Criminal Law
Professor Gregory Gordon
Spring 2012
I. Actus Reus
A. Requirement of “voluntary act”
1. Thinking
2. Presence or appearance
3. Unconsciousness
4. Possession
5. Temporary impairment
a. Automatism, somnambulism, epilepsy, hypnosis, etc.
6. Note: No one punishable for thought of crime
B. Duties giving rise to criminal omissions liability
1. Statutory
2. Status relationship
3. Contractual
4. Voluntary assumption of care
5. Duty based on creation of peril
6. Duty based on respondeat superior
7. Duty of landowner
II. Mens Rea
A. Kinds of culpability
1. Purpose-conduct/result is conscious object
2. Knowledge-awareness of practical certainty
3. Recklessness-conscious disregard of substantial and justifiable risk
4. Negligence-failure to perceive said risk
B. Intoxication
-Under MPC, intoxication can be defense to purposely/knowingly
-Voluntary intoxication negates purpose element-still can be convicted of lesser
crime
-Intoxication can still be defense when dealing with “conscious object” or
“purpose” crimes
-General intent?-single culpability requirement can make knowingly negated
C. Mistake of fact
-For specific intent crimes, mistake of fact, even unreasonable, is viable as defense
-Just has to be honest
D. Mistake of law
-Ignorance of law is just not excuse. Period.
-Law is definite and knowable-can’t really have honest mistake of law
1. Reasonable Reliance doctrine
a. You interpret law differently? Not defense
b. Can get out of it if you reasonably rely on official statement of law
i. Even if law is just flat-out wrong, you can get out by obtaining statement
from person acting as a public body
ii. Said person has to be responsible for interp/admin/enforcement of law
iii. Even attorneys and emergency operators do not fall into this class
2. Failure of Proof claim
a. In some very specific cases, statutes say you gots to know it’s a crime for it to
work
III. Causation
A. Accelerated cause
-Two causes can be combined to perpetuate act more quickly-But for act, would
end result have occurred at some time?
B. Correspondent cause
-Two headshots-either would be fatal-But for actions, would social harm have
happened way it did?
C. Obstructed cause
-D1 shoots V, but D2 is way better at killing, so D1 pretty much just gets attempt
D. Intervening cause
-D1 causes massive damage-after injury, something else exacerbates injury
-When they work, they’re superseding causes
E. Proximate cause
1. Dependent cause
-Caused in response to D’s prior wrongful conduct
-Does not relieve wrongdoer of culpability
2. Independent cause
-Coincidental-some gap in causation
-Wrong place at wrong time
3. Intended consequences doctrine
-You intend certain end result, doesn’t matter what happens in middle
4. De minimis contribution to social harm
-Injury is crazy minor and some odd cause intervenes and stuff
5. Apparent safety doctrine
-V appears to be OK, but scre3s up somehow-no causation
6. Free, deliberate informed human intervention
-V does something on their own-makes a choice
7. Omissions
-Never, e-e-e-e-ever considered legit intervening cause
8. Hospital liability
-Surgery on original wound-D still caused death
-Wrong surgery-not cause
-Grossly negligent surgery-can go both ways
IV. Complicity
A. Accomplice liability
1. Principal in first degree-you do it
2. Principal in second degree-you’re there
3. Accessory before the fact-aid and abet before
4. Accessory after the fact-aid and abet after
-All parties principals in treason
-Mere presence does not satisfy act requirement
-Attempt to help in crime is good enough to trigger culpability
-Act established by omission is there’s a duty to act
-Mental element established by intent to assist and intent for primary party to
succeed
B. Vicarious liability
-Someone under your control does something bad (i.e.: employee)
-Can defend via powerlessness
V. Attempt
A. Six stages of a crime
1. Come up with idea
2. Evaluate said idea
3. Fully form intent to do it up
4. Prepare to commit crime
5. Commence commission
6. Complete action and achieve criminal goal
a. Two kinds of attempt
-Complete, but imperfect-you do everything, but it doesn’t work
– Incomplete-actor doesn’t allow necessary acts-like, a cop shows up
-Person intending to commit act must take substantial step
-Attempt merges into crime proper
b. You’re on the hook even with…
i. Unforeseen interruption
ii. Mistake of judgment
iii. Preparation
B. Various levels of testing for attempt
1. Physical proximity
-Proximate or amounting to commencement of crime
-Must approach sufficiently near to crime to be first step in whole thing
-Doesn’t work unless you can commit crime almost immediately
2. Dangerous proximity
-Gravity and probability of offense and nearness of action to crime
-So near result, probability of success is great
3. Indispensable element
-Have to obtain indispensable, um, thing to commit crime
4. Probable desistance
-Based on how far you’ve gone-can you turn back?
5. Abnormal step
-Would ordinary person take this action?
6. Res ipsa
-Person’s conduct alone manifests criminality (unequivocality)
-MPC is all about substantial step-even bright line rules it up
-Lying in wait, enticing victim, recon, unlawful entry, etc. all considered sub. Step
C. Abandonment
-You give up voluntarily and completely
-Result of repentance-doesn’t work on coercion or anything which increases
chance of arrest
-Also doesn’t work if you just postpone crime
-Once you commit last act for offense, you’re on hook regardless
-Once social harm has occurred, you can’t take it back-you’re done
D. Impossibility
1. Factual impossibility
-Circumstances make crime impossible to consummate-you tota
ny ends
-Killings caused by recklessness-usually involuntary manslaughter
-MPC recognizes separate type of offense for negligent homicide
-Have to consciously disregard rule
VII. Theft
A. Larceny
1. Intentional carrying away
2. Of personal property
3. In possession or presence of another
4. Sans consent
5. With intent to permanently deprive
-Trespassory taking-person who lawfully owns doesn’t consent to taking
-Larceny satisfied by any slight movement of property
-MPC has made it sufficient is D exercise unauthorized control
-Property need not be transported to satisfy “taking” element
-New two elements raise issue of people who have temporary custody
-You’re not owner-still larceny
-Find something you know is someone else’s, you gots to make effort to find them
-Borrowing without permission can’t be larceny-no intent to permanently deprive
-Exception if you convert borrowed property
-Defense if you have honest belief you’re allowed to exercise control over property
-Minority rule of reasonableness of belief
B. Embezzlement
1. Fraudulent
2. Conversion/misappropriation
3. Of property of another
4. Which D already possesses via entrustment
-Includes “constructive possession”-power to exercise dominion
5. MPC embezzlement
-Can be movable or immovable property
-Take control with intent to deprive
-For immovable property, unlawfully transfer it with purpose of your benefit
C. Fraud
-Person knowingly gives property to another per false representation
1. Larceny by trick
-Taking possession
-By knowingly making false representation as to material fact or promises
2. False pretenses
-Taking title or possession of property of another
-By knowingly making false representation re: material fact
-MPC merged larceny by trick and false pretenses into theft by deception
D. Robbery
-Has elements of larceny plus two more
-Taken from person or presence of victim
-By force or intimidation
-MPC-occurs during commission of theft if…
-Inflict or threaten serious bodily injury
-OR commit/threaten to commit any felony of 1st or 2nd degree
E. Burglary
-Breaking and entering
-Any occupied structure/vehicle
-Any time
-With intent to commit any crime therein
-MPC adds burglary doesn’t work when premises open to public
-Building’s being abandoned is affirmative defense
