Theories of punishment

Conduct crime: harmful results not necessary

- Utilitarianism: deterrence/prevention
Result crime: doesnt matter how the result occurs (ex: murder)
o General: deter public at large
Attendant circumstances: must be present when actor
o Specific: specific Ds conduct
performs the prohibited conduct/causes prohibited result that
o Ends justify means
constitutes the social harm of the offense; found in definition
o Rational-actor model
of crime
- Rehabilitation: treatment
Actus reus: A 1) voluntary act that 2) causes 3) social harm
- Incapacitation: keep in prison
Material element: connected to the harm/evil sought to be
- Retributivist: punish b/c offender
prevented by the law defining the offense
deserving
o Proportionality
o Means > ends
- Mixed Theory
Actus Reus Volutary Act
- MPC 2.01
o Voluntary act necessary element for every crime
o Involuntary acts
Reflex/convulsion
Body movement during unconsciousness/sleep
Conduct during hypnosis
Others
o Omissions unaccompanied by acts dont count unless specified in law or duty present
o Possession is an act
o Habits are voluntary
o Dont need to prove actus reus for violations (offenses w/ max of fine or civil penalty)
- Common Law
o If involuntarily drunk in public, not guilty of public drunkenness (Martin)
Read the need for voluntary act into the statute term appears
o Epileptic driving is sufficiently voluntary (Decina)
Time-framing (broad); compare with Martin (narrow)
o Unconsciousness is a defense, even when shooting people (Newton)
o Sleepwalking + killing daughter w/ axe is aquittable because involuntary (Cogdon)
o Making addiction status illegal is unconstitutional (Robinson)
o Alcoholism isnt a disease and not covered by constitution (Powell)
Actus Reus Omissions
- MPC 2.01 (3b)
o No duty is the rule unless duty via:
Contract: contract creates duty to act
Status: relationships where one is dependent on another
Voluntary undertaking: your care excludes others from caring
Creation of peril: creating peril leads to duty to aid
Special case of medical omissions
- Common Law
o Moral obligation insufficient; need to find legal duty (Jones)
o Not intervening when mother beating child is okay if no legal obligation (Pope)
Bystander indifference
o Ceasing life support is omission; MD no duty to continue ineffective treatment/extraordinary care
(Barber)
- Statutory duty (ex: taxes; Bad Samaritan Law in Vermont)

Mens Rea
MPC 2.02(2)
MR for each element

General

Purposely

Knowingly

Recklessly

If statute specifies, apply to every material element of

offense
No specification use recklessness or above
^ canon of construction
Results/conduct: Ds conscious object to engage in
conduct/cause such a result (inc. transferred intent)
Attendant: D aware of existence of such circumstances
or believes/hopes they exist
Intentionally = purposely
Result: D aware it is practically certain that conduct will
cause result
Conduct: D aware conduct is prohibited
Attendant: D aware of high probability of
circumstances existence, unless actually believes it
doesnt exist
Willful = knowledge
Consciously disregard substantial and unjustifiable risk
that the material element exists/will result from
conduct
Substantial and Unjustified: gross deviation from the
standard of care that a law-abiding person would
observe in actors situation

Negligently

Inadvertently taking substantial and unjustifiable risk

(usually gross negligence)
Substantial and Unjustified: gross deviation from
standard of care that a reasonable person would
observe in actors situation

Strict
Liability

No MR

Common Law
Court apply named culpability provision to
every material element unless contrary
purpose appears

Intentionally = purpose/knowledge
Not should have been aware, but actually
aware

See above

Consciously disregards substantial and

unjustifiable risk of which D was aware
Majority subjective standard: D reckless if knew
of high risk
Minority objective standard: reasonable
person; D liable if extremely careless even if did
not know
Mostly same as MPC
BPL
Criminal Neg.: gross deviation
Civil Neg: mere deviation (not for crim)
Reasonable person include physical
characteristics but not much else
No MR

Only for violations (fine or civil)

