Approach to Criminal Law Exams

A person who actually commits a physical act that has been made illegal by law
with the accompanying state of mind may be charged with and convicted of a crime.
(If either the act or intent is lacking the defendant may not be guilty of that crime.)

Any person who is an accomplice to that person also may be charged with and
convicted of the crime.

The law will list the physical acts and mental state(s) required for crime.

Crimes include not only actual criminal acts, but also certain preparatory crimes
(“inchoate offenses”)

Quick Reference:

Actus Reus + Mens Rea = Crime

Actus Reus: Physical Act

Mens Rea: Culpable Mental State

Categories of Mens Rea: Specific Intent, Malice, General Intent, Model Penal
Code

Model Penal Code Culpable Mental States: Purposefully, Knowingly,

Recklessly, Negligently.

Purposefully: Conscious object

Knowingly: Know your actions will lead to result

Recklessly: Conscious disregard of unjustifiable risk

Negligently: Failure to be aware of unjustifiable risk and result.

Strict Liability: No Mens Rea Required

Accomplice Liability Elements: 1) Specific Intent; and 2) overt act.

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CRIMINAL LAW | SPRING 2019 Page 2 of 21
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I. ESSENTIAL ELEMENTS OF A CRIME
A. ACTUS REUS | The Physical Act
1. Voluntary Act
a. Must be voluntary physical act; the law cannot punish thoughts, (save for
inchoate offenses.)
1) Martin v. State
a) “I don’t want to be drunk in public, I wanna be drunk in the bar. You
threw me into public.”
b) RULE: A defendant must perform the physical act for each element of a
crime that has an actus reus component.
2. Involuntariness
a. Definition: act is involuntary if it is not a product of a person free will,
manifested by corresponding, external body movement.
b. Mens Rea is Irrelevant; involuntariness is a defense w/r or not accused
possessed mens rea and w/r or not crime is SL
c. EX: sleepwalking, actions while unconscious, reflexes.
d. WHAT IS VOLITION |State v. Utter
1) Father is vet and trained to have a conditioned response, fatally stabs son.
2) RULE: An “act” while one is unconscious is in reality no act at all. It is
merely a physical event or occurrence for which there can be no criminal
liability.
a) “The absence of consciousness not only precludes the existence of any
specific mental state, but also excludes the possibility of a voluntary act
without which there can be no criminal liability.”
b) Consciousness of the Defendant is a Question of Fact.
3. Omissions (“Negative Acts”)
a. BREACHES OF DUTY THAT GIVE RISE TO CRIMINAL LIABILITY |
Jones v. United States
1) Statute;
2) Certain Status or Relationship to Another;
3) Duty under K;
4) Undertaking Duty; or
a) And secluded the helpless person as to prevent others from rendering
aid.
5) When a person creates a risk of harm to another.
b. MORAL OBLIGATIONS DO NOT GIVE RISE TO DUTIES | People v.
Beardsley
 1) Man having affair with woman for some time; decide to schtup and get high
in a “house of assignation.” Mistress overdoes, Man convicted of
manslaughter for failure to act.
2) RULE: The very nature of a relationship goes to whether or not there is a
legal duty to act; being an adult whom is old enough to schtup and get high
does not give rise to such duty.

B. MENS REA | The Culpable Mental State

1. Mens Rea | Generally
a. MENS REA IS DEEPLY ROOTED IN CRIMINAL LAW | United States v.
Cordoba-Hincapie
1) “Mens rea” means, a guilty mind; a guilty or wrongful purpose; a criminal
intent.
2) “An act does not make the doer of it guilty, unless the mind be guilty; that
is, unless the intent be criminal”
b. MENS REA REQUIRES MORE THAN “WICKEDNESS” | Regina v.
Cunningham
1) Defendant was trying to steal change from a meter machine and ends up
loosen up pipe that poisons his neighbor.
2) RULE: To satisfy mens rea requirement of maliciousness, the actor must
either intentionally set out to cause the harm that resulted, or he must
have been reckless with regard to whether the harm would in fact result.
2. Mens Rea | Specific Intent
a. Requires doing an act with a specific intent or objective
b. Cannot infer specific intent from doing the act
c. Major specific intent crimes:
1) Solicitation 7) Burglary
2) Attempt 8) Forgery
3) Conspiracy 9) False Pretenses
4) Assault 10) Embezzlement
5) Larceny 11) 1d Premeditate Murder
6) Robbery
3. Mens Rea | Malice
a. Applies to common law murder and arson
b. Generally shown w/ (at least) reckless disregard of an obvious or high
risk that a particular harmful result would occur. (CASE)
4. Mens Rea | General Intent

