Actus Reus and Mens Rea Outline PDF

Actus Reus Is there voluntariness? o All acts must be voluntary (Martin) or include a voluntary act (MPC). o Yes, if opportunity to do otherwise (Low, CA, drugs in jail, guilty). § Counter: no, absurd results, self-incrimination (Eaton, WA, drugs in ja...

Actus Reus Is there voluntariness? o All acts must be voluntary (Martin) or include a voluntary act (MPC). o Yes, if opportunity to do otherwise (Low, CA, drugs in jail, guilty). § Counter: no, absurd results, self-incrimination (Eaton, WA, drugs in jail, not guilty). § Counter: no, cannot criminalize “being” (Jones v. City of LA, 9th Cir., not guilty). o No, if unconscious (Newton black panther or Cogdon sleepwalking, not guilty). § Counter: Yes, if voluntarily create risk of involuntary act (Decina epileptic driving, guilty). Is this an omission? No liability (no actus reus) unless statute imposes a legal duty. § MPC & Jones (did not feed Green’s baby) & Pope (insane mother, church lady). o (1) Does a statute impose a duty? (e.g., register your car, sex offender lists, etc.) o (2) Is there a duty-imposing special relationship? § No: Beardsley (mistress); Miranda (unmarried live-in boyfriend, amorphous). § Yes: Carroll (married step-mother). o (3) Is there a contractual duty? (e.g., caretaker) o (4) Did they voluntarily assume care and so seclude from other caretakers? (e.g., Natapoff putting her aunt in the attic) Mens Rea Presumption of Mens Rea: We only criminalize culpable mental states. o Malice: Cunningham (gas meter; purpose or recklessness), Faulkner (sailor stealing rum; purpose or recklessness), Grey (flight attendant; need evil). Step 1: Identify the intent requirement for each element (textually or argumentatively) (cite to punishment theories, if applicable) o Is it purpose? § Conscious object—intends for prohibited act to exist or result. § We usually want to require purpose for very serious crimes (e.g., murder) & inchoate crimes + more vicarious liability like conspiracy. o Is it knowledge? § Knew or was practically certain. § Common in property cases: Smith (flooring) and Morissette (conversion of spent rounds). § Willful Blindness: Jewell (transporting drugs in hidden comp.; deliberate ignorance), MPC (via Jewell dissent; subjective awareness), Global Tech (hybrid form; deliberate + subjective). Giovannetti (lack of curiosity in gambling operation). o Is it recklessness? § Consciously disregarded a substantial and unjustifiable risk that grossly deviated from reasonable standard of care. § Default under MPC and Elonis. § Welansky (blocked fire exits) and Hall (skiing). o Is it negligence? § Should have been aware because a reasonable person would have known. § Opposition from MPC and Elonis. § Hazelwood (oil tanker; civil needed to deter) vs Santillanis (cutting nephew; moral opprobrium should be higher than neg.). o Is it strict liability? § No MR needed to establish criminal liability. § Balint (did not know selling prohibited drugs)/Dotterweich (mislabeled drugs) + birth of regulatory state. § Morissette factors (public welfare, regulatory, controls dangerous thing; ∆ has control over potential harm; small penalties) + presumption against interpreting silence as dispensing with MR. Not Right Type of Dangerous Conduct + Passive + Lack of Notice: o Staples (firearm; need knowledge of gun), X-citement (child pornography; also helpful for statutory interpretation), Lambert (felon registration requirement; too innocent/passive → no notice). But see Bryant (sex offender registration). § Moral Wrong Doctrine § Acoustic Separation: Conduct (no SL) v. decision (SL). Step 2: Infer subjective intent from extrinsic evidence. o Relevant presumptions? Parallel Cases? Step 3: Is there exculpatory mistake of fact? o Prince (no MoF for under 16 snatching in England), Olsen (no MoF for under 14 sex). Step 4: Is mistake of law an excuse in this context/under this statute?? o MoL typically only applicable to knowledge. 1  o Not a defense unless statute makes it one. Look for knowingly/willfully violate. o Language § Marrero (peace officer; interpretations not exculpatory) vs. Smith (floorboards; property law), Varzegi (landlord computers; property law), Rehaif (immigration status; immigration law), Cheek (pilot did not pay income taxes; complex tax law). o Legislative Intent § IM (transportation of corrosive liquids; no MoL) vs. Liparota (food stamps; yes MoL). o Reliance § Albertini (double protestor; okay to rely on official statements); Rodgers (modifies Albertini; at your own peril); Hopkins (AG gave him the okay; no); MPC (official statement afterward deemed erroneous). 2. Legality; Proportionality Legality (Mochan—CL criminal law—and nulla poena sine lege) o Due Process § Was every element of every crime proven beyond a reasonable doubt (incl. act + intent for ev. Element)? (In Re Winship) Burden shifting: Patterson (NY makes EED affirmative defense). § Is there a legitimate governmental purpose with this statute? Bowers (sodomy) / Lawrence (liberty and privacy). o Statutory Interpretation § McBoyle (vehicle-plane). Purposivism: Mentally conjuring up image of vehicle to ascertain legislative intent. § Yates (tangible object-fish). (1) Ordinary meaning (2) Legislative context and intent (3) Canon of Superfluity: o Olsen (probation issue) but see MTS (reads (1) sex and (2) force as just sex) and Carroll (willful, deliberate, and premeditated = willful and deliberate). (4) Noscitur a sociis means “a word is known by the company it keeps.” o Used in McBoyle. (5) Ejusdem generis, a word is understood by the specific items in the list (6) Rule of lenity: 2 approaches. § Smith (“using” gun as currency). § X-Citement: Most natural grammatical reading of subsections is different MR unless doing so produces ridiculous outcomes. Suggests that no subsections means MR carries through. o Retroactivity (also part of DPC) § Keeler (fetus did not mean human in the past; “no CL crimes in CA”). § Bouie (sit-in by Black men; no unforeseeable retroactive expansions). § Rogers (year and a day rule; okay so long as neither unexpected nor indefensible). o Legislative Supremacy § Mochan (before). § Keeler (after). Proportionality o Courts defer to state legislatures in deciding how and when to dispense LWOP and other terms-of-years sentences. Relative to terms-of years sentences, there is almost no constitutional restraint on the state’s power to impose LWOP. o Harmelin (saltshaker of cocaine) proportionality test (only applies to terms of years sentences like LWOP) § (1) Legislative Supremacy (deferential to state) § (2) Penological Theory (theory of punishment) (deferential to state) § (3) Federalism (deferential to state) § (4) Objective Factors Homicide (1) Is it intentional (and premeditated) murder? o MPC: Purpose (intent to kill) or knowledge. o If statute requires, was there premeditation? § Carroll (shoots wife in back of head) premeditation is superfluous. § Guthrie (nose) opportunity to reflect—“some period” of time. § Anderson factors (planning, motive, manner/design of killing) present? (2) Is it depraved indifference/All other murder? o Was it recklessness +; Did it exhibit depraved indifference to human life? 2  § Took a risk that was not just risk of harm; it was a risk of DEATH. Risk of DEATH is what ratchets up the recklessness to the requisite depraved indifference necessary for murder. § MPC extreme indifference. § Malone (Russian roulette; high risk of death) § Fleming (driver oncoming traffic + 2x speed, “with a heart that was without regard for life”). (3) Can you mitigate to voluntary manslaughter? Establish murder, then go to mitigation. o Was there provocation? (CL) § Girouard (demeaning words): Words not enough, must be: (1) Extreme battery (2) mutual combat (3) illegal arrest (4) Serious harm/abuse of close relative (5) sudden discovery of spouse’s adultery § Maher (infidelity): Spirit of provocation. What a reasonable person would think. § Cooling time? Mitigation only works if there was not enough cooling time. o Was there extreme emotional disturbance? (MPC) § Must be (1) Subjectively under EED + (2) EED is objectively reasonable when viewed from circumstances as ∆ believed them to be. § No provocation requirement. Spirit of cooling time remains in reasonableness inquiry. § Casassa obsessed with neighbor, killed her, no EED not objectively reasonable (too “peculiar”), even after factoring in mental illness as part of reasonableness inquiry. § Patterson EED burden on ∆. But See Mullaney cannot make ∆ prove element of statute. (4) Is it involuntary manslaughter? o Was there recklessness? § Common Law Welansky (Nightclub fire). MA statute defines recklessness relative to the gravity of the danger. Reckless/wanton mens rea present where the: o (1) defendant in fact realized the grave danger and chose to disregard to risk, regardless of whether reasonable person would have foreseen the risk (subjective), or where, o (2) if the risk was grave enough (i.e., super high risk), a reasonable/ordinary person would have been aware of the risk (objective). § MPC Hall (Skiing). Conscious disregard of a substantial and unjustifiable risk which constitutes a gross deviation. Substantial means increased risk, not more likely than not. (5a) Is it negligent homicide? (MPC) o Was there criminal gross negligence—gross deviation from standard of care used by reasonable person under those circumstances. § Hall eventually convicted of this instead of involuntary manslaughter. (5b) Is it negligent homicide? (Civil, common law, rare!) o Was there civil negligence? (unreasonable conduct) § Williams did not take child with mouth infection to doctor. CAUSATION o But-for Cause: Would the person have lived but for the conduct? § Burrage (cocktail of drugs), Montoya (bodyguard displaced body).State must prove BARD that the victim would have lived but for ∆’s conduct. o Proximate Cause: Is the death foreseeable from the actions? Per Acosta, foreseeable if not highly extraordinary—this is a very low bar to meet. Defined as an appreciable probability that one could possibly contemplate (objective standard). § Acosta (never before seen helicopter crash) was not highly extraordinary. § Intervening Causes: Arzon (unknown 2nd fire) and Kibbe (robbers left drunk victim stranded in road under freezing conditions). Multiple causes fine, need not be “sole and exclusive factor”—(1) sufficiently direct and (2) circumstances of death reasonably foreseeable. Warner-Lambert (gum factory explosion): Triggering cause must be shown to be reasonably foreseeable. Restricted to commercial situations. o If causation issue, do attempt analysis. Rape Pre-Reform: Physical force (extrinsic to act of sexual penetration) + resistance (reasonable fear of serious bodily injury or death produced by threat) needed for non-consent. 3  o Was there force? § Rusk (keys + silence) force or reasonable fear of death or serious bodily injury. § DePetrillo (boss)/Mlinarich (juvenile) must be physical force. o Was there consent? § Rusk Resistance + force to establish non-consent OR reasonable fear of death/SBI. § NY/NE: Need a clear expression of non-consent. o Was there resistance? § Need evidence of resisting physical force unless obviated by reasonable fear of death or serious bodily injury (Rusk). § NY/NE: Light resistance idea still represented in the requirement to say no or reasonably/clearly manifest non-consent. Bare record, ∆ prevails. o Was the mens rea met? § Strict liability (implied by Sherry (nurse)) due to very robust and difficult to meet act requirement—if you met the act requirement, rationale was you must have been culpable. Post-Reform: No resistance, expansive definition of force, and affirmative evidence of consent required. o Was there force? § PA (post-Mlinarich): Moral, intellectual, emotional, physical, or psychological. § MTS force inherent in act of sexual penetration. o Was there consent? § WI/MTS (NJ): Affirmative evidence of words or actions that would convey consent to a reasonable person. Bare record, state prevails. § MPC is not truly affirmative consent standard—does not require resistance, but its “absence may be considered” in gauging non-consent. However, it is still more of an affirmative consent standard that NY. o Was there resistance? § No resistance needed. Evidence of resistance can still be used to establish lack of consent. o Was the mens rea met? § Fischer: (1) Physical force → strict liability (based on Williams stranger rape precedent). (2) Non-physical force (e.g., emotional, psychological, intellectual) → negligence. § Recklessness in Alaska and under MPC due to lowered force requirement. Ratcheted MR up to recklessness out of concern of overcriminalization of ambiguous situations. Defenses: Self-Defense; Duress. Self-defense (affirmative defense: a kind of justification for the crime) o Peterson and MPC same 4-part test, need imminence: § (1) Threat of SBI or death against the ∆. § (2) Threat must be imminent (aka immediate). Norman (shot sleeping husband): Strict imminence requirement danger must be immediate (MPC), cannot be guarded against by calling for help. § (3) Subjective belief that they are in imminent peril of death or SBI. Kelly (stabbed abusive husband with scissors): Expert testimony can be given to show a ∆’s subjective belief in the moment, especially given a jury might have a different assumption of the experience. § (4) An objectively reasonable fear in light of the surrounding circumstances. Goetz (black kids) Objective standard is expansive, takes circumstances, history, experiences into account. Kelly (stabbed abusive husband with scissors): Evidence of BWS helps juries make objective determination. Keeps it objective—not what is reasonable to the specific defendant (i.e., to a battered woman), but what an objectively reasonable person would do w/ the ∆’s specific experiences. o MPC: Self-defense constitutes an imperfect defense when the actor believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by such other person at that moment, but such a belief was not objectively reasonable. Duress (affirmative defense: a kind of excuse for the crime) o Toscano CL: (1) Imminent (2) threat that induces a (3) fear of death or SBI in (4) someone (includes the ∆ and family/friend). § Imminence requirement very restrictive. “Mere assertion of threats” or slow death inadequate (Fleming). Duty to escape if reasonable opportunity (Contento-Pachon). Ability to escape is element of imminence. Fleming (POW deadly cave or 200mi walk). Contento-Pachon (cocaine ingestion). 4  § Not a defense to homicide. o MPC: (1) Threat of (2) physical force (still has to be physical) against a (3) person that a person of (4) reasonable firmness in his situation (subjectification of objective standard) would not be able to resist. § Can be a defense to homicide. Attempt Intent (Mens Rea, 2 versions) o CL: The mens rea for attempted ___ has to be purpose (specific intent) to commit ____. § Smallwood (HIV man commits 3 rapes): No intent to murder. To prove specific intent via circumstantial evidence, you must show that the risk of ∆’s conduct producing a criminal result is so high it is permissible to draw an inference of specific intent. But see Raines (firing gun at vital organ) and Hinkhouse (made comments about wanting to transmit HIV + lying). o MPC: Mens rea for attempt is based on the underlying offense. Widens the scope of what can be criminalized & thus disfavored. o Attendant Circumstances: For both the MPC and most common law jurisdictions, the mens rea with requisite mens rea for the attendant circumstances in an attempted crime is the same as the underlying offense (i.e., will not ratchet up MR to purpose for attendant circumstances). Act (3 versions) o (1) Dangerous Proximity Test (CL): So close to accomplishing crime that it probably would have occurred but for someone’s timely interference. § Rizzo (seeking payroll guy) Not dangerously proximate—had not found man they intended to rob. o (2) Substantial Step (MPC): Strongly corroborative of intent. How far have you gone? Liability attaches earliest under this test. § Jackson (weapons in trunk). Convicted of attempt to rob a bank. Like Rizzo, under MPC, convicted. But See Harper: The ∆ set a billtrap (jammed bills to get maintenance to come) and planned to steal the money from the ATM when it was opened. Making an appointment to do something in the future is not a substantial step. But See Joyce: Drug dealer in hotel, never actually opens drug package or takes out money to purchase cocaine, leaves the room. Conviction reversed. o (3) Unequivocality Test: Not a temporal thing. Actions bespeak of intent by themselves (res ipsa). § Best test for defendants in that it is hardest to prove the act requirement of attempt under this test. Arguably even closer than DP. § Miller (gun in field): ∆ in field with the gun but never loads or raises the weapon, court finds act not met. § Barker (haystack): Someone who takes their matches to the haystack, lights a match and then realizes they are being watched so blows out the match. Defenses o MPC Complete and Voluntary Renunciation Defense: Only applicable once act and intent already proven—attempt must be committed and then completely and voluntarily taken back for this defense to apply. § CL does not allow for renunciation. § Same fact pattern different outcome: Victim says, “This would be a terrible thing to do; do not do it.” ∆ says, “Okay, I will not.” McNeal (no renunciation because unexpected resistance) vs. Ross (yes renunciation because persuaded). o Impossibility (factual v. legal) § Legal Impossibility (exculpatory): Occurs when the actions which the defendant performs or sets in motion, even if fully carried out as intended, would not constitute a crime. Jaffe (believed goods were stolen, but were not) legal impossibility. Berrigan sneak things into prison illegally, but warden knew, so not illegal. Example: Sex with woman over 18 thinking she is 16. § Factual Impossibility (non-exculpatory): Occurs when the defendant’s objective is criminal in nature, but some circumstance unknown to the defendant prevents him from bringing about the crime. Example: Shooting into an empty bed you thought someone was in, can still be attempted murder, just lucky facts. Example: Pickpocketing an empty pocket. § MPC: Impossibility does not matter; it is just about the state of mind of the ∆. Impossibility is no defense if such crime could have been committed had the attendant circumstances been as ∆ believed them to be. Dlugash attempted murder of someone who was already possibly dead, because he thought he was alive. 