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Common Law Model Penal Code

The document summarizes the differences between the common law and Model Penal Code approaches to actus reus, mens rea, and related criminal law concepts. Some key differences include: 1) The Model Penal Code does not require an affirmative voluntary act for criminal liability and includes possession and omissions in certain circumstances. Common law strictly requires a voluntary act. 2) Mens rea is defined differently, with the Model Penal Code eliminating distinctions between general and specific intent and focusing on the mental state required for each crime. 3) Both recognize criminal negligence but the Model Penal Code defines it as failure to perceive a substantial risk versus the common law definition of gross deviation from reasonable care

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Rachael Soule
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0% found this document useful (0 votes)
105 views13 pages

Common Law Model Penal Code

The document summarizes the differences between the common law and Model Penal Code approaches to actus reus, mens rea, and related criminal law concepts. Some key differences include: 1) The Model Penal Code does not require an affirmative voluntary act for criminal liability and includes possession and omissions in certain circumstances. Common law strictly requires a voluntary act. 2) Mens rea is defined differently, with the Model Penal Code eliminating distinctions between general and specific intent and focusing on the mental state required for each crime. 3) Both recognize criminal negligence but the Model Penal Code defines it as failure to perceive a substantial risk versus the common law definition of gross deviation from reasonable care

Uploaded by

Rachael Soule
Copyright
© Attribution Non-Commercial (BY-NC)
We take content rights seriously. If you suspect this is your content, claim it here.
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Download as DOCX, PDF, TXT or read online on Scribd
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Actus Rea

Common Law Model Penal Code


Requires affirmative, voluntary act; · There must be a voluntary act or
intention to commit a crime is insufficient omission
to convict if there is no evidence of an act
putting that intent into effect.  

· Mere movement of vehicle does not Conduct: physical activity (affirmative


necessarily constitute act of driving act), possession
vehicle→there must be an affirmative
act byΔ (Taft)  

· If knowledge that actions could cause Result: consequence


harm to another (i.e., you know you
can blackout and drive anyway), act  
constitutes crime (Decina)
Circumstance: external conditions
when Δ engages in conduct
Possession: Possession:

Mere presence + Intent to posses + power Possession is an act if:


to possess = conviction
· knowingly procured OR
· Mere presence ≠ possession
· knowingly received the thing OR
· (Kimbrell→watching drugs)
· was aware of control for sufficient
period of time
Omission: Omission:

There must be a duty Liability for the commission of an


offense may not be based on an
· statutory omission unaccompanied by an action
unless:
· status relationship (Biddle)
· Omission is expressly made
· contract (Moore→chauffer) sufficient by lawdefining offense

· voluntary assumption of care (Jones) · A duty to perform the omitted acts is


otherwise imposed by law
 
· 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 omission→death = murder

Negligent omission→death =
manslaughter

 Mens Rea

Common Law Model Penal Code


Criminal Negligence Criminal Negligence

· Gross lack of competency · Should be aware of substantial and


unjustifiable risk that a material
· Gross inattention element exists or will result

· Criminal indifference · Risk must be of nature and degree


that failure to perceive = gross
· Gross deviation = deviation from reasonable person’s
recklessness→aware ofsubstantial risk standard of care
created by conduct and disregards
that risk→ (Peterson)

· Homicide→neg. homicide if acted
with criminal negligence (State v.
Howard)

· Subjective Test
Specific Intent Crime: MPC no longer recognizes the
distinction between general and specific
· Requires actual intention to do more intent.  Rather, it spells out what is
than actus reus, not just general required for each crime.
blameworthiness

· General malevolence is not an attempt


to commit a crime even if it results in
an substantive crime

· Malice aforethought ≠ specific intent


to kill (Shea)
General Intent Crime: (See above)

· Intent to commit an act, serves as


actus reus

Knowledge

Common Law Model Penal Code


Majority→ subjective test Subjective test

Minority→ objective test


Deliberate ignorance and Positive · If one is aware of high probability of
Knowledge  have equal culpability existence of a particular fact, unless
he actually believes it doesn’t exist, he
· Knowingly is not limited to positive is still culpable
knowledge, but includes the state of
mind of one who does not posses · If there is a high probability of
positive knowledge only because it existence, knowledge is established
consciously avoided it.

