common law tradition of indifference; or felony subdividing murder into degrees murder (hierarchy of severity): 210.3 manslaughter (a) 1st (punished most severely): recklessly, or (b) murder premedication (advance mitigated extreme mental reflection)/deliberation (quality/ or emotional disturbance, undertaken w/a cool head) reasonable from viewpoint of a person in murder using a means specified the actors situation under by the statute/special means the circumstances as he (poison or explosive device or by believes them to be lying in wait) (objective/subjective standard) murder during the (attempted) No distinction for commission of a specified felony voluntary/involuntary (1st degree felony murder) this is really controversial, we do it for policy reasons)

CPC 187: murder is the unlawful killing of a human being, r fetus, w/malice aforethought (depraved heart murder 188 implied malice) 188: malice may be express (deliberate intention unlawfully to take away life) or implied (no considerable provocation or when circumstances show an abandoned and malignant heart) 189: 1st degree: premed/delib premed/delib special means felony murder discharging a firearm from a motor vehicle 192: Manslaughter w/out malice; 3 kinds: (1) voluntary/sudden quarrel/heat of passion (2) involuntary (3) vehicular

194: 3 years and a day rule creates rebuttable presumption that the killing was not criminal (most other jxns 1 yr and a day) 195: excuses for homicide: 1. Accident, in doing lawful act, usual/ordinary caution, w/out unlawful intent; 2. Heat of passion, sudden and sufficient provocation, combat (w/no undue adv., no dang. Weapon, killing not cruel/unusual) CAs provocative act murder under depraved heart murder theory, anyone who initiates a gun battle, where 3rd party kills someone else is guilty of 2nd degree murder

2nd all other murder Special rules: year&day; deadly weapon rule

Provocation/ voluntary manslaughter

Reasonable Person Test (objective - replaced category test). Jury must find: D actually acted in heat of passion Heat of passion was provoked by an act/event that would have provoked a reasonable person to lose self control The D didnt have sufficient time to cool off btw the provocative act and killing Reasonable person would not have sufficient time to cool Causal connection btw provocation, passion, and killing This is up to the jury to decide what situations legally constitute adequate provocation (ex: Ppl v. Berry)

210.3(b)Extreme mental/emotional disturbance test (subjective)

Rape

3 basic sexual offenses: forcible rape (of a woman not wife) statutory rape sodomy Force resistance Consent (Barnes preferred modern principle) Note: 1 and 2 - old standard (Rusk and Alston - physical force and resistance overcome) MTS - uses a forcible rape standard but moves towards standard of force used to achieve sex is all thats needed when theres no consent Ask 3 questions: what constitutes consent? always explicit? who can consent? (review Garnett and statutory rape) withdrawn consent

MPC 213.1 (1) Rape (2nd deg felony): a male who has sex w/ a female not his wife by force/threat of imminent death, SBI, etc.; or impairment; or unconscious, or <10yo

CA 261: (makes a distinction btw spousal and non spousal rape - still basically CL) victim not the spouse where victim not your spouse, sex under the following circumstances can be rape: 1. disability (perp has to know) 2. by force/violence 3. ability to resist affected by alcohol or drugs (perp has to know) 4. unconsciousness/ asleep (perp has to know) 5 -7. [more unusual types] only thing that limits when you can report is statute of limitations (difference w/ 262)

CA 262: covers spouses, and covers same enumerated offenses - one thing different subsection: if your spouse is disabled, then the status will not be rape reporting requirement: victim of rape has to report it w/in a year to a one of of designated ppl - or else no prosecution - purpose: prevent it from being used after the fact, harder to verify; timeframing - the repeat player problem, have to narrow the timeframe in order to gage validity.

Self Defense

3 components: necessity - someone using or threatening force against you imminence - force is actually on the precipice of happening proportionality - when you should be allowed to use deadly force or not, in most CL and in MPC deadly force is only allowed when you are threatened w/deadly force, or threat of forcible rape Retreat: in most jur's if someone threatens u and its immediate, you don't have to w/draw yourself to retreat Aggressors - no self defense if you initiated the force; may make some limited claim if the other person responds w/out of proportion violence *most important thing: is how 3 components are analyzed, all turn on questions of reasonableness habitation: deadly force permitted if occupant of a dwelling reasonably believes such force is necessary to prevent imminent unlawful entry and the intruder intends to commit a felony or cause injury to the occupant or another occupant of the dwelling. force is reasonably necessary to prevent entry (a) " ..[1].." and (b) also thought that the intruder had an intent to commit a felony or cause injury therein (a) "...[1]..." and (b) also commit a forcible felony or great bodily injury murder, no self def unreasonable but good faith belief that force is necessary, or escalate an attack by nondeadly force w/deadly force Defense of others act at peril

