Is the prosecution looking to introduce evidence of “other crimes” during a trial?
Is the evidence designed to show “bad character” of the defendant? (Zackowitz)
If YES, not admissible
Is the evidence designed to “identify” the defendant or show their “motive”?
If YES, admissible
Is the evidence related to “prior sex crimes” in a prosecution for a related crime?
If YES, does its prejudicial effect outweigh its probative value?
If YES, not admissible
If NOT, admissible
Did the defendant act in a manner that it’s fair to hold them accountable (actus reus)?
Was the act voluntary? MPC § 2.01(1) (Martin)
Did the act involve (1) a reflex or convulsion, (2) bodily movement during unconsciousness or sleep, (3) conduct during hypnosis, (4) bodily movement not otherwise product of effort or determination? MPC § 2.01(2) (Newton)
Did the defendant take voluntary actions prior to the involuntary act what made it reasonably foreseeable that the voluntary act would be the proximate cause of an involuntary criminal act? (Decina)
If NO, complete defense to criminal liability
If YES, actor may be culpable
Is the defendant being accused of a criminal act due to an “omission” or failure to act?
Is there a recognized legal duty for the defendant to act? If NO, no criminal liability MPC § 2.01(3) (Jones, Pope)
(1) a statute imposes duty to care for another
(2) one stands in a certain status relationship to another
parent - child
husband - wife
master - apprentice
ship’s master - crew and passengers
innkeeper - inebriated customers
(3) one assumed a contractual duty voluntarily to care for another
(4) one voluntarily assumed care of another and so secludes a person to prevent others from rendering aid
If there is a legally recognized duty for omissions that justifies charging for homicide, did the defendant (1) refuse aid with intention of causing death, or (2) with full knowledge of a great risk that decedent would die?
If YES, may warrant murder charge
If NO, likely only warrants involuntary manslaughter charge
Did the defendant have a culpable state of mind such that punishment is appropriate (mens rea)?
Did the defendant intend to do the particular type of harm that was observed, or know injury would be probable result of unlawful act and yet proceeded reckless of such consequences?
If YES, may be held liable (Cunningham, Faulkner)
Is the crime the defendant is being accused of a “specific intent” or “general intent” crime?
Most common usage (specific = specified purpose | general = merely intentional act)
Less common usage (specific = actual knowledge of particular fact “attendant circumstances” | general = recklessness or negligence as to “attendant circumstance” sufficient)
If the defendant being charged based on negligence, is the negligence so gross as to warrant criminal punishment?
If NO, may not be held liable (Hazelwood, Santillanes)
Is the mens rea of the defendant being evaluated under the MPC approach?
What are the “material elements” of the offense? MPC § 1.13(9)-(10)
What type of mens rea is required with respect to each material element? MPC § 2.02
Purposely: conscious object to cause result (element involves nature/result of conduct), or awareness of attendant circumstances (element involves attendant circumstances)
Knowingly: awareness that conduct is of nature or that circumstances exist (element involves nature of conduct or attendant circumstances), or aware that it is practically certain conduct will cause result (element involves result of conduct)
Recklessly: conscious disregard of a substantial and unjustifiable risk
Negligently: should be aware of substantial and unjustifiable risk
Is the criminal statute silent as to culpability standard? MPC § 2.02(3)
If YES, culpability established if a person if a person acted purposely, knowingly, or recklessly
Is the criminal statute ambiguous as to culpability standard applicable to certain elements? MPC § 2.02(4)
If YES, assumption is that standard articulated elsewhere in statute was meant to apply to all material elements, unless contrary purpose clearly appears
Does the criminal statute call for less severe punishment, does the offender stand in a responsible relation to some grave public danger, or was the offender charged under a new statutory offense that was created to protect public welfare?
If YES, consider whether the offense calls for strict liability (Dotterweich, Balint)
Is the defendant looking to raise a “mistake of fact” defense?
Knowing the law perfectly well in its application to any set of facts, did the defendant have an “honest belief” that their conduct did not violate the law?
If YES, no liability
Does the criminal statute (or the intent of the legislature) permit a “mistake of fact” defense? (Olsen)
Does the act involve sexual acts with an underage victim?
If YES, remember that majority of states impose strict liability and offer no “mistake of fact” defense (Garnett)
MPC allows for honest mistake defense, but imposes strict liability where victim is under 10 years of age
Is the defendant looking to raise a “mistake of law” defense?