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 a. Defendant must be aware that she is acting in the proscribed manner and
that any attendant circumstances required by the crime are present.
1) Attendant circumstance
5. Mens Rea | Model Penal Code
a. PURPOSEFULLY
1) conscious object to engage in act or cause a certain result
b. KNOWINGLY
1) As to nature of conduct: aware of the nature of conduct or that certain
circumstances exist.
2) As to result: knows that conduct will necessarily or very likely cause result.
c. RECKLESSLY
1) Conscious disregard of a substantial and unjustifiable risk that
circumstances exist or a prohibited result will follow.
2) The disregard = a gross deviation from a “reasonable person” standard of
care.
d. NEGLIGENTLY
1) failure to be aware of a substantial and unjustifiable risk that
circumstances exist or a prohibited result will follow, and this disregard is
a gross deviation from a “reasonable person” SOC.
6. Recklessness v. Negligence
a. Recklessness: accused has to actually be aware of risk of criminal conduct
(subjective test)
b. Negligence: Accused merely should have been aware (objective test).
C. Strict Liability
1. Common Law Origin
a. If crime taken from CL contains no mens rea element, mens rea is still
presumed to exist unless legislature states otherwise
2. Public Welfare Offense
a. if regulatory offense contains no mens rea element, it is SL if people are on
notice that regulations of this sort exist, but not strict liability otherwise.
3. Legislative Intention Controls
a. Legislature decides w/r crime is SL or not; court only interpret legislative
intent.
1) Morissette v. United States
D.ACTUS REUS + MENS REA = CRIME

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CRIMINAL LAW | SPRING 2019 Page 5 of 21
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II. ACCOMPLICE LIABILITY

A. Accomplice Liability
1. Accomplice | Elements
a. Must be intentionally aiding, counseling, or encouraging the crime—
active aiding, etc. required.
b. If crime is one of recklessness or negligence, accomplice must intend to
facilitate commission and act w/ recklessness or negligence.
1) Mere presence not enough, even if by presence defendant seems to
be consenting to the crime. (CASE), or even if Defendant fails to
notify the police.
2) No direct evidence—mens rea is often established through
circumstantial evidence.
2. Accomplice | Actus Reus
a. Active assistance of another in commission of crime.
1) Assisting undercover agent—not a criminal act.
2) Mere presence is not enough for actus reus.
3. Accomplice Liability | Scope
a. Accused can be convicted for crimes intended to assist or could
reasonably have foreseen.
b. PINKERTON DOCTRINE
1) Conspirators held responsible for reasonably foreseeable actions of
co-conspirators undertaken in furtherance of conspiracy.
c. Common Law—four categories of r’ship to crime
1) Principal in the First Degree—present and actually committed
criminal act.
2) Principal in the Second Degree—present and assisted criminal act.
3) Accessory Before the Fact—aided or encouraged principals before
crime completed
4) Accessory After the Fact—aid or encouragement after crime
completed.
a) Helping someone escape
1. Not liable for the crime itself
2. A separate lesser charge
4. Merger
a. Liability is for the crime itself and all other foreseeable crimes
b. Accessory Treated like Principal—if prosecution proves assistance,
accessory is guilty as if he or she was principal.
II. Accomplice Liability

c. Accessory can be convicted w/r or not principal charged or convicted.

d. Notice—prosecution must give notice w/r it intends to prove accused
acted as principal or accomplice.
e. Accessory After the Fact—might be convicted of separate crime, but no
merger w/ principal’s offense.
B. Accomplice | Defenses
1. Withdrawal is an affirmative defense if prior to the crime’s commission
a. If encouraged crime  must repudiate encouragement
b. If provided material  must neutralize the assistance
c. Or may notify police or otherwise act to prevent crime.

