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Criminal Law
Wayne State University Law School
Dillof, Anthony M.

Winter 2016

Modern Criminal Law
Common Law
Model Penal Code
Judicially developed
Received in US
Transferred to statute
Supplemented legislatively
Inconsistent, incomplete and redundant
Completed in 1962
Adopted in varying degrees in ¾ of states
Integrated, complicated, compromised

To determine CL or MPC?
Date: before 1962 = CL
Reasoning: reliance on earlier sources = CL
Terminology: archaic = CL
Substance: statutes resemble MPC formulations = MPC
Look at state
Reading Statutes
Rewrite using familiar words
Remove double negatives
Reformat to clarify logical structure
Think about it in terms of concrete cases

Goals of Criminal Law
Utilitarianism – prevent criminal acts
Retributivism – punish
Harsh treatment for blameworthy
No harsh treatment for those not blameworthy
Structure of an Offense
Common Law
Model Penal Code
Actus Reus (“bad act”)
Conduct and/or results
Attendant circumstances
Actus = voluntary physical movement in the sense of conduct
Reus = the fact that this conduct results in a certain harm
Mens Rea (“guilty mind”)
Mental state

Conduct elements
Act / omission
Mental state
Attendant circumstance elements
Result elements

Social Harm
Social harm = loss suffered experienced by society
Result crime – law punishes b/c of an unwanted outcome
Conduct crime – law prohibits specific behavior

Actus Reus
Common Law
People v. Decina
Operating a vehicle in a manner causing the death of another person.
Conduct: operating a vehicle
Result: causing the death of another person
Rule: Not guilty unless prosecutor proves specified conduct and result

Ex: Breaking and entering a dwelling house of another at nighttime w/ intent to commit a felony therein
Conduct: entering
Dwelling house of another: attendant circumstance
Nighttime: attendant circumstance
Intent: mens rea
Breaking: result

MPC § 1.13(5)
“conduct” means an action or omission and its accompanying state of mind, or where relevant, a series of acts and omissions

MPC § 1.13(9)
“element of an offense” means (i) such conduct or (ii) such attendance circumstances or (iii) such a result of conduct as:
(a) is included in the description of the forbidden conduct in the definition of the offense; or
(b) establishes the required kind of culpability; or
(c ) negatives an excuse or justification for such conduct; or
(d) negatives a defense under the statute of limitations; or
(e ) establishes jurisdiction or venue
Vague and ambiguous
More explicit than CL

Voluntary Act
Common Law
CL Basic Voluntariness Requirement
In general, a person is only liable
For a result offense: if a voluntary act (accompanied by the relevant mens rea) caused (actual & prox) the prohibited result.
For a conduct offense: if a voluntary act (accompanied by the relevant mens rea) constituted or caused (actual & prox) the prohibited conduct.

Martin v. State (Alabama 1944) pg 128
Facts: officers arrested Martin, took him to highway, convicted of being drunk on public highway
Holding: No liability b/c involuntary.
Rule: Person not guilty of an offense unless conduct includes voluntary act.  No liability for purely involuntary conduct.
Under MPC: Martin would be liable.

State v. Utter (WA 1971) pg 130
Facts: Utter charged w/ murder 2 for stabbing son while intoxicated; honorably discharged, suffered PTSD; says stabbing is a learned physical reaction.
Holding: Jury should disregard ev about “conditioned response” defense.  (Dillof doesn’t think t/c got the Utter case right.)
Rule: An act must be a willed movement. 
An “act” committed during unconsciousness is not voluntary.  However, voluntarily induced unconsciousness, such as by drugs or alcohol, is not a complete defense.
Involuntary means coerced, or not a willed movement, but a physical reaction. 
People v. Beardley
MPC § 2.01(1)
A person is not guilty of an offense unless his liability is based on conduct which includes a voluntary act or the omission to perform an act of which he is physically capable.

MPC § 2.01(2)
The following are not voluntary:
Reflex or convulsion
Bodily movement during unconsciousness or sleep
Conduct during hypnosis or resulting from hypnotic suggestion
Bodily movement that otherwise is not a product of the effort or determination of the actor, either conscious or habitual

MPC § 2.05(1)
Voluntary requirement applies to:
All code crimes
Code violations
Which say voluntary, or
Which practically can be enforced well even w/o voluntary requirement
Non-code offenses
Except if it is plain that requirement doesn’t apply

MPC 1.04(5)
Crimes: felonies, misdemeanors, petty misdemeanors
Violations: so designated, no imprisonment
Goals of CrimLaw
Utilitarian: We shouldn’t think people committed a crime if they were brought into the US against their will because we can’t deter them.  There’s no use in incapacitating them to prevent acts, and no use to reform them to prevent criminal acts.
Retributive: No harsh treatment for those not blameworthy.  If involuntary, then not blameworthy.
Note: 2.01 “includes” a voluntary act
Weakens voluntary act requirement by expanding what is voluntary
Note: time-framing.
Common Law
CL Liability for Omission
Liable for causing or doing X where
You cause or do X, or
You omit to engage in an act, thereby allowing  X or the doing of , where such omission violates a pre-existing duty to act

Ex: Possible liability for child abuse even if you never abuse a child if you violate a duty to report ongoing child abuse.

