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General Provisions Outline

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Purposes of Criminal Law & Punishment a. Retribution i. Pro: criminals owe a debt to society; repayment through punishment vindicates society's morality. ii. Con: retribution does not adequately capture the mistake aspect of many crimes. b. Deterrence i. Pro: rational actors should calculate the costs and benefits of crime vis-a-vis punishment. ii. Con: adequate general deterrence may require disproportionate punishment of an individual. c. Rehabilitation i. Pro: it is more humane to treat criminals as patients and return them to society as better people. ii. Con: rehabilitation is paternalistic, gives resources to the least deserving, and may be morally blind. d. Incapacitation i. Pro: criminals, especially repeat offenders, should be prevented from committing further crimes. ii. Con: punishment based on the likelihood of repeating rather than the crime committed is unfair.

Material Elements of an Offense a. Rule i. To be guilty of an offense, the perpetrator must satisfy each material element of the offense, which may be:

1. conduct, a. an act or omission and its accompanying state of mind,

2. attendant circumstances, or

3. a result of conduct (MPC SS 1.13). b. Analysis i. A material element?

1. Each material element: a. is part of the definition of the wrongful act; b. establishes the required kind of culpability; or c. negatives an excuse or justification (MPC SS 1.13).

The Voluntariness Requirement a. Rule i. Any conduct element, including possession, must be committed

1. (MPC) a. voluntarily (SS 2.01).

2. (CL) a. as an "actus reus" or wrongful act (Martin). b. Analysis i. Possession?

1. (majority) a. possession of drugs requires awareness of possession (MPC SS 2.01(1))(C. v. Sespedes (Mass. 2004)).

2. (minority) a. awareness is inherent in possession (S. v. Bradshaw (Wash. 2004)). ii. Voluntarily?

1. The following are not voluntary: a. a reflex; an unconscious movement; conduct during hypnosis; a bodily movement not the product of the actor's conscious determination (SS 2.01).

2. Voluntariness is not the same as intentionality; may voluntarily kill someone unintentionally and still be liable, see infra at Negligent Homicide. iii. Actus reus?

1. If A "involuntarily and forcibly" brings about B's act, B's conduct is not voluntary (Martin). a. BUT if B could reasonably foresee that A (or seizure) would bring about an act, actus reus would be satisfied (Decina).

2. Non-self-induced unconsciousness is a complete defense to criminal liability (Newton). c. Cases i. Martin v. S. (Ala. Ct. App. 1944, 182)


ii. iii.

IV. V.

1. Drunk D was taken by cops from home to highway. He yelled profanity, and was fined for appearing in a public space and manifesting a drunken condition. Since he did not voluntarily appear, not liable. P. v. Newton (Cal. Dist. Ct. App. 1970, 184)

1. D claimed he was shot in abdomen and rendered unconscious before he fatally shot police officer. If true, this would be a complete defense to homicide because it was not a voluntary act. Squib

1. P. v. Decina (N.Y. 1956): D suffered from epileptic seizures and while driving, had such a seizure and killed four people. Since D could reasonably foresee that he might have a seizure, still liable.

Omissions a. Rule i. (MPC)/(CL)

1. A person may be criminally liable for an omission when the person had a legal duty to perform the omitted act (SS 2.01(3)). b. Analysis i. Legal duty?

1. May be: a. statutory, i. e.g. to report

1. a felony (U.S. v. Johnson (5th Cir. 1977)),

2. a crime (S.D. / Ohio), or

3. child abuse (among professionals). b. special status or relationship, i. e.g. family members (parents >> spouses, or parents >> minor children):

1. liable: a. stepmother liable for stepdaughter (P. v. Carrol (N.Y. 1999). b. mother who did not report abuse of daughter by stepdad, even though he bear her too, liable (C. v. Cardwell (Pa. Super. Ct. 1986)).

2. not liable: a. D who did not help lover while wife gone OK (P. v. Beardsley (Mich. 1907). b. live-in-boyfriend NOT liable for girlfriend's daughter (S. v. Miranda (Conn. 2005)). c. D who took abusive mother and child in, when D
abused and killed child (Pope v. S. (Md. Ct. App. 1979). ii. or creation of peril

1. D who commits criminal act [or any act] that puts victim in danger of drowning has duty to rescue (C. v. Levesque (Mass. 2002)). c. a contractual duty, or d. a voluntary assumption and seclusion of victim's care (Pestinikas).

2. Violation + death typically = involuntary manslaughter, unless D refused aid with intent of causing death or knowledge of great risk victim would die >> murder (Pestinikas). c. Cases i. Jones v. U.S. (D.C. Cir 1962, 192)

1. Mom left baby with D. Baby died. Mom may have been around. Should go back to jury whether D had a legal duty to take care of baby. ii. Squib

1. C. v. Pestinikas (Pa. Super. Ct. 1992) a. D permitted 92 y/o to die of starvation after agreeing to feed him and knowing there was no other way for him to obtain food. D guilty of murder.

Culpability a. Rule i. To be guilty of an offense, a person must have acted, with respect to each material element in the offense,

1. (MPC)(majority)


2. a. purposely, knowingly, recklessly, or negligently as the law may require (SS

2.02(1)). (CL) a. with the appropriate "mens rea," or "vicious will," or b. criminally negligently: i. (majority)

1. a "gross deviation" from the standard of care a reasonable person would observe (Santillanes). ii. (Alaska)

1. any deviation from the standard of care a reasonable person would take (Hazelwood).

b. Analysis i. Purposely, knowingly, recklessly, or negligently?