· Willful blindness (Jewel→marijuana)

 Willfulness

Common Law Model Penal Code


· Intentional or deliberate→ a ?
voluntary, intentional violation of a
known legal duty (Cheek)
· It means no more than that the  
person charged with the duty knows
what he is doing.  It does not mean
that, in addition, he must suppose that
he is breaking the law. 
 

Strict Liability

Common Law Model Penal Code


Malum prohibita Can only be a violation→minor offenses,
not crime; fine/forteiture
· Statutory rape, bigamy
No need to show culpable mental state  

(Transferred Intent)

Murder

Common Law Model Penal Code


4 ways to satisfy mens rea requirement: 3 ways to prove

· Intent to kill · Purposefully, knowingly (differs


from willingly—did away with malice
· Intent to commit serious bodily aforethought)
injury
· Recklessly manifesting extreme
· Reckless/extreme indifference to indifference to human life (depraved
value of human life (depraved heart) heart, subjective view of
recklessness)
· Intent to commit dangerous felony
· During a felony
—no bootstrapping allowed (felony
must be independent)→People —recklessness of act presumed if
v. Wilson 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:  

· Embraces not only the actual facts of


the transaction and the circumstances
surrounding it, but the matters
immediately antecedent and having
direct causal connection with it as
well as acts immediately following it
1  degree
st
Only 1  degree
st

· Poisoning

· Lying in wait

· Willful

· Deliberate

· Premeditated

· Felony
2  degree:
nd
 

· Depravity of heart

· No intention to kill

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 Model Penal Code


Voluntary: No distinction between voluntary and
involuntary
· Intent to kill, but in the heat of
passion with no malice aforethought · recklessly→aware of the risk, but
consciously disregards it; advertant;
· Objective test for sufficiency of subjective; gross deviation
provocation
· purposeful, but committed under
· 4 requisites extreme mental disturbance (heat of
passion)—reasonable person in
1)   acts in response to provocation actor’s circumstances as he believes
which would cause a reasonable them to be (subjective)
man to lose his self-
control (actual→mere words are · 2  degree
nd

not enough)

2)   heat of passion

3)   lapse of time not enough to cool off

4)   had not cooled off


Involuntary: Negligent Homicide

· Criminal negligence required · Committed negligently—ought to


have been aware of the risk;
· Unintended killing caused during the inadvertent; objective
commission of an unlawful act not
amounting to a felony
Should be aware  

Attempt

Common Law Model Penal Code


Intent to commit a crime + performance · Δ does anything with the purpose of
of an act toward its commissions + causing a particular result which is
an element of the crime
failure to commit the crime
· Belief that it will cause the result
· the attempt is the direct movement without further conduct
towards the commission after the
preparations are made
Dangerous Proximity Test: Substantial Step Test: (Subjective Test)

· looks at what is left to be done · focuses on what has already been


done
· if the last proximate act is done,
always sufficient, yet not always · acting with culpability for the
required commission of the crime

· focus on the actor’s actions · purposefully engages in conduct


which would constitute crime if
· beyond mere preparation circumstances were as he believes
them to be
Δ must have culpability to commit a Six circumstances which shall not be
crime—there can be no attempt of held insufficient as a matter of law:
negligent homicide
· lying in wait, searching for, following
victim

· reconnoitering the place


contemplated

· unlawful entry

· possession of specially designed


materials

· possession of materials at or near


place of commission

· soliciting an agent to engage in


conduct
Legal Impossibility: Legal Impossibility:

· when Δ’s actions sets in motion, even The only defense


if fully carried 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: No factual Impossibility Defense

· Objective of Δ is proscribed by


criminal law,but a circumstance
unknown to the actor prevents him
from bringing about that objective

· Never a defense
Hybrid Impossibility: (Brickey) 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 Model Penal Code


