Recklessness Criminal Law Essay Outline

Criminal Law Outline

Table of Contents

Word List3

The common law versus statutes. 4

What is a crime?. 4

Jury nullification. 4

Theories of punishment4

Utilitarianism.. 4

Retributivism.. 5

Differences between the theories. 5

The principle of legality. 6

Burden of proof7

The Winship doctrine. 7

The elements of a crime. 7

Actus reus. 7

Voluntary act8

Omission. 8

Social harm.. 9

Mens rea. 9

Transferred intent9

General versus specific intent9

Kinds of culpability. 10

Mistake of fact10

The “moral wrong” doctrine. 11

The “legal wrong” doctrine. 11

Mistake of law.. 11

Causation. 13

Actual cause. 13

Proximate cause. 13

Criminal homicide. 14

“Malice aforethought”. 14

Model Penal Code on criminal homicide. 15

Adequate provocation. 15

The reasonable man. 15

Depraved-heart murder. 16

The felony-murder rule. 17

The “inherently dangerous felony” limitation. 17

The “independent felony” or “merger” limitation. 18

Rape. 19

The resistance requirement19

The common law rule of resistance. 20

The mens rea of rape and mistake of fact21

Rape shield laws. 22

Defenses. 23

Justification. 23

Self-defense. 24

Common law principles. 24

The “aggressor” issue. 24

“Reasonable belief” at common law.. 24

“Self-protection” and the Model Penal Code. 25

Necessity. 25

Excuse. 26

Duress. 26

Insanity. 27

“Rotten Social Background” (RSB) Defense. 28

Cultural defenses. 29

Inchoate offenses. 29

Conspiracy and solicitation. 29


Actus reus of attempt31

Tests for attempt31

Defenses to attempt32

Factual impossibility versus legal impossibility. 32

Complicity. 32

Mens rea of accomplice liability. 33

Foreseeable consequences doctrine. 34

“Natural and probable consequences” doctrine. 35

Presence. 35

“Innocent instrumentality” doctrine. 37

Exam advice. 38

What Dressler looks for on tests. 38

The exam instructions. 39

The exam itself39

Exam taking do’s and don’t’s. 40

Outlining on the exam.. 40

Writing an essay question. 41

Multi-party cases. 42

Multi-crime cases. 43

Word List








Common law

Accomplice liability



Negligent homicide


Strict liability

General intent crime

Specific intent crime




Principle of legality





Voluntary act

Social Harm

Mens rea

Actual causation

Proximate causation

Transferred intent



Depraved heart

Felony murder

Attendant circumstances

Deadly force

Failure-of-proof defense

General deterrence


Malice aforethought



Serious bodily harm

Specific deterrence


Irresistible impulse test

Product test

Innocent instrumentality doctrine

Aggressor status

Mistake of fact

Mistake of law

Factual impossibility

Pure legal impossibility

Hybrid legal impossibility

Reasonable person

Burden of proof

The common law versus statutes

Common Law is judge-made law – the basis of what we learn.At common law, there were eight felonies.Now, virtually anything is a crime.Almost all states have abolished common law offenses.The Model Penal Code says that common law crimes are out the window.That doesn’t mean that the common law is irrelevant.

Common law crimes: Arson is defined as the intentional or reckless burning of the dwelling house of another.Burglary is defined as breaking and entering the dwelling house of another at night with the intent to commit a felony therein.Murder is the killing of a human being by another human being with malice aforethought.At common law: Intent = purposefully or knowingly

Pretty much all criminal law is now statutory.The common law has been grafted onto the statutes.

What is a crime?

Say some that what makes a crime different from a civil matter is the condemnation of the community, which is more important than the punishment.You can have a heavier punishment for a tort than for a crime, so it’s not the punishment that really distinguishes criminal from civil.It’s the community’s condemnation of you that makes the difference—you’re been found guilty of a crime.