Circumsta nce


(a) Purposely It is D's conscious object to engage in X (even if this is conditional).
SS 2.02(6).
D is aware, believes, or hopes that X exists. It is D's conscious object to cause X to result.

1. c.

(b) Knowingly
D is aware (of a high probability) that his conduct is X.
SS 2.02(7).

(c) Recklessly

(d) Negligently

D consciously disregards a substantial and unjustifiable risk (a gross deviation from what a law-abiding person would observe) that . . . conduct is X.

D should be aware of a substantial and unjustifiable risk (a gross deviation from what a reasonable person would observe) that . . . conduct is X

D is aware (of a high probability) that X exists. SS 2.02(7).

. . . X exists.

D is aware that it is practically certain that his conduct will cause X.

. . . conduct will cause X to result.

The difference between a. P and K is the presence of intent. b. K and R is the degree of awareness of the risk. c. R and N is the presence of awareness.

2. Knowingly is satisfied by high probability as well as willfulness, including willful blindness (Jewell). a. Two ways to inquire of willful blindness: i. (CL)(majority)

1. "fox": whether D took steps to avoid knowledge; if so, K (Jewell). ii. (MPC)

1. "ostrich": whether D was highly certain about a fact; if so, K (SS 2.02(7))(Giovannetti). a. Example: D is told there is a 1/3 possibility his suitcase contains drugs. He can be willfully blind (CL) without being certain (MPC). ii. Mens Rea?

1. Generally proven via circumstantial evidence, presumptions, and inferences. a. A presumption is valid when the presumed fact will be present in all cases, e.g., the "natural and probable cause" of pointing a gun at someone and firing is a malicious intent. b. A permissive inference is valid if a presumption cannot be proven, but internal thoughts can be adduced, e.g., can infer that when stolen property was in D's house, D knew it was stolen. c. Criminal negligence may be valid if internal thoughts cannot be established.

2. Is not satisfied by the "lesser crime theory," where if D culpably did A, he also must have the required culpability for B as well (Cunningham). Cases i. R. v. Cunningham (Eng. 1957, 214)


1. D stole gas meter money, but gas leaked and almost suffocated D's neighbor. Convicted of "maliciously" causing her near-death, but since malice requires that D
intended or knowingly disregarded the risk of harm, not guilty. ii. S. v. Hazelwood (Alaska 1997, 221)

1. D crashed Exxon Valdez. Statute made it misdemeanor to discharge oil "negligently." Since the purpose of objective fault crimes is to coerce offenders to pay attention, negligence = civil negligence. iii. U.S. v. Jewell (9th Cir. 1976, 229)

1. D "willfully blinded" himself to avoid positive knowledge of drugs in his car. So far as he made an effort to avoid sanctions of statute while violating the substance, willful blindness = positive knowledge. iv. Squib

1. Santillanes v. S. (N.M. 1993, 222) a. D cut nephew's neck, "negligently" causing a child to be placed in a dangerous situation. Criminal negligence is required.

2. U.S. v. Giovannetti (7th Cir. 1990) a. D did not know of gambling den in his building. Since he did not act to avoid learning truth, there is no evidence of willful blindness. VI.

Statutory Silence & Absolute Liability a. Rule i. If a statute is silent about whether any culpability is required,

1. (MPC)(majority) a. D must have acted at least recklessly (SS 2.02(3)).

2. (CL) a. if the statute is a public welfare law, no culpability is required (Balint), but b. if the statute is a codified malim in se, culpability is definitely required. ii. If a statute expressly dispenses with a culpability requirement,

1. (MPC) a. punishment may be no more than a fine, as a "violation" (SS 2.05), b. but see, infra, at Mistake of Fact (discussing statutory rape).

2. (CL) a. no mens rea required (see, infra, at Mistake of Fact). b. Analysis i. Public welfare law?

1. In the interest of the larger good, a statute may put the burden of acting hazardously upon a person otherwise innocent, but in the best position to prevent a greater harm (Dotterweich).

2. Generally applies when: a. crime is malim prohibitum rather than malim in se; b. D sells harmful items to others; c. D could ascertain whether the conduct is prohibited; d. punishment is not very harsh (Staples). c. Cases i. U.S. v. Balint (U.S. 1922, 248)

1. D sold coca and opium without required order form, but D did not know a form was a required under law. Even though law was silent re: culpability, ignorance is not a defense. ii. U.S. v. Dotterweich (U.S. 1943, 249)

1. D violated act by marketing other manufacturers' products and repeating their mistaken labels on drugs. Even though D did not know of the mistake, since act did not require mens rea, D is liable. iii. Morrissette v. U.S. (U.S. 1952, 250)

1. D found bomb casings lying on the ground and repurposed them. Prosecuted under statute for "knowingly converting" U.S. government property, but was ambiguous whether "knowingly" applied to whether D knew the property was owned by the U.S. Since D would not be guilty of common-law larceny, statute should not be interpreted to stigmatize D. iv. Staples v. U.S. (U.S. 1994, 254)

1. D did not know rifle had been modified and now fit under National Firearms Act, which was silent re: mens rea. Since Congress was silent on the issue and there is no implied intent to dispense with mens rea, D is not guilty of violation (with 10 year max punishment).

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