Criminal Law Review Session 2 & 3

Homicide — Common Law & MPC

100

The four types of common-law murder based on malice aforethought.

What are intent to kill, intent to cause grievous bodily harm, depraved heart, and felony murder?

• Intent to Kill — ITK: Defendant specifically intends to kill.
• Intent to Cause Grievous Bodily Harm — IGBH: Defendant specifically intends serious bodily harm likely to cause death.
• Depraved Heart — DH: Extreme recklessness or negligence showing callous indifference to human life.
• Felony Murder — FM: Killing during the commission of a felony.

200

The common-law manslaughter categories where malice is absent.

What are voluntary manslaughter and involuntary manslaughter?

• Voluntary Manslaughter: Intentional killing reduced from murder because of sudden heat of passion.
• Involuntary Manslaughter: Unintentional killing based on lesser culpability than murder.
• Involuntary manslaughter includes:
  • Reckless homicide
  • Negligent homicide
  • Misdemeanor manslaughter

300

What are adequate provocation, actual heat of passion, suddenness, and causation?

• Adequate provocation: Provocation would inflame the passions of an ordinary person enough to kill.
  • Examples: serious assault, mutual combat, injury to close relative, discovering adultery.
  • Words alone usually are not enough.
• Heat of passion: Defendant was actually provoked and had not cooled off.
• Suddenness: A reasonable person would not have cooled off yet.
• Causation: Victim’s provocation caused the passion, and the passion caused the killing. 

400

The MPC murder and manslaughter framework for intentional killings.

What is purposeful or knowing homicide for murder, reduced to manslaughter if committed under extreme emotional disturbance with reasonable explanation or excuse?

• MPC Murder: Homicide committed purposely or knowingly.
• MPC Manslaughter: Would otherwise be murder, but was committed under:
  • Extreme emotional disturbance — EED, which is subjective.
  • With a reasonable explanation or excuse, which is objective.
• MPC does not require traditional provocation.
• MPC does not require a strict cooling-off period. 

500

The common-law felony murder rules and limits.

What are enumerated felony murder, unenumerated felony murder, inherently dangerous felony, merger, causation, agency/proximate-cause theories, and res gestae?

• Enumerated felonies: Usually arson, rape, robbery, and burglary.
  • These are usually first-degree felony murder.
  • Main limit is causation.
• Unenumerated felonies: Other felonies.
  • Usually second-degree felony murder.
  • Must be inherently dangerous.
• Inherently dangerous felony: Can be analyzed categorically or factually.
• Merger: Felony murder does not apply if the underlying felony is integral to the killing.
  • The felony must have an independent purpose from the physical attack.
• Causation: Requires but-for and proximate causation.
• Agency theory: Some jurisdictions require the killing to be committed by a co-felon.
• Proximate-cause theory: Other jurisdictions allow liability if the death was proximately caused by the felony.
• Res gestae: The felony includes acts closely connected in time, place, and causal relation to the felony.

Theft, Larceny, Embezzlement, False Pretenses & Robbery

100

The six elements of common-law larceny.

What are trespassory taking and carrying away of the personal property of another with intent to steal?

• Trespassory: Without valid consent or by constructive trespass.
• Taking: Converting the property to possession.
• Carrying away: Any movement is enough.
• Personal property: Tangible personal property.
• Of another: Someone else has the possessory interest.
• Intent to steal: Specific intent to permanently deprive. 

200

The larceny rules for trespassory takings, custody, lost property, and claim of right.

What are taking from current possession, converting custody into possession, lost property remaining constructively possessed, and superior claim of right defeating intent to steal?

• Larceny is a crime against the current possessor.
• Trespass can be actual or constructive.
  • Actual trespass: taking without consent.
  • Constructive trespass: consent obtained by false material representation.
• Custody is limited physical control.
  • If defendant has only custody and converts it to possession, that can be larceny.
• Lost property remains in the owner’s constructive possession if there is a reasonable basis to identify the owner at the moment of finding.
• Claim of right: Defendant may lack intent to steal if they honestly believe they have a superior right to possess the property. 

300

The distinction between common-law larceny, embezzlement, and false pretenses.

