Actus Reas

COMMON LAW MPC

Actus Reus: The commission of some voluntary act that is “A person is not guilty of an offense unless his liability is
prohibited by law based on conduct that includes A voluntary act or the
omission to perform an act of which he is physically
Every act under a statute must be voluntary in order to capable.”
impose liability (Martin v. State)
● ONLY 1 voluntary act is required under the MPC but look
● A voluntary act will be read into an ambiguous statute to specific statute to see if the part that is voluntary is
because a voluntary act is required in order for an act to be sufficient for culpability (Much stricter than CL)
criminal (Martin v. State)
Voluntary Act: “a product of the effort or determination of
Involuntary Act (Automatism): An act which is done by the the actor.”
muscles without any control by the mind such as a spasm, a
reflex action or a convulsion; or an act done by a person Involuntary Acts:
who is not conscious of what he is doing such as an act 1. a reflex or convulsion;
done whilst suffering from concussion or whilst sleep- NOTE: only in terms of a nerve reflex, acting quickly
walking. w/o thinking not NECESSARILY reflex (Wanrow)
2. a bodily movement during unconsciousness or
An act is NOT involuntary just because: sleep;
Δ doesn’t remember it 3. conduct during hypnosis or resulting from hypnotic
Δ could not control his impulse to do it suggestion;
4. a bodily movement that otherwise is not a product
○ When a man is charged with murder, and it appears that of the effort or determination of the actor, either
he knew what he was doing, but he could not resist it, then conscious or habitual.
his assertion “I couldn’t help myself” is not a defense Habit: Habitual action done without thought = voluntary

 Unintentional = The act was unintentional “Involuntary” does not have a clear meaning. Conduct that
can be considered “involuntary” for some criminal law rules
 Inadvertence = The act’s consequences were is not considered “involuntary” for others. Example: A
unforeseen motorist who drives too fast, goes through a stop sign, and
○ When a man is charged with dangerous driving, it is no unintentionally kills a pedestrian.
defense for him to say, however truly, “I did not mean to
drive dangerously.” Offense: Involuntary Manslaughter
Texas Voluntary Act Requirement: The motorist chose to speed so his are not considered
“A person commits an offense only if he voluntarily engages “involuntary” for purposes of either the common-law AR or
in conduct, including an act, an omission, or possession.” MPC §2.01(2).
 Mens Rea
COMMON LAW MPC- modern trend
Uses variety of overlapping & confusing words that often Purpose
covey more emotional atmosphere than actual meaning to  The reason they took the action they did was to
describe culpable mental states. achieve the particular result
Knowledge
NEGLIGENCE  Actor knows the nature of his action and that it will
State v. Hazelwood (p.268): oil tanker spilled onto beach, the cause a particular result
court ultimately used definition for regular civil/ordinary Recklessness
negligence and called it sufficient dissent: we should  A person acts recklessly with respect to a material
require more culpability than ordinary negligence to convict element of an offense when he consciously disregards
someone a substantial and unjustifiable risk that the material
element exists or will result from his conduct. The risk
Criminal negligence: the risk is of such a nature and degree must be of such a nature and degree that, considering
that the failure to perceive it constitutes a gross deviation the nature and purpose of the actor’s conduct and
from the standard of care that a reasonable person would the circumstances known to him, its disregard
observe in the situation. involves a gross deviation from the standard of
conduct that a law-abiding person would observe in
Regular negligence: person fails to perceive an unjustifiable the actor’s situation.
risk that the result will occur; the risk must be of such a Negligence  “Criminal Negligence”
nature and degree that the failure to perceive it constitutes a  A gross deviation from standard of care
deviation from the standard of care that a reasonable person
would observe in the situation, Transfer of Intent: If an actor’s action results in the type of
harm they intended, but against a different victim, transfer of
intent will apply and the MR will be satisfied to make them
liable.

