Crim Law/MPC Q: How to construct the element(s) of a crime?

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Crