Homicide - MPC

Actus Reus causing the death of another human being (easy to determine, apply to all homicide crimes)

Murder (210)
Actus Reus See (1)
Voluntary act

o Time frame: as long as a voluntary act causes the harm

Omission: voluntary omission and D must have a legal duty to act

o Statue? Status relationship? Contractual? Undertaking? D created the risk?

Omission v. Act: life support

Mens Rea
Purpose? Conscious object that the person will die (subjective)

Knowledge? Knowledge that the person will die needs to be practically certain (subjective)

Recklessness + (2.02(2)(c)): under circumstances manifesting extreme indifference to human life?

o Was it reckless plus? (substantial and unjustifiable risk)

Probability + magnitude of harm

Unjustifiability of risk - if non existent, chance is much higher

Requires actual awareness of risk - dangerous conduct leads to a presumption of awareness of risk
(e.g. pointing a deadly weapon
o If reckless plus, was it manifesting extreme indifference to human life? (objective) Gross deviation from the
standard of conduct that a law-abiding citizen would observe
o Consciously disregard of the unjustifiable risk? (subjective)

Presumption of Extreme Recklessness? [Felony Murder]

o Under 210.2(1)(b): enumerated offenses that allow a presumption
o Presumed Felonies: robbery, rape, arson, burglary, kidnapping, or felonious escape
Conclusion- guilty of murder because X mens rea. If not X mens rea, he is guilty because he has Y mens rea.

Manslaughter (210.3(b))
Actus Reus- See (1)
Mens Rea:
Reckless? (substantial and unjustifiable risk)

o Conscious disregard of an unjustifiable risk (of anything bad, doesnt have to be death)
o gross deviation from the standard of conduct that a law-abiding citizen would observe
Homicide that would otherwise be murder but committed under EED

o Reasonableness determined from view of person in actors situation by a preponderance of evidence

o Jury decides if a reasonable person under the Ds situation would have acted that way???

Negligent Homicide (210.4)

Actus Reus See (1)

Mens Rea
o Negligent?

Substantial and unjustifiable risk?

Would a reasonable person have acted differently in the same situation?

Homicide Common Law

Actus Reus: The actus reus for all homicide offenses is causing the death of a human being.

Murder

Actus reus: See (1)

Mens Rea (malice aforethought)
Purpose to cause death (Intent)

o Clear purpose?
o Can you infer purpose?

Reasonable people intend the natural and probable consequences of their actions

Did the Ds conduct show a strong motive or intention to kill [use facts]

Did he go straight to victim? Have a deadly weapon? Planning?

o Conditional purpose? Still intent
Knowledge that conduct will cause (Intent)

o Practically certain that result will occur

Recklessness manifesting indifference to the value of human life (Depraved Heart)

o Recklessness requires awareness of a substantial and unjustifiable risk of death

o Common Sense Balancing of Factors:

Degree of risk: Probability + magnitude of harm (do we know?)

Unjustifiability of risk if non existent, chance is much higher

Must have awareness of risk of death dangerous conduct can lead to a presumption of awareness
of risk (e.g. pointing a deadly weapon)

This is SUBJECTIVE what did the defendant actually believe??

Use facts to show likely aware

Compare to driving drunk very fast, Russian roulette, gun in crowed room
Death during the commission of a felony - mens rea to commit a felony (Felony-murder)
o Is there FM in this jurisdiction?

Michigan-like jurisdictions says felony murder is not apart of malice aforethought

MA is best understood not to include felony murder given that the culpability required for
felony murder is not of the extremely serious kind that should be required for murder.

FM is too much like generalized mens rea

If the enumeration statue says, murder in the commission of it makes it seem like there
needs to be mens rea of murder

CA- like jurisdictions interpret felony murder to be apart of malice aforethought

Evidence of legislative intent can be show when there is enumeration of felonies that
bump the act to first degree murder

History of felony murder in the jurisdiction is important

If statue doesnt prohibit felony murder legislative intent would seem to be that it meant to
keep FM
o Was there a felony being committed?

Did D intend to commit the felon?

Interpret the statues mens rea

Natural way: mens rea applies to all listed elements

Grammatical: location could mean different

If it is a mallum prohibtum, likely strict liability

o But-for and proximately caused the death?

