Section MPC Common Law

- No person may be convicted of a crime in the absence of conduct that includes a voluntary or act or - Actus reus: voluntary act that causes social harm.
Voluntary the omission to perform an act of which he is physically capable. - Act: simply a bodily movement, a muscular contraction.
Act -
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Involuntary: reflexes, convulsions, conduct during unconsciousness, sleep, or due to hypnosis. -
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Voluntary: movement of the body which follows our volition.
Hypnotism: Voluntary acts but excusable.
- Linked to retributivist’s respect for human autonomy.
- Must prove beyond a reasonable doubt.
- Sufficient that D’s conduct included a voluntary act.
- Martin: M’s conviction had to be overturned b/c the statute required a voluntary appearance on the highway, which did not occur
here.
- Possession: inchoate offense that requires proof that D knowingly procured or received the property possessed or that she failed to
dispossess herself.
- Robinson: can’t make illness (addiction) a crime.
- Powell: statute prohibiting getting drunk in public was upheld.
- The omission to perform an act of which he is physically capable. - Commission by Omission: omission of a common law duty to act. Status relationship (founded on dependence); implied or express
Omissions - Liable if: law defining the offense provides for it OR if the duty to act is otherwise imposed by law. contractual obligation; creation of a risk; voluntary assistance; statutory duty.
- Not convicted of an offense unless “he acted purposely, knowingly, recklessly or negligently with - “Vicious will.”
Mens Rea respect to each material element of the offense.” - Intent: it is his desire to cause the social harm OR he acts with knowledge that the social harm is virtually certain to occur as a result
- Distinction between general and specific intent disregarded. of his conduct.
- Purposely: conscious object to engage in conduct of that nature or to cause such a result.” For - Transferred intent is highly debatable.
attendant circumstances, acts purposely if “aware of the existence of such circumstances or he - Knowingly: intended the harmful result; is aware of the fact or correctly believes that the fact exists; willful blindness.
believes or hopes that they exist.” - Willful: intentional; an act done with a bad purpose.
- Knowingly: aware that it is practically certain that his conduct will cause such a result.” For - Negligence: deviation from the standard of care that a reasonable person would have observed in the actor’s situation. Look at:
attendant circumstances, acts knowingly if “aware that his conduct is of that nature or that such gravity of harm, probability of such harm, burden to the D of stopping the risky conduct.
attendant circumstances exist.” - Reasonable Person: D’s unusual physical characteristics are incorporated but not unusual mental characteristics.
- Recklessly if he “consciously disregards a substantial and unjustified risk that the material risk will - Reckless: disregarded very substantial and unjustifiable risk (of which he was aware).
result from his conduct.” - Specific Intent: emphasize that the definition of the offense expressly required proof of a particular mental state.
- Negligent if he should be aware of a substantial and unjustifiable risk that the material element exists - General Intent: any offense for which the only mens rea required was a blameworthy state of mind.
or will result from his conduct.
- Objective: Reasonable person in the actor’s situation.
- Reckless is default if nothing else is given.
- A mistake is a defense if it negates the mental state required to establish any element of offense. - Specific intent crimes: exculpatory if it negates the particular element of mens rea.
Mistake of - Exceptions: if the actor would have been guilty of another offense had the circumstances been as he - General intent crimes: if the actor’s mistake negated his moral culpability for the crime and was reasonable.
Fact supposed. Permits punishment at the level of the lesser offense. -
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Strict liability: no mistake of fact defense.
Moral-Wrong Doctrine: no exculpation for mistake where, if the facts had been as the actor believed them to be, his conduct would still
be immoral.
- Legal-Wrong Doctrine: no exculpation for mistake where, if the facts had been as the actor believed them to be, his conduct would still
be illegal.
- Generally no excuse. - Ignorance of the law excuses no one.
Mistake of - Exceptions: reasonable reliance (public official); fair notice (statute not known to her and was not - The law is definite and reasonable, so there is no such thing as a reasonable mistake of law.
