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
causation in tort law
 Proximate Causation Analysis
o Direct cause: defendant is a direct link in the
causal chain.
 Rule: satisfies proximate causation
o Intervening causes: links in the causal chain
between Defendant and result
 Dependent intervening cause: dependent
upon or responsive to defendant’s act
 Rule: does “not” break causal
chain, unless bizarre
 Independent intervening cause:
independent of or coincidental to
defendant’s act
 Rule: breaks causal chain, unless
foreseeable
** Overview of Foundations of Criminal Law
- Justifications for criminal punishment
- Sources of criminal law
o Common law vs. MPC
o Statutes, and statutory interpretation
- Basic elements
o Actus reus: what defendant has to do.
 Voluntary act requirement
o Mens rea: ensures defendant acted
culpably.
 Presumption against strict
liability
 Common law has many mens
rea, MPC just four
 Transferred intent and willful
blindness
- Concurrence
o Ensures essential connection between
mens rea and actus reus
o Temporal
o Motivational
- Causation
o Ensures connection between defendant’s
acts and injurious result
o Factual: but-for causation
o Legal: proximate causation (fairness
test)
 Direct cases are proximate
 Intervening causes break causal
chain unless:
 Dependent and not bizarre
 Independent and not
unforeseeable
II. Specific Crimes
9. Intro to Homicide and Murder
 Actus Reus of Homicide
o Killing a human being
o What is human being?
 Common law: someone who is born and
alive
 States differ on treatment of fetuses
 But cannot infringe Constitutional
protections for abortion
 “Alive” means not “brain dead”
 Mens Rea of Homicide
o Used to distinguish different types of homicide
o Murder requires “malice aforethought,” which
includes:
 Express malice, i.e. intent to kill
 Implied malice:
 Intent to commit serious bodily
injury
 Depraved heart
 Felony murder
o Manslaughter requires something more like
recklessness
 First- vs. Second- Degree Murder
o Second degree
 Any type of murder that isn’t first degree.
o First degree
 Committed by a particular means
specified by statute.
 E.g., torture or poison
 Committed during another crime
specified by statute.
 E.g., robbery or arson
 Committed with premeditation and
deliberation.
 Premeditation: reflected in
advance; antecedent intent
  No strict time limit; can happen
in “blink of an eye”
 Deliberation: with a cool head
10. Implied malice murder
 Overview
o Implied malice
 malice that must be inferred because it is
not intended.
o Killing with implied malice is murder.
 Generally second degree because no
premeditation
 Can be first degree in certain felony
murder contexts if the underlying felony
is listed in the state’s first-degree murder
statute.
 Depraved Heart Murder
o Other common law terms for mens rea
 Abandoned and malignant heart,
wantonness, extreme indifferent to the
value of human life
o Defendant must have realized that his actions
created a substantial and unjustifiable risk of
death
 Typically satisfied by gross recklessness
 Ordinary recklessness would just be
involuntary manslaughter
 Felony Murder Rule
o Can be convicted of murder if killed another
person while committing a felony
 Depending on the state, a “felony” is any
crime that can result in imprisonment, or
can result in imprisonment of a year or
more
 All other crimes are “misdemeanors”
 Inherently Dangerous Felony Limitation
o Underlying felony must be inherently dangerous
to qualify for felony murder rule
o Main controversy is over how to measure
inherent danger
 Abstract approach
 Is cooking meth inherently
dangerous?
