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Criminal Law
UMKC School of Law
Hunvald, Edward H.

            1. Retribution
            2. Deterrence
            3. Reform (rehabilitation)
            4. Incapacitation
            1. Actus Reus
            2. Mens Rea
Rule of Criminal Responsibility: A person is not guilty of an offense unless his conduct, which must include a voluntary act (omission exception), and which must be accompanied by a culpable state of mind, is the actual and proximate cause of the social harm, as proscribed by the offense
III. ACTUS REUS: Objective aspects of the crime; culpable Conduct
            1. Voluntary Act
            2. That Causes (Causation)
                        * generally only at issue in homicide cases
            3. Social Harm
IV. Voluntary Act: Choice and Volition (exercise of the will)
            Act: muscular movement
                        Habit : MPC says habitual act done w/o thought is voluntary
Possession:     * MPC says that possession is an act only if the person is aware she has the thing charged with possessing
* Some cts. hold that it’s sufficient that D should have known
* few juris, drug possession statutes dispense w/ need to know or should have known of possession
                        Hypnosis: MPC says acts are not voluntary
Psychological Pressures: voluntary (to have a defense, must use something other than involuntary)
Consciousness: must be conscious to be a voluntary act (exception of voluntary intoxication)
* MPC excludes liability in the absence of a voluntary act; NOT ALL THE ACTS HAVE TO BE VOLUNTARY, BUT THERE MUST BE A VOLUNTARY ACT   
* Prosecution must prove beyond a reasonable doubt that there was voluntary act, but does not have to raise unless a defense is raised (e.g. unconsciousness)
1. Pre-existing Condition: if one knows of such condition, he can be liable for an involuntary act (e.g man knows of seizures and still drives)
                        2. “Violations”
                        3. Omissions
            * To be liable, omission must be VOLUNTARY
            * To be liable, person must be CAPABLE of performing the act omitted
                        1. Statute imposes a duty to act
e.g. person must pay taxes on income, Bad Samaritan laws (few states), driver must stop car at scene of accident
                        2. Status relationship (those of responsibility and family relations)
                                    e.g. parent toward minor children, married couples to each other
                        3. Contractual Obligation
                                    e.g. baby sitter
                        4. Omissions following an act
                                    * Creation of Risk (place another in jeopardy of harm)
* Voluntary Assistance (assume care of another and seclude so as to prevent others from rendering care)
            * MPC imposes duty to act only when a duty is imposed by law
                        1. law defining the offense provides for it
                        2. duty is otherwise imposed by law (civil, tort, K law)
* A person who isn’t a child’s parent, guardian or caretaker cannot ordinarily be convicted of child abuse by failure to act to protect from 3rd party (child’s mother can be and often is, if say, male member of household abuses child)
* Courts disagree as to whether turning off life support is an act or an omission (omission argument is that it is omitting to continue the struggle)
                        e.g. Barber — physician had no duty once treatment proved ineffective
VI. MENS REA: Subjective aspects of the crime; culpable Mental state
            1. General: Choice by D (know doing something wrong)
                        Defenses: involuntary act, duress, legal insanity, accident, mistake
            2. Special: Mental state required to commit a specific offense
* Mens Rea element is not well-defined in the law (cts. don’t analyze it and legislatures have left it undefined)
1. Purpose: conscious objective to engage in conduct or cause a result; awareness of circumstances or hope such circumstances exist
2. Knowledge: awareness that conduct is practically certain or of a high probability to cause a result; awareness that his conduct is of such a nature or awareness of such circumstances
            * Willful Blindness Doctrine equated to Knowledge
            * Purpose and Knowledge are intentional as to results
* Not much difference b/t purpose and knowledge
            * Differences b/t purpose and knowledge
                        i. Treason
                        ii. Attempted Crimes
                        iii. Accomplice/Conspiratorial Liability
3. Recklessness: conscious risk creation that is substantial and unjustifiable (less risk than substantial certainty)
* acceptability of a given risk depends on variables of the specific situation, and jury decides
4. Negligence: gross deviation from the standard of care of a reasonable person
* Difference b/t Recklessness and Negligence is awareness (Mens Rea req’d for Recklessness but not for Negligence)
* Recklessness and Negligence are not intentional as to results
* If a prosecutor shows negligence, the jury could infer recklessness (difference b/t the two is how the jury will evaluate)
                        (5.) Strict Liability
ELEMENT ANALYSIS (purpose, knowledge, recklessness, negligence)
* very important, as nearly all states have adopted some form of it
* must have 1 of the 4 mental states for EACH material element of an offense (material elements are elements pertaining to culpability; non-material elements are procedural elements, like venue)
* if the statute does not specify which mental state is required, purpose, knowledge or recklessness is sufficient (for negligence to apply, it must be specified)
* if statute does specify the mental state without specifying which material element it applies to, it applies to all, unless a contrary purpose appears
– e.g. burglary is an offense to “enter an occupied structure w/ purpose to commit a crime therein”; the placement of “purpose” shows that it is not meant to modify the preceding phrase, b/c if so, it would have been at the start
                        * e.g. He intended to steal the money in order to help his daughter
                                                * 1st part is intent required for the crime
* 2nd part is motive; motive is generally only relevant to sentencing
* Sometimes, the law makes motive relevant to criminal liability (specific intent crimes and defenses based on justification)
e.g. Person breaks and enters property. To have burglary, must prove the specific intent of taking personal property. Otherwise, there is the general intent action of trespass.
