12/01/2014

Elements of Criminal Conduct

Sources of Criminal Law
Common Law: almost never followed anymore but is still important
Statutory interpretation (uses common law)
o Absent a definition to the contrary, it usually believed that the use of a common law
term in a statue retains it meaning
o Common law can also fill gaps in statutes
MPC
o When adopted by a state it is binding
o Otherwise it is persuasive
*Usable on the exam as persuasive
Types of elements: 1.13(9): an element of an offense means such conduct or such attendant
circumstance or such result of conduct
o Conduct: what D does or how D acts
E.g. enters, restrains, takes, makes
o Circumstances: background facts,, context, state of affairs static facts
A dwelling, belonging to another, at night, under 18, not open to public
o Results: effects of what D does
Causes death, causes bodily injury, brings about
Usually more about an end result that can be gotten there in multiple
ways
Uses common sense

Types of crime:
o Malum in se: crime that is bad and of itself (morally wrong)
o Malum prohitum: crime that is bad because it is prohibited
Presumption
Nature of Presumption
o Sometimes it is hard to prove an element of a crime
o Context will determine whether this is good enough to presume the element
o Presumptions says: whenever X fact(s) are proven, a factfinder must (or may),
presume Y
Y is usually an element of the crime charged
E.g. intent to kill
Only evidence is that the D picked up a loaded gun, pointed it in Vs
direction, and fired it.
Where this evidence is found the jury may find intent
o may find = permissive presumption
it is really an inference not a rule that formally shifts the burden of proff
an inference is rational if, and only if, the presumed fact (Y) more than likely
than not flows from the basic fact
o MPC
Allows permissive
If any evidence of the basic fact is presented at trial, the issue of the esistence
of the presumed fact i.e., the element of the crime must be submitted to
the jury unless the presumption is so lacking in foundation that the D is
entitled to a direct verdict on the matter
Requires the judge to instruct the jury that the element at issue must still be
proved by the prosectuoin beyond a reasonable doubt, but that the law
permits it to regard the basic facts as sufficient evidence of the presumed fact
Actus Reus (Conduct)
The actus reus of an offense consists of (1) a voluntary act, (2) that causes, (3) social harm

Why we dont Punish Thoughts

o Actus reus is premised on the belief that it is morally wrong to punish people for
unacted-upon intentions
o Violate living in a free society
Voluntary Act
o General rule: generally, a person is not guilty of a crime unless her conduct includes a
voluntary act
Few criminal statues expressly provide for this requirement, but it is there as
an implicit element
Common law proof: See Martin v. State: D was charged with
violation of an offense that provided that any person who, while
intoxicated or drunk, appears in any public place.and manifests a
drunken condition [shall be convicted of an offense]; the court
interpreted the word appears to presuppose a voluntary appearance
in public, which was not proven at Ds trial
Case doesnt use the voluntary act doctrine to dismiss the
case because there was an act??
o The Act
an Act is simply, a bodily movement, a muscular contraction
pulls a trigger, raiser an arm, blinks her eyes, turns ignition key,
walks
An act involves physical, although not always visible behavior
Talking
Excludes the internal mental processes of thinking about, or of developing an
intention to do a physical act (e.g. mental acts)
Aspects
Bodily movement may not count
If someone takes your arm and swings at someone else you
have not acted
Here the persons arm was propelled by another
Does not apply to the results of a persons bodily movements
E.g. setting a bomb and it going off an killing people
Killing people is not part of the act, just the setting of the
bomb

That is part of the social harm

Some think that the act must be voluntary
Most disagree with this see below (MPC)
Voluntary
Movement of the body which follow out volition (will)
A voluntary act involve the use of the human mind; an
involuntary act involves use of the human brain, without the
aid of the mind
You (no matter what your mind frame was) told you body to
do what happened????/
includes most movements so it is easier to define what is
involuntary
Involuntary acts
reflexive actions, spasms, epileptic seizures, bodily
movement while the actor is unconscious or asleep
when someone has a seizure, we assume that there body hot
someone, not their mind
Habitual acts: Just because someone isnt sure that they are doing
something does not mean the act is not voluntary
E.g. a chain smoker may light a cigarette without noticing
Here he dont notice that we notice ourselves , we are aware
of everything but ourselves
Law treats habitual acts as falling on the voluntary side of
the continuum
Hypnotism: not usually seen as voluntary
Right on the line
See People v. Netwon:
After stopping car and trying to arrest D, gun fight. D was
unconscious or semi-conscious even later at hospital
Convicted of voluntary manslaughter, no unconsciousness
instructions
Unconsciousness is complete defense.

Reasonable jury could have inferred D was

unconscious
Unconscious: still aware, able to grab gun and shoot, shock
reflexes, etc.
See Cogdon, p. 212 (somnambulism)
Axed daughter while asleep to protect from Korean war
Rule: acts committed while sleepwalking are involuntary
Time- Framing
The P does not have to show that every act was voluntary (or even
the last act), it only needs to show that the defendant;s conduct
include a voluntary act
Brings the question of how long back do you have to go to find the
voluntary act, because people have obviously committed voluntary
acts before
E.g. if you kill someone while sleeping, you committed the
voluntary act of brushing your teeth
In this manner the time-frame can be manipulated by courts
by constructing broad or narrow acts
Rule to avoid broad/narrow: A person is not guilty of an offense
unless her conduct, which include a voluntary act, and which must
be accompanied by a culpable state of mind (the mens rea of the
offense), is the actual and proximate cause of the social harm, as
proscribed by the offense.
Focuses on the relevant conduct
See People v. Decina, p. 214
o D knew he was epileptic, consciously chose to drive
o Charged with operation of a vehicle resulting in
death
o Rule: acts committed during epileptic seizure are
involuntary
o Rule: if D knows he suffers from epilepsy,
consciously chooses to disregard potential
consequences acted voluntarily
o Key: how broad or narrow is the time frame?
Crimes of possession
inchoate crimes because they are incomplete there real purpose
is to provide the police with the basis for arresting those whom they
suspect will later commit a socially injurious crime
the voluntary act is knowingly receiving or procuring the property or
that he failed to dispossess himself of the object after he became
aware of its presence
o

Voluntary Act: MPC

2.01(1): Need a voluntary act or the omission to perform an act of
which he is physically capable
1.13(2): Act- bodily movement whether voluntary or
involuntary
does not define voluntary acts, but does enumerate bodily
movements that are involuntary
2.01(2)(d): reflexes, convulsions, conduct during
unconsciousness, sleep, or due to hypnosis, and generally an
conduct that is not a product of the effort of determination
of the actor, either conscious or habitual.
~ 2.01(4): possession is an act if the possessor either
knowingly obtained the object possess or knew she was in
control of it for a sufficient period of time to have been able
to terminatepossession
o See Bradshaw: -commercial truck driver crosses
Canadian border into Washington with 77 lbs of
marijuana; No evidence that the trucker was aware
that the drugs were hidden in his truck; Washington
Supreme Court upheld conviction for possession of
illegal drugs rejecting argument that awareness is
inherent in concept of possessing an item
o States differ
o Omission or act? section
Exception
2.05(1): The act requirement does NOT apply to
violations (offenses for which the maximum penalty is a
fine or civil penalty.
E.g. if you fall asleep while driving and run a stop sign, it
does not matter
Concedes that the fairness in this is lacking, but they
determined that litigating the involuntary-act claims would
undermine effective law enforcement

