Actus Rea

Common Law Model Penal Code

Requires affirmative, voluntary act; intention  There must be a voluntary act or omission
to commit a crime is insufficient to convict if
there is no evidence of an act putting that Conduct: physical activity (affirmative act),
intent into effect. possession
 Mere movement of vehicle does not
necessarily constitute act of driving Result: consequence
vehicle→there must be an affirmative act
by Δ (Taft) Circumstance: external conditions when Δ
 If knowledge that actions could cause engages in conduct
harm to another (i.e., you know you can
blackout and drive anyway), act
constitutes crime (Decina)
Possession: Possession:
Mere presence + Intent to posses + power to Possession is an act if:
possess = conviction  knowingly procured OR
 Mere presence ≠ possession  knowingly received the thing OR
 (Kimbrell→watching drugs)  was aware of control for sufficient period
of time
Omission: Omission:
There must be a duty Liability for the commission of an offense
 statutory may not be based on an omission
 status relationship (Biddle) unaccompanied by an action unless:
 contract (Moore→chauffer)  Omission is expressly made sufficient by
 voluntary assumption of care (Jones) law defining offense
 A duty to perform the omitted acts is
 There is no duty to do what you are otherwise imposed by law
incapable of doing
 You must be aware of the circumstances
before a duty exists (Teixera)

Willful omission→death = murder

Negligent omission→death = manslaughter

Mens Rea
Common Law Model Penal Code
Criminal Negligence Criminal Negligence
 Gross lack of competency  Should be aware of substantial and
 Gross inattention unjustifiable risk that a material element
 Criminal indifference exists or will result
 Gross deviation = recklessness→aware of  Risk must be of nature and degree that
substantial risk created by conduct and failure to perceive = gross deviation from
disregards that risk→ (Peterson) reasonable person’s standard of care
 Homicide→neg. homicide if acted with
criminal negligence (State v. Howard)
 Subjective Test
Specific Intent Crime: MPC no longer recognizes the distinction
 Requires actual intention to do more than between general and specific intent. Rather,
actus reus, not just general it spells out what is required for each crime.
blameworthiness
 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: (See above)
 Intent to commit an act, serves as actus
reus

Knowledge

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 doesn’t exist, he is still
knowledge, but includes the state of mind culpable
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 (Jewel→marijuana)

Willfulness
Common Law Model Penal Code
 Intentional or deliberate→ a voluntary, ?
intentional violation of a known legal duty
(Cheek)
 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
law.

Strict Liability

Common Law Model Penal Code

Malum prohibita Can only be a violation→minor offenses, not
 Statutory rape, bigamy crime; fine/forteiture
No need to show culpable mental state

(Transferred Intent)

Murder

Common Law Model Penal Code

4 ways to satisfy mens rea requirement: 3 ways to prove
 Intent to kill  Purposefully, knowingly (differs from
 Intent to commit serious bodily injury willingly—did away with malice
 Reckless/extreme indifference to value of aforethought)
human life (depraved heart)  Recklessly manifesting extreme
 Intent to commit dangerous felony indifference to human life (depraved heart,
—no bootstrapping allowed (felony must be subjective view of recklessness)
independent)→People v. Wilson  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
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
immediately antecedent and having direct
causal connection with it as well as acts
immediately following it
1st degree Only 1st degree
 Poisoning
 Lying in wait
 Willful
 Deliberate
 Premeditated
 Felony
2 degree:
nd

 Depravity of heart
 No intention to kill

Premeditation
 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

Manslaughter

Common Law Model Penal Code

Voluntary: No distinction between voluntary and
 Intent to kill, but in the heat of passion involuntary
with no malice aforethought  recklessly→aware of the risk, but
 Objective test for sufficiency of consciously disregards it; advertant;
provocation subjective; gross deviation
 4 requisites  purposeful, but committed under extreme
1) acts in response to provocation which mental disturbance (heat of passion)—
would cause a reasonable man to lose reasonable person in actor’s circumstances
his self-control (actual→mere words are as he believes them to be (subjective)
not enough)  2nd degree
2) heat of passion
3) lapse of time not enough to cool off
4) had not cooled off
Involuntary: Negligent Homicide
 Criminal negligence required  Committed negligently—ought to have
  Unintended killing caused during the been aware of the risk; inadvertent;
commission of an unlawful act not objective
amounting to a felony
Should be aware

Ignorance or Mistake

Common Law Model Penal Code

Mistake of Law: Mistake of Law:
 Never a defense (traditional view)  A defense if it negates the mental state
 Follow MPC (modern view) required
 State of mind established constitutes
defense
 Not available as a defense if Δ 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
 Reliance on official statement of law
determined to be invalid or in error
Mistake of Fact: Mistake of Fact:
 Defense only for specific intent crimes—  Based on Δ’s subjective belief
must lack mens rea for crime  Mistake of age is no defense—no defense
 Must be an “honest” mistake if under 10
 Mistake of age is no defense

Intoxication

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 mind→but not
 Inadmissible to negate general always a complete defense
intent→negligence  Does not negate recklessness or criminal
negligence
Involuntary Intoxication: Involuntary Intoxication:
 Presence or threat of force/duress
 Defense if Δ intentionally ingests a
 substance, but mistakenly believes that it
is not intoxicating