Will this law be effective (except by coincidence)?(1) You must know of the law’s existence.(2) You need to “know about the circumstances of fact which make the abstract terms of the direction applicable in the particular instance”.You have to know how the law is going to apply to you.(3) You must be able to comply with the law.(4) You have to be willing to obey the law.This doesn’t mean you have to like the law.

Jury nullification

The jury is totally secret.It doesn’t have to explain itself.An acquittal from a jury is absolutely, positively final.Therefore, the jury can always acquit the defendant for any reason without being subject to sanction or appeal.Should juries have this power?

Advocates say that jury nullification protects against convictions that are legal but not moral.Critics say that juries ought not to use nullification, because in practice it has had more negative effects than positive effects and because it results in the jury breaking their oath.

The prosecution could try to get a juror discharged if there’s evidence they will try to nullify.The court must give the juror the benefit of the doubt because it mustn’t intrude upon the deliberative process.

State v. Ragland – Must a jury be informed of its nullification power in order for a verdict it returns to be valid?There is no rule, which is why the court must make its decision on the basis of policy.

Theories of punishment

Utilitarianism and retribution are the most important tools we will use to study the criminal justice system.We have a duty to be able to explain why we are punishing people.There are two questions involved in how we distribute justice: (1) Whom do we punish?(2) How much punishment is appropriate?How do we distribute justice on a case-by-case basis?


Utilitarianism is forward-looking and tries to deter future bad conduct while increasing happiness and reducing pain.Utilitarians believe that both crime and punishment are evils to be avoided.A utilitarian doesn’t like punishment.Human beings must be characterized by seeking pleasure and avoiding pain.We must be able to do the calculations; we must be rational.

Forms of utilitarianism: (1) General deterrence – when you punish one person for a crime in order to send a message to society. (2) Specific deterrence – when you deter person X by punishing person X: (a) By incapacitation – you keep the person off the streets or (b) by intimidation – you make the person scared to do it again because they remember how unpleasant the experience was being punished the first time.(3) Rehabilitation – when you use the penal system to change the person such that they won’t want to do bad acts in the future; you diagnose the problem and then solve it.

Act-utilitarian – What would be the right thing to do in this particular case?

Rule-utilitarian – What would be the better outcome if we announced this to the entire world?What would be the utilitarian effect?


“The punishment of a wrongdoer is justified because it is a deserved response to the wrongdoing.”You can’t be angry at someone unless you believe they have the capacity to choose to either do right or wrong.Retributivists focus on people having free choice or free will.The retributivist says that it is society’s duty to punish and that this duty is independent of the consequences or costs or benefits.

Forms of Retributivism: (1) Negative retribution (utilitarianism*) – utilitarians, except punishing an innocent person is never justified.(2) Positive retribution – pure retributivism: you must punish guilty people, and you must never punish an innocent person.(3) Assultive – anger and hatred are morally right when directed at criminals.This is kind of a disguised utilitarianism: if people hate a criminal, they will institution private justice.So with the criminal justice system, we prevent vigilantism.This views a criminal as a worthless human being who deserves what they get.(4) Protective – Morris, and the classic modern retributive theory.The importance of the theory is that it views the criminal as having the right to be punished.(5) Victim vindication – we vindicate the victim’s moral rights by punishing the perpetrator.

Differences between the theories

Utilitarians don’t see punishment as inherently good; retributivists view punishment as inherently good and justifiable because there is a right and a duty to punish even if it doesn’t do any future good.Utilitarians sound like economists trying to come up with an empirical justification for punishment and talk about profit.Retributivists think as moralists do and talk about just deserts.Retributivism makes us look to our moral roots.Actually, some forms of retributivism turn out to be forms of utilitarianism.

It is plausible to argue as a utilitarian, given a particular situation, that punishing an innocent person would be the right thing to do.Is this enough to abandon utilitarianism?Could a retributivist punish an innocent person?Categorically: no.You may only punish a person who is guilty.