Omissions
o Subject to a few limited exceptions, a person has no criminal law duty to act to
prevent harm to another even if he can do so at no risk to himself, and even if the
person imperiled may lose her life in the absence of assistance
Criminal law distinguishes between an act that affirmatively causes harm,
and the failure of a bystander to take measures to prevent harm.
Criticisms: morally repugnant, lacks social cohesion
Rationale: problem with drawing the line how many people should be
convicted (would allow the police a lot of discursion.
Problems proving mens rea cant infer peoples intent very easily.
How do you know someone who heard screams thought it was
something else
Problem with causation cant determine if not calling for help
actually caused the death. At that rate everyone would be guilty for
not helping. E.g. not giving money to a homeless man
Read more about causation requirements

People often misconstrue what they see e.g. might ruin an

undercover operation
Exception to the No-liability rule
Common Law Duty to Act: Commission by Omission (When there is a
duty to act)
Status relationship
Usually founded on the dependende of one party on the
other, or on their interdependence
E.g. parents to their monr children; married couple to one
another; and masters to their servants
o See Jones v. United States:
o Rule: One of the elements of an omission crime a
jury must find to have existed in order to find the
defendant guilty is that there was a legal duty of
care owed the victim by the defendant.
o Rule restated: Even if you satisfy all elements of
crime, but if you satisfy them by virtue of an
omission, then you are not guilty unless there is a
duty to act required by a statute
o Facts: 10-month-old Anthony Lee Green, was placed
with the defendant. The defendant was a family
friend of the babys mother, Shirley Green. Shirley
Green lives with the defendant for an uncertain
amount of time. It is unclear whether Jones was
paid for taking care of the baby. Jones claims that
Shirley Green was living with him. Shirley Green
claims that she was paying Jones to take care of
child. The medical evidence was uncontested and
the defendant had ample means to provide food and
medical care for the baby.
Not a duty here with someone who
supposedly stayed at the house
o See Beardsley: no duty when Ds lover took
morphine and overdosed in front of him
o See Commonwealth v. Carwell: mother convicted of
child abuse because stepfather abused daughter
Rule: person with duty of care must take
steps that are reasonable calculated to
achieve success
Contractual obligation
E.g. Someone paid to nurse someone and fails to do so
babysitter
Omission following an act
Creation of a risk
o A person who wrongfully harms another or anothers
property, or who wrongfully places a person or her
property in jeopardy or harm, has a common law
duty to aid the injured or endangered party.

E.g. D negligently injures V, D has a common law

duty to render aid to V. If D fails to do so, and V
dies as a result of the omission, D may be held
criminally liable for Ds death, even if she is not
guilty of any offense regarding the initial injuries
o ~Duty to act could arise from accidental conduct
(accidently starting a fire may created a duty to help)
Voluntary assistance (undertaking)
o One who voluntarily commences assistance to
another in jeopardy has a duty to continue aid, at
least if a subsequent omission would put the victim
in a worse position than if the actor had not initiated
help. Applies even if the omitter had no initial
responsibility to rescue the victim
o (undertaking) e.g. taking in a sick person and then
not giving the needed care
Statutory duty (Bad Samaritan laws)
E.g. when you see an accident you have to stop at the scene
These statues make it an offense, usually a misdemeanor, for
a person not to come to the aid of a stranger in peril under
specific circumstances.
o E.g. vermot Stateu: offense for a bystander to fail to
give reasonable assistance to another person who
she knowis exposed to grave physical harm, if
such aid can be rendered without danger or peril to
the bystander, unless that assistance or care is being
provided by others
Hard to enforce
Punishments are very small
Omission: MPC
Does not differ greatly from the Common Law
2.01(1): A person is not guilty of any offense unless his conduct includes
a voluntary act or the omission to perform an act of which he is physically
capable
2.01(3)(b): liability for the commission of an offense may not be based on
an omission unaccompanied by action unless:
(1) Statue: if the law defining the offense proves for it OR
e.g. MPC 220.1(3) failure to report a dangerous fire
(2) Other sources: the duty to act is otherwise imposed
by law
include duties arising under civil law (torts or contracts)
~See Pope v. State: Rule: The common law rule of the United
States does not impose a duty to take affirmative action upon
bystanders in emergency situations if they are not responsible for
the situation
o

Facts: Defendant Ms. Joyce L. Pope took Melissa Norris and her 3
month old infant into her house one Friday after church services.
Norris was suffering from mental illness and would go through
violent religious frenzy. On Sunday afternoon, Norris went into
frenzy, claimed she was God, and asserted that Satan had invaded her
child. In Popes presence, Norris beat her child causing serious
injury. Pope did nothing to protect the child, nor did she call the
authorities. Pope went to church later with Melissa. Both returned
to Popes home and spent the night. At some point the baby died of
the beating.

Act or Omission?
o Medical Omission
Patent (P) is in an irreversible coma, kept alive by use of a respirator. D, Ps
doctor, concludes that future medical treatment would be useless, so she
turns off the respirator, aware that the effect will be to cause Ps imminent
death, which occurs
Complicated because it seems turning over the respirator was an act.
The voluntary act of turning off the machicine is merely the means of
omitting future medical care.
Contractual duty issue: doctor to patient: the doctor owes a duty to
provide ordinary, but not extradonirdinary, care to her patient
See Barber v. Superior Court: same situation. Court asked
whether the proposed treatment was proportionatein terms
of the benefit gained vs. the burdens caused
Rule: When the patient has no meaningful chance of
medical improvement, a physician no longer owes a duty to
provide further medical care
Rule: each drop of fluid introduced into the patients body
by intravenous feeding was comparable to a manually
administered injection or item of medication. Therefore
disconnecting the machines was an omission.
Social Harm
o Is an aspect of actus reus
o Reminds us that to be guilty of an offense, a person must do more than think bad
thoughts; he must be guilty of wrongdoing
o Voluntary acts is the doing and social harm is the wrong
o Where are the harms in attempts or reckless behavior that doesnt amount to
anything?
Must broadly define social harm
o Definition: Society is wronged when an actor invades any socially recognized interest
and diminishes its value. Specifically, social harm may be defined as the
negation, endangering, or destruction of an individual, group or state interest which
was deemed socially valuable.
Thus, the drunk driver and the attempted murdered of the sleep person have
endangered the interests of others, and have cause social harm under this
definition.
o Finding the social harm element in a criminal statue
the killing of a human being by another human being with malice
aforethought

voluntary/omission part of the actus reus is implicit in the definition

The rest of the red makes up the social harm of the actus reus
Tells us what society does not want to occur
The killing is a result of conduct that incluces a voluntary act
or an omission (when there is duty to act)

mens rea
Social harm of an offense (common law or statue) may consist of wrongful
conduct, wrongful results, or both.
Moreover, the offense will always contain attendant circumstances
(circumstances) elemts.
Need to be able to distinguish between conduct, result, and attendant
circumstance elements in the definition of a crime
Conduct Elements (or conduct crimes)
some crimes are defined, at least in part, in terms of harmful conduct.
Harmful results are not required.
E.g. intentionally driving under the influence of alcohol.
The words in bold describe the actus reus of the offense.
More specifically, they state the social harm of the crime the
wrongful conduct of driving a car in an intoxicated condition (which
conduct implicitly must include a voluntary act)
Conduct crime because no harmful result is required to be guilty of
the offense the offense is complete whether or not anyone or any
property is tangible injured because of the intoxicated driving.
It is enough that socially valuable interests have been endangered
Result Elements (Result Crimes)
Common law murder is a result crime because the social harm of the offense
involves the death of another human being
Although the killing of another the result obviously occurs
because of some conduct, the nature of the actors conduct
defintionally is irrelevant.
It does not matter how the result occurs (poison v. gun v.
strangling), just that it does
Result and conduct Crime
First degree murder defined as the killing of another human being by means
of a destructive device or explosive,poison.or torture.
The actus reus here includes a result (anothers persons death) brought by a
certain type of conduct
Attendant Circumstances

