I.

Voluntary Act
A.

General Rule

A person is not ordinarily guilty of a criminal offense unless his conduct includes a
voluntary act.

1.

Common Law Definition of Voluntary Act

A voluntary act is a willed muscular contraction or bodily movement by the

actor.
An act is willed if the bodily movement was controlled by the mind of the
actor.

2.

Model Penal Code

Provides no definition of voluntary act; only includes examples of

involuntary actions.

3.

Important***

To be guilty of an offense, it is sufficient that a persons conduct included a

voluntary act. It is not necessary that all aspects of his conduct be voluntary

II.

Social Harm
A.

Definition

The destruction of, injury to, or endangerment of, some socially valuable interest.

B.

Identifying the Social Harm

Look at the definition of the crime and identify the elements of it that describe the
external conduct that constitutes the crime

C.

Breaking Down the Social Harm into Categories

1.

Result Crimes

Some crimes prohibit a specific result, such as the death of another person

2.

Conduct Crimes

Some crimes prohibit specific conduct, whether or not tangible harm results
thereby, such as offenses that prohibit drunk driving.

3.

Attendant Circumstance Elements

An attendant circumstance is a fact that exists at the time of the actors

conduct, or at the time of a particular result, and which is required to be
proven in the definition of the offense.

pg.

III. Mens Rea

A.

Section 2.02, Subsection I

1.

Language

A person is not guilty of an offense unless he acted purposely, knowingly,

recklessly, or negligently, as the law may require, with respect to each
material element of the offense.

2.

Significance of Subsection
a)
Role of Mens Rea
In general, the MPC requires proof of mens rea.
It requires proof of some particular mens rea purpose, knowledge,
recklessness, or negligence as to each material element of the
offense.
With the MPC, each actus reus element should be covered by some
mens rea requirement.

B.

Culpability Terms Defined

1.

Purposely

A person causes a result purposely if it is her conscious object to cause the

result.

2.

Knowingly
a)
Results
A person knowingly causes a result if she is aware that the result is
practically certain to occur from her conduct.
b)
Attendant Circumstances
A person acts knowingly as to an attendant circumstance if he is
aware that the circumstances exists, or if he is aware of a high
probability of its existence, unless he actually believes that it does not
exist. (Willful Blindness)

3.

Recklessly
a)
Basic Definition
A person is said to have acted recklessly if he consciously disregards a
substantial and unjustifiable risk that the material element exists or
will result from his conduct.

pg.

b)
Standard for Evaluating Conduct
The code provides that the standard discussed earlier measuring the
gravity of foreseeable harm, the probability of its occurrence, and the
reason for taking the risk should be applied.
One is reckless when the risk-taking involves a gross deviation from
the standard of care that a reasonable person would observe in the
actors situation.

4.

Negligently

A person acts negligently when he should be aware of a substantial and

unjustifiable risk.
The critical difference between recklessness and negligence under the Code is
that in the former case, the actor is consciously aware of the substantial and
unjustifiable risk, but proceeds anyway; in the case of negligence, the actor is
not aware of the risk, but should be.

C.

Interpretative Rules
1.

Default Position

If the state defining an offense is silent regarding the issue of mens rea as to
one or more of the actus reus elements, the Code provides that such element
is established if a person acts purposely, knowingly, or recklessly with respect
thereto.
In essence, you fill in the blank with purposely, knowingly, or recklessly.

2.

When Just One Mens Rea Term is Mentioned

If the definition of a MPC statute only sets out a single mens rea element in
the definition of the offense, that mens rea term applies to every material
element of the offense, unless a contrary legislative intent plainly appears.

IV. Mistake of Fact or Law

A.

Mistake of Fact
1.

General Rule

A mistake of fact is a defense to a crime if the mistake negates a mental

state element required in the definition of the offense
The mistake-of-fact rule applies to all offenses in the same manner.

pg.

2.

Exception to the General Rule

The defense of mistake-of-fact is inapplicable if the defendant would be

guilty of a lesser offense had the facts been as she believed them to be.
Under such circumstances unlike the common law the defendant will be
punished at the level of the lesser, rather than the greater, offense.

B.

V.

Mistake of Law

Causation
A.

Actual Cause
1.

Rule

A person is not guilty of an offense unless she is an actual cause of the

ensuing harm.
Both the common law and the MPC provide that conduct is the actual
cause of the prohibited result if the result would not have occurred but for
the actors conduct.

B.

Proximate Cause (Legal Cause)

1.

Role of Proximate Cause in Legal Analysis

A person who is an actual cause of resulting harm is not responsible for it

unless she is also the proximate (or legal) cause of the harm.
When the law states that a defendant was the proximate cause of a result,
this is a shorthand way of saying that it is morally just to hold this person
responsible for the harm.

2.
Was the actual resulttoo remote or accidental in its
occurrence to have a [just] bearing on the actors liability or on the
gravity of the offense.

VI. Justification Defenses

A.

Definition
A justification defense is one that indicates societys belief that the
defendants conduct was morally good, socially desirable, or (at least) not
wrongful.

B.

Basic Structure of Justification Defenses

In general, a justification defense contains three components.

pg.

1.

Necessity

Ordinarily, use of force against another is not justifiable unless it is

necessary.

2.

Proportionality

Ordinarily, a person may not use force that is disproportional to the threat
that motivates the use of force.

3.

Reasonable Belief

Ordinarily, a defendant must possess a reasonable (even if incorrect) belief

that the use of force is necessary and proportional to the supposed threat.

C.

Necessity
1.

Elements

A person is justified in committing an act that otherwise would constitute an

offense if:
a)
The actor believes that the conduct is necessary to avoid harm
to himself or another
b)
The harm that the actor seeks to avoid is greater than that
sought to be avoided by the law prohibiting his conduct AND
c)
There does not plainly exist any legislative intent to exclude
justification claimed by the actor

2.
If the actor was reckless or negligent in bringing about the
emergency, the defense is unavailable in a prosecution for any offense
for which recklessness or negligence is sufficient to prove guilt.
a)

The threatened harm need not be imminent

b)

The commentary expressly states that this defense is available

in homicide prosecutions

D.

Self Defense
1.

General Rule

A person is not justified in using deadly force against another person unless
she believes that such force is immediately necessary to protect herself
against the exercise of unlawful deadly force, force likely to cause serious
bodily harm, a kidnapping, or sexual intercourse compelled by force or
threat, by the other person on the present occasion.

pg.

2.

Limitations on General Rule

Even if deadly force is otherwise permitted, it is impermissible in two key

circumstances.
a)
Defendant as Aggressor
The defense is not permitted if the actor is the aggressor, which the
Code defines as one who provokes the use of force against herself in
the same encounter for the purpose of causing death or serious
bodily injury.
b)
Retreat
The Code follows the minority common law position that a nonaggressor must retreat if she knows that she can thereby avoid the
need to use deadly force with complete safety to herself.
A person need not retreat from her own dwelling.
c)
Other Non-Necessity Circumstances
Deadly force may not be used if, subject to various exceptions, the
defendant can avoid doing so by surrendering possession of a thing
to a person asserting a claim of right thereto or by complying with a
demand that he abstains from any action that he has no duty to
take.

E.

Defense of Others
1.

A person is justified in using deadly force to protect another if:

a)
The intervenor would be justified in using such force to protect
herself, if the facts were as she believed them to be
b)
According to the facts as the intervenor believed them to be, the
third person would be justified in using such force to protect herself
c)
The intervenor believes force is necessary for the third partys
protection AND
d)
If the third party would be required to retreat under the Coode
self-protection rules, the intervenor must attempt to cause the third
party to retreat before using deadly force.

pg.

F.

Defense of Property and Habituation

1.
The right to use force to protect property is based on the actors
subjective belief.
2.
The MPC generally authorizes use of non-deadly force to retake
possession of land or recapture personal property, even after fresh
pursuit has ended, if the actor believes that the dispossessor has no
claim of right to the property.
3.

The code authorizes use of deadly force if D believes that V:

a)
Intends to dispossess D of his dwelling other than under a
claim-of-right possession
b)
Intents to commit arson, burglary, robbery or felonious theft
inside the dwelling and
a)
V has employed or threatened deadly force
against or in the presence of D OR
b)
The use of non-deadly force to prevent commission
of the crime would expose D or another to substantial
risk of serious bodily harm.

4.

Spring Guns

The justifiable use of force does not extend to any mechanical device that is
intended to use, or is known to create a significant risk of causing death or
serious bodily harm.

VII. Excuses
A.

Excuse Defined
An excuse defense is one that indicates that, although the actor committed
the elements of the offense, and although his actions were unjustified
wrongful the law does not blame him for his wrongful conduct.

B.

Justification v. Excuse

A justification defense tends to focus on the wrongfulness of an act or a

result; an excuse defense focuses on the actor.

C.

Duress
1.

Elements

Treats duress as an excuse.