-

General vs. Specific

o General (culpability): actors vicious will or moral culpability for causing social harm
o Specific (elemental): particular mental state that is an express element of the offense
Purposely vs. Knowingly
o If consequence is byproduct, then knowingly
o If consequence is means to end, then purposely
Common Law
o When stealing gas gauge for money and poisoning mother-in-law, foresight must attend to the type of
consequence that occurred (Cunningham)

No transferred intent when lighting match to see rum better when stealing and burning down ship
(Faulkner)
o Spilling oil while steering ship over reef is held to the looser standard of negligence in civil liability than
the stricter standard of criminal negligence, aka gross negligence (Hazelwood)
Mens Rea Conditional Intent
- When a particular purpose is an element of an offense, the element is established even if the purpose is
conditional, unless the condition negatives the harm sought to be prevented in the offense
- Test: imagine the conditions are met and see if D would be committing a crime
o Yes conditional intent is just as good as specific intent and D is guilty (ex: carjacking)
o No existence of condition means the crime disappears, so there is no crime and D not guilty (ex:
consensual sex)
Mens Rea Willful Blindness/Deliberate Ignorance
- When knowledge is element of offense, it is established if person is aware of a high probability of a facts
existence unless actually believing it doesnt exist (MPC 2.02(7))
- Common Law
o More willing to hold D responsible for willful blindness
o 1) D aware of high probability of existence of the fact
o 2) Deliberately fails to investigate to avoid affirmation of the fact
o Deliberate ignorance and positive knowledge are equally culpable when D knowingly transports
marijuana while purposely avoiding knowledge of the drugs (Jewell)
Willful blindness is as bad as knowledge and thus, makes sense to convict for it
Not applied equally; a lawyer can avoid finding out clients guilt and thats okay
Mens Rea Transferred Intent
- Transfer MR as to the intended victim to the unintended one
- Does not apply to:
o Attempts
o If statute requires intent to be directed toward actual victim (bribing official)
o Resulting harm is different social harm than what was intended
o More harm occurs then D purposefully wanted to happen (both victims die)
- Common Law
o Intent does not transfer to different social harm when intending to steal rum and lighting a match to see
but result is ship burning down (Faulkner)
Mens Rea Strict Liability
- Generally disfavored by both MPC and common law
- Used in certain types of cases:
o Public welfare offenses (regulatory crimes)
Involves malum prohibitum conduct, rather than malum in se (10 commandments)
Violation would injure many people, so dont require mental state
o Representation for something else (the immaturity of the victim statutory rape)
o Relative ease of compliance
o Low level of punishment and low level of stigma
- Common Law
o Dont need proof that Ds knowingly sold derivatives of opium in violation of federal statute, but
possibility that people would be harmed > possibility people who didnt know would be convicted
(Balint)
o Dont need mens rea for mislabeled drugs because burden should go on those who have the
opportunity of informing themselves (i.e. president and general manager of company) than helpless
innocent public (Dotterweich)

In a case of conversion of government property, must know that conversion is wrongful to be convicted
(Morissette)
o Strict liability inappropriate when buying a gun and not realizing worn-down metal made the gun
automatic (Staples)
Presumption that a crime has a mens rea element unless clear legislative intent to dispose of it
Mens Rea Mistake of Fact
MPC
Common Law
General
Mistake of fact is defense if it negates the mental state
Strict Liability Guilty no matter what
required to establish any element of the offense
Specific Intent not guilty if mistake of fact
negates specific intent portion of the crime
General Intent not guilty if mistake is
reasonable; guilty if unreasonable
Exceptions 2.04(2) Defense of mistake of fact not available if actor Moral Wrong Doctrine guilty of unintended
would be guilty of another offense, had the
outcome if D has intent to commit an immoral
circumstances been as he supposed
act (Prince)
- 1) Mistake unreasonable (convict) /
reasonable
- 2) Consider facts through Ds
perspective
- 3) Evaluate morality of conduct based
on facts as D believed them (if immoral,
convict)
Legal Wrong Doctrine substitute immoral
for illegal
Result
Guilty of only the lesser offense
Guilty of the offense committed, even if more
serious than MR
- MPC
o Each material element has a mens rea requirement, and if not met, then not guilty
o Mistake of fact is a defense if it negates mental state required to establish any element of the offense
Exception: Mistake of fact not available if actor would be guilty of another offense had the
circumstances been as he supposed
Punish at the level of the lesser offense
- Cases
o Taking a 14 y.o. is guilty even though told shes 18 because D intended an action that was also wrong
(Prince)
o Having sex with a minor is strict liability, even though thinking she was 16 b/c public policy of protecting
victims of tender years (Olsen)
o Intent applies to assault and not the status of the victims (federal officials) because the status isnt a
material element and thus doesnt require mens rea (Feola)
Mistake of Law
- Excuse Defenses
o Reasonable Reliance (entrapment by estoppel)
Not excused for relying on a personal, even reasonable, misreading of a statute
Not excused for relying on advice of private counsel
Excused for relying on official interpretation of the law
1) statute later declared to be invalid
2) judicial decision of the highest court in the jurisdiction later determined erroneous
3) Official but erroneous interpretation of the law from public officer in charge of its
interpretation, administration, or enforcement (ex: attorney general)
o Fair Notice