In order for any offense to occur, certain facts or conditions attendant

circumstances must be present when the actor performs the prohibited
conduct and/or causes the prohibited result that constitutes the social harm of
the offense
FOUND IN THE DEFINTION OF THE CRIME
The social harm of the offense, definitionally speaking, has not occurred
unless the specified attendant circumstances are present
E.g. Common law burglary: breaking and entering of the dweliing
house of another at nighttime.
In order to be guilty of THIS offense, the actor MUST break
and enter into a swelling house (not a commercial
structure, etc.)
The dwelling MUST belong to someone other than the actor
The events MUST occur at night
If the attendant circumstances are not there, the specific crime in
question has not met actus reus
May be guilty for another crime like trespass

Mens Rea (Mental culpability)

Generally has three meanings
o Generalized Mens Rea) a general immorality of motive, vicious will, or an evilmeaning minds, willful, malicious
With this definition, gilt for an offense is not dependent on proof that the
actor caused the proscribed harm with any specific mental state, i.e., it is not
necessary to show that the committed the offense intentionally,
knowingly, out with any other particular frame of mind.
See Regina v. Cunningham: D enters cellar of an apt. and wrenches
gas meter from the gas pipes and steals it. Although could have
turned the gas off, he does not and gas seeps into wall of the cellar
and harms 3rd party. Although D did not intend to endanger anyones
life he was charged with the offense
Criminal statute required that D maliciously administer or cause to
be administered poison and trial judge told jury that malice meant
wicked
Appellate court overturned and said that malice meant that the D
knew of the risk and disregarded it (modern day recklessness)
Since D caused the harm, albeit unintentionally, while attempting to
steal money from the meter, the jury found the requisite wickedness
(appeals court allowed Ds appeal on the grounds that the mens reas
instruction was erroneous)
Common law definitions of many offenses failed to specify any mens rea.
o Common Law (elemental)
Mens rea must relate to each element of the crime for which D is charged

Different levels or degrees of mens rea culpability

Usually specified in the crime: e.g. the intentional killing
IF unspecified: reckless is the default or minimum
Regina v. Faulkner, p. 245
tried to steal rum from ships hold, lit match to see, fire destroyed
ship
Had no mens rea with respect to lighting the fire
Rule: mens rea must be with respect to the specific crime in question
Intentional, willful or reckless (knew it would be probable result)
Purpose of criminal code is to distinguish severity of the crime by
determining degree of culpability undermined by generalized
mens rea
Common Law Mens Rea Terms
o Intentionally or Intent (LINK RULES BETTER)
(1) Purpose- If it is his desire (conscious object) to cause the social harm
(social harm refers to the circumstances of the crime)
(2) knowledge- If he acts with knowledge that the social harm is virtually
certain to occur as a result of his conduct
Lesser use: the intent to cause a particular result (e.g. kill another) or to
engage in specified conduct (e.g. drive a car) id defined narrowly in a statue
to mean that it was the actors purpose, desire, or conscious objective to
cause the result or to engage in the specified conduct
HYPO: bomb expert D want to kill V, his wife, in order to obtain the
proceeds from her life insurance policy. D constructs a bomb and places it on
an airplane on which V is a passenger. He sets the bomb to explode. He
prays for the others on the plane to survive but he knows that the bomb will
destroy the airplane
It was his conscious purpose to kill his wife (wanted her to die). IT
DOES NOT MATTER HOW LIKELY IT WAS THAT THE
RESULT WOULD OCCUR, desire is enough
For the other vicitims, he did not want them to die, he even prayed
that they wouldnt, but he did intend their deaths as well
He knew that the social harm of their deaths was virtually
certain to occur when this bomb exploded.
NOT SATISIFED if the outcome was merely highly
probable; the actor must realize that, short of divine
intervention or a secular miracle, the desired event will
occur for sure
Both Subjective fault
An actors fault is subjective if he possesses a wrongful state
of mind

In this case the conscious desire to cause the social harm, or

the awareness that the harm will almost certainty result from
his conduct
Significance: HYPO- D belongs to a religious sect that
espoused the belief that members of the faith always have
their wishes fulfilled by God. Therefore, as a member of the
sect, D genuinely believed that his fervent prrayers would
save everyone on the airplane except his wife.
Based on these revised facts, D (as before) intentionally
killed his wife, because he desired her death
But, if the jury believes his testimony about religious beliefs,
D did not intentionally kill the other passengers he was
not subjectively aware that their deaths were a near certainty.
Intent requires such awareness; it is insufficient that he
should have been aware , as a reasonable person, that they
would be killed
Specific Intent: Distinguishing Motive By definition these crimes require proof of a specific motive.
E.g. with intent to steal
You cant be guilty of this crime if you borrowed something
without asking with the intent (motive) to give it back
~Proving awareness and intent
Circumstantial evidence
Mandatory presumption
Permissive presumption
o Presumed to intend the natural and probable
consequences of your actt
~Transferred Intent (WRONG DOCTRINE)
HYPO: firing a gun intending to strike A and striking B instead
Yes intent we attribute liability to a D who, intending to kill (or
injure) one person, accidentally kills (or injures) another person
instead.
Rationale: a bad aimer should not avoid conviction simply because
he killed the wrong person
Keep in mind
Punishment should be equal to culpability
Problem: some crimes do indeed specify that the actual person needs
to be the target

Problem: If D shoots at a dog bur misses and hits a human.

Should not transfer the intent to kill a dog to intent to kill a
human
Basic layout of transferred intent
(1) A intends to cause a specific harm to one just one
specific individual, B
(2) B escapes unscathed;and
(3) an unintended victim, C, suffers the harm for B
RIGHT WAY TO THINK ABOUT IT
The mens rea does not follow the bullet like transferred
intent suggests
o When firing the gun, D has intent to kill a human
being (who ever it was)
o Therefore the mens rea is satisfied
It would also be wrong to use transferred intent to a second
victim that is injured
o HYPO: A, intending to kill B, who is holding baby
C in her arms, fires a single bullet at B, he knows
that he will concurrently kill C who is in the line of
fire.
o Therefore, on these factsm A has intent purpose
or knowledge, either of which constitutes common
law intent to kill BOTH people (B purposely, C
knowingly
Knowingly or With Knowledge with respect to Attendant circumstances
HYPO: statue: :it is a federal crime for a person knowingly to import any
controlled substance into the country
Under this statue a person, D, who drives an automobile containing
marijuana into the U.S., is not guilty unless he knows of the
presence of the contraband attendant circumstance when he
crosses the boarder
someone knows of a fact when
is aware of the fact (actual knowledge)
e.g. put the marijuana there
correctly believes that the fact exists (correct belief)
e.g. smells the marijuana and correctly believes it is present

Willful blindness
(1) Aware of a high probability of the existence of the fact in
question
(2a) takes deliberate action to avoid confirmation of the fact
(affirmative step); or
(2b) purposely fails to investigate in order to avoid
confirmation of the facts
See U.S. v. Jewell: D is guilty of willful blindness where
he agreed to drive Xs car into the country although he was
highly suspious that drugs had been concealed in it, and he
purposely avoided looking in the truck or elsewhere because
he was afraid that it would confirm his suspicions
Dissent Rule:
o Awareness that there is a high probability that a fact
exists
o Take deliberate steps to avoid knowledge
o Unless D actually believe the circumstances is not
present
~~See Global-Tech v. SEB, p. 262
Knowing patent infringement (federal)
Willful blindness: subjectively believe high probability a
fact exists
o Take deliberate actions to avoid learning of that fact
Posner: p. 253, active blindness not just passive blindness
(burry head )
MPC: 2.02(7)
Excludes willful blindness
o E.g. throw air condition out of window
Key: no culpability in cases of low probability
o E.g. 3 suitcases, only 1 of them actually has drugs

Willfully
an act done with a bad purpose or with an evil motive

may also connote an intentional violation of a known legal duty

or a purpose to disobey the law
often use context to determine
in most circumstances, an intentional wrongdoer acts with a bad purpose or
evil motive, and with knowledge that he is violating the law, so it does not
matter which meaning of willful is applied
merges into mistake of law: because if you think the law is one think, you are
not willfully disobeying it (purpose to disobey the law)
See Mistake of Law
Negligence and Recklessness
Risk-taking
(1) desirable or at least neutral risk-taking
(2) risk-taking that justifies civil liability (civil liability)
(3) risk-taking that crosses the civil line and justifies criminal
liability (criminal negligence) and
(4) even more culpable risk-taking (recklessness)
some courts have sometimes used the terms negligence and recklessness
interchangeably, particularly before the advent of the MPC
CASE
Negligence -- OBJECTIVE
A persons conduct is negligent if it constitutes a deviation from
the standard of care that a reasonable person would have observed in
the actors situation
Conduct is negligent if the actor fails to appreciate he is taking an
unjustifiable risk of causing harm to another.
Objective: An actor is not blamed for a wrongful state of mind, but
instead is punished for his morally blameworthy failure to realize
that he is taking an unjustified risk for his failure, in other words,
to live up to the standards of the fictional reasonable person
Reasonable person: Learned Hand Factors
(1) gravity of harm that foreseeability would result from the
Ds conduct
(2) the probability of such harm occurring; and

(3) the burden or loss- to the D of desisting from the risky

conduct, which is simply another way of evaluating the
reason for taking the risk
Civil v. Criminal
civil negligence ordinarily is considered an inappropriate predicate
by which to define criminal conduct
See Santillanes v. State:
criminal responsibility usually needs criminal negligence
Criminal negligence is conduct that represents a gross deviation from
the standard of reasonable care
See State v. Hazelwood
A person is criminally negligent if he takes a substantial and
unjustifiable risk of causing the social harm that constitutes the
offense charged
Recklessness SHOULD NOT be equated with criminal negligence
Punishing Negligence
Opponents: cant punish people for what is not on their mind
Does not act as deterrence
Proponents: at least sometimes, blame is justified on the ground that
the negligent actors failure to perceive the riskiness of his conduct
constitutes culpable indifference to the rights and interests of those
around him
If you can be punished for failing to act, you an be punished
for failing to think
Reasonable person -- OBJECTIVE
although it is an objective standard the Ds conduct is compared to
an external ideal
As a result, there are constant pressures on courts to subjectiize the
reasonable person -- to incorporate into the reasonable person some
of the mental and/or physical characteristics of the defendant, or by
incorporating into the reasonable person the Ds personal life
experience
E.g. if the defendant is of low IQ, he may seek to be judged
by the standard of a reasonable person with a similar level of
intelligence
E.g. father fails to get traditional medical care because he is
part of a religion who believes that medicine is unnecessary
or violative of Gods word. He may seek a reasonable person
of his religion
o [Case]
Traditional Rule: (which Is changing) is that although a defendants
unusual physical characteristics (e.g. blindness), if relevant to the
case, are incorporated into the reasonable person standard, a
defendants unusual mental characteristics are not

Recklessness -- SUBJECTIVE
In the past recklessness has been a synonym for criminal
negligence, however, today it is distinct and more culpable than
criminal negligence
Tort concept (not really used anymore): if he takes a very substantial
and unjustifiable risk.
Puts recklessness on a continuum with criminal negligence
Criminal Recklessness: requires proof that the actor disregarded a
substantial and unjustifiable risk of which he was aware
Differs from criminal negligence in that here the negligence
is founded on the actors state of mind whether he knew of
the risk and yet consciously disregarded it
Criminal negligence involves inadvertent risk-taking (should
have been aware)
o Malice (NON-HOMCIDE MEANING)
critical Common Law and statutory mens rea term
See Murder (for further relevant meanings of malice)
Here malice refers to intentionally or recklessly cause the social harm
prohibited by the offense
See Regina v. Cunningham (appellate court set out that if D did not
have awareness of the risk even if he should have been aware of
the risk then he acted criminally negligent, which would fall
outside the definition of malice
Statutory Interpretation: What elements does a Mens Rea Term Modify:
o United States v. X-Citement Video
The Supreme Court was called upon to interpret a federal statue that makes it
a felony to knowingly transport, receive, or distribute in interstate or foreign
commerce any visual depiction involving the use of a minor engaging in
sexually explicit conduct
The D did not deny that he knowingly transported and distributed nonobscene sexually explicit materials in interstate commerce
He claimed, however that he believed the person depicted in the video was
an adult, i.e. he did not know that she was a minor
Issue: Whether such knowledge was required under the statue.
A fairly straightforward reading of the statue suggest that the term
knowingly modifies the conduct or result elements (transport,
receive, or distribute) of the offense
BUT, does knowingly also modify the critical statutory attendant
circumstance that the person depicted in the video was underage?
When there is no clear cut answer to statutory interpretation, the
court will look at legislative intent

Also looks at the grammatical flow of the statue

A person is guilty of a felony if he [does X] with the intent
of [causing Y and Z]. Here, the term intent probably
modifies Y and Z, but not X
mens rea terms usually doesnt go backwards
BUT in X-Citement the court held that knowingly did apply to
whether the girl was a minor
Court did not want to choose grammar over basic
assumptions of criminal law
Basic Assumption: presumption in favor of a scienter [mens
rea] requirement should apply to EACH of the statutory
elements that criminalize OTHERWISE INNOCENT
conduct
since selling distributing sexually explicit videos of adults
was lawful, the government has to prove that the D knew the
girl was a minor
o Otherwise innocent conduct needs to be shown that
it is guilty
Specific Intent and General Intent
o Essential to understanding various common law rules of criminal responsibility
(mistake of law, mistake of fact)
o Very complicated
o General Intent: historically: referred to any offense for which the only mens rea
required was a blameworthy state of mind
o Specific Intent: historically: was meant to emphasize that the definition of the
offense expressly required proof of a particular mental state
in other words, an offense that only required proof of mens rea in the
culpability sense of the term was a general intent crime
Offenses that required mens rea in the elemental sense were specific
intent in nature
Rationale: back in the day most common law crimes didnt include mens rea
so those that did require a particular state of mind (murder- malice
aforethought, burglary- intent to commit a felony) stood out and were thus
called specific intent
Today: Mens rea is implied so the line between general and specific intent is
much more difficult to draw.
o Sometimes specific intent is referred to as: if the crime requires proof that the actors
conscious object, or purpose, is to cause the social harm set out in the definition of
the offense
In contrast general intent refers to if the actor can be convicted upon proof of
any lesser state of mind, such as when he causes the harm knowingly,
recklessly, or negligently (See Regina v. Cunningham)
o Specific Intent
Offense in which the definition of the crime expressly:

(1) includes an intent or purpose to do some future act, or to achieve

some further consequence (i.e. special motive for conduct), beyond
the conduct or result that constitutes the actus reus of the offense OR
e.g. burglary is a specific-intent crime because committed
the actus reus alone does not satisfy the crime
(2) provides that the actor must be aware of a statutory attendant
circumstance. An offense that does not contain one of these features
is termed general intent
X-Citement video?
E.g. general intent: battery- intentional application of unlawful
force upon another. - the definition does not contain any specific
intent. The only mental state required is intent to apply unlawful
force upon another (the actus reus of the crime)

