Things to Consider in Hypo:
Who am I? judge, advocate, prosecutor?
Are there multiple defendants to consider or just one?
Policy arguments- try to hit as many themes as you can: fairness, criminal proportionality, racial
disparities, economic impact, utilitarianism, and retribution
Analyze statute, actus rea, mens rea, possible defenses, outcome
Remember role of jury
Statute first—if case no directly relevant, don’t use it
Remember other defenses/mitigation due process concerns, prox cause, malum prohibitum
Statutory Construction
Common law crimes – basis for crim liability (pope v state)
if statute silent, reckless is minimum default, if ambiguous import mens rea from another part of
statute unless contrary purpose [MPC approach] or read one in [Elonis]
strict liability – court will ask if mental culpability req [morisette, staples, x-citement, dotterweich]
vicarious liability – entity liability [guminga], parental [Ephraim]
Actus Rea
Actus reus ingredients: (1) a voluntary act, (2) that causes, (3) social harm
Time framing of act
Voluntary act [MPC 2.01], omission [MPC 9.06 no duty, but 2.01(3) general duty to act due to special
relationship] or involuntary act
Cause in fact and prox cause
Mens Rea
Specific intent [burglary] v general intent [breaking and entering]
Intent/purpose, knowledge, recklessness, negligence [MPC 15.05] [but see standard of care discussion
for subjective/objective] criminal negligence [MPC 15.05(4)] this is diff from common law terms
“malice” [Cunningham, Faulkner]
Determine material elements of offense (MPC 1.13(9-10)) then which mens rea req for each material
element (2.02(3) and (4) …
Mandatory presumption v permissive presumption
MPC § 2.05 allows for strict liability when the offense in question is a mere violation, e.g., speeding, OR
when there is clear legislative purpose dispensing with the culpability requirement. Generally, “public
welfare offenses”
Various Criminal Acts
Homicide
First degree (MPC 210.2) – premeditated (in a moment Carroll or in advance Guthrie); second degree-
intentional but not planned in advance (malone, fleming);; voluntary manslaughter- mitigated murder,
no malice aforethought; involuntary manslaughter- accidents from reckless/negligent act [welanksy,
hall, Williams subjective/objective standard]
Murder v manslaughter [Malone, Dellinger, Prindle, fleming]
mitigation=provocation [reasonable man Girouard, in presence of person Maher- heat of passion,
more subjective standard, adequate provocation, no cooling time, causal link]; MPC 210.3(1)(b) EED
mitigation (subjective +objective) [cassassa, white]
depraved heart murder- malice assumed bc so reckless (Dellinger, Fleming)
Felony Murder- no mens rea ezcept for first felony, must be but for and prox cause but subject to
various limitations (nexus, time, distance; limiting list of eligible felonies, nature of underlying offense,
merger, furtherance] , can also apply to midemeanor
Conspiracy
Stand alone crime [inchoate, Perry] or in tandem [accessory liability, Pinkerton, Bridges], actus reus=
agreement NOT parallel conduct, overt act req, mens rea- with intent to further, purpose, corrupt
motive; limitations=concealment, ineligibility, abandonment, wheel and spoke [carpenter],
interdependence, impossibility no, req 2 people
Theft
1- how item acquired 2- what is taken 3-who can be liable; trespassory takings, misappropriation,
fraud, mail fraud, half truths, fiduciary silence, extortion
Defenses/Mitigation/Justification
Duress
imminent threat (from another person) of serious bodily harm or death (to the defendant or a third
person) [objective standard] v MPC 2.09 use of, or a threat to use, unlawful force against his person or
the person of another, which a person of reasonable firmness in his situation would have been unable
to resist [account for situation, limore subjective]
Intoxication
negates elements of mens rea, involuntary intoxication, doesn’t render involuntary though
Mental Insanity
preponderance of evidence, insanity exist at time of offense [unable to know conduct “wrong”],
sufficient to preclude responsibility [MPC 4.01] MPC more lenient then fed; incompetence- lacking
capacity to understand proceeding; but don’t use a lot bc have to be committed sometimes
Self-defense
perfect or partial defense, normally need unprovoked attack, imminent injury, objectively
reasonable/proportional degree of force in response to objectively reasonable fear [MPC relaxes,