Failure-of-proof
MPC
Do not read the MR of the offense into statute

General

Reliance

Notice

Reliance Exception: rely on official statement of the law

afterward determined erroneous
- Statute/enactment
- Judicial decision, opinion, or judgment
- Administrative order or grant of permission
- Official interpretation of public officer or body
charged with responsibility for interpretation,
administration, or enforcement of the law
defining the offense

Due Process/Notice: Statute not known to the actor

and hasnt been reasonably made available prior to
conduct alleged

Different/
Collateral
Law

Express
Exception
-

Lambert Principle Due process limits common law rule that mistake of law is no excuse
Factors to considerDoes the law punish:
o An omission
o A status rather than an activity
o A malum prohibitum offense, rather than malum in se

Lambert applies when ordinance was published and

available but the conduct prohibited wouldnt alert
actor to the need to investigate whether there is a
published law
Collateral civil law exception: ignorance or mistake
negatives the mens rea required to establish a material
element of the offense
(Mistake of collateral law handled same as mistake of
fact)
If law provides state of mind established by such
ignorance or mistake constitutes a defense (MPC 2.04
(2)(b)

Common Law
Exceptions to no-tolerance rule
1) Reasonable reliance (excuse)
2) Fair notice (excuse)
3) Mistakes of different law (exculpatory;
negates MR)
Reasonable Reliance: official interpretations
later determined to be erroneous
- Statute later invalidated
- Judicial decision of highest court in
jurisdiction later invalidated
- Official but erroneous interpretation of
the law from a public officer in charge of
its interpretation, administration, or
enforcement (ex: Attorney General)
Doesnt work when D relies on own
interpretation or that of attorney
Fair Notice
Lambert Test Law punishes
- An omission, rather than act
- Status, rather than act
- Malum prohibitum, not malum in se

Only works for specific intent crimes

- Have to decide if 2nd law looks more like
criminal or civil law (works for civil)
Doesnt work for general intent and strict
liability

Cases
o Narrow due process exception requires actual knowledge of the duty to register as a prior felon
(Lambert)
o Reliance exception doesnt work if relying on own interpretation; collateral civil law exception doesnt
work because definition of correctional officer isnt in another law and neither criminal nor civil
(Marrero)
o Reliance exception works if an official interpretation of law is wrong; cannot rely until final court has
made its decision (Albertini)
o (Cheek) is an example of a specific intent offense that falls under express/statutory exception

Law of fixtures is a collateral civil law, and ignorance of it leads to a failure to meet MR requirement for
the criminal damage law when removing an improvement from apartment; (Smith)

Homicide
General

MPC (210.1 210.4)