Requesting someone to commit a crime · Commands, encourages another to
engage in specific conduct which
· Communication not required of would constitute a crime or an
conduct indicates solicitation attempt of that crime with purpose of
promoting/facilitating its commission
· No corroboration needed
· Affirmative defense to persuade
· No overt act required other person not to commit crime or
prevent commission of the crime if
· Falls short of an attempt renunciation is complete and
voluntary
· A substantive crime in and of itself

· Solicitation merges into conspiracy

· In some jurisdictions→attempted


solicitation

Abandonment
 

Common Law Model Penal Code


Involuntary abandonment never a Requires complete and voluntary
defense renunciation

· Not voluntary is motivated by


increase in probability of detection
Not a defense if the crime is completed 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 Model Penal Code


An agreement between 2 or more Guilty if with purpose of
persons to do either an unlawful act or a promoting/facilitating commission of
lawful act by unlawful means crime, agrees with such other person or
persons that they or one or more of
· Agreement + Objective + Mens Rea them will engage in conduct which
constitutes such crime or an attempt or
· It is not necessary that each solicitation to commit such crime
conspirator agree to commit the
substantive object crime; also not · All members of conspiracy need not
necessary to have tacit agreement know each other
between co-conspirators
· For the individual to terminate his
· All members of conspiracy may be part in the conspiracy, must advise
liable for the substantive crime even others of abandonment or inform
if committed by only one member, law enforcement of the conspiracy
without a new agreement
 
· Once agreement made, no withdraw
from conspiracy, only from
substantive offense
Wharton’s Rule: an agreement between Unilateral Theory: individual is liable if
2 people to commit a particular crime he agrees with another person
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 Rejection of Pinkerton: just being a
foreseeable and done in furtherance of member of a conspiracy, with no other
the conspiracy for all members to be aiding, is not enough to be convicted of
found guilty of substantive crime substantive crime→must use accomplice
without any liability liability
· Some jurisdiction require actual · No person can be convicted unless an
action: mere preparation may be overt act is done by him or co-
okay—but more than knowledge, conspirator
promotion of venture
· Overt act may be mere preparation
· If tried in same trial, need two for
conviction; if separate trials, can have · Abandonment presumed if there is no
just one conspirator overt act

Parties to a Crime (Accomplice Liability)

Common Law Model Penal Code


Principal in the 1  Degree:
st
Guilty of offense if committed by own
conduct or by someone for whom legally
· The person who actually commits the accountable
crime
 
Principal in the 2  Degree:
nd

Accomplice When:
· Person who aided, counseled,
encouraged the commission of the · Solicits another person to commit
crime crime

· Present at the time the crime was · Aids/agrees/attempts to aid in


committed planning or committing

· Can be constructive→a look out · Has legal duty to prevent commission


of crime but fails to do so
· Must have same mens rea as
principal · Conduct by law establishes complicity

Accessory Before the Fact:  

· Aids and abets the commission of a  


crime

· Not present at the time of the crime


—merged with principal 2 nd

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

· Conviction of a principal is not a


condition precedent to the
conviction of an accessory after the
fact.
Liable for all foreseeable consequences Rejects foreseeable consequences
doctrine→accessory not liable for crimes
beyond those which were intended to aid
or encourage

Ignorance or Mistake

Common Law Model Penal Code


Mistake of Law: Mistake of Law:

· Never a defense (traditional view) · A defense if it negates the mental


state required
· Follow MPC (modern view)
· State of mind established constitutes
defense

· Not available as a defense if Δ would


have been charged with another
offense had the 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: Mistake of Fact:

· Defense only for specific intent crimes · Based on Δ’s subjective belief
—must lack mens rea for crime
· Mistake of age is no defense—no
· Must be an “honest” mistake defense if under 10

· Mistake of age is no defense

Intoxication

Common Law Model Penal Code


Voluntary Intoxication: Voluntary Intoxication:

· Not a defense but may be used if it · Defense if it prevents an accuse from
negates specific intent having the required state of
mind→but not always a complete
· Inadmissible to negate general defense
intent→negligence
· Does not negate recklessness or
criminal negligence
Involuntary Intoxication: Involuntary Intoxication:

  · Presence or threat of force/duress


· Defense if Δ intentionally ingests a
substance, but mistakenly believes
that it is not intoxicating

·  

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