What is larceny involves trespassory taking of possession, embezzlement involves lawful possession followed by conversion, and false pretenses involves obtaining title by fraud?

• Larceny: Defendant wrongfully obtains possession.
  • The taking is trespassory.
• Embezzlement: Defendant already has lawful possession.
  • Then substantially interferes with property of another.
  • Must intend to permanently deprive.
  • Returning equivalent property usually does not fix it.
• False Pretenses: Defendant obtains title through fraud.
  • Requires false representation.
  • Representation must be material.
  • Victim must actually rely.
  • Defendant must intend to defraud. 

400

The MPC theft offenses replacing many common-law theft distinctions.

What are theft by unlawful taking, theft by deception, and theft of lost property?

• Theft by unlawful taking: Exceeding authorization over property with purpose to permanently deprive someone of their property interest.
  • Not focused on the exact moment of taking.
  • Not focused on the type of interest in the same technical way as common law.
• Theft by deception: Purposely deceiving someone in enumerated ways to obtain title.
  • No materiality requirement.
  • Excludes puffing and matters with no pecuniary significance.
• Theft of lost property: Taking lost property with purpose to deprive while failing to take reasonable steps to return it. 

500

The common-law robbery elements and how MPC robbery differs.

What is common-law larceny plus taking from person or presence by force or fear, while MPC robbery requires serious bodily injury or serious felony during theft?

• Common Law Robbery: Larceny plus:
  • Taking from the victim’s person or presence.
  • By force or fear.
• Person/presence: Property is on the victim’s body or within immediate control.
• Force: Enough force to overcome resistance, however slight.
• Fear: Reasonable apprehension of imminent force or injury sufficient to make a reasonable person part with property.
• Timing: Force must occur during the taking, not merely afterward.
• MPC Robbery Differences:
  • Applies to all thefts, not just larceny.
  • Victim possession is irrelevant.
  • No person/presence requirement.
  • Requires greater force or threat: serious bodily injury or serious felony.
  • Force can be used in retaining property, not only taking it.

Inchoate Crimes — Attempt, Solicitation & Conspiracy

100

The basic common-law attempt rule.

What is conduct constituting an attempt plus specific intent to commit the target crime?

• Attempt has both actus reus and mens rea.
• Mens rea: Specific intent to commit the target crime.
• For target-crime results, common law usually requires purpose, not mere knowledge.
• For target-crime conduct, common law requires purpose.
• For target-crime circumstances, the rule is unclear:
  • Some courts require knowledge.
  • Others use the target crime’s required mental state.

200

The two common-law actus reus tests for attempt.

What are the proximity test and the res ipsa loquitur / unequivocality test?

• Proximity Test: Asks how close defendant came to completing the crime.
  • Consider steps remaining.
  • Consider time and location distance from the crime.
  • Consider gravity of the crime.
  • Consider risk or harm from the attempt.
  • Consider whether an indispensable element is still missing.
• RIL / Unequivocality Test: Asks whether the defendant’s intent is objectively and unequivocally manifested by the conduct.

300

The MPC attempt actus reus test and examples of substantial steps.

What is a substantial step strongly corroborative of criminal purpose?

• MPC attempt requires a substantial step.
• The step must strongly corroborate the defendant’s criminal purpose.
• Examples include:
  • Lying in wait.
  • Searching for or following the contemplated victim.
  • Enticing the victim to the planned crime location.
  • Reconnoitering the planned crime location.
  • Unlawfully entering a structure, vehicle, or enclosure where the crime will occur.
  • Possessing specially designed materials or materials with no lawful purpose under the circumstances.

400

The additional attempt rules for merger, transferred intent, impossibility, inherent impossibility, and abandonment.

What are attempt merges with the target crime, no transferred intent for attempt, factual impossibility is no defense, pure legal impossibility is a defense, inherent impossibility can be a defense, and abandonment differs between common law and MPC?

• Merger: Cannot be convicted of both attempt and the completed target crime.
• Transferred intent: No transferred intent for attempt.
• Factual impossibility: No defense.
  • Defendant’s goal is illegal, but factual circumstances make completion impossible.
• Pure legal impossibility: Defense.
  • Defendant’s goal is not actually illegal.
• Hybrid legal impossibility:
  • Common law: defense.
  • MPC: not a defense.
• Inherent impossibility: May be a defense when the method is objectively incapable or inappropriate.
• Abandonment:
  • Common law: no defense.
  • MPC: defense if renunciation is complete and voluntary.