Murder, manslaughter, negligent
homicide
Grading: none

Murder

MR: purposely/knowingly

Common Law
Murder, manslaughter
Grading:
Murder (PA model): murder 1; murder 2
Manslaughter: voluntary; involuntary
MR: malice aforethought; (intentional or unintentional)
Mental states of malice:
1) Intent to kill
a. Murder 1
b. Natural and Probable Consequences Rule
i. Ordinary people intend the natural
and probable (foreseeable)
consequences of actions
ii. D is ordinary person
iii. D intended the natural and
probable consequences of actions
c. Deadly Weapon Rule
i. When D intentionally uses deadly
weapon directed at vital part of
human anatomy, can infer intention
to kill
2) Intent to inflict grievous bodily harm
a. Usually Murder 2
3) Extremely reckless disregard of life (depraved
heart)
a. Almost always Murder 2
b. Extreme indifference to human life
c. Implied malice b/c wanton and willful
disregard of the risk of death
4) Felony-murder (strict liability for death)
a. Death that results from
commission/attempted commission of a
felony

Felony murder reckless indifference

may be presumed if person causes death
in:
- Robbery, rape, arson, burglary,
kidnapping, felonious escape

Manslaughter

Homicide without malice aforethought

and without justification

2 degrees of murder (PA Model):

1) Lying in wait, poison, willful, deliberate,
premeditated, during felony (arson, rape, robbery,
burglary)
2) Everything else; intentional killing that doesnt fall
under first degree
MR: without malice aforethought
-

Reckless
Extreme mental/emotional
disturbance with a reasonable

Voluntary
o Intentional in sudden heat of passion
(mitigates murder) from adequate
provocation

explanation or excuse, as
determined by viewpoint of
person in actors situation

Provocation
- Can include words alone
o Match insult to persons
physical traits
o Imagine insult that
would be equally
enraging to average
person
o Assess if act was
reasonable compared to
normal person
- No idiosyncratic moral values of
D can be taken into account

Jury should decide what constitutes

adequate provocation
o No time to cool off
o Causal link b/t provocation, passion, and
homicide
o Traditional provocation
Immediate physical peril
Controversy
Involuntary
o Unintentional; unaware of risks
o Criminally negligent: unintentional killing
resulting from a lawful act done in an
unlawful manner and without due caution
Gross deviation from reasonable
SoC
o Misdemeanor-manslaughter: accidental
homicide occurs in commission of an
unlawful act that is not a felony

Provocation
- Words only dont count (unlike physical assault,
witnessing adultery, etc.)
- Special exception for age and sex

Negligent
Negligently-committed criminal
Not in common law
Homicide
homicide
- Provocation cases
o When taunted by wife and killing her, provocation works if it would inflame passion of a reasonable man;
standard shouldnt account for frailties of the D; words shouldnt count as adequate provocation to
reduce the charge (Girouard)
o Minority view that circumstantial evidence, suspicion, and someone telling him about wifes adultery is
enough evidence of provocation; reasonable man standard (Maher)
o Sexual infidelity as provocation is narrow; being in a sexual embrace doesnt count, but only counts if
wife and lover were having sex at the time D witnessed the incident (Dennis)
o Hours between provocation and killing too long to justify manslaughter; too much cooling time
(Bordeaux)
o Reasonable person standard should include characteristics that have a bearing on how the person was
provoked in the case of a 15 y.o. boy being sodomized and teased by middle aged man (Camplin)
- Premeditation cases
o Premeditation = intent (gets rid of premeditation requirement, just like in MPC); irresistible impulse isnt
a defense for shooting military wife in back of head twice while asleep (Carroll)
o Need to have opportunity for some reflection on the intent to kill to prove premeditation when stabbing
a guy in the neck for teasing about fetishized nose (Guthrie)

Homicide Felony Murder

- Limitations on felony murder
o Inherently-dangerous felony limitation
2 approaches (or both); if inherently dangerous, then okay to use felony murder:
Determine whether felony is inherently dangerous by considering elements of the
offense in the abstract (as defined by statute)
Consider facts and circumstances of the case to determine if felony inherently
dangerous in the circumstances in which it was committed
o Independent-Felony (Merger) Limitation
Felony murder only applies if the felony is independent of the homicide.
If not independent, the felony merges with homicide