1 Common Law Model Penal Code Modern Notes Criminal Homicide unjustifiably and inexcusably takes the life of another human being purposefully, knowingly, recklessly or negligently murder, manslaughter and negligent homicide are forms of criminal homicide Murder the killing of a human being by another human being with malice aforethought death must occur within 1 year + 1 day rejects degrees of murder approach intentionally taking a life purposefully or knowingly, or acting with extreme recklessness (depraved heart murder) CL view divided into degrees where only 1st degree murder is a capital offense and requires deliberation and premeditation, and possibly willfulness malice can be met by any one of the following 1. intent to kill 2. intent to inflict grievous injury 3. extreme reckless disregard for human life (depraved heart) 4. intent to commit a felony 2nd degree murder – intent to inflict grievous injury or extreme recklessness (depraved heart murder) Manslaughter unlawful killing of another human being without malice aforethought committed recklessly or under extreme mental or emotional disturbance is 2nd degree felony 2 Common Law Model Penal Code Modern Notes Voluntary Manslaughter unlawful killing of another human being without malice upon sudden heat of passion and adequate provocation elements include 1. sudden heat of passion 2. no cooling off period 3. causal connection 4. adequate provocation – mere words are not enough, but informational words can be Involuntary Manslaughter unintentional killing resulting from the commission of an unlawful act not amounting to a felony, or a lawful act done in an unlawful manner ordinary or simple negligence is not enough – gross negligence is essential Negligent Homicide homicide committed negligently 3rd degree felony 3 Common Law Model Penal Code Modern Notes Felony Murder a person is guilty of murder if he kills another person during the commission or attempted commission of a felony extreme recklessness while engaged in, or as an accomplice in, the commission, attempted commission, or flight from one of the dangerous felonies specified by statute statutory view – death resulting from the commission of an enumerated felony (typically dangerous) constitutes 1st degree murder where the maximum penalty is death or life imprisonment; death from an unspecified felony constitutes 2nd degree murder limitations include 1. need for inherently dangerous felony 2. need for independent felony (merger rule) 3. need for causal link approaches include 1. agency approach 2. proximate causation approach generally disfavored 4 Common Law Model Penal Code Modern Notes Rape generally, sexual intercourse by a male with a female not his wife if committed 1. forcibly 2. by means of deception 3. while the female is asleep or unconscious, or 4. when female is not competent to give consent (e.g. drugged, mentally disabled, underage) a general intent crime traditional CL requires proof that female did not consent and that the act was by force or against her will (resistance required) At CL a husband could not be guilt of raping his wife a male is guilty of rape if, acting purposefully, knowingly, or recklessly regarding the material elements of the offense, has sexual intercourse with an female under any of the following circumstance 1. the female is less than 10 years of age 2. the female is unconscious 3. he compels the female to submit by force or by threatening her or another person with imminent death, grievous bodily injure, extreme pain, or kidnapping, or 4. he administers or employs drugs or intoxicants in a manner that substantially impairs the female’s ability to appraise or control her conduct a husband cannot be found guilty of raping his wife unless they are legally separated modern statutory law – extended from traditional view in many states to include specified forms of non-forcible but nonconseensua sexual intercourse increasingly gender-neutral traditional statutory law – intercourse achieved forcibly against the will of the female, or without her consent factors to consider 1. force 2. against will 3. without consent 4. gender neutral 5. marital rape 6. rape by fraud 7. rape or assault 5 Common Law Model Penal Code Modern Notes Gross Sexual Imposition 3rd degree felony a male who has sexual intercourse with a female not his wife and 1. he compels her to submit by any threat that would prevent resistance by a woman of ordinary resolution 2. he know that she suffers from a mental disease or defect which renders her incapable of appraising the nature of her conduct, or 3. he knows that she is unaware that a sexual act is being committed upon her or that she submits because she mistakenly supposes that he is her husband Sexual Assault a misdemeanor a person who has sexual contact with another not his spouse, or causes such other to have sexual contact with him and . . . Battery 6 Common Law Model Penal Code Modern Notes Statutory Rape not recognized under the MPC because it is a strict liability crime, but sexual intercourse by a man with a female less than 10 years of age is punishable if he knew her age is still an offense in most states, often applied at a two level approach -sexual intercourse with a very young girl is punishable at the level of forcible rape, where sexual intercourse with an older girl is a felony of a lesser degree Robbery requires force or intimidation Burglary the breaking and entering of the dwelling of another in the nighttime with the intent to commit a felony therein specific intent crime -need intent to break and enter as well as intent to commit felony therein most jurisdictions have removed the nighttime requirement Might also use “breaking and entering” or “trespass” if all elements of burglary cannot be met Theft the trespatory taking and