5  § Oviedo court says that we should not criminalize thoughts. We should mark the ∆’s crime as criminal in nature without assuming their mens rea. Conspiracy Act: Requires agreement + (in some jx, including the MPC) an overt act. o Alvarez smiling and nodding + plan to be present at unloading site = agreement. o Apple (price fixing) need more than parallel conduct. Factors to consider: § (1) Common motive. § (2) Acts against self-interest (e.g., agreeing to price change that initially produces smaller profit margins). § (3) Unprecedented changes in pricing structures § (4) High levels of communication. o Garcia (shooting at party) cannot infer agreement merely from group membership. Intent: The MPC mens rea for conspiracy is purpose (intent to further conspiracy/desire/want to further). Purpose for most crimes under common law; however, for very serious crimes, knowledge may suffice (Lauria). o Lauria (phone service used by sex workers) Knowledge not enough need intent and purpose to agree. 3-part test: purpose may be inferred from knowledge: § (1) Stake in the venture § (2) No legit use § (3) Gross volume o Attendant Circumstances: In conspiracy, the requisite mens rea for the underlying offense’s attendant circumstances is typically SL. Be able to make argument that MR for attendant circumstances should not be SL in certain situations. Vicarious Liability o (1) Pinkerton/Bridges: Assuming existence of conspiracy, all co-conspirators can be vicariously liable for crimes not committed in scope of conspiracy (i.e., not a part of original agreement) if they are (i) reasonably foreseeable as a natural and probable consequence of the conspiracy and (ii) in furtherance of conspiracy. § See also Brigham (murder) expansive interpretation of reasonable foreseeability based on coconspirator’s hot temperament. § But See Alvarez limits on Pinkerton liability: (1) ∆ had to play more than a minor role OR (2) ∆ had actual knowledge of some of the circumstances culminating in the reasonably foreseeable but originally unintended crime. Very easy not to be minor player, based on 3 guys in Alvarez. o (2) MPC rejects Pinkerton, purpose to commit that offense needed for VL. Defenses o Duration: Until all co-conspirators stop acting! o Impossibility: No impossibility defense for conspiracy. Otherwise, stings would be impossible because one party would not truly be agreeing. o Withdrawal: Gets you out of Pinkerton liability but not the conspiracy. § Have to (1) unambiguously and effectively communicate stating ∆ has withdrawn (Randall) to (2) ALL CO- CONSPIRATORS (Godines). o Renunciation: Gets you out of both Pinkerton liability and conspiracy. § Requires thwarting success of conspiracy (MPC) or substantial efforts to thwart (some jx; have to call police). Misdemeanors Problems—Collateral Consequences Examples Punishment What theory of punishment applies? o Retributive o Utilitarian 6 Section A. Goals of Criminal Law / General Themes I. Key Framing Questions (1) How much interference with individual liberty will we tolerate in the name of public safety? a. Any criminal rule rests on one of these sides: individual liberty vs. state power à state obligations (“thumb on the scale”) (2) How much do we turn to criminal law to do the work of governance? (3) How does the state define criminality? II. Burdens of Proof / Due Process (1) Ranges from “scintilla” to “probable cause” to “preponderance” (i.e., more likely than not) to “clear and convincing” to “beyond a reasonable doubt.” (2) In Re Winship: The standard of proof for criminal crimes is BARD. DPC protects accused against conviction except upon proof by the government BARD of every element of a crime necessary to constitute the crime. a. Policy: The burden of proof “operationalizes” our commitments of limits on the government’s power to criminalize us while reducing the risk of convictions based on factual errors. Moral force of criminal law should not be diluted by a standard of proof that leaves people in doubt whether innocent men are being condemned. (3) Burden Shifting: a. See Patterson and Mullaney for burden shifting of proving EED. (below) III. Status v. Conduct (1) Bowers (no right to sodomy) / Lawrence (cannot criminalize status of being gay) a. Distinction hinged on framing of the right (sodomy v. privacy). Lawrence frames the issue much more broadly as a matter of personal LIBERTY, not sodomy. Criminalizing status, who people are: highlights the importance of framing. b. Bowers: The Supreme Court held that gay people do not have a fundamental right to engage in same-sex activity, and that the states can make such conduct a crime if they wish. c. Lawrence: Overturns Bowers. The DPC fundamentally protects consenting adults’ right to engage in private and intimate conduct. Thus, states are not permitted to criminalize such conduct (i.e., the Texas state is invalidated on constitutional grounds). i. We can overturn stare decisis when it was wrong, when it disrupts our other precedents. IV. What power does state have to call us a criminal in the first place? Meta constitutional due process analysis indicates that there are constitutional limits to state power, but they are very narrow. In the absence of constitutional constraints, the state’s power to criminalize conduct is incredibly plenary. 7 SECTION 1. ELEMENTS OF A CRIME – ACTUS REUS & MENS REA I. Every material element of a crime has: an act requirement + an intent requirement II. Categories of Material Elements (1) Conduct (verb; thing you are doing) (2) Attendant circumstances (it is a thing being prohibited) a. Is the building a dwelling? b. Is the person you had sex with under 16? c. Is it baking soda or cocaine? (3) Result a. Property destroyed. b. Someone died. III. With specific intent crimes (e.g., breaking and entering with intent to commit a felony, think of specific intent as modifying other material elements, rather than as its own material element). 1.1. ACT REQUIREMENT (ACTUS REUS): Commission of some voluntary act that is prohibited by law. I. Issue Checklist (1) Look at the governing legal rule. (2) Look at the conduct. a. Is there an omission? i. Need a legal duty for there to be an omission. Legal duties can be based on: a. Status relationship b. Statutory duty c. Contract to provide care d. Voluntarily assume care of a helpless person such that you seclude them from being cared for by an existing provider b. Voluntary? Consciousness? Time frame? i. Voluntary: either the actual criminal act needs to be voluntary (Martin) or, MPC/Decina timeline approach → criminal act includes a voluntary act. ii. Voluntariness: Cannot be unconscious/asleep (Newton) iii. Involuntariness: Jones v. LA, cannot criminalize status/being. (3) Affirmative defenses: self-defense, duress II. Voluntariness Requirement. We do not consider someone to have “acted” unless they do voluntarily. (1) MPC: § 1.13. An "act" is a "bodily movement whether voluntary or involuntary.” (2) Policy: a. MPC’s language choice of “includes” à “totally different philosophy of moral culpability” b. Involuntary movements “do not present a problem of correction”; maybe therapy/custody c. Don’t want to punish people for thoughts alone. III. What does it mean for an act to be “voluntary”? (1) MPC: Codifies voluntariness requirement for all crimes a. § 2.01(1). “A person is not guilty of an offense unless his liability is based on conduct which includes a voluntary act or the omission to perform an act of which he is physically capable.” b. § 2.02 (2) Not voluntary acts: reflex or convulsion; bodily movement during unconsciousness or sleep; conduct during hypnosis or resulting from hypnotic suggestion; bodily movement that otherwise is not a product of the effort or determination of the actor, either conscious or habitual. i. MPC says hypnosis is involuntary, but habit is voluntary. c. Problems: i. Doesn’t include many types of conduct that are often described as involuntary in ordinary speech – e.g., irresistible impulse ii. Habit → (e.g. “You know” or picking up phone even while on highway) = habitual action done without thought (voluntary) -OR- reflex (involuntary) iii. Hypnosis → involuntary because dependency and helplessness are too pronounced a. Habit, even when unintentional, are a product of the effort or determination of the actor → fair to be voluntary b. But isn’t that true of hypnosis? (2) Martin v. State. a. Facts: The police showed up at Martin’s home and forcibly carried him to a highway, where he manifested a drunken condition. b. Outcome: Court ruled that he cannot be convicted of “appearing and manifesting” a drunken condition because he did not “appear” at the public place voluntarily but was “involuntarily and forcibly carried to the place by the arresting officer.” 