 Must consider felony in abstract,
i.e., looking only at definition of
offense and scientific data
 Holding: cooking meth is
inherently dangerous
 Fact-Intensive approach
 Must evaluate whether the felony,
as carried out, was inherently
dangerous
 Merger Doctrine
o Rule
 Felony murder rule does not apply to
assaultive felonies (involving physical
violence)
o Rationale
 Inherent danger of assaultive penalties is
already baked into the penalty
 Agency Rule
o Rule
 If third party (not the felon or one of his
agents) was proximate cause of death, no
felony murder
o Not accepted by all states
11. Voluntary Manslaughter
 Manslaughter
o Less serious than murder
o Two types:
 Voluntary: intentional killing (so ordinary
would be murder) but mitigated by “heat
of passion”
 Involuntary: killing through criminal
negligence, i.e., recklessness or gross
negligence
 Approaches for Defining Voluntary Manslaughter
o Early common law: Categorical Test
 Intentional killing in specific culturally
sanctioned contexts
 Ex: duels, adultery
o Modern common law: reasonable person test
 Requirements
 Defendant acted in the heat of
passion
 Defendant was reasonably
provoked into the heat of passion
  Defendant did not have sufficient
time to cool off
 A reasonable person would have
had time to cool off
 What is “reasonable”?
 Statistical: looks at how most
people actually do behave
 Normative: looks at how people
should behave
 Common law typically favors
statistical.
12. Involuntary Manslaughter
 Mens rea
o “Criminal negligence”
o Depending on jurisdiction, that could mean:
 Recklessness
 Gross negligence
 Regular negligence
 Actus Reus
o Resulting in death of a person / persons
13. MPC Homicide
 Intro
o Actus reus
 Causes the death of another human being
o Then divides into murder, manslaughter, and
negligent homicide based on mens rea
 MPC Murder
o 3 possible mens rea
 Purpose or knowledge
 Resembles common law express
malice
 Recklessness manifesting extreme
indifferent to the value of human life
 Resembles common law depraved
heart murder, implied malice
 Can resume recklessness if killing caused
while committed a listed crime (rape,
kidnapping)
 Resembles common law felony
murder rule
 MPC Manslaughter
o MPC equivalent of voluntary manslaughter
 Murder committed under “extreme
mental or emotional disturbance for
which there is reasonable explanation or
excuse.”
 Resembles common law heat of passion
 Big difference: must evaluate the
reasonableness from “viewpoint of
defendant” and “under the circumstances
as he believes them to be”
o MPC Involuntary Manslaughter
 2 types
 Reckless manslaughter: resembles
common law jurisdictions that
define manslaughter in terms of
recklessness
 Negligence: resembles other
common law jurisdictions that
define manslaughter in terms of
gross or simple negligence
 MPC Homicide Summary and Application
o Murder
 Purpose/knowledge, extreme
indifference, or listed crime
o Voluntary Manslaughter
 Extreme mental or emotional disturbance
o Involuntary Manslaughter
 Recklessness or negligence
14. Forcible Rape
 Elements
o Intercourse of any kind
 Penetration, no matter how slight, of the
vagina or anus with any body part or
object, or oral penetration by a sex organ
of another person
o Lack of consent
o Due to:
 Forcible Rape
 Force
 Non-Forcible Rape
 Threat of force
 Unconsciousness
 Legal incapacity to consent
o Mens rea: varies by element and jurisdiction
 Regarding consent, can be anywhere
from knowledge to strict
  Regarding force, can be anywhere from
intent to strict
 “Recklessness”
 How much force required?
o In some jurisdictions
 Only force necessary for penetration
o Most common approach
 Force sufficient to compel person of
reasonable resolution to submit without
further resistance
 What kind of force?
o Physical
 All states used to require, but few do
today
o Moral, psychological or intellectual
 Relevant factors: relative age, size, and
intellect; mental and physical conditions;
atmosphere; authority relationship;
duress
o Fraud
 Rare and very controversial
 E.g. rapist pretends to be victim’s partner
15. Consent
o Courts disagree whether it is required
throughout the intercourse
16. Statutory Rape
 Elements
o Intercourse
o With a minor
 State Variations
o What is the age of minority
 From 14-18
o Whether there must be an age gap between
victim and defendant
o Heightened penalties if victim below a certain
age
o Applies to men and women, or only men
o Reasonable mistake defense
 Disagreement over Harm of Statutory Rape
o Old common law notions: preserving chastity of
young women and father’s property interest in it
o Exploitation of minors
o Physical and psychological health of minors
o Teenage pregnancy crisis
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)