asportation of the personal property of another with the intent to permanently deprive 7 Common Law Model Penal Code Modern Notes Larceny is a CL, specific intent crime – actor has to intend to steal the trespatory taking and asportation of the personal property of another with the intent to permanently deprive does not include immovable objects such as trees, land both grand and petty were felonies defines “property of another” broadly to include property in which any person other than the actor has an interest does not require asportation does include immovable objects such as trees, land today grand larceny is a felony and petty larceny is a misdemeanor an owner of property retains constructive possession of his lost property if there exists a reasonable clue to ownership when it is discovered Embezzlement Podgor says is a CL crime Dressler says is not a CL crime but is a legislative creation most embezzlement statues set forth the following elements 1. that D came into possession of the personal property in a lawful manner 2. that D thereafter fraudulently converted the property, and 3.that the D cam into possession of the property as the result of entrustment by or for the owner of the property 8 Common Law Model Penal Code Modern Notes False Pretenses is a CL crime knowingly and designedly obtaining title to property by false pretenses (the false representation of an existing fact) non-disclosure of a material fact does not constitute false pretenses, but can constitute misrepresentation if there is a duty to disclose the expression of an opinion does not constitute false pretenses equivalent offense is theft by deception creating or reinforcing a false impression regarding the value of property “puffing” immunized, if the statement would not deceive an ordinary listener The modern majority rule states that the offense of false pretenses does not apply to misrepresentations regarding future conduct Receiving Stolen Property 9 Common Law Model Penal Code Modern Notes Attempt D must have had the mental state which would have satisfied the mens rea requirement for the substantive crime must have committed some overt act in furtherance of plan of criminality coupled with intent to commit crime – must be very close to success to be charged with attempt at CL, legal impossibility is a defense, but not factual impossibility elements of attempt 1. the purpose to commit the target offense, and 2. conduct consisting of a substantial step toward the commission of the target offense substantial step beyond mere preparation when a person, with intent to commit an offense, performs any act that constitutes a substantial step toward the commission of that offense 2 types of attempt: 1. complete but imperfect attempt – when D performs all of the acts that he set out to do, but fails to obtain his criminal goal 2. incomplete attempt – D does some of the acts necessary to achieve the criminal goal, but he quits or is prevented from continuing – e.g. police officer arrives is a specific intent crime – must intend to commit the acts tests to determine what is beyond mere preparation: 1. Last Act 2. Physical Proximity 3. Dangerous Proximity 4. Indispensable Element 5. Probable Desistance 6. Unequivocality (Res Ipsa Loquitor) today, factual impossibility is not a defense, and most jurisdictions no longer recognize legal impossibility as a defense abandonment – when D voluntarily and completely renounces his criminal purpose – not recognized by many courts today 10 Common Law Model Penal Code Modern Notes Solicitation must solicit a felony or a misdemeanor which would breach the peace or obstruct justice specific intent crime – intentionally invites, requests, commands, hires, or encourages with the specific intent that the other person consummate the target crime at CL, no solicitation occurs if the solicitor intends to commit the crime himself but requests assistance from another person 1. when the purpose is to promote or facilitate the commission of a substantive offense, and 2. with such purpose, he commands, encourages or requests another person to engage in conduct that would constitute the crime, an attempt to commit it, or would establish the other person’s complicity in its commission or attempted commission unlike CL, relationship of solicitor to solicited party need not be that of accomplice to perpetrator renunciation – a defense under the MPC when a party 1. completely and voluntarily renounces his criminal intent, and 2. either persuades the solicited party not to commit the offense or otherwise prevents him from committing the crime when one person invites, requests, commands, hires, or encourages another to commit a particular offense – no performance is needed 11 Common Law Model Penal Code Modern Notes Conspiracy no express agreement necessary, and an agreement can exist even though not all of the parties have knowledge of every detail of the arrangement – knowledge of essential nature is all that is needed requires proof that at least 2 persons possessed the requisite mens rea of a conspiracy specific intent crime requiring that 2 or more persons 1. intend to agree, and 2. intend that the object of their agreement be achieved agreements falling under conspiracy: if a person 1. agrees to commit an offense 2. attempts to commit an offense 3. solicits another to commit an offense, or 4. aids another person in the planning or commission of the offense proof of an overt act only applies to cases involving a misdemeanor or a felony of the 3rd degree uses unilateral approach to conspiracy liability conspiratorial agreement must be made with the purpose of promoting or facilitating the commission of the substantive offense an agreement between two or more persons to commit a criminal act or series of criminal acts, or to accomplish