Criminal Law Notes

Kelsey Cox—Criminal Law Notes Adkins+ Penal Code; Santillaness; Montgomery, Garris+Penal Budish; Leonardo; MPC

State v. Adkins (1985) Criminal Ct of Appeals Tennessee PP: 1. Convicted of receiving stolen property over the value of $200. a. Tennessee Code S 39-4217 Every person who shall fraudulently receive or buy any goods over the value of $200, feloniously taken or stolen from another or goods obtained by robbery or burglary knowing the same to have been so obtained, with the intent to deprive the true owner thereof, shall be guilty of receiving stolen property over the value of $200…No evidence that he was the one that stole the Uhaul..that’s why prosecutor brought that charges. i. 1) Ct did to deter people from buying goods. (why should I steal if no one would buy it ) 2. D introduce no evidence at trial; a written statement given by the D was not introduced into evidence Facts: 1. Nov 10 Walters and his family were moving to Memphis and he was driving a Uhaul (28ft truck) which contained everything they had ie furniture, clothes, appliances a. Stopped at motel and 6 am the next morning realized that U-haul truck and all of their stuff had been stolen. 2. Nov 21 Adkins was interviewed by a police officer…and he stated that he had bought merchandise from an individual named Mike Brady who he didn’t know (knew nothing about him) LATE on the night of the 10 th or EARLY on the morning of the 11th a. D says that Brady went to his house and sold him various household goods toys and furniture for $500. (obtained a receipt from him0 3. Nov12 (RESOLD )he took the merchandise to the an Auction house a. He met terry Plunk and Montie who witnessed the receipt or sale of bill given by Mike Brady 4. Police could find no record of an individual named Mike Brady. Adkins gave the police a telephone # for Plunk but they were unable to locate him + Montie was never located. a. Walters identified items that Adkins consigned to the auction House as being some of the stolen property. i. Antique singer sewing machine+ paper back books were recovered from the D b. Other stolen items were recovered from individuals and from second hands stores were traced to the D through the Auction House. i. Adkins delivered all of the other stuff to the auction for resale. Some of stolen property sold of Nov 11. Adkin’s Argument that he did not have “guilty knowledge” that the property was stolen. Saying the evidence is insufficient of law that he knew that the goods were stolen. Knowledge of the same to have so obtained (the person could get it and give it back to the owner…How do you know the type of culpability.) More than one type of culpability for an offense.

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Kelsey Cox—Criminal Law Notes Adkins+ Penal Code; Santillaness; Montgomery, Garris+Penal Budish; Leonardo; MPC Statute requires that you know they are stolen & to deprive true owner of his/her property…slight distinctions in multiple forms of culpability required or sufficient

Rationale: 

Cts follow the objective test for determining guilty knowledge. Reasonable person would realize that these were stolen goods because of the circumstances. (Happened in the middle of the night and wanted cash) o Its existence is established by the circumstances surrounding the receipt of the property is such as would charge a reasonable man with notice or knowledge or would put a reasonable man on inquiry which if pursued would disclose that conclusion. o Ct did not look at the result; looked at the act (of buying property) and knowledge (that it’s stolen property) o It is not required that the state prove that the seller of stolen property inform a defendant who bought it that it had been stolen Direct knowledge is not necessary D should have known because a reasonable person should have known.  Guilty knowledge =established by circumstantial evidence.  Looking at the facts and the circumstances to decide what a reasonable person would have known.

Factors being considered as circumstantial evidence that would lead a reasonable man to think they might be stolen

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Circumstantial Evidence of this Case o D came into possession of the property on the night it was stolen. o D told police officer that a complete stranger came to his residence at night to sell him the property, driving a Uhaul truck; didn’t ask for the residence of the individual or identification before buying this large quantity of property for $500 cash.

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Ct believes that there is enough evidence that a juror would be convinced beyond a reasonable doubt D objects to jury instructions given concerning the objective test rule relating to guilty knowledge…says that jury instructions confirm to Tennessee law but do not conform to Tenn law. o Cases cited by D support the correctness of the jury instructions.

MPC (subjective standard) Facts + circumstances + any reasonable person would have realized the goods were stolen= D’s awareness (attendant circumstances + reasonable person standard) o Adkins could argue that he wasn’t smart enough to realize

a. MODEL PENAL CODE: Knowingly: A person acts knowingly with respect to a material element of an offence when: i. If the element involves the nature of his conduct or the attendant circumstances, he is aware that his conduct is of that nature or that such circumstances exist… ii. If the element involves the result of his conduct, he is aware that it is practically certain that his conduct will cause such a result… 2

Kelsey Cox—Criminal Law Notes Adkins+ Penal Code; Santillaness; Montgomery, Garris+Penal Budish; Leonardo; MPC Substitutes for Negligence, Recklessness, and Knowledge When acting knowingly suffices to establish an element [of an offense], such element also is established if a person acts purposely. Requirement of Knowledge Satisfied by Knowledge of High Probability When knowledge of the existence of a particular fact is an element of an offense 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. Requirement of Willfulness Satisfied by Acting Knowingly A requirement that an offense be committed willfully is satisfied if a person acts knowingly with respect to the material elements of the offense, unless a purpose to impose further requirements appears. 

Marijuana Example o He knows nothing about the deal except that it is a little bit shady. No excuse of stupidity or being half asleep. He did not know because he didn’t want to know. o MPC If aware of high probability…he had knowledge.

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Knowledge is a subjective standard. But the court uses an objective standard. So If Adkins, did not actually have  knowledge that the goods were stolen, the court still would punish him under the standard they use.  Court uses deterrence so if someone thinks that the goods are stolen, then they should be punished. Don’t buy  goods that you believe are stolen. NOT necessarily have to KNOW that they were stolen. 

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      Objective test o Stranger sold stuff to defendant  o Came to home early morning hours  o Substantially cheaper   The reasonable person would have been aware that these goods were stolen.  o Making an inference that the defendant was aware  The Model Penal Code (pg. 116) is more subjective. So the inference is more difficult to make in the MPC. 

Discussion of definition of knowledge, in this case knowledge by a high probability of awareness, not knowledge as definitely knowing something -he does not like knowledge as objective really -using objective test of circumstantial evidence to make subjective inference as to what the defendant was aware of …by proving that someone purposely has done something, that will also be sufficient to show they did so knowingly Hierarchy: purposely, knowingly, recklessly, negligently

How the Ct defines Knowledge…consistent with MPC, read up to 132

2. General Intent

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Kelsey Cox—Criminal Law Notes Adkins+ Penal Code; Santillaness; Montgomery, Garris+Penal Budish; Leonardo; MPC State needs no independent evidence; his intent can be inferred from his conduct.

