Mini Outline

Sunday, November 29, 2009

4:01 PM

Homicide

Common Law
Murder - killing w/ malice aforethought
First Degree
Premeditated
Second Degree
Not premeditated
Depraved heart/implied malice
(First and Second not always distinguishable)
Felony-Murder
Must occur as a result of the commission of a felony
Merger Doctrine
Inherently Dangerous
Broad (crime in the abstract)
Narrow (as crime was committed)
Independent Felonious Purpose
Now, arson and sale of cocaine are in, armed robbery is out
If someone other than the felons kills
Agency Theory
Proximate Cause Theory (in furtherance of)
Provocative Act Theory/Implied Malice (see second degree)
Manslaughter
Voluntary
Legally adequate provocation (objective)
Involuntary
Recklessly
Criminally negligently (reasonable man)

MPC
Murder
Purposely
Knowingly
Reckless w/ extreme indifference to human life
NO Felony-murder, BUT rebuttable presumption of extreme
indifference to human life when robbery, rape, burglary, arson,
felonious escape, kidnapping)
Manslaughter
Recklessness
Extreme Emotional/Mental Disturbance (more subjective)
Negligent Homicide
Negligence (which by definition is gross negligence, based on
objective reasonable man standard)

Mistake as a defense
Common Law
Mistake of Fact
General intent - must be reasonable
Specific intent - must negate the intent (reasonable or not)
Rape = general intent - must be reasonable
If the person thought the facts made it a lesser offense, and it
turns out to be a greater offense, that's too bad - still can be
charged with the greater offense
Mistake of Law
Direct is not a defense
Unless knowledge of the law is written into the statute
(e.g. tax law)
Collateral can be used as a defense if it negates an element of
the crime (mens rea or specific intent)

MPC
No split
Must negate the required intent or mens rea of the crime
For direct mistake of law, must be based on some official statement later
proved erroneous
If person thought the facts made it a lesser offense and it turns out to be a
greater offense, can mitigate the charge
If the person thought it was a greater offense and it turns out to be a lesser
offense, can still be charged for the greater offense (situation as they believed
it to be)

Strict Liability Crimes

No mens rea required
Generally,
Relatively new statute
Low penalty (fee)
Low stigma
Easy to avoid doing
Mistake is not an excuse for strict liability crimes
Generally, strict liability has to be explicitly written into
the statute
Statutory rape is an unusual strict liability crime b/c high
stigma and penalty

Causation

Common Law
MPC
But-for cause = if this didn't happen, the result would not have occurred
But-for cause = if this didn't happen, the result would not have occurred
Crim Outline Page 1

Causation
Common Law
MPC
But-for cause = if this didn't happen, the result would not have occurred
But-for cause = if this didn't happen, the result would not have occurred
AS and WHEN it did
AS and WHEN it did
To be legally sufficient, there must be but-for cause PLUS proximate
To be legally sufficient, there must be but-for cause PLUS legal cause cause - but-for cause that is sufficiently closely connected to the
but-for cause that is sufficiently closely connected to the ultimate harm
If mens rea for result is knowingly or purposely, then must act
ultimate harm
Must be reasonably foreseeable or sufficiently connected (ex knowingly or purposesly
If mens rea for result element is recklessly or negligently, then must
punching hemophiliac - don't know but still guilty)
Often foreseeability is affected by how the result is framed
act recklessly or negligently
UNLESS:
Final harm v. chain of events
Specifically v. more broadly
1) A lesser harm occurred than what was intended
Independent Intervening causes break the chain of causation
2) The harm occurred to an unintended victim (transfer)
Dependent intervening causes do NOT break the chain
If the result element has strict liability, then the result must have
been a probable consequence of the actor's conduct

Attempt
Common Law
For result element, must act with intent to create that result
(recklessness is not sufficient, but belief or hope is)
For conduct element, must have acted so that if you had succeeded,
the crime would have been committed
How close?
Proximity approach - dangerously close
Equivocality approach - actions speak for themselves
If one attempts to aid a crime that is not committed, there was no
crime, so there is no accomplice liability

MPC
For result element, must act purposely or knowingly (with belief)
For conduct element, must act purposely
For circumstance element, must act with whatever mens rea is required
of the target crime
How close?
A substantial step in furtherance (list of things that are not out as a
matter of law and will be left to the jury)
An attempt to aid the commission of the crime, even if the crime is not
completed is sufficient to be charged for attempted commission as the
principle(i.e. attempted accomplice = attempt)
Much more subjective - based on the circumstances as the actor
believed them to be
Abandonment is a defense if there is a complete and voluntary
renunciation, and not just b/c you are about to get caught or you plan to
wait to do it later or to someone else instead

Accomplice Liability

Common Law
1) act with the intent to aid or encourage the perpetrator to engage in the
conduct constituting or resulting in the commission of the crime
Must actually want the crime to be committed
2) AND you have to act with whatever mens rea is required for the target
crime
If there is a result element, you must be reckless/negligent if that is
sufficient for the completion of the crime (ex. negligent vehicular
homicide when encouraging someone to speed)
For circumstance elements, generally, the accomplice must be at least
aware of the circumstance, even if it is a strict liability crime (with rare
exceptional jurisdictions)
If it is not a strict liability crime, it is unclear what the
requirement is for circumstance elements
Natural and Probable Consequences Rule
If a person attempts to aid or encourage, but the perpetrator is unaware of
the attempt, common law will not find that person guilty as an accomplice
If a person is an accomplice to a crime that is not fully completed, they are
still an accomplice to the ATTEMPT
unless there was no attempt at all, and then there is not crime, so
there can be no accomplice

MPC
With PURPOSE of promoting or facilitating commission of the crime, you
solicit someone else, aid (or agree to aid or attempt to aid) in planning or
commission, fail to prevent the commission if you have a legal duty to do
so
If there is a result element, the accomplice must act w/ required mens rea
of the crime for that result
MPC deliberately does not say what the required mens rea is for
circumstance elements - leaves it to the discretion of the courts

MPC does NOT follow the Natural and Probable Consequences Rule
If a person attempts to aid or encourage, but the perpetrator is unaware
of the attempt, MPC still hold them guilty for accomplice liability, b/c they
would have been guilty under the circumstances as they believed them to
be
If a person is an accomplice to a crime that is not completed, they are still
a principle to the ATTEMPT (even if the crime isn't attempted at all)

Accomplices are convicted of the principal crime

Accomplices cannot be convicted of the crime when the principal is acquitted in the same trial, but
that can happen in separate trials
Also, accomplices can be charged for greater or lesser crimes than the principal, depending on the
mens rea
Innocent instrumentality doctrine - if the accomplice gets an innocent person to unknowingly or
under duress commit the crime, the accomplice will be tried as the principal

Crim Outline Page 2

Conspiracy
Common Law
The agreement to commit an unlawful act (can be circumstantial evidence)
Some jurisdictions also require an overt act
Can convict someone of conspiracy to commit a crime AND the target crime
Pinkerton doctrine - If a conspirator commits any crime, then all the other
conspirators are accomplices, as long as the crime is in furtherance of the
conspiracy and is foreseeable (does not have to be within the scope of the
original conspiracy)
Mens Rea:
1) Intent to agree
2) Intent to commit the target offense - purpose (OR knowledge if the
crime is serious enough in some jurisdictions)
Mens rea for circumstance elements:
If the conspirators were already planning on committing a crime, then
they will be held liable if the circumstances made it a more severe
crime
Scope:
Wheel
Chain
Must be more than one person agreeing (can't be one person tricking
another into agreeing, but not actually agreeing)

MPC
The agreement to commit an unlawful act (can be circumstantial evidence)
Must also have one overt act unless a 1st or 2nd degree felony
CanNOT convict someone of conspiracy and the target crime - they merge
Does NOT follow the Pinkerton Doctrine

Mens Rea:
1) Intent to agree
2) Intent to commit the target offense - must be purpose
Mens rea for circumstance elements:
If the circumstances themselves made it a crime (ex - age and statutory
rape), the MPC leaves it to the courts to decide whether or not it should
be a conspiracy (unlike attempt, where it is the same mens rea as for the
completed crime), b/c it is easier to convict of conspiracy

