#11433 - Attack Outline - Criminal

Elements of offense – MPC 1.13

1. Actus reas

   1. MPC 2.01 –(1)(2) (omission = (3))

   2. Common law in accord with MPC

      1. Duty

         1. Statute, special relationship, contract, creating peril, voluntary assumption of care of another (seclusion)

            1. Kuntz, Jones, Pope

2. Mens rea

   1. MPC 2.02

      1. Purposely: conscious object

         1. Intentionally/designedly

      2. Knowingly: practically certain (subjectively aware)

      3. Recklessly: consciously disregards substantial and unjustifiable risk (gross deviation from standard of conduct) (subjective and objective)

      4. Negligently: should be aware ^ (objective)

   2. Default rules:

      1. 2.02(3)recklessness(4)applicable to all(5)negligence=all

      2. Common law: malice = reckless +

         1. Cunningham

   3. Absence of MR as SL

      1. Common law assumption: no criminal culpability without MR

      2. Consider – nature of offense, hard to prove MR, how widespread harm is, penalty and stigma, is conduct traditionally protected (notice)

         1. Morissette – no SL, when to read in MR

         2. Staples – no SL

         3. X-Citement – uses awkward grammatical construction to apply term “knowingly” to all elements, no SL

         4. Dotterweich, Balint – SL for drugs

         5. Olson – MR for statutory rape is usually SL, some jxns moving to negligence with MoF

   4. Mistake of Fact

      1. Common law

         1. The mistake has to be reasonable: Sherry, Zachary

         2. Moral wrong principle: when things are so morally wrong (Prince), then a reasonable mistaken belief about AC is not a defense

         3. Lesser crime principle: if you assault a cop and you didn’t know he was a cop, you’re still on the hook for assaulting a cop (Olson)

            1. MPC 2.04 – only culpable for what you thought you were committing

            2. MPC 213.6– age gradations for statutory rape

      2. MPC: 2.04(1)(a) – figure out MR first, then decide whether mistake-of-fact negates the MR (Kelly)

   5. Mistake of law

      1. Common Law: ignorance of law is never an excuse

         1. Marrero, Weiss (kidnapping), Cheek, Smith

      2. MPC 2.02: only a defense if it negates MR

         1. 1.13(9) = legality of an act is not an AC

   6. Specific intent – crime that requires as an element that the D have a specific intent to do something

      1. Premeditated murder, intentional (non premeditated) murder, assault with intent to rape, burglary (entering house with intent to commit felony)

   7. General intent – you only have to intend the act

      1. Hitting someone, driving too fast, having forcible sex, shooting into a crowded room

         1. Then what MR do you need for the AC?

            1. Like lack of consent in rape

         2. Or what MR you need for the result

            1. Like in manslaughter

3. Causation

   1. MPC 2.03 & Common Law

      1. But-for – substantial, but not necessarily only

      2. Proximate – foreseeable (under MPC – dictated by MR)

   2. Acosta, Root, Arzon, Kibbe, Warner-Lambert, Welansky, Deitsch, Lane, Main, Kern

Homicide

1. Murder

   1. MPC 210.2

      1. Purpose or knowingly

      2. Or recklessly under circumstances manifesting extreme indifference to human life

      3. Felony – murder (during course of felony)

   2. Common law

      1. Malice aforethought

         1. General rule: no time is too short to show premeditation

            1. Carroll

      2. Premeditated distinction – splits into first/second degree murder

         1. Guthrie

   3. Willful

      1. But they need to be able to see that you weighted the decision

         1. Guthrie (not deliberate, impulsive)

         2. Anderson Factors for premeditation

         3. Forrest

   4. Extreme Recklessness

      1. Implied Malice: Serne, Malone, Roe, Fleming

      2. Felony-murder

         1. MPC: 210.2 = robbery, rape, arson, burglary, kidnapping, felonious escape

         2. Common law: inherently dangerous felonies (if unenumerated felony)

            1. Killing must be in furtherance of the felony and

            2. In the course of the felony

            3. “Frolic & detour” theory = creates an “in furtherance” issue, ask yourself about proximate cause and foreseeability

            4. Phillips

         3. Stamp (eggshell), Wilkins (escape), Washington

         4. Causation issue

            1. King – nexus between conduct and cause of death

            2. Williams – misdemeanor-manslaughter (unrenewed license)

            3. Wilkins: nexus = part of continuous transaction

         5. Merger doctrine: If the felony you committed was manslaughter, then they can’t upgrade it to murder because you “committed it in the course of the felony of manslaughter”

         6. Agency theory (majority rule)

            1. Canola

         7. Proximate cause theory

            1. Depends on foreseeable

         8. Abstract test – looks to the felony as it appears in the statute books and just decides in the abstract whether it’s dangerous or not

            1. Phillips

         9. “As committed test” – how felony was committed in particular case

            1. “child neglect” – not necessarily dangerous, but it turns dangerous when the person is a crack addict who doesn’t feed her kid for a week