Law published); mistake that negates mens rea. -
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Exceptions: reasonable-reliance doctrine, official interpretation of law, fair notice.
Different-law mistake: claimed mistake relates to a law other than the criminal offense for which the D has been charged. Defense for
specific intent crimes but not general intent.
- Not a defense: advice of private attorney.
- But for (sine qua non) rule. - Factual cause or “cause-in-fact”
Actual - Exclusive meaning of “causation” in criminal law. - But for test.
Cause - Treats actual causation and mens rea as independent concepts.

- D has not acted with the requisite culpability unless the actual result was not “too remote or - “Legal cause”
Proximate accidental in its occurrence.” - An act that is a direct cause of social harm is also a proximate cause of it.
Cause - Relates to actor’s culpability. - Intervening cause: de minimis contribution; foreseeability; responsive intervening cause; coincidental intervening cause; intended-
consequences doctrine; apparent-safety doctrine; free, deliberate and informed human intervention; omissions.
- If he believes that such force is immediately necessary to protect himself against the exercise of - Objective.
Self- unlawful force by the other individual on the present occasion. - Justified in using force upon another if he reasonably believes such force is necessary to protect himself from imminent use of
Defense -
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Based on subjective belief though it has to be reasonable.
Deadly force is justified if it’s immediately necessary to protect against: death, serious bodily injury, -
unlawful force by the other person.
Deadly force is only justified in self-protection if the actor reasonably believes that the use is necessary to prevent imminent and
forcible rape, or kidnapping. unlawful use of deadly force by the aggressor.
- Can’t use deadly force if you are the provoker. - A person is justified in acting on the basis of reasonable and erroneous appearances. (Not available for unreasonable belief.)
- May not use deadly force against aggressor if he “knows that he can avoid the necessity of using such - 3 parts: necessity, proportionality, reasonable belief.
force with complete safety by retreating.” - Aggressor has no right to a claim of self-defense.
- Deadly aggressor may regain right to self-defense if they withdraw in good faith from the conflict and fairly communicate that fact to
OTHER STATES: his intended victim.
- Retreat majority rule: permitted to use deadly force to repel an unlawful deadly attack even if he - If any of the elements of the defense are missing, the defense is wholly unavailable to a D.
could retreat safely. - Castle Exception: a non-aggressor is not ordinarily required to retreat from his dwelling, even though he knows he could do so in
- Retreat minority rule: threatened by deadly force must retreat if he is aware that he can do so in complete safety.
complete safety.
- Imperfect defense: nondeadly aggressor who is victim of deadly force must retreat; one who kills
another b/c he unreasonably believes that factual circumstances justify killing is guilty of
manslaughter.
- BWS: can usually introduce evidence of the decedent’s prior abusive treatment of her.
- Transferred-Justification Doctrine: D’s right to self-defense transfers from intended to actual victim.

- Intervenor may use deadly or nondeadly force to the extent that such force reasonably appears to the - A person is justified in using force to protect a 3rd party from unlawful use of force by an aggressor.
Defense intervenor to be justified in defense of 3rd party. - Parallel’s the third party’s right of self-defense.
of Others - Can use if: D uses no more force to protect X than D would be entitled to use in self-protection, based
on the circumstances as D believes them to be; under the circumstances as D believes them to be, X
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Was originally limited to people related to intervenor by consanguinity, marriage, or employment.
Alter Ego: Could only use force to defend a 3rd party if the party being defended would in fact have been justified in using force, and
 would be justified in using such force in self-defense; D believes that her intervention is necessary for force in the same degree, in self-defense.
X’s protection.
- Not required to retreat.
- Required to attempt to secure X’s retreat if X would be required to retreat under the rules of self-
protection.
- Neither D nor X is required to retreat in a home.