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all other crimes besides specific intent and malice crimes (murder and arson)

    Model Penal code focuses on the four different type of culpability… Purpose, Knowledge, Reckless, Negligence     Purpose 1) nature of actors conduct 2) attendant circumstances 3) Result (conscious object of action to bring about result.     Knowledge actor aware that conduct is practically certain to produce that result. (ie price fixing); Adkins  knowledge that the goods were stolen (attendant circumstances)…aware that such circumstances exist=knowledge. (rebutted if actor actually believes that it does not exist—subjective) ; nature of the conduct (ie knowingly taking the property of another)     Recklessness

Santillanes v. State (1993)--Negligence Supreme Court of New Mexico PP: 1.

TC Convicted (by jury) of child abuse involving no death or great bodily injury under N.M Statute S30-61 C (4th degree felony). a. Abuse of a child consists of a person knowingly, intentionally, or negligently and without justifiable cause causing or permitting a child to be 1) placed in a situation that may endanger the child’s life or health 2) tortured, cruelly confined, or cruelly punished 3) exposed to the inclemency of the weather. Negligently encompasses all 3 of them: knowingly, intentionally or negligently

Defense Counsel requested JURY INSTRUCTIONS: (set for criminal negligence standard rather than civil negligence standard to define negligence under the statute) Based off of the def on neg in the MPC i.

An act to be negligence or to be done negligently must be one which a reasonably prudent person would foresee as creating a substantial and unjustifiable risk of injury to Paul Santillanes. The risk created must be of such a nature and degree that a reasonably prudent person’s failure to perceive it involves a gross deviation from the standard of care that a reasonably prudent person would observe in the same situation.

TC rejects instructions instructs the jury based on civil negligence standard. (did not instruct jury on the definition of intentionally) Patterned of MPC i. ii.

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Term negligence may relate either to an act or a failure to act. An act to be negligence must be one which a reasonably prudent person would foresee as involving an unreasonable risk of injury to himself or to another and which such a person, in the in the exercise of ordinary care, would not do. A failure to act to be negligence must be a failure to do an act which one is under a duty to do and which a reasonably prudent person in the exercise of ordinary care would do in order to prevent injury to himself or to another.

Negligence was described by the trial judge as an act of negligence which “must be one which a reasonable prudent person would foresee as involving an unreasonable risk injury to himself or to another and which such a person, in the exercise of ordinary care, would not do.” 4

Kelsey Cox—Criminal Law Notes Adkins+ Penal Code; Santillaness; Montgomery, Garris+Penal Budish; Leonardo; MPC 2. SC granted writ of certiorari  to review the Court of appeals decision that affirmed his conviction. ( where the case is now) AFFIRMS CONVICTION. Facts: 1. Santillanes cut his 7 year old nephews neck with a knife during an altercation. 2. He claimed that his nephew injured himself when he jumped into a fishing line strung between two trees. Sant Argument the provision in the statute under which he was convicted is unconstitutional because it improperly criminalizes ordinary civil negligence (due process issue). DUE PROCESS meant fundamental fairness (Procedural due process); Substantive Due Process: substance of the particular statute…Leg cannot apply a civil negligence standard because it does not attach abuse. o o

Felony punishment should only attach to criminal behavior Criminal negligence should be used instead of civil negligence To accord felony status to acts of civil negligence standard violates substantive due process because civil neg is not tailored to meet statutory goal of protecting children from abuse.

States Argument legislatures decision to criminalize the conduct described in S 30-60-1 C reflects a compelling public interest in protecting defenseless children and was a proper exercise of the legislatures police power. Courts will try to avoid constitutional interpretations. Issue: 

When the legislature has included but not define the mens rea element in a criminal statue, here the term negligently, what degree of negligence is required?

Rationale CT Criminal negligence instead of Civil Neg. 

Prior Case Law= Courts in NM has consistently applied + supported a civil negligence standard. o State v. Coe Called for something more than civil negligence  D argued that negligence in the ordinary civil sense included any and all harm to a child making the child abuse unconstitutionally vague so as to violate due process.  Ct rejected that argument and said that the term negligently required an abusive act against a child —not mere normal action or inaction.  Not void for vagueness because it gave fair notice.

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When it comes to involuntarily manslaughter where the person potentially faces jail time requires a higher standard than tort negligence o No basis for rational in Raton v. Rice except that a higher standard than tort negligence should be applied when the crime is punishable by a felony. o Most commentators (scholars) urge the application of criminal negligence for felonies instead of the civil negligence standard. 5

Kelsey Cox—Criminal Law Notes Adkins+ Penal Code; Santillaness; Montgomery, Garris+Penal Budish; Leonardo; MPC  

Based on traditional application of heightened standards of culpability to crimes punishable with jail sentences. LaFave and Scott ie when compensating an injured person for damages suffered, the one who negligently injured the victim ought to pay for it…but when the problem is one of whether to impose criminal punishment on the one who caused the injury then something extra is required.

This is because the criminal standard is higher. The consequences of a criminal conviction are worse. He was still guilty thought. Not a reversible error

4. STATUATORY CONSTRUCTION What did the legislature intend? 

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Criminal Law statues strictly construed (specific, not a lot of room for interpretation); may not be applied beyond its intended scope, must be defined with appropriate definiteness. o Each of the other criminal statutes in NM in which negligence is an element also fail to define term but are punishable as a misdemeanor which is consist with only needing ordinary civil negligence. (ie negligent use of deadly weapon, negligent use of explosives, negligently permitting livestock upon public highways) o Scienter (intent of wrong doing) is element of crime penalty is higher infamy is that of a felon which is a as bad as a word you can give a man or thing.  When moral condemnation and social criticism attaches to the conviction of a crime, the crime should reflect a mental state warranting such contempt. Reasonable doubt as to the intended scope of proscribed conduct under child abuse statute construing the language in favor of lenity (people) and in the absence of a clear legislative intent that ordinary civil neg is a suff predicate for a felony= concl Civil neg standard as applied to the child abuse statute improperly goes beyond its intended scope and criminalize conduct that is not morally contemptible o Scope of the statue is to punish conduct that is morally culpable not merely inadvertent (unintentional) o Doesn’t find the absence of a def of negligence in the statue to be indicative of legislative intent + does not support the states contention that if the leg has meant to apply a crim neg standard they would have do so (ie case of negligent arson)  No indication that leg intended felony punishment to attach to ordinary negligent… we do not address the constitutionality of provision.  No indication from leg that the public interest in the matter is so compelling or that the potential for harm is so great that the interests of the public must override the interest of the individual to justify civil negligence as a predicate for a felony C. REVERSIBLE ERROR.. Practical approach for dealing with appeals…always going to be some mistakes that happen in trial.

