Actus reus

(need one)

 Voluntary act

o Not voluntary: MPC 2.01(2) – reflex or convulsion; bodily movement; conduct from hypnosis

 Omission (failure to act) + duty

 Legislative history: what did the drafters want to prevent?

 Moral wrong theory: what is the element that makes the act immoral?

 Lesser crime: is the act itself a crime, and does the AC aggravate it?

o Utilitarians support b/c you should not have been doing bad thing in first place

o Retributivists oppose b/c you are not as blameworthy

 Public welfare violation?

o Rule: Statutory silence regarding mens rea can only be interpreted as strict liability standard after considering

following factors: (1) How wide is distribution of harm (wider harm -> SL); (2) Is the injury the same regardless of

intent (yes -> SL); (3) ―New offenses‖ (mass production, post-IR products) vs common law offenses (new offenses ->

SL); (4) Type of punishment (small penalty w/ little/no stigma -> SL; this one is particularly influential); (5) Could

o Con: Legislative intent can be argued for either side (don’t disturb OR clearly didn’t intend); don’t want to chill

productive activity

 Morissette: Overturning conviction for ―knowingly converting‖ govt property by taking discarded bomb

casings under honest assumption that they were abandoned. Mala in prohibitum crimes need mens rea.

 Staples: Not guilty for possession of automatic weapon where D honestly didn’t know weapon was altered b/c

statutory silence ≠ SL for gun possession, some indication of legislative intent (express or implied) is

needed to get rid of mens rea (no public welfare issue here)

 X-Citement Video: Overturning conviction for distributing child porn b/c statute was not intended to be read

as SL even though ―most natural grammatical reading‖ finds SL.

 Position of mens rea term in the statute

Mens rea- common law & MPC

Make prosecutor’s checklist and attach mens rea to each element

(for each element)

 Intentionally (R) – 2.02(2)(a)

o Conscious object to cause the harm or aware/hopes/believes circumstances exist

o Virtually certain it was going to occur

 Knowledge (AC) – can infer intent/purpose from this – 2.02(2)(b)

o Correctly believes it exists

o Willful blindness (Jewell—marijuana in trunk case) – 2.02(8)

 Look at probability of harm, gravity of harm, reason for the conduct

 Criminal negligence – 2.02(2)(d)

o Reasonable person standard; Δ was not aware but should have been that the risk was substantial and unjustifiable

 Exam issue: what is reasonable person?

 Always: shock from traumatic injury; blindness

 Others are debatable

o Santillanes: man who slashed his son’s throat in a fight; because of moral condemnation attached to a crime, you

need at least criminal negligence (not civil)

o Hazelwood: Exxon Valdez captain; civil negligence is needed because it aims at assuring that criminal penalties

will be imposed only when the conduct can be reasonably deterred by society

 Strict liability

Mistake of law

Mistake of law is not a defense (Marrero: good faith mistaken belief as to the meaning of a statute is not a defense; public policy is to

give an incentive for knowledge)

Exceptions

1. MPC §2.04(1)(a) Δ mistake negates the mens rea of a material element; can be reasonable or unreasonable belief

2. Crime requires awareness that you are breaking the law

a. Debate – what type of awareness?

A. Favor Δ most: must be aware of specific statute

Liparota: Overturning conviction for knowing misuse of food stamps; policy: don’t want to ―criminalize a

broad range of apparently innocent conduct‖

Cheek: Overturning conviction of tax evasion; tax evasion has “willful” mens rea attached b/c tax law is

very complicated, so falls under §2.09

Contrast Intl Minerals: Upholding conviction of trucking company for ―knowingly violating‖ by knowingly

C. Favor Δ least: mere awareness of the facts

Overholt: Upholding conviction under Safe Drinking Water Act for ―wilfull‖ violation w/o access to

defense of mistake of law b/c is strict liability crime.

3. Statutory exceptions/official interpretations

MPC §2.04(3): Δ is not guilty of a criminal offense if at the time of the offense

(need both)

law defining the offense

b. When does it look unconstitutional?

