Checklist

  1. Define the statute
  2. Actus reus
  3. Mens rea
  4. Attendant circumstances
  5. Is it a felony?
  6. Death
  7. Felony Murder
  8. Look for any preliminary issues
  9. Attempt – only for purposeful or knowingly crimes
  10. Complete
  11. Incomplete
  12. Defenses
  13. Pure legal impossibility
  14. Renunciation
  15. Special Mitigation
  16. Completion
  17. Transferred intent
  18. Causation
  19. Death
  20. Felony Murder
  21. Defenses
  22. Self defense
  23. Defense of others
  24. Intoxication
  25. Duress
  26. Necessity
  27. Insanity
  28. Mistake of Fact
  29. Mistake of Law
  30. Agreement
  31. Conspiracy – overt act not req’d for 1st and 2nd degree felonies
  32. Pinkerton Liability
  33. Defenses
  34. Withdrawal
  35. Abandonment
  36. Renunciation
  37. Complicity
  38. Must prove underlying crime first: can be attempt

·  Identify crimes by victim

·  Identify potential Ds

o  What could they be charged with (greatest to least)

o  Plead in alternative and include lesser offense

·  Identify potential defenses (argue as P and D)

Analyze the Statute

  1. MPC Type [felony 1+ year; misdemeanor <1 year]
  2. Conduct: Must be at least one voluntary act or omission; we don’t care about the outcome
  3. Result: Don’t care HOW the result occurs
  4. Result-Conduct: Prohibits specific conduct causing specific results
  5. Strict Liability §2.05; see also classes of crimes §1.04
  6. Under MPC only can have violations w/o imprisonment and explicitly indicates
  7. Exception to statutory rape: § 213.6(1) allows for mistake of age if reasonably believed child to be above 10
  8. Default recklessness rule if no intent stated
  9. Preliminary Matters
  10. Does statute criminalize retroactive behavior? Essence of principle of legality: no punishment/ no crime if no law prohibiting it
  11. Is it vague or ambiguous? Statute must give sufficient notice and fair warning so individual can avoid prohibited conduct
  12. Factors – Banks, Morales
  13. Look to legislative intent
  14. History
  15. Common law crime at the time
  16. Circumstances at adoption
  17. Previous judicial interpretations of other places in code or statute
  18. If still unclear, probably void for vagueness
  19. Vague laws: trap the innocent; lead to arbitrary and discriminatory application; and chill lawful conduct
  20. Are there two equally plausible interpretations?
  21. Rule of lenity DOES NOT apply to MPC
  22. Should be interpreted to further, not frustrate, general purpose of offense
  23. What is actus reus?
  24. Must be: (1) voluntary act or omission (2) that causes (3) social harm
  25. What is mens rea?
  26. Particular mental state of culpability required for the offense
  27. Distribute to other elements unless contrary purpose explicitly stated
  28. Can be satisfied by higher level of culpability
  29. Attendant circumstances?
  30. Factual circumstances that are required in order for the social harm to be met
  31. Use mens rea of statute if ambiguous
  32. Can you use Willful blindness doctrine to satisfy mens rea?
  33. When knowledge of a particular fact is an element of an offense, it is established if:
  34. Aware of high probability of fact’s existence; and
  35. Deliberately avoids acquiring further knowledge

Anatomy of a Crime

Actus Reus

Definition: A voluntary act or omission that causes social harm

Possession is an act if the possessory knowingly procured or rec’d the thing possessed OR was aware of his control thereof, for a sufficient period, to have been able to terminate his possession.

1.  Was the actor’s conduct involuntary?

  1. Reflex/convulsion
  2. Unconsciousness/sleep
  3. Hypnosis
  4. Bodily movement not product/effect of actor

i.  Compare with Duress

2.  Was harm caused by omission?

  1. Omission [failure to act]
  2. By statute of the offense or
  3. Otherwise imposed by law
  4. Status relationship
  5. Doctor/patient, parent/child
  6. Contractual
  7. Voluntary assumed care to prevent others from rendering aid
  8. Create the peril: placing other in danger

3.  Exception

  1. Can be convicted of a violation in absence of a voluntary act
  2. Ex: Person gets into car and spontaneously has heart attack (totally unaware), can be charged with driving violation (ie: act was not voluntary)

Mens Rea

Definition: Particular mental state of culpability required for the offense

1.  Did D mean to harm someone else?

  1. They can be charged with Attempt

b.  Transferred Intent: purpose to punish culpability

  1. With respect to person, must be the same type of harm
  2. Ex: A intends to kill B, kills C
  3. Not: A intends to kill dog, kills C; A intends to hit A with rock, breaks window
  4. Can result in punishment disproportional to culpability (see actual outcome #2, bad aim ends up being punished worse than if crime succeeded the way as planned)

Desire:
AàB intends to kill
AàC intends to leave unharmed / Outcome #1:
A kills B à intentional killing
C remains unharmed à recklessly endangering C / Outcome #2:
A kills C à intentionally killing by way of TRANSFERRED INTENT
B remains unharmed à ATTEMPT

Was there Causation?

