Table 4, Theft MPC Articles 221, 222, 223

Table 1, General Concepts

COMMON LAW / MPC
Intent / General Intent
-Requirement of purpose or knowledge
(1)Results the actor wants to occur (Purpose)
(2)Results actor knows are virtually certain to occur, even if doesn’t want them to happen (Knowledge)
Specific Intent
(1)State 1
(a)General: no particular mental state set out in definition of crime  only need to prove a “guilty mind” was present
(b)Specific: mental state expressly set out in definition of the crime
(2)State 2
(a)Specific: higher mental state  “Purpose” or “Knowledge”
(b)General: crimes that permit less culpable mental states  “Negligence” or “Recklessness
(3)State 3
(a)General: any mental state associated w/ actus reus  “baseline offense”
(b)Specific: specific mental element required over and above any mental state required w/ respect to actus reus
-Possession w/ intent to distribute / §2.02
(1)P,K,R, or N w/ respect to each material element of the offense
Material Elements:
-Conduct
-Attendant Circumstances
-Results
(2)Kinds of Culpability Required
(a)Purposely
(i)Conscious object to engage in conduct of that nature, or to cause such a result
(ii)Aware of the existence of attendant circumstances and believes or hopes they exist
(b)Knowingly
(i)Aware that his conduct is of that nature or that such circumstances exist
(ii)Aware that it is practically certain that his conduct will cause such a result
(c)Recklessly – consciously disregards a substantial and unjustifiable risk; gross deviation from the standard of conduct that a law-abiding person would observe in the actor’s situation
(d)Negligently – should have been aware of substantial and unjustifiable risk; actor’s failure to perceive involves gross deviation from the standard of care that a reasonable person would observe
(7) Willful Blindness: Knowledge is established if person is aware of a high probability of its existence, unless he actually believes that it does not
Mistake of fact / (1)If Specific Intent
(a)Does mistake relate to specific intent element?
(i)If Yes
(A)Whether mistake negates specific intent element
1)if YESNot Guilty
2)If No Treat offense as if it were general intent
(2)If General Intent
(a)Did ∆ act in a morally blameworthy way?
(i)if YesMorally Blameworthy  Culpable
(b)If mistake was reasonable here
(i)No  not morally blameworthy Not Culpable
(ii)UNLESS
(1)Moral wrong doctrine applies
(2)Legal Wrong doctrine applies
(3)If Strict Liability offense
(a) Mistake is not a defense / MPC § 2.04
(1)Ignorance or mistake a matter of fact OR law is a defense when:
(a)Negatives the P, K, belief, R, or N required to establish a material element of he offense; or
(b)The law provides that a state of mind established by such ignorance constitutes a defense
(2)Defense is not available if ∆ would be guilty of another offense had the situation been as he supposed  ignorance shall reduce the grade and degree of offense to that which he thought it was
(3)Mistake of law is a defense when:
(a)[Fair Notice] when statute defining offense is not known to the actor and has not bee published or otherwise reasonably made available prior to the conduct alleged; or
(b)[Reasonable Reliance] reliance upon an official statement of the law, or a public official/officer
Mistake of law / Not an excuse UNLESS:
(1)Ignorance negates mens rea:
(a)Same Law Mistake
(i)not a defense  “didn’t know what this law meant”
(b)Different Law Mistake
(i)CAN be a defense only for specific intent
(ii)If an element of the defense is defined in another statute, then you might be able to use that as a defense
(2)Reasonable Reliance
(a)when an official interpretation by a public official tells you it’s “ok”
(3)Fair Notice
(a)Violation of due process when offender had no actual knowledge of a duty of a registration act / §2.04 (3) (above)
Strict Liability / (1)Public Welfare Offenses
(2)Statutory Rape
(3)No Mental Element required
(4)MalumProhibutum (as opposed to Malum in se)  only wrong because legislature says its wrong
(5)Severity of penalty as cue of whether or not it’s strict liability / (1)Rejects Strict Liability
(a)Puts mens rea on a pedestal
(2)Where there is strict liability, it’s only a violation, not a crime
§2.05
(1)Requirements of culpability do not apply to
(a)Violations
(b)Offenses defined in statutes other than the code
(2)When absolute liability is imposed,
(a)The offense constitutes a violation; and
(b)If you can prove Negligence, can be charged w/ the crime
Causation / (1)Actual Cause  Cause in Fact
(a)But For causation
(b)Substantial Factor causation
(2)Proximate Causation  Legal Cause
(a)intervening ‘but for’ occurrence after offender commits actus reus but before result occurs
(b)superseding cause  if subsequent action cuts off ∆’s conduct as the cause / §2.03
(1)Conduct is the cause when
(a)it is an antecedent but for which the result in question would not have occurred; and
(b)relationship satisfies btwn conduct and result satisfies any additional causal requirements imposed by the Code or other law
(2)when purposely or knowingly establishes culpability:
(3)When recklessly or negligently establishes culpability
Strict Liability: not established unless result is probable consequence of actor’s conduct