Most utilitarians are unhappy with a three strikes law.They might oppose it from an efficiency standpoint.They might also oppose it from the point of view that punishment is a social cost.

The Queen v. Dudley and Stephens – We will use Dudley and Stephens as an object lesson for the purpose of general deterrence.Even if Dudley and Stephens aren’t deterrable in their particular case, the utilitarian must still find they are a useful example to others.This case would send a message to be certain you are prepared when you go out on a boat because you’re going to be held liable for whatever goes on out there.

People v. Superior Court (Du) – The probation officer said Mrs. Du was unlikely to commit another crime but recommend she be sentenced to prison.How much punishment is it just for Du to receive?A just punishment should: 1) protect society, 2) punish the defendant for wrongdoing, 3) encourage the defendant to be good in the future, 4) deter other crimes, 5) incapacitate the defendant, 6) make restitution for the victim, and 7) be comparable to punishments for similar crimes.

A retributivist would say two criminals should get the same punishment for the same crime.Retributivists say you must look at the actor as well as the act; you must look at personal blameworthiness as well as the social harm caused.One controversy is whether a person’s personal character matters or should be considered.

v. – What punishment should receive?The statute does not state a maximum penalty, but it does forbid release on parole.Easterbrook says that the sentence imposed by the trial court is just on the basis of general deterrence and incapacitation.Posner thinks there’s no chance under the current law to create general deterrence, therefore, he focuses on specific deterrence.He says if you keep the guy in jail for 20 more years, he probably won’t commit any more crimes when released.

The principle of legality

The principle of legality is “no crime without preexisting law”.This trumps any other rules if there is a conflict.Courts don’t create crimes.Statutes must be written clearly, and interpreted to the benefit of the accused.If you have to rely on a prosecutor or judge to interpret criminal statutes, you give them enormous power.The Due Process Clause says that potential criminals must have “fair warning” of what is against the law.

Commonwealth v. Mochan – The defendant’s conduct was not forbidden by any particular statute, but a general provision in the Pennsylvania Penal Code “grandfathered” in common law crimes.The defendant was convicted and appealed on the basis that his conduct did not constitute a common law crime.The court finds that any act which “outrages decency and is injurious to public morals” is a misdemeanor under common law.

Keeler v. Superior Court – The Penal Code further forbids the courts from convicting or punishing anyone for a crime not specified by statute. Statutes are to be interpreted in the manner most favorable to the defendant.Finally, no one can be convicted of an act they committed before that act was a crime, in other words, no one may be punished under ex post facto legislation.The protection of due process is the judicial analogue of the prohibition on ex post facto laws.It is not the role of the court to make crimes, rather, it is the responsibility of the legislature.

In Re Banks – In order to be constitutional, a statute must clearly and “with a reasonable degree of certainty” tell persons who are subject to it what conduct is forbidden.Banks claims that the “Peeping Tom” statute is overly broad, and thus it is unconstitutional.He says that some of the conduct prohibited is entirely innocent.

The burden is upon the defendant to prove that a statute is invalid.The court says that statutes must be strictly construed.This is equivalent to the doctrine of lenity.The doctrine of lenity says if there are two ways to interpret a statute where one way would favor the State and one way would favor the accused, the court must side with the accused.It only applies when you’re right on the razor’s edge.In other words, we give the benefit of the doubt to the defendant.

The court says that if a statute is clear, you just do what it says.If it’s ambiguous, you look at legislative intent:Read the statute carefully.Read the preamble of the statute.Read the title.Look at legislative history.Look at common law.Look at precedent cases.It’s hard to come up with a statute that will work!It’s hard to avoid vagueness and overbreadth!

Burden of proof

There are two kinds of burdens of proof: (1) Burden of going forward, or the burden of producing evidence: Who has the responsibility of putting on evidence in a particular case?The government has the burden of producing evidence regarding any element of a crime.Anything that constitutes an element of a crime is something the government must put on evidence for.On the other hand, for putting on a certain defense, it’s the burden of the defendant to show evidence of, e.g., self-defense.(2) Burden of persuasion: Now that the issue is before the factfinder (jury or judge), who must convince the factfinder in regard to the issue?