500

The basic conspiracy rule and the major common-law/MPC differences.

What is agreement to commit one or more crimes plus intent to agree and intent to commit the target crime, with differences on merger, Pinkerton, plurality, Wharton’s Rule, and withdrawal?

• Basic Rule: Agreement to commit crime plus:
  • Intent to agree.
  • Intent to commit the target crime.
• Agreement: Mutual understanding; can be implicit.
• Overt act: Often required by statute; MPC requires it unless serious felony.
• Common Law Merger: No merger with the completed target crime.
• MPC Merger: Conspiracy merges if the target crime is the sole objective.
• Pinkerton Liability: Common law allows conspirators to be liable for reasonably foreseeable crimes committed in furtherance of the conspiracy.
• MPC: No Pinkerton liability.
• Plurality:
  • Common law: bilateral; no conspiracy of one.
  • MPC: unilateral; conspiracy of one can exist.
• Wharton’s Rule:
  • Common law: no conspiracy when crime necessarily requires joint action, unless unnecessary third parties join.
  • MPC: no Wharton’s Rule.
• Withdrawal:
  • Common law: only defense to later Pinkerton liability.
  • MPC: defense to conspiracy if defendant thwarts success and renunciation is complete and voluntary.

Solicitation, Burglary & Robbery Comparisons

100

The basic rule for solicitation.

What is encouraging or requesting someone to commit a crime with intent that the crime be committed?

• Solicitation punishes asking, encouraging, commanding, or requesting another person to commit a crime.
• Mens rea for result elements: Purpose.
• Mens rea for conduct elements: Purpose.
• Mens rea for circumstance elements: Unclear.
  • Could be knowledge.
  • Could be the target crime’s mental state.
• The crime can be complete even if the solicited person does not commit the target offense.

200

The common-law and MPC differences for solicitation involving uncommunicated solicitation, target role, solicitation as attempt, abandonment, and merger

What are different rules on uncommunicated solicitations, innocent agents, attempt liability, renunciation, and merger?

• Uncommunicated solicitation:
  • Common law: attempted solicitation.
  • MPC: guilty of solicitation for complete attempts to solicit; no separate attempted solicitation.
• Target role:
  • Common law: solicited person must be a principal, not an innocent agent.
  • MPC: any criminal involvement is enough; innocent agent is okay.
• Solicitation as attempt:
  • Mere solicitation is not enough.
  • Need additional acts amounting to attempt.
  • MPC uses substantial-step logic.
• Abandonment:
  • Common law: no defense.
  • MPC: defense if defendant persuades the person not to commit the crime or otherwise prevents the crime, with complete and voluntary renunciation.
• Merger:
  • Solicitation merges into the completed target offense.
  • Cannot be convicted of both solicitation and attempt for the same target crime.

300

The elements of common-law burglary.

What are breaking and entering the dwelling of another at night with intent to commit a felony therein?

• Breaking: Trespassorily creating a new opening.
  • Can be by force.
  • Can be by trick or constructive breaking.
• Entering: Defendant must enter the dwelling.
• Dwelling: Structure used for human habitation or occupancy.
• Of another: Based on occupancy, not ownership.
• At night: When a person cannot be recognized by natural light.
• Intent to commit a felony therein: Defendant must specifically intend the felony at the time of entry.

400

The major common-law and MPC burglary differences.

What are differences in breaking, structure, nighttime, target offense, grading, and merger?

• Breaking/Entering:
  • Common law: must create an opening and enter through the breaking.
  • MPC: no breaking requirement; entry must be unauthorized into a non-public place.
• Dwelling:
  • Common law: non-moveable place of human habitation.
  • MPC: building, structure, vehicle, or place adapted for overnight accommodation or business.
• Nighttime:
  • Common law: element of guilt.
  • MPC: affects grading only.
• Intent:
  • Common law: intent to commit a felony.
  • MPC: purpose to commit a crime.
• Merger:
  • Common law: burglary does not merge with the target offense.
  • MPC: burglary merges with the target offense unless the target is a first- or second-degree felony.

