Common Law vs. MPC

Common Law MPC DifferenceACTUS REUSVoluntary Act:Requires a voluntary and social harm. An act is voluntary if D willed the action or if she was sufficiently free that she could be blamed for her conductExceptions:1. Omissions:--No crime unless there is a legal duty to act. (Status, statute, contract, special relationship, assumption of care, created risk)2. Involuntary Act--Can negate the action or serve as an affirmative defense. Done in a state of unconsciousness

ACTUS REUSVoluntary Act:No person may be convicted of a crime in the absence of conduct that includes of which he is physically capable.Exceptions1. Omissions--Same as CL criminal liability imposed for the omission of an act which D is physically capable2. Involuntary Acts--Involuntary acts: reflex, convulsion, movements during sleep, movements under or the result of hypnosis, and unconscious movement.

ACTUS REUS

No difference except under involuntary act. MPC extends CL such that acts done under hypnosis and in states of unconsciousness are “no action.”

MENS REATypesIntentionally (willfully) – to consciously cause the result or when one is virtually certain that the object will occur as a result of D’s conduct.

MENS REATypesPurpose – Conscious object with conduct & results. Must be aware of the existence or belief or hope that such circumstances do exist.Knowledge – Conscious awareness that results are practically certain to occurRecklessness – Conscious disregard of a substantial and unjustifiable risk.Negligence – Should have been aware of a substantial and unjustifiable risk.(Gross deviation normal standard of care)

MENS REA

- MPC splits intentionally into purpose and knowledge.-MPC clear distinction between negligence and reckless; not on the degree of risk involved, but on D’s knowledge of the risk-MPC provides that when it is not clear which element a mens rea applies to, apply it to all elements of the offense-Where the statute is silent on mens rea, at least recklessness is

Attendant Circumstances?

Specific Intent/General IntentApplies to mens rea. Defined by CrimeGeneral Intent – Only require intent to commit the act constituting the crime. Can infer all mens rea from observing conduct.

Specific Intent – Intent to do some further act or cause some additional consequence beyond that which must have been committed or cause in order to complete the crime. Acts in addition to general intent. Proof of specific intent is required, but it may be circumstancial.

Attendant CircumstancesFor a crime requiring a mens rea of:(1) Purpose – D must be aware of the existence of ACs or believe or is aware they exist(2) Knowledge – Aware that conduct is of that nature or that such circumstances exist: only require high probability of existence(3) Reckless – Conscious disregard of substantial/unjustified risk(4) Negligence – Should be aware of substantial or unjustified risk.

required.

Specific Intent/General Intent exclusively a CL issue

STRICT LIABILITYPublic welfare and traditional crimes. Created by statute.-Statutory rape

STRICT LIABILITYSL crimes are generally restricted to violations and are punishable by fines, not incarceration- public welfare crimes;-Statutory rape

STRICT LIABILITY

MURDER w/ MAHomicide with malice aforethought.Four possible states of mind.Intent to kill [express malice] One may, but need not, infer the intent to kill from use of deadly weapoonIntent to cause SBI [implied malice]Depraved (malignant heart) = extreme recklessness. Acts in the face of an unusually high risk that conduct will cause death or SBH.Felony Murder Rule – Generally guilty if kills another during commission of felony.

MURDERPurposely (no SBI)Knowing (no SBI)Reckless (with extreme indifference to human life)Felony Murder Rule – No distinguished FM rule, but MPC raises a presumption of “recklessness and indifference to human life” if the D during the commission or attempt of certain felonies. However, not absolute, prosecutor must still prove it.

MURDER

MPC includes GBH under recklessness.

MPC’s mens rea is equivalent to CL’s intent.

When MPC uses recklessness as mens rea, it is similar to CL’s malignant heart killings

1

(1) Inherently dangerous test: felony must be inherently dangerous in many jurisd.(2) Merger rule – Felony must be independent from murder(3) Causation Limitation

*Natural &Probable consequence doctrinePROVOCATION (To mitigate)Must be committed in sudden heat of passion under adequate provocationHeat of passionAdequate ProvocationAggravated assault or batteryMutual combatSerious crime against close relative

PROVOCATION (To mitigate)Extreme Mental or Emotional Disturbance (EED)Homicide committed under the influence of EED – MPC equivalent of provocation

PROVOCATIONMPC requires that D be aware of the risk being taken (recklessness). MPC use of EED is a broader form of the CL provocation defense

MANSLAUGHTER 1: VOLUNTARYVoluntary Manslaughter: Homicide without malice aforethought.

“Heat of passion” – Intentional killing committed in response to legally adequate provocation

MANSLAUGHTERReckless – Unlike reckless M, here the conduct, although reckless, does not manifest an extreme indifference to the value of human life. (Mens rea = normal MPC mens rea)Extreme mental or emotional disturbance (EED)

MANSLAUGHTER

MANSLAUGHTER 2: INVOLUNTARYInvoluntary Manslaughter – Unintended killing.Criminal Negligence: Killing resulting from gross negligence (This would include MPC recklessness as well)Unlawful Act : “Misdemeanor manslaughter” an unintentional killing that occurs during the commission of an unlawful act.

NEGLIGENT HOMICIDE

Negligent – A criminally negligent cilling.

NEGLIGENT HOMICIDE

MPC N.H. = CL Involuntary MS

ATTEMPTMens ReaFor the Attempt – Specific intent to commit the acts or cause the resulting target crime.For the Target Crime – Intent

ATTEMPTMens ReaFor the attempt – Purpose or knowingly engages in conduct which would constitute the crime if ACs were as D

ATTEMPT

Under MPC, D may still be held for the attempt even if the target offense is

2

necessary for the target crime (Specific or general depending on the offense). For strict liability, must show only intent to attempt, no target crime mens rea.Reckless crimes – Courts generally do not try for attempts of reckless crimes, and negligent crimes legally impossibleActus ReusTestsProximity test, etc. (See Notes)

Attept is a misdemeanor

believed them to be.For the target crime – D acts with the kind of culpability otherwise required for the commission of the offense.However, here too, the mens rea for attempt is often higher than the one required for the target offense. Generally, the required mens rea is purpose.Actus ReusD must perform a substantial step toward committing the crime.D’s conduct must be corroborative of D’s purposeAttempt is a felony

neither committed nor attempted by D or anyone else.

CL – no definitive Actus Reus testMPC – does not use GI/SI

Most states no attempt for Felony Murder

SOLICITATIONActus ReusConsummated when the actor communicates the words or performs the physical act that constitutes an invitation, request, command, or encouragement of the other person to commit an offense.Mens Rea:Solicitation is a specific intent offense. Solicitor must intentionally commit the actus reus of the request with the specific intent that the person commit the target offense.Unsuccessful Solicitation: A solicitation does not occur unless the words or conduct of the solicitor are successfully communicated to the solicited party. (State v. Cotton)Relationship of Solicitor to Parties:A person is NOT guilty of solicitation if they just ask another person to assist them with a crime. Must ask them to do crime themselves.

SOLICITATIONActus ReusConsummated when the actor communicates the words or performs the physical act that constitutes an invitation, request, command, or encouragement of the other person to commit an offense.Mens Rea:Same as C, different language. A person is not guilty of solicitation unless he acts with the purpose of promoting or facilitating the commission of the solicited offenseUnsuccessful Solicitation:One with an unsuccessful attempt to communicate a solicitation is guilty of solicitation.Relationship of Solicitor to Parties: Person is still guilty of solicitation no matter how they ask them to contribute to crime.Defense:Renunciation: If solicitor complete renounces intent and persuades solicited party not to

SOLICITATIONMPC doesn’t recognize unsuccessful solicitation.

CL not guilty if just asking to assist with crime, MPC guilty for that.

MPC has a defense of renunciation.

3

commit the offense.CONSPIRACYActus ReusAgreement to commit criminal act or series of acts, or to accomplish a legal act by unlawful means.Object of Agreement - Need only be unlawful/wrongfulNature of Agreement – Need not be written or even expressAct doctrine – No CL requirement; most jurisdictions now require overt act.Merger – Does not merge into an attempt or the completed offense

Mens ReaSpecific intent with 2 parts:(1) Intent to agree, (2) Intent to carry out target crimeSome courts allow conviction if the mens rea to target crime is merely knowledgeAC’s – Court has held that mens rea is the same as for the substantive crime, even if it is strict liability.Number of parties needed – Two or more with the requisite mens rea (Plurality)Punishment – Sometimes misdemeanors, usually graded in relation to target offensePinkerton Test – All members of a conspiracy can be held as accomplices of the crime and of any foreseeable result of it. Liability holds even if co-conspirator did not assist perpetrator

DefenseAbandonment

CONSPIRACYActus ReusAgreement to commit a crime; attempt to commit a crime; solicit another to commit an offense; aid another in planning or commission of an offense.Object of Agreement – Must be a criminal act.Nature of Agreement ?Act Doctrine: No overt act is required for serious (1st-2nd deg) felonies, but required for all other offenses.Merger – Merges unless there are further conspiratorial crimes to be carried out.

Mens ReaPurpose to promote of facilitate the target crime. (Mere knowledge is not usually enough but can be when combined with a stake in the success of target crime).AC’s – Code is silent here, leaving court to decideNumber of Parties Needed – One with the requisite mens rea (Unilateral)Punishment - Punishment is same for conspiracy as for target crime except first degree.Pinkerton Test –Rejected. If the conspiracy goes beyond intended purpose, not guilty of foreseeable crime unless aided and abetted.

DefenseRenunciation

CONSPIRACY-MPC – knowledge is not enough. CL – knowledge may be enough.MPC does not speak on AC’s

Object of agreement must be criminal under MPC and unlawful/wrongful in CL

MPC is unilateral

CL lets D off if state cannot prove that there was another person with requisite MR

Overt act requirement differ.MPC merges, CL doesn’t

MPC heavier punishments

MPC rejects Pinkerton

CL AC’s is counter-intuitive; how can you agree to do something when unaware

Hearsay evidence may be brought in to prove conspiracy but not the substantive offense.

4

SELF DEFENSENecessityUse only amount of force necessary and DF only use to repelAppears to be only option (Belief of threat)Genuine and reasonable belief (even if incorrect) use of force is Necessary and P.ProportionalityResponse must be proportional.Retreat RequiredMajority: no retreat (American stand your ground)Minority: Retreat to the wall. Exception, castle doctrine.ImmediacyThreat must be immediate (not the force)Non-AggressorClean hands requirement, must not be aggressor.

SELF DEFENSENecessityForce must be necessary to protect against death, SBI, kidnapping.Belief of threatPurely subjectiveProportionalityResponse must be proportionalRetreat RequiredIf D knows he can retreat to complete safetyException: at work if not coworker or home.

SELF DEFENSE

MPC is purely subjective rule. Actor has to believe use of force is immediately necessary.

MPC lacks immediacy requirement

MPC lacks strict proportionality

MPC Retreat requirement: Only retreat if you know there to be complete safety.

MPC Castle Doctrine; no retreat if in home/place of work

BWS BWS BWS

DURESS (excuse)Three Elements:An immediate threat of death or serious bodily injuryA well-grounded fear that the threat will be carried outNo reasonable opportunity to escape

Coercion to commit a crimeHuman Forces – Coercion must be from human forces (threat of death/SBI)

Threat(1)Another person threatened imminently to kill or grievously

DURESS (excuse)Coercion to commit a crimeD must show that he committed the offense because he was coerced to do so by another person’s use, or threat to use, unlawful force against him or a third party.

Threat(1) A person of reasonable firmness would have committed the offense.(2) Can’t put himself in the situation

Nature of coercion: Unlike

DURESS

No immediacy requirement for MPC

5

injure her or another person unless she committed crime; and (2) She is not at fault for exposing herself to threat.Nature of threat:(1)Deadly force is required – lesser threat such as minor physical injury will not excuse(2)Deadly force must be imminent, present, and impending(3)Reasonable belief – the D’s actions must be based on reasonable belief that coercer is serious about threat and has capacity to harm.Homicide not covered

common law, neither deadly threat nor imminancy requirement.