a legal act by unlawful means today, many statutes require proof of the commission of an overt act in furtherance of the conspiracy Accessory Liability 12 Common Law Model Penal Code Modern Notes Self Defense non-aggressor is justified in using force upon another if he reasonably believes that such force is necessary to protect himself from imminent use of unlawful force by another person use of force cannot be excessive in relation to the harm, and one is never permitted to use deadly force to repel a non-deadly attack at CL, cannot use deadly force if could safely retreat exception to duty to retreat 1. if alternative would be perilous 2. castle doctrine – normally no duty to retreat if in one’s home – unless you are the provoker justified in using force upon another person if he believes that such force is immediately necessary to protect himself against exercise of unlawful force does not specifically require that D’s belief be reasonable deadly force can only be used when one believes that such force id immediately necessary to protect himself on the present occasion from 1. death, 2. serious bodily injury 3. forcible rape, and 4. kidnapping deadly force prohibited for the aggressor if can retreat, cannot use deadly force – exception is home or work unless aggressor or attacked by coworrke elements 1. crime of necessity 2. arises only when necessity begins and ends when the necessity ends 3. cannot use excessive force – proportionality rules american majority – no duty to retreat, force OK if reasonably necessary to save oneself Key Requirements: 1. threat, actual or apparent, of use of deadly force against defender 2. threat must have been unlawful and immediate 3. defender must have believed that he was in imminent peril of death or serious bodily harm, and that response was necessary to save himself 4. must be honest beliefs and objectively reasonable in light of surrounding circumstances, or subjectively reasonable under MPC 5. not available to one who provokes a conflict or is the aggressor in it 6. mere words do not constitute provocation 7. if precipitated the provocation but thereafter withdrew form it in good faith and informed other by words or actions, then can use deadly force to save oneself from imminent death or grave bodily harm 13 Common Law Model Penal Code Modern Notes Imperfect Self Defense traditionally, if any element necessary to prove self defense is lacking, the defense is unavailable – some states recognize “imperfect” self-defense when a necessary element is lacking, which convicts for lesser offense of manslaughter imperfect self defense recognized – but unavailable for offenses which include recklessness or negligence as an element Battered Spouse Syndrome special type of self-defense not recognized by all jurisdictions Defense of Others a person is justified in using force to protect a 3rd party from unlawful use of force by an aggressor to the extent that the 3rd party is justified in acting in selfdeffens alter-ego rule applicable – could be held liable unless defense really justified force is justified in order to protect a 3rd party if 1. he uses no more force to protect the 3rd party then he would be entitled to use in self-protection, based on the circumstances as he believes them to be 2. 3rd party would be justified in using selfdefeense under the circumstances ha believes them to be, and 3. he believes intervention is necessary for the 3rd party’s protection all subject to retreat rules no alter-ego rule -reasonable appearance is all that is necessary 14 Common Law Model Penal Code Modern Notes Defense of Property a person in possession of real or personal property is justified in using nondeaadl force against a would-be dispossessor if he reasonable believes that such force is necessary to prevent imminent and unlawful dispossession deadly force can NEVER be used – states are divided on whether the threat of deadly force can be used essentially conforms to CL – 3 conditions must be present: 1. the other person’s interference with the property is unlawful 2. affects property in D’s possession (or someone entrusted with possession), and 3. non-deadly force is immediately necessary Duress an affirmative defense – D engaged in the conduct or caused the result alleged because he was coerced to do so by the use of, or a threat to use, unlawful force against his person, which a person of reasonable firmness in his situation would have been unable to resist unavailable if actor recklessly or negligently placed himself in a situation it was probable he would be subjected to duress 15 Common Law Model Penal Code Modern Notes Necessity (Choice of Evils) an affirmative defense – conduct which the actor believes to be necessary to avoid an imminent harm or evil to the actor or to another is justifiable provided that 1. the harm or evil sought to be avoided by such conduct is greater than that sought to be prevented by the law defining the offense charged 2. the actor was not reckless or negligent in brining about the situation requiring the choice of harms or evil civil disobedience under necessity requires 1. D as faced with a choice of evils and chose the lesser evil 2. D acted to prevent imminent harm 3. D reasonably anticipated the direct causal relationship between his acts and the harm to be averted 4. D had no legal alternative but to violate the law direct vs. indirect CD direct – protesting the existence of a law by breaking that law or by preventing the execution of that law indirect – violating a law or interfering with government policy that is not itself the object of the protest the 9th circuit found that the defense of necessity Is not applicable for indirect CD Entrapment Insanity Diminished Capacity 16 Common Law Model Penal Code Modern Notes Incompetency Intoxication