Criminal Law Common Law/ Model Penal Code Comparisons

Criminal Law Common Law/ Model Penal Code ComparisonsProfessor Brickey, Spring 2002

Actus ReaCommon LawModel Penal Code

Requires affirmative, voluntary act; intention to commit a crime is insufficient to convict if there is no evidence of an act putting that intent into effect. Mere movement of vehicle does not necessarily constitute act of driving vehiclethere 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) There must be a voluntary act or omissionConduct: physical activity (affirmative act), possession

Result: consequence

Circumstance: external conditions when engages in conduct

Possession:Mere presence + Intent to posses + power to possess = conviction

Mere presence possession

(Kimbrellwatching drugs)Possession:Possession is an act if:

knowingly procured OR

knowingly received the thing OR

was aware of control for sufficient period of time

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 = manslaughterOmission: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

Mens ReaCommon LawModel Penal Code

Criminal Negligence Gross lack of competency

Gross inattention

Criminal indifference

Gross deviation = recklessnessaware of substantial risk created by conduct and disregards that risk (Peterson) Homicideneg. homicide if acted with criminal negligence (State v. Howard) Subjective TestCriminal Negligence Should be aware of substantial and 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

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

General Intent Crime:

Intent to commit an act, serves as actus reus(See above)

KnowledgeCommon LawModel Penal Code

Majority subjective testMinority objective testSubjective test

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

WillfulnessCommon LawModel 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 LiabilityCommon LawModel Penal Code

Malum prohibita Statutory rape, bigamyCan only be a violationminor offenses, not crime; fine/forteiture

No need to show culpable mental state

(Transferred Intent)

MurderCommon LawModel Penal Code

4 ways to satisfy mens rea requirement:

Intent to kill

Intent to commit serious bodily injury

Reckless/extreme indifference to value of human life (depraved heart)

Intent to commit dangerous felonyno bootstrapping allowed (felony must be independent)People v. Wilson3 ways to prove Purposefully, knowingly (differs from willinglydid away with malice aforethought) Recklessly manifesting extreme indifference to human life (depraved heart, subjective view of recklessness)

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:

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

1st degree

Poisoning

Lying in wait

Willful

Deliberate

Premeditated

FelonyOnly 1st degree

2nd degree:

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

Want of provocation on part of dead

Conduct and statements of defendant before and after killing

Threats and declarations of defendant before and during course of occurrences giving rise to killing

Ill-will or previous difficulty between defendant and victim

Dealing of lethal blows after deceased rendered helpless

Evidence that the killing was brutal

ManslaughterCommon LawModel Penal Code

Voluntary: Intent to kill, but in the heat of passion with no malice aforethought Objective test for sufficiency of provocation 4 requisites1) acts in response to provocation which would cause a reasonable man to lose his self-control (actualmere words are not enough)2) heat of passion3) lapse of time not enough to cool off4) had not cooled offNo distinction between voluntary and involuntary recklesslyaware of the risk, but consciously disregards it; advertant; subjective; gross deviation purposeful, but committed under extreme mental disturbance (heat of passion)reasonable person in actors circumstances as he believes them to be (subjective) 2nd degree

Involuntary: Criminal negligence required

Unintended killing caused during the commission of an unlawful act not amounting to a felonyNegligent Homicide Committed negligentlyought to have been aware of the risk; inadvertent; objective

Should be aware

AttemptCommon LawModel Penal Code

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 does anything with the purpose of causing a particular result which is an element of the crime Belief that it will cause the result without further conduct

Dangerous Proximity Test: looks at what is left to be done if the last proximate act is done, always sufficient, yet not always required focus on the actors actions beyond mere preparationSubstantial 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

must have culpability to commit a crimethere can be no attempt of negligent homicideSix circumstances which shall not be held insufficient as a matter of law: 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: when s actions sets in motion, even 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 DEFENSELegal Impossibility:The only defense

Factual Impossibility: Objective of is proscribed by criminal law, but a circumstance unknown to the actor prevents him from bringing about that objective

Never a defenseNo factual Impossibility Defense

Hybrid Impossibility: (Brickey) 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, RojasNo hybrid defense

SolicitationCommon LawModel Penal Code

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

A substantive crime in and of itself

Solicitation merges into conspiracy

In some jurisdictionsattempted solicitation 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

Abandonment

Common LawModel Penal Code

Involuntary abandonment never a defenseRequires complete and voluntary renunciation

Not voluntary is motivated by increase in probability of detection

Not a defense if the crime is completedAffirmative 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

ConspiracyCommon LawModel Penal Code

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 co-conspirators

All members of conspiracy may be liable for the substantive crime even if committed by only one member, without a new agreement Once agreement made, no withdraw from conspiracy, only from substantive offenseGuilty 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

For the individual to terminate his part in the conspiracy, must advise others of abandonment or inform law enforcement of the conspiracy

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 completionUnilateral Theory: individual is liable if he agrees with another person

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 liabilityRejection 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

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 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 LawModel 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

Can be constructivea look out Must have same mens rea as principalAccessory Before the Fact:

Aids and abets the commission of a crime

Not present at the time of the crimemerged with principal 2ndAccessory 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.Guilty of offense if committed by own conduct or by someone for whom legally accountableAccomplice 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

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

Ignorance or MistakeCommon LawModel Penal Code

Mistake of Law:

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

Not available as a defense if would have been charged with another offense had the situation been as he supposedA 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:

Defense only for specific intent crimesmust lack mens rea for crime

Must be an honest mistake

Mistake of age is no defenseMistake of Fact: Based on s subjective belief

Mistake of age is no defenseno defense if under 10

IntoxicationCommon LawModel Penal Code

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

Involuntary Intoxication:

Involuntary Intoxication: Presence or threat of force/duress

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