NECESSITY (justification)ElementsAn actor is justified in committing an offense if the actor is substantially certain that these factors exist: (N-I-P)Necessary - Committing the offense is necessary to prevent a harm If any lawful way to prevent harm, actor can’t use necessity defense.Imminent - The harm is imminentPrevention - Actor believes that failing to prevent harm would be worse than offense

Substantially Certain –The actor can’t commit an offense because he believes a harm will probably occur if he fails to act, or that the harm is probably imminent—he must be sure about the facts. (This is a subjective standard, actor doesn’t have to be correct)Proportionality: If committing the offense would create worse situation than allowing the harm

NECESSITY (justification)Elements(1)Necessary(2)Chose lesser of two evils(3)No other law speaks to situation

Reasonable Must have a reasonable belief

Mens ReaCan’t do necessity recklessly or negligently if the situation was brought about by the defendant in a reckless or negligent manner.

NECESSITY

MPC doesn’t require “imminency”

MPC reasonable belief vs. Common Law substantial certainty

No natural force requirement for MPC (not really anymore for CL either)

MPC does not rule out homicide

6

to occur, the actor’s defense will fail.Reasonable Belief: An actor’s belief that he needs to choose lesser of two evils must be reasonable.

ExceptionsBlameworthiness: If DF created harmful situation, no necessityHomicide: At C.L. a necessity defense cannot be used to justify a homicide.INSANITYM’Naghten Rule – D is insane if, at the time of the criminal act, he was laboring under such a defect of reason, arising from a disease of the mind that he (1) did not know that nature and quality of the act he was doing; or (2) if he did know it, he did not know that what he was doing was wrong.Irresistable Impulse test – D was insane if (1) She acted from an irresistible and uncontrollable impulse; (2) She lost the power to choose between right and wrong and to avoid doing the act in question, as that her free agency at time destroyed, or (3) D’s will destroyed to point beyond her control.Product (Durham Test) – D would not have committed offense, but for not being mentally insane.

INSANITYSubstantial Capacity – One is not responsible for his criminal conduct if, at the time of the act, as a result of mental disease or defect:D lacked substantial capacity to (1) appreciate the wrongfulness/criminality of D’s conduct and (2) conform D’s conduct to the requirement of the law.

INSANITYMPC’s incorporates both a cognitive and volitional test.

MPC lacks the “impulse” language

MPC makes it easier to find insanity because of “appreciate” language

MPC does not require full cognitive lost, partial works!

MISTAKEMistake of FactMust negate mens rea of crime charged.Specific Intent Crimes – N/G if mistake of fact was in good faith; can be unreasonable

MISTAKEMistake of FactMust negate the mental state required to establish any element of the offense

Legal Wrong Exception – Will

MISTAKEExamples MoF1. D steals Diamonds believing they’re glass. MPC = petty larceny; CL = grand larceny

7

General Intent Crimes – N/G if mistake of fact was REASONABLE and in good faith.Moral Wrong Test – Some CL jurisd. punish for morally-wrong conductLegal Wrong Test – If believes was committing lesser illegal crime, will be guilty of higher/real offense

Mistake of LawNo defense, but exceptions.Exceptions –(1)Authorized Reliance Doctrine = Must have reasonably relied on official authorized statement that was defected. OR (2) Lambert Principle = If omission and crime with no notice. Violates due process.

hold D for a lesser offense when he believed he was committing crime, but was a lesser crime.Strict Liability – Like CL, no MoF for strict liability.

Mistake of LawNo defense unless there is an express negation.Specification in Statute that knowledge of law is required.

2. D steals glass believing it’s diamonds. MPC = petty larceny and attempted grand larceny, CL = petty larceny and attempted grand larceny

MoLCL and MPC approaches similar. In gen, unless falling into unrecognized exception, ignorance of law is no defense.

IMPOSSIBILITYLegal Impossibility (A Defense)Pure Legal Impossibilty: When an actor engages in lawful conduct that she incorrectly believes constitutes a crime..Hybrid Legal Impossibility: When an actor’s goal is illegal, but commission of the offense is impossible due to a mistake by the actor regarding the legal status of some factual circumstances relevant to her conduct..Factual Impossibility (No Defense)when an actor’s intended end constitutes a crime, but he fails to complete the offense because of factual circumstances unknown to him.

IMPOSSIBILITYLegal Impossibility Rule:If not a crime, even if DF believes it is; it is impossible to commit and qualifies for the defense.--If there is no law; there can be no crime.--If there IS a law and you don’t break it, but you think you do, you are guilty of attempt.

Factual ImpossibilitySame as CL

IMPOSSIBILIITY

8

9