MPC Mens Rea

o Strictly elemental approach to the concept
o 2.02(1): Provides that, except in the case of offense characterized as violations
(civil penalty/fine) a person may not be convicted 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
the code requires the prosecution to prove that the defendant committed the
social harm of the offense indeed, each material ingredient of the offense
with a culpable state of mind, as set out in the SPECIFIC statute
The crime MAY require different levels of culpability for reach material
element.
E.g. It is a felony to purposely do X and knowingly do Y, so as to
recklessly cause Z
As a result, a person may not be convicted solely on the ground that he acted
with a morally blameworthy state of mind, i.e., the Code eschews the
culpability meaning of mens rea.
The common law distinction between general intent and specific intent is
discarded
The MPC removes the clutter of common law and statutory mens rea terms,
and replaces them with just four: purposely; knowingly; recklessly;
and negligently
The phrase material element of the offense, as used in 2.02 and
throughout the Code, includes elements relating to the existence of a
justification or excuse for the actors conduct, i.e. defenses to crimes. Since
one off the four states of mind applies to EVERY material element of a
crime, this section is also relevant in determining whether a person is entitled
to acquittal on the grounds of an affirmative offense
o Culpability Terms
Purposely -- SUBJECTIVE
With respect to Results or Conduct
2.02(2)(a)(1): A person acts purposely if it his conscious
object to engage in conduct of that nature or to cause such
result it is the actors goal/objective

Aside: essentially applies transferred intent: (NOT

READ) 2.03(2)(a): when purposely causing
particular result is an element of an offense, that
element is established if the actual result differs
from that designed or contemplated, only in
respect that a different person or different property
is harmed
o Also, the Code provides that a defendant is not
relieved of liability for an offense if less harm occurs
that it was the actors conscious object to cause. E.g.
if Ds conscious object is to kill two persons, but he
only succeeds in killing one, purpose is
established
o But, if D intends to kill X an instead kills X and Y,
Ds purpose to kill X would not apply as to y,
because he has caused more, not less, harm than was
designed. Ds liability, if any for Ys death would
have to be based on a different state of mind directly
related to Y, perhaps on the ground that firing a gun
at X in Ys proximity constitutes a recklessness as to
Ys safety. (MAYBE USEFUL LATER)
Purposely is a mental state comparable to the first only
the first of the two alternative common law definitions of
the word intentional (not knowingly)
o e.g. the bombing his wife and praying for others
example (CL: purpose to kill wife=intent, knowing
to kill passengers=intent, MPC: purpose to kill wife,
no purpose to kill passengers)
o (NOT READ) Purposely with respect to
conditional results: e.g. D threatens to kill V, the
driver of an automobile, unless V relinquishes the
care to D.
2.02(6): when a particular purpose is an
element of n offense, the ement is
eastablished although the purpose is
conditional, unless the condition negatives
the harm or eveil sought to be prevented by
the law defing the offense? See. Dressler pg.
141 fn.132
With Respect to Attendant Circumstances
2.02(2)(a)(ii): A person acts purposely with respect to
attendant circumstances if he is aware of the existence of
such circumstances or he believes or hopes that they exist.
aware or hopes
E.g. if D enters an occupied structure in order to commit a
felony inside, he has acted purposely regarding the
attendant circumstance that the structure was occupied if he
was aware it was occupied or hoped it would be
Knowingly -- SUBJECTIVE
With respect to Results
o

2.02(2)(b)(ii): A result is knowingly caused if the

actr=or is aware that it is practically certain that his conduct
will cause such result
o e.g. airplane hypo: D knowingly killed Vs fellow
passengers, assuming D was aware that his bomb
that his bomb would almost certainty kill those on
board.
o IF D lacked normal mental faculties, or for any other
reason had a distorted sense of reality, so that he was
not subjectively aware that their deaths were
practically certain to result, then a finding of
knowledge would not be appropriate
With respect to Attendant Circumstances and Conduct
2.02(2)(b)(i): One acts knowingly if he is aware that his
conduct is of that nature or that such [attendant]
circumstances exist
o e.g. D fires a loaded gun in Vs direction, and was
prosecuted for knowingly endangering the life of
another. D is guilty if he was aware that his
conduct endangered the life of another person. If he
was not aware that his conduct endangered the life
of another person. If he was not aware (perhaps
because he did not see anyone in the vicinity), then
D did not endanger another knowingly, no matter
how obvious Vs presence may have been to others.
o E.g. If D purscharedstolen property and was
prosecuted for knowingly receiving stolen
property., D would be guilty of the offense if, when
he received the property, he was aware that it had
been stolen.
2.07(7): Willful Blindness: In order to deal with the
problem of willful blindness, the Code includes a
controversial provision that states that knowledge it
established, if a person is aware of a high probability of.
[the attendant circumstances] existence, unless he actually
believes that it does not exist
o same criticism as common law willful blindness
doctrine
o [case]
Recklessly and Negligently
2.02(2)(c): Recklessly: a person acts recklessly if he consciously
disregards a substantial and unjustified risk that the material element exists
or will result from his conduct. (HYBRID)
A risk is substantial and unjustifiable if considering the nature
and purpose of the actors conduct and the circumstances known to
him, its disregard involves a gross deviation from the standard of
conduct that a law-abiding person would observe in the actors
situation.

 2.02(d): Negligent: A persons conduct is negligent if the actor

should be aware of a substantial and unjustifiable risk that the material
element exists or will result from his conduct. (OBJECTIVE)
Same definition of substantial and unjustifiable EXCEPT the term
reasonable person is substituted for law-abiding person
A risk is substantial and unjustifiable if considering the nature
and purpose of the actors conduct and the circumstances known to
him, its disregard involves a gross deviation from the standard of
conduct that a reasonable person would observe in the actors
situation.
Difference
Both require the same degree of risk taking: substantial and
unjustifiable.
BUT the reckless actor consciously disregards the risk, whereas
the negligent actors risk-taking is inadvertent
This tracks the modern common law approach (MPC influenced
modern courts)
Why law-abiding v. reasonable person???
Reasonable Person
The conduct of the reasonable person (and law-aiding) is
evaluated from the perspective of a person in the actors situation.
*Ambiguous ask professor
Commentary indicates that physical characteristics (e.g.
blindness or the fact that he just suffered a heart attack),
would certainly be facts to be considered in judgment
involving criminal liability,
But hereditary factors and matters of intelligence and
temperament would not be held materialand could not be
without depriving the criterion of all its objectivity.
The drafters of the Cod did not intend to displace
discrimination of this kind, but rather to leave the issue to
the courts.
o [case?] need clarification
Principles of statutory interpretation
Clarifies the X-Citement video problem
2.02(4): If a statute defining an offense prescribes the kind of culpability
that is sufficient for the commission of the offense, without distinguishing
among the material elements thereof, a could will interpret such culpability
provision as applying to every material element of the offense, unless a
contrary purpose plainly appears.
A single mens rea term whatever it is modifies each actus reus element
of the offense, absent a plainly contrary purpose of the legislature
E.g. Burglary: enter an occupied structure with purpose to commit a
crime therein
Since the mens rea term purpose is put in the middle it is not
meant to apply to the attendant circumstance of the structure being
occupied

Since there MUST be some form of culpability for each material

element of an offense, if it the mens rea isnt specified it
automatically is purposely, knowingly, or recklessly
2.02(3): When the definition of a criminal offense is silent regarding a
matter of culpability as to a material element of the offense (as the above
burglary offense) The material element is satisfied if a person acts
purposely, knowingly, or recklessly.
E.g. burglary enter an occupied structure with purpose to commit a
crime therein
Recklessly, knowingly, purposely: CONDUCT of entering
Recklessly, knowingly, purposely: ATTENDANT
CIRCUMSTANCE that entry if of an occupied structure
Purposely: to commit a crime therein
He could not be convicted of burglary if was only negligent
in believing that the structure was unoccupied