Knowing all of the facts, did the defendant nevertheless fail to see that their conduct violated the law?
If YES, no liability
Does the ignorance or mistake of the defendant negative the purpose, belief, recklessness or negligence required to establish a material element of the offense? (Smith) MPC § 2.04(1)
If YES, no liability
Are the harms created sufficiently connected to what you did that it’s fair to punish you (causation)?
Are both actual (“but for”) and proximate cause satisfied? (Arzon, Warner-Lambert)
Does the proximate cause standard applied exclude highly extraordinary results? (Acosta)
Was there a criminal act involving subsequent medical care resulting in death?
If YES, only gross negligence by medical staff sufficient to be the sole cause of death may excuse initial assailant from liability (Shabazz, Main)
Did victim commit suicide following particularly harmful or traumatic act of defendant?
If YES, suicide following a wound (mental or physical) inflicted by the defendant is considered homicidal, if deceased was rendered irresponsible by the wound and as a natural result of it (Stephenson)
Are there applicable constitutional limitations on the applicability of criminal culpability to defendant’s acts?
Is criminal culpability being assigned to the defendant based not on a voluntary act, but merely due to their status or “being”? (status crimes)
If YES, no liability as criminal penalties may be inflicted only if the accused has committed some act, engaged in some behavior, which society has an interest in preventing, or has committed some actus reus (Robinson, Powell)
Did the defendant have the requisite notice with respect to the legality (or lack thereof) of the accused crime? (requirement of legality)
First essential of due process is fair warning of the act which is made punishable as a crime (Keeler)
Vagueness may invalidate a criminal law for two independent reasons: (1) fail to provide kind of notice that will enable ordinary people to understand what conduct it prohibits; (2) may authorize or encourage arbitrary and discriminatory enforcement
BUT See, Ex Post Facto Clause, by its own terms, does not apply to courts and court is entitled to exercise judicial action as long as it is not unfair and arbitrary (Rogers)
Classification of homicide under common law?
Is the alleged crime an unlawful killing with malice aforethought (intentional + w/ malice)?
If PRE-MEDITATED = 1st degree murder
If NOT PRE-MEDITATED = 2nd degree murder
Is the alleged crime an unlawful killing without malice aforethought?
Was the killing in the “heat of passion”?
If w/o provocation (discover spouse in bed + kill) = 2nd degree murder
If w/ provocation (discover spouse in bed + kill in struggle over weapon) = voluntary manslaughter
Was the killing the result of risk creation/gross negligence/recklessness?
If YES = Involuntary manslaughter
Classification of homicide under MPC?
Was the homicide committed purposely or knowingly?
If YES = criminal homicide (1st degree felony) MPC § 210.2
Was the homicide committed recklessly under circumstances manifesting extreme indifference to value of human life (presumed in commission of, attempt to commit, or flight after committing or attempting to commit robbery, rape, arson, burglary, kidnapping or felonious escape)?
If YES = criminal homicide (1st degree felony) MPC § 210.2
Was the homicide committed recklessly?
If YES = manslaughter (2nd degree felony) MPC § 210.3
Was the homicide committed under influence of extreme mental or emotional disturbance with reasonable explanation or excuse?
If YES = manslaughter (2nd degree felony) MPC § 210.3
Was the homicide committed recklessly?
If YES = negligent homicide (3rd degree felony) MPC § 210.4
Does the homicide appear to be MPC murder “first degree” (intent + malice + premeditation)?
Does the defendant demonstrate specific intent to kill in form of (1) defendant’s words or conduct or from the attendant circumstances together with all reasonable inferences, or (2) from the intentional use of a deadly weapon on a vital part of the body of another human being? (Carroll)
Did defendant consider and weigh decision to kill? (Guthrie)
Does the homicide appear to be MPC second degree “manslaughter” (intent + malice + no premeditation)?
Were one of the traditional circumstances of provocation sufficient to mitigate murder to manslaughter observed?
Extreme assault or battery upon defendant
Mutual combat
Defendant’s illegal arrest
Injury or serious abuse of close relative of defendant’s
Sudden discovery of spouse’s adultery
Did too much cooling time lapse between original provocation and killing?
If YES, provocation is rendered inadequate for mitigation
Did words provoke the killing?