Self Defense
Common Law
1) Reasonable belief that
2) Force is necessary
3) Against the imminent use of unlawful force
4) And the defense force is not in excess to the threat
Imperfect self defense - all of the above, but the belief was
unreasonable
Battered Women's Syndrome Some states require retreat when one KNOWS one can do so with
COMPLETE safety
EXCEPT:
1) When you are in your own home
a) Unless attacked by a co-occupant
Initial aggressor cannot use self defense
What initial aggressor is is usually determined by the jury
If a person provokes, but then relinquishes and then the other
person continues, can break the chain
If a person is met with disproportionate harm, some states rule
you must try to retreat first (if not, manslaughter), others say
you can immediately defend

MPC
1)
2)
3)
4)

Reasonable belief that

Force is necessary
Against the imminent use of unlawful force
And the defense force is not in excess to the threat
Reasonableness of the belief is determined by the actor in the
circumstances as he believes them to be
- If belief is reckless or negligent, then not a defense to crimes with
mens reas of recklessness or negligence
- An unreasonable belief gets negligent homicide
Must retreat when one KNOWS one can do so with COMPLETE safety
- EXCEPT:
At home or work
Unless attacked by a co-worker at work
OR you provoked the attack
Initial aggressor/provoker cannot use self defense
- Unless provoked attack was a much lesser threat and the person
responded excessively

Necessity/Choice of Evils
Common Law - Necessity Defense
1) Situation threatening imminent harm unless law is broken (or D
reasonably believes so)
2) D isn't at fault in bringing about the situation
3) Harm avoided by lawbreaking is greater than harm created by
lawbreaking
4) Legislature hasn't already balanced the competing values
Some jurisdictions hold that the situation must actually exist (not just
that D reasonably believes it's so)
When is it allowed for killing?
When there is joint venture
When there is double effect - no purposeful killing (only
knowledge)

MPC - Choice of Evils

1) Situation threatening imminent harm unless law is broken (or D
reasonably believes so)
2) Harm avoided by lawbreaking is greater than harm created by
lawbreaking
3) Legislature hasn't already balanced the competing values
If D created the situation recklessly or negligently, will not be a defense
to crimes of recklessness or negligence
When is it allowed for killing?
Two rock climbers
Farm family and the flood
Whenever more lives are saved than lost
When there is joint venture

Duress
Common Law
1) Imminent threat from another person
2) Of death or at least GBH to oneself or another (usually relative)
3) That is reasonable to take seriously

Crim Outline Page 3

MPC
1) The use of or threat of the use of
2) Unlawful force
3) Against oneself or someone else

Common Law
1) Imminent threat from another person
2) Of death or at least GBH to oneself or another (usually relative)
3) That is reasonable to take seriously
4) And traditionally not allowed for killing

MPC
1)
2)
3)
4)

The use of or threat of the use of

Unlawful force
Against oneself or someone else
Which a person of reasonable firmness in the actor's situation would
have been unable to resist
NOTE: no imminence requirement
MPC allows choice of evils and duress defenses to be used together
Cannot recklessly place yourself in a situation where you might be put
under duress, and if you do so negligently, you will not be able to use it as
a defense to a crime of negligence

Insanity
Common Law
M'Naghten Rule - NGRI if at the time of the commission of the crime,
the D was under the influence of a mental disease or defect which
resulted in:
1) The D not knowing the nature of his actions OR
2) The D not knowing the wrongness of his actions
Wrongness can mean morally or legally
Feds - NGRI if at the time of the commission of the crime, D was under
the influence of a mental disease or defect which resulted in:
1) The D not understanding the wrongfulness of his acts OR
2) The D being unable to conform his actions to the law (irresistible
impulse test)
The Product Test/Durham Test (NH) - the D is NGRI if the D's actions
were a product of a mental disease or defect
This includes only but-for causation

MPC (aka ALI)

NGRI if at the time of the commission of the crime, the D was under the
influence of a mental disease or defect which resulted in the D lacking
substantial capacity to:
1) Understand the wrongfulness of his acts OR
2) Conform his actions to the law
Note: 1 = cognitive prong, and 2 = volitional prong
Hard to say what is substantial

Diminished Capacity
Common Law
Failure of proof defense
D was unable to form the requisite mens rea (sometimes not
allowed)
D did not form the mens rea
Generally, only allowed for specific intent crimes

Crim Outline Page 4

MPC
Affirmative defense
Even though the D had sufficient mens rea and actus reus, they
should not be held as liable due to their impairment - extreme
emotional or mental disturbance
MPC allows for any crime (general or specific intent)