The result must be fairly attributable to the defendant's action, rather than to mere coincidence or to
the intervening action of another (King)

Egg-shell rule: take your victim as he comes the fact that the death would not have occurred were
it not for the victims being especially vulnerable does not prevent felonious conduct from being the
proximate cause of death

Inherently Dangerous?

Abstract jurisdiction? (majority) [judge decided] hard to fulfill

Ignore the facts of the specific case and, instead, consider the elements of the offense in
the abstract look at the offense as it is defined by statue, to determine if inherently
dangerous

*any* way to commit the felony as defined in the statute that doesnt create risk of
death

Enumerated offense suggests inherently dangerous

Child abuse no inherently dangerous because could be breaking arm only

As Applied jurisdiction? [judge or jury decided] likely fulfilled

Whether the felony was dangerous to life in the manner actually committed by D

E.g. does telling a terminally ill person not to use there medicine inherently dangerous?
YES
Merge?

Cant be any form of assault

Are the elements of the felony included in those of murder? Likely not

Is there an independent felonious purpose? Likely

Was the death in furtherance of the felony?

Fleeing from scene

Helping make the felony go more smoothly

Death caused by non felon?

Agency jurisdiction?

Only killings committed by co-felon or agent

Exception: shield cases

Proximate cause jurisdiction?

Was the death a but-for cause of the felony

o Enumerated? See degrees
Degree of Murder jurisdiction?
1st degree [see statue]

o 1. Malice aforethought murder?

o 2. willful, deliberate, and premeditated ?

No time is too short for a wicked man to frame in his mind the scheme for murder

Some appreciable time needs to a lapse Anderson Test:

(1) Planning activity, (2) motive, (3) manner of killing

strong evidence of (1)? Evidence of 2 +1/3? Evidence of any?

o 2. Committed in a statutorily defined manner? (e.g. lying in wait, poison, etc.)
o 2. During the commission of an enumerated felony?
2nd degree

o All murders that are not first degree

Voluntary Manslaughter (mitigated down benefits the D where the actus reus is clear)
Actus Reus: see (1)
Mens Rea: Intent to kill with legally adequate provocation
Elements

o Legally adequate provocation (objective)

Traditional categorical jurisdiction?

(1) Aggravated assault or battery, (2) mutual combat, (3) commission of a serious crime
against a close relative of the D (4) illegal arrest, or (5) observation of spousal adultery

Modern common law jurisdiction? (minority)

Is the unlawful provocation such that it is calculated to inflame the passion of a

reasonable [person] and tend to cause [that person] to act for the moment from passion
rather than reason
No time to cool off: significant lapse of time renders defense inadequate

Was it earlier in the day? Prior suspicion confirmed?

Could time waiting aggravate the anger more?

In the heat of passion (subjective): Actor must be in a state of passion at the moment of the homicide
D acted in response to the provocation: Casual link, cant be some other reason tied into the provocation

o
o

Involuntary Manslaughter

Actus Reus: see (1)

Proximately caused?
Mens Rea: No clear distinction between recklessness and criminal negligence
Viewed through the reasonable person, should the D have noticed the risk

Factors: Gross deviation from standard of care of a reasonable person

o Magnitude of the risk: probability and magnitude of harm (Substantial?)

o Unjustifiability of risk
o Awareness of risk (doesnt have to be aware, should have been aware)

Misdemeanor-Manslaughter

Actus Reus: See (1)

Mens Rea: A misdemeanor resulting in death can provide a basis for an involuntary manslaughter conviction without proof of

recklessness or negligence
Requires proximate cause

Attempts

Attempt: Common Law

ATTEMPT IN 1ST/2ND DEGREE??

Identify target crime

Mens rea:
Majority: specific intent

Minority: (CO): parity

Actus reus
Complete attempt? Defenses

o Pure legal impossibility: when the law does not proscribe a crime for Ds goal/act
o Factual impossibility: When the attempt is complete but the result/conduct is missing [no defense]

E.g. if all the circumstances are proper but the result (death) does not occur
o Legal impossibility: When the attempt is completed but there is a circumstance missing [defense]

E.g. she is 19 (attendant circumstances of being under 18 not there

The property is not stolen (attendant circumstance of being stolen is not there)
Incomplete attempt?

o Proximity test: acts must be proximate and near to the consummation of the crime