2. Manslaughter

   1. MPC 210.3

      1. EED

         1. Cassasa (bathtub killer- EED not a defense)

         2. Walker (bread knife stabber, drugs, no EED)

      2. Reckless

   2. Common law – voluntary manslaughter

      1. Result of heat of passion from provocation

      2. Must be provoked by adequate and reasonable provocation

         1. Strict approach: established categories of reasonable provocation (Being attacked, seeing your wife cheat on you)

         2. Flexible approach: reasonableness up to jury

      3. Must have sense of immediacy, with no time for the blood to cool

         1. Strict: judge determines as a matter of law

         2. Flexible: jury determination

            1. Berry (waits for V in apt for 20 hours)

      4. Maher’s 4th element: as a result of temporary excitement, rather than cruelty or recklessness of disposition

      5. Girouard (words)

   3. Involuntary manslaughter

      1. Some states require recklessness and some require criminal negligence

         1. Williams: only one that allows civil negligence for involuntary manslaughter

            1. Civil = violation of a duty of care (should have known risk of harm)

            2. Criminal = gross deviation from standard of care, and typically involves a substantial risk of harm (MPC)

         2. Bicycle case (civil negligence)

         3. Conrad Murray

      2. Welansky (recklessness), Hall

3. Negligent homicide

   1. MPC 210.4

   2. Common law: some jxns

Rape

1. Common law

   1. AR

      1. Physical force + no consent = always rape (even in MD)

         1. Force

            1. No force required under MTS (except penetration)

            2. Resistance

               1. Rusk: must have proof of resistance or proof that victim failed to resist because of fear of serious bodily injury/death (Hazel rule)

               2. Some states: interpret ‘force’ part as requiring resistance

         2. Non physical coercion – Rape under PA statute and Lovely

      2. MR

         1. Majority = negligence (should have been aware of substantial risk that V wasn’t consenting) (but Alaska = reckless)

         2. Few = SL. (assuming state proves all elements, D is liable. Even if reasonable person would have thought she consented)

         3. Lack of Consent

            1. MTS

               1. Non consent is the default. All that’s required : that V did not affirmatively and freely give permission. Burden on D.

                  1. Objective standard: whether words/actions were demonstrated as permission to reasonable person

            2. Mistake of fact

               1. Sherry: any resistance is enough when it demonstrates lack of consent is honest and real. Mass. now has no physical resistance requirement.

                  1. Mass. now does not allow reasonable mistake defense.

               2. Morisette, - SL

                  1. Grant, Sherry – leave open possibility of reasonable good faith mistake as defense because criminal intent may be negated by various factors, such as duress, involuntary intoxication, insanity, or legitimate mistake of fact

               3. Fischer – ‘no means yes’ = not reasonable mistake defense

                  1. Williams standard applies

                  2. Penn. now also SL state.

                  3. Perrish Cox

   2. Always rape if: unconscious, underage, mentally incompetent

   3. Liberta: no marital exception (1984)

   4. Fraud

      1. Inducement (not criminal) – think AC is different

      2. In Factum (criminal)

2. MPC 213.1

Attempt

1. Common law

   1. AR – level of commission (McQuirter = no test)

      1. First step – never followed

         1. White

      2. Subst. Step = feds

      3. Equivocality = look at act themselves to show intent

         1. Booneville v. Mendecino county

         2. Harper

      4. Danger of proximity test = but for timely interference

         1. Rizzo – tending test

         2. 9th circuit

         3. Duke (should be up to legislature if MR should be lower)

      5. Lest step – never followed

         1. Eagleton

   2. MR

      1. Conduct – purpose (usually)

      2. Result – purpose (usually)

         1. Infers purpose, but still requires purpose

            1. Smallwood

            2. Raines –specific intent to kill is necessary

      3. AC: same as underlying offense

   3. Attempted drug crime: punished same as completed

2. MPC 5.01

   1. AR – level of commission

      1. Substantial Step 5.01(2) = strongly corroborative of the actor’s criminal purpose

         1. Types

            1. Lying in wait, searching for or following victim

            2. Enticing victim to go to the place contemplated for its commission

            3. Reconnoitering the place contemplated for the commission of the crime

            4. Unlawful entry of a structure, vehicle or enclosure in which it is contemplated that the crime will be committed

            5. Possession of materials designed for such unlawful use or which can serve no lawful purpose

            6. Possession, collection or fabrication of materials that serve no lawful purpose

            7. Soliciting innocent to engage in conduct constituting element of crime

         2. Jackson

         3. Hofus – jurors need not agree unanimously as to which particular actions constituted subst. step

   2. MR

      1. Conduct: purpose (5.01(1)(a))

      2. Result: Purpose (5.01(1)(b))

      3. AC: same as underlying offense (5.01(1)(b))

         1. Belief is sufficient in some jxns

   3. No impossibility defense

3. Transferred intent

   1. Common law

      1. Where crime requires intentionally cause partic. result, element of crime is satisfied where accidentally causes result to one person while intentionally trying to cause it to another.

      2. Majority: can be convicted of actual murder and attempted murder (because of specific intent)

      3. Wounding 2? Only 1 intent to kill, so only 1 attempt charge

   2. MPC 2.03(2)(a)

      1. Relies on causation doctrine, not transferred intent, for X’s liability

...