Mens Rea Nuances

Strict Liability Offenses
o Strict liability offenses: or crimes that, by definition, do not contain a mens rea
requirement regarding one or more of elements of the actus reus
o SCOTUS: The contention that an injury can amount to a crime only when inflicted
by [mens rea] is no provincial or transient notion. It is universal and persistent in
mature systems of law.
o Court has set out situations in which mens rea is not necessary
See Morrissette v. U.S.
o 1. Public Welfare Offenses malum prohibtum v. mallum in se
Malum in se crimes (inherently wrongful) such as murder, arson, rape, and
robbery were the original crimes only ones. (traditional crimes)
Conviction for such offenses, which required proof of mens rea, was
gravely stigmatized, and the penalties for the violations were severe
(usually death)
As society grew legislatures made crimes to control conduct that, although
not morally wrongfull, could affect the health, safety, and welfare of the
public.
Consequently, Congress enacted laws, most of which mad no mens rea, that
came characterized as public welfare offenses
In contrast to the traditional crimes, these involve conduct malum prohibitum
(wrong because it is prohibited).
E.g. sale of impure food or drugs, anti-pollution laws, traffic and
motor regulations
These are allowed to be strict liability
o 2. Non-Public-Welfare Offenses (usually sexual or drug related)
Statutory rape i.e. consensual intercourse by a male with an underage female
This offense is characterized in most states as strict liability because the
statue does not require, and most courts have refuses to imply, any mens rea
element regarding the defendants knowledge of the females underage statue
See Garnett v. State (SL)

Controversy:
Whereas public welfare crimes usually carry only minor penalties,
non- public welfare strict-liability offenses result in severe
punishment
Non-public welfare offenses typically involve conduct malum in se.
Violators of such laws, therefore are stigmatized despite the absences
of proven moral fault
Arguments for strict liability: (1) the absence of mens rea requirement may have the
desirable effect of keeping people who doubt their capacity to act safely form
participating in dangerous activities, such as manufacturing pharmaceutical drugs or
using dangerous instrumentalities (2) Those who engage in risky activity will act will
greater caution in light of the strict liability nature of the law (3) an inquiry into the
actors mens rea would exhaust courts, which have to deal with thousands of minor
infractions every day
Alternative to Strict Liability: continue to define public welfare offenses in strict
liability terms, but permit a lack of mens rea affirmative defense
E.g. if a person sold liquor to a minor, she would be convicted unless she
showed strong evidence that she took reasonable care to determine
customers age
See Regina v. City of Sault Ste. Marie (Canada): Compelling
grounds for three categories of offenses:
Mens rea, consisting of some positive state of mind such as
intent, knowledge, or recklessness, must be proved by the
prosecution
No necessity for the prosecution to prove mens rea; doing
the prohibited act prima facie imports the offense, leaving it
open to the accused to prove he took all reasonable care
Absolute liability where it is not open to the accused to
exculpate himself by showing that he was free of fault
Constitutionality of Strict Liability
See U.S. v. Balint (SL staute)
(D was indicted for the sale of narcotics (opium and cocoa) without a
required form from the government. Did not allege D knew he sold
prohibited drugs. The maximum penalty for the strict-liability public
welfare offense was 5 years imprisonment.
Rule: No scienter [mens rea] requirement under a statue if the
purpose of the statue would be obstructed by such a requirement
Congress decided protecting innocent purchasers was more
important thus the crime should be strict liability
o Seller better able to know, difficult to prove
knowledge helps protect consumers
See U.S. v. Dotterwiech: (SL statue)

Md.1993 (authorizing conviction of a 20-year-old male with

an I.Q. of 52, who had consensual intercourse with an
underage female; holding that the males mistake regarding
te girls age was immaterial
Absence of mens rea for the ATTENDENT
CIRCUMSTANCE of age classified statutory rape because
the sex itself is intentional (and consensual)

D convicted of mislabeling products even though no evidence of

mens rea b/c the statute did not require mens rea; similar language
regarding the weighing of the costs and benefits of applying strict
liability
Not a traditional crime
Protect consumers
Compare U.S. v. Morissette (No SL)
D was convicted of conversion of government property that he
believed had been abandoned. The statue did not expressly require
proof of an intent to steal property. However, because the statue
evolved from the common law offense of larceny, which contains
such a requirement, the Supreme Court construed the conversion
statue as requiring specific intent
If a crime normally required intent under the common law,
but as codified does not expressly include that requirement, a
criminal D cannot be proven guilty w/o proving intent.
Since this was more of a traditional crime, it retains the
requirement of intent (mens rea)
Mens rea may be presumed in the absence of legislative
intent
Morissette Indciia: Publib Welfare crime when:
o 1. Recently created crimes to protect public welfare
(mallum prohibitum)
o 2. Low punishment/penalty
o 3. Low stigma
o 4. Usually able to prevent with reasonable care
See Staples v. US, p. 288 (No SL)
D convicted under National Firearms Act for possessing an
unregistered firearm defined by the act. The gun was capable of
firing automatically due to a metal part which usually prevents the
weapon from firing automatically being finled down. D said he
didnt know that the weapon fired automatically and that the weapon
had never fired automatically when he used it. Statute is silent
regarding mens reas for the violation. D convicted over his request
that the jury be instructed that he must know that the gun would fire
automatically
Tradition of gun ownership, no mens rea criminalize a lot of
behavior
Guns are part of society do not put on notice (like grenade)
Rule: absent clear intent from Congress, presumption of mens rea
requirement in any statute defining a felony offense
Morissette indicia? (SL, no SL, no SL, SL)
See Guminga
See Lambert v. California: the Court overturned D;s conviction for failing to
register with the city of Los Angeles as a prior convicted felon, as required
pursuant to a strict-liability ordinance of which D was unaware.
Notwithstanding the usual rule that ignorance of the law is no excuse, the
Court reversed the conviction on lack of fair notice due process grounds.
See Ignorance of Law

MPC Approach to Strict Liability

2.02(1): provides that, subject to one exception, no conviction may be
obtained unless the prosecution proves some form of culpability regarding
each material element of an offense
Exception: 2.05: provides that the voluntary act and mens rea requirements
need not apply to offenses graded as violations, rather than crimes.
Violations are offenses that cannot result in imprisonment or probation, but
may result in fines. (< $500)
MPC is strongly against strict liability
*different outcomes for statutory rape and some drug offenses

Mistakes of Fact
o e.g. D shoots and kills V, believing he is killing a wild animal
o e.g. D carried away property belonging to V, incorrectly thinking that he has
permission to take it
o Each actor was either unaware of, or mistaken about a fact pertaining to an element
of the offense for which he might be prosecuted
o Definitions:
Ignorance implies total want of knowledge
Mistake implies a wrong belief about the matter
o The focus is on mistakes pertaining to ELEMNENTS in the definitions of crimes.
Frequently a defendant will allege that hes was mistaken as to the existence
of fact that would provide affirmative defense to his conduct
o Rationale: An actor who is mistaken about some fact does not have the same kind of
opportunity to avoid evil that he would have if he knew what he was doing
o Must be done through mens rea because involuntary actus reus has to do with
cognition (what he is aware of) rather than his volition (his capacity to control his
conduct)
o Context of broad generalized mens rea and narrower normal culpability mens rea
(elemental)
Generalized Mens rea: proof that a person was factually mistaken
demonstrates that despite appearances, he acted in a morally blameless
manner manner and that, therefore, he is not deserving of punishment for
causing harm. In this sense a mistake of fact negate mens rea in the
culpability meaning of the term. (He did not act maliciously)
Elemental: Because of a mistake, a defendant may not possess the specific
state of mind required in the definition of the crime. In such, circumstances
the defendant must be acquitted because the prosecutor has failed to prove an
express element of the offense
o Common Law Rules
Most common law crimes: Originally the definitions of most common law
crimes omitted any mention of a mental state requirement: a person was
guilty if committed the actus reus under circumstances manifesting his moral
culpability.
Specific Intent: A few crimes however, included a specific mental-state
element in their definitions (typically intent or knowledge).