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Reversible Error: Ct has to consider whether the error was harmless or whether it undermined the reliability of the conviction or prejudiced the D rights as to warrant a reversal of his conviction. o Reversible error failure to instruct the jury on an essential element of the charged offense o When no dispute that essential element was established  failure to instruct does not require a reversal of conviction.  Ct believes that no rational jury could have concluded that S cut his nephews throat without satisfying the standard of criminal negligence= error in instructing the jury on a civil negligence standard instead of a criminal neg standard was not reversible error (conviction affirmed) 6

Kelsey Cox—Criminal Law Notes Adkins+ Penal Code; Santillaness; Montgomery, Garris+Penal Budish; Leonardo; MPC o

Ct not defining the crime of neg child abuse usurping the police power of the leg rather interpreting the statute in light of traditional concerns regarding the intended scope of criminal statutes.

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Statutory interpretation case - what did the legislature mean when they used the term “negligently” under §30-6-1(c) civil or criminal negligence standard? Ct. holds that criminal negligence was intended because of the stigma and loss of liberty associated with the crime of child abuse. Higher degree of culpability is necessary Negligence in a criminal statute is usually criminal negligence.

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Montgomery v. State (2012) Court of Criminal Appeals of Texas (final jurisdiction over all criminal matters) PP: 1.

Grand Jury Indicted Criminally negligent homicide alleging that she had made an unsafe lane change and had failed to keep a proper lookout a. Texas Penal Code S19.05 a person commits an offense if he causes the death of an individual by criminal negligence; when he ought to be aware of a substantial and unjustifiable risk that the circumstances exist or the result will occur; the risk must be of such a nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that an ordinary person would exercise under all of the circumstances as viewed from the actor’s standpoint. Criminally negligent producing a result through conduct. Whether the person ought to have perceived a substantial and unjustifiable risk that the death would occur. b. Both applying an objective person standard c. UN REASONABLE RISK= Ordinary Neg v. CRIM Neg substantial and unjustifiable risk of result occurring. 1. Criminal negligence (substantial risk) likelihood would be a lot higher; greater degree of risk . 2. Deviation v. GROSS DEVIATION.

2. Petit jury (ord 12 person)  found Montgomery guilty 3. Ct of Appeals Opinion evidence was insufficient to establish mens rea of criminal negligence a. State presented evidence of 1) M use of phone while driving 2) unsafe lane change 3) failure to maintain a proper lookout 1. Only making an unsafe lane change= moving violation under State of Texas. b. State presented evidence of cell phone use as a primary factor establishing appellants criminally negligent behavior 1. ct of appeals  state introduced no competent evidence that cell phone use while driving increases the risk of all accidents and held that without evidence that such risk was generally known and disapproved of in the community …no reasonable fact finder cold find that using a cell phone while driving turned a simple moving violation into a criminally negligent homicide.

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Kelsey Cox—Criminal Law Notes Adkins+ Penal Code; Santillaness; Montgomery, Garris+Penal Budish; Leonardo; MPC c. State failed to establish that the appellant ought to have been aware of a substantial and unjustifiable risk that death would result from her actions and that her failure to perceive such a risk was a gross deviation from ordinary care. State Argument if ct reviewed evidence most favorable to verdict= would have had suff consideration; ct of appeals relied on an incorrect theory of law…cell phone use while driving does not constitute morally blameworthy conduct. Risk of fatal crashes form cell phone use is generally known and disapproved of in the community + dangers of driving while talking on a cell phone have been well known and criminalized in certain situations by the Texas legis. d. CT found the evidence insufficient to sustain the conviction and rendered judgment of acquittal 4. Court of Criminal Appeals of Texas (SC) where the case is now granted State petition for discretionary review.

Facts:  

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8:30 pm Montgomery was driving her mid-size SUV in the center lane of 3 land service road that was adjacent to Interstate Highway 45 + talking on cell phone After hanging up, she realized she missed the entrance ramp which diverged from the left lane o Swerved into left lane to try to get onto ramp even though the safety barrier was behind her (solid white lined area on the pavement between ramp and service road) o TC disagreement about how far past the ramp she was when she changed lanes  State 92 feet and M lesser distance Moves is left lane: she cuts off Cochise Willis, who was driving a 3 quarter ton pickup truck in the left lane… he was driving at 50 and she was driving much slower o He tried to slow down and get into the center lane, but could not avoid hitting the rear of Montgomerys Suv (slightly to the right of its center) o M was almost entirely in left lane at impact and W was over the dividing line between left and center. Collision causes M vehicle to rotate counter-clockwise crossing over the safety barrier onto the entrance ramp o M hits Terrell Housley pickup truck which had just driven onto the entrance ramp…truck rotated clockwise causing it to hit the curb that separates the entrance ramp and safety barrier and flip over…Wilcox was ejected and died at the scene from head and neck trauma. o M SUV flipped onto its left side and skidded to a stop o Willis never lost control of his truck and pulled into emergency lane and stopped.

Rationale Sufficiency of the Evidence o Jury= sole judge of credibility of witnesses and ct has to make sure that they don’t usurp this role by substituting its own judgment for that of the jury. o Duty of reviewing ct: 1) ensure that the evidence presented supports jury verdict 2) state has presented a legally suff case of the offense charged  Ct must presume jury resolved in conflicts in favor of the Verdict 8

Kelsey Cox—Criminal Law Notes Adkins+ Penal Code; Santillaness; Montgomery, Garris+Penal Budish; Leonardo; MPC 

To make a legally sufficient showing of criminally negligent homicide, the State must prove… o 1) that the appellants conduct caused the death of the individual o 2) appellant ought to have been aware that there was a substantial and unjustifiable risk of death from her conduct o 3) appellants failure to perceive the risk constituted a gross deviation from the standard of ordinary care an ordinary person would have exercised under like circumstances.  Circumstances are view from standpoint of the actor at the time the alleged negligent act occurred

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Conduct for criminal negligence involves a greater risk of harm to others… carelessness is significantly higher that that for civil negligence; seriousousness of negligence would be known by any reasonable person sharing the community’s sense of right and wrong. Degree of deviation from reasonable care is measured soley by the degree of negligence not any element of actual awareness. o Jury is determining that the D failure to perceive the associated risk is so great as to be worthy of a criminal punishment.