Goal is not to punish D for a result that is too far beyond what she intended or risked. Would the result not have occurred without the D’s conduct? Then, we compare the actual result with intended result to see if there is a causal connection.

  1. Look at actual result [SEE NEXT PAGE for Step #2]
  2. Was D the “but for” cause [if not for D’s conduct, would social harm occurred when it did?] and satisfies any causal requirements imposed by the MPC or the defining offense
  3. Use substantial factor analysis to resolve concurrent causation issues Do we have conspiracy or accomplice?
  4. Were there two distinct injuries? Do we have conspiracy or accomplice?
  5. Must accelerate death for there to be causation, or there can be no conviction
  6. Ex: “But for the act, would the harm/death have occurred WHEN IT DID”
  7. Aggravation is not acceleration
  8. Then, if D was actual result, look to see if it matches D’s INTENDED result
  9. Causation is not established if the actual result was not within the contemplation of the actor (or a harm the D consciously risked or should have been aware she was risking) UNLESS
  10. Same harm w/r/t different person/property [TRANSFERRED INTENT]; or
  11. Contemplation was WORSE than actual result; or
  12. Not too remote or accidental [ARGUE BOTH SIDES – POLICY JUDGMENT]
  13. Reasonable forseeability
  14. Acts of free will break chain of causation
  15. Suicide?
  16. Grossly negligent medical care – good argument to make, but not negligent medical care

Was there temporal concurrence?

  1. Example:
  2. D breaks into house in order to escape cold. Thereafter decides to steal property. Prosecuted for burglary, which states “breaking and entering the dwelling with intent to commit a felony.” Cannot be charged b/c developed mens rea after act
  3. D wants to kill V. D thinks gun is unloaded and tests gun by pulling trigger. As she does, V enters unexpectedly and gets shot. Although D had intent, it was not the actuating force behind the conduct.
  4. D commits voluntary act, which she intends to cause death, but does not. Thinking V is dead, commits second voluntary act, which actually kills.
  5. D starts fire. Leaves, and decides not to put out. Charged with intent to injure insurance company because omission.
  6. ACT (set fire) à INTENT (defraud insurer) à OMISSION (failure to stop act)

Did someone DIE?

1.  First Degree [C-Law] 1st

  1. Premeditated purpose to cause death
  2. Mental process of thinking before hand, deliberation and reflective
  3. Planning, nature and manner of killing (number of wounds, brutal killing), threats, D’s admissions, motive, type of weapon used
  4. Thought does not come into mind the first time at the time of killing – Guthrie

2.  Second Degree [C-Law] 2nd

  1. Purposely or knowingly causes death of other
  2. Spontaneous and non-reflective

3.  Reckless Murder [MPC] 2nd

  1. Acts recklessly (unintentional) under circumstances manifesting extreme indifference to value of human life
  2. No redeeming social purpose to activity
  3. Unusually callous toward welfare
  4. High probability of causing harm
  5. High gravity of harm

4.  Voluntary Manslaughter [MPC] 3rd

  1. Knowingly causes death of another under influence of extreme mental or emotional disturbance of which there is reasonable explanation/excuse. Determined from viewpoint of person in actor’s situation under circumstances he believes them to be
  2. Extreme emotional distress
  3. Disturbance must have reasonable explanation or excuse from viewpoint in D’s situation
  4. Slight subjective/objective (no triggering/provocative event needed)
  5. Idiosyncratic or unusual beliefs unacceptable
  6. Distress must have reasonable explanation or excuse
  7. No cooling time required (can have cumulative provocation)

5.  Involuntary Manslaughter [MPC] 4th

  1. Causes death of another by acting recklessly
  2. Consciously disregards risk that is substantial and unjustified
  3. Gross deviation from ordinary standard of care
  4. Assess nature and purpose of actor’s conduct and circumstances known to him (slight subjective)

6.  Negligent Homicide [MPC] 5th

  1. Causes death of another by acting negligently
  2. Should have been aware of substantial or unjustifiable risk
  3. Gross deviation from ordinary standard of care
  4. Assess nature and purpose of actor’s conduct and circumstances known to him (slight subjective)

Felony Murder (see next page)

7.  Felony Murder [C-Law] 2nd – Strict liability: NO ATTEMPT

  1. Killing is committed when the actor, alone or with others, is engaged in commission of/attempt/or flight after committing/attempting to commit a felony that is inherently dangerous to human life
  2. Must have a predicate felony
  3. The predicate felony must be independent of the homicide (or will merge under merger rule, designed to prevent bootstrapping!)
  4. Look to element of crime not facts of case – Smith
  5. Look for anything that is assault, physical violence, manslaughter (don’t swallow up): ie: threat of immediate violent injury
  6. Predicate felony must be inherently dangerous

1.  Abstract (majority rule)

a.  Is it generally dangerous to human life?

i.  By its very nature can it not be committed without creating a substantial risk that someone will be killed? – Howard

  1. Ex: shooting at an inhabited dwelling, poisoning with intent to injure, arson of motor vehicle, grossly negligent discharge of a firearm, meth manufacturing, kidnapping)
  2. In Howard, reckless and dangerous driving when they were coupled with non-violent violations were NOT inherently dangerous
  3. Facts of case (minority rule)
  4. The killing must be in furtherance of felony (causation component)
  5. Make sure that the murder formed AFTER intent to commit felony

2.  Agency approach (majority)

a.  Directly attributable to an act of D or D’s accomplice

b.  You can’t impute acts of the non-felon to a co-felon on the basis of agency

  1. Proximate Cause approach (minority)
  2. Any death proximately resulting from felony if co-felon set acts in motion
  3. Note differences in MPC: creates rebuttable presumption and is only available if recklessly/negligently for robbery, rape or deviate sexual intercourse by force/threat of force, arson, burglary, kidnapping or felonious escape

Are there any defenses to the completed crime?

1.  AFFIRMATIVE [D must raise] [ONLY FOR COMPLETED CRIMES]

a.  Justification [D does right thing in situation]

i.  Self-Defense

  1. D must perceive threat to be immediately necessary to use force
  2. Perception is subjective, D must sincerely believe need
  3. Circumstances facing D in his situation – Goetz
  4. Knowledge, physical attributes, past experiences
  5. Can kill in advance, don’t need to wait until “the” very last moment
  6. Hinges on when innocent person’s NEED to use force exists immediately

1.  C-Law requires imminence

  1. If D’s belief in using force is unreasonable [objective]:
  2. BWS – is it reasonable?
  3. If D is negligent in belief, responsible for crimes requiring mens rea of negligent
  4. If D is reckless in belief, responsible for crimes requiring mens rea of negligent or recklessness
  5. If D recklessly or negligently injures of creates a risk of injury to innocent:
  6. Responsible for crimes requiring mens rea of negligence and recklessness
  7. D must use proportionate force [hinges on perception of threat]

ii.  When can you use Deadly Force

  1. Need same as above +
  2. Threat must be
  3. Death
  4. Serious Bodily Injury
  5. Forcible Rape
  6. Kidnapping

iii.  When you CANNOT use Deadly Force

  1. When you are the aggressor who provokes by using seriously bodily injury or death
  2. If you are nonlethal aggressor, you do not lose privilege if your V escalates to lethal attack
  3. If D knows he can retreat to COMPLETE safety to avoid the need to use force

a.  EXCEPTION

i.  You do not need to retreat in your own home

1.  UNLESS YOU WERE THE INTITIAL AGGRESSOR THEN YOU DO

ii.  You do not need to retreat in your place of work

1.  UNLESS YOUR ATTACKER ALSO WORKS THERE THEN YOU DO

  1. If D is being robbed, must relinquish possession of property to thief rather than use deadly force in response

iv.  Defense of others

  1. Must comply with same rules of self-defense; and
  2. Under circumstances as actor believes them to be, person that he is protecting would be justified in using force; and
  3. Actor must believe intervention is necessary to protect other
  4. Same rules apply if belief is unreasonable
  5. No duty to retreat, except in unlikely circumstance that she knows it will ensure complete safety of other
  6. Actor must try to cause V to relinquish possession of item, if doing so will obtain safety

b.  Necessity (INAPPLICABLE TO CIVIL DISOBEDIENCE)

  1. D must actually believe that conduct is necessary to avoid evil
  2. Must think they are choosing lesser (subjective) evil and must have chosen lesser evil (objective)
  3. Mere existence of constitutional law or government policy not enough
  4. Must be no adequate alternative
  5. No requirement of immediate threat
  6. D can create the threat, but:

1.  If negligent, responsible for crimes with mens rea of negligence

2.  If reckless, responsible for crimes with mens rea of negligence and recklessness

  1. D’s choice cannot be rejected by a specific law: the legislature already weighed two evils and says no
  2. May be used as defense for murder

c.  Excuse [D conduct not socially desirable but excused]

  1. Intoxication

Disturbance of mental/physical capacities resulting from introduction of substances to body

  1. Involuntary (non-self induced/pathological/coerced)

Pathological: grossly excessive in degree given the amount of the intoxicant, to which the actor does not know he is susceptible

  1. Defense if it:
  2. Negates ANY ELEMENT (look at actus not just mens); AND
  3. D Lacks substantial capacity to appreciate criminality of conduct
  4. Renders D temporarily insane
  5. Voluntary (self-induced or knows of susceptibility)

Knowingly introduces into body, the tendency of which to cause intoxication he knows or ought to know, unless introduces pursuant to medical advice

  1. Is a defense if:
  2. It negates ANY ELEMENT of offense (for purposeful or knowingly crimes)

b.  EXCEPTION