Specific intent crimes developed the rule that a mistake of fact is

exculpatory if it negated the particular element of mens rea the
specific intent in the definition of the offense
Common law adopted an elemental approach to mistakes
General intent crimes that do not include a specific-intent element sought
to determine if the actors mistake negated his moral culpability for the crime
Culpability approach to mistakes
Today this is unnecessary because modern penal codes typically include
mens rea in the definition of all felonies and serous misdemeanors
The Elemental approach should be followed with all non- strict liability
crimes today

Strongly influenced by the MPC

BUT to common law still does have the two approached foto
mistakes depending on whether the offense characterized is a
general intent or specific-intent crime
**The first step in analyzing a mistake of-fact claim in a jurisdiction that
follows common law doctinr is ti identify the nature of the crime for which
the defendant is being prosecuted: Is it a strict liability, specif-intent, or
general-intent crime?
Strict-Liability Offense
Rule: Under no circumstances does a persons mistake of fact negate his
criminal responsibility for violating a strict-liability offense.
The absences of any mens rea to negate necessarily precludes the use of this
defense.
E.g. If D drives above the lawful speed limit because his
speedometer is inaccurate, he will be convicted of a strict-liability
speeding offense, even if the speedometers faulty calibration was
unknown and unforeseeable to him
Statutory rape is a strict liability offense in most stated regarding the
attendant circumstance of the females age. Thus Ds erroneous
belief, no matter how reasonable, that the female with whom he is
having intercourse is old enough to consent, will not free him
See Garnett v. State (SL)
Md.1993 (authorizing conviction of a 20-year-old male with
an I.Q. of 52, who had consensual intercourse with an
underage female; holding that the males mistake regarding
te girls age was immaterial
Absence of mens rea for the ATTENDENT
CIRCUMSTANCE of age classified statutory rape because
the sex itself is intentional (and consensual)
Specific Intent Offenses
Rule: A defendant is not guilty of an offense if his mistake of fact negates the
specific-intent portion of the crime, i.e. if he lacks the intent required in the
definition of the offense
It was not matter that the defendants mistakes may have been unreasonable
that the defendants may have been reckless or negligent in their beliefs.

Acquittal follows from the fact that a person may not be convicted of
an offense unless every element thereof, including the mental-state
element (e.g. the intent to steal) is proven, which cannot occur if the
defendant was genuinely mistaken
On the other hand, if D receives cocaine instead of heroin, and is prosecutes
for knowingly receiving a controlled substance a specific-intent offense
(to the actors awareness of the attendant circumstance of receiving a
controlled substance) he is guilty, notwithstanding the mistake, because his
error, whether reasonable or unreasonable, does not negate the requisite
specific intent.
He knew that he was receiving a controlled substance; he was only mistaken
regarding its nature (cocaine v. heroin)
General-Intent Offenses (reasonable test)
Rule: A person is not guilty of a general-intent crime if his mistake was
reasonable, but he is guilty if his mistake was unreasonable
E.g. D has nonconsensual sexual intercourse with V, whom he
incorrectly believes is consent. D is charged with rape, defined for
current purposes as sexual intercourse by a male with a female not
his wife, without her consent.
In as-much rape is a general-intent crime, courts utilize the
culpability approach to analyze Ds mistake of fact.
If his mistake regarding Vs consent was reasonable, then he
is not guilty of the offense.
This follows because, although the actus reus of the offense
occurred, Ds state of mind in regard to the prohibited
conduct was nonculpable, i.e., his belief that she was
consenting was on that a reasonable person might have had.
If Ds belief as to Vs consent was unreasonable, however,
than he acted with a culpable state of mind that justifies his
conviction of the offense.
Problem: if Ds mistake was unreasonable, he is convicted of rape; if
he is arrested before the intercourse occurs, and he is charged with
the specific-intent offense of assault with intent to commit rape, his
unreasonable mistake of fact will free him (b/c general v. specific
intent crimes)
Practical effect: Looking at the reasonableness of the mistake of fact
is to permit punishment on the basis of negligence
See Negligence (above)
Normally someone cannot be guilty unless the negligence is
gross. With mistake of fact, however, unreasonableness is
not always defined in a manner that requires the heightened
degree of fault. As a result, people can be charged
responsible for conduct that would constitute no more than
civil negligence
Practical Effect: The mistake-of-fact rule permits conviction and
punishment of a negligent wrongdoer as if he were guilty of
intentional wrongdoing.

Even though the person who did it intentionally was much

more culpable than the person with the unreasonable belief,
they are punished the same
Moral-Wrong Doctrine (controversial and increasingly uncommon)
Rule: Once can make a reasonable mistake regarding an attendant
circumstance and yet still demonstrate moral culpability worthy of
punishment
Basis: There should be no exculpation for mistake where, if the
facts had been as the actor believed them to be, his conduct would
still beimmoral essentially, the intent to commit an act that is
immoral furnishes the requisite culpability for the related, but
unintended, outcome
See Regina v. Prince: D was charged or unlawfully taking or causing to be
taken, any unmarried girl, being under the age of 16 years, out of the
possession and against the will of her father or mother. The girl in
question was 14, but the jury found that P honestly and reasonably believed
that she was 18
Bramwell:
* First, apply the reasonableness test, if it is reasonable then move to
the moral-wrong test
Second, what did D think he was doing: Taking an 18-year-old girl
out of the possession and against the will of her parents
Third, evaluate the morality of the conduct, based on the facts the
actor reasonable believed them to be: Here the taking of an 18 year
old against her parents will was self-evidently wrong imputes
knowledge to D that he acting immorally.
Rule: a person who knowingly performs a morally wrong act assumes the
risk that the attendant factual circumstances are not as they reasonable appear
to be and that, therefore, his conduct is not only immoral but also illegal
The doctrine is triggered when the defendants conduct would be
immoral had the situation been as he supposed.
E.g. if the girl was homeless and he was taking her for her
protection that would NOT be a immoral act triggering the
doctrine
Problems:
No consensus on moral wrongness
Violates Legality Doctrineconflate immoral and illegal by making
certain acts illegal that the legislature did not make illegal
Ignores degrees of culpability
See Minor v. Director of Public Prosecutions:
Overrules Prince doctrine in England
(15) repeatedly asked 13 yr old girl to perform oral sex.
Trial ct. refused his honest belief she was > 14 as a defense.
Honest belief (subjective) is preferable to reasonable belief
(objective) actual culpability
o But reasonableness relevant for jury
Rule: age related element should be treated as any other
element
o Honest mistake of fact is a defense