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State has met its burden in proving all 3 elements o

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1) Montgomery made an abrupt lane change in front of Willis truck causing that truck to strike her SUV and causing her SUV to stick Housley truck from which Wilcox was ejected and died. Making an unsafe lane change caused the death of Wilcox. 2) D ought to have been aware of the substantial and unjustifiable risk created by her conduct. Not the cell phone use rather an unsafe lane change and failing to maintain a proper lookout (from indictment)  She didn’t signal the lane change or look for other vehicles approaching from the left lane and was driving at speeds high enough to be lethal should a collision occur  Common knowledge that failing to maintain a proper look out and making an unsafe lane change poses a great risk to other drivers on the road

Justice Hudson State had no burden to show that driving while using a cell phone is always risk or dangerous or that it of itself crates a substantial and unjustifiable risk. Only that M the appellants use of a cell phone IN THIS CASE created a substantial and unjustifiable risk because it interfered with their ability to maintain a proper look out for other vehicles. o

3) her failure to appreciate the substantial and unjustifiable risk given the circumstance known to her at the time was a gross deviation from a standard of care that an ordinary person would exercise under the same circumstances.  Missed entrance ramp because was distracted by phone call, she knew that she had missed the ramp and still attempted to move to the left lane, and cut across the safety barrier to get on to the ramp  Made an unsafe or aggressive lane change that Willis could not have avoided hitting appellants vehicle.  M argues her conduct was not a gross deviation from the ordinary standard of care that she was subjected to criminal liability for a common traffic accident with fatal results.  Gross deviations was not use of cell phone but unsafe lane change. Failure to perceive risk= gross deviation. 9

Kelsey Cox—Criminal Law Notes Adkins+ Penal Code; Santillaness; Montgomery, Garris+Penal Budish; Leonardo; MPC 

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Use of cell phone maybe considered as a factor in demining whether the def grossly deviated form ordinary standard of care.

Vacate the judgment of the court of appeals and remand the cause to the court of appeals as it may address appellants remaining points of error.

MPC Definition of negligence means Criminal negligence. .. .risk of a result occurring. a. What is the difference between criminal and civil negligence? iii. Reasonable risk v. substantial risk iv. No proper purpose v. unjustifiable v. Essentially a GROSS deviation from reasonable person standard (objective standard) b. MODEL PENAL CODE: Negligently: A person acts negligently with respect to a material element of an offense when he should be aware of a substantial risk and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and a degree that the actor’s failure to perceive it, considering the nature and purpose of his conduct and the circumstances known to him, involves a gross deviation from the standard of care that a reasonable person would observe in the actor’s situation. Santiallanes just meant negligence. (criminal negligence) substantial an unjustifiable risk that the result in question will occur.

People v. Garris (1990)--Recklessness SC of NY (Appellate Division) PP: 1. TC Convicted by jury of the criminally negligent homicide. 2. SC of NY (appellate court) where the case is now.

Facts: 

D was a passenger in a vehicle…under the influence of alcohol…grabbed the wheel and jerked it downward causing the vehicle to swerve sharply to the right…and stuck and killed a pedestrian.

D’s argument evidence was legally insufficient to establish the element of criminal negligence Rationale 

Person is guilty of criminally negligent homicide when he causes the death of another person. 10

Kelsey Cox—Criminal Law Notes Adkins+ Penal Code; Santillaness; Montgomery, Garris+Penal Budish; Leonardo; MPC

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Penal Law S 15.05 (4) 1) when he fails to perceive a substantial an unjustifiable risk that such result ie death will occur 2) risk must be of such a nature that the failure to perceive it constitutes a gross deviation from the standard of care that reasonable person would have observed under the same circumstances.  What amounts to criminal neg depends on the circumstances of the particular conduct.

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CT of APPEALS Guiding Principles  1) Criminal liability cannot be predicated on every careless act merley because its careless and results in another’s death  2) Crim neg involves the failure to perceive risk in a situation where the offender has a legal duty of awareness  3) liability for criminal neg should not be imposed unless the inadvertent risk created by the conduct would be apparent to anyone who share the community’s general sense of right and wrong  4) the fact finder must evaluate the actors failure of perception and determine whether under all the circumstances it was serious enough to be condemned.

Evidence viewed most favorable to the people was legally sufficient to establish D guilt o Evidence showed that the D was just messing around and had no legitimate reason for touching the wheel. o D had not observed the pedestrian at the time of his actions o Engaged in conduct which caused the vehicle to veer out of control substantially and unjustifiably endangering both its passenger and others in its path. o EVIDENCE established D failure to perceive a substantial and unjustifiable risk that death would result from his conduct = suff to sustain conviction for criminally negligent homicide.

i. Culpability requirement here is criminal, not civil, negligence ii. Criminally negligent homicide = criminal neg. that causes a homicide iii. Criminal negligence = 1. failure to perceive substantial and unjustifiable risk will result 2. deviation from the stand of care of a reasonable person under the circumstances 3. you have a legal duty of awareness 4. generally apparent risks must be avoided

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Charge: criminally negligent homicide

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There was a substantial risk of death because the passengers in car and pedestrians could have been killed;  the risk was unjustifiable because he was just “messing around.”

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Failure to perceive the 2 risks was a gross deviation from the standard of care of a reas. person.

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Ordinary negligence requires an unreasonable risk and a deviation from the standard of care; criminal  negligence requires a substantial risk and gross deviation from the standard of care.

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Ordinary negligence: concerned with injury 11

Kelsey Cox—Criminal Law Notes Adkins+ Penal Code; Santillaness; Montgomery, Garris+Penal Budish; Leonardo; MPC 

Criminal negligence: concerned with result of death

c. MODEL PENAL CODE: Negligently: A person acts negligently with respect to a material element of an offense when he should be aware of a substantial risk and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and a degree that the actor’s failure to perceive it, considering the nature and purpose of his conduct and the circumstances known to him, involves a gross deviation from the standard of care that a reasonable person would observe in the actor’s situation.

People v. Budish (1982) CA Court of Appeal PP: 1.

Budish was charged with in an information (formal crim charge made by prosecutor, without the necessity of obtaining a grand jury) for unlawfully burning inhabited structures and property Cal Penal code S 452 b and forest land Cal Penal Code S 452 c. 2. Trial Court No evidence that Budish acted recklessly (even though there was ample evidence to support the finding that D’s actions in setting the fire in the ring was the proximate cause of the destructive fire) 3. Ct of Appeals where the case is now; appeal from ct order setting aside the information after granting D motion pursuant to Penal Code S995 a. Penal Code S 995 requires that an information be set aside if D has been committed without reasonable or probably cause 1. Not be set aide if there is a rational basis for concluding that the offense has been committed and that D is guilty… Proof beyond a reasonable doubt is not necessary. Facts: 1. Roy Martinez hired Budish to clear brush and keep trespassers from his property was located in a canyon —mountainous terrain 2. Budish lived with his girlfriend (Danielle De Pas) in a trailer provided by Martinez a. Propane stove in trailer did not have fuel which Martinez promised to fix but never did b. In order to heat water, Budish had to make a campfire in a small ring on premises i. Martinez cautioned them against lightening fires, but was aware that he was doing it ii. On one occasioned accepted hot coffee from D when he visited the property. 3. A LA County sign prohibiting fires in the area was posted beside a road adjoining the property. 4. Nov 15 made a campfire for his breakfast coffee(between 6-8 am); and extinguished it with sand when he was finished a. Santa Ana winds arose that morning causing fire to spread over a wide area of land (excess of 50 mph/ overturned outhouse) i. Over 80 homes were lost or damaged in neighboring communities + over 6,000 acres along with some structures were consumed in adjacent national forest. 5. Conflict in testimony as to where the fire originated 12

Kelsey Cox—Criminal Law Notes Adkins+ Penal Code; Santillaness; Montgomery, Garris+Penal Budish; Leonardo; MPC a. Expert witness for prosecution sparks from the fire ring were blown by the high wind onto flammable materials b. Defense experts careless smoking by unknown people in the area was a more likely source of ignition. Rationale: MPC 1. Purpose 2. Knowledge 3. Recklessness 4. Criminal negligence. 

Penal Code S 452 a person is guilty of unlawfully causing a fire when he recklessly sets fire to or burns or causes to be burned any structure, forest land or property. o PC S 450 defines recklessly a person is aware of and consciously disregards a substantial an unjustifiable risk that his or her act will set fire to burn, or cause to burn a structure forest land, or property.  The risk shall be of such nature and degree that a disregard constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation. A person who creates such a risk but is unaware thereof solely by reason of voluntary intoxication also acts recklessly.

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Similar to MPC S 2.02 that defines recklessly A person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a degree that, considering the nature and purpose of the actors conduct and the circumstance known to him, its disregard involves a gross deviation from the standard of conduct that a law abiding person would observe in the actor’s situation. o

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Defines negligently: A person acts negligently with respect to a material element of an offense when he should be aware of a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that the actor’s failure to perceive it, considering the nature and purpose of his conduct and the circumstances known to him, involves a gross deviation from the standard of care that a reasonable person would observe in the actor’s situation.

MPC distinctions between reckless and negligent conduct  the conscious disregard of the risk by the reckless actor and the failure to perceive risk by negligent actor. o Ct find no evidence that D was aware of the risk of widespread fire (conflagration) and that he consciously disregarded that risk.  He was deprived by his employer of operating a safe stove and D used the only means available (fire) to obtain hot water.  Budish used campfire for many days without incident + with apparent due care…D could not have reasonably be said to have consciously disregarded the risk so as to characterize his actins as reckless.  Assuming that fire started from the campfire D could have not reasonably anticipated the unprecedented wind force….conduct did not amount to a conscious disregard of the risk in the making a small contained campfire during the day.  Not a gross deviation from normal standards of conduct in satisfying a normal desire for an early morning hot drink o

D negligent failure to perceive the risk did not amount to reckless conduct. Agree with the trial court that there is no evidence that D appreciated the risk of what ultimately occurred or that he consciously disregarded such risk 13

Kelsey Cox—Criminal Law Notes Adkins+ Penal Code; Santillaness; Montgomery, Garris+Penal Budish; Leonardo; MPC 

In determining whether D was guilty of violating penal statue must strictly construe the statute uninfluenced by the extent of the harm which resulted.

Did he see the signs?? If he did then maybe he was aware of it and consciously disregarded it. Cautioned by Owners not to light a fire; whether Budish lived in Ca for a while and was aware of risk. Prosecution set forth facts and act fact finder to infer that D was actually aware. (from circumstantial evidence) Probable Cause low standard. Risk=of burning inhabited structures and property. Whether there is probable cause He created a substantial and unjustifiable risk…whether he realized that he realized it?? i. Recklessness = he is aware AND consciously disregards the substantial and unjustifiable risk; it’s a deviation (subjective) Greater blameworthiness; realizes the risks and still acts without regard to it. ii. Negligence = should be aware of the substantial and unjustifiable risk; failure to perceive is a deviation Budish (156) - Recklessness 1* Charge: unlawfully burning structures, property, forest land. 2* Required mens rea: recklessness, causation & injury elements satisfied. 3* Budish was not found to be reckless because he acted w/ care in starting the fire; if he was unaware of the risk, there is insufficient evidence of recklessness; no conscious disregard of the risk.

4* Ordinary negligence requires an unreasonable risk and a deviation from the standard of care; criminal  negligence requires a substantial risk and gross deviation from the standard of care. 5* Ordinary negligence: concerned with injury 6* Criminal negligence: concerned with result of death

14

Kelsey Cox—Criminal Law Notes Adkins+ Penal Code; Santillaness; Montgomery, Garris+Penal Budish; Leonardo; MPC

People v. Leonardo (1982) SC of NY (Appellate Division) PP: 1. Indicted on Several Charges. 15

Kelsey Cox—Criminal Law Notes Adkins+ Penal Code; Santillaness; Montgomery, Garris+Penal Budish; Leonardo; MPC (1) assault, first degree (Penal Law, § 120.10, subd 1, with intent to cause serious physical injury, causing such injury by  means of a deadly weapon); (2) assault, first degree (Penal Law, § 120.10, subd 3, under circumstances evincing a depraved indifference to human life,  recklessly engaging in conduct creating a grave risk of death and causing serious physical injury); (3) reckless endangerment, first degree (Penal Law, § 120.25, under circumstances evincing a depraved indifference to  human life, recklessly engaging in conduct creating a grave risk of death); and (4) criminal possession of a weapon, fourth degree (Penal Law, § 265.01, subd [2], possessing a deadly weapon with intent  to use it unlawfully against another).

2. TC Grand Jury; dismissed indictment Same context as the Budish case. 3. AC where the case is now; people appealed  suff evidence to establish offense of a lesser crime. Facts: 1. Leonardo, 32 years old, loaded 1 bullet into his fathers .22 cal rifle. a. He took it outdoors and aimed it at a tree –beyond which he knew was the baseball diamond of Park School b. Fired gun, bullet missed tree and hit 11 year old Kristin Hyland and seriously injured her (was watching her brothers baseball game) 2. Took the rifle indoors, cleaned it, and removed all the tracing of the firing…putting it away it its case a. Police questioned him D denied any involvement. 3. Arrested over a year later….after he confessed to a counselor at a crisis center and police a. Told the police that he had been target shooting at a tree b. In his written confession, he stated that he had been surprised and scared when the gun fire because het thought that he had unloaded hit. Issue: 



A court may grant a motion to dismiss an indictment or any count only if the evidence is not legally sufficient to establish the offense charged or any lesser offense. TC believes that record does not support any of the crimes charged. Whether the evidence supports a lesser included offense of any of the crimes charged?

Rationale: 



3 crimes involving the same conduct with lower degrees of mental culpability. o 1) Assault 2nd Degree recklessly causing serious physical injury by means of a deadly weapon o 2) Assault 3rd Degree recklessly causing physical injury o 3) Reckless Endangerment 2nd Degree recklessly creating a substantial risk of serious physical injury Whether Facts before grand jury would support any of these lesser convictions… o Test whether there has been a clear showing that the evidence if unexplained and contradicted would not warrant a conviction by a trial jury. o Evidence: must be viewed in the light most favorable to the people. o This Case that the evidence, viewed most favorably to the people, could sustain a finding of recklessness.

16

Kelsey Cox—Criminal Law Notes Adkins+ Penal Code; Santillaness; Montgomery, Garris+Penal Budish; Leonardo; MPC 

To establish recklessness the People must show…Ct finds that all 3 elements are established. o 1) D was aware of and consciously disregarded a risk that injury would occur o 2) risk was substantial and unjustifiable o 3) disregard of risk constitutes a gross deviation from the standard of conduct that a reasonable person would observe.

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D state of mind is the critical element in determining whether he perceived and disregarded risk of harm objective evidence of the surrounding circumstances can we weighed in making factual determinations. RELEVANT FACTORS. o D age 32 o That he reasonably should have known that the gun was loaded (admits loading it) o The fact that he intentionally not accidentally aimed it at a tree and pulled the trigger o Familiarity with the gun and with guns in general (he loaded it fire it and cleaned it to remove traces of firing) o Awareness of the proximity of the school and the baseball field (he lived across the street) o Fact that there would be people in the area on a warm afternoon after school during the baseball season. More justification for like self defense shooting at a murderer. Ct says that a jury could conclude that D was aware of the risk inherent in his act and consciously disregarded the risk…indictment should be reinstated. Reasonable person would recognize risk of hitting someone else. Ct says that there was enough evidence produced for the grandjury. i. For the same recklessness standard, you use objective evidence as proof. This is how you determine D’s state of mind/ if he was “aware” b. Culpability – i. (intent) Purpose: Nature and conduct; Result; Attendant circumstances ii. (intent) Knowledge: Result ; Nature and conduct; Attendant circumstances iii. Recklessness: Element exists ; Result iv. Criminal negligence: Element exists; Result ***For CL = MPC purpose and knowledge. In MPC intent focuses mostly on purpose.

 

D. Leonardo (160) ­ Recklessness 1* Charge: 2 cts. Of assault, 1 reckless endangerment, 1 crim. possession of a weapon. 2* Ct. held: there was a substantial risk that shooting at a tree in a suburban area could  cause someone  injury; risk was also unjustifiable so there was recklessness. 3* He consciously disregarded the risk because he was aware: (1) the gun was loaded, (2) familiarity with  guns, (3) awareness of proximity of the school, and (4) awareness that there could be people in the area on  a warm afternoon after school. c. MODEL PENAL CODE: Recklessly: A person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and purpose of the actor’s conduct and 17

Kelsey Cox—Criminal Law Notes Adkins+ Penal Code; Santillaness; Montgomery, Garris+Penal Budish; Leonardo; MPC

the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a law-abiding person would observe in the actor’s situation Culpability Required Unless Otherwise Provided: When the culpability sufficient to establish a material element of an offense is not prescribed by law, such element is established if a person acts purposely, knowingly, or recklessly with respect thereto. Negligence is missing statute has to state it…only criminalize negligent conduct by specifically stating it. Substitutes for Neg, Reck, and Knowledge: When the law provides that negligence suffices to establish an element of an offense, such element also is established if a person acts purposely, knowingly, or recklessly. When recklessness suffices to establish an element, such element is also established if a person acts purposely or knowingly… TUITORIAL OF MENS REA KENT law online page. Student Portal… Courses with material online.

Strict Liability 

Does not require awareness of the factors constituting the crime.



Certain defenses (such as mistake of fact) are not available.



Generally, “regulatory” offenses ­ involve low penalty and not regarded as involving significant moral  impropriety.



The mere fact that a statute is silent wrt the question of mental state doesn’t necessarily mean that it’s a strict  liability offense.

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Strict liability = Act + Result (no culpability req.)



Any defense which negates intent can’t be a defense to strict liability because no intent is required.



Usually look to legislative intent:

(a) purpose of statute, through wording (b) common law history requires intent  (c) potential harm to public (d) potential punishment

18

Kelsey Cox—Criminal Law Notes Adkins+ Penal Code; Santillaness; Montgomery, Garris+Penal Budish; Leonardo; MPC

D. Strict Liability (Balint +Morrissette) US v. Balint (1922) Supreme Court of the United States PP: 1. Balint Indicted for violation of the Narcotic Act of Dec 17, 1914 a. Charged B with unlawfully selling to another a certain amount of derivative of opium and derivate coca leaves ( not in pursuance of any written order on a form issued in blank for that purpose i. Section 2 of Narcotic Act…any person that excepts the order will for a period of two years be accessible to inspection and have to show transaction on a specific form for the Commissioner of Internal Revenue and keep forms to show on inspection 2. District Court D demurred the indictment on the ground that it failed to charge that they had sold the inhibited drugs, knowing them to be such. a. D argued that the statute does not make such knowledge an element of the offense. Mistake of Fact… he thought he as selling sugar ( could of done nothing—bad precedent, bring a new charge, challenge on error) Appeal lower court ruling. b. Sustained the demurrer and quashed the indictment. 3. Supreme Court writ of error to the DC under the Criminal Appeals act; demurrer to indictment should have been overruled. Facts:  

Balint sold cocoa and opium leaves (inhibited drugs) not knowing what they were illegal without permission. o Had to have order form from purchaser to lawfully sell them D argguilty knowledge is necessary

I: Construction of statute and of inference of the intent of Congress…Does the Narcotic Act require the mental knowledge? No (a) purpose of statute, through wording (b) common law history requires intent (c) potential harm to public (d)  potential punishment Rationale 

At common law, it was a general rule that the scienter was a necessary element in the indictment and proof of every crime –where statutory definition did not include it. o Has been said that punishment of a person for an act in violation of the law when ignorant of the facts making it so absence of due process.  Overruled in Shelvin-Carpenter Co v. Minnesota: state may in the maintenance of public policy provide that the person does the act at his peril (SL) and a defense in good faith/ignorance will not be heard.