- Can use nondeadly force upon another person to prevent or terminate an entry or trespass if he - A person in possession of real or personal property is justified in using nondeadly force against a would-be dispossessor if he
Defense believes: the other person’s interference is unlawful; the intrusion affects property in the actor’s reasonably believes that such force is necessary to prevent imminent, unlawful dispossession of the property.
of -
possession; nondeadly force is immediately necessary.
Can use force to re-enter and re-capture property if: he believes that he was unlawfully dispossessed
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No deadly force.
Request desistance first and then use only as much force as necessary.
Property of the property; and either the force is used immediately after dispossession or he believes that the
other person has no claim of right to possession of the property.
- May not use force to recapture property unless a person acts promptly and with nondeadly force.

- Nondeadly force not okay if: didn’t request desistance; it would cause substantial risk of serious
bodily harm to trespasser; if both parties think they are lawful.
- Can use deadly force if believe that: intruder is seeking to dispossess him of the dwelling; intruder has - Early Common Law: can use deadly force to defend home.
Defense no claim of right to possession of the dwelling; such force is immediately necessary to prevent - Middle Approach: Can use deadly force if other person intends an unlawful and imminent entry of house and intends to injure
of Home -
dispossession.
Can use deadly force (for house or other things) if he believes that: the other person is attempting to -
someone and deadly force is necessary to repel intrusion.
Narrow Approach: Can use deadly force if other person intends an unlawful and imminent entry of dwelling and intruder intends to
commit arson, burglary; such force is immediately necessary to prevent commission of the offense; commit a forcible felony therein and such force is necessary to prevent intrusion.
and either the other person previously used or threatened to use deadly force against him or use of - Spring Gun: Can be used where intrusion is such that if the person were present he would be justified in taking the life or inflicting
nondeadly force to prevent commission of the offense would expose him to another innocent person the bodily harm with his own hands.
to substantial danger of serious bodily injury.
- Spring guns are prohibited.
- “Choice of Evils” defense. - Has to choose between violating a relatively minor offense OR suffering substantial harm to person or property.
Necessity - 3 conditions: conduct is necessary to avoid harm to himself; harm to be avoided is greater than that - 6 conditions must be met: faced with a clear and imminent danger; direct causal relationship between his action and harm to be
sought to be avoided; no legislative intent to exclude the conduct plainly exists. averted; no effective legal way to avert the harm; harm that the D will cause by violating the law is less serious than harm he seeks to
- Rejects imminency and no-fault requirement. avoid; lawmakers hadn’t previously anticipated the choice of evils; D must come to the situation with clean hands.
- General applicability. - Limitations: natural forces; doesn’t apply to homicide cases.
- It was right for person to make the choice they did.
- Unavailable if actor recklessly placed herself in a situation in which it was probable that she would be - 5 possibilities: another person threatened to kill or grievously injure the actor or a third party unless she committed the offense; the
Duress subjected to coercion. actor reasonably believed the threat was genuine; the threat was “present, imminent, and impending” at the time of the criminal act;
- Does not require imminency. there was no reasonable escape from the threat except through compliance with the demands of the coercer; the actor was not at fault
- General applicability (can use for homicide). in exposing herself to the threat.
- Does not require that imperiled person is D or family member. - Threat must come from a human being.
- Limited to threats of “unlawful” force. - Must threaten to cause death or serious bodily harm.
- Not recognized for any interest other than bodily integrity is threatened. - Must be imminent.
- Must be directed at D or a family member.
- Unavailable if at fault.
- Excuse.
- Not an excuse for an intentional homicide.
- Person shouldn’t be blamed.
- Doesn’t distinguish between specific & general. - Disturbance of mental or physical capacities resulting from the introduction of any substance into the body.
Intoxicati - Not guilty if, as a result of intoxication, he lacked the state of mind required in respect to an element - Not a defense; a failure of proof claim.
on -
of the offense.
For reckless crimes, voluntary intoxication is not a defense.
- Voluntary intoxication: knowingly ingests something he knew/should have known could cause intoxication. Includes alcoholism or
drug addictions.
