Introduction and basic concepts



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Josh Kaplan Fall 2004

Prof. Jacobs Crim Outline




Part I - Culpability


  1. Introduction and basic concepts

    1. Criminal Law  Body of law that protects by defining crime and setting standards of responsibility – protects offenders/accused from the state (“sword and a shield”)

      1. Passed by legislature, Signed by executive, Investigated and enforced by police and prosecutors

      2. Distinct from Civil law in its punitive characteristics






    1. Criminal Law is Statutory based on written law. More about creating statutes, interpreting and applying (courts much less important than in other areas). No Common Law of Crimes

    2. 2 subdivisions

      1. General – general rules for liability or “meta-rules,” e.g. mens rae, actus raeus, statutory interpretation

      2. Specific – individual crimes e.g. rape, homicide, theft




    1. Model Penal Code (MPC)

      1. Part I General

        1. Article 1 – preliminary: background, purpose of code, etc.

        2. Gen Principles – core of the course (2.02 is important))

        3. Justification – general, shifts to defendant’s side incl. justifications (real exceptions to criminal law in which conduct may even be correct, e.g. self-defense)

        4. Excuses: wrong committed, but there is some individual reason why the person is not culpable (e.g. insanity, young, etc.)

        5. Incohate Crimes – before they come into fruition e.g. attempts, conspiracy, solicitation

        6. Punishment – how to treat those found guilty of crimes. MPC limits punishment in three ways:

          1. culpability: the MPC safeguards conduct that is without fault from condemnation as criminal

          2. proportionality: the MPC differentiates on reasonable grounds between serious and minor offenses
          3. legality: the MPC gives fair warning (notice) of the nature of the conduct declared to constitute an offense





      1. Part II – Specific crimes – we covered:

        1. murder

        2. conspiracy

        3. RICOH (w/ conspiracy)

        4. rape

        5. theft

    1. Meta-concepts

      1. Blameworthiness – Is the individual blameworthy for their conduct? When is it appropriate to blame someone for their conduct? Answer must be yes. Is it based on intention (reasonable action, negligent action, etc.) or result? We are exploring the meaning of blame and what is blameworthy enough to be prosecuted.

      2. Responsibility – Who is responsibility – perpetrator, one who aides? How broad is the net of responsibility? What constitutes enough to help to put you in the circle (getaway car, finding the victim, etc.)? What someone who fails to prevent a crime by intervening or summoning help?

      3. Group Criminality – Is it a distinctive species of conduct? Are all members of the gang equally liable?

      4. Justifications and Excuses – What is proper justification? Save a person from harm, protect property, prevent a greater evil, civil disobedience? Excuses for: youth, mental disease, poverty, duress,

      5. Punishment – how to treat those convicted? Do we punish the offense or the offender? What is the difference? How much to punish, how much to differentiate. How much differentiation should be in law of crimes, and how much in law of sentencing?



  1. MPC § 1.02 the Principles of Construction

    1. 1.02 (1) purposes

      1. a) (prevent conduct that unjustifiably and inexcusably inflicts or threatens substantial harms,

      2. (b)control persons likely to commit crimes

      3. (c) safeguard conduct that is free from faultlaw is a shield to protect the innocent – clarifies what you can’t do

      4. (1d) law gives fair warning – people should know and have access to rules so gov’t can’t come down arbitrarily punish

      5. (e) – differentiate crimes for commensurate sentencing (in sentencing everybody is “in” circle of criminal violations




    1. 1.02(2) purposes of sentencing provisions include: (a) deterrence, (b) rehabilitation, (c) prevent excessive punishment, (d) Give wanrning of punishment, (e) differentiation of individualize punishment, (f) define functions of courts and agencies in dealing w/ offenders, (g)advance use of scientific methods and knowledge of sentencing, (h) integrate responsibility into single agency (i.e. State Dept. of corrections)

    2. 1.02(3) ambiguity shall be interpreted to further the general purpose stated in this Section and the special purposes of the particular provision.



I.Mens Rea/Blameworthinesa

II.Blameworthiness: an unwarrantable act without mens rea is no crime at all.

iii.mens rea is a “general immorality of motive,” a “vicious will,” or an “evil-meaning mind” (moral blameworthiness). This common-law definition does not require any particular mental state

iv.The narrow meaning (and Jacobs’ use of the word) is simply the “particular mental state provided for in the definition of an offense,” the mental state required by the definition of the offense to accompany the act that produces or threatens harm.