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CRIMINAL LAW | SPRING 2019 Page 7 of 21
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III. INCHOATE OFFENSES

SOLICITATION, CONSPIRACY, AND ATTEMPT
A. Solicitation
1. Solicitation | Generally
a. General v. Specific—some statutes criminalize soliciting any crime;
some only specific crimes.
b. Accomplice—if crime solicited occurs  solicitor is also an accomplice
2. Solicitation | Elements
a. Asking someone to commit a crime,
b. With the intent that the crime be committed.
3. Solicitation | Mens Rea
a. Intent to promote or facilitate of specific crime by another person.
b. CASE
4. Solicitation | Actus Reus
a. Commanding, encouraging, or requesting another person to commit
specific crime.
1) No Action Necessary—neither party need act toward completing
targeted crime.
a) CASE
2) No mere Threats or Jokes—must be more than that, but less than
conspiratorial agreement.
a) CASE
3) Mere Approval of Another Criminal Intention Not Enough—but can
solicit by expressly encouraging person who has already decided to
commit crime
4) Conspiracy—if solicitation results in person solicited agreeing to
commit the crime solicited, conspiracy exists.
5) Impossibility—irrelevant what person being solicited id or w/r
crime solicited occurred.
5. Solicitation |Defenses:
a. The refusal or the legal incapacity of the solicitee is no defense
b. If legislative intent is to exempt solicitor, that is a defense
c. Renunciation and Withdrawal
1) Voluntary—withdrawal must be voluntary and not based on belief
of increased risk of being caught by po-po.
III. Inchoate Offenses

2) Complete—withdrawal must be complete; cannot abandon on

criminal objective while continuing to solicit another
3) Preventing Crime—person w/drawing must prevent commission of
crime by person solicited.
B. Conspiracy
1. Conspiracy | Generally
a. Double inchoates
1) Cannot conspire to attempt or solicit. CASE
b. Hearsay exception
1) Hearsay statements of co-conspirators in further of conspiracy may
come into evidence. FRE 801(d)(2)(E)
2) CASE
c. Unilateral or Bilateral Conspiracies
1) Bilateral
a) Traditional view: two or more person must agree to commit
unlawful act or lawful act by unlawful means.
1. Wharton’s Rule—two people cannot be conspirators where
they agree to commit crime that necessarily requires
participation of both, unless more people involved.
a. CASE
2. Undercover Agents—cannot have conspiracy w/ undercover
agent in a bilateral jurisdiction.
a. CASE
2) Unilateral
a) Majority Rule: on person may be conspirator if believes agreeing
w/ another commit crime
1. Undercover agents—can have conspiracy w/ undercover
agent in unilateral jurisdiction.
2. Co-Conspirator Status—person is conspirator under
unilateral approach even if co-conspirator is never found or
identified, not charged, or acquitted.
2. Conspiracy | Elements
a. An agreement;
b. An intent to agree;
c. An intent to achieve the objective of the agreement; AND
d. An overt act (most jurisdictions)
3. Conspiracy | Mens Rea

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III. Inchoate Offenses

a. Intent to agree w/ another to commit crime and intent to commit that

crime
1) Recklessness & Neglignece—no conspiracy to commit crime w/
mens rea of recklessness or negligence. (CASE)
2) Mere Knowledge Not Enough—mens rea not establishe simply by
showing accused person knew someone else intended to commit the
crime. (CASE)
4. Conspiracy | Actus Reus
a. Agreement w/ another person to commit crime (can be established
circumstantially); plus, in many jurisddictions, overt act in furtherance
of a conspiracy is required.
1) Number—number of conspiracies is determined by number of
agreements to commit crimes.
a) Multiple objectives—one conspiratorial agreement may have
multiple criminal objectives. (CASE)
b) Continuing Agreemtn—conspiratorial agreement may continue
over time. (PINKERTON)
2) Merger
a) Conspiracy & Target Crime—majority rule: conspiracy
conviction does not merge w/ conviction for crime which was
object of conspiracy
b) Multiple Inchoates—convictions of multiple inchoates aimed at
same target crime often do merge by statute.
3) Over Act
a) Act in furtherance of conspiracy by any conspirator; not the
same as conspiratorial agreement. (CASE)
4) Duration
a) Abandonment of conspiracy presumed where no overt act w/in
statutory limitations period. (CASE)
5. Conspiracy | Liability
a. each conspirator is liable for all crimes of other conspirators if
foreseeable and in furtherance of the conspiracy.
6. Conspiracy Defense | Renunciation &Withdrawal
a. General Rule—can only withdraw from liability for future crimes; no
withdrawal from conspiracy possible because agreement coupled with
act completes crime of conspiracy.
b. Requirements:

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III. Inchoate Offenses

1) Voluntary—withdrawal must be voluntary and not based on belief

of increased risk of being caught by police.
2) Complete—withdrawal must be complete; cannot stop conspiring on
one criminal objective while continuing another.
3) Thwarting Crime—person withdrawing must prevent commission
of crime; can be accomplished by assisting police in preventing
crime by co-conspirators
c. M.P.C. recognizes voluntary withdrawal as defense if the defendant
thwarts conspiracy (e.g., informs police)
d. Factual impossibility is no defense
7. Scope of Conspiracies
a. Chains—conspiracy where someone conspires w/ others up or down the
line from him or her. (e.g., drug distribution) (CASE)
b. Wheels & Spokes—separate conspiracies (spokes) can be part of larger
conspiracy where common co-conspirator (hub) and conspirators knew
of existence of other conspiracy or conspirators.
C. Attempt
1. Attempt | Elements
a. Specific intent; and
b. Overt act.
2. Attempt | Actus Reus | Beyond mere preparation
a. Proximity Tests
1) Substantial Step Test—MPC and majority test focuses on how far
actor has gone toward crime. (CASE)
a) Mere preparation is not enough.
2) Modern Test Inclusive—More actions beyond mere preparation are
criminal attempts.
3. Attempt | Mens Rea | Specific intent
a. Generalized Criminal Intent is not enough
b. No attempted recklessness or negligence crimes—attempting to cause
a criminal result is intentional conduct. (CASE)
4. Merger
a. attempt conviction merges w/ conviction for crime attempted
5. Attempt | Defenses:
a. Impossibility Defense
1) Factual Impossibility is NO defense | What Actor INTENDED to
do

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III. Inchoate Offenses

a) Factual impossibility arises when defendant sets out to do an

illegal act, but cannot complete the act due to some unknown
reason.
2) True legal impossibility is always a defense | What ACTUALLY
Occurred
a) Legal impossibility arises when defendant sets out to do a legal
act that he believes is illegal.
b. Abandonment generally no defense after the substantial steps have
begun (CASE)
1) MPC recognizes abandonment as defense if
a) Fully voluntary, and
b) Complete (i.e., not a postponement due to unfavorable
circumstances)

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CRIMINAL LAW | SPRING 2019 Page 12 of 21
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IV. HOMICIDE
A. Homicide | Common Law Murder
1. Common Law Murder | Elements
a. Unlawful;
b. Killing of another human being;
c. With malice aforethought; and
1) Malice means
a) Intent to kill;
b) Intent to do serious bodily harm;
c) Reckless indifference to unjustifiably high risk to human life
(depraved heart murder); or
d) Felony murder
d. Without justification or provocation.
2. Common Law Murder | Defenses:
a. Justification (self-defense); and
b. Provocations (reduces crime to voluntary manslaughter)
3. Common Law Murder | Felony Murder Rule:
a. The killing must be foreseeable
b. Deaths caused while fleeing from a felony are felony murder
1) But deaths that arise after defendant has found some point of
temporary safety are not.
c. Majority rule—defendant is not liable for felony murder for the death
of a co-felon as a result of resistance by the victim or the police.
4. Felony Murder Rule | Defenses:
a. If defendant has a substantive defense to the underlying felony, he
usually has a defense to felony murder
1) “Procedural” Defenses (e.g., SOL) generally no defense
b.
B. Homicide | Manslaughter
1. Two Kind—Voluntary and Involuntary
2. Voluntary manslaughter
a. Elements:
1) Adequate provocation;
2) Gave rise to heat of passion; and
3) No adequate cooling-off period
b. Failed self-defense claim is voluntary manslaughter
IV. Homicide

3. Involuntary manslaughter
a. Types:
1) Killing resulting from criminal negligence; or
2) Misdemeanor manslaughter
C. Homicide | Causation
1. General rule—defendant is liable for all natural and probable
consequences of his conduct unless the chain of causation is broken by the
intervention of some superseding factor
a. Superseding factors:
1) Acts of nature;
2) Coincidence; or
3) Negligent medical care not a superseding factor unless gross
negligence or intentional malpractice
b. Two commonly encountered rules:
1) Hastening an inevitable result; and
2) Simultaneous acts by two or more parties
c. Add a causation analysis to any homicide question that presents the
issue.
2. TEST: Two Pronged: Actual (But For) Causation + Legal
Causation
a. Actual Causation: but for the accused’s actions, would criminal result
have occurred when it did?
1) Multiple actors
a) more than one person may be actual cause of same criminal
result
2) Multiple Mortal Wounds
a) Simultaneous: actual cause prong met by each actor if more
than one independently inflict instantly fatal wounds on same
victim at same time.
b) Successive—mixed law w/r actual cause prong met where
successive mortal wounds or wounds hastening death inflicted
by independent actors.
b. Legal Causation: strict test than tort law
1) Tests-various names; focus on reasonable foreseeability and
intervening or supervening cause that “break the causal chain”
2) MPC—was result “too remote or accidental”?
3) Year and A Day Rule—common law rule cutting off culpability after
a year and a day largely rejected now