Why do we have such a high burden on the government to prove their case?The theory is that the cost to society of jailing an innocent person is much higher than releasing a number of guilty people.Also, protection against overzealous police force, judges, prosecutors.It has less to do with this particular criminal trial, and more to do with limiting government power in general.

Owens v. State – “[A] conviction on circumstantial evidence alone is not to be sustained unless the circumstances are inconsistent with any reasonable hypothesis of innocence.”The only issue on appeal, as distinguished from the trial court, is whether a reasonable jury could have convicted, not whether they would have acquitted or should have acquitted.The appellate court wasn’t there to see the trial and should not play the role of the “13th juror”.The jury sees stuff that the appellate judge never sees.On appeal, the presumption of innocence is gone.You assume that all of the facts that are in dispute favor the prosecution.The appellate court can overturn the conviction if they think, “How the heck did the jury reach that verdict?”

The Winship doctrine

Winship tells us that the Constitution requires every prosecutor to persuade the factfinder beyond a reasonable doubt of every fact (element) necessary to constitute the crime charged.The costs to an individual of conviction are so high that they should not be convicted when there is reasonable doubt of their guilt.The benefit of the standard is that it assures public confidence in the system, and in particular, the standard inspires confidence that innocent people don’t get convicted.The government doesn’t just have to prove the facts, they actually have to negate possible defenses (excuses, justifications).So, for example, the absence of self-defense must be proved beyond a reasonable doubt.

Even though you might have the burden of going forward as the defendant in presenting evidence that you acted in self-defense, the government has the burden to prove beyond a reasonable doubt that the defendant didn’t act in self-defense.But in some jurisdictions, the defendant has the burden of proof.

We put the right to a jury trial in the Constitution to prevent judges from oppressing the people.The framers of the Constitution wanted the community to judge the defendant.

The elements of a crime

At exam time, this is the way we should organize our answers: (1) Voluntary Act (or omission), (2) Social Harm, (3) Mens Rea, (4) Actual Causation, then (5) Proximate Causation.


The actus is the physical component of the crime.It happens out there, in the physical world.The mens rea (or guilty mind) deals with the state of mind the actor had in committing the actus .Actus Reus = Voluntary Act + Social Harm

Actus requires a voluntary act (or sometimes an omission, or failure to act) that causes social harm.We say social harm because this is criminal law, not tort law.Social harm means something very specific, yet it has a very broad meaning.

Martin v. StateMartin is convicted of “being drunk on a public highway”.It turns out that he is arrested at home and taken out onto the road.He says that the statute implicitly requires him to voluntarily go to a public place while drunk.

Voluntary act

A voluntary act is a willed act or “a willed muscular contraction”.This is the difference between choosing to pull a trigger and kill someone and having a seizure and plugging the trigger without will.Warning!Voluntary has several different meanings.

Questions to ask about the voluntary act or omission: (1) Was there conduct?(2) If yes, does the conduct include a voluntary act?(3) If no, is this one of those rare cases in which there is a legal duty to act?

State v. Utter – The Model Penal Code says that a “voluntary act” is a necessary element in any crime.An “involuntary act” removes agency.Agency is required to attach blame to a person, rather than merely a human body.§ 2.01 says:In order to be found guilty, you must either do something or not do something that you were physically capable of doing.The only ways you can be found guilty due to omission are: If the law says that your omission makes the crime, or if you breach a duty imposed by law.The Model Penal Code eliminates the need to play with words.

People v. Decina– Decina says he should be acquitted because he committed no voluntary act.How can he be found guilty under the Model Penal Code?The conduct must include a voluntary act.That doesn’t mean that all the conduct must be voluntary.The breadth or narrowness of the time frame will relate to the conduct that constitutes the crime charged.


Two forms of omission liability: (1) Statutory duty (e.g. tax laws, duties of parents, bad Samaritan laws), (2) Commission by omission: When a statute imposes a duty, when you a have certain status relationship to another, when you have assumed a contractual duty to care for another, when you have voluntarily assumed the care of another and in so doing kept others from helping, when you create a risk of harm to another

People v. Beardsley – Should people be punished for omissions?Omission is defined as the neglect of a legal duty, rather than a merely moral duty.If you have no legal duty to act, but you start to act, but then quit, you will have a duty if by having started then quitting you put the person in a worse position than if you had done nothing at all.

Barber v. Superior Court – Life sustaining treatment must be continued when it is proportionate.In other words, the treatment must be continued so long as the benefits exceed the costs.The main question is whether the omission (no longer providing life sustaining care) was lawful.The omission was lawful if there was no legal duty to act.There is no duty to act if the prescribed course of treatment has been shown to be ineffective.In this case, the treatment is ineffective because the patient will never recover substantial brain function.The court says the physician has no duty to act once the treatment is found to be “disproportionate”.

Social harm

Social harm means any harm to any socially valuable interest, and it has three components: (1) result elements, (2) conduct elements, and (3) attendant circumstances.

It is often difficult to draw a distinction between the result of an act and the conduct related to an act, but it usually doesn’t matter.However, you must draw the distinction between these two elements and attendance circumstance.

Mens rea

The issue with mens rea goes to social harm.Think: “Mens rea = thought about harm, NOT thought about act”.

We can’t deter pure accidents, nor can we find fault for pure accidents.If you don’t have a guilty mind, we won’t find fault.

Whenever you talk about mens rea, think about whether you mean the “culpability” meaning or the “elemental” meaning.The culpability meaning is the broad meaning that just means “evil mind”, more or less.When a person is doing something he shouldn’t be doing and causes a certain social harm, we can say they did that act in a morally culpable manner.The “elemental” meaning is “the particular mental state required by the definition of a particular offense”.The elemental approach requires a more precise analysis than the culpability approach.

v. Cunningham – Malice is not merely wickedness, but rather an actual intention to cause the social harm of the crime or to recklessly cause the social harm of the crime.

People v. Conley – Under law, someone intends to do something when that something is the conscious objective of his conduct.Someone does something knowingly when they are consciously aware that something is practically certain to happen based on his conduct.

Transferred intent

Common law talks about the transferred intent doctrine, which says that “intent follows the bullet”.If you had intent, but hit the wrong person, you still have the mens rea necessary to constitute the crime.Model Penal Code § 2.03(2)(a) – your mens rea is purposely or knowingly if you cause a result that differs from the intended result only by who or what is affected.

General versus specific intent

There are at least three different definitions of general and specific intent. Specific intent can mean the requirement of: (1) intent to commit a future act, (2) proof of a special motive, or (3) proof of the actor’s awareness of an attendant circumstance.

Today, as a general matter, we include mens rea words in most statutes.

“General intent” may refer to an offense for which no particular mental state is mentioned in the statute.“Specific intent”, on the other hand, could refer to an offense that sets out a particular mental state as part of the crime.

“General intent” may mean any mental state that only relates to the acts that constitute a crime, whereas “specific intent” would mean, in this case, a special mental element above and beyond the “general intent”.When you have a specific intent crime, there are typically three types: (1) intent to commit a future act, (2) proof of a special motive, and (3) proof of awareness of attendant circumstances.

If an offense requires a culpable mental state but isn’t a specific intent crime, then it’s a general intent crime.

Kinds of culpability

§ 2.02. You must act purposely, knowingly, recklessly or negligently with respect to each material element of the offense to be guilty.

Intentionally.At common law, this is basically the equivalent of Model Penal Code “purposely” and “knowingly” in one.

Purposely.A person acts purposely when it’s their conscious object to do the conduct or cause the result.