- Conduct during unconsciousness is involuntary. - If voluntary, no defense. Exceptions: did not harbor state of mind; unconscious; long-term intoxication-induced “fixed” insanity (not
- Affirmative defense based on intoxication if the actor suffered from pathological intoxication or in CL).
involuntary intoxication OR the actor’s condition qualifies under ALI test of insanity. - General intent – voluntary is not a defense.
- Specific intent – voluntary is a defense.
- Involuntary intoxication: coerced to ingest; innocent mistake; unexpectedly intoxicated from a prescribed medication; pathological
intoxication.
- Involuntary is a defense to all.
- A person is not responsible for her criminal conduct if as the result of a mental disease or defect she - Incompetent to stand trial: lacks the capacity to consult with her attorney and understand; lacks a rational understanding of
Insanity lacked substantial capacity to: appreciate the criminality of her conduct OR to conform her conduct proceedings.
to the requirements of the law. - Generally, mental illness is not a defense but insanity is.
- Cognitive and volitional prongs. - M’Naghten Test: cognitive based. She did not know the nature and quality of the act that she was doing; if she did know it, she did
not know it was wrong.
- Irresistible Impulse: volitional capacity. She acted from an irresistible impulse; she lost the power to choose between right and wrong
(free agency was destroyed); actions beyond her control.
- Product Test: excused if act was ‘but for’ product of a mental disease or defect.
- Federal Test: Severe mental disease or defect so that she was unable to appreciate: nature and quality of her conduct; wrongfulness of
conduct.
- Evidence that the D suffered from a mental disease or defect at the time of his conduct is admissible if - Failure of proof defense.
Diminishe it is relevant to prove that he lacked a mental state that is an element of the charged offense. - Specific Intent: admissible to negate.
d Capacity - Extreme Mental or Emotional Disturbance: expands on the “sudden heat of passion” doctrine and
permits (but doesn’t require) state courts to recognize a partial responsibility defense. [Reduces
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General Intent: inadmissible.
Mitigates murder to manslaughter.
murder to manslaughter.]
- Issue is whether there was a reasonable explanation or excuse based on D’s psychological
characteristics, for his emotional disturbance.
- Two elements: purpose to commit the target offense AND a “substantial step.” - Misdemeanor.
Attempt - Felony. - Common law assault = attempted battery.
- Abolishes defense of legal impossibility. - Mens rea: actor must intentionally commit the acts that constitute the actus reus of an attempt AND must perform these acts with the
- Recognizes defense of abandonment if voluntary and completely renounced. specific intention of committing the target crime.
- Mens rea: must be her conscious objective to engage in the conduct or to cause the result that would - Specific intent (purpose).
constitute the substantive offense. Purpose or knowledge. - Actus reus: must be perpetration not preparation.
- Actus reus: substantial step. - Last Act Test: person performed all of the acts that she believed were necessary to commit the target offense.
- Physical Proximity Test: attempt does not arise unless an actor has it within her power to complete the crime almost immediately.
 - Dangerous Proximity: act is so near to the result that the danger of success is very great.
- Indispensable Element: presence or absence of an indispensable element.
- Probable Desistance: actor reached a point where it was unlikely that he would have voluntarily desisted from his effort to commit the
crime.
- Unequivocality Test: a person’s conduct, standing alone, unambiguously manifests her criminal intent.
- Legal impossibility: defense; law does not proscribe goal that the D sought to achieve.
- Factual impossibility: not a defense; intended end constitutes a crime, but she fails to consummate the offense because of an attendant
circumstance unknown to her.
- Abandonment: not a defense.
- Guilty if: the actor’s purpose is to promote or facilitate the commission of a substantive offense; with - Mens rea: specific intent.
Solicitatio such purpose, he commands, encourages or requests another person to engage in conduct that would - Actus reus: one person invites, requests, commands, hires or encourage another to commit a particular offense.
n constitute the crime, an attempt to commit it, or would establish the other person’s complicity in its
commission or attempted commission.
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Solicit to get X to be principal in 1st degree; she wants to be 2nd degree.