500

The common-law robbery rule compared to MPC robbery.

What is common-law robbery is larceny from person or presence by force or fear, while MPC robbery is serious injury or serious felony during theft?

• Common law robbery starts with larceny.
• Adds two elements:
  • Taking from person or presence.
  • Taking by force or fear.
• Victim must have a better claim to possession than the robber.
• Force must occur during the taking.
• MPC robbery is broader in some ways:
  • Covers all thefts, not just larceny.
  • Does not require victim possession.
  • Does not require person or presence.
  • Allows force used to retain property.
• MPC is narrower in force level:
  • Requires actual or threatened serious bodily injury or serious felony.

Assault, Battery & Risk-Based Crimes

100

The common-law battery rule.

What is causing harmful or offensive contact with negligence or greater mens rea, or strict liability if based on an unlawful act?

• Actus Reus: Causing harmful or offensive contact.
• Harmful contact: Injury is not required; temporary pain can be enough.
• Offensive contact: Contact that offends a reasonable sense of personal dignity.
  • Can also include contact offensive to a known particular sensitivity.
• Mechanism: Can be direct or indirect.
  • Punching someone.
  • Scaring a horse someone is riding.
  • Siccing a dog on someone.
  • Poisoning someone.
• Mens Rea: Usually negligence or greater.
• Defense: Consent, except generally not for severe harm.

200

The two types of common-law assault.

What are attempted battery assault and reasonable-apprehension assault?

• Attempted Battery Assault:
  • Actus reus: attempt to commit a battery.
  • Mens rea: specific intent to commit a battery.
  • Merges with battery if battery occurs.
  • Cannot be attempted because you cannot attempt an attempt.
• Reasonable-Apprehension Assault:
  • Actus reus: causing the victim to reasonably expect an imminent battery.
  • Mens rea: specific intent to cause that expectation.
  • Does not merge with battery.
  • Can be attempted. 

300

The MPC “assault” framework.

What is a single assault crime covering battery-type assault, attempted battery, negligent injury with a deadly weapon, and apprehension-type assault?

• MPC does not separate assault and battery the same way common law does.
• Battery-type assault:
  • Attempts to cause bodily injury.
  • Or purposely, knowingly, or recklessly causes bodily injury.
• Deadly weapon negligence:
  • Negligently causes bodily injury with a deadly weapon.
• Apprehension-type assault:
  • Attempts to put another in fear of imminent serious bodily injury.
• MPC requires bodily injury or serious bodily injury, not merely offensive contact. 

400

The difference between depraved-heart murder, reckless homicide, negligent homicide, and MPC reckless murder

What is the degree of risk and culpability determines whether the killing is murder, manslaughter, or negligent homicide?

• Common Law Depraved Heart Murder:
  • Extreme recklessness or negligence.
  • Must manifest callous indifference to human life.
  • Usually murder.
• Common Law Reckless Homicide:
  • Homicide committed recklessly.
  • Usually involuntary manslaughter.
• Common Law Negligent Homicide:
  • Homicide committed negligently.
  • Also involuntary manslaughter.
• MPC Reckless Murder:
  • Homicide committed recklessly under circumstances manifesting extreme indifference to human life.
  • Always requires recklessness.
  • One victim is enough.
• MPC Negligent Homicide:
  • Separate crime for homicide committed negligently.

500

The major common-law and MPC assault/battery comparison points.

What are common law separates assault and battery, while MPC combines them into assault and changes the required harm and mental states?

• Common Law:
  • Battery and assault are separate crimes.
  • Battery covers harmful or offensive contact.
  • Assault covers attempted battery or reasonable apprehension of immediate battery.
  • Battery usually requires negligence or greater.
  • Assault usually requires specific intent.
• MPC:
  • Uses one offense called assault.
  • Battery-type assault requires bodily injury.
  • Apprehension-type assault requires fear of imminent serious bodily injury.
  • No general “offensive contact” category.
  • Attempted assault is generally unnecessary because attempt concepts are built into assault.
  • Battery-type assault requires recklessness or greater, except negligence is enough if a deadly weapon is involved.