I.

Foundations of Criminal Law o Ejusdem Generis (“of the same kind”)

o Expression Unius (“the expression of one thing
is the exclusion of others”)
1. Introduction to the structure of criminal law
 Canon of Interpretation (Criminal Law Only)
o Rule of Lenity
 Burden of Proof
 Unresolvable ambiguities construed in
o Prosecutors has burden of proof in criminal law.
favor of defendant
 Rule of last resort
 Standard of Proof
o “Beyond a reasonable doubt”
 Court steps through canons in typical order:
 “The kind of doubt that would cause a
o Plain meaning
reasonable person, after careful and
o Edjusdem Generis
thoughtful reflection, to hesitate to act in
o Absurdity
the graver or more important matters of
life.” o Congressional Intent and Legislative History
 Must show for EVERY element of crime. o Rule of Lenity

2. Justifications of Punishment 4. Actus Reus

 Consequentialist Justification  Basic Elements of Crime

1) Deterrence o Actus Reus
- Dissuade would-be criminals from offending in o Mens Rea
the future by threatening sanction. o Ex: Driving recklessly is a misdemeanor.
- 2 types  Driving: Actus Reus
o Specific/Individual Deterrence:  Recklessly: Mens Rea
preventing the individual criminal from
reoffending.  Requirement
o General Deterrence: preventing the o Criminal law almost always requires a
general public from offending by “voluntary act” for liability.
sending a message about prospective
sanctions. 5. Omissions
2) Rehabilitation
- Reform criminals so they’re no longer disposed  Requirements for Omission Liability
to commit crime. o Physical Possibility: Must be physically capable
3) Isolation / Incapacitation of performing the omitted act.
- Separate criminal from general public to prevent o Legal Duty to Act: Must have a legal duty to act,
re-offense. arising from:
 Special relationship
 Non-consequentialist Justifications  Contract
1) Retributivism  Statute
- Give criminal his/her just deserts.  Risk created by defendant
 Voluntarily assuming care of person in
3. Interpreting Criminal Statutes need of help
o Knowledge of Relevant Facts: Must be aware of
 Canons of Interpretation (for all law) facts that give rise to duty to act.
o Plain Meaning Rule
o Constitutional Avoidance  Good Samaritan Laws
o Avoiding Absurdity
o Undefined Terms Have Common Law Meaning
 o Some states have “Good Samaritan Laws” that  Subjectively believed there was a high
require people give some kind of assistance in probability
emergency situations.  Took affirmative step to avoid learning