Specific Intent: act done w/ specified purpose in mind or where D has knowledge of a fact or circumstance
General Intent: definition of crime does not contain specific purpose
                        CONDITIONAL INTENT
* e.g. Person displays gun and says, “get out of the car or I will kill you” Is there “intent to kill?”
* Arguments for both sides on this
* MPC: When a particular purpose is an element of an offense, the element is established although the purpose is conditional, unless the condition negatives the harm sought to be prevented
* MPC: Knowledge is established if a person is aware of a high probability of its existence, unless he actually believes it does not exist
                        * Some courts hold that willful blindness instruction apply only if
1. D was subjectively aware of the high probability of illegal conduct   AND
2. D purposefully contrived to avoid learning the truth of the illegal conduct
V. STRICT LIABILITY: crime does not have a mens rea requirement regarding one or more element of the actus reus
            * Strict liability is disfavored
* Mens rea is presumed in common law crimes and crimes that resemble common law
* W/ non-common law crimes, some indication of congressional intent is required to dispense w/ mens rea (Staples v. U.S.)
* Public Welfare Offenses: courts often impose strict liability (protect greater good) — generally, minor penalties
* Non-public welfare offenses: i.e. Statutory Rape — severe punishment
– With statutory rape, most courts impose strict liability as to the age of the victim and require mens rea as to the other element — impose strict liability b/c public policy to protect young girls
– Regina v. Prince: court imposes strict liability as to age of the girl and knowledge as to other elements (“take unmarried girl” (knowledge) “under 16” (SL) “against will of father” (knowledge)) — this decision is extended to statutory rape in most jurisdictions — assumption of risk by D
            * Arguments for Strict Liability
                        1.Avoid mistakes (incentive to take further precautionary measures)
2.Effective way of dealing w/ minor regulatory legislation (e.g. traffic offenses)
            * Arguments against Strict Liability (MPC)
Model Penal Code says strict liability only allowed w/ violations — says that mens rea required in all other circumstances
* Increasing authority for a middle ground b/t full mens rea requirement and strict liability (which leads to a 3rd category of offense–#2 below)
                        1. mens rea must be proved by prosecution
2. No necessity for prosecution to prove mens rea — doing the prohibited act is prima facie case for committing the offense, but the accused avoids liability by proving he wasn’t negligent
                        3. Strict liability
                        * Category #2 has been used by at least one U.S. juris (Canada, Aust)
* Under no circumstance is a person’s mistake of fact a defense for violating a strict liability offense
* Specific Intent Crimes: ignorance or mistake is a defense when it negatives the existence of a state of mind required to commit an offense — this is no exception to the rule, b/c it negatives the required mens rea
* Mechanical Approach: murder requires purpose or knowledge and is thus specific intent crime; when A shoots B, thinking B is a deer, A not guilty of murder b/c doesn’t have required mens rea; (A could be reckless or negligent, though and is possibly guilty of crimes requiring that mens rea)
* e.g. if A takes property he believes is abandoned, he’s not guilty of larceny, b/c he didn’t intend to permanently deprive the other of the property
* Some courts have held mistake must be reasonable (as w/ general intent crimes), but this makes no sense when looking at a required mental state (if one must “know,” how does reasonableness figure into not “knowing)
* General Intent Crimes: mistake of fact must be reasonable
            – Rape (intercourse w/ woman-not D’s wife-w/o her consent): 
* Mechanical approach: rape is general intent crime. Mistake that is unreasonable does not negate.