 Punishes omission

 Notice issue: crime is not likely to be known AND statute does not give notice somehow

 Duty to act is based on a status (―mere presence‖ enough to trigger the duty)

 Conduct is considered ―wrong‖ because it is prohibited by a statute (otherwise, it is not illegal)

Mistake of attendant circumstance

2.04(1)(a) ignorance of fact is a defense if it negates the mens rea of a material element, or the statute gives a defense

Exception 2.04(2) if Δ would be guilty of a lesser offense if the facts were as she believed  no mistake of fact defense, but can get

reduced grading

Causation

Actual cause (―BUT FOR‖)

2. “But for” the Δ’s voluntary acts, would the social harm have occurred when it did? CL & MPC §2.03(1)(a) (If no -> actual

Special case: If multiple causes & INDEPENDENT actors

a. If multiple actual causes exist, analyze D1 and D2 separately, asking if each accelerated the death.

b. If multiple sufficient causes exist, use tests below (ex: D1 hits heart; D2 hits head; either could have killed V)

ii. MPC: state the result with more specificity (resulting harm is death by bullet to head and heart)

 Not foreseeable: victim has reached safety but doesn’t take it (Preslar—wife reached father’s home and

stayed outside, where she froze to death, instead of going in)

b. Independent act of Δ’s act: was the act foreseeable? If yes  Δ is liable. (Kibbe: Δ left drunk V on the street,

naked and confused  hit by trunk  yes foreseeable)

1. Intervening human action breaking the chain of causation (Human action is free, deliberate, informed, and intentional 

DEBATE

Campbell: drunk Basnow said he wanted to kill himself; Δ provides gun and Basnow shoots himself  relieved Δ

Subsequent human actions that recklessly risk the result (no break  Kern; Atencio ; yes break in chain  Root)

Homicide – common law

**shows malice

standard)

weapon)

b. Otherwise killing is unintentional.

a. Murder (with intent to kill a human being* or inflict grievous bodily injury*)

b. Unless adequate provocation + imperfect self-defense = voluntary manslaughter (no malice aforethought)

to cause him to act for the moment from passion rather than reason‖

rather than judgment‖

“Willful, deliberate, pre-meditated”

1. Willful

a. Equal to the common law = intentional

2. Deliberate

a. Carroll: ―no time is too short‖; if the killing was intentional, willful, deliberate, and premeditated, it doesn’t matter

how little time passed between the premeditation and the fatal act)

b. Guthrie: ―some evidence Δ considered and weighed his decision to kill‖

Evidence of premeditation: 1. Planning activity (place or weapon), 2. Status of D’s prior relationship with victim

Homicide – MPC

a. Includes intent to inflict bodily injury (from CL)

Rape

important to force prosecution to prove that D knew he was acting w/o consent

and not make assumptions (assume she doesn’t rather than she does); rape is serious, this gives maximum incentive for

 Traditional: female must physically resist ―to the utmost‖

 Modern: resisting can be dangerous; some respond by freezing up

o Griffin: force needs to be substantially different or greater than physical force inherent in sex

rea = negligence (D asked for knowledge)

 Jury must consider entire sequence objectively

o Fischer: Uphold conviction for involuntary deviate sexual intercourse for oral sex w/o consent for college student b/c

mistake of consent not a defense (mens rea = negligence)

 Consent obtained by fraud or trickery is still consent

o Evans: no conviction for man lied that he was a journalist and lured woman into apartment; ―I could kill you. I could

rape you. I could hurt you physically‖ could be interpreted as a real threat OR a statement of fact concerning a

stranger that was not Δ

o Boro: Overturning rape conviction for man who convinced woman sex w/ him was vital part of medical treatment to

save her life

 2

―voluntary social companion‖ & had not ―previously permitted him sexual liberties‖

§213.1(2) – Gross Sexual Imposition – Vaginal, anal or oral sex b/w man & woman not his wife (any penetration counts, no ejaculation

required) where: (a) he compels her to submit by ―any threat that would prevent resistance by a woman of ordinary resolution‖; (b) he

knows that she suffers from mental disease/defect which renders her incapable of appraising her conduct; or (c) he knows that she is

unaware that she is having sex OR submits b/c she thinks he is her husband

 Mens Rea – Most jurisdictions use negligence standard – belief in consent must be honest & reasonable

What is the benefit to the Δ?