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Found in regulatory measures in the exercise of police power where emphasis of the statute is the achievement of some social betterment rather than punishment of the crimes (as in cases of mala in se)

19

Kelsey Cox—Criminal Law Notes Adkins+ Penal Code; Santillaness; Montgomery, Garris+Penal Budish; Leonardo; MPC o

o

Collection of Taxes the importance to the public of their collection leads legislature to impose on the taxpayer the burden of finding out facts upon which his liability to pay depends and meeting it at the peril of punishment Main purpose to make sure you are paying your taxes. Hobbs v. Winchester Corpwhere one deals with other where his negligence may be dangerous to others –as in the selling of diseased food or poison, the policy of law in order to stimulate proper care…require the punishment of the negligent person (although he may not be aware of the noxious character of what he sells) Individual harm on a mass scale.

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Legislative intent to be construed by the courts. o Narcotic Act has been held by this court to be a taxing act with the incidental purpose of minimizing the spread of addiction to the use of poisonous and demoralizing drugs. o Secures close supervision of the business of dealing in these drugs by the taxing officers of the Government—merely uses a criminal penalty to secure recorded evidence of the disposition of such drugs as a means of taxing and restraining traffic.  Req people dealing in drugs to ascertain at his peril whether that which he sells is in violation of the statute and if he sells the inhibited drug in ignorance of his character to penalize him.



Congress weighed the possible injustice of subjecting an innocent seller to a penalty -- against the evil of exposing innocent purchasers to danger from the drug and concluded that the latter was to be avoided. o Judgment Reversed Congress intended to put the burden on the seller…cts have looked at the potential harm to the public to determine if it would be widespread. o If there is an opportunity to learn facts easily becomes less unfair. o Opportunity to ascertain true facts o DIFFICULTY OF PROOF Congress intended to impose strict liability o GVT would have difficulty proving…ie if they claim I don’t know how do you know.

Factors to consider: Regulatory offense, potential harm to the public, opportunity to ascertain try facts, difficulty of proof of Knowledge;  origin of the offense (traditional common law) 

Types of strict liability offenses:                                                     1. public welfare (usually “malum prohibitum” ­ wrong because prohibited), have minor penalties, the act  is sufficient to convict (speeding). Regulatory offenses more likely to be strict liability.  2. traditional offenses (“malum in se” ­ morally wrong) and carry severe penalties ­ (a) felony­murder, (b)  statutory rape (knowledge of age not required, only knowledge of intercourse)

A. Balint (165) 

Charge: unlawfully selling opium derivatives, not in pursuance of a written order from the IRS.

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D’s claim: Guilty knowledge is necessary for the indictment/state claims knowledge n/a because it’s a  strict liability crime.

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Can legislature change a statute (Narcotics Act) to strict liability?  Yes, it’s not unconstitutional to  eliminate culpability. 20

Kelsey Cox—Criminal Law Notes Adkins+ Penal Code; Santillaness; Montgomery, Garris+Penal Budish; Leonardo; MPC 

Ct. makes it a strict liability statute because the purpose of it is regulatory/public welfare.

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If serious public harm can result, ct. says that legislature intended strict liability; the protection of the  public is more important than protecting the seller (even if he is innocent because ignorance is not an  excuse when the info. Is fairly easy to find).



Also, strict liability because it would be really hard to prove that they didn’t know the nature of the  substances they were selling i. This crime is punishable w/o intent because the act is evil. ii. In a case of serious public harm, it is better to punish the potentially innocent. Therefore we impose strict liability. iii. It is a matter of legislative intent. d. Factors to consider when deciding to impose strict liability: i. Regulatory v. public welfare offense ii. Seriousness of potential harm to public iii. D’s opportunity/ability to ascertain true facts iv. Difficulty in proof of knowledge v. Punishment for the crime (how bad it is)

Why else court find that there was intent to impose SL. Staples—changed framework for analysis? and Maybury 

Generally, “regulatory” offenses ­ involve low penalty and not regarded as involving significant moral  impropriety.



The mere fact that a statute is silent wrt the question of mental state doesn’t necessarily mean that it’s a strict  liability offense.



Strict liability = Act + Result (no culpability req.)

Morissette v. United States (1952) Supreme Court of the United States PP: 1. Investigated: Morissette told stories to the authorities and said that he had no intention of stealing but thought he property was abandoned, unwanted, and considered of no value to government. Similar to Bradbury that he did not do anything wrong. Abandoned= claims government has given up property rights. LARCENRY ..NOT a REGULATORY TYPE OF OFFENSE. 2. Indicted: (written accusation charging some with a crime) on the charge that he unlawfully, willfully, and knowingly stole and converted US gvt property for $84 in violation of 18. U.S.C S 641 (US code) a. 18. U.S.C S 641 “whoever embezzles, steals, purloins, or knowingly converts” See bottom of 94 b. Punishable by fine and imprisonment: value of such property does not exceed the sum of $100, he shall be fined no more than $1000 or imprisoned not more than 1 year or both. 3. Trial Court convicted and sentenced to imprisonment for 2 months or to pay $200 fine 21

Kelsey Cox—Criminal Law Notes Adkins+ Penal Code; Santillaness; Montgomery, Garris+Penal Budish; Leonardo; MPC a. Morissette told investigating officer he believed the casing were cast off and abandoned…that he did not intend to seal the property and had NO WRONGFUL or CRIMINAL INTENT b. Tc unimpressed, he thought it was abandoned and knew it was on government property = not a defense. (it cant be abandoned on another mans property c. Court refused to submit or to allow counsel to argue to the jury whether he acted with innocent intention i. If man took the property (which he says he did), without permission (which he says he did), that was on Us government property (he says he was), that it was of value of one cent or more (which it was), that he is guilty of the offense charged. ii. Morissette’s counsel said that the taking must have been with felonious intent…ct ruled it was presumed by his own act. Bradbury couldn’t be a directed verdict in favor of the government; in this case it gets pretty close to that. Knowingly taken the property/ casing. Knew that the property belonged to the government. ..Govt= SL; public welfare offenses. 4. Court of Appeals affirmed decision (1 dissenting judge) a. Greater restraint in expression by the TC should have been exercised. b. Guilty beyond reasonable doubt by his admissions. c. Ruled that conversion (Any unauthorized act that deprives an owner of personal property without his or her consent) of government property  required no element of criminal intent; i. Support from the fact that Congress failed to express such as requisite and other Ct decisions in Behrman, Balint. Ct interprets the statute to mean no element of criminal intent. Behrman interpret the omission to congress to mean no intent= and that it should be interpreted in the same manner. Offenses of a different kind; regulatory offenses. Aimed at the public welfare. Whether congress intended intent for intent to steals?Facts 