3.04 Use of force in Self protection (1) when actor believes such force is immediately necessary (2) limitations: (b) not if you provoked it or you could safely retreat 3.05 Use of force for the protection of other persons: justifiable if (a)would be justified in protecting himself under 3.04; (b) under circumstances as the actor believes them to be, the person he seeks to protect would be justified (c) actor believes intervention is necessary 3.06 Use of force for protection of property: when believes force is immediately necessary (a) to prevent or stop unlawful entry (d) use of deadly force is not justifiable unless: (i) being dispossessed of dwelling (ii) arson, burglary, robbery, or felonious theft or property destruction and (a) employed or threatened deadly force, use of force other than deadly force would expose actor or another to danger of SBI MPC 3.09 (2) reckless or negligent belief about the necessity of force, or reckless or negligent in acquiring or failing to acquire material knowledge concerning the justifiability of use of force - no justification defense based on recklessness or negligence. Guilty of a less serious crime which requires proof of recklessness or negligence as the mental state.

CPC 197: homicide justified: (1) resisting attempt to murder/felony/GBI (2) in defense of habitation, property, person against violence or surprise felony or entering habitation (3) lawful defense of another person (limited) (4) necessarily committed in attempted lawfully to apprehend someone for committing a felony, surpressing a riot, or keeping the peace

(objective reasonableness)

Imperfect Self Defense

Necessity

*balance of harms -legislature has not foreclosed a necessity defense *causal connection btw D's illegal act and harm D sought to avoid -no effective legal alternative available *clear and imminent danger -D was not at fault for creating the dangerous situation * all jxns

MPC 3.02 -balance of harm -no special defense already available for your situation - can't be foreclosed by the legislature diff btw CL and MPC: - no clear and imminent danger requirement in MPC -no limit for homicide in MPC (homicide is absolutely foreclosed in CL - the only possible loophole w/b felony murder, b/c for felony murder you have to be convicted of the underlying felony - could use necessity as a defense to the underlying felony, which would knock off the attached murder charge)

Duress: -CL doesn't allow as a defense to homicide -MPC has no explicit imminence requirement (but comes into play in the reasonableness analysis) -obj v. subj -CL rule is more challenging (GBI or death) MPC is just use of force or threat of Intoxication

response to imminent threat of GBI or death -reasonable fear that threat would be carried out unless they committed the crime -no reasonable opportunity to escape

1) coerced to do so by use/threat of unlawful force against his person or another, that a person of reasonable firmness in his situation would have been able to resist (note objective standard is different from CL - seems to be a subjective standard) (2) not available if you recklessly or negligently put yourself in the situation to be coerced (3) presumption that a woman acting in the presence of her husband is coerced is abolished (4) if you would otherwise be justified under (3.02 necessity), the duress defense is still available (no other justification limit - compare to necessity which is limited)

Traditional CL rule: no defense for activities premised on the consumption of alcohol modern rule: split between: involuntary intoxication (almost always a complete defense if its legitimate) voluntary intoxication: -general intent: not a defense (ex: rape is a general intent crime so ppl can't use voluntary intoxication as a defense) -specific intent: only knocks down to underlying general intent crime Modern trend: get rid of voluntary intoxication defense entirely (morally blameworthy) The only condition we concern ourselves w/ is involuntary intoxication Not an ofcially recognized defense, but can be used to mitigate as either provocation or extreme mental/emotional distress; only usable in jurisdictions where defenses are based on the 's subjective experience, rather than objective reasonableness

under MPC 2.08, intoxication is not a defense unless it negates an element of the offense (MR); is not available when recklessness is the MR and the intoxication was voluntary; is not a mental-defect under 4.01; if it is involuntary or pathological it is an afrmative defense

Culture

Insanity

under the common law (M'Naghten test) the must prove that he is not culpable because either (1) he did not know the nature or quality of the crime, or (2) if he did know what he was doing, he did not know it was wrong; this is a strict standard that requires that the be incapable of understanding the wrongfulness of his actions, and also that he not know the illegality under the common law diminished capacity defenses are articulated as a (1) mens rea variant (shows that dim cap negates MR for crime, case-inchief defense) or (2) partial responsibility variant ( argues less blameworthy than another would be b/c of illness/defect, can be charged with l.i.o. in this case)

under the MPC 4.01 the defense is available when, as a result of mental disease or defect, the actor "lacked substantial capacity to appreciate the criminality or wrongfulness of his conduct."; this is more relaxed than the CL standard and allows for there to be more situational evidence