The defense may be raised although the defendant did not commit the lesser
of two evils. Instead the defendant must show that:

pg.

a)
He committed an offense because he was coerced to do so by
another persons use, or threat to use, unlawful force against him or a
third party AND
b)
A person of reasonable firmness would have committed the
offense.
The defense is lost if the coerced actor put himself in a situation in which it
was probable that he would be subjected to duress.
If he was negligent in placing himself in the situation, the defense is
unavailable if he is prosecuted for an offense for which negligence is sufficient
to prove guilt.

2.

Coerced Homicide

There is no bar to use of the duress defense in murder prosecutions.

D.

Voluntary Intoxication
1.
Voluntary intoxication is a defense to any crime if it negates an
element of the offense
2.

Exceptions to the General Rule

If the defendant is charged with an offense for which recklessness suffices to

convict, she cannot avoid conviction by proving that, because of intoxication,
she was unaware of the riskiness of her conduct.
Even if the defendants actual culpability is that of negligence (she should
have been aware) she may be convicted of an offense requiring recklessness
(requires actual awareness), if the reason for her failure to perceive the risk is
her self-induced intoxication.

E.

When does Involuntary Intoxication Exculpate?

1.

Lack of Mens Rea

If the actor lacks the requisite mental state for which she was charged,
whether the offense is specific of general intent

2.

Temporary Insanity

A defendant will be exculpated on the ground of temporary insanity if, due

to involuntary intoxication rather than mental illness, she otherwise satisfies
the jurisdictions insanity test.

pg.

F.

Insanity
1.

Rule

A person is not responsible for her conduct if, at the time of the criminal act,
as a result of a mental disease or defect, she lacked the substantial capacity
either:
a)

To appreciate the criminality (or wrongfulness) of her actions

b)

To conform her conduct to the dictates of the law.

Total cognitive and volitional incapacity is not required.

The code uses the word appreciate.
The drafters chose not to decide between moral wrong and legal wrong.
A person who has a very strong, but not irresistible, desire to commit a crime,
including one who acts non-impulsively after considerable thought, can fall
within the language of the MPC.

G.

Diminished Capacity
1.

Mens Rea Version

A defendant should be acquitted of any offense for which he lacked the

requisite mens rea, including those cases in which he lacked the mental state
because of a mental disability, whether that disability is permanent or
temporary.

2.

Partial Responsibility

A homicide that would otherwise be murder is reduced to manslaughter if

the homicide was the result of extreme mental or emotional disturbance for
which there is reasonable explanation or excuse.
a)
The reasonable explanation or excuse is required to explain the
EEMD, not the homicide

VIII. Attempt
A.

General Principles
1.

Grading of Offense

The MPC generally treats inchoate offenses as offenses of the same degree,
and thus subject to the same punishment, as the target offense.

pg.

The exception is a felony of the first degree (an offense that carries a
maximum punishment of life imprisonment.) An attempt to commit such an
offense is a felony of the second degree.
a)

Merger

A criminal attempt merges into the target offense.

B.

Actus Reus
1.
One has gone far enough to constitute an attempt if the act or
omission constitutes a substantial step in the course of conduct
planned to culminate in the commission of the crime.
2.
The MPC looks to see how far the defendant has gone from the
point of initiation of the target offense.

C.

Mens Rea
1.

Rule

A person is not guilty of attempt unless he:

a)

Purposely engages in conduct that would constitute the crime

b)

Acts with the purpose of causing OR with the belief that it

will cause the criminal result OR

c)

Purposely does an act that constitutes a substantial step in

furtherance of the offense.

2.

Attendant Circumstances
a)

The purpose requirement for an attempt does not apply to

attendant circumstances.
b)
The actor need only be as culpable regarding an attendant
circumstance as is required for the target offense.

3.

Impossibility

The MPC has abandoned hybrid legal impossibility, but not pure legal
impossibility.

4.

Renunciation of Criminal Purpose or Abandonment (Only MPC)

A person is not guilty of a criminal attempt, even if her actions constitute a

substantial step in the commission of an offense, if:

pg.

10

a)

She abandons her effort to commit the crime or prevents it from

being committed
b)

Her conduct manifests a complete and voluntary renunciation

of her criminal purpose

IX.

Conspiracy
A.

General Principles
1.
A person is guilty of conspiracy with another person or persons
to commit a crime if that person:
a)
With the purpose of promoting or facilitating commission of the
crime,
b)
Agrees with such other person or persons that they or one or
more of them will engage in conduct that constitutes such crime or an
attempt or solicitation to commit such crime OR
c)
If that person agrees to aid the other person or persons in
commission of the offense or of an attempt or solicitation to commit
such crime

2.

Grading

A conspiracy to commit any offense other than a felony of the first degree is
graded the same as the crime that is the object of the conspiracy

3.