In Michigan, there is a large tract of uninhabited, and untilled land in a wooded area, that the government used as a practice bombing range for the Air Force, flatted out with tractor and served. o Dropped simulated bombs (40 inches long filled with sand and black powder: to cause a smoke puff) o At various places of the land, signs were posted which said Danger Keep Out Bombing Range… but the area was known for good deer hunting and people regularly hunted it. o Bomb casings from targets were cleared and thrown into piles out of the way…for 4+ years and were exposed to weather and rusting



Morissette went hunting in the area and did not get a deer so he decided to cover the expenses of his trip by salvaging some of the casings o He loaded 3 tons of them on his truck and sold them at a farm where it was made into flint for $84, in broad daylight, not trying to conceal anything o Occupation during summer was a fruit stand operator, and during winter was trucker and scrap iron collector…honorably discharged veteran of WW2.  Didn’t have any blemishes on his record more disreputable than a conviction for reckless driving.

CODIFIED COMMON LAW… need vicious will for crimes Rationale: 22

Kelsey Cox—Criminal Law Notes Adkins+ Penal Code; Santillaness; Montgomery, Garris+Penal Budish; Leonardo; MPC I. 

Belief that an injury can amount to a crime only when inflicted by intention has long been upheld is not a transient (short time) notion. o Universal and persistent in mature systems of law as other beliefs, such as freedom of human will. o Criminal law based on theory of punishing vicious will. o Allowed for the substitution of reformation and Rehabilitation instead of retribution…which would be possible if there wasn’t a mental element in the crime Williams v. New York o English Common LawBlackstone’s statement: to constitute any crime there must first be a vicious will.  Exceptions: sex offenses such as rape in which the victims age was determinative despite D reasonable belief that the girl had reached age of consent; lack of understanding because of insanity, subnormal mentality or infancy  Ones that use mental: negligence and involuntary manslaughter. o American law: Evil meaning mind with and evil doing hand even the dog knows the difference between being kicked and stumbled over

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When states codified the common law and were silent on the subject cts assumed that the omission did not signify disapproval of the principle but recog that its intent was so inherent in the idea of the offense that it required no statutory affirmation. o Ie courts have told juries in instructions: felonious intent, willfulness, or mens rea to signify an evil purpose or mental culpability

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In Behrman and Balint= court construed omission from a criminal of any mention of criminal intent as dispensing the req. o Crimes did not depend on mental element but consisted only of forbidden acts of omissions. o Public welfare offensesin the nature of neglect where the law requires care of inaction where it imposes a duty  Violations of regulations result in no direct or immediate injury to person or property= create the danger or probability of it which the law seeks to minimize  Guilty act alone makes crime  Offense against authority occurrence impair the efficiency of controls that are essential to the social order o Penalties are small and conviction does no grave damage to an offenders reputation. = not all that unfair.  IE: Criminal law would be more. = FELONY. Imposes a sitgma.. a bad a word that ;you can give to man or thing. STIGMA. Purpose is not to punish immoral conduct but achieve some good for the public; Balntcontrol from public Regulation of Malum Prohibitum activities. Very heavy fine or 10 years in jail for someone without fault

Erred in instruction to jurywas pretty directed. 

The courts have not undertaken to draw a line or set comprehensive criteria for distinguishing between crimes that require a mental element and those that do not. o Issue: whether we will expand the doctrine of crimes without intent to include the charge here?  Stealing an larceny and other like crime were among the earliest offense known to the law that existed before legislation. 23

Kelsey Cox—Criminal Law Notes Adkins+ Penal Code; Santillaness; Montgomery, Garris+Penal Budish; Leonardo; MPC 



o

Stir a sense of insecurity and arouse public demand for retribution…penalty is high + label of felon CTS have RETAINED REQ OF INTENT IN LARCENY TYPE OFFENSES  Congress omitted any express prescription of criminal intent from the enactment because of the holding that intent is inherent in this class of offense (unbroken course of judicial decisions in all states)  Keeler Case—stomping; what a baby meant at common law and followed that.

Gvt asks the purpose and obvious effect of doing away with the requirement of a guilty intent is to ease the prosecutions path to conviction, to strip the defendant of such benefit as he derived at common law from innocence of evil purpose and to circumscribe the freedom heretofore allowed to juries.  Judiciary does not have the power to create crimes and the court should not enlarge the reach of enacted crimes  Omission from S 641 of any mention of intent should not be construed as eliminating that element from the crimes denounced.  In Morissette, the act itself is not enough. The harm did occur but if he didn’t intend to steal, there is no liability. i.

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Public welfare offenses – malum prohibitum crimes usually. Crimes created for the functioning and efficiency, not harm. There is no mens rea for these because harm happens in the act in itself (Balint). ii. Pure = malum sea. There is a harm and requires intent to do the harm. iii. Common law offenses always have mens rea, so it is a codified common law offense the intent requirement is still there iv. If there is a statute that doesn’t require intent, it is harder to tell. v. Here intent was required because it was from the common law Some statutes are malum prohibitum= unlawful by virtue of statute vs. malum se = because it is evil

Look at if it is a regulatory offense or of the intended to punish. LOOK at origin of the offense The Model Penal Code—Under the MPC, mens rea applies to the act, the circumstances, and the result. 1. Model Penal Code §202 a. (1) Minimum Requirements of Culpability (Responsibility for fault/wrong; blame)—Except for absolute liability (sec 2.05) a person is not guilty of an offense unless he acted purposely, knowingly, recklessly, or negligently, as the law may require, with respect to each material element of the offense b. (4) Prescribed Culpability Requirement Applies to All Material Offenses—When the law defining an offense prescribes the kind of culpability that is sufficient for the commission of an offense, without distinguishing among the material elements thereof, such provision shall apply to all the material elements of the offense unless a contrary purpose plainly appears.

B. Morissette (109) 1* Not a public welfare offense, it is a common law crime for which mens rea is required even if not  specifically stated in the statute.

24

Kelsey Cox—Criminal Law Notes Adkins+ Penal Code; Santillaness; Montgomery, Garris+Penal Budish; Leonardo; MPC 2* Ct. looked at the possible punishment for this theft offense: 10 years imprisonment  ­ too long for strict  liability mens rea. 3* Regulatory offense, potential harm to the public, opportunity to ascertain try facts, difficulty of proof of  Knowledge; origin of the offense (traditional common law) Balint Omission intended by the legislature…they were liable even if they did not know it was drugs.  Attorney should of argued Severity of the Penalty should be given heavy weight

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