PURPOSELY KNOWINGLY
A person acts purposely with respect to a material element of A person acts knowingly with respect to a material element of
an offense when: an offense when:
(i) if the element involves the nature of his conduct or a result (i) if the element involves the nature of his conduct or the
thereof, it is his conscious object to engage in conduct of that attendant circumstances, he is aware that his conduct is of
nature or to cause such a result; and that nature or that such circumstances exist; and
(ii) if the element involves the attendant circumstances, he is (ii) if the element involves a result of his conduct, he is aware
aware of the existence of such circumstances or he believes that it is practically certain that his conduct will cause such a
or hopes that they exist. result.
RECKLESSLY NEGLIGENTLY
A person acts recklessly with respect to a material element of A person acts negligently with respect to a material element
an offense when he consciously disregards a substantial and of an offense when he should be aware of a substantial and
unjustifiable risk that the material element exists or will unjustifiable risk that the material element exists or will
result from his conduct. The risk must be of such a nature result from his conduct. The risk must be of such a nature and
and degree that, considering the nature and purpose of the degree that the actor’s failure to perceive it, considering the
actor’s conduct and the circumstances known to him, its nature and purpose of his conduct and the circumstances
disregard involves a gross deviation from the standard of known to him, involves a gross deviation from the standard of
conduct that a law-abiding person would observe in the care that a reasonable person would observe in the actor’s
actor’s situation. situation.
 Mens Rea: Mistake of Fact If Not given JX apply BOTH MPC and CL
CL MPC
Answering Mistake of Fact for Exam Answering Mistake of Fact for Exam
1. What is the required MR for the crime? 1. What is the required MR for the crime?
2. Define that MR 2. Define that MR
3. How does the MOF affect the liability for that 3. How does the Mistake of Fact affect the liability for
crime? that crime?
4. CL approach involves separation of intent 4. MPC approach describe
- If MOF is reasonable & Negates MR not guilty
Step 1: Figure out if crime is specific or general intent - If reasonable, but D’s version of the world he would
- SL 2C still be committing a crime guilty of Lesser crime
- Specific intent: some further purpose beyond doing
the AR 2A - Mistake of fact is a defense if the ignorance of
- General Intent: no specific further purpose 2B mistake negates the required MR required to
Step 2: establish a material element of the offense.  BUT
- 2A: Does the mistake relate to the specific intent the defense is not available if the D would be guilty
portion of the crime of another offense had the situation been as he
If YES D acquitted supposed.
If NO Go to 2B
- 2B: Was the mistake reasonable?
If YES D acquitted
If NO pros may still prove MR BRD
- 2C: MOF is irrelevant, because there is no MR
required that could be negated by a MOF

Void for Vagueness

Step 1: Identify the illegal conduct the statute is targeting Step 1: Identify the illegal conduct the statute is targeting
Step 2. Determine if it’s a facial or as applied challenge Step 2. Determine if it’s a facial or as applied challenge

As Applied Challenges Facial Challenge

1. Must show statute doesn’t have a clear meaning in 1. State two bases for void for vagueness (notice and
context of the particular case at hand arbitrary enforcement) and identify if either or both
2. Requires the facts of the case are present
3. Vague as applied to the situation 2. Explain argument of notice to reasonable person. 
use rhetorical questions and examples of how
conduct could fall in
3. Explain how it authorizes/encourages discriminatory
enforcement  so undefined and vague that police
have discretion about who to arrest and charge with
this offense
4. Give counterarguments:
- Add a specific context/additional activity
- Definition to ordinary people
5. Give clear conclusion  if found void for vagueness,
the statue is unconstitutional and CANNOT be
enforced against anyone.
 Proportionality
Case-by-Case Categorical
1. Step 1 (Not truly applied) This sentence is NEVER okay for anyone in the offender’s
- Primacy of the legislature position
- Variety of legitimate penological schemes 1. Objective indicia of society’s standards is there a
- Nature of the federal system national consensus about this kind of sentence?
- Requirement that proportionality review be guided o Do other jx technically allow this
by objective factors punishment under these circumstances?
- MOST IMPORTANT: eighth amendment forbids o Do other jx actually use this punishment
extreme sentences that are grossly under these circumstances?
disproportionate to the crime 2. Court’s own judgment  Court determines with
2. Step 2 own judgment whether this kind of sentence
- Threshold comparison if grossly disproportionate violates the constitution
crim to sentence, move to comparative o Culpability of the offenders at issue
o Compare the crime committed and o In light of their crimes and characteristics
sentence imposed (offense)
o Compare case to cases of precedent  o Severity of the punishment in question (3
falling in gray area between cases, argue for justifications of the punishment)
more like one than another
- Comparative Analysis
o Sentences for other crimes in this JX
o Sentences for this crime in other jx
o Offender’s criminal History
o Justifications of punishment (not
considered disproportionate if there is a
reasonable basis for thinking it will serve a
justifying goal)
 Murder
CL- Pre-Guthrie Approach CL- Guthrie Approach MPC