Merger

UNLIKE the common law, a conspirator may not be convicted of both

conspiracy and the target offense(s), unless the conspiracy involves a
continuing course of conduct.

B.

Actus Reus
1.

Overt Act

An overt act is required except for felonies of the first and second degree

2.

Nature of Agreement

In contrast to the common law, the object of the agreement must be a crime,
and not merely an unlawful act.

pg.

11

C.

Mens Rea
1.

A person is not guilty of conspiracy unless she acts with the

purpose of promoting or facilitating the commission of the conduct

that constitutes a crime.
2.

One who furnishes a service or instrumentality with mere

knowledge of anothers criminal activities is not guilty of conspiracy.

D.

Plurality Rule
1.

It takes two people to agree, but it takes only one person to be

guilty of conspiracy
E.

Parties in Agreement
1.
The MPC provides that if a person guilty of conspiracy knows
that the person with whom he has conspired has, in turn, conspired
with another person or persons to commit the same crime, the first
person is also guilty of conspiring with the other persons or person,
whether or not he knows their identity.

F.

Objectives of a Conspiracy
1.
There is only one conspiracy between parties, even if they have
multiple criminal objectives, as long as the multiple objectives are
part of the same agreement or of a continuous conspiratorial
relationship.

G.

Special Defenses
1.

Legislative Exemption

Permits a defense if enforcement of the conspiracy law would frustrate a

legislative intention to exempt that party from prosecution

2.

Renunciation (Abandonment)

A person is not guilty of conspiracy under the Code if he renounces his

criminal purpose, and then thwarts the success of the conspiracy under
circumstances manifesting a complete and voluntary renunciation of his
criminal purpose.

pg.

12

X.

Solicitation
A.

Definition

The Code definition of solicitation is broader than the common in that it applies to
solicitation to commit any misdemeanor (as well as felonies)

pg.

13

B.

Grading
1.
The MPC treats a solicitation to commit any offense other than a
felony of the first degree as an offense of equal grade as the target
offense.

C.

Merger
1.
The concept of merger applies; solicitation merges into the
completed offense

D.

Actus Reus
1.
When the actor communicates the words or performs the
physical act that constitutes the invitation, request, command or
encouragement of the other person to commit an offense.
2.

Unsuccessful Communication
a)
The Code provides that one who unsuccessfully attempts to
communicate a solicitation is guilty of solicitation

3.

Relationship
a)
A person is guilty of solicitation if she requests the other person
to some that would establish the person as an accomplice in the
offense

E.

Mens Rea
1.
A person is not guilty of solicitation unless she acts with the
purpose of promoting or facilitating the commission of the solicited
offense

F.

Defense: Renunciation
1.
The MPC but not common law provides a defense to the
crime of solicitation if the soliciting party:
a)

Completely and voluntarily renounces her criminal intent AND

b)

Persuades the solicited party not to commit the offense or

otherwise prevents her from committing the crime

XI.

Complicity
A.

Forms of Complicity-Liability
1.

Innocent-Instrumentality Doctrine

A person is guilty of an offense that she did not personally commit if, action
with the requisite mens rea, she causes an innocent or irresponsible person
to commit the crime

pg.

14

2.

Accomplice Liability

A person is guilty of an offense that she did not personally commit if she is
an accomplice of another person in the commission of the offense

3.

Pinkerton Doctrine

Not recognized under MPC

B.

What Makes a Person an Accomplice: Assistance

1.

Rule

To be an accomplice in the commission of an offense, the person must:

a)

Solicit the offense

b)

Aid, agree to aid, or attempt to aid in its commission OR

c)

Fail to make a proper effort to prevent commission of the

offense (assuming that she has a legal duty to act)

C.

Mens Rea
1.

Rule

To be an accomplice, the person must act with the purpose of promoting or

facilitating the commission of the offense.

2.

Exception

A person who is an accomplice in the commission of conduct that causes a

criminal result, is also an accomplice in the result thereof, if she has the
level of culpability regarding the result required in the definition of the
offense.

D.

If the Perpetrator is Acquitted

An accomplice in the commission of an offense may be convicted of that
offense, even if the alleged perpetrator has been convicted of a different
offense or degree of offense or has been acquitted.

E.

Special Defenses
1.

Legislative-Exemption Rule

The MPC applies this rule

2.

Inevitable Incidence

An accomplice is not guilty of an offense if her conduct is an inevitable

incident to the commission of the offense

pg.

15

3.

Abandonment

A person is not an accomplice in the commission of a crime if she terminates

her participation before the crime is committed, and if she either neutralizes
her assistance, gives timely warning to the police of the impending offense,
or in some other manner prevents commission of the crime

F.