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IV. Homicide

4) Medical intervening cause—gross negligence breaks casual chain;

ordinary negligence does not. (CASE)

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CRIMINAL LAW | SPRING 2019 Page 15 of 21
BOWMAN

V. PROPERTY CRIMES
A. Larceny
1. Larceny | Elements
a. Taking
b. And carrying away;
c. Of tangible personal property;
d. Of another w/ possession;
e. By trespass;
f. W/ intent to permanently deprive that person of their interest in the
property
B. Embezzlement
1. Embezzlement | Elements
a. The fraudulent;
b. Conversion;
c. Of personal property;
d. Of another;
e. By a person in lawful possession of that property.
C. False Pretenses
1. False Pretenses | Elements
a. Obtaining title;
1) If title is not obtained, the crime is larceny by trick.
b. To personal property of another;
c. By an intentional false statement of a past or existing fact;
d. With intent to defraud the other.
D.Robbery
1. Robbery | Elements
a. A taking;
b. Of personal property of another;
c. From the other’s person or presence;
d. By force or threats of immediate death or physical injury to the victim,
a member of their family, or some person in the victim’s presence;
e. W/ the intent to permanently deprive him of it.
E. Theft
1. Theft | Elements
2. MPC consolidation of Larceny, Embezzlement, False Pretenses
V. Property Crimes

F. Burglary
1. Burglary | Elements
a. A breaking;
b. And entry;
c. Of a dwelling;
d. Of another;
e. At nighttime;
f. With the intent to commit a felony in the structure
G.Arson
1. Burglary | Elements
a. The malicious;
b. Burning;
c. Of the Dwelling;
d. Of another.
H. Possession

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V. Property Crimes

VI. OTHER CRIMES

A. Battery
1. Battery | Elements
a. Unlawful application of force to another;
b. Resulting in bodily injury or offensive touching.
B. Assault
1. Assault | Elements
a. Intentionally placing another in actual and reasonable fear of
imminent battery; or
b. Intent to commit battery.
C. False imprisonment
1. False Imprisonment | Elements
a. Unlawful;
b. Confinement of a person;
c. Without their valid consent.
D.Rape
1. Rape | Elements
a. Any penetration of a sexual organ to another sexual organ;
b. Without the victim’s effective consent;
1) Intercourse accomplished by actual force;
2) Intercourse accomplished by threats of great and immediate bodily
harm;
3) Intercourse where the victim is incapable of consenting due to
unconsciousness, intoxication, or mental condition; or
4) Intercourse where the victim is fraudulently caused to believe that
the act is not intercourse.

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V. Property Crimes

VII. DEFENSES/JUSTIFICATION
A. Insanity
1. M’Naghten Test
a. Disease of the mind cause a defect or reason so defendant lacked the
ability at time of his actions to know wrongfulness or understand
nature and quality for actions.
2. Irresistible Impulse test
a. Unable to control actions or conform conduct to law
3. Durham Test
a. Crime was product of mental disease or defect
4. M.P.C. Test
a. Combination of M’Naghten and irresistible impulse tests.
B. Intoxication
1. Voluntary intoxication is a defense if it negates “specific intent”
2. Involuntary intoxication is a defense
C. Self-Defense
1. Nondeadly Force (NDF)
a. A person may use NDF in self-defense if they reasonably believe force
is about to be used on them. (CASE)
1) No duty to retreat (CASE)
2. Deadly Force (DF)
a. A person may use DF if she is:
1) W/o fault;
2) Confronted by unlawful force; and
3) Reasonably believes that she is threatened with imminent death or
great bodily harm
b. Duty to retreat before using DF
1) Majority rule—no duty to retreat
2) Minority rule—duty to retreat, except:
a) When it cannot be done safely, and
b) In one’s home.
1. Must be in the home. (CASE)
c. DF is self-defense may be used by original aggressor only if he tries to
w/draw (e.g., run for door) and communicates that w/drawl to the
original V, or if sudden escalation of violence by original V
d. Use of DF to arrest