* Courts do not require knowledge as to consent for rape
* Most courts allow reasonable mistake of fact as to lack of consent to find D not guilty but find guilt w/ negligence
* Some courts impose strict liability and do not allow reasonablene

willful, deliberate and premeditated” killing (1st degree) that not much distinction and very few 2nd degree murders
-Reasoning: sometimes, lack of premeditation is just as or more dangerous (Anderson: no evidence of premeditation under below 3 considerations but girl butchered by man living w/ family)
* Most courts interpret “deliberate and premeditated” as independent elements from intent, but courts differ as to where they draw the line (MO requires deliberation on the matter)
* Where courts draw the line on “deliberate and premeditated”
                        1. “No time frame is too short” (gun off nightstand)
2. Reflection: D must reflect on the intent to kill (Gutherie: reflection is required for 1st degree)
* Court applying the reflection requirement for 1st degree murder interpret 3 factors
                        1. “planning activity” by D
                        2. facts about Ds prior relationship w/ victim
                        3. evidence re: nature or manner of killing
                        * MPC eliminates the distinction b/t 1st and 2nd degree murder
            Second Degree Murder
                        1. Intent to inflict Grievous Bodily Harm
                                    – Malice aforethought is implied
2. Extreme Recklessness (“Depraved Heart”): person’s conduct manifests an extreme indifference to the value of human life, so malice aforethought implied
– e.g intentionally shooting gun in a crowded room, driving car at fast speed in bad weather while intoxicated, Russian roulette by putting bullet in gun, spinning chamber, pointing at another and pulling trigger
– Omissions: malice aforethought can be inferred from omissions that evidence extreme recklessness
-e.g. parent fails to feed infant, homeowner purchases aggressive dogs and fosters their aggressiveness and then fails to secure them in the yard
3. Intentional Killing that doesn’t meet the Premeditation/Deliberation standard
– e.g. Jurisdiction requires reflection for 1st degree, but there was no reflection (though it was intentional) so 2nd degree
                        4. Felony Murder that isn’t an enumerated felony
Felony Murder Rule
* Basis: imputes mens rea of lesser offense to substitute for mens rea of greater offense
– Strict liability: felony murder applies whether felon kills victim intentionally, recklessly, negligently or accidentally and unforeseeably
* First degree: death resulting from commission of enumerated felony (arson, rape, robbery, etc.)
* Second degree: death resulting from another felony       
* Time frame of the Crime
– Beginning: commission of felony begins when one would be attempting the crime
– End: felony ends when criminal reaches relative safety
* Accomplices: Felony murder rule makes it so that felons are always guilty of murder when murder committed by their co-felons–felony murder extends implicitly to accomplices
– courts ignore the scope of the plan (co-felons guilty of felony murder even if agree not to carry gun and shooter does carry gun and kills)
* Prosecutors use felony murder even when malice aforethought could be proven independently of the felony, b/c felony murder rule greatly eases the prosecutor’s burden of proof
            4 important limitations to Felony Murder Rule
                        1. “Inherently dangerous felony”
                        2. Merger Doctrine
3.      “Killings not in furtherance”
4.      Killings by a non-felon
1. Inherently Dangerous Felony
* some states limit felony murder to homicides committed during commission of felonies dangerous to human life (some states apply this limitation; some do not)
            * 3 approaches to inherently dangerous felony doctrine by those states applying
                        1. Abstract
                                    * limits felony murder
                        2. Case by Case: consider the facts and circumstances of a particular case
3. Mixture of abstract and case by case, so that felony is dangerous under either approach, it may serve as a predicate for felony murder
2. Merger Doctrine: felony-murder rule applies only if felony is independent of the homicide
* Homicidal felonies (otherwise, wouldn’t be manslaughter), intent to kill, and assaultive crimes in which assault is included w/in the felony merge and cannot invoke felony murder rule
* Felony does not merge if there is an independent felonious purpose
– Can use armed robbery as the felony, b/c armed robbery has independent felonious purpose of taking property
e.g. In a burglary where the intent is to take