MODEL PENAL CODE1 1. The MBE tests the Common Law of crimes for the most part.

Occasionally a question fact pattern will give us a statute that changes the Common Law. An example is a statute that creates degrees of murder. The MBE does not, so far as I can recall, test the Model Penal Code. Until July 2006 the Colorado Bar Exam essays tested the Common Law only.2 The July 2006 Crim Law essay asked the applicant to identify possible crimes under both the Common Law and the MPC. This outline is intended to supplement my Common Law Crim Law outline. INSANITY DEFENSE a. Background. Three insanity rules that are pretty much Common Law. i. The MNaughten Rule. A defendant has the defense of insanity if he can show that as a result of a mental disease or defect the Defendant 1. did not know that his act was wrong 2. or did not understand the nature of his act. ii. The Irresistible Impulse Rule. MNaughten plus. If the Defendant was unable to control himself. iii. Durham. Now abandoned, a federal court made rule, essentially a broader reading of the MNaughton plus rule. b. MPC. Defendant has the defense if as a result of a mental disease or defect he i. Lacks substantial capacity to appreciate the wrongfulness of his conduct or ii. To conform his conduct to the law. c. Majority rule is probably MPC approach. c. Procedure. The D must raise the defense. D must give notice to the prosecution. Half the states require prosecution to prove sanity beyond a reasonable doubt. Half the states require D to prove he is insane by a preponderance of the evidence.

2.

3.

Copyright 2007 by Daniel Wilson. Unauthorized use is prohibited and will be reported to the appropriate licensing authority. 2 Last year the call of the question of a Crim Law essay asked the applicant to identify possible Common Law crimes. The score sheet then gave credit for aggravated assault, which is of course not a Common Law crime.

4.

5.

HOMICIDE a. Murder. MPC does not recognize intent to cause serious bodily harm murder and folds it into recklessness and extreme indifference to human life. A death caused by recklessness without extreme indifference is manslaughter. b. Felony Murder. MPC abolishes rule but allows a rebuttable presumption of recklessness or extreme indifference when the accidental killing occurs during the commission, or as an accomplice to, attempt to, or in flight from: robbery, rape, kidnapping, escape. c. First degree murder. In many jurisdictions, whether through statute or case law, an intentional killing done with premeditation and deliberation. MPC rejects and does not distinguish between first degree and second degree murder. d. Provocation in voluntary manslaughter. Common Law rule is the standard is completely objectivewould an ordinary person been sufficiently provoked. MPC allows a degree of subjectivity. Was this defendant provoked. e. Involuntary Manslaughter. MPC requires both recklessness and that the D be aware of the risk. f. Negligent Homicide. Requirement of awareness of risk not required. g. MPC abolishes misdemeanor manslaughter. Other crimes against the person. a. MPC abolishes Mayhem, replaces it with aggravated assault. b. A point of confusion: In C/L assault is similar to tort assaultsomething like creating a fear of imminent harmful or painful contact. C/L battery is similar to tort battery. Statutes definition of assault is like battery. Sometimes its hard to tell if assault means assault or battery. c. Aggravated battery = aggravated assault or slight injury caused by deadly weapon or with the intent to kill. d. Anal penetration sufficient for rape. e. Consent element in rape. C/L rape is sexual intercourse with a woman who is not Ds wife without consent. Does

6.

7.

the intoxication of victim = lack of consent? In MPC might = lack of consent only if D caused the intoxication. f. Statutory Rape. Reasonable mistake as to age of victim is a defense. Theft Crimes a. The problem with theft crimes is they developed as a mixture of judge made law and statutes. C/L larceny is the taking and asportation of tangible personal property of another WITH the specific intent to permanently deprive. What if the actor only intended to borrow and then decided to keep the property? What if the actor found lost property? Or if property is misdelivered? MPC solves the problem by creating the category of theft crimes. The actor is liable for theft if he acts with the purpose to deprive the owner or if he fails to take reasonable measures to restore the property to the owner. b. That means if the actor finds lost or mislaid property or property is misdelivered to him he is liable for theft if he fails to take reasonable measures to restore the property to the owner. c. Element of personal property. MPC recognizes the crime of theft of services. d. Intent to permanently deprive. Keeping property for a long time satisfies this requirement. e. Taking goods exposed for sale with intent to pay later is a defense to larceny/theft. f. MPC consolidates larceny and embezzlement into theft by unlawful taking or disposition. False pretenses and larceny by trick is theft by deception. Blackmail and extortion are theft by extortion. We still have crime of receiving stolen property. Miscellaneous. a. Intoxication is not a defense unless it negates an element of the crime. Cannot be a defense to a recklessness crime. b. Justification and Excuse. Unreasonable mistake is a defense to intent crimes. If the crime is a recklessness crime mistake is not a defense if the mistake was reckless. MPC applies this standard to all defenses, not just mistake.

c. Attempt requires a substantial step. d. MPC recognizes unilateral conspiracy. An overt act is only required if the crime is a serious one.