Criminal Law

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A. Introduction
l. According to MPC ' l.l3(9),

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the typical elements of a crime are broken down into
a. Forbidden conduct
b. Attendant circumstances
c. A Result

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A. Introduction
2. Each is accompanied by a certain level of intentionality, as listed in MPC ' l.l3(ll-l6):

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a. Purposely
b. Intentionally (with intent)
c. Knowingly (with knowledge)
d. Recklessly (with recklessness)
e. Negligently (with negligence)
f. Reasonably believes.

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B. Actus Reus--Culpable Conduct
l. Positive Actions
a. MPC ' 2.0l(l)

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(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."

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B. Actus Reus--Culpable Conduct
l. Positive Actions
a. MPC ' 2.0l(l)

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(2) The act must, according to MPC ' 2.0l(2)(d), be the "product of the effort or determination of the actor, either conscious or habitual.

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3) MPC and Commentaries. Comment to ' 2.0l, at 2l5-l5:

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(a) "It is fundamental that a civilized society does not punish for thoughts alone"
(b) "..the law cannot hope to deter involuntary movement or to stimulate action that cannot physically be performed."

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Actus Reus--Culpable Conduct
2. Unconsciousness
MPC ' 2.0l(2)(a)

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): a "reflex or convulsion" is not a voluntary act.

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2. Unconsciousness
b. Common Law

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(l) Somnambulism, or act committed by "automatism", by a spasm, reflex or convulsion is not criminal. Bratty, Cogden
(a) MPC ' 2.0l(2)(b): "a bodily movement during unconsciousness or sleep" is not voluntary.
(2) Lack of control, or lack of memory is not sufficient.

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. Actus Reus
3. Habitual Acts

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a. Not involuntary per MPC ' 20l(2)(d).

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Actus Reus
4. Hypnosis

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a. Act under hypnosis deemed involuntary per MPC Comment to ' 2.0l (l985).

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Actus Reus
5. Unconscious Possession of Drugs

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a. Person consciously possessing something they did not know was contraband, not guilty.
b. But if person should have known they may sometimes be found guilty.
c. In a few jurisdictions, knowledge requirement dispensed with in drug cases.

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I. CULPABILITY
C. Omissions
l. Common Law

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(Jones v. US,p. l90): Four situations in which failure to act may constitute breach of a legal duty:
a. statute imposes a duty of care
b. certain status relationship exists: like parent-child
c. contractual duty exists
d. one has voluntarily assumed the care of another and so secluded the helpless person as to prevent others from rendering aid

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I. CULPABILITY
C. Omissions
2. Model Penal Code
a. MPC ' l.l3(2):

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act" or "action" means a bodily movement, whether voluntary or involuntary

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CULPABILITY
C. Omissions
2. Model Penal Code
b. MPC ' l.l3(4):

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): "omission" means a failure to act

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I. CULPABILITY
C. Omissions
2. Model Penal Code
c. MPC ' 2.0l(3): (a)

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Liability for the commission of an offense may not be based on any omission unaccompanied by action unless:(a) the omission is expressly made sufficient by the law defining the offense; or

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I. CULPABILITY
C. Omissions
2. Model Penal Code
c. MPC ' 2.0l(3): (b)

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(b) a duty to perform the omitted acts is otherwise imposed by law--that is, imposed by tort law or other civil law obligation

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(a) Oliver (p. l95):

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(i) took chrge of a person unable to prevent harm to himself. Rest. 2d Torts ' 324
(ii) owed a duty to prevent risk, even if she originally did not realize her actions would lead to the risk. Rest.2d Torts ' 32l

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I. CULPABILITY
C. Omissions
2. Model Penal Code
d. Duty to Rescue When Causing the Plight

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(l) By a violent crime. Jones (p. l96)
(2) Negligent conduct: involuntary manslaughter

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I. CULPABILITY
C. Omissions
2. Model Penal Code
e. Blameless Acts Which Give Rise to Duty of Care

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(l) By perfect self-defense. Kuntz (197): cannot let die, duty arises if out of danger
(2) Link each act with attendant mental state (stabbing justified, omission to aid is not)

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I. CULPABILITY
C. Omissions
3. Duty to Aid People in Distress

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a. Not recognized by common law
b. Exceptions Vt, MN, RI, WI

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I. CULPABILITY
C. Omissions
4. Problem of Euthanasia
a. Common Law

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(l) Physician has no duty to continue treatment, once proved to be ineffective.
(2) But affirmative act of euthanasia punishable: lethal injection

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(l) Physician has no duty to continue treatment, once proved to be ineffective.

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(a) Cost-Benefit Analysis: whether proposed treatment is proportionate or disproportionate in terms of benefits to be gained versus burdens caused.

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(l) Physician has no duty to continue treatment, once proved to be ineffective.

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(b) Act of discontinuing life support characterized as an omission (Airedale NHS Trust, p. 199).
(i) No different from not initiating life-support in first place
(ii) Not unlawful, unless breach of duty to patient

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(l) Physician has no duty to continue treatment, once proved to be ineffective.

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(c) But interloper who turns off life-support is guilty of a voluntary act--actively intervening to stop the doctor from prolonging the patient's life

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(2) But affirmative act of euthanasia punishable: lethal injection

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(a) MPC ' 2l0.5: "A person who purposely aids or solicits another to commit suicide is guilty of a felony.

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I. CULPABILITY
D. Mens Rea
l. Model Penal Code General Requirements of Culpability

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a. 2.02(l) No criminal liability unless: purposely, knowingly, recklessly or negligently, with respect to each material element of offense.

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(l)' l.l3(9-l0) Material elements of offense relate to:

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(a) the nature of the forbidden conduct
(b) the attendant circumstances
(c) the result of conduct
(d) facts that negative an excuse or justification
(i) negligence will negate self-defense

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I. CULPABILITY
D. Mens Rea
2. Purposively--Intent ' 202(2)(a)

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(i) if element involves 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
(ii) if the element involves the attendant circumstances, he is aware of such circumstances or he believes or hopes that they exist.

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I. CULPABILITY
D. Mens Rea
2. Purposively--Intent ' 202(2)(a)
a. Must distinguish purpose from motive

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(l) In general, motive irrelevant to criminal liability
(2) Can be relevant in
(a) Specific Intent Crimes
(b) Justification Defenses
(i) Disconnection of life-support

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I. CULPABILITY
D. Mens Rea
2. Purposively--Intent ' 202(2)(a)
b. Must Relate Intention--to

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Foreseeability or Possibility of Consequences

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I. CULPABILITY
D. Mens Rea
2. Purposively--Intent ' 202(2)(a)
c. Notion of Specific Intent in Common Law Crimes:

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generally "purpose as to some objective"

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I. CULPABILITY
D. Mens Rea
2. Purposively--Intent ' 202(2)(a)
d. Notion of General Intent in Common Law Crimes:

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: "purpose as to the actus reus" or "omission"

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I. CULPABILITY
D. Mens Rea
3. Knowledge or Knowingly ' 202(2)(b)

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(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 eircumstances exist; and

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I. CULPABILITY
D. Mens Rea
3. Knowledge or Knowingly ' 202(2)(b)

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(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.