Did you meet mens rea according to the statute?

Statutory Scheme – could be broader than property; interpret!!!

Harrington—lawyer representing wife wrote a letter that he would divulge incriminating info to IRS and release pictures of her

husband with a prostitute, unless he gets settlement money

certain crimes concerning with domestic matters might want to be kept out of the system). But it could be too easily

abused.

 Better idea: statement of intent – here is a list of facts, now it is your move (invite offers)

o Response: that is an implicit threat (depends on mens rea)

MPC 223.4 Theft by Extortion – limited to threats to get property

223.4(2) Accuse anyone of a criminal offense

223.4(3) expose any secret tending to subject any person to hatred, contempt or ridicule, or to impair his credit or business repute

claimed as restitution/indemnification for the harm done

 Could be a fair exchange, but there might be unequal bargaining power

Pro- Blackmail Policy: Discourage vigilantism (people won’t have incentive to go out looking for secrets; won’t have inefficient

overinvestment to protect privacy), protect from coercion, not simply a bargain b/c of sham consideration (illegal immigrants)

2. Dangerous proximity test

(look at all three)

Hydraulic: more serious the offense, the less close the actor must come to completing the offense

Rizzo—failed DP test, despite the fact Δs who drove around looking for the victim, who never appeared

3. Unequivocality test – the silent movie

 Conduct, standing alone, must demonstrate criminal intent.

McQuirter: could have been innocent under this test; black man accused of rape

 Intend the specific result.

Smallwood: Δ intentionally had unwanted sex with his victims. He was not guilty of attempted murder because prosecution could not

show that he intentionally wanted to kill his victims with HIV.

2. Attendant circumstance:

(divergent rules)

 A person can be convicted of attempt if he is reckless with regard to the AC.

 A person is culpable based on the mens rea of the target crime.

Defenses

 If the circumstances were as Δ believes them to be, would it still constitute a crime? If yes  guilty.

Justifications: Defense of Property

(1) Common Law – protect non-home objects – objective standard

 Deadly force for protecting objects  never justified.

 Is Δ must in lawful possession of the property?

b. Possession does NOT mean title to property (ex: repair mechanic and someone’s car)

(2) Common Law – protect home – objective standard

1. Person can use deadly force to protect right to live in her home in privacy and security.

 V intends unlawfully and imminently to enter Δ’s dwelling

 Deadly force is necessary

3. Narrower rule interpretation:

a. (same) V intends unlawfully and imminently to enter Δ’s dwelling

b. V intends to commit a violent felony, or cause any level of bodily injury to any occupant

c. (same) Deadly force is necessary

2. MPC §3.06(3)(d) deadly force is allowed if

 Δ believes that victim intends to dispossess Δ of his dwelling other than under a claim-of-right to possession

 Intends to commit arson, burglary, robbery, or felonious theft inside

 Attacker has employed or threatened deadly force against or in the presence of Δ

 Δ’s use of non-deadly force would expose Δ or another to substantial risk of serious bodily harm

MPC § 3.06(5) Use of spring guns are not allowed

Bar the use of deadly mechanical devices b/c cannot distinguish b/w the innocent and guilty & = unreasonable, excessive force as

matter of law (Ceballos)

Insanity

Person was acting under a defect of reason, arising from a disease of the mind, that she (1) did not know the nature and quality of

-wrong is not knowing legal or moral wrong, according to societal standards

Critique: no degrees of incapacity; disregards mental illnesses that affect volition; if a person knows what she is doing but cannot

control conduct, she is undeterrable, therefore punishment is inefficacious; it is morally wrong to punish a person who lacks

sufficient free will to control her conduct

Critique: slippery slope – if we allow people to be excused for their urges, then it should excuse in more situations beyond mental

illness

Lack of reliable means for measuring self-control

-cognitive incapacity is on/off switch