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V. Property Crimes

1) Officer must reasonably believe suspect armed or presents a danger

to the public
e. Fact-Finder determines absence of right to self-defense
1) Defendant may be guilty of voluntary manslaughter under
“imperfect self-defense” theory
3. Defense of others or dwelling
a. NDF—person reasonably believes that NDF is necessary to protect
other or dwelling (or to end unlawful entry)
b. DF—only if a person reasonably believes that she is threatened w/
death or great bodily harm.
D.Necessity
1. Choice of evils—harm to society exceeded by harm of criminal act
a. Objective test
b. Not available if defendant is at fault for creating situation requiring
choice
c. Tradittionally, choice had to arise from natural foce; modern cases do
not have this requirement
E. Durres
1. Defendant performs a criminal act under a threat of death or serious
bodily harm to him or another
a. Threat must be made by another human
b. Traditionally, threat to property was not sufficient; MPC now
recognizes threat to property as sufficient if harm threatened
outweights harm of criminal act
F. Mistakes
1. Mistake of fact
a. Must negate state of mind
b. Malice and general intent crimes—mistake must be reasonable
c. Specific intent crimes—mistake can be reasonable or unreasonable
d. Strict Liability—mistake is not a defense
2. Mistake of Law
a. Not a defense CASE

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V. Property Crimes

C.Possession—some crimes have actus reus requiring proof of possession

of something. 1.Possession Defined—awareness of possession to degree
sufficient to be able to exercise control, while acting knowingly and
voluntarily. 2.Joint Possession—possession by more than one person
simultaneously when item found in place where more than one person was
aware of existence and exercised control over it. 3.Constructive
Possession—possession of contraband when found not on or around
accused, but in place where person was aware of existence and exercised
control over it. D.Status-Based Crimes—person cannot be convicted
merely for “status,” e.g. as a narcotics addict. 1.Rationale—status may be
acquired as result of disease, or otherwise innocently or involuntarily
without fault on part of accused. 2.Status vs. Act—person can be convicted
for committing criminal offense based upon act that was result of status,
e.g. public drunkenness. E.Omissions—accused cannot ordinarily be
convicted of crime based upon failure to act. 1.Exceptions: Duty-to-Aid—
minority jurisdictions require people to assist victims being harmed.
2.Exceptions: Legal Duties—person can be convicted for failure to act
where legal duty to act. Common legal duties: a.Statute—where statute
imposes duty. b.Status—where close “status relationship” exists.
c.Contract—where contractual obligation exists. d.Assumption of Duty—
where person takes initiative and performs act. e.Creation of Peril—where
actor has created peril that confronts victim. 16 3.Limitations on Legal
Duties—inapplicable where person is unaware of need to act, or does not
have physical capacity to help. 4. Lambert—very limited defense excusing
failures to act where legal duty when person not reasonably on notice that
statute exists requiring action.

Acing Criminal Law

Sabates, Kelly
©2017 West Academic Publishing

C.Intoxication & Drugged Condition—mens rea defense in most

jurisdictions if crime was specific intent, but not if general intent (or strict
liability). 1.General vs. Specific Intent—general when conviction requires
only proof of intent to commit act that causes the harm; specific when
proof is required of an additional intent beyond committing act that
causes the harm. 2.Sufficiency—intoxication or drugged condition must be
so extreme that accused did not possess prescribed mens rea.

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V. Property Crimes

Acing Criminal Law

Sabates, Kelly
©2017 West Academic Publishing

A.Mistake of Fact—one way of negativing mens rea. 1.Depends on Mens

Rea—honest belief in mistaken circumstances must negative the
particular mens rea of offense. 2.Common Law Approach—defense to
specific intent crime when honest belief in mistake negativing mens rea;
defense to general intent crime when honest and reasonable belief. 3.MPC
Approach—elements of mistake defense depend upon particular mens rea
element; reasonable mistaken belief required for recklessness and
negligence. 4.Strict Liability—no mistake of fact defense. 5.Jury
Instructions—mistake of fact may be covered in instruction on elements of
crime charged. B.Mistake of Law—not a defense. 1.Distinguish Mistake of
Fact—mistake of fact defense relies on honest but mistaken belief in
circumstances negativing mens rea; mistake of law is mistaken belief in
lawfulness of conduct. 2.Official Permission—sometimes fact that accused
was told officially that conduct was not criminal offense is good defense.
3.Knowledge as Element—good defense where legislature has made
knowledge of illegality element of the crime.

Acing Criminal Law

Sabates, Kelly
©2017 West Academic Publishing

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