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I. CULPABILITY
D. Mens Rea
3. Knowledge or Knowingly ' 202(2)(b)

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* Knowledge that the requisite external circumstances exist is a common element in both conceptions

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I. CULPABILITY
D. Mens Rea
3. Knowledge or Knowingly ' 202(2)(b)
a. But action is not purposive

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a. But action is not purposive with respect to the nature or result of the actor's conduct unless it was his conscious object to perform an action of that nature or to cause such a result

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I. CULPABILITY
D. Mens Rea
3. Knowledge or Knowingly ' 202(2)(b)
b. Actor's attitude is different if

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Actor's attitude is different if he is simply aware that his conduct is of the required nature or that the prohibited result is practically certain to follow:
(l) Distinction only important with attempts, conspiracy, treason and so-called "specific intent" crimes.

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I. CULPABILITY
D. Mens Rea
3. Knowledge or Knowingly ' 202(2)(b)
c. Sometimes "knowledge"

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c. Sometimes "knowledge" is termed specific intent in common law crimes.

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I. CULPABILITY
D. Mens Rea
3. Knowledge or Knowingly ' 202(2)(b)
d. Knowledge and Wilful Blindness:

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(l) MPC ' 2.02 (7) :"such knowledge is established if a person is aware of a high probability of its existence , unless he actually believes that it does not exist.(2) Prerequisite to giving ostrich instructions:

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(2) Prerequisite to giving ostrich instructions

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(a) that D was subjectively aware of a high probability of illegal conduct (reckless state of mind)and
(b) D purposefully contrived to avoid learning of the illegal conduct.

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I. CULPABILITY
D. Mens Rea
4. Recklessness or Recklessly ' 2.02(2)(c):

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): Person acts recklessly..when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct.

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I. CULPABILITY
D. Mens Rea
4. Recklessness or Recklessly ' 2.02(2)(c)
a. Disregard of risk mustinvolve

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Disregard of risk mustinvolve a gross deviation from the standard of conduct that a law-abiding person would observe in the actor's situation.

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I. CULPABILITY
D. Mens Rea
4. Recklessness or Recklessly ' 2.02(2)(c)
* Conscious risk creation

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: resembles acting knowingly, but awareness of risk, not certainty that a result will be achieved.(l)But "knowledge" can never be absolutely sure: therefore also a contingency factor.

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I. CULPABILITY
D. Mens Rea
5. Negligence or Negligently ' 2.02(2)(d):

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): Person acts negligently when he should be aware of a substantial and unjustifiable risk that the material element wexists or will result from his conduct

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I. CULPABILITY
D. Mens Rea
5. Negligence or Negligently ' 2.02(2)(d)
a. Failure to perceive risk...

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a. Failure to perceive risk...gross deviation from the standard of care that a reasonable person would observe in the actor's situation.
* Inadvertent risk-creation

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I. CULPABILITY
D. Mens Rea
5. Negligence or Negligently ' 2.02(2)(d)
b. MPC Definition is that of Gross Negligence

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more than simple civil negligence

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I. CULPABILITY
D. Mens Rea
5. Negligence or Negligently ' 2.02(2)(d)
c. Common Law Courts will

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c. Common Law Courts will interpret "specific intent" crimes to require only simple civil negligence
(l) Neiswender (p. 2l7)

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I. CULPABILITY
D. Mens Rea
5. Negligence or Negligently ' 2.02(2)(d)
c. Mental State Required Where Statute Specifies None(l) MPC ' 2.02(4):

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"When law defines culpability sufficient for 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

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I. CULPABILITY
D. Mens Rea
5. Negligence or Negligently ' 2.02(2)(d)
c. Mental State Required Where Statute Specifies None
(2) MPC ' 202(3):

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When culpability...not prescribed by law, such element is established if a person acts purposely, knowingly or recklessly with respect thereto.

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Holloway (218)
a. This is prevailing view

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if specific intent (to kill) conditioned on not following instructions, intent has been shown.

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I. CULPABILITY
D. Mens Rea
6. Conditional Specific Intent, Holloway (218)
b. Model Penal Code ' 2.02(6):

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AWhen a particular purpose is an element of an offense, the element is established although such purpose is conditional, unless the condition negatives the harm or evil sought to be prevented by the law defining the offense.

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I. CULPABILITY
E. Mistake of Fact
l. Common Law Approach

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a.Assumption of Risk Analysis If act one does is wrong, one is held strictly liable for consequences.

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a.Assumption of Risk Analysis

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(1) Can be just morally wrong, i.e.,
(2) Can be a lesser crime.

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a.Assumption of Risk Analysis
(1) Can be just morally wrong

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.e., that girl taken away underage, that deserted wife was pregnant Prince (p. 226), White p. 227.

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a.Assumption of Risk Analysis
(2) Can be a lesser crime.

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(a) D thought possessing powder cocaine--it was heroin. Valencia-Gonzales (p. 230).

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I. CULPABILITY
E. Mistake of Fact
2. MODEL PENAL CODE: ' 2.04(l):

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or mistake as to a matter of fact... is a defense if:

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Ignorance or mistake as to a matter of fact... is a defense if:

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(a) the ignorance or mistake negatives the purpose, knowledge, belief, recklessness or negligence required to establish a material element of the offense:

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Ignorance or mistake as to a matter of fact... is a defense if:

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(b) the law provides that the state of mind established by such ignorance or mistake constitutes a defense.

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I. CULPABILITY
E. Mistake of Fact
2. MODEL PENAL CODE: ' 2.04(2) Defense not available

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, if D would be guilty of another offense had the situation been as he supposed. If so, reduced to offense of which he would be guilty had the situation been as he supposed.

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I. CULPABILITY
E. Mistake of Fact
B. Crucial Element:

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definition of mental elements necessary for crime--

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definition of mental elements necessary for crime--
l. Mistake

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: only relevant to extent it affects presence of these states of mind

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I. CULPABILITY
E. Mistake of Fact
B. Crucial Element: definition of mental elements necessary for crime--
2. Mistake of Fact in Statutory Rape and Other Sex Crimes

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a. Prevailing View: Strict liability as to age
b. Minority Views

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2. Mistake of Fact in Statutory Rape and Other Sex Crimes
b. Minority Views

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(l) California: strict liability under l4 years, but good faith belief is a defense for statutory rape: belief girl over l8. Olson, p. 230.