Diminished Capacity

MPC 4.02 governs diminished capacity; (1) evidence that the suffered from a mental disease or defect is admissible whenever relevant to prove did/did not have MR that is element of the offense (2) when considering the death penalty, evidence of diminished capacity to appreciate the wrongfulness/criminality of the conduct or to conform conduct to requirements of law was impaired b/c disease or defect is admissible in favor or imprisonment v. death

MPC 4.03 says that diminished capacity/insanity defense must be entered within 10 days of entering plea of not guilty and if acquitted for this reason, the verdict must say so California does not recognize diminished capacity as a defense post-Dan White's Twinkie Defense to the murders of Harvey Milk and the SF Mayor

Attempt

under OLD common law, attempt was dened as "act done with intent to commit a crime, tending but failing to effect its commission"

Under the MPC 5.01, the test focuses on the "substantial step" taken towards completing the crime (what WAS done); requirements (a) purposely engages in conduct that would be the crime under circumstances he thought to be, (b) does the act that would have caused the result intended, (c) takes substantial step toward the ultimate goal

under OLD CL rule, most attempts are classied as misdemeanors regardless of seriousness of crime attempted under modern common law, attempt to commit a felony is treated as a felony, attempt to commit mis-d is a mis-d, and in either case it is treated as a step below in seriousness than the target offense (att. 1st deg murder punished as 2nd deg. murder); under the Common Law, most tests on attempt focus on the part of the act NOT YET committed Solicitation

MPC 5.01(2) denes what constitutes a "substantial step": (a) lying in wait, (b) enticing/seeking to entice victim to go to place where crime will happen, (c) reconnoitering the place contemplated for commission of crime, (d) unlawfully entering a structure, vehicle, or enclosure where crime will be committed, (e) possession of material to be employed in the crime that serve no lawful purpose under circumstances, (f) possession, collection, fabrication of materials to be employed in crime if such possession/collection/fabrication serves no lawful purpose under circumstances, (g) soliciting an innocent agent to engage in conduct constituting an element of the crime

5.01(4) denes renunciation of criminal purpose: it is afrmative defense that the abandoned effort or otherwise prevented it from happening if it is a complete and voluntary renunciation; does not apply to accomplice who did not join abandonment; not voluntary if abandoned in anticipation of apprehension, detection, or b/c conduct made more difcult

MPC 5.02: (1)denes solicitation as the purpose of promoting or facilitating the commission of a crime by encouraging or requesting another person to engage in conduct that would constitute such a crime; (2) it is immaterial if the solicitation does not reach the intended party; (3) it is an afrmative defense that the actor, after soliciting another person to commit a crime, persuaded him not to do so or otherwise prevented the crime if it is a complete and voluntary renunciation of the criminal purpose

Conspiracy

under traditional common law, agreeing to commit a crime is a crime in itself (conspiracy) conspiracy: must be made by 2 or more people to commit 1 or more crimes; it is not necessary to prove that the Ds came close to completing the target act, the agreement itself is a crime

in common law jurisdictions, the conspiracy charge does not merge into the target offense in most common law jurisdictions today, there must be an "overt act" in furtherance of the conspiracy in order to demonstrate the existence of the conspiracy; the overt act does not have to be illegal or even central to the ultimate goal to actually satisfy the requirement for conspiracy

under the MPC 5.03(1), conspiracy must be between 2 or more people, have a crime as it's object (not so under the CL), or agree to aid the other persons in committing the crime; (2) guilty of conspiracy with other persons even if he does not know their identity (3) if a person conspires to commit a number of crimes he is guilty of only one conspiracy so long as multiple crimes are the object of the same agreement/ conspiratorial relationship (4) co-conspirators may be charged together (5) must be an overt act accomplished toward crime for conspiracy to be proven (6) it is afrmative defense if a person renounces or thwarts commission of crime he conspired to if it was completely voluntary (7) duration of conspiracy terminates when crime is committed or abandoned; if only one co-conspirator abandons, it terminates for him only when he advises coconspirators of his abandonment or informs law enforcement

conspiracy merges with target offense; punishment is linked to punishment for target crime under MPC 5.04 it is not a defense to solicitation that the co-conspirator did not occupy a particular position or have a characteristic the believed to be true (such as undercover cop) or if the person he conspires with has immunity to prosecution or conviction

Mens Rea for Conspiracy

in some jurisdictions, conspiracy is just a misdemeanor, but in others, it is the same level offense as the target offense under the common law, for MR for conspiracy, there must be (1) intent to enter agreement, (2) the intent to commit the target offense (this is a specic intent crime) under MPC 5.03, you must have (1) purpose to promote or facilitate target offense, (2) or to aid others in committing/attempting/soliciting the action that (3) constitutes the crime