Knowingly. A person acts knowingly when they are aware that the result is “practically certain” to follow.

Recklessly.A person acts recklessly when they consciously disregard a substantial and unjustifiable risk.

Negligently.The actor should be aware of a substantial and unjustifiable risk.There is no subjective fault.

Dressler says that “P, K, R, N” is a continuum of culpability.There must be either P, K, R, or N with respect to each material element of an offense.This provision effectively means that the Model Penal Code applies an elemental approach rather than a culpability approach to mens rea.You must show a particular state of mind, not just any bad or immoral state of mind.When there is no specific kind of culpability given, you assume “P, K, or R”.The Model Penal Code drafters don’t like the idea of ever punishing a person whose culpability is mere negligence.If a legislature wants to punish a negligent person, they have to be totally explicit about it.

State v. Nations – In , the Criminal Code dictates that in order to prove that someone did something with knowledge, you must show that they were aware of the attendant circumstances necessary to constitute an offense.Nations claims the defense that the state must prove that she knew the girl was underage.In , knowledge means awareness of facts; here we’re talking about knowledge of an attendant circumstance.This is not the Model Penal Code formulation.

What argument can be put forward against this “wilful blindness” provision?It blurs the line between knowledge and recklessness.What is the mental state of a person who is aware of a high probability that, for example, a female dancer is under the age of 17?Isn’t that very similar to the definition of recklessness, which talks about disregarding a substantial and unjustifiable risk?Many critics say this provision is no good because it defies understanding what it means to “know” something when in fact you don’t know it.

If, on the other hand, you require actual knowledge, as in , it will be harder to get convictions in cases like this.We could attack this

Huxley-Binns: Criminal Law Concentrate 4e

Chapter 3: Outline answers to essay questions

Q: Illustrating your answer with decided cases, what is the purpose of mens rea?

Essay outline answer 1
This is an unusual question, but you will find that your tutors have to take steps to replace the traditional ‘What is intention?’ and ‘Why have two types of recklessness?’ essays because the law is now pretty much settled and lacking sufficient controversy to be set year on year.
You should be able to tackle an unusual question by building on existing knowledge, so for example, you could consider:

  • Mens rea means guilty mind, but it is more about fault than guilt.
  • The three main types are intention (proved by an aim, purpose, or foresight of a virtual certainty), recklessness (conscious, advertent, unjustifiable risk taking, but what the reasonable person would have foreseen is no longer enough), and negligence (on the whole, only gross is criminal).
  • Intention and recklessness are subjective and therefore what D should have foreseen is unacceptable.
  • Mens rea therefore includes fixing liability where D consciously and advertently carried out the actus reus and also where D did not, but should have, foreseen the result.
  • That said, the absence of mens rea does not automatically lead to an acquittal if the offence is strict liability (chapter 4).

Q: The problem with the Woollin direction is that it fails to answer the following question: Say the jury returns after hours of deliberation and the foreman tells the judge that all members of the jury are in agreement that the death of the victim was a virtual certainty and that the defendant foresaw it as such, but that half of the jury wants to convict and half wants to acquit; What should the judge tell the jury? Discuss.

Essay outline answer 2
This is Professor Smith’s conundrum raised in his commentary to Woollin itself (see [1998] Crim LR 890). It comes down to whether intention is a matter of law or fact. The use of the word ‘find’ by Lord Steyn in Woollin [1999] indicates it might be a question of law, as opposed to ‘infer’ in Nedrick (1986) which is fact; but Lord Steyn in Woollin [1999] also said that ‘the question is one for the jury’. This might be an application of s 8 Criminal Justice Act and, in Moloney [1985], the House of Lords emphasised it is a question of fact. Woollin [1999] is ambiguous on this point and, although the civil case of Re A [2001] suggests it is a matter of law, the most recent pronouncement is Matthews and Alleyne [2003] where the Court of Appeal was clear it is fact (even if there is little to choose between a question of law and one of fact).

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