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2. Mistake of Fact in Statutory Rape and Other Sex Crimes
b. Minority Views

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(2) MPC ' 2l3.6(l): where criminality turns on child being below age of l0, no reasonable mistake defense; when it turns on the child's being below a critical age other than l0, reasonable mistake is a defense.

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2. Mistake of Fact in Statutory Rape and Other Sex Crimes
b. Minority Views

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(3) Substantial minority of states now allow defenses of reasonable mistake, either by statute or judicial ruling

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I. CULPABILITY
E. Mistake of Fact
B. Crucial Element: definition of mental elements necessary for crime--
3. Mistake of Fact Can be Deemed Jurisdictional

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a. l8 U.S.C. ' lll: assault on federal officer engaged in duties(l) Held to only trigger federal jurisdiction in Feola (p.234)(2) Contra. Me. Rev.Stat. Ann. Tit. l7-A, ' 752-A.

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I. CULPABILITY
F. Strict Liability

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1. Traditionally Allowable in Public Welfare Offenses: Balint, Dotterweich (236)
2. Not applicable to common law offenses: Morissette (p. 237)

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1. Traditionally Allowable in Public Welfare Offenses

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a. Usually restricted to misdemeanors: abstract endangerment statutes
b. Cost-Benefit: goal is common good, burden on entrepreneur who has best ability to know of dangers
c. Public Welfare cases extend strict liability to situations where there can be no plausible legislative purpose to condemn or deter the underlying behavior

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a. Usually restricted to misdemeanors: abstract endangerment statutes.

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(1) Staples (p. 24l): punishable by l0 years, automatic weapons charge
(2) MPC ' 2.05, Comments: would restrict strict liability where no imprisonment, only fine possible.

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b. Cost-Benefit: goal is common good, burden on entrepreneur who has best ability to know of dangers

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(1) D usually in position to prevent the harm with no more care than society might reasonably expect, and no more exertion than it might reasonably exact, from one who assumed his responsibilities. Morissette.

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c. Public Welfare cases extend strict liability to

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situations where there can be no plausible legislative purpose to condemn or deter the underlying behavior

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I. CULPABILITY
. Strict Liability
2. Not applicable to common law offenses

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a. Exceptions: statutory rape, felony-murder, misdemeanor-manslaughter

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I. CULPABILITY
G. Mistake of Law
l. Common Law

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a. Misreading or misunderstanding of the law no defense.

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I. CULPABILITY
G. Mistake of Law
2. MODEL PENAL CODE: ' 2.04(l):

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): Ignorance or mistake as to a matter of law is a defense if:

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): Ignorance or mistake as to a matter of law is a defense if:

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(a) the ignorance or mistake negatives the purpose, knowledge, belief, recklessness or negligence required to establish a material element of the offense:

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): Ignorance or mistake as to a matter of law is a defense if:

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(b) the law provides that the state of mind established by such ignorance or mistake constitutes a defense.

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I. CULPABILITY
G. Mistake of Law
2. MODEL PENAL CODE: ' 2.04(2) Defense not available,

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if D would be guilty of another offense had the situation been as he supposed. If so, reduced to offense of which he would be guilty had the situation been as he supposed.

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I. CULPABILITY
G. Mistake of Law
2. MODEL PENAL CODE: ' 2.04(3) Mistake of law

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. A belief that conduct does not legally constitute an offense is a defense to a prosecution for that offense based upon such conduct when:

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. A belief that conduct does not legally constitute an offense is a defense to a prosecution for that offense based upon such conduct when:

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(a) statute defining offense not known to actor and has not been published or otherwise reasonably made available prior to the conduct alleged; or

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. A belief that conduct does not legally constitute an offense is a defense to a prosecution for that offense based upon such conduct when:

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(b) acts in reasonable reliance upon an official statement of the law, afterward determined to be invalid or erroneous contained in

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(b) acts in reasonable reliance upon an official statement of the law, afterward determined to be invalid or erroneous contained in

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(i) a statute or other enactment;
(ii) a judicial decision, opinion or judgment
(iii) an administrative order or grant of permission;
(iv) an official interpretation of the public officer or body charged by law with responsibility for the interpretation, administration or enforcement of the law defining the offense.

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I. CULPABILITY
G. Mistake of Law
2. MODEL PENAL CODE: ' 2.04(3) Mistake of law
* Comment: applies mostly to

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to "situations where the act charged is consistent with the entire lawabidingness of the actor, where possibility of collusion is minimal, where judicial determination of rthe reasonableness of the belief in legality should not present substantial difficult.

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I. CULPABILITY
G. Mistake of Law
2. MODEL PENAL CODE: ' 2.04(4) D must prove

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a defense arising under (3) by a preponderance of the evidence.

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I. CULPABILITY
G. Mistake of Law
2. MODEL PENAL CODE: ' 2.04(4)
b. Crucial Element

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definition of mental elements necessary for crime--
(l) Mistake: only relevant to extent it affects presence of these states of mind

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I. CULPABILITY
G. Mistake of Law
c. New Jersey adopted MPC, and added:

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"The actor otherwise diligently pursues all means available to ascertain the meaning and application of the offense to his conduct and honestly and in good faith concludes his conduct is not an offense in circumstances in which a law-abiding and prudent person would also so conclude. N.J. Stat. Ann. '2C:2-4(c)(3).

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I. CULPABILITY
G. Mistake of Law
2. MODEL PENAL CODE
d. In applying MPC, must

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determine whether mistake of law negatives a material element of the offense.
(l) Non-material element would relate to statute of limitations, jurisdiction, etc. (MPC ' l.l3(9-l0).

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I. CULPABILITY
G. Mistake of Law
2. MODEL PENAL CODE
e. MPC ' 2.02(9):
"Neither knowledge nor

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nor recklessness or negligence as to whether conduct constitutes an offense or as to the existence, meaning or application of the law determining the elements of an offense is an element of the offense, unless the definition of the offense or the Code so provides."

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I. CULPABILITY
G. Mistake of Law
2. MODEL PENAL CODE
e. MPC ' 2.02(9):
(l) Proper interpretation is

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that mistakes about the penal law do not constitute a defense, but mistakes about other laws, are treated like mistakes of fact.

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(a) Smith (p. 261)--

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D mistake about property law
not guilty cuz no guilty mental state. MPC 2.024 and 2.029 attempts to make a distinction (know).

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(b)Woods (262

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): mistake about law of interstate recognition of divorce MPC would probably negative guilty mental state. No mistake as to criminal law but other mental state “i didn’t know I wasn’t divorced”. Knows infidelity is a crime but doesn’t believe he’s being unfaithful.

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(c) Marrero

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mistake about criminal law

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I. CULPABILITY
G. Mistake of Law
3. Statutes Requiring Specific Intent to Violate the Law

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a. IRS Code: Cheek (p. 263)
b. Food Stamp Fraud: Liparota (p. 266
c. Money Laundering Statutes: Ratzlaf (p. 267
d. Contra: Hazardous Materials or Waste Statutes

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Cheek (p. 263)

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(l) A good faith,unreasonable belief that the law does not impose a duty, negates "wilfullness)
(2) Good faith belief that the statute is unconstitutional does not negate the mental state
(a) D's view about validity of statute are irrelevant to issue of willfulness.

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. Food Stamp Fraud: Liparota (p. 266)

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) [have to know you are transporting something your not supposed to-other than say water. Doing something potentially dangerous courts tend to hold you liable.]
(l) Otherwise, broad range of apparently innocent conduct would be criminalized

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c. Money Laundering Statutes: Ratzlaf (p. 267)

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(l) Had to know that "structuring" was punishable

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d. Contra: Hazardous Materials or Waste Statutes

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(l) "Knowing" violation of regulation or statutes interpreted as "general intent" crimes: "knowingly" did acts which violate regs or statute.(a) International Minerals (p. 266)(2) Bryan (267): need not know of statute prohibiting sale of guns, only be aware that conduct unlawful.

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I. CULPABILITY
G. Mistake of Law
4. Reliance on Official Opinions
a. Common Law

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(l) Evidence of opinion of official not admissible, strict liability. Hopkins (p. 270)

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I. CULPABILITY
G. Mistake of Law
4. Reliance on Official Opinions
b. Reliance on court opinion was

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tantamount to declaratory judgment that First Amendment activities were legal. Albertini (p. 268) [ex where he is allowing on a law later found to be invalid]

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I. CULPABILITY
G. Mistake of Law
5. Knowledge of Statute Necessary Where Conduct Wholly Passive

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a. Lambert v. California (p. 271)
b. Hutzell (274):

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a. Lambert v. California (p. 271)

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[crime of being in the city of LA but not notifying officials] [why did the S ct. make the exception in this case? Cuz not doing anything ie not transporting or anything she’s just there.]
(l) Registration laws like licensing laws.
(2) No circumstances where person would be moved to inquire as to the necessity of registration or presence of regulations
(3) Conduct per se not blameworthy
(4) Lambert expands on lack of notice defenses listed in MPC ' 2.04(3)(a).

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b. Hutzell (274):

Back 100

): knowledge that he should register gun as domestic violence offender.

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II. RAPE

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A. Actus Reus
B. Mens Rea

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A. Actus Reus

Back 102

l. Common Law
2. Modern View
3. Non-Physical Threats
4. Amount of Force Necessary

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II. RAPE
A. Actus Reus
l. Common Law

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Rusk,, p. 323, Court of Appeal Opinion) (elements are threat or force. Throw down or if you don’t I’ll kill you)

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II. RAPE
A. Actus Reus
l. Common Law

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a. Force is essential element--to warrant conviction, must be evidence that

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II. RAPE
A. Actus Reus
l. Common Law
a. Force is essential element--to warrant conviction, must be evidence that

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(1) victim physically resisted
(2) resistance overcome by force or
(3) prevented from resisting by threats to her safety

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II. RAPE
2. Modern View

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a. Most States Still Require Forcible Compulsion or Threats: Resistance interpreted into forcible compulsion element, only minority of states have statutory resistance requirement
(l) Model Penal Code ' 2l3.l
(2) NY

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II. RAPE
A. Actus Reus
2. Modern View
(l) Model Penal Code ' 2l3.l

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(l) Rape. A male who has sexual intercourse with a female not his wife is guilty of rape if:*Emphasizes the conduct of the perpetrator, not the victim.

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(l) Rape. A male who has sexual intercourse with a female not his wife is guilty of rape if:

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(a) he compels her to submit by force or by threat of imminent death, serious bodily injury, extreme pain or kidnapping, to be inflicted on anyone; or

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(l) Rape. A male who has sexual intercourse with a female not his wife is guilty of rape if:

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(b) he has substantially impaired her power to appraise or control her conduct by administering or employing without her knowledge drugs, intoxicants or other means for the purpose of preventing resistance; or

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(l) Rape. A male who has sexual intercourse with a female not his wife is guilty of rape if:

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(c) the female is unconscious

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(l) Rape. A male who has sexual intercourse with a female not his wife is guilty of rape if:

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(d) the female is less than l0 years old

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II. RAPE
A. Actus Reus
2. Modern View

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(2) NY abolished "resistance" requirement, requiring "forcible compulsion" which means:

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(2) NY abolished "resistance" requirement, requiring "forcible compulsion" which means:

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(a) use of physical force, or
(b) a threat, express or implied, which places a person in fear of immediate death or physical injury to himself, herself or another person, or in fer that he, she or another person will immediately be kidnapped.

Front 114

II. RAPE
A. Actus Reus
2. Modern View
b. In a Minority of States no Resistance Required

Back 114

(l) Michigan: "the victim need not resist."

Front 115

II. RAPE
A. Actus Reus
2. Modern View
c. Victim's Fear So as to Obviate Necessity to Prove Force and Resistance, must be Reasonably Grounded: Rusk, p. 323.

Back 115

(1) But verbal resistance is resistance
(2) Those who physically resist most likely to be injured: police don't recommend it
(3) But some states interpret failure to resist in absence of explicit threats as "amounting to consent": Warren (Ill., p. 33l)
(4) Fear due to past history of battering or earlier threats inadmissible: only threats at time of sex. Alston (N.C., p. 332).

Front 116

II. RAPE
A. Actus Reus
2. Modern View
d. Only a few jurisdictions

Back 116

d. Only a few jurisdictions have made nonconsent alone sufficient.

Front 117

II. RAPE
A. Actus Reus
2. Modern View
e. Statutory Requirement of

Back 117

e. Statutory Requirement of Resistance only in a Minority of States

Front 118

II. RAPE
A. Actus Reus
3. Non-Physical Threats

Back 118

a. Under Common Law not sufficient:
(1) Thompson: threat to prevent graduation (333)
(2) Mlinarich: send girl back to placement (334)

Front 119

II. RAPE
A. Actus Reus
4. Amount of Force Necessary
a. Under common law

Back 119

a. Under common law, had to be more than just force necessary to accomplish act of intercourse (or to remove clothing)

Front 120

II. RAPE
A. Actus Reus
4. Amount of Force Necessary
b. New approach in MTS (N.J. 338):

Back 120

b. New approach in MTS (N.J. 338): the force required to accomplish intercourse is enough. If unconsented to, it is a battery, an unlawful touching. This enough. Minority approach.

Front 121

II. RAPE
A. Actus Reus
4. Amount of Force Necessary
c. New Definition of AForce@ Fischer (PA, 354).

Back 121

(1) 1995 amendments: A Compulsion by use of physical, intellectual, moral, emotional or psychological force, either express of implied..@

Front 122

II. RAPE
B. Mens Rea
l. State of Mind Required Vis-a-Vis Element of Consent

Back 122

a. Common Law:
b. Recklessness Standard
c. Strict Liability
d. Prevailing View:
e. Model Penal Code

Front 123

II. RAPE
B. Mens Rea
l. State of Mind Required Vis-a-Vis Element of Consent
a. Common Law:

Back 123

No Reasonable belief of consent defense. Prosecution must prove: D intended to commit non-consensual sexual intercourse. Morgan (p. 358)

Front 124

l. State of Mind Required Vis-a-Vis Element of Consent
a. Common Law:

Back 124

(a) Wash. Rev. Code Ann. ' 9A.44.0l0(6): "'Consent' means that at the time of the act of sexual intercourse there are actual words or conduct indicting freely given agreement to have sexual intercourse.

Front 125

II. RAPE
B. Mens Rea
l. State of Mind Required Vis-a-Vis Element of Consent
b. Recklessness Standard:

Back 125

b. Recklessness Standard: if D intended sexual intercourse, and was reckless as to the existence of consent, he is guilty
(l) ' l(l) of Sexual Offences Act of l976--adopted in wake of Morgan
(2) Alaska: no longer requires resistance, and since statute silent on consent, requires "recklessness" as per MPC ' 2.02(3)

Front 126

II. RAPE
B. Mens Rea
l. State of Mind Required Vis-a-Vis Element of Consent
c. Strict Liability

Back 126

Objective Lack of Consent on the Part of the Victim Resolves the issue
(l) Massachusetts: Sherry, p. 351: D assumes the risk (as with age in statutory rape).
(2) Maine: Reed (358)

Front 127

II. RAPE
B. Mens Rea
l. State of Mind Required Vis-a-Vis Element of Consent
d. Prevailing View:

Back 127

Negligence--Reasonable Belief of Consent is a Defense
(l) But some states refuse instruction where no equivocal conduct on part of vic. D claims completely consensual. CW claims no consent.
(a) Tyson (Ind. p. 360)
(2) Note, PA adopts reasonable belief of consent after it expands the notion of Aforce@, Fischer (354)

Front 128

II. RAPE
B. Mens Rea
l. State of Mind Required Vis-a-Vis Element of Consent
e. Model Penal Code ' 2.ll on Consent in General

Back 128

(l) "The consent of the victim to conduct charged to constitute an offense or to the result thereof is a defense if such consent negatives an element of the offense or precludes the infliction of the harm or evil sought to be prevented by the law defining the offense."

Front 129

II. RAPE
B. Mens Rea
l. State of Mind Required Vis-a-Vis Element of Consent
e. Model Penal Code ' 2.ll on Consent in General

Back 129

(a) Does not apply to murder or serious bodily harm
(b) Nor where person incompetent.

Front 130

II. RAPE
B. Mens Rea
l. State of Mind Required Vis-a-Vis Element of Consent
e. Model Penal Code ' 2.ll on Consent in General

(2)

Back 130

) Honest but Unreasonable Belief as to Consent sufficient in Theft Cases

(a) Kelly (p. 361)

Front 131

II. RAPE
B. Mens Rea
l. State of Mind Required Vis-a-Vis Element of Consent
e. Model Penal Code ' 2.ll on Consent in General
(3)

Back 131

Law has long punished unreasonable (negligent) action which leads to loss of life as manslaughter--injury of sexual violation sufficiently great.

Front 132

III. HOMICIDE

Back 132

A. Premeditated, Deliberate Murder of the First Degree
B. Voluntary Manslaughter
C. Unintended Killings
D. Felony-Murder
E. Misdemeanor-Manslaughter Rule

Front 133

III. HOMICIDE
A. Premeditated, Deliberate Murder of the First Degree

Back 133

l. Common Law Statute:
2. Application of Common Law Statutes
3. Rejection of Premeditation and Deliberation as Basis for Identifying Murder of First Degree

Front 134

III. HOMICIDE
A. Premeditated, Deliberate Murder of the First Degree
l. Common Law Statute: Cal. and Old Pennsylvania

Back 134

a. Cal. PC ' l87: "Murder is the unlawful killing of a human being with malice aforethought"
b. Cal. PC ' l88: "Express malice is the deliberate intention to kill
c. Cal. PC l89: Any willful, deliberate and premeditated killing is Murder in the First Degree

Front 135

III. HOMICIDE
A. Premeditated, Deliberate Murder of the First Degree
2. Application of Common Law Statutes

Back 135

a. Premeditated, deliberate intent to kill may be conceived within a brief space of time: virtually equating intent to kill with deliberation and premeditation
b. States Requiring More than Intent to Kill

Front 136

III. HOMICIDE
A. Premeditated, Deliberate Murder of the First Degree
2. Application of Common Law Statutes
a. Premeditated, deliberate intent to kill may be conceived within a brief space of time

Back 136

(l) Carroll (Pa, p. 396)
(2) Missouri statute and case law
(3) premeditation and deliberation may be formed while the killer is pressing the trigger that fired the fatal shot Young (Ala, p. 400)
(4) My be inferred from use of deadly weapon on a vital part of body (O'Searo, Pa., 400)

Front 137

III. HOMICIDE
A. Premeditated, Deliberate Murder of the First Degree
2. Application of Common Law Statutes
b. States Requiring More than Intent to Kill

Back 137

(l) California requires: Anderson (p. 403)
(2) Guthrie (W.Va.)(400)(rejects Carrol approach, adopting more the CA approach in Anderson): says it makes no real distinction between Murder 1 and Murder 2

Front 138

III. HOMICIDE
A. Premeditated, Deliberate Murder of the First Degree
2. Application of Common Law Statutes
b. States Requiring More than Intent to Kill
(l) California requires: Anderson (p. 403)

Back 138

(a) pre-existing reflection:
(c) A "mere unconsidered and rash impulse
(b) Court requires evidence of all three types of evidence

Front 139

III. HOMICIDE
A. Premeditated, Deliberate Murder of the First Degree
2. Application of Common Law Statutes
b. States Requiring More than Intent to Kill
(l) California requires: Anderson (p. 403)
(a) pre-existing reflection:

Back 139

"careful thought and weighing of considerations, as a deliberate judgment or plan, carried on coolly and steadily, according to a preconceived design". Can be shown by
(i) Planning activity
(ii) Motive evidence
(iii) Nature of Killing

Front 140

III. HOMICIDE
A. Premeditated, Deliberate Murder of the First Degree
2. Application of Common Law Statutes
b. States Requiring More than Intent to Kill
l) California requires: Anderson (p. 403)
(b) Court requires evidence of all three types of evidence

Back 140

: or strong evidence of planning or motive, in conjunction with either planning or exacting type of murder.