      1. Elements of culpability: the  must have acted with mental intent with respect to each material element of the offense: (1) conduct, (2) circumstance, (3) result




    1. §2.02(1) There must be mens rea for each element of the offense

    2. §2.02(2) – the Four types of mental states (according to §2.02(5) these are a hierarchy, each state implies the presence of the lower)

      1. PURPOSEFULLY - conscious object is to engage in conduct or cause result OR aware of circumstances or believes or hopes they exist

        1. Case of purpose with inability to act: US v. Neiswender: , for a fee, offered to corrupt a juror, but he was wrong and actually had no influence and couldn’t corrupt anyone, further he told attorney to work hard. He was convicted because he had the mens rea, the intention, to obstruct justice (by merely offering his services he could have affected the outcome of the case).




      1. KNOWLINGLY: awareness of nature of conduct or circumstances AND aware of result that is practically certain

        1. § 2.02 (7) – Knowledge = awareness of a high probability of its existence, unless actually believes that it does no exist

        2. See U.S. v. Jewell willful blindness;  convicted for smuggling marijuana. If a person is ignorant as a result of a conscious purpose to avoid learning truth he can still be guilty of knowingly committing offense. His avoidance of the truth need not be active,  could be culpable for a failure to take simple, obvious steps to confirm or dispel his suspicions.




      1. RECKLESSLY – consciously disregards substantial and unjustifiable risk; gross deviation from standard conduct of a law-abiding person [** standard popularized by MPC - Could this standard apply to Rebina v Cunningham below]




      1. NEGLIGENTLY – should be aware of substantial and unjustifiable risk; gross deviation from standard conduct in actor’s situation (emphasis added - last three words are subjective  could mean ntelligence? Hearing? Eyesight?).

NOTE: Negligence is not an active mental state. What does it mean should have known (objective vs. subjective standard – are individual shortcomings enough)?


    1. §2.02(3) – Default minimum culpability is recklessly – negligence only when specified

    2. §2.02(4) – must establish culpability for every material element of the offense

    3. §2.02(6) about conditional intent has unintelligible language. It was meant to make crimes like car-jacking punishable.

      1. See U.S. v. Woodward – car-jacking case in which court upholds and applies statute – SCALIA dissents

    4. §2.02(8) – requirement of willfulness satisfied by acting knowingly

    5. §2.02(9) – mistake of law is NOT a defense




    1. Some important cases

      1. Regina v. Cuningham: the gas leak case,  did not intend to asphyxiate neighbor, but when he took the gas meter off the wall, it released gas into the house. This conviction was quashed on appeal for an overly broad instruction.  was behaving negligently or perhaps even recklessly here.

      2. Regina v. Faulkner:  lit a match in the hold of a ship to see while he stole rum, ended up burning down the ship. Same issues as above – did not intend to burn the ship. Again, MPC would treat this as recklessness.




    1. Felony-murder and transferred intent

      1. Three paths to murder

        1. Willful and pre-meditated

        2. Extreme recklessness

        3. felony-murder

      2. Case Regina v. Serne:  started a fire to burn down house and collect insurance money. Convicted because “malice afterthought” interpreted as being present from lighting the fire.

      3. MPC § 210.2(b) recklessness and indifference to human life are presumed if actor is engaged in or accomplice or fleeig from robbery, rape, arson, burglary, kidnapping or felonious escape.

        1. not limited to those deaths that are foreseeable or natural and probable results, as long as the homicide is a direct causal result of the felony. Even if the victim would die soon, it is still murder if the victim’s life is shortened at all

        2. Must be both the “but for” cause and the “proximate” cause

        3. Objection: punishes a crime when there is no mens rea. The answer is to limit this to dangerous felonies.

      4. §1.12 (5) – establishes rule of presumption (****permissive presumption, NOT conclusive presumption***)

        1. issues of existence of presumed fact must be submitted to jury

        2. Court must charge jury that while fact must be proven beyond reasonable fact – jury may regard facts giving rise to presumption as evidence of presumed fact.

        3. Engaging in violent felony allows jury to find that person acts with reckless regard for life, but they do not have to convict.

      5. Unlawful Act Doctrine: a misdemeanor resulting in a death can provide a basis for an involuntary manslaughter conviction without proof of recklessness or negligence.




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