8  c. Rule: The act requirement presupposes voluntariness. d. Counterargument: i. Cannot claim that he engaged in NO voluntary conduct at all – he presumably drank, and once in public, he used loud & profane language ii. The key distinction between Martin and the MPC is the use of the word “includes” in the MPC’s definition of voluntariness. iii. If Martin’s conduct evaluated under MPC, he might have been liable (conduct included a voluntary act; he chose to get drunk and manifest drunken behavior). a. Under Martin: i. Looks at each element separately - if any ONE of them involuntarily, standard is not met = more demanding ii. Every element has to be done voluntarily for you to be guilty iii. Harder for Ds to be found guilty b. Under MPC: i. “Includes voluntary act” → narrow breadth, so long as you did something voluntary ii. Just one of the elements in the statute have to have been done voluntarily for you to be liable iii. Easier for Ds to be found guilty iv. Using Decina standard, we could say Martin voluntarily drank/beat wife, which means the consequences of that action are foreseeable. (3) People v. Low. (application of Martin; compare with Eaton below; same facts but come out differently) a. Facts: Defendant arrested for driving a stolen vehicle, taken to jail, drug search found drugs hidden in his socks. Convicted of stolen vehicle offense + of knowingly bringing a controlled substance into jail. Def invoked Martin to argue that, because he was taken to jail against his will, he had not voluntarily committed the act of bringing the drug into jail. b. Outcome: Distinguishes Martin; court upheld the conviction saying Low had the opportunity to avoid the act by voluntarily relinquishing the drugs before entering. c. Rule: If you did not have a meaningful choice to engage in it, that is involuntary. Bad/unappealing choices do not make actions involuntary. (4) State v. Eaton. (application of Martin) a. Facts: same as Low (drugs in socks). b. Outcome: Finds Martin controlling and reverses conviction for brining controlled substance into jail. Def had no choice but to do something that would surrender evidence that would convict him of another crime, which removes voluntary choice. Characterizing such a dilemma as a “choice” and failing to read “voluntariness” into the statute produces absurd results incompatible with principles of criminal responsibility. There was no presence of a meaningful choice. c. Rule: Conduct cannot meaningfully be considered voluntary if the only alternative is self-incrimination. (5) Jones v. City of LA. a. Facts: LA ordinance made it an offense for someone to sit, lie, or sleep on the street, sidewalk or other public way. 1000s of homeless people brought suit to enjoin the enforcement of the ordinance against them arguing insufficient number of beds in the shelter for them. i. Argued that convicting them would punish them for "universal and unavoidable consequences of being human" b. Outcome: Court agreed with plaintiffs and finds ordinance as punishing people for being homeless (i.e., punishing person for who he is independent of anything he has done). c. Rule: State may not criminalize being, which raises the question of conduct versus status—what we do vs. who we are. i. A person cannot be criminalized for status alone. (Robinson) ii. But states can criminalize conduct. (Powell v. Texas) d. Dissent: this is targeting conduct – sitting, lying, or sleeping on city sidewalks – NOT homelessness alone e. Policy: Offensive to our fundamental sense of liberty to criminalize things over which individuals have no choice or agency over. i. See also Bowers v. Hardwick & Lawrence v. Texas à criminalizing homosexuality. (6) People v. Newton. a. Facts: Black panther leader was shot in the stomach and then shot a cop; doctor testified blood loss consistent with unconscious state. Def argued prejudicial error in trial court’s failure to instruct jury on unconsciousness as a defense to criminal homicide. b. Outcome: Court agreed and held that involuntary unconsciousness (i.e., not self-induced) was a complete defense to a charge of criminal homicide. c. Rule: Where not self-induced as by voluntary intoxication or the equivalent, involuntary unconsciousness is a complete defense to a charge of criminal homicide. 9  i. What qualifies as unconscious? → “Where the subject physically acts in fact but is not, at the time, conscious of acting” (need not reach the physical dimensions associated w the term, such as coma, inertia, etc.) (7) People v. Decina. a. Facts: Epileptic man voluntarily drives car on a highway, has seizure, kills 4 people. b. Outcome: Court held defendant was liable as he drove knowing that he was susceptible to epileptic attacks and that moving a vehicle on highway is dangerous. With this knowledge, he deliberately took a chance by making a conscious choice of a course of action, while he knew the consequences that may follow from his conscious act. c. Rule: Court expands time frame of acts to find a voluntary act that led to the involuntary, prohibited choice. i. At T1: gets into car, voluntary and conscious choice. At T2:has accident while having a seizure, unconscious and involuntary. ii. He knew he had epilepsy that could strike at any time, which could make driving on the freeway dangerous, and did it anyway. Even though, at the moment of the actual harm, he was not in control, he voluntarily assumed the risk of such an accident when he entered into a “two ton killing machine”. Thus, per Natapoff, “The court held that he committed the act prohibited by the statute in a voluntary way.” d. Rule: Involuntary unconsciousness can be a complete defense (as in Newton) but it cannot be self-induced. i. Must engage with the “accordion of time” challenge when evaluating voluntariness. The time frame employed is important. ii. A short time frame that only considers the voluntariness of an individual’s conduct at the time of the wrongful act can produce vastly different results relative to a longer time frame. (8) Codgon. a. Facts: Charged with murder of only daughter despite very tight relationship. Fear of spiders. Had dream spiders crawling all over her daughter → violently getting them off her. Then dreamt that Korean war was in her house → in sleepy (somnambulist) state she killed her. Expert showed she suffered from hysteria and sleep acts were to be expected. b. Outcome: not guilty (though if awake at time of murder → guilty) c. Rule: Sleep-walking is involuntary. (9) Macias. a. Undocumented immigrant tried to enter Canada, Canada forcibly returned him to U.S. Customs, and he was charged for being illegally in the US. Not guilty because he returned involuntarily. IV. Potential Defenses (1) Unconsciousness à need to reach the physical dimensions commonly associated with it such as coma, inertia, etc.. a. Involuntary unconsciousness = act done by muscles without any control of the mind, a reflect or convulsion, or an act done by a person who is not conscious of acting. Newton b. HOWEVER – not remembering or that you could not control your impulses is not enough of a defense. (2) Sleepwalking à Cogdon (3) Hypnosis à dependency and helplessness under hypnosis too pronounced. (4) Epilepsy à Decina (5) Actions done accidentally or under duress can mitigate actor responsibility. (6) NOT habit (= voluntary). V. Omissions. Failure to act does not count as an act for criminal purposes unless the defendant had a duty to act. (1) Failure to act (omissions) is not a crime unless the law imposes the duty upon one to act, in which case, it can be criminalized. (2) Must be a legal duty and not a mere moral obligation. (3) Policy: Imposing duties to act also means granting power to act; rights of parents? a. No good Samaritan laws here. This is America! We don’t have a duty to rescue each other. b. Balance of individual liberty & state power? c. Amorphous relationships create danger of too expansive duties, deter taking an interest in a child? (But see dissent in Miranda: people who care for kids won’t be deterred) VI. When is the failure to act a breach of legal duty? (1) MPC § 2.01(3): Liability for the commission of an offense may not be based on an omission unaccompanied by action unless: a. the omission is expressly made sufficient by the law defining the offense; or b. a duty to perform the omitted act is otherwise imposed by law. (2) Jones v. United States. a. Facts: Green left 10-month-old boy with family friend, Jones, who neglected the baby and he died. Jones was charged with involuntary manslaughter. Jones argued that trial court failed to instruct jury that they must find he was under a legal duty to supply food and necessities. b. Outcome: Error for trial judge to not instruct jury that Jones could only be guilty if he were under a legal duty to feed and provide care for child. 10  c. Rule: Legal duty is required to criminalize omissions. The law has recognized 4 situations where a failure to act will be deemed a breach of a legal duty: i. (1) Where a statute imposes a duty to care for another. a. Natapoff Examples: Driving a registered car; Doctor. b. Good Samaritan laws. ii. (2) Where one stands in a certain status relationship to another (Pope; Beardsley; Carroll; Miranda). a. Natapoff Examples: Parent; Spouse; Employer-Employee; Owners-Customers b. NOT siblings, parents aiding adult children, adult children aiding parents (even when old/impaired), man & mistress (see Beardsley – affair with staying at each other’s house ≠ legal duty even when the other ODs) iii. (3) Where one has assumed a contractual duty to care for another. a. Natapoff Example: Babysitter, caretaker (e.g., getting paid $4, and now you have a contractual duty to care). iv. (4) Where one has voluntarily assumed the care of another and so secluded the helpless person as to prevent others from rendering aid. a. Natapoff keeping her great, great aunt in her attic. (3) Pope v. State. (demonstrates anxiety we have in extending legal duties) a. Facts: Pope invited a mother and her infant child over to her home. The mother suffered a mental illness episode, thought she was God and that satan was inside her child. In Pope’s presence, she severely beat her child. Pope did nothing to help the child, did not call authorities or seek medical assistance. The child died that evening. b. Outcome: Court ruled she was not guilty because she did not have the legal obligation (despite moral obligation) to protect the child and usurp the role of the mother because she was always present. c. Two-part statute at issue: i. PART 1 → Relationship existed a. (1) parents, (2) adoptive parents, (3) in loco parentis to, (4) responsible for the supervision of a minor child under the age of 18 ii. PART 2 → act of omission or commission occurred. iii. Here: a. Satisfies PART 2 → Pope’s lack of attempt to prevent the numerous acts of abuse committed by Norris over a period of time and her failure to seek medical treatment for the child constituted cruel and inhumane treatment within the meaning of the statute. b. But does she satisfy PART 1? (category 4) c. State argues → i. Equate Pope’s acts of compassion, concern, and kindness for Norris and her child into having the responsibility for the supervision of the child. ii. Moreover, the state claims that once Pope assumed the tasks of housing, feeding, and caring for Norris and the child, she fell into the class of persons envisioned by the statute. d. Court’s response → i. Mom was always present w the child ii. Pope had no right to usurp the role of the mother even to the extent of responsibility for the child’s supervision. d. Rule: Being invited into someone’s home does not create a legal duty. If this was true, would allow other people to intervene on the parenting of other children in an expansive set of circumstances, such as during sleepovers. e. Policy: If you have the duty, not only do you have a responsibility, you have the POWER. So, you would essentially be giving ordinary people the power and responsibility to parent the children of others. i. Power/Duty are tied. ii. There is no distinction that a person “has” responsibility for the supervision of a child if that person believes, or has reason to believe, that a parent is not capable of caring for a child → YOU CAN’T MAKE THAT SUBJECTIVE CALL! iii. There is no right to make such a subjective judgment in order to divest parents of their rights to raise their children. iv. “The mental state of the mother though troubled doesn’t change the result” v. The Good Samaritan’s interpretation of her mental state is irrelevant - we don’t let other people decide when people lack mental capacity thereby acquiring duties for other children. (4) People v. Beardsley. (narrowing scope of familial duties) a. Facts: Def having an affair, spent weekend away with her, she took fatal dose of morphine, def failed to call doctor and she dies. Convicted of manslaughter. b. Outcome: Court held he has no duty to do anything because they were not married. Court wants to keep formal legal lines because they are worried about a slippery slope of imposing culpability. 11  c. Rule: No marriage = no duty. (5) People v. Carroll. (broadening scope of familial duties) a. Facts: Carroll (stepmom defendant) failed to prevent her husband from killing his daughter during a week when the daughter was temporarily visiting them. b. Outcome: Court held that a stepmother owed a duty of care to her husband's children. She was acting as the functional equivalent of a parent and is legally responsible for child's care. c. Rule: Stepmom legally related enough to stepchildren to impose a duty of care as acting as functional equivalent of parent. Applies once parent/stepparent are married. d. Policy: broadening scope makes sense in modern reality that parenting functions are not always performed by biological parents. i. See also Staples (imposes duty where adult resides w child who assumes a parent-like role and substantial responsibility for such necessities as food, shelter, and protection) ii. See also Bartley (parent has duty under Kentucky statute to provide for an adult child who is wholly dependent because of mental disability). iii. See also Gargus (adult child has duty to care for elderly, vulnerable parent who could not care for herself when child has assumed that responsibility). (6) State v. Miranda. (narrowing scope of familial duties; compare with Staples) a. Facts: Miranda (defendant), a live-in boyfriend, failed to protect his partner’s infant child from a fatal beating. While residing with the family, defendant had taken care of the child and considered himself to be the infant’s stepfather. b. Outcome: Court says no duty to intervene on the child’s behalf, since considering himself a step-father does not mean that he has the rights and duties of an actual step-father. c. Rule: Stepparent but not married = no duty. d. Policy: i. State is hesitant to expand scope of imposed legal duties & further criminalize omissions. ii. Boundaries of legal duty are becoming too amorphous— it would become unclear what would happen to relatives, friends, and family of children should they be caught in a possible “web of criminal liability.” iii. Can be established parent if he wanted. iv. May discourage people from taking care of children if they fear criminal liability. e. Dissent: i. But also consider that might be taking an entire class of legal protectors off the table if live-in partners have no legal duty. ii. People who care for kids will not consciously decide against getting involved for fear of legal liability when the child is abused/neglected. iii. Affording protection to only those kids whose adult caregivers have chosen to have their relationships officially recognized doesn’t advance public policy of protecting kids from abuse. 12 1.2. INTENT REQUIREMENT (MENS REA): “The Guilty Mind” “There is no crime without a vicious will” I. Issue Checklist (1) Separate out each statutory element. (2) Is there a clear intent requirement? Determine the intent requirement for each element. (3) If no clear intent requirement, walk through the different possibilities and discuss what the implications would be + which makes sense a. Silent statute? Default generally recklessness (Elonis + MPC). i. Courts reluctant to read negligence into silent statute (Elonis). b. Statute partially silent? Default is that MR specified should apply to all material elements, “unless a contrary purpose plainly appears” (MPC). c. Does the element relate to property? Morissette and Smith suggest knowledge. d. Is it a regulatory offense? Strict liability possible (Morissette). i. Would SL criminalize a broad range of apparently innocent conduct (Staples)/does the individual have any reason to actually be on notice (Lambert). ii. Legislative history, purpose of law, low penalty imposed? (4) Evaluate ∆’s conduct. a. Will need to infer subjective intent from extrinsic evidence. (5) Is there an issue of mistake of fact? Is there a mistake of law that the statute makes an element of the crime? II. Every “material element” of every offense has a requisite mens rea/intent. (1) MR Broadly: a. MR is moral fault. b. “An unwarrantable act without a vicious will is no crime at all” à vicious will = the mens rea; the blameworthiness entailed in choosing to commit a criminal wrong. c. Blame and punishment are inappropriate in the absence of choice d. Mens rea defenses = defenses that aim to establish the absence of moral blameworthiness (e.g., involuntary act, duress, legal insanity, accident and mistake). e. Premise that the more a defendant intends to commit a wrongful act, the more that person should be punished. Was this person bad? Was it an evil mind? (2) MR Narrowly: a. Technical requirement for criminal liability à the kind of mental awareness or intention that must accompany the prohibited act under the terms of the statute defining the offense. b. Determining whether the defendant intended, expected, or should have expected that his actions would produce particular consequences? (3) “One who has a higher mens rea also meets any lower mens rea.” (4) Court typically presumes that there is a mens rea element in a silent statute (but see Balint; Dotterweich; Morissette factors). What kind of mens rea does the statute require, especially when statute is silent on the issue of mens rea? a. The more serious the crime, the more likely we are to apply a higher MR standard. b. Mens rea interpretation constrained by legality doctrine (e.g., retroactivity and DPC concerns). III. Specific Intent v. General Intent. (1) Three possible meanings of specific intent: a. (1) Action done with some specified further purpose in mind. “Doing X, with the intent to do Y.” i. Ex: burglary (Breaking and entering + intent to do crime therein), assault with intent to kill—have to prove both intents. These are “intent to” crimes. Break in and did not intend to steal? Not burglary. ii. Defenses generally available if you cannot form the specific intent. b. (2) Crime that requires the defendant to have subjective awareness of some particular fact or attendant circumstance in addition to knowledge of their conduct. i. Ex: bigamy. Intent to marry + knowledge of attendant circumstance that the person is married to someone else. c. (3) Specific intent is also sometimes used to refer to the mens rea of recklessness and negligence. (2) Two possible meanings of general intent: a. (1) Intent to act without any other purpose in mind. Did not intent any further outcome other than the act itself. Even without proof of a specified additional intention, they can be convicted (usually just a voluntary act) i. Ex: Breaking and entering à would be guilty of trespass. ii. Awareness of the attendant circumstance need not be proved; requires a lesser mental state; requires less proof and is often less bad. iii. Defenses less available because don’t need to form a specific intent. b. (2) General intent is sometimes used to refer the mens rea of purpose and knowledge. IV. Presumptions. (1) Inherent difficulty in proving what was in a defendant’s mind unless defendant admits to it. à Must prove mens rea indirectly through circumstantial evidence and inferences one can draw from it 13  (2) Presumptions are particularly relevant because, after we establish the requisite mens rea, we