Table 2, Criminal Homicide

COMMON LAW / MPC
First-degree murder / (1)Premeditated and Deliberate
(2)Sufficient duration for the accused to be fully conscious of what he intended
(a)Can be the “twinkling of the eye”
(3)Felony Murder
(a)No mens rea
(b)Inherently dangerous felony
(c)Independent felony (merger)
(d)In perpetration / furtherance of felony
(i)Agency Approach – Majority
(ii)Proximate Cause – Minority / Criminal Homicide – § 210.1
Murder § 210.2 – No Degrees
(1)CrimHom is murder when
(a)purposely or knowingly; or
(b)recklessly under circumstances manifesting extreme indifference to the value of human life  assumed when an accomplice to commit or attempt to commit or flight after committing: (Felony Murder)
(i)robbery, rape, deviate sexual intercourse by force or threat of force, arson, burglary, kidnapping, or felonious escape
(ii)∆ can offer evidence to mitigate to manslaughter or neg. hom.
(2)Felony of the 1st degree / Murder
Second-degree murder / (1)Malice Aforethought (express Malice)
(a)Intent to kill; or
(b)Intent to cause grievous bodily injury
(2)Extreme Recklessness;
(3)Depraved Heart Murder – Implied Malice
(a)Conscious disregard to the risk of or danger to human life
(i)Conscious disregard
(ii)Extreme indifference to the value of human life
(b)Unintentional Killing
(c)Felony Murder?
Voluntary manslaughter / (1)Intentional killing done in sudden heat of passion caused by adequate provocation
(a)Adequate Provocation – words not enough
(i)Discovery of spouse
(ii)Mutual combat
(iii)Assault and Battery
(A)Extreme; or
(B)On a close relative
(b)Heat of passion – can’t be mistaken about what provoked
(c)Before passions cool / right after the provocation
(d)Causal connection btwn provocation and passion and fatal act / §210.3
(1)Criminal Homicide is manslaughter when:
(a)Recklessly; or
(b)Would otherwise be murder but committed under influence of extreme mental or emotional disturbance  reasonableness determined from the viewpoint of a person in the actor’s situation under the circumstances he believes them to be
(2)Felony of the 2nd degree
(3)Words ARE enough
(4)V does not need to be one who provoked ∆
(5)∆ could have been mistaken
(6)Provocation does not need to be sudden – can build over time / Manslaughter
Involuntary manslaughter / (1)Criminal Negligence
(2)“Regular” recklessness / §210.4
(1)Criminal Homicide is a negligent homicide When it is committed negligently
(2)Felony of the 3rd degree / Negligent homicide