subjective if actor thought was necessary, might take into account in actors circumstances]; People v
Goetz v. battered woman syndrome
Mistake of Law
Valid when reasonable reliance on govt official, but not [marrerro, Hopkins]; notice per Lambert
[omission, duty based on status, malum prohibitum]; if specific intent may be valid [cheek]; see also
MPC 2.04; if believe have legal right [regina v smith, varszegi]; interats w willfully/knowingly; when law
changes [ok alelbertini, not ok Hopkins]
Mistake of Fact
Negate mens rea, but crime has to “care.” [prince – lesser crime principle]. When allowances carved
out needs to be “objectively reasonable”
MPC - aggravating circumstances should trigger more severe penalties only when D was subjectively
aware of a risk that the circumstances existed; negates mens rea [see Cordoba-Hincapie] [see MPC
2.04]
Punishment
Charging
Prosecutorial discretion, prosecutorial limitations, judges role, selective prosecution hard to prove
Sentencing
Fed guidelines, mandatory minimums, rehabilitation?, jury role, out of court info
Policy
Direct punishments v indirect collateral consequences of incarceration
Prewrites
MPC
Murder is committed purposely or knowingly, or committed recklessly under the circumstances manifesting
extreme indifference to the value of human life.
MPC §2.02 defines “purposely” as being “aware of such circumstances or hopes that they exist…” and that “it
is his conscious object…to cause such a result…”
MPC §2.02 defines “knowingly” as “aware that his conduct is of such nature or that such circumstance exists.”
This usually translates to being “substantially certain” that the circumstances exist where the x would die
Similarly, “recklessly” is defined as “aware of and consciously disregards a substantial and unjustifiable risk [of]
such result … or that such circumstance exists. The conduct must be a gross deviation from what a reasonable
person would do…”
[reckless disregard/depraved heart= fleming]
Criminal negligence is defined as “fails to perceive a substantial and unjustifiable risk [of] such result or that
such circumstance exists. The conduct must be a gross deviation from what a reasonable person would do.”
Think People v Hall, Prindle
Common Law Terms:
In common law, a person acts with malice if he intentionally, knowingly, or recklessly causes the social harm
prohibited by the offense. Cunningham dictated that this standard required some foresight, not just mere
wickedness.
Similarly, willfully has been interpreted to mean that the person acted intentionally and that they intended to
break the law.
With scienter implies that the person acted with intent or knowledge of wrongdoing prior to committing the
act.
Willful blindness is federally defined as having subjective belief that there is a high probability that certain
facts exist and taking deliberate actions to avoid learning those facts.
Strict Liability
MPC § 2.05 allows for strict liability when the offense in question is a mere violation, e.g., speeding, OR when
there is clear legislative purpose dispensing with the culpability requirement. Statutes that fall under the strict
liability category are usually “public welfare offenses.”
Mistakes
In Lambert, mistake of law defense was accepted because the LA ordinance punished an omission, imposed a
duty based on mere status, and was a malum prohibitum offense.
If ignorance or mistake of the law negates the requisite mens rea of a specific-intent offense, then it may be a
valid defense (Cheek.)
Homicide
A person is guilty of criminal homicide if he purposely, knowingly, recklessly or negligently causes the death of
another human being (MPC 210.1).
MPC §210.2(1)(b) allows charges of murder to be brought when the defendant acted recklessly under
circumstances manifesting extreme indifference to human life.
In order to assess reckless behavior per common law standards, courts ask if the person must have consciously
disregarded a substantial and unjustifiable risk that death could result from his actions and if his behavior
constituted a “gross deviation” from the standard of care. (People v. Hall)
Premeditation could be read with the majority approach requiring but a brief moment of thought
(Commonwealth v Carroll) or in a narrower approach requiring some time between formation of the intent to
kill and the actual event (Guthrie).