have long, drawn out arguments about a defendant’s subjective state of mind (this is where presumptions come in). a. Mandatory Presumptions: inferences that the jury is required to draw in the absence of contrary evidence. i. In the world of jury instructions, lawyers would often request that the judge instruct the jury to conclude that “[a] person of sound mind and discretion is presumed to intend the natural and probable consequences of his acts.” ii. In Francis v. Franklin, SCOTUS held that this mandatory presumption was unconstitutional as violates the principle of In re Winship, which held that the government must prove BARD all elements of a criminal offense to convict. With this presumption, the government only had to prove that a person is of “sound mind and discretion” in order to prove intent, thereby relieving the government of proving every element BARD. iii. In Franklin, court held that mandatory presumptions are constitutional only when we can have confidence that over all criminal cases in general, the presumed fact will always be present when the fact used to trigger the presumption is present. iv. Mandatory presumptions are strictly limited. b. Permissive Presumptions: Here, the judge informs the jury about a factual conclusion that it is permitted but not required to draw. i. Allowed when conclusion “is more likely than not” to be true in circumstances of the case. ii. Permissive presumptions are allowed far more frequently than are mandatory presumptions. iii. Ex. possession of stolen property à jury can infer that person in possession knew property was stolen. V. Step 1: Identify the MR requirement for each element. (1) Reverse engineering: ask whether there was purpose, knowledge, recklessness, negligence – if they accept as a defense a reasonable mistake then they take as the default negligence (2) Common Law: Many different categories of mens rea including willful, malicious, wanton. a. Regina v. Cunningham. i. Facts: D ripped off the gas meter in the cellar of an unoccupied home and stole the money inside (he was short on money given job problems). D didn’t turn off the gas → seeped into an adjacent house where an elderly woman was sleeping. She suffered injuries. D pled guilty to larceny for stealing the gas meter and money. He was also convicted under statute making felony to “unlawfully and maliciously” give or cause another person to take poison in a manner that endangers his or her life or causes serious injury. TJ instructed jury that “malice” = “wicked” that a person acted maliciously if he did “something which he has no business to do and perfectly well knows it.” ii. Outcome: Jury misdirected on definition of malice. There is MR requirement in the statute & “malicious” does not mean wicked as in ill will or wrong/disapproved of action. iii. Rule: Malice requires foresight of consequences. Malicious is defined as: a. (1) intending to cause the actual harm that was done (PURPOSE) or b. (2) reckless disregard of a foreseeable risk that the harm would result, meaning the person was aware of the risk of harm and did the act anyway (RECKLESS). iv. KT: longstanding presumption that criminal laws have a mens rea requirement (“wicked” isn’t enough); issue here is figuring out what MR of malice means. a. Wickedness is not mens rea. Cunningham could have been “wicked” just from stealing quarters—this would have nothing to do with his mens rea as it relates to harming his neighbor. b. US v. Gray. (exception to Cunningham) i. Facts: Flight attendant wanted a longer layover. Called in a false bomb report to delay the flight. charged under statute which makes it a crime to “maliciously” give false information about a bomb threat on plane. a. Gov argued that “where a statute does not define a common-law term like malice, courts presume that Congress adopted the common-law definition” which the gov equated with “disregard of the likelihood that damage or injury would result.” à like Cunningham (appeal court). b. Defense argued that malice means “to do something with an evil purpose or motive.” à like Cunningham (trial court). ii. Outcome: Court accepted defense’s approach. iii. Rule: while most courts agree that malicious generally means either purpose or recklessness, court defined malice as requiring “evil” in addition to purpose or recklessness: “to do something with an evil purpose or motive.” iv. KT: malice sometimes has an “extra added evil tail.” c. Regina v. Faulkner. i. Facts: Sailor went to steal some rum, lit match to see better in dark, some rum caught on fire and fire spread. Ship destroyed. Charged with violating an act by “maliciously” setting fire to ship. 14  a. Judge instructed the jury that although he had no intention of burning the ship, if they found he was engaging in stealing, and the fire took place, they ought to find him guilty. ii. Outcome: Court rejects TJ instructions application of principle that if a person is engaged in committing a felony and accidently does some collateral act (which if done willfully would have been another felony), he is guilty of the latter act too. iii. Rule: Has to be criminal intent with respect to the specific crime committed, not another crime you were committing at the same time a. Act must be in fact intentional and willful, or that the accused knew that injury would be probable result of his unlawful act but did the act reckless of such consequences. à like Cunningham (3) MPC: a. § 2.02(1). Minimum Requirements of Culpability. “… a person is not guilty of an offense unless he acted purposely, knowingly, recklessly or negligently, as the law may require, with respect to each material element of the offense. b. § 2.02(2): Kinds of Culpability. Purpose, Knowledge, Recklessness, Negligence. c. Subjective Standards: asks what the defendant actually intended or knew. i. Purposely, knowingly, recklessly d. Objective Standard: asks what the defendant should have reasonably known. i. Negligently à Different from other MRs because it does NOT involve a state of awareness; must inadvertently create a substantial and unjustifiable risk of which he ought to be aware. VI. Silent Statutes (1) Common-Law: Default = recklessness (Elonis v. United States) (2) MPC: When a statute is silent, MPC’s default MR is effectively recklessness, as that is the least the gov must prove (it is lowest on hierarchy of culpability of the three choices given). a. §2.02(3): When the culpability sufficient to establish a material element of an offense is not prescribed by law, such element is established if a person acts purposely, knowingly or recklessly with respect thereto. This is a good rule: This is a bad rule: Instantiates our commitment to criminal Kind of negates our sense of innocent before guilty because we’re liability surrounded by risk - how is that criminal = a form of It’s better than the alternatives criminalization (purpose/knowledge) - if it was only Is it easy to prove conscious risk? - we don’t believe you that you purpose or knowledge we could only didn’t know! → watered down beyond a reasonable doubt standard criminalize ppl who intended or knew by making it a negligence standard because of the way jurors are BUT NOT those who were conscious of going to infer -- yes but that’s a risk. a risk. Whenever you make a standard easier to prove, you run the risk of human mind making things easier/harder VII. Partially Silent Statutes (1) Common-Law: (2) MPC: When a statute is partially silent (i.e., there is a MR specified, but the statute does not parse it out for each material element), the MPC’s default is to assign that specified MR to all material elements, unless “a contrary purpose plainly appears.” 15  a. §2.02(4): When the law defining an offense prescribes the kind of culpability that is sufficient for the commission of an offense, without distinguishing among the material elements thereof, such provision shall apply to all the material elements of the offense, unless a contrary purpose plainly appears. (3) If a particular kind of MR has been articulated at all by the legislature as sufficient with respect to any element of the offense, assumption is that it was meant to apply to all (unless a contrary purpose appears) a. Contrary purpose: e.g., purpose of statute, grammar (see Scalia in X-Citement), or multiple different MR. i. HYPO: 2 diff mens rea provided for 2/3 elements of the offense, 1 element is w/o any. Options: This rule would say to put the mens rea in the statute to this one (useless b/c we have 2). Could be neither of those and be the default: recklessness) VIII. Purpose (Did you mean it? That’s what I wanted to happen!) (1) An individual acted with the conscious object of engaging in the prohibited conduct or producing a prohibited result—the individual intended for, believed, or hoped for something to happen. a. Ex. burglary (must enter building with purpose of committing a crime); if no purpose, then trespass. (2) MPC: § 2.02(a). A person acts purposely with respect to a material element of an offense when: a. (i) if the element involves the nature of his conduct or a result thereof, it is his conscious object to engage in conduct of that nature or to cause such a result; and b. (ii) if the element involves the attendant circumstances, he is aware of the existence of such circumstances or he believes or hopes that they exist. (3) Policy: a. Want to require purpose for very serious crimes (e.g., murder), inchoate crimes and more vicarious liability like conspiracy. Avoids criminalizing most conduct. b. Legislatures very rarely