Table 3, Rape

COMMON LAW / MPC
Actus reus / “Carnal knowledge of a woman forcibly against her will”
(1)Intercourse
(2)Force
(a)Physical (including threats)
(b)Non-physical (fraud in the factum)
(3)Non-Consent
(a)Resistance Requirement  moving toward lower resistance requirement
(b)Post-penetration w/drawal of consent
(i)majority: NOT rape, but can be lesser offense
(ii)minority: rape if ∆ does not desist after objection
(4)Against the will of the victim / §213.1
(1)w/ female not his wife
(a)compels by force or threat of imminent death or serious bodily injury, extreme pain or kidnapping, to be inflicted on anyone
(b)impaired her power to appraise control of her conduct
(c)unconscious
(d)under 10 years old
Felony of 2nd degree unless they inflicted serious bodily injury upon anyone, or they don’t know each other  1st degree
§213.4 – Sexual Assault
misdemeanor offensive contact
Mens rea / General Intent Offense  Only a reasonable mistake regarding consent negates mens rea
Mistake / (1)Fraud in the factum  vitiates consent
(a) impersonating spouse = fraud in factum
(2)Fraud in inducement  does not vitiate consent / §213.6
(1) It is a defense by preponderance of the evidence that ∆ reasonably believed child to be above the critical age (statutory rape stuff)

Table 4, Theft MPC Articles 221, 222, 223

COMMON LAW / MPC
Larceny / (1)The trespassory
(a) Continuing Trespass Doctrine
(2)Taking and
(3)Carrying Away of
(4)Personal Property
(5)Of Another with
(6)Intent to steal
(a)Does not need to be permanent deprivation
(b)Bona fide claim of right is affirmative defense / §223.2 – Theft by Unlawful Taking or Disposition
Embezzlement / (1)Fraudulent
(2)Conversion of
(3)The property
(4)Of Another
(5)By one who is already in lawful possession of it / §223.3. – Theft by Deception
Robbery / (1)The trespassory
(2)Taking and
(3)Carrying Away of
(4)Personal Property
(5)Of Another with
(6)Intent to steal
(7)Taken from the person or presence of the owner
(a) Whether he could have prevented taking as a test
(8)Accomplished by using force or putting owner in fear
(a)Threat of harm may suffice
(b)Reasonable person standard not applied / §222.1
(1)In the course of committing a theft (actually doing it or in flight after it), he:
(a)Inflicts serious bodily injury;
(b)Threatens another with or purposely puts him in hear of immediate serious bodily injury; or
(c)Commits or threatens to commit any felony
False pretenses / (1)False representation of a
(2)Material present or past fact
(3)Which causes the person to whom it is made
(4)To pass title to
(5)His property to the misrepresenter, who
(6)Knows that his representation is false, and intends to defraud
(a)Fraud vitiates consent
(b)Gullibility is not a defense
(c)No pecuniary loss not a defense / §223.4 – Theft by Extortion
Burglary / (1)Breaking and
(a) an opening created by the burglar
(2)Entering of
(a)Any part of burglar’s anatomy
(b)Even for a moment
(3)The dwelling of another
(a) Place of business does not suffice
(4)At night
(a) no longer required
(5)With intent to commit a felony therein
(a) Just any crime (at least a misdemeanor) / §221.1
(1) enters a building or occupied structure, with purpose to commit a crime therein, unless the premises are at the time open to the public or the actor is licensed or privileged to enter  affirmative defense that the building was abandonded