Mitigation
The common law standard for provocation what is what a “reasonable person” would find adequate .
However, there may be some wiggle room for this rigid interpretation, as the minority view allows for a more
holistic approach to what might provoke an ordinary person (Maher.)
Typically, words are not enough to constitute provocation (Girouard.)
Manslaughter is committed recklessly or otherwise would be murder under the influence of extreme mental
or emotional disturbance for which there is reasonable explanation or excuse. Because the reasonableness of
such explanation or excuse is determined “from the viewpoint of a person in the actor’s situation under the
circumstances he believes them to be,” this is a more subjective standard of EED and accounts for X’s unique
situation.
Nevertheless, the jury may read the actor’s situation rather narrowly (Casassa, where a reasonable person in
the defendant’s situation still would not have killed his unrequited love) or broadly (see State v White where a
woman’s mental trauama could have simmered in her mind for some time before coming to the surface.)
Felony Murder
Felony murder can be limited to only foreseeable deaths (Regina v Serne), or more narrowly to include any
death that results from a felony (People v Stamp.)
Conspiracy
X could be guilty for criminal conspiracy, where a person if guilty if they “agrees with such other person or
persons that they or one or more of them will engage in conduct which constitutes such crime or an attempt
or solicitation to commit such crime.”
If the Court applies Pinkerton liability, each co-conspirator is liable for acts of others taken in furtherance of
the conspiracy. However, according to Bridges, these acts need to be foreseeable.
While an overt act requirement may not be present/in the absence of evidence an explicit agreement, we
would need to rely on circumstantial evidence to show an agreement. Perry v State hard to do this beyond a
reasonable doubt.
People v Lauria outlined several principles that point to an implicit agreement, including a special interest or
stake in a venture, the aggravated nature of the crime itself, the usefulness of goods or services, or the volume
of business is grossly disproportionate to any legitimate demand.
Self Defense
MPC §3.04 stipulates that “use of force upon or toward another person is justifiable when the actor believes
that such force is immediately necessary for the purpose of protecting himself against the use of unlawful
force by such other person on the present occasion.”
For the use of deadly force, the MPC requires: (1) Belief force is immediately
necessary, (2) Belief force is necessary to protect [oneself] against death, serious bodily harm,
kidnapping or rape, (3) And that it not be unjustifiable due to the actor’s provocation in the same
encounter, ability to retreat, etc.
Duress
The MPC defines duress as the “use of, or a threat to use, unlawful force against his person or the person of
another, which a person of reasonable firmness in his situation would have been unable to resist”
The prosecution's best argument to defeat Jimmy's duress defense is that, under Section 2.09(2), he
"recklessly" placed himself in a situation in which it was probable that he would be subjected to duress. Under
§2.02(2)(c), a person acts “recklessly” if they “consciously disregard a substantial and unjustifiable risk.” The
risk must be of such nature that the actor’s conduct involves “a gross deviation from the standard of care” a
reasonable person would take
Insanity
However, the bar for insanity defense is incredibly high, since it requires that defendant “lacks substantial
capacity either to appreciate the criminality [wrongfulness] of his conduct or to conform his conduct to the
requirements of law.
Case Prewrites:
Per In Re Winship, the Due Process Clause requires every element of a crime to be proven beyond a
reasonable doubt.
Omissions
Generally, there is no affirmative duty to act, but failure to act in a place where one has a legal duty can
constitute a crime. This duty can be imposed by law or from common law relationships, contracts, and other
areas of law. For instance, in Jones, failure to care for a baby constituted criminal negligence due to a failure to
act due to a parental relationship. But in Pope, a moral duty to step in and save a child from an abusive parent
was not found.
However, there may be an affirmative duty to act when a person created the peril in question. For example, in
Commonwealth v Levesque, the defendant started a fire but didn’t call 911.