People v. Beardsley (MI 1907) pg 136
Facts: Beardsley convicted of manslaughter, was partying with Blanche Burns when she took pills and died.
Holding: No legal duty à no omission. No legal duty based on mere moral obligation.
When Duty Not to Omit:
Statute creates duty
Status relation
Contractual duty
Prevent others from aiding

Barber v. Superior Court (CA 1993) pg 142
Facts: per family’s request, doctors unhooked respirator and equipment
Holding: Doctors’ omission to continue treatment did not breach a duty- only withholding benefits.  The baseline is near death.
Rule: Act v. Omission
Acts cause harms
Being harmed is being made worse, placed below ex ante welfare baseline.
Whether causing harm (acting) or withholding benefit depends on where the baseline is.

Dillof: Don’t worry about MPC on omissions b/c it’s such a failure
MPC 2.01(3)
Liability for the commission of an offense may not be based on an omission unaccompanied by action unless:
a: the omission is expressly made sufficient by the law defining the offense; or
b: a duty to perform the omitted act is otherwise imposed by law
In other words: liability for the commission of an offense may be based on an omission if:
The omission is expressly made sufficient by the law defining the offense; or
A duty to perform the omitted act is otherwise imposed by law

When Duty Not to Omit:
Note: basically same as CL
How to Approach Omissions Problems
Try to apply “rule”
E.g., causing harm or withholding benefit
If necessary, use cases
E.g., draw analogies to Barber
If necessary, use intermediate policy considerations
E.g., ambiguity, making matters worse, undue constraints on freedom
If necessary, consider ultimate goals of crim law
Util: social benefit
Retrib: what do people deserve?

Mens Rea
Common Law
Movement of law from older broader sense to newer, more modern view of mens rea.
Broad sense:
Blameworthy state of mind
To apply must make normative judgment
E.g., did D act for “bad” reason?
Narrow sense:
State of mind, specified by offense, regarding social harm element of offense
To apply must make empirical judgment
E.g., Did D “intend” to injure V?
CL “Intent”
Purposefully: goal/desire to do or cause X (conscious object) OR 
Knowingly: virtual certainty of doing or causing X

Regina v. Cunningham (Ct Criminal Appeal 1957) pg 151
Facts: Regina wrenched gas meter from gas pipes and stole it à gas seeped through wall and killed Sarah Wade. T/c: malice = wicked.
Holding: Malice = either intent or recklessness. Should be left to the jury to decide whether, even if did not intend to injury Sarah Wade, foresaw that removal of gas meter might cause injury to some

Conscious of substantial risk

State v. Nations (Missouri 1984) pg 164
Facts: Nations (owner of club) charged w/ endangering welfare of a child b/c 16 y/o dancing for tips
Holding: State failed to prove D knew child’s age was less than 17.
Rule: Ct didn’t follow MPC – Missouri did not adopt proposed def of knowingly in 2.02(7).  Sensible inference: legislature rejected expansation of def of knowingly to include willful blindness of a fact and chose to limit the def of “knowingly” to actual knowledge of the fact.

Problems in Statutory Interpretation
MPC § 2.02(4) Prescribed Culpability Requirement Applies to all material elements
If MR + C + AC prohibited, then liable only if: C + R + AC + MR(C) + MR(R) + MR(AC)
“unless contrary purpose plainly appears” à unless plainly appears that drafters had the purpose of limiting the scope of the culpability term in the offense.
Consider placement, punctuation, and possibility of alternative constructions.
May not be plain when contrary purpose plainly appears, and must argue.
CL Mistake of Fact
Where general intent offense, liability for
Correct belief engaged in AR of offense, or
Mistaken belief that not engaged, but belief
Unreasonable, or
That engaged in immoral conduct (obsolete), or
That engaged in other illegal conduct.

Perkins: Mistakes
General intent offense
GI where mens rea not specified (pg 158)
E.g., arson is “unlawful burning of building of another”
If good faith & reasonable mistake about AR, no liability.
Specific intent offense
SI where mens rea (intent) is specified by offense
If good faith mistake about AR, no liability.

LaFave – same thing but simpler
No liability when mistake negates required material element.
SI: When knowledge required and mistake (no knowledge), no liability.
GI: When no MR specified, default MBMS (mentally blameworthy mental state), and since reasonable mistake not blameworthy (negates MBMS), no liability.
If unreasonable, blameworthy, so liability.

People v. Navarro (LA 1979) pg 193
Facts: larceny = every person who shall feloniously steal the personal property of another is guilty of theft.
Holding: Reasonableness affects judgment of good faith BUT D had good faith even tho unreasonable by objective standard.
Applies Perkins on mistakes
MPC Mistake of Fact
MPC § 2.04 Ignorance or Mistake
Like the LaFave test
(1) Ignorance/mistake of fact or law is a defense if:
Ignorance or mistake negatives the purpose, knowledge, belief, recklessness or negligence required to establish a material element of the offense; or
The law provides that the state of mind established by such ignorance or mistake constitutes a defense.
Mistakenly believing you are committing another crime is not “defense”
Mistakenly believing committing another crime may reduce the degree of offense you may be convicted of or sentenced to.
Note: not liked by some scholars b/c it’s redundant – only repeats the requirements for mens rea

Types of Defenses
Affirmative defense:
e.g., insanity, entrapment, self-defense, duress, etc.
Offense definition satisfied, but…
Generally D's burden to introduce some ev supporting, sometimes burden to prove
Failure-of-proof defense:
Prosecutor failed to prove all the elements of the offense definition BRD (beyond a reasonable doubt)
No evidentiary burden on D
Mistake of fact is a failure-of-proof defense under MPC