leave out specific intent if they want it. c. Look at penalty (if there is one). If super high à maybe purpose. (4) Purpose vs. Motive. a. Purpose = what the act was meant to do (steal bread); motive is why you did it (feed my kid). IX. Knowledge (Did you know/were you aware of the result?) (1) An individual knew his conduct would produce a result or was practically certain that result would occur. a. Ex. shoot a car with purpose of breaking window, but knows virtually certain to kill occupant of car à acted knowingly with respect to occupant’s death. (2) MPC: § 2.202(b). A person acts knowingly with respect to a material element of an offense when: a. (i) if the element involves the nature of his conduct or the attendant circumstances, he is aware that his conduct is of that nature or that such circumstances exist; and b. (ii) if the element involves a result of his conduct, he is aware that it is practically certain that his conduct will cause such a result (3) Usually used in property cases. a. Smith: Flooring was not his based on property laws. b. Morissette: Government property. (4) The words “willfully violate” and “knowingly violate” can mean different things in different statutes and circumstances because of policy implications. Could trigger MoL. a. Liparota (food stamps), International Materials (corrosive materials), and Cheek (taxes). (5) Knowledge vs. Purpose. a. Knowingly differs from purposely in that the defendant is not acting to cause a certain result but is acting with the awareness that the result is practically certain to occur. i. Knowledge: simply aware that his conduct is of the required nature ii. Purpose: the prohibited result is practically certain to follow from his conduct. b. Knowledge that the requisite external circumstances exist is a common element of both. BUT… only purposive if it was his conscious object to perform an action of that nature or to cause such a result. c. Though acting knowingly is usually sufficient, for some crimes the distinction is important (i.e., specific intent). i. Example: blowing up the law school to send a message → didn’t mean to kill people but knew it was going to happen. (6) Willful Blindness Exception (what if he doesn’t know the truth because he turned the other way?) a. A workaround for statutes that require knowledge. i. Policy: he probably isn’t lying about not knowing but we can still find him guilty through this doctrine. b. MPC: § 2.207. When knowledge of the existence of a fact is an element of an offense, such knowledge is established if a person is aware of a high probability of its existence, (2) UNLESS he actually believes that it does not exist. i. + dissent in Jewell ii. Example: You believe you are transporting orchids. Everyone tells you this is highly unlikely—we are in a major era of drug trafficking, and you live right next to a huge cartel. You are aware of the high 16  probability that you are transporting drugs. However, if you truly believe (subjective) you are transporting orchids, then, under the MPC definition of willful blindness, knowledge is not present. iii. Distinct tests b/w MPC and CL: a. MPC focus is on subjective D belief in probability and belief of fact. How certain is the actor about the fact? b. CL focus is on deliberate avoidance, steps D took to remain blind (regardless of subjective awareness). c. Common-Law: United States v. Jewell. i. Facts: Jewell convicted of knowingly transporting 110 pounds of marijuana worth $6,250 in a secret compartment between the trunk and the rear seat of an automobile, from Mexico into the US. Statute required knowledge— “knowingly or intentionally imports or exports a controlled substance.” D testified he didn’t know they were there. Some evidence suggested that he deliberately avoided positive knowledge of the pot to avoid responsibility. Jewell did not technically know the drugs were in his car (never checked). a. TJ refused D’s request to instruct jury that to convict, he must have had to “absolutely, positively” know the marijuana was in the secret compartment. Instead, said instruction was that “his ignorance in that regard was solely and entirely a result of his having made a conscious purpose … to avoid learning the truth.” Jewell appealed the conviction. ii. Outcome: Deliberate ignorance and positive knowledge are equally culpable. iii. Rule: Deliberate ignorance is a proxy for actual knowledge if a defendant’s ignorance was “solely and entirely a result of his having made a conscious purpose to disregard” obtaining confirmation. (no reference to MPC sub. high probability or belief) a. To act knowingly is not necessarily to act only with positive knowledge, but also to act with an awareness of the existence of the fact in question. When such awareness is present, positive knowledge is not required. b. Only difference b/w positive knowledge and willful ignorance is that the latter is used as a calculated effort to avoid sanctions of the statute. iv. KT: If we say “knowingly” requires positive knowledge à would have bad consequences as makes deliberate ignorance a defense (e.g., letting dealers off the hook). v. Dissent: Deliberate ignorance = actual knowledge if there’s a high probability of awareness & actual belief the fact exists. a. MPC § 2.02(7) requires an awareness of a high probability that a fact exists, not merely a reckless disregard, or a suspicion followed by a failure to make further inquiry. b. The section also establishes knowledge as a matter of subjective belief, an important safeguard against diluting the guilty state of mind required for conviction. c. The section is a definition of knowledge, not a substitute for it. d. In light of MPC, “conscious purpose” instruction is defective: i. Fails to mention the requirement that Jewell had to have been aware of a HIGH PROBABILITY that marijuana was in the car. One is not criminally culpable if he forms a conscious purpose to avoid learning the truth unless one is aware of facts indicating a high probability of that truth. ii. TJ failed to inform the jury that Jewell could not be convicted of the crime if he “actually believed” that there was no marijuana in the car. It is the subjective belief of the defendant and not an objective belief that controls. iii. The instruction stated that Jewell could have been convicted even if found he was “not actually aware” that the vehicle contained marijuana. This is unacceptable because true ignorance cannot provide a basis for criminal liability when the statute requires knowledge. d. Hybrid CL + MPC test: Global-Tech i. Facts: Civil suit requiring proof of a knowing patent infringement. Applies criminal law doctrine of willful blindness. ii. Rule: Theory of willful blindness is a hybrid of the Jewell and MPC theories and includes the following factors: a. (1) The defendant subjectively believes that there is a high probability that a fact exists (MPC) AND b. (2) The defendant must take deliberate actions to avoid learning of that fact (this is the heart of Jewell… “conscious purpose to disregard”). iii. KT: a. Cf. recklessness = merely knows of a substantial and unjustified risk b. Cf. Negligence = should’ve known but didn’t. 17  iv. Dissent – Willful blindness ≠ knowledge – can believe there’s a high probability but still not conclude that’s the case. Morally wrong to have WB = actual knowledge. Maybe the reasons for staying blind matter for culpability. e. Common-Law: United States v. Giovannetti i. Facts: Rented house to gamblers. Knew they were professional gamblers but did not investigate their intended use of the house. Convicted of knowing they would use it for gambling. No evidence he knew they would use it to gamble. Jury given ostrich instruction: WB = actual knowledge. ii. Rule: Lack of curiosity ≠ deliberate avoidance. a. WB ostrich instruction is for cases when there’s evidence that the D knowingly or strongly suspecting that he is involved in shady dealings TAKES STEPS to make sure that he doesn’t acquire full/exact knowledge of the nature and extent of the dealings. b. For willful blindness to establish the mens rea of knowledge, doing nothing or failing to exhibit curiosity is not sufficient. There must be evidence of ACTIVE deliberate avoidance/acting for the sole and entire purpose to disregard the truth/facts. f. What constitutes deliberately avoiding learning the truth: Heredia i. Facts: D driving the car with suspicion that there was marijuana in the trunk, could not stop bc ii. she was driving on the highway. iii. Rule: A defendant whose decision is influenced by coercion, exigent circumstances or lack of meaningful choice does not deliberately avoid learning the truth. Not applicable to Heredia, however. iv. Dissent: suspicion is enough to establish high probability g. Example: An adult does not open his Christmas gift from a friend, and deliberately avoids learning what is inside (since it is a gift that he does not want to open until Christmas day). He transports the gift across the U.S. border. There is meth inside. Under the willful blindness doctrines in Jewell and the MPC, what happens? i. Jewell: Likely guilty or, at least, the mens rea of knowledge for this act of transporting/importing drugs is fulfilled. ii. MPC: Likely not guilty. The defendant was not aware of high probability of risk of this being meth and likely did not actually believe there to be meth inside. X. Recklessness (Did you have foresight of the risk? Did you know this is risky behavior?) (1) An individual consciously disregards the substantial and unjustifiable risk