Basis for accomplice liability.
- Recognizes a solicitation to commit an attempt. - Attempted conspiracy.
- Object of the conspiratorial agreement must be a criminal offense. - Object must be “to do either an unlawful act or a lawful act by unlawful means.” (Arguably violates fair notice constitutional
Conspirac - Overt act required – either of person or of co-conspirator. requirement.)
y -
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Specific intent offense.
Two or more people must intend to agree AND intend that the object of their agreement be achieved.
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Intent encompasses purpose and knowledge.
Agreement between two or more persons to commit a criminal act or series of criminal acts, or to accomplish a legal act by unlawful
- Mens rea: purpose. means.
- Conspiracy is defined in terms of the guilt of a single party (unilateral approach). - Misdemeanor.
- Chain conspiracies described in §5.03(2). - Plurality requirement.
- Grades a conspiracy to commit any crime other than a felony of the first degree at the same level as - Offense of the conspiracy does not merge into the attempted or completed offense that was the object of the conspiracy (ex. Can be
the object of the conspiracy. convicted of offense AND attempted offense.)
- People who agree to commit crimes but are arrested are as dangerous as those who commit crimes. - Does NOT require an overt act.
- Can’t be convicted of both the conspiracy and the object of the conspiracy. - Treat the initial agreement between the parties as one that implicitly incorporated the later objectives.
- A person with multiple criminal objectives is guilty of only one conspiracy if the multiple objectives - Neither factual nor legal impossibility is a defense to criminal conspiracy.
are part of the same agreement OR part of a continuous conspiratorial relationship. - Wharton’s Rule – doesn’t apply to crimes that necessitate 2 people
- Neither factual nor legal impossibility is a defense to criminal responsibility. - Can’t be convicted if it would frustrate a legislative purpose to exempt from prosecution.
- Doesn’t apply Wharton’s Rule.
- Person may not be convicted of conspiracy to commit a crime if she would not be guilty of the
consummated substantive offense.
- Guilty of criminal homicide if she “unjustifiably and inexcusably takes the life of another human - A fetus must be born alive to constitute a “human being.”
Homicide being purposely, knowingly, recklessly, or negligently. - Murder: “the killing of a human being by another human being with malice aforethought.”
- Murder: actor unjustifiably, inexcusably, and in the absence of a mitigating circumstance kills - Manslaughter: “an unlawful killing of a human being by another human being without malice aforethought.
another: purposely or knowingly; recklessly, under the circumstances manifesting extreme - No degrees, just voluntary v. involuntary distinction.
indifference to the value of human life. (1st degree) - Death must occur within a year and a day of homicidal act.
- No degrees of murder under the code.
- Manslaughter: recklessly kills another or kills another person under circumstances that would
ordinarily constitute murder, but which homicide is committed as the result of “extreme mental or
emotional disturbance” for which there is a reasonable explanation or excuse. (2nd degree)
- Negligent homicide: involuntary manslaughter at common law. (3rd degree)
- Extreme recklessness is non-conclusively presumed if the homicide occurs while the actor is engaged - Res gestae: Applies when a killing occurs during the commission or attempted commission of a felony.
Felony in, or is an accomplice in, the commission or attempted commission of, or flight from, one of the - Proximity.
murder -
dangerous felonies specified in the statute.
Some states limit to inherently-dangerous felonies (look at felonies in the abstract).
- Causation.

- Some states limit to independent felony.

- Agency Approach: felony murder rule does not apply if an adversary to the crime, rather than a felon,
personally commits the homicidal act.
- Proximate Causation: felon is liable for any death that is the proximate result of the felony.
- Reasonable person: average disposition, sober at time of provocation and of normal mental capacity. - Provocation/Sudden Heat of Passion: intentional homicide committed in sudden heat of passion as the result of adequate provocation
Provocati - EMED affirmative defense in manslaughter is intended to incorporate common law doctrines: heat of mitigates offense to voluntary manslaughter.
on passion and partial responsibility. Subjective and objective component. -
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4 elements: heat of passion; adequate provocation; no time to cool off; causal link leading up to homicide.
