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Criminal Law Common Law/ Model Penal Code Comparisons

Professor Brickey, Spring 2002

Actus Rea
Common Law
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)
Mere presence + Intent to posses + power to
possess = conviction
Mere presence possession
(Kimbrellwatching drugs)
There must be a duty
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 = manslaughter

Model Penal Code

There must be a voluntary act or omission
Conduct: physical activity (affirmative act),
Result: consequence
Circumstance: external conditions when
engages in conduct

Possession is an act if:
knowingly procured OR
knowingly received the thing OR
was aware of control for sufficient period
of time
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 Rea
Common Law
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 Test
Specific Intent Crime:
Requires actual intention to do more than
actus reus, not just general
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)
General Intent Crime:
Intent to commit an act, serves as actus

Model Penal Code

Criminal 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

MPC no longer recognizes the distinction

between general and specific intent. Rather,
it spells out what is required for each crime.

(See above)

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

Common Law
Intentional or deliberate a voluntary,
intentional violation of a known legal duty
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

Model Penal Code


Strict Liability
Common Law
Malum prohibita
Statutory rape, bigamy
No need to show culpable mental state

Model Penal Code

Can only be a violationminor offenses, not
crime; fine/forteiture

(Transferred Intent)
Common Law
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 felony
no bootstrapping allowed (felony must be
independent)People v. Wilson

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

Model Penal Code

3 ways to prove
Purposefully, knowingly (differs from
willinglydid away with malice
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

immediately antecedent and having direct

causal connection with it as well as acts
immediately following it
1 degree
Lying in wait
2 degree:
Depravity of heart
No intention to kill

Only 1st degree

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
o Want of provocation on part of dead
o Conduct and statements of defendant before and after killing
o Threats and declarations of defendant before and during course of occurrences
giving rise to killing
o Ill-will or previous difficulty between defendant and victim
o Dealing of lethal blows after deceased rendered helpless
o Evidence that the killing was brutal
Common Law
Intent to kill, but in the heat of passion
with no malice aforethought
Objective test for sufficiency of
4 requisites
1) acts in response to provocation which
would cause a reasonable man to lose
his self-control (actualmere words are
not enough)
2) heat of passion

Model Penal Code

No distinction between voluntary and
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

3) lapse of time not enough to cool off

4) had not cooled off
Criminal negligence required
Unintended killing caused during the
commission of an unlawful act not
amounting to a felony
Should be aware

Negligent Homicide
Committed negligentlyought to have
been aware of the risk; inadvertent;

Common Law
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
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 preparation
must have culpability to commit a crime
there can be no attempt of negligent homicide

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

Model Penal Code

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
Substantial 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
Six circumstances which shall not be held
insufficient as a matter of law:
lying in wait, searching for, following
reconnoitering the place contemplated
unlawful entry
possession of specially designed materials
possession of materials at or near place of
soliciting an agent to engage in conduct
Legal 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 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, Rojas

No factual Impossibility Defense

No hybrid defense

Common Law
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

Model Penal Code

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
Affirmative defense to persuade other
person not to commit crime or prevent
commission of the crime if renunciation is
complete and voluntary

Common Law
Involuntary abandonment never a defense

Not a defense if the crime is completed

Model Penal Code

Requires complete and voluntary
Not voluntary is motivated by increase in
probability of detection
Affirmative defense if you persuade
accomplice not to do so or otherwise prevent
commission; requires that crime not be
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

Common Law
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 offense
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 completion
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 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

Model Penal Code

Guilty 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
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
Unilateral Theory: individual is liable if he
agrees with another person

Rejection 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
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 Law
Principal in the 1st Degree:
The person who actually commits the

Model Penal Code

Guilty of offense if committed by own
conduct or by someone for whom legally

Principal in the 2nd Degree:

Person who aided, counseled, encouraged
the commission of the crime
Present at the time the crime was
Can be constructivea look out
Must have same mens rea as principal
Accessory Before the Fact:
Aids and abets the commission of a crime
Not present at the time of the crime
merged with principal 2nd
Accessory 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.
Liable for all foreseeable consequences

Accomplice When:
Solicits another person to commit crime
Aids/agrees/attempts to aid in planning or
Has legal duty to prevent commission of
crime but fails to do so
Conduct by law establishes complicity

Rejects foreseeable consequences

doctrineaccessory not liable for crimes
beyond those which were intended to aid or

Ignorance or Mistake
Common Law
Mistake of Law:
Never a defense (traditional view)
Follow MPC (modern view)

Model Penal Code

Mistake of Law:
A defense if it negates the mental state
State of mind established constitutes
Not available as a defense if would have
been charged with another offense had the
situation been as he supposed
A belief that conduct is not offense is a
defense when:
Statute not known and has not been
published prior to conduct alleged

Mistake of Fact:
Defense only for specific intent crimes
must lack mens rea for crime
Must be an honest mistake
Mistake of age is no defense

Reliance on official statement of law

determined to be invalid or in error
Mistake of Fact:
Based on s subjective belief
Mistake of age is no defenseno defense
if under 10

Common Law
Model Penal Code
Voluntary Intoxication:
Voluntary Intoxication:
Not a defense but may be used if it negates
Defense if it prevents an accuse from
specific intent
having the required state of mindbut not
always a complete defense
Inadmissible to negate general
Does not negate recklessness or criminal
Involuntary Intoxication:
Involuntary Intoxication:
Presence or threat of force/duress
Defense if intentionally ingests a
substance, but mistakenly believes that it
is not intoxicating