Front 141

III. HOMICIDE
A. Premeditated, Deliberate Murder of the First Degree
2. Application of Common Law Statutes
b. States Requiring More than Intent to Kill

(l) California requires: Anderson (p. 403)
c) A "mere unconsidered and rash impulse

Back 141

even though it includes an intent to kill, is not such deliberation and premeditation as will fix an unlawful killing as murder of the first degree." (CALJIC 8.20)
* Accord. D.C., Colorado, Wyoming.

Front 142

III. HOMICIDE
A. Premeditated, Deliberate Murder of the First Degree
2. Application of Common Law Statutes
b. States Requiring More than Intent to Kill

(2) Guthrie (W.Va.)(400)(

Back 142

)(rejects Carrol approach, adopting more the CA approach in Anderson): says it makes no real distinction between Murder 1 and Murder 2

Front 143

III. HOMICIDE
A. Premeditated, Deliberate Murder of the First Degree
3. Rejection of Premeditation and Deliberation as Basis for Identifying Murder of First Degree
a. Model Penal Code ' 2l0.2
(l) ...criminal homicide constitutes murder when

Back 143

(a) it is committed purposely or knowingly; or

Front 144

III. HOMICIDE
A. Premeditated, Deliberate Murder of the First Degree
3. Rejection of Premeditation and Deliberation as Basis for Identifying Murder of First Degree
a. Model Penal Code ' 2l0.2
(2) Prior reflection may reveal the uncertainties of a tortured conscience rather than exceptional depravity

Back 144

(a) Mercy killings: termed as Murder l under common law

(b) Suicide pacts, many infanticides

(c) Cases where provocation gains in its explosive power as actor broods about his injury

Front 145

III. HOMICIDE
A. Premeditated, Deliberate Murder of the First Degree
3. Rejection of Premeditation and Deliberation as Basis for Identifying Murder of First Degree
a. Model Penal Code ' 2l0.2
(3) Some purely impulsive murders will present no extenuating circumstances

Back 145

hooliganistic motivation--may reveal callousness so complete and depravity so extreme that no hesitation is required

Front 146

III. HOMICIDE
B. Voluntary Manslaughter

Back 146

2. Extreme Emotional Disturbance
l. Provocation

Front 147

III. HOMICIDE
B. Voluntary Manslaughter
l. Provocation
a. Common Law

Back 147

(l) Upon a sudden quarrel or heat of passion. Cal.P.C. ' l92(a). Tenn.C.A. ' 29-2-22l ("sudden heat"); "under immediate influence of sudden passion arising from an adequate cause." Mo. Ann.Stats. 565.023(l)(l); Tex.Pen.Code Ann. ' l9.04.

Front 148

(l) Upon a sudden quarrel or heat of passion. Cal.P.C. ' l92(a). Tenn.C.A. ' 29-2-22l ("sudden heat"); "under immediate influence of sudden passion arising from an adequate cause." Mo. Ann.Stats. 565.023(l)(l); Tex.Pen.Code Ann. ' l9.04.

Back 148

(a) Provocation which would "cause a reasonable person in the passion of the moment to lose self-control and act on impulse and without reflection. Roston (9th Cir. 410)

Front 149

(a) Provocation which would "cause a reasonable person in the passion of the moment to lose self-control and act on impulse and without reflection. Roston (9th Cir. 410)

Back 149

(i). Extreme assault or battery upon D, mutual combat, D's illegal arrest, injury or serious abuse of close relative of D, sudden discovery of a spouse's adultery. Maryland's traditional reasons (Girouard, p. 405)

(ii) Some states restrict in flagrante delicto provocation to wife--girlfriend not sufficient

Front 150

III. HOMICIDE
B. Voluntary Manslaughter
l. Provocation
a. Common Law
(l) Upon a sudden quarrel or heat of passion. Cal.P.C. ' l92(a). Tenn.C.A. ' 29-2-22l ("sudden heat");

Back 150

"under immediate influence of sudden passion arising from an adequate cause." Mo. Ann.Stats. 565.023(l)(l); Tex.Pen.Code Ann. ' l9.04.
(b) Words alone, even fighting words are not adequate provocation (Girouard, p. 405)
(i) Including communication of past adultery

Front 151

III. HOMICIDE
B. Voluntary Manslaughter
l. Provocation
a. Common Law
(2) Cooling Time:

Back 151

attack must occur immediately after provocation

Front 152

III. HOMICIDE
B. Voluntary Manslaughter
l. Provocation
a. Common Law
(3) Victim Other than Provocateur
(a) Pa. Consol. Stats. Title l8, ' 2503(a)(2

Back 152

):"A person who kills an individual without lawful justification commits voluntary manslaughter if at the time of the killing he is acting under a sudden and intense passion resulting from serious provocation by: (l) the individual killed; or (2) another whom the actor endeavors to kill, but he negligently or aaccidentally causes the death of the individual killed."

Front 153

III. HOMICIDE
B. Voluntary Manslaughter

l. Provocation
a. Common Law
(3) Victim Other than Provocateur
(b) Mauricio (NJ, p. 4l4):

Back 153

): tried to kill bouncer, killed innocent

Front 154

III. HOMICIDE
B. Voluntary Manslaughter
l. Provocation
a. Common Law
(4) Defendant Who Elicits Provocation

Back 154

(a) D insults, then attacked, pinned to wall: May still respond to serious attack. Regina v. Johnson (p. 4l4)

Front 155

III. HOMICIDE
B. Voluntary Manslaughter
l. Provocation
b. Departures from Common Law Approach
(l) Provocation not restricted to finding wife in flagrante

Back 155

: mere words conveying this fact may be sufficient: question for jury: minority view
(a) Maher (Mich, p. 407)
(b) Pennsylvania, California, English Homicide Act of l957, ' 3.

Front 156

III. HOMICIDE
B. Voluntary Manslaughter
l. Provocation
b. Departures from Common Law Approach
(2) Non-categorial approach to cooling time

(a) Prevailing view:

Back 156

cooling time is evidentiary consideration to be evaluated by the jury under all circumstances

(l) D waits 20 hours, smouldering. OK. Berry (Ca., p. 413)

Front 157

III. HOMICIDE
B. Voluntary Manslaughter
l. Provocation
c. Objectivity of Reasonable Person Standard
(l) Camplin (UK, p. 421)

Back 157

(a) "The reasonable man...is a person having the power of self-control to be expected of an ordinary person of the sex and age of the accused, but in other respects sharing such of the accused's characteristics as they think would affect the gravity of the provocation to him".