Premediated = intentional Intention + Reflection Criminal Homicide constitutes

- If it was on purpose - Must be some period murder when it is committed
(just intentional) then it between formation of purposefully or knowingly
is first degree murder intent to kill and actual - Actor’s purpose was to
- No need to prove any killing (allowing some kill or they were acting
formed intent to kill or opportunity for knowing that their
reflection reflection) actions could cause the
- Some JX still follow - No specific amount of killing to a substantial
time required only that certainty
sometime between - Like the Pre-Guthrie
forming intent to kill Approach if you killed
and killing (could be on purpose, it is first
mere seconds) degree murder
Must kill on purpose AFTER
contemplating their intent to kill

Voluntary Manslaughter and Provocation

CL- Girouard CL- Maher MPC
Provocation must fall into one Manslaughter verdict for an
of three traditional categories intentional killing requires: A homicide committed under
to be sufficient provocation to 1. A killing under the the influence of extreme
mitigate an intentional killing influence of passion or mental or emotional
from murder to manslaughter in the heat of blood disturbance for which there is a
2. Before a reasonable reasonable explanation or
1. Does the provocation fit time has elapsed for the excuse is manslaughter not
into one of these blood to cool and murder
categories?  if no reason to resume its
then no provocation habitual control 1. Subjective: Did D act
2. Would the provocation under emotional
have inflamed the disturbance?
passion of a reasonable 2. Objective: From D’s
man, causing him to act perspective, would a RP
for the moment from have been emotionally
passion rather than disturbed?
reason?
- Objective *No reference to cooling time in
3. Was this person so MPC
provoked?
- Subjective if yes then
mitigated
 Unintentional Killings- Murder
CL- Malone MPC
- A killing isn’t murder unless it’s done with malice 210.2
- An unintentional killing is murder when it is committed
Malice= recklessly under circumstances manifesting extreme
- Intentional doing of an act in callous disregard of its indifference to the value of human life
likely harmful effect on others
- Wicked, depraved, and malignant heart
- Gross recklessness: must reasonably anticipate the
death to another is likely to result

Gross Negligence is NOT enough for criminal liability

Unintentional Killings- Manslaughter

CL- Majority (Welansky) CL- Minority (Williams) MPC (Hall)
Grave danger to others must Any departure from the kind of Two different unintentional
have been apparent and D must caution that a man of killing offenses
have chosen to run the risk reasonable prudence would
rather than alter his conduct. have exercised under the same Manslaughter: criminal
- Intentional conduct, or similar circumstances homicide is committed
involving a high degree recklessly
of likelihood that - Simple negligence is - 2nd degree
substantial harm will sufficient to establish - Actor consciously
result to another criminal liability disregarded a
- A risk of which the D - Doesn’t require actual substantial and
was aware or should knowledge, constructive unjustifiable risk that
have been aware of is enough death could result from
his actions
- Conduct is a gross
deviation from the
standard of care of a
law abiding citizen
Negligent Homicide:
- 3rd degree
- Homicide where the
person should have
been aware of the risk,
but they were not and
nevertheless took the
 action.
- NOT CONSCIOUSLY
disregarding the risk
- RP takes on greater
experience/knowledge

