Criminal Law Class Notes 9/12/03


Last time, we started going over general and specific intent crimes.


Note 6, page 141


Receipt of stolen property: is receipt conduct or a result?  95% of the time, it won’t matter.  “Stolen property” is an attendant circumstance.  You must have the mens rea of knowledge that the stuff is stolen in order to be found guilty.  There are two mens rea terms here: “Intentionally” and “knowledge”.  A court will usually take “intentionally” to be “general intent”.  However, if there is a specific intent in the definition, we still call this a “specific intent crime”.


Common law burglary, a crime you should memorize: the actus reus is “breaking and entering the dwelling house of another at night”.  The mens rea is “with the intent to commit a felony therein”.  The intention is to do some future act.  Even if you never commit a felony in that house, you can be found guilty of burglary.  Burglary, like larceny, is a traditional common law specific intent crime.


Why does this matter?  We’ll see next week.


Model Penal Code § 2.02


This is about as important as it’s going to get, aside from the utilitarian/retributivist stuff.  This section is at the center of everything.


The Model Penal Code has had “differential” influence in this country.  Some states have adopted the Model Penal Code in full, while other states have only taken bits and pieces.  Even when they have done so, courts have interpreted penal codes to include § 2.02 even if the state didn’t choose to.


In the common law and pre-Model Penal Code statutes, there were lots and lots of terms for culpability.  Confusement!


In the Model Penal Code, we only have four terms, and they’re all well defined.  The Model Penal Code also wipes out general intent versus specific intent.  If you’re in a full Model Penal Code state, this distinction is gone.


Dressler says that “P, K, R, N” is a continuum of culpability.


The final exam is open book because, among other reasons, you need your case book so you can consult the Model Penal Code.  Make notes in your copy of the Model Penal Code!


What’s in § 2.05?  It says you don’t need culpability to be found guilty of “violations”.  What are violations?  They are offenses for which you can only be punished with a fine.


What about the language about “material elements”?


Say it’s a felony to do X, Y, and Z.  Then there must be a mens rea with respect to X, Y, and Z.  It doesn’t matter which mens rea.  There must be either P, K, R, or N with respect to each material element of an offense.


This provision effectively means that the Model Penal Code applies an elemental approach rather than a culpability approach to mens rea.  You must show a particular state of mind, not just any bad or immoral state of mind.


Jacob, Vanessa and Xavier


We’re dealing with killing, which is a result crime.  We’re told that Jacob wants to kill Vanessa, therefore, it must be the case that Vanessa was killed purposely according to the Model Penal Code.


How about Xavier?  It must not be the case that he was killed purposely, since he fervently hoped Xavier would not die.  But was it done knowingly or recklessly?


Keep in mind that a defendant does not have to testify and give any evidence about his state of mind.  How do we convince a jury anything about someone’s state of mind?


The law infers that people intend the “natural and probable consequences” of one’s actions.


How certain is practical certainty?  The law suggests that it’s so close to 100% that a miracle must happen for that result not to occur.


Maybe you can prove your client is of low intelligence, mentally ill, or on drugs or alcohol, and thus your client may not have been aware that a result would follow from his conduct.


Make sure to distinguish between the voluntary act requirement and mens rea.  The requirement for knowledge is that you were aware, not should have been aware.


If I can show that for some reason my client was not aware that a result was practically certain, then my client did not act knowingly.  Note that if we were using a culpability analysis, my client may well be found guilty based on a general mens rea.


There are time framing issues here that we’ll come back to later.  Dressler says we ought to look at a person’s state of mind at the time of the killing act.  He believes that the intent of doing something before doesn’t matter if you don’t have it while you’re committing the act.


Why might we find that Xavier was killed recklessly?  The difference between knowledge and recklessness is the degree of certainty: “practical certainty” versus a “substantial and unjustifiable risk”.  The “substantial and unjustifiable” language is very important and we’ll go over it more later.


Risk is the key difference and the key word in the definition of recklessness.  Risk-taking involves a lesser degree of certainty.  Everybody takes risks all the time, but not all of them are “substantial and unjustifiable”.  Some risks are good, some are bad.  Some are big, some are small.  But none are substantially certain.


What was Jacob’s mens rea at common law?  Intent means purposely or knowingly.  Therefore, Jacob kills Vanessa intentionally, and arguably also kills Xavier intentionally (if Xavier was killed knowingly by the Model Penal Code).


Roberta and Sam


Roberta throws salt over her shoulder and then burns down Sam’s house.  She sincerely believes that throwing salt over her shoulder will protect Sam.  What state of mind did she have when Sam was killed?


Was Roberta aware of the risk?  If so, she was reckless, but if not, she was negligent.


Negligence is the only one of the four states of mind that does not involve subjective fault.  You punish the person not for what he was thinking, but for what he wasn’t thinking.  In a sense, this is not literally mens rea.  Negligence is very controversial in criminal law.


Do we have a time framing problem in this case?  Before she tossed the salt, she was aware of a risk.  After she tossed the salt, she believed that Sam was protected from death.  At what moment do we judge the state of mind?  Dressler thinks, again, you should look at the state of mind at the time of the act.  Under that theory, Roberta would be negligent rather than reckless.


If Roberta is unsure whether or not the salt would work, we’re clearly in the realm of recklessness, or at least much closer to it.  There might even be room to put us into knowledge if the death of Sam is substantially certain.


Robbery and Model Penal Code § 2.02


Is Toby guilty of robbery if, while committing a theft, he negligently inflicts serious bodily harm upon Ursula?


Nope, because negligence is specifically excluded in § 2.02(3) as a state of mind that makes one guilty if there isn’t a state of mind listed in the statute.


What’s the point here?  There’s a general rule that tells you what to read into the statute.  This sort of saves space in the penal code.  We’ve created a default mens rea in the penal code that is above negligence.  If the legislature wants a person to be guilty if they negligently commit an act, they must build that into the statute.  The drafters of Model Penal Code are against punishing for negligence, so they make the legislature do it explicitly.


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