Need to be in dangerous proximity to success or when an act is so near the result that the danger of
success is great

Rizzo: no attempt looking around for victim no victim, no proximity to completion

o Equivocality test: An attempt occurs when a persons conduct, standing alone, unambiguously manifests the
defendants criminal intent

Barker: buying a box of matches only guilty when D lights one and blows it out because someone
is watching

Legal

Factual

Goods falsely believes are stolen

Picks an empty pocket

Solicits false testimony that is irrelevant

Shoots into the victims bed which is

Contracts debt that is unauthorized and invalid

Shoots stuffed deer, believing it is real out of

season

Letters out of prison, warden knows

Bribe a he person believes is a juror but is not

Tries to vote, believing not yet 21

empty

Points gun and pulls trigger, not loaded

Sex with dead person, believes no

consent

Tries to perform abortion, not pregnant

Attempt: MPC
Identify target crime
Actus Reus:
Incomplete attempt? apply (1)(c)

o 5.01(2): A substantial step that is strongly corroborative of the actors criminal purpose
o 5.01(2)(a)-(g): enumerated conduct must go to jury
Complete attempt? (1)(a)-(b)

o Must do anything with the believe (or purpose) that it will cause Vs death
o Defenses

No impossibility defense: acting with the kind of culpability required for commission of the crime

Factual impossibility: not a defense

Unless Pure Legal Impossibility: although not expressly provided, is still a defense

Abandonment (renunciation) Defense:

5.01(4): abandons his effort to commit the crime or prevents it from being committed
AND his conduct manifests a complete and voluntary renunciation of his criminal
purpose

complete: cant stop because too risky or shift focus after taking a substantial
step
Not voluntary if saw a police officer or convinced by rape victim to stop

Inherently Unlikely Attempts: 5.05(2): judge can decided to dismiss or lower sentence if the
actors conduct was so inherently unlikely to result in a crime that neither he nor his conduct
represented a danger to society
5.01(3): Aid to attempt

Mens Rea: 5.01(1): 2 mens reas

1. acting with the kind of culpability otherwise required for commission of the crime (if common law=malice

aforethought)
2. Result crime? (1)(b)

o Complete: purpose or belief

o Incomplete: purpose (unclear)
Conduct crime? 1(b)

o Complete: purpose
o Incomplete: purpose (unclear)
Circumstance elements: parity

Complicity: Common Law

Identify principals conduct
Mens rea:
Principals conduct: purpose to aid or encourage AKA specific intent to further the criminal action of the principal

Then if you want to help the principal succeed, you need to following mens rea for his actions

Results: parity: mens rea of the underlying offense

o
o
o

E.g. shipmates criminally negligent captain is criminally negligent too

Minority: purpose for results
Reckless/negligent

Purpose for conduct, parity for result (negligence, reckless, knowledge)

Conduct: purpose

o E.g. purposely told shipmates to do what they did then negligent result happened
o Includes being a fellow drag racer because you have purpose to elect the conduct
Circumstances

o Strict liability: awareness/ knowledge

o Otherwise: parity or purpose
Exception: Natural and probable consequences: D is liable for any reasonably foreseeable offense committed by the

person aided or abetted

o Negligence standard for the underlying offense because D could only be negligent the offense was going to
occur
Actus reus: Actually aid or agree to aid in planning or commission
Physical conduct?

Incite, solicit, or encourage?

Omission? (assuming D has a duty to act)

Amount of assistance

o Assistance must in fact assist in the commission of the offense

o Guilty of attempt if crime is committed but no liability if not attempted
o S is not an accomplice of P if he performs an act to assist P, but his conduct is wholly ineffectual
o Once it is determined that S assisted P, the degree of aid or influence provided is immaterial

Causation: S is guilty of an offense as an accomplice even if, but for his assistance, P would have committed the offense
anyway
o Doesnt matter if the help is really small or would have happened anyways

Complicity MPC

Identify principals conduct

Mens rea:
Conduct: 2.06(3)(a): a person is an accomplice of he assists with the purpose of promoting or facilitating the

commission of the offense

o If S, a merchant, sells dynamite to P, with knowledge that P intends to use the explosives to blow open a safe,
S is not an accomplice in the subsequent crime, unless it was his conscious object to facilitate the commission
of the offense
Result: 2.06(4): when causing a particular result is an element of a crime, a person is an accomplice in the commission

of the offense if
o he was an accomplice in the conduct that caused the result and
o Parity: he acted with the culpability, if any, regarding the result that is sufficient for commission of the offense