If YES, majority view does not view as adequate provocation (Girouard)
If NO, minority view allows words to form adequate provocation (Maher)
Is the defendant seeking to invoke an extreme emotional disturbance as justification or excuse?
Extreme emotional disturbance requires: (1) defendant must have “acted under influence of extreme emotional disturbance,” and (2) must have been “a reasonable explanation or excuse” for such extreme emotional disturbance (determined subjectively from viewpoint of defendant)
Does the homicide appear to be unintentional (MPC third degree)?
Was the crime an unintentional shooting, throwing a heavy object down onto a busy street, shooting into what one thinks is an abandoned building, or beating someone to death?
If YES = reckless killing constituting murder MPC § 210.2
Did the defendant’s acts satisfy the elements? (1) reckless and wanton (amount of risk), (2) gross deviation from a reasonable standard of care (reason for risk), (3) defendant was aware of risk (awareness of risk)? (Malone, Fleming)
If YES = reckless killing constituting murder MPC § 210.2
Did the crime involve intentional failure of a duty of care for the safety of business visitors invited to premises which the defendant controls, in disregard of the probable consequences to them or of their right to care? (Welansky)
If YES = manslaughter (wanton or reckless conduct) MPC § 210.3
Did the crime involve a violation of a statutorily imposed duty in an extreme fashion? (Hall)
If YES = manslaughter (wanton or reckless conduct) MPC § 210.3
Did the defendant demonstrate only simple or ordinary negligence?
If YES = negligent homicide (should have been aware) MPC § 210.4
Does the homicide appear to involve an unintentional killing during the commission of a felony (“felony murder”)?
Was the felony resulting in death “inherently dangerous”?
Inherently dangerous felony required for liability; qualified felony murder rule (Serne)
Doctrine not limited to foreseeable deaths; felon held in strict liability for all killings (Stamp)
Is the “inherently dangerous” nature of the felony examined in the abstract or in the facts and circumstances of the particular case?
Minority view examines inherently dangerous categorically or “in the abstract” (Phillips)
Majority view examines inherently dangerous in manner and circumstances in which it was committed (Stewart)
Is the predicate felony one that “merges” with the result and therefore cannot trigger the felony-murder rule? (merger doctrine)
Did the defendant’s act have an “independent purpose” of any intent to kill so that imposing felony murder rule would have deterrent effect? (Mattison)
Is the predicate felony a pre-requisite for murder (“included in fact”)? (Hansen, Burton)
Did the death result from police officers or private citizens attempting to thwart the attempted crime?
Is the victim a co-felon?
If YES, no liability under “agency” theory
If NO, liability can be imposed
Does the crime appear to involve a rape?
Does the crime involve a male who has sexual intercourse with a female not his wife and (a) compels her by force or threat of imminent death, serious bodily injury, extreme pain, or kidnapping, (b) impairs her power to assess/control her conduct through drugs, intoxicants or other means, (c) female is unconscious, or (d) female is less than 10 years old?
If YES, does the male (i) inflict serious bodily injury, or (ii) victim was not voluntary social companion and had not previously permitted sexual liberties?
If YES = rape (first degree felony) MPC § 213.1(1)
If NO = rape (second degree felony) MPC § 213.1(1)
Does the crime involve a male who has sexual intercourse with a female not his wife and (a) compels her to submit by any threat that would prevent resistance by woman of ordinary resolution, (b) knows she suffers from mental disease or defect, or (c) knows she is unaware sexual act is being committed upon her or that she submits because she mistakenly believes that he is her husband?
If YES = gross sexual imposition (third degree felony) MPC § 213.1(2)
Does the crime involve non-consensual involving homosexual acts or female initiated contact?
If YES, look to MPC § 213.2 (Deviate Sexual Intercourse by Force or Imposition)
Is the requisite actus reus observed for rape (force + resistance + no consent)?
Is the jurisdiction one that has eliminated force requirement completely for rape?
If YES, all non-consensual sexual intercourse is a criminal offense (minority view) (M.T.S., Bulgaria)
BUT See, courts still consider evidence of resistance as highly probative on question of consent
Is force remains a requirement in the jurisdiction, is the requisite actus reus observed?
Purposely or Knowingly. Force is an essential element of the crime of rape and to justify a conviction, evidence must warrant a conclusion either (1) that a victim resisted and her resistance was overcome by force, or (3) that she was prevented from resisting by threats to safety (Rusk)