Table 5, Defenses

COMMON LAW / MPC
Justification / Social harm of offense outweighed by need to avoid greater harm / Article 3
Self-defense / (1)Threat actual or apparent
(2)Must be unlawful threat
(3)Must be immediate
(4)∆ must have believed he was in imminent danger
(5)Objectively reasonable belief
(6)Necessity (to save himself from harm)
(a)“Clean Hands Doctrine” cannot be self-generated necessity to kill
(b)Must use proportionate force
Retreat:
(1)if avenue of retreat is unsafe, can stand ground
(2)Retreat to the Wall v. Stand Your Ground laws
(3)Castle Doctrine – no duty to retreat if attacked in own home
“Imperfect Self-Defense”?
Battered Women Syndrome
(1)Confrontational Homicides - valid
(2)Non-confrontational Homicides - split
(3)“Hired Gun” homicide – split, but unlikely / §3.04
(1)Actor believes such force is immediately necessary
(2)Limitations
(a)not justifiable to
(i)resist arrest
(ii)resist proper owner of a property
(b)deadly force not justifiable unless actor believes such force necessary
(i)not if actor provoked the V
(ii)actor can retreat or surrender possession or comply w/ a demand to abstain from an action he has not duty to take, except
(1)his dwelling or place of work, unless initial aggressor or assailed by another who’s place of work it is
(3)Confinement is allowed as long as he stops the confinement as soon as he knows he safely can
Defense of property / (1)General Rule: May not use deadly force to defend or protect persona property
(2)Also cannot THREATEN deadly force to protect personal property / §3.06
(1)Justifiable when person believes
(a)It’s to prevent or terminate an unlawful entry or other trespass or unlawful carrying away of property, or believed by actor to be in other’s possession
(b)To take stuff back when actor believes he was unlawfully dispossessed of such land or property and is entitled to possession
(i)If the force is used immediately, in fresh pursuit; or
(ii)Exceptional hardship to postpone until court order is gained
(3)Limitations on justifiable force
(a)Only if actor first requests the person to desist, unless the actor believes
(i)Request would be useless; or
(ii)Would be dangerous to make the request;
(iii)Harm will be done to the property
(d)Deadly Force not justifiable unless actor believes
(i)Person is attempting to dispossess him of his dwelling
(ii)Attempting to commit arson, burglary, robbery, or other felonious theft or destruction of property and either
(1)has employed or threatened deadly force
(2)use of force other than deadly force would expose actor to substantial danger of serious bodily harm
Defense of habitation / (1)At time of entry, one is able to use deadly force to repel any invasion of his home
(2)If there exists reasonable factual grounds to believe that unless so used, a felony would be committed inside
(3)Minority Rule:
(a) Because person already in house, continuation of invasion of privacy and thus can still use defense / §3.06(3)(d) (as shown above)
Defense of others / One can use deadly force in the defense of another when the 3rd party being protected would have had the right to use deadly force in self-defense / §3.05
(1)Use of force is justifiable to protect another when
(a)Actor would be justified to protect himself
(b)That person would be justified to protect himself
(c)Actor believes his intervention is necessary
(2)Aside from (1)
(a)When actor would be obliged to retreat, don’t have to do so here unless knows he can secure safety of other person
(b)When other is obliged to retreat, actor has to try to cause him to do so before using force
Crime prevention / General Rule:
(1)Cannot use deadly force to prevent a midemeanor
(2)Different J/Ds:
(a)Can use deadly force to prevent any felony
(3)Once crime committed, self-defense no longer applies / §3.07
Necessity / Elements:
(1)Prevent significant evil
(2)No adequate alternative
(3)Harm caused is not disproportionate to harm avoided
(4)Only available w/ non-human cause (act of god)
(5)See, Kantian Ethics… / §3.02
(1)Conduct actor believes to be necessary is justifiable provided that
(a)harm or evil sought to be avoided is greater
(b)no law providing exceptions dealing w/ the situation
(c)legislative purpose to exclude justification claimed is not clear
(2)When actor was reckless or negligent in bringing about the situation, defense not available for any offense where R or N satisfies culpability
(3)“Nothing off limits” – potentially including Homicide
Excuse / All elements established, moral blameworthiness negated
Duress / Elements:
(1)Immediate threat of death or serious bodily injury
(2)Well-grounded fear that threat would be carried out
(3)No reasonable opportunity to escape threatened harm
Threat to property does not suffice
Need “clean hands”
Not a ∆se to murder or any intentional killing charge / §2.09
Insanity / Tests
(1)M’Naghten Test
(a)Laboring under defect of reason from disease of the mind
(b)As not to know nature and quality of the act he was doing
(c)Or that he did not know that the act he was doing waswrong
(2)Irresistible Impulse / Control Test
(a) Absolutely no control over action
(3)Durham “Product Test
(a) Result or product of mental defect  expert witness dependent
(4)MPC Test / §4.01
(1)
-Cognitive Prong:
(a)Lacks substantial capacity to appreciate wrongfulness (criminality) of the act
-Volitional Prong
(a) Unable to conform his conduct to the requirements of the law
(2)“Mental disease or defect” does not include abnormality manifested only by repeated criminal or otherwise antisocial conduct
Diminished capacity / (1)Mens Rea Variant
(a)Failure of Proof defense
(i)sometimes only available for specific intent
(ii)some J/Ds reject dim.cap. across the board
(2)Partial Responsibility Variant
(a)Excuse defense
(i)Govt. proved all elements, but should be guilty of less severe crime
(ii)Deals w/ mental abnormalities insufficient for insanity / §210.3(1)(b)
Mitigating murder to manslaughter
Intoxication / (1)Voluntary
(a)Moral blameworthiness constitutes general intent crimes  not a defense: ∆ morally blameworthy for getting that drunk
(b)Can create failure of proof for certain specific intent crimes
(2)Involuntary
(a)Scenarios
(i)Coerced
(ii)Pathological Intoxication
(iii)By innocent Mistake
(iv)Unexpectedly intoxicated by prescribed drug
(b)Acquittal
(i)Failure of Proof
(ii)Temporary insanity / §2.08
(1)Not a defense unless it negatives an element of the offense
(2)When recklessness is enough, self-induced intoxication is not a defense
(3)If (a) not self-induced, or (b) pathological, it IS an affirmative defense IF by reason of intoxication, actor lacks substantial capacity to either appreciate criminally or to conform his conduct to requirements of the law
Infancy / (1)Under age 7: infancy bars conviction
(2)Over age 14: no infancy defense
(3)Between 7 and 14: rebuttable presumption that child does not have cognitive capacity to distinguish right from wrong
Rotten social background