6. Common Law Mens Rea 7. MPC Mens Rea

 Introduction  Strict Liabililty

o Over a hundred types of mens rea in the  Willful Blindness
common law  Scope of Ambiguity
 Things like “willfully,” “maliciously,”  MPC Mental States
“corruptly” o Purpose
o Most central mens rea is INTENT  Conscious Object
 The result was your conscious object. o Knowledge
 I.e. purpose or knowledge  Aware that it is practically certain (unless
it believes the opposite)
 Interpretive Issues o Recklessness
o What if no mens rea is specified?  Consciously disregards a substantial and
 Generally assumes drafters meant to unjustifiable risk
require intent o Negligence
o What if a mens rea is specified, what does it  Should be aware of a substantial and
cover? unjustifiable risk
 Ex: “Intentionally steal goods in
interstate commerce”  MPC Mens Rea Hierarchy
 What if you intend to steal goods, but o Purpose satisfies knowledge
didn’t care whether they were traveling o Purpose and knowledge satisfy recklessness
interstate? o Purpose, knowledge, and recklessness satisfy
 Apply canons of statutory negligence.
interpretation o Purpose – knowledge – recklessness –
negligence
 Natural and Probable Consequences Doctrine
o Natural and probable consequence of wrongful 8. Causation and Concurrence
acts assumed to be within scope of purpose
 Concurrence
 Transferred Intent o Temporal concurrence: the mens rea must occur
o A defendant still counts as “purposely or at the same time as the actus reus.
knowingly causing a particular result . . . if the o Motivational concurrence: the mens rea must be
actual result differs from that designed . . . only the motivating force behind the actus reus.
in the respect that a different person or a
different property is injured.”  Causation
o Or “the injury or harm designed . . . would have o Factual causation:
been more serious . . . than that caused”
 but-for causation, if agent hadn’t done
what he did, result would not have
 Willful Blindness obtained when it did.
o Conscious avoidance o Proximate causation:
o Jewell: A person can be found guilty of a crime  Fairness test; is the result casually so
where they reasonably should have been aware remote that it would be unfair to attribute
of the criminal nature at hand. the result to the defendant’s conduct.
o Requirement  No hard and fast rules
  More demanding than proximate  Intervening causes break causal
causation in tort law chain unless:
 Dependent and not bizarre
 Proximate Causation Analysis  Independent and not
o Direct cause: defendant is a direct link in the unforeseeable
causal chain.
 Rule: satisfies proximate causation II. Specific Crimes
o Intervening causes: links in the causal chain
between Defendant and result 9. Intro to Homicide and Murder
 Dependent intervening cause: dependent
upon or responsive to defendant’s act  Actus Reus of Homicide
 Rule: does “not” break causal o Killing a human being
chain, unless bizarre o What is human being?
 Independent intervening cause:  Common law: someone who is born and
independent of or coincidental to alive
defendant’s act  States differ on treatment of fetuses
 Rule: breaks causal chain, unless  But cannot infringe Constitutional
foreseeable protections for abortion
 “Alive” means not “brain dead”
** Overview of Foundations of Criminal Law
- Justifications for criminal punishment
 Mens Rea of Homicide
- Sources of criminal law
o Used to distinguish different types of homicide
o Common law vs. MPC
o Murder requires “malice aforethought,” which
o Statutes, and statutory interpretation
includes:
- Basic elements
 Express malice, i.e. intent to kill
o Actus reus: what defendant has to do.
 Implied malice:
 Voluntary act requirement
 Intent to commit serious bodily
o Mens rea: ensures defendant acted
injury
culpably.
 Depraved heart
 Presumption against strict
 Felony murder
liability
o Manslaughter requires something more like
 Common law has many mens
recklessness
rea, MPC just four
 Transferred intent and willful
 First- vs. Second- Degree Murder
blindness
o Second degree
- Concurrence
o Ensures essential connection between  Any type of murder that isn’t first degree.
mens rea and actus reus o First degree
o Temporal  Committed by a particular means
o Motivational specified by statute.
 E.g., torture or poison
- Causation
 Committed during another crime
o Ensures connection between defendant’s
specified by statute.
acts and injurious result
 E.g., robbery or arson
o Factual: but-for causation
 Committed with premeditation and
o Legal: proximate causation (fairness
deliberation.
test)
 Premeditation: reflected in
 Direct cases are proximate
advance; antecedent intent
  No strict time limit; can happen  Must consider felony in abstract,
in “blink of an eye” i.e., looking only at definition of
 Deliberation: with a cool head offense and scientific data
 Holding: cooking meth is
10. Implied malice murder inherently dangerous
 Fact-Intensive approach
 Overview  Must evaluate whether the felony,
o Implied malice as carried out, was inherently
 malice that must be inferred because it is dangerous
not intended.  Merger Doctrine
o Killing with implied malice is murder. o Rule
 Generally second degree because no  Felony murder rule does not apply to
premeditation assaultive felonies (involving physical
 Can be first degree in certain felony violence)
murder contexts if the underlying felony o Rationale
is listed in the state’s first-degree murder  Inherent danger of assaultive penalties is
statute. already baked into the penalty

 Depraved Heart Murder  Agency Rule

o Other common law terms for mens rea o Rule
 Abandoned and malignant heart,  If third party (not the felon or one of his
wantonness, extreme indifferent to the agents) was proximate cause of death, no
value of human life felony murder
o Defendant must have realized that his actions o Not accepted by all states
created a substantial and unjustifiable risk of
death 11. Voluntary Manslaughter
 Typically satisfied by gross recklessness
 Ordinary recklessness would just be  Manslaughter
involuntary manslaughter o Less serious than murder
o Two types:
 Felony Murder Rule  Voluntary: intentional killing (so ordinary
o Can be convicted of murder if killed another would be murder) but mitigated by “heat
person while committing a felony of passion”
 Depending on the state, a “felony” is any  Involuntary: killing through criminal
crime that can result in imprisonment, or negligence, i.e., recklessness or gross
can result in imprisonment of a year or negligence
more
 All other crimes are “misdemeanors”  Approaches for Defining Voluntary Manslaughter
o Early common law: Categorical Test
 Inherently Dangerous Felony Limitation  Intentional killing in specific culturally
o Underlying felony must be inherently dangerous sanctioned contexts
to qualify for felony murder rule  Ex: duels, adultery
o Main controversy is over how to measure o Modern common law: reasonable person test
inherent danger  Requirements
 Abstract approach  Defendant acted in the heat of
 Is cooking meth inherently passion
dangerous?  Defendant was reasonably
provoked into the heat of passion
  Defendant did not have sufficient  Murder committed under “extreme
time to cool off mental or emotional disturbance for
 A reasonable person would have which there is reasonable explanation or
had time to cool off excuse.”
 What is “reasonable”?  Resembles common law heat of passion
 Statistical: looks at how most  Big difference: must evaluate the
people actually do behave reasonableness from “viewpoint of
 Normative: looks at how people defendant” and “under the circumstances
should behave as he believes them to be”
 Common law typically favors o MPC Involuntary Manslaughter
statistical.  2 types
 Reckless manslaughter: resembles
12. Involuntary Manslaughter common law jurisdictions that
define manslaughter in terms of
 Mens rea recklessness
o “Criminal negligence”  Negligence: resembles other
o Depending on jurisdiction, that could mean: common law jurisdictions that
 Recklessness define manslaughter in terms of
 Gross negligence gross or simple negligence
 Regular negligence
 Actus Reus  MPC Homicide Summary and Application
o Resulting in death of a person / persons o Murder
 Purpose/knowledge, extreme
13. MPC Homicide indifference, or listed crime
o Voluntary Manslaughter
 Intro  Extreme mental or emotional disturbance
o Actus reus o Involuntary Manslaughter
 Causes the death of another human being  Recklessness or negligence
o Then divides into murder, manslaughter, and
negligent homicide based on mens rea 14. Forcible Rape