Paradigms: aggravated assault; mutual combat; commission of a serious crime against close relative; illegal arrest; observation of
spousal adultery.
- Cover all property: “anything of value” (includes land and intangible property). - Larceny: trespassory taking and carrying away of the personal property of another with the intent to permanently deprive the
Theft - Property of another: property in which any person other than the actor has an interest. possessor of the property.
- Embezzlement: D came into possession of the personal property of another in a lawful manner; and D - Conduct offense.
thereafter fraudulently converted the property. - Felony split into grand and petit (by twelvepence).
- Sets out different forms of theft, but the offenses are consolidated in that the prosecutor may prove a - Trespass: taking of victim’s personal property w/o consent.
different form of theft than was specified in the indictment, as long as the D’s right to a fair trial is - Possession: sufficient control over it to use it in a reasonably unrestricted manner.
ensured. - Asportation (carrying away): even a hair’s breadth counts.
- Mens rea: specific intent. Can be inferred from recklessness.
- Larceny did not protect land or intangible property.
- Ferae naturae were not “property.”
- It is larceny to steal stolen property from a thief.
- Defenses: good faith belief that he has a right to possess the property.
- Lost property: depends on possessory interest of the owner at the time it is discovered and the finder’s state of mind when he retrieves
the lost property.
- Mislaid property: depends entirely on his state of mind when he takes possession of the property from the owner.
- Embezzlement is not a common law offense.
- False Pretenses: obtaining property by false representation of an existing fact. Mens rea: uttered knowingly and designedly and with
the intent to defraud.
- Felony offense. - Carnal knowledge of a woman forcibly and against her will.
Rape - A male is guilty of rape if, acting purposely, knowingly, or recklessly regarding each of the material - Only referred to vaginal sex.
elements of the offense, he has sexual intercourse with a female under any of the following - Defined in terms of female’s lack o consent.
circumstances: female is less than 10 years; female is unconscious; he compels the female to submit - Marital Immunity Rule: a husband could not rape his wife.
by force or by threatening her or another person with imminent death, grievous bodily harm; he - General-intent crime: D need not possess an intention that sex be nonconsensual.
 administers or employs drugs or intoxicants in a manner that substantially impairs the female’s ability - Statutory rape provision – for girls under 10.
to appraise or control her conduct. - Gender specific.
- Partial marital exception; nonconsensual intercourse with a spouse is not rape. - Punishable by death.
- 1st degree if: guy inflicts serious bodily harm on the female or another during rape; female was not a - Actus reus: forcibly; by means of certain forms of deception; while the female is asleep or unconscious; or upon a female
voluntary social companion who had previously permitted him sexual liberties. Otherwise, always a incompetent to give her consent.
2nd degree. - Consent: male can miscalculate; must be voluntary; if withdraw consent during sex, it’s not rape.
- Gender specific. - Resistance requirement in forcible rape cases.
- Sexual intercourse includes all kinds. - Corroboration Rule: testimony of the prosecutrix was sufficient to uphold a conviction and did not need to be corroborated. Some
- Focus shifted to male’s conduct. states disagree.
- Objective standard: woman of ordinary resolution. - Rape Shield: Evidence regarding her prior consensual acts has always been admissible. Now, rape shield laws have been enacted by
- Prosecution barred if complaint not brought w/in 3 months. the majority of states and deny D the opportunity to give evidence of her prior sexual conduct or reputation for chastity.
- Silent about admissibility of prior sexual history evidence.
- Statutory rape provision.
- Gross Sexual Imposition: 3rd degree; sexual intercourse with a female if she submits as a result of a
threat; has sexual relations with a female with knowledge that she is mentally ill and cannot
understand the nature of her acts; she is unaware that a sexual act is being committed upon her or she
thinks guy is her husband.
- Corroboration Rule.