The Felony-Murder Rule

Traditional (Broadest) (Stamp) Limitations MPC
1. Inherently Dangerous Felony
1. Felony murder = 1st - Serne: Act known to be 210.2 (b)
degree murder dangerous Criminal homicide is murder
2. May get Death if a  Predicate offense must when it is committed recklessly.
major participant in the be: - Such recklessness and
underlying felony and 1. An act known to be indifference are
exhibiting extreme dangerous to life presumed if the actor is
indifference to human and engaged or is an
life 2. Likely in itself to accomplice in, the
3. Limitation = must satisfy cause death commission of, or an
two types of causation 3. Done for the attempt to commit, or
in connection with purpose of flight after committing
death to be liable committing a felony or by attempting to
- But- for: D’s acts were a - Philips: Categorically commit robbery, rape,
contributing cause to  Felony Murder only or deviate sexual
the homicide applies when the intercourse by force or
- Loosely foreseeable underlying felony was threat of force, arson,
consequence: death is inherently dangerous burglary, kidnapping or
fairly attributable to D’s 2. Sentencing Restrictions felonious escape
Blameworthy action 3. Restricted to Enumerated
(felony), rather than a Felonies Burden shifts to D to prove he
mere coincidence - If the predicate offense is on did not have the required
the list then it is 1st degree indifference or recklessness
murder, if predicate offense is
not on the list it is 2nd degree
 Arson
 Rape
 Mayhem
 Robbery
 Burglary
4. In furtherance of the
 felonious objective
5. Get rid of FMR

Sexual Violence
CL MPC
1. Resistance & Force Non-physical compulsion Viewed as outdated / unreliable
o Majority: to establish lack of consent, there - Where there is non-physical compulsion: you can be
is no requirement the victim must resist convicted for gross sexual imposition where the
o No jx still requires resistance to the utmost submission to the sexual advances is compelled by
o SOME: require “reasonable resistance” any threat that would prevent resistance by a women
2. Consent of ordinary resolution
o Traditional: required both subjective - Submission must result from coercion rather than
unwillingness and external acts refusing from a bargain
consent. Both Verbal and physical - Resistance by women of ordinary resolution would be
o Many: still presume consent in the absence prevented, must be the result of a threat
of some affirmative expression of
unwillingness
o CLEAR MINORITY: require affirmative
expression of consent. (words or actions)

Drug Offenses
Constructive Possession Constructive Possession in a Home
1. Pros required to show some connection beyond 1. Evidence BEYOND mere occupancy is particularly
special proximity that necessary when more then one person occupies the
2. D had BOTH POWER AND INTENTION at the given premises where the drugs are found
time to exercise control 2. Evidence could be
3. When constructive possession is based on o Seen coming and going repeatedly
circumstantial evidence, the proved facts must not o Other person property present
only be consistent with guilt, but must exclude o Evidence D had access, entered, had property,
every other reasonable hypothesis save that of the found sleeping, seen coming and going
guilt of the accused o Had actual knowledge of location
o Personal effects in room
o Key to the area

Attempt
Mens Rea for Attempt- Majority Mens Rea for attempt- Minority
Liability for attempt requires proof of the intent to commit MR for attempting the underlying offense can be satisfied with
the completed crime. the same MR as the underlying offense requires
- Can be direct (confession) or circumstantial (aims at
head and shoots)
AR Attempt CL Majority AR Attempt CL Minority AR Attempt MPC
Dangerous Proximity Test Equivocality Test Substantial Step
- Acts come so near to the - Acts which are sufficient on - Substantial step that strongly
completion of the crime that their own to show the guilty corroborates actor’s criminal
 crime in all reasonable purpose, the acts unequivocally purpose
probability would have been demonstrate criminal purpose - P. 1292 listed conduct for the
committed but for timely - Actions are so clear and close crime
interference to the criminal actions
Traditional Approach: Abandonment MPC Approach: Abandonment
- Abandonment is NO defense - Abandonment is a COMPLETE affirmative defense  If
done voluntarily
o Choosing by own free will, not external forces
making it more dangerous or unwise

Self Defense
Majority CL Approach Minority CL Approach MPC Approach
D Must: (1) honestly and (2) reasonably Imperfect Self Defense Mostly Subjective* belief
believe (3) deadly force is necessary (4) - An intentional killing the - Only if D honestly believed it was
to protect himself from death or person did thinking they necessary. NOT a reasonableness
serious bodily injury (5) caused by needed to do. If they test
imminent use of (6) unlawful deadly HONESTLY believed, but it was Exceptions(*)
force by another person UNREASONABLE -If D is negligent in having these beliefs,
Murder conviction can be mitigated to no defense if charged with a crime with a
D does not have to be CORRECT in their manslaughter negligent MR
belief, it just have to be a REASONABLE -If D is reckless in having these beliefs, no
belief defense if charged with a crime with a
reckless (and also negligent) MR