Relationship of Accomplice Liability to Criminal Attempts

The Code permits an accomplice to be convicted of a criminal attempt, if she

attempts to aid in commission of an offense, although the other person
does not commit or even attempt the offense.

XII. Criminal Homicide

A.

Overview
The MPC provides that a person is guilty of criminal homicide if she takes
the life of another human being purposely, knowingly, recklessly, or
negligently.
The Code divides criminal homicide into three offenses: murder,
manslaughter, and negligent homicide.

B.

Murder
1.

Rule

In general, homicide constitutes murder if the killing is committed:

a)

Purposely

b)

Knowingly OR

c)

Recklessly under circumstances manifesting an extreme

indifference to the value of human life

2.

Common Law versus MPC

a)

Types of murder

The common law term malice aforethought is abandoned

b)

Intent to kill

Recognized by the MPC

A criminal homicide is murder if the killing is committed purposely or
knowingly (Intentionally)
c)

Intent to Commit Grievous Bodily Harm

Virtually any case here would fall under the MPC extreme
recklessness umbrella

pg.

16

d)

Depraved Heart

MPC requires proof of advertent risk-taking, and that the risk-taking

be substantial and unjustifiable
e)

Felony-Murder

The Code abandons the felony-murder rule.

Reckless indifference to human life may be presumed if the person
causes the death during commission of one of the felonies enumerated
in the Code (robbery, arson, burglary, kidnapping, felonious escape, or
rape or deviate sexual intercourse by force or threat of force)
**rebuttable presumption**

C.

Manslaughter

Criminal homicide constitutes manslaughter in two circumstances

1.

Recklessness

A homicide committed recklessly constitutes manslaughter

The conduct, although reckless, does not manifest an extreme indifference to
human life

2.

Extreme Mental or Emotional Disturbance

The Code provides that a murder constitutes manslaughter if the actor kills
under the influence of an extreme mental or emotional disturbance, for
which there is a reasonable explanation or excuse
a)

Rigidity/Narrowness of Common Law Rejected

The MPC permits the jury, if it chooses to do so, to reduce the offense
to manslaughter without considering the rigid common law categories
of adequate provocation
Words Alone can qualify
The defense applies, even if there is no provocation at all, as long
as the jury concludes that there is a reasonable explanation or excuse
for the actors EMED
No reasonable cooling off requirement
b)

Subjectivity and Objectivity

The Code provides that the reasonableness of the defendants

explanation or excuse for the EMED should be determined from the

pg.

17

perspective of a person in the actors situation under the

circumstances as he believes them to be.
This allows for considerable subjectivication of the objective standard

D.

Negligent Homicide
A criminally negligent killing involuntary manslaughter at common law
is the less offense of negligent homicide under the Code

XIII. Rape
A.

Forcible Rape
1.

Definition

A male who has sexual intercourse with a female not his wife is guilty if
he compels her to submit by force or by threat of imminent death, serious
bodily injury, extreme pain or kidnapping, to be inflicted on anyone.
The code is gender-specific and recognizes the marital immunity rule
Sexual intercourse includes oral and anal sexual relations as well as vaginal

2.

Drafters Intent

Compels used to focus on the alleged perpetrators actions his acts of

compulsion and not on how the alleged victim responded
The MPC does not include a resistance requirement

3.

Grading Rape

The Code grades rape as a felony of the second degree except when:
a)
The male actually inflicts serious bodily injury upon
anyone during the course of the rape OR
b)
The female was not a voluntary social companion
of the actor upon the occasion of the crime and had not
previously permitted him sexual liberties. (Stranger
Rape)

B.

Other Forms of Rape

Prohibits non-forcible sexual intercourse by a male with a female not his

wife in other circumstances:

pg.

18

1.

If he substantially impaired her power to appraise or control

her conduct by administering or employing without her knowledge

drugs, intoxicants, or other means for the purpose of preventing
resistance

C.

2.

If she was unconscious at the time of the intercourse

3.

If she is under ten years of age; reasonable belief is no defense

Gross Sexual Imposition

New offense, less serious than rape, to deal with three circumstances in
which a male secures intercourse with a female not his wife:

1.

If he compels her to submit by any threat that would prevent

resistance by a woman of ordinary resolution (less serious bodily

threats and non-bodily threats)
2.

If he knows that she suffers from mental disease which renders

here incapable of appraising the nature of her conduct

3.

If he knows that she is unaware that a sexual act is being

committed upon her or that she submits because she mistakenly

supposed that he is her husband (Fraud in the Factum)

pg.

19