that the material element exists or will result from her conduct in a manner that constitutes a gross deviation from what a law-abiding individual would observe. a. Ex. late to work, takes shortcut by driving car through playground, hits a child. Not purpose to kill a child, nor virtually certain she would do so, but subjectively realize risk of hitting a child and took it anyway. (2) MPC: § 2.202(c). A person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and purpose of the actor’s 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 actor’s situation. (3) Default under CL and MPC for silent statutes. (4) Involves risk creation. a. Resembles acting knowingly in that a state of awareness is involved, but the awareness is of RISK, i.e., probability less than substantial certainty. b. Assessed from actor’s POV. (5) Knowledge v. Recklessness. a. In knowledge, there’s practical certainty of that result. b. For recklessness, you know the risk: not practically certain of it, but conscious of the risk. (6) Common-Law: Elonis v. United States. a. Facts: D posted violent language direct at his separated wife online. Threatened to bomb wife and FBI via rap lyrics and other online content. Convicted with making interstate threats under silent statute. D argued he did not violate statute because he did not intend to threaten anyone; he requested a jury instruction that the gov’t must prove that he intended to communicate a true threat. Court refused and gave negligence standard (“reasonable person standard”). b. Outcome: SCOTUS said no to negligence standard. The fact that a statute is silent on mens rea does not mean that none exists. c. Rule: Where statute is silent, mens rea must be inferred (not dispensed of), must involve some requirement of subjective awareness. In the absence clear congressional instruction, the Court will not presume that negligence is the default mens rea standard for criminal law. i. General rule: a guilty mind is a necessary element in the indictment and proof of every crime → require scienter even where not stated. 18  ii. “Reasonable person” standard is inconsistent with the conventional requirement for awareness of some wrongdoing for criminal conduct iii. Reasonable person standard reduces MR to negligence “and we have long been reluctant to infer that a negligence standard was intended in criminal statutes”. a. Negligence makes it easy to convict the D - not subjective, just have to say they should’ve -- but this is a serious crime! d. KT: Court notes that there is nothing wrong with negligence being the requisite mens rea for a crime, SO LONG AS it is explicitly specified in the statute. Thus, the Court has no problem with the statute in Hazelwood, as the mens rea requirement of negligence was explicitly stated in the statute. (7) Common-Law: Welansky a. Wanton or reckless mens rea present where the: i. (1) defendant in fact realized the grave danger and chose to disregard the risk, regardless of whether reasonable person would have foreseen the risk (subjective), or where, ii. (2) if the risk was grave enough (i.e., super high risk), a reasonable/ordinary person would have been aware of the risk (objective). (8) MPC: Hall a. Recklessness prongs: i. Substantial: Significantly increased risk. The nature of the inquiry focuses on the relative increase in risk, rather than the absolute risk. ii. Unjustifiable: Nature and purpose of the actor’s conduct compared to how substantial the risk is (e.g., does wanting to enjoy skiing justify substantial risk creation). iii. Gross deviation: Be something so serious that disregarding the risk would be a gross deviation from the standard of care exercised by a reasonable person (e.g., a reasonable skier of comparable expertise). XI. Negligence (Same as recklessness but should have vs. are aware → expect this out of you?) (1) An individual should have been aware of (“SHOULD HAVE KNOWN”) the substantial and unjustifiable risk that a material element exists (pit bull) or will result from her conduct (property destruction). Her failure to perceive that risk constitutes a gross deviation from what a reasonable person would have perceived. a. Ex. unaware child is suffering form life-threatening illness, but ordinary person would be aware, then acts negligently if does not seek medical help for child. (2) MPC: § 2.202(d). A person acts negligently with respect to a material element of an offense when he should be aware of a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that the actor’s failure to perceive it, considering the nature and purpose of his conduct and the circumstances known to him, involves a gross deviation from the standard of care that a reasonable person would observe in the actor’s situation. (3) There is a super strong presumption against the default mens rea being negligence because negligence is not typically what we mean by “blameworthy” (Elonis). (4) Negligence à a response to difficulty of establishing internal thoughts; eliminate any requirement of proving subjective MR and only require proof defendant was negligent. a. Some courts understand it to require nothing more than ordinary carelessness. (ordinary / civil neg) b. Other courts hold that negligence requires a gross departure from normal standards of care. (criminal) c. But not a bright line between civil and criminal negligence—e.g., at what point does an individual speeding cross over into the gross deviation territory? (5) Objective standard. Distinguishable from the other states as does not involve a state of awareness. i.e., he inadvertently creates a substantial and unjustifiable risk of which he should have been aware. Focus is on the failure to perceive the risk. Focus not on D’s state of mind but what an ordinary person would have known / done. a. Policy: How can we criminalize/deter what the defendant wasn’t even subjectively aware of? Counter: Even if an offender does not on his own realize conduct is wrongful, he can be made to care (coercive element à causes offender to pay attention à important social aims). (6) Ordinary (Civil) Negligence: State v. Hazelwood a. Facts: Hazelwood crashed an Exxon oil tanker, resulting in a catastrophic oil spill. Charged with negligently permitting the discharge of petroleum upon open waters. Issue: conviction of civil or criminal negligence standards? b. Outcome: The court holds that the civil negligence standard of mens rea was sufficient to criminally convict. c. Rule: Civil negligence is sufficient to protect the defendant’s interests, and we need it to deter this conduct. Civil negligence rather than criminal negligence is sufficient to provide assurance that criminal penalties will be imposed only when the conduct at issue is something society can reasonably expect to deter. i. Ordinary (civil) Negligence - fails to perceive a risk of such a nature and degree that his actions constitute a deviation from the standard of care that a reasonable person would observe in the same situation (worse for Ds) 19  ii. Criminal Negligence - requires much more, namely that a defendant deviate from a risk so gross and of such a nature and degree as to be deserving of punishment (better for Ds) a. Deviation of a standard of care -VS.- gross deviation - we criminalize a gross deviation because you’re still unaware, but it is WORSE on your end for failing to perceive it. If you’re merely negligent yeah you can be sued but are you a criminal? iii. Difference b/w criminal and ordinary (civil) negligence is based on size of risk. Under both: A person acts negligently when he fails to perceive a substantial and unjustifiable risk that a result will occur. a. But criminal negligence is a more culpable mental state than simple, ordinary negligence and requires a greater risk à risk is of such a nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation (meriting punishment). b. But neither require recklessness, i.e., that the defendant actually be aware of the risk of harm. d. Dissent: Notions of fundamental fairness which underlie all due process issues require a showing of something more than “failure to act reasonably” before a defendant should be subjected to imprisonment. à Negligence is insufficient to justify an award of punitive damages but yet we’re allowing imprisonment? (7) Criminal Negligence: Santillanes a. Facts: Cut his 7 yo nephew’s neck with a knife during fight. Convicted of child abuse under statute requiring “negligently causing a child to be placed in a situation that may endanger the child’s life or health.” TJ instructed civil negligence standard. Issue: civil or criminal negligence standard? b. Outcome: Not civil negligence. MR required = criminal negligence. c. Rule: When moral condemnation and societal stigma is on the line, the crime should reflect a mental state deserving such condemnation. Thus, proof BARD of a gross deviation from the standard of care—criminal negligence—is necessary. 20 1.3. STRICT LIABILITY I. Generally (1) No mens rea needed to establish liability. Applied frequently in the regulatory space. In tension with fundamental precepts of criminal law; defendant neither knew nor had reason to know anything about his behavior was legally or morally wrong. Determined by looking at individual elements and the purpose of the whole statute. (2) SL also imposed without any demonstrated culpability with respect to at least one of the material elements of the offense. Most frequently used with attendant circumstances. a. Some mens rea in a general sense (e.g., some legal or moral fault) in Prince and Olsen.