 MPC Murder  Elements

o 3 possible mens rea o Intercourse of any kind
 Purpose or knowledge  Penetration, no matter how slight, of the
vagina or anus with any body part or
 Resembles common law express
object, or oral penetration by a sex organ
malice
of another person
 Recklessness manifesting extreme
o Lack of consent
indifferent to the value of human life
o Due to:
 Resembles common law depraved
heart murder, implied malice  Forcible Rape
 Can resume recklessness if killing caused  Force
while committed a listed crime (rape,  Non-Forcible Rape
kidnapping)  Threat of force
 Resembles common law felony  Unconsciousness
murder rule  Legal incapacity to consent
o Mens rea: varies by element and jurisdiction
 MPC Manslaughter  Regarding consent, can be anywhere
o MPC equivalent of voluntary manslaughter from knowledge to strict
  Regarding force, can be anywhere from o Courts disagree whether it is required
intent to strict throughout the intercourse
 “Recklessness”
16. Statutory Rape
 How much force required?
o In some jurisdictions  Elements
 Only force necessary for penetration o Intercourse
o Most common approach o With a minor
 Force sufficient to compel person of
reasonable resolution to submit without  State Variations
further resistance o What is the age of minority
 From 14-18
 What kind of force? o Whether there must be an age gap between
o Physical victim and defendant
 All states used to require, but few do o Heightened penalties if victim below a certain
today age
o Moral, psychological or intellectual o Applies to men and women, or only men
 Relevant factors: relative age, size, and o Reasonable mistake defense
intellect; mental and physical conditions;
atmosphere; authority relationship;  Disagreement over Harm of Statutory Rape
duress o Old common law notions: preserving chastity of
o Fraud
young women and father’s property interest in it
 Rare and very controversial o Exploitation of minors
 E.g. rapist pretends to be victim’s partner
o Physical and psychological health of minors
o Teenage pregnancy crisis
15. Consent
o Home values

 What counts as consent?

 Biggest controvery over mistake of age defense
o NO model
o Statutory rape lacks the hallmarks of strict
 Must verbally indicate “no” for non-
liability crimes
consent to be established
 High penalties
o Yes model
 Does not always involve broad public
 Must verbally indicate “yes” else non-
harms
consent is established
 Any injury is direct
o Negotiation Model
 Defendant is not necessarily the least cost
 Would require communicative exchange
avoider
between partners before intercourse
about whether they want intercourse to
17. Theft
occur
o Contract Model
 Elements of larceny
 Partners must sign a contract before
o Unlawful (trespassory) taking
intercourse
 I.e. no right to take
 How to treat mistakes about consent?
o Carrying away (asportation)
o Most jurisdicitons ay that an honest and
 i.e. moving the object, however slightly
reasonable mistake as to consent is a defense
o From the possession of another
 When must consent be given?
o Mens rea: intent to permanently deprive owner
o Everyone agrees consent must be given before
 Mistakes of fact about ownership, even
intercourse
unreasonable ones, can negate liability
 Modern Theft Statutes
o Define a single offense, “theft”, with many
variants
o Allows for uniform grading
 By amount
 By property type
 By means
o Allows uniform defenses
 E.g. unaware the property belonged to
another
 E.g. honest claim of right

 Burglary
o Traditional Common law:
 Breaking and entering
 A dwelling
 At night
 With intent to commit a felony
 Need not be successful
o MPC
 Entering
 Building or occupied structure
 With purpose to commit a crime

 Robbery
o Common law
 Larceny
 From the victim’s person or immediate
presence
 Using force or threat of force
o MPC
 Theft
 Inflicting or threatening serious bodily
injury (or to commit a first- or second-
degree felony)