Front 158

III. HOMICIDE
B. Voluntary Manslaughter
l. Provocation
c. Objectivity of Reasonable Person Standard
(2) Characteristics which may not be taken into account

Back 158

(a) Drunkenness
(b) Pugnacious or bad-temperedness
(c) Battered-wife-syndrome
(i) Not admissible in some states because not "reasonable person" (McClain, NJ, p. 42l)
(ii) In minority, standard is "ordinary person who is a battered spouse." (Felton, Wis, p. 422).
(d) Culturally distinctive sensibilities

Front 159

III. HOMICIDE
B. Voluntary Manslaughter
l. Provocation
c. Objectivity of Reasonable Person Standard
(3) MPC ' 2l0.3(l)(b):

Back 159

): "from the viewpoint of a person in the actor's situation." (sufficient flexibility to differentiate in particular cases between those special aspects of actor's situation that should be deemed material and those that should be ignored.

Front 160

III. HOMICIDE
B. Voluntary Manslaughter
2. Extreme Emotional Disturbance
a. Model Penal Code ' 2.l0.3(l)(b):

Back 160

Criminal homicide constitutes manslaughter when: (a) it is committed recklessly; or (b) a homicide which would otherwise be murder is committed under the influence of extreme mental or emotional disturbance for which there is reasonable explanation or excuse. The reasonableness of such explanation or excuse shall be determined from the viewpoint of a person in the actor's situation under the circumstances as he believes them to be."

Front 161

Criminal homicide constitutes manslaughter when: (a) it is committed recklessly; or (b) a homicide which would otherwise be murder is committed under the influence of extreme mental or emotional disturbance for which there is reasonable explanation or excuse. The reasonableness of such explanation or excuse shall be determined from the viewpoint of a person in the actor's situation under the circumstances as he believes them to be."

Back 161

(l) Much broader than "heat of passion"

(2) Purpose of EED defense is to permit the D to show that his actions were caused by a mental infirmity not arising to the level of insanity, and that he is less culpable for having committed them. (Casassa, NY, p. 415)

(3) Can apply where D brooded for a long time, with no immediate provocation. Elliot (Conn., p. 418).

Front 162

III. HOMICIDE
B. Voluntary Manslaughter
2. Extreme Emotional Disturbance
b. At least l4 states have adopted EED defense in whole or in part.

Back 162

(l) 4 states returned to common law after a short time

Front 163

III. HOMICIDE
C. Unintended Killings
l. Border Between Ordinary and Criminal Negligence
a. Common Law

Back 163

(l) Originally ordinary negligence sufficient
(2) Both in England and America: began to demand negligence which was "incompatible with a proper regard for human life."
(a) Criminal negligence
(b) Culpable negligence
(c) Gross negligence
(3) In Civil law, once negligence established--degree is irrelevant: in criminal law amount and degree of negligence are determining factors

Front 164

III. HOMICIDE
C. Unintended Killings
l. Border Between Ordinary and Criminal Negligence
b. Model Penal Code
(l) Homicide is manslaughter when it is committed

Back 164

committed "recklessly." MPC ' 2l0.3(l)(a).

(a) Requires "conscious awareness of the risk of death" MPC ' 2.02(2)(c).

Front 165

III. HOMICIDE
C. Unintended Killings
l. Border Between Ordinary and Criminal Negligence
b. Model Penal Code
(2) Mo.Ann.Stats. ' 565.024:

Back 165

involuntary manslaughter by (l) recklessly causing the death of another person.

Front 166

III. HOMICIDE
C. Unintended Killings
l. Border Between Ordinary and Criminal Negligence
b. Model Penal Code
(2) Negligent Homicide, MPC ' 2l0.4.

Back 166

(a) Requires "failure to appreciate a risk of death of which the actor should be aware. MPC ' 2.02(2)(d).

Front 167

III. HOMICIDE
C. Unintended Killings
l. Border Between Ordinary and Criminal Negligence
b. Model Penal Code
(3) Most statutory revisions follow MPC in limiting liability for negligent homicide to

Back 167

to "some form of gross departure from ordinary standards of care.

Front 168

III. HOMICIDE
C. Unintended Killings
l. Border Between Ordinary and Criminal Negligence
b. Model Penal Code
(4) Three Elements in Assessment of Criminal Negligence

Back 168

(a) Degree of Risk
(b) Justification for the Risk
(c) Defendant's Awareness of the Risk

Front 169

III. HOMICIDE
C. Unintended Killings
l. Border Between Ordinary and Criminal Negligence
c. Vehicle Manslaughter Statutes
(l) Typically dispense with requirement of gross negligence
(a) Cal.Penal Code ' l92(c)

Back 169

(l) driving a vehicle in the commission of an unlawful act, not amounting to felony, and with gross negligence; or driving a vehicle in the commission of a lawful act which might produce death, in an unlawful manner, and with gross negligence.

Front 170

III. HOMICIDE
C. Unintended Killings
l. Border Between Ordinary and Criminal Negligence
c. Vehicle Manslaughter Statutes
(l) Typically dispense with requirement of gross negligence
(a) Cal.Penal Code ' l92(c)

Back 170

(2) ..driving a vehicle in the commission of an unlawful acct, not amounting to felony, but without gross negligence; or driving a vehicle in the commission of a lawful act which might produce death, in an unlawful manner, but without gross negligence (misdemeanor).

Front 171

III. HOMICIDE
C. Unintended Killings
l. Border Between Ordinary and Criminal Negligence
c. Vehicle Manslaughter Statutes
(l) Typically dispense with requirement of gross negligence

Back 171

(b) Mere negligence in S.C. Barnet

Front 172

III. HOMICIDE
C. Unintended Killings
l. Border Between Ordinary and Criminal Negligence
c. Vehicle Manslaughter Statutes
(2) See Mo.Ann. Stats. ' 565.024(2):

Back 172

"A person commits involuntary manslaughter if he...(2) While in an intoxicated condition operates a motor vehicle in this state and, when so operating, acts with criminal negligence to cause the death of any person."

Front 173

III. HOMICIDE
C. Unintended Killings
l. Border Between Ordinary and Criminal Negligence
d. No Doctrine of Contributory Negligence in Criminal Law

Back 173

(l) Dickerson (Miss, p. 429): D negligent, vic grossly negligent--irrelevant.

Front 174

III. HOMICIDE
C. Unintended Killings
l. Border Between Ordinary and Criminal Negligence
e. Justifiability of Creation of High Risk of Death

Back 174

(l) MPC ' 2.02(2)(d): risk must be "substantial and unjustifiable."