Table 6.1 – Attempt

Attempt
CL / MPC
Actus reus / Incomplete Attempt  not able to do everything planned
Complete Attempt  does everything, but fails
General Attempt: covering all felonies
Specific Attempt: provisions in specific statutes
Hybrid:
-Specific to the particular title
-General to all crimes in the title
Distinction between Preparation and Perpetration
(1)Physical Proximity
(2)Dangerous Proximity
(3)Indispensable Element Test
(4)Probable Desistence Test
(5)Abnormal Step Test
(6)Res IpsaLoquitur / Unequivicality Test
Impossibility
(1)Factual Impossibility  Not a defense
(2)Legal Impossibility  is a defense
(a)Pure Legal Impossibility
(i)engages in conduct he believes is criminal but is actually not illegal
(b)Hybrid Legal Impossibility
(i)Factual mistake about attendant circumstances that makes the act NOT a crime – factual mistake about the legality
(ii)Difficult to distinguish from factual impossibility
(iii)Many jurisdictions have eliminated this / §5.01(1)(c): Act must be a substantial step in a course of conduct designed to accomplish a criminal result, and that it be strongly corroborative of criminal purpose in order for it to constitute such a substantial step
(1)Focuses on what has already been done instead of what remains to do be done
(2)No requirement that actor would probably have desisted prior to completing the crime
(3)Firmness of criminal purpose to be shown by requiring substantial step, while problems of proof dealt w/ by corroboration requirement (making it differ from res ipsa test requiring only manifestation of criminal purpose)
Mens rea / Dual Intent
(1)Intent to perform the actus reus
(2)Specific intent to commit the target offense
(a)no common law attempted felony murder
(b)yes to attempted statutory rape / §5.01
(1)If acting w/ kind of culpability required for crime
(a)purposely, if attendant circumstances are as he believes;
(b)does or omits w/ purpose of causing or with the belief that it will cause such result
(c)an act or omission constituting a substantial step in course of conduct planned to culminate in his commission of the crime
Abandonment / Not a defense @ CL, but some courts hide it under the preparation / perpetration distinction / §5.01(4)
Complete and voluntary renunciation, not just a postponement  truly need a change of heart, not just that you thought you’d be caught
Punishment / Generally guilty of same category of crime (misdemeanor, felony) but guilty of less grading/degree  statutory maximum will be lower than commission of actual offense

Table 6.2 - Solicitation