Prosecution must show absence of genuine belief girl >14

Lesser Crime/Legal Wrong Doctrine
Eg. What if a state provides that sexual intercourse by an adult with a person
under the age of 12 constituted first-degree rape, but it is the lesser offense of
second-degree rape if the victim is older than 12 but under the age of 16
Assume that D reasonably believes that the person with whom he is
having sexual intercourse is 14 years old, but in fact the victim is 11.
Should D be convicted of first or second degree rape?
Rule: If a persons conduct causes the social harm prohibited by More
Serious Offense X, he is guilty of that offense even if, based on his
reasonable understanding of the attendant circumstances, he would be guilty
of Less Serious Offense Y if the situation were as he supposed it to be.
Practical: D is charged with the actus reus of the greater offense while
ignoring the fact that the actors mens rea was that of a lesser crime
Disproportionate punishment to the offenders culpability
Application: (read pg. 162): Moral wrong and lesser crime doctrines continue to be
important in offenses involving minors, sexual behavior, and/or drugs
People v. Olsen (1984)D is convicted of child molestation on a victim who
is only 13 years and 10 months old. D claimed that he did not break into the
trailer and that the sex was consensual and girl said she was 16. Court
upheld conviction despite a mistake of age for 4 reasons
Statute makes clear that didnt intend for reasonable mistake to be a
defense
Public policy to protect young children
Lesser crime argument---mistake of fact relating to the gravity of an
offense will not shield deliberate defender from full consequences of
the wrong actually committed---assumes that D would guilty of
statutory rape even if girl was over 14 as D believed
Severity of punishment
NOTE: CA, unlike most states, crime of statutory rape allows reasonable
mistake of age as a defense but for more serious offense of child molestation,
no mistake of age defense
MPC Mistake of Fact (Elemental approach)
2.02(1): One 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.
There is a mens rea requirement for each element of an offense
2.04(1): Provides that a mistake is a defense, if it negates the mental state
required to establish any element of the offense. It is irrelevant whether the
offense would be identified as general-intent or specific-intent at common
law
Either the actor had the culpable state or mind required in the definition of
the offense in question or he did not
Exception: 2.04(2): The code provides that the defense of mistake-of-fact
is not available if the actor would be guilty of another offense, had the
circumstances been as he supposed.
*Unlike common law legal wrong, which maintains the D is guilty of
the higher offense in such circumstances, the Code only permits
punishment at the level of the lesser offense

e.g. from the example in the lesser crime doctrine of first degree rape
12 or less, second degree rape 14 or less
is the victim is 13, the MPC would convict them for second degree
rape based on Ds state of mind
another e.g.: poaching deer but end up killing a person punished
for poaching

Mistake of Law
o Common Law
Subject to very limited exceptions, ignorance of the law excuses no one
Neither knowledge nor recklessness or negligence as to whether conduct
constitutes an offense, or as to the meaning of an offense, is ordinarily an
element of that offense; therefore it follows that thee is typically no mens rea
element of an offense capable of being negated by an actors ignorance of
mistake of the law
Rationales:
Certainty of the Law: the law is easy to know
Avoiding subjectivity in the law
Deterring lying about what the person knew
Encouraging legal knowledge
o Exceptions to the General Strict Common Law Rule
Reasonable reliance (excuse)
Rule NO defense: Reliance on Ones own interpretation of the law:
A person is not excused for committing a crime if she relies on her
own erroneous reading of the law, even if a reasonable person even
a reasonable law trained person would have similarly
misunderstood the law
See People v. Marrero NY (a federal corrections officer, was
arrested for poession of a loaded gun, in violation of a statue
that prohibited the carrying of handgun without a permit. D
sought dismissal of his indictment on the ground that the law
expressly exempted peace officers from liability under the
state.
The statutory definition of peace officers included any
official or guard of any state prion or of any penal
correctional institution --- As a federal corrections officer D
claimed he believed that he was exempt under the law
Ds reading of the statue was not unreasonable, indded the
trial judge agreed. Nonetheless an appellate court concluded
that he was not a peace officer within the meaning off the
statue
No one is ever excused for relying on a personal even
reasonable- misreading of a statue
Rule: Receiving advice from private council is not a defense
Rule: A person is excused for committing a criminal offense if she
reasonably relies on an official statement of the law, later determined
to be erroneous, obtained from a person or public body with
responsibility for the interpretation, administration, or enforcement
of the law defining the offense
Narrowly applied. To be official the statement must:

o
o

1. Be contained in a statue later declared to be

invalided
2. A judicial decision of the highest court in the
jurisdiction, later determine to be erroneous; or
e.g. Cant act on decisions that are pending
in the Supreme Court
3. An official, but erroneous, interpretation of the
law, secured from a public officer in charge of its
interpretation, administration, or enforcement, such
as the Attorney General of the state or in the case of
federal law, the United States
Must be official, e.g. cant be the attorney
general telling you at the bar
Public works cant tell you about the rules of
the road, etc.

Fair Notice (excuse)

At common law, it is said that every one is conclusively presumed
to know the law. This means not only that citizens are presumed to
understand the law, but more fundamentally to be aware of the
existence of each criminal law
There are occasional cases in which it is so grossly unjust to assume
that a citizen is aware of a penal laws existence that the court gives
some leeway
See Lambert v. California: the Court overturned Ds conviction for
failing to register with the city of Los Angeles as a prior convicted
felon within 5 days of being there, as required pursuant to a strictliability ordinance of which D was unaware. Notwithstanding the
usual rule that ignorance of the law is no excuse, the Court reversed
the conviction on lack of fair notice due process grounds.
Although it appear that this ruling could open up fraudulent claims of
not knowing the law, the court saw this is an atypical scenario
This situation deals with conduct that is wholly passive
mere failure to register. It is unlike the commission of acts,
or the failure to act under circumstances that should alert the
doer to the consequences of his deed
Passive (omission) and malum prohibitum
Ignorance or Mistake that negate mens rea Failure-of-proof
The defendants claim is that because of a mistake of law almost
always it is a mistake regarding a law other than the one for which
she is being charged he did not have the requisite mens rea to be
convicted of the offense charged.
To the extent that this type of claim is exculpatory, it is like a
mistake-of-fact claim in that the defendant is acquitted for the
straightforward reason that the prosecution has failed to meet its
constitutional burden of proof regarding an essential element of the
offense
Sometimes knowledge that a crime is a crime does exist

More often, a defendants lack of knowledge of, or misunderstanding

regarding the meaning or application of, another law typically, a
non-penal law will negate the mens rea element in the definition of
the criminal offense
E.g. D is charged with rape after he has nonconsensual sexual
intercourse with V. At the time of his actions, D believed that V
legally was his wife, thus taking his conduct outside the rape law,
which prohibits nonconsensual intercourse with a female not his
wife. In fact, the marriage ceremony in which he and v participated
in was legally invalid, so v was legally not his wife
In these cases, the D presumably was aware of, and understood the
meaning of, the criminal state (rape) that was the basis of his
prosecution. At the same time, however, the defendant was unaware
of, or misunderstood the import of, another law (marriage law),
under the circumstances in which this mistake of law arguably is
relevant to the defendants criminal liability.
Shorthand: A mistake-of-law claim of the sort described here may be
termed a different-law mistake, because the claimed mistake related
to a law other than the offense for which the defendant has been
charged
First consideration for this defense: Whether the offense charged is
one of specific intent, general-intent, or strict liability
Specific-Intent Offenses
A different-law mistake, whether reasonable or reasonable, is a
defense in the prosecution of a specific-intent offense, if the mistake
negate the specific intent in the prosecuted offense.
The doctrine parallels the rule relating to mistake-of-fact in the
protection of specific-intent crimes (See above)
See Cheek v. Unites States D was an anti-tax activist who failed to
file federal income tac returns for 6 years. As a result, C was charged
with 6 counts of willfully failing to file federal income tax returns.
willfully means a voluntary and intentional violation of a
known law
D explained that he attended seminars sponsored by anti-tax
organizations that indicated that wages did not constitute
income under the IRS code. Therefore, D testified that he
believed he was not required to report wages.
The supreme Court ruled that if the jury believed Ds
outlandish believes, his mistake regarding the meaning of the
term income under the revenue code disproved that he
intentionally violated a known legal duty
Key: there was a specific intent in the statue that he did not
violate
o Belief does not have to be reasonable the jury gets
to decide..
General-Intent Offenses

Strict liability doctrine:

a rule of criminal responsibility that authorizes the conviction of a morally innocent person
for violation of an offense, even though the crime, by definition, requires proof of mens rea
E.g. the rule that a person who is ignorant of, or who misunderstands the meaning of a
criminal law may be punished for violating it, even if her ignorance or mistake of la was
reasonable.
See Mistake of Law