MA murder only requires knowledge to the result of death

o Recklessness/negligence result crimes

1. Determine Ps potential responsibility

2. Ask whether S was an accomplice in the conduct that cause the result (rather than asking the
ordinary question of whether S was an accomplice in the commission of the charged offense)

3. Ask whether S acted with the culpability in regard to the result that is sufficient for sommission of
the offense
Circumstances: left to interpretation (actor must have purpose with respect to the proscribed conduct, with his attitude

towards the circumstances to be left to resolution by the courts)

Natural-probable-consequences: no common law doctrine

o e.g. suppose that S aids P In the commission of a bank robbery by furnishing P with the details of the bank
securitys system. Later, P steals an automobile, which he uses as his getaway car in the robbery. Although S is
an accomplice of P in the commission of the robbery (he aided P with the purpose of promoting that offense)
he is not an accomplice in the commission of the theft: although the theft may have been a foreseeable
consequence of the offense in which he was an accomplice, he did not purposely aid in the car theft
Actus Reus:
2.06(1): Under the MPC, a person is guilty of an offense if he commits it by his own conduct or by the conduct of

another person for which he is legally accountable, or both

a person can be convicted of an offense if he personally commits the crime, or if his relationship to the person
who commits it is one for which he is legally accountable
o 2.06 only covers when the principal actor actually commits an offense (completed offense or attempted
offense)
o 5.01(3) deals with when there is attempt (no substantial step)
Nature of Accomplice: S is an accomplice of P in the commission of an offense if, with the requisite mens rea, he (1)
Solicits P to commit the offense; (2) aids, agrees to aid, or attempts to aid P in the planning or commission of the
offense; or (3) has a legal duty to prevent the commission of the offense, but makes no effort to do so
o Solicitation: 2.06(3): 5.02(2) provides that solicitation is established even if the actor fails to communicate
with the person he solicits to commit the crime
o Aiding:
o Agreeing to aid: S is an accomplice of P if he agrees to aid P in the planning or commission of an offense. This
requirement is met: e.g. if S tells P that he will help to plan the commission of the offense, or if he agrees to
provide P with an instrumentality for the commission of the crime, even if S does not fulfill his promise.
o *Attempting to aid: S may be liable as an accomplice of P in the commission of an offense if he attempts to
aid in the planning or commission of the crime, even if his aid proves ineffectual.
o Relationship between 2.06 (complicity) and 5.01 (criminal attempt)

This applies when the principal does not make an attempt

E.g. S provides P a gun in order to assist p in the commission of a robbery . If P performs the
robbery, S is guilty as an accomplice of P in its commission

Similarly is P, in the amidst of the robbery, is arrested before he can complete it, P is guilty of
attempted robbery under the Codes attempt provision. In turn, S would be guilty of attempt under
the Codes complicity statute

However, if P is arrested before he takes a substantial step in a course of conduct intended to result
in the robbery. Under these circumstances, P is not guilty of attempted robbery. In this case S is not
accountable under the complicity statue, because the person from whom he would derive his liability
committed no crime.

Nonetheless, S is guilty of criminal attempt by his own conduct (e.g. not through the doctrine of
complicity), by application of MPC 5.01(3), which provides that a person who engages in conduct
designed the aid in the commission of an offense that would establish complicit under section 2.06
if the crime were committed by such other persons, is guilty of an attempt.although the crime is
not committed or attempted by such other person

Ironic: S is guilty of attempted robbery; P, the primary participant, is not guilty of attempt

Hypos
Hicks deliberately encourages but Rowe is deaf (TL: no actus reus; MPC: guilty)

Hicks part of group of 100 cheering (no need to be but-for cause, TL/MPC: guilty)

Hazelwood Operator ignored but unable to deliver (TL: no actus reus; MPC: guilty)

Operator complied, pursuers didnt succeed (TL: no crime; MPC: attempt? guilty)

Pursuers caught up but resisted by Ross (TL: guilty; MPC: guilty)

Brother knew telegraph was sent, operator ignored (TL: actus reus satisfied)