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Criminal Law
Villanova University School of Law
Dempsey, Michelle Madden



FALL 2013

I. Level of Mens Rea (MR)

A. Purpose/Intention

1. Goal or conscious object to bring about prohibited conduct/result.

B. Knowledge

1. Actual or constructive.

2. Know that it is probably certain act will bring about prohibited conduct/result. (Blowing up airplane to kill one, practically certain to kill others).

3. “Willful Blindness” (Ostrich Rule)- Not taking action to find out if feared that something is illegal= constructive knowledge.

C. Recklessness

1. Gross deviation from standard of care of a reasonable person and consciously disregarding a substantial and unjustifiable risk.

D. Negligence

2. Gross deviation “ “ and failing to perceive a substantial and unjustifiable risk.

E. Strict Liability

3. No MR needed.

– Principle of Correspondence- For every element of Actus Reus (AR), there should be a corresponding MR element. [MPC 2.02(4)].

– Transferred Intent- Intent transfers to anyone actually injured by AR. (D plants bomb intended to kill T, but kills V, intent transferred from T to V).

II. Criminal Responsibility

A. Some people not considered capable of committing crimes:

1. Children under certain age (infancy doctrine)

2. Mentally incompetent persons (incompentency)

3. Those without requisite MR

4. Non voluntary actors (sleep-walkers)

5. Accidental actors (slip and fall into someone)

6. Actor under duress (limited defense)

B. When do mistakes negate MR?

1. Generally, ignorance or mistake of fact or law can be a defense, BUT ONLY when it negates the existence of a mental state essential to the crime charged.

2. Generally, mistake of law no defense. “Ignorance of law no excuse.” (O’Brien)

a. Exception- Reliance on erroneous advice of governmentl authorities might be exception if (1) D relied on affirmative assurance that conduct giving rise to conviction was lawful (2) info was received from govt official authorized by same jurisdiction that is prosecuting D and (3) those officials were charged by law w/ responsibility for defining permissible conduct w/ respect to the offense w/ which D is charged.

3. In common law, honest and reasonable belief which, if true, would make D’s act innocent has always been defense.

a. Mistake as to one’s legal status as a felon doesn’t negate MR, even if relied upon b/c came from legal counsel (Snyder)

4. Rule of Law- Legislature should change law, not courts, so more consistent. Should be clearly stated and publicized, prospective, fairly stable, and applied consistently.

III. Justifications of Punishment

A. Prevention

1. Specific Deterrence- Deter that individual from committing crime

B. Incapacitation

1. Impose punishment that doesn’t allow individual to commit crime again. (Breathalizer in car to prevent DUI)

C. Rehabilitation

D. Deterrence

A. General Deterrence- Deter public from committing crime.

E. Education

F. Retribution- Punish b/c it’s fair.

G. Mixed Theories

Property Offenses

IV. Larceny

A. Trespassory taking and carrying away of the personal property of another with the intent to steal.

B. Some state statutes (NY) include Larceny by:

1. trespassory taking

2. by trick

3. embezzlement

4. False Pretenses

5. False promise

-Taking element satisfied when D exercised dominion and control over property for a period of time, however temporary, in a manner wholly inconsistent with owner’s continued rights. (Alamo)

– Later courts have removed carrying away element, also not in MPC.

– In shoplifting, trespassory taking can be established through circumstantial evidence of D’s suspicious conduct, even when D didn’t leave shop. (Olivo, Gasparik, and Spatzier)

– Taking element and intent to steal must coincide in time. If D takes property, w/o intending to steal, but later (while still in possession) develops intent to steal, larceny has occurred when intent formed.

– Economic “joy-riding” not larceny. (Jennings).

– Taking another’s property, even as prank may count as larceny. If D intends to return, may negate intent, but not if D recklessly loses property or abandons it w/ unfounded hope it will go back to owner (Jensen).

V. Embezzlement

A. Fraudulent (intent to defraud) conversion of property that belongs to another where D was in lawful possession of property prior to fraudulent conversion.

1. lawful possession may be satisfied by proof D had control over property in virtue of special trust or through legal fiction of constructive possession.

2. intent to defraud- absence of either bona fide claim of right to property. Intent to

rate counts of robbery based on # of people who have protective concern over property and who are threatened or forced by D at relevant time.

G. Force used to retain property already peacefully taken, or force used in an attempt to escape, is not the kind of force required to establish robbery (lack of coincidence of force and taking) (Holley) (different from PA and MPC 222.1).

IX. Burglary

A. CL- Breaking and entering into dwelling house of another at night w/ intent to commit a felony therein.

B. Modern- Entering building or any part thereof as trespasser w/ intent to commit some specified offense of theft or violence therein.

C. Any part of the body entering a building is sufficient to constitute entering a building (Brown, Davis)

D. Using a tool/instrument that can be used to commit intended theft/other crime to enter building constitutes entering. If tool is used in a way that breaches occupant’s possessory interest in building (Davis).

E. Placing a forged check in check chute or ATM card into ATM machine do not constitute burglary (Davis).

F. If structure D entered functionally interconnected (used in related or complementary ways) w/ and immediately contiguous (adjacent, adjoining, close) to other portions of the building, then counts as a building (Jackson).

G. Trespasser= entering w/o permission/consent. If gen. permission, then no trespass unless D enters w/ intent to exceed consent or at least being reckless as to whether he’s entering in excess of consent. Jury can infer reckless/knowledge from facts known to D. (Jones).

H. Consent doesn’t need to be given by owner, just one legally authorized to act for the owner (Gonzales).

I. Ownership doesn’t matter, courts look at whether D has right of possession (Johnson).

J. Entering as trespasser also has MR element, P must prove that D knew he was trespasser or D was at least reckless as to whether he was trespassing (Collins).