Front 175

III. HOMICIDE
C. Unintended Killings
l. Border Between Ordinary and Criminal Negligence
f. Objective Versus Subjective Standards of Liability

Back 175

(l) Strict objective standard may end up in punishment of someone who was incapable of meeting the standards. Williams (p. 431)
(2) Everhart (NC, p. 438) retarded girl smothers newborn.
(3) Model Penal Code, Comment to ' 2.02
(a) blindness, blow on head, heart attack would be considered
(b) But heredity, intelligence or temperament of actor would not be held material in judging negligence

Front 176

III. HOMICIDE
C. Unintended Killings
2. Border Between Negligence and Recklessness

a. Unclarity of Terms

Back 176

(l) Welansky,(Mass, p. 425)--club fire.
(a) Must have recklessness for criminal liability in Mass, but court holds recklessness to exist when D did not appreciate grave danger where "an ordinary normal man under the same circumstances would have realized the gravity of the danger." Like MPC criminal negligence standard.

Front 177

III. HOMICIDE
C. Unintended Killings
3. Border Between Manslaughter and Murder
a. Common Law
(l) Malice does not mean any

Back 177

any "malevolent or evil design" towards the deceased

Front 178

III. HOMICIDE
C. Unintended Killings
3. Border Between Manslaughter and Murder
a. Common Law
(2) When an individual commits an act of gross recklessness,

Back 178

for which he must reasonably anticipate that death to another is likely to result, he exhibits that wickedness of disposition, hardness of heart, cruelty, recklessness of consequences, and a mind regardless of social duty constituting malice. Malone (Pa. p. 439)--60% chance in Russian roulette.

Front 179

III. HOMICIDE
C. Unintended Killings
3. Border Between Manslaughter and Murder
a. Common Law
(3) Cal. Penal Code ' l88: Malice is implied,

Back 179

, "when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart.
(a) "Neither an awareness of the obligation to act within the general body of laws regulating society nor acting despite such awareness is included within the definition of malice."

Front 180

III. HOMICIDE
C. Unintended Killings

3. Border Between Manslaughter and Murder
b. Model Penal Code ' 2.02(2)(c):

Back 180

Unintended killing is murder when committed "recklessly "under circumstances manifesting extreme indifference to the value of human life.

Front 181

III. HOMICIDE
C. Unintended Killings
3. Border Between Manslaughter and Murder
b. Model Penal Code ' 2.02(2)(c):

Back 181

(l) Must be "awareness of creation of substantial homicidal risk, too great to be deemed justifiable by any valid purpose that the actor's conduct serves."

Front 182

III. HOMICIDE
C. Unintended Killings
3. Border Between Manslaughter and Murder
b. Model Penal Code ' 2.02(2)(c):

Back 182

(2) Gross deviation from the standard of conduct that a law-abiding person would observe in the actor's situation.

Front 183

III. HOMICIDE
C. Unintended Killings
3. Border Between Manslaughter and Murder
b. Model Penal Code ' 2.02(2)(c):

Back 183

(3) higher than ordinary "recklessness" sufficient for manslaughter conviction per ' 2l0.3(l)(a): must be manifest indifference to the value of human life.

Front 184

III. HOMICIDE
C. Unintended Killings
3. Border Between Manslaughter and Murder
b. Model Penal Code ' 2.02(2)(c):

Back 184

(4) Reckless murder under MPC type statute found in cases where woman with knowledge of aggressive behavior of Rottweilers and that they had escaped before, leaves them to do so. Davidson (KS 442)

Front 185

III. HOMICIDE
C. Unintended Killings
3. Border Between Manslaughter and Murder
c. Responsibility for Murder Based on Omission

Back 185

(l) Child neglect cases

Front 186

III. HOMICIDE
C. Unintended Killings
3. Border Between Manslaughter and Murder
d. Drunk driving cases
(l) Lack of clarity as to whether D must be "conscious" of serious risk of death or

Back 186

(a) "conduct is reckless and wanton and a gross deviation from a reasonable standard of care, of such a nature that a jury is warranted in inferring that D was aware of a serious risk of death or serious bodily harm" Fleming (4thCir, p. 443)

Front 187

III. HOMICIDE
C. Unintended Killings
3. Border Between Manslaughter and Murder
d. Drunk driving cases
(2) Voluntary Intoxication No Defense per MPC ' 2.08(2) where Recklessness is Element of Offense:

Back 187

: "When recklessness establishes an element of the offense, if the actor, due to self-induced intoxication, is unaware of a risk of which he would have been aware had he been sober, such unawareness is immaterial."
(a) "The law invests an adult defendant with responsibility to know what sort of person he is, and to stay sober if his intoxication will jeopardize the lives and safety of other." Dufield (NH, Souter opinion, p. 447)

Front 188

III. HOMICIDE
C. Unintended Killings
3. Border Between Manslaughter and Murder

d. Drunk driving cases
(3) Difference between manslaughter and second-degree murder is

Back 188

is "one of degree, rather than kind."

(a) Lies in the quality of the accused's awareness of risk.

Front 189

III. HOMICIDE
C. Unintended Killings
3. Border Between Manslaughter and Murder
d. Drunk driving cases

(4) Must be something in addition to drunkenness, to indicate

Back 189

"depraved disregard of human life."

Front 190

III. HOMICIDE
C. Unintended Killings
3. Border Between Manslaughter and Murder
d. Drunk driving cases
(5) Differentiating gross negligence and implied malice

Back 190

(a) Gross negligence one can imply a conscious indifference to consequences

(b) Implied Malice must prove actual awareness. Watson (Ca. p. 445).

Front 191

III. HOMICIDE
C. Unintended Killings
3. Border Between Manslaughter and Murder
e. Inadvertent Risk-Creation
(l) Model Penal Code ' 2l0.2 Comment

Back 191

(a) "Inadvertent risk creation, however extravagant and unjustified, cannot be punished as murder. Serious felony sanctions should be grounded securely in the subjective culpability of the actor.
(b) Negligent homicide should not be assimilated to the most serious forms of criminal homicide catalogued under the offense of murder.

Front 192

III. HOMICIDE
C. Unintended Killings
3. Border Between Manslaughter and Murder
f. Explicit Statutory Murder Formulations Involving Intent to Injure
(l) Ill.Ann.Stat.ch. 720, ' 5/9-l(a):

Back 192

(l) he either intends to kill or do great bodily harm..(2) he knows that such acts create a strong probability of death or great bodily harm

Front 193

III. HOMICIDE
C. Unintended Killings
3. Border Between Manslaughter and Murder
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f. Explicit Statutory Murder Formulations Involving Intent to Injure
(2) Mo.Ann.Stats. ' 565.02l(l)(l):

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Second degree murder, if person: (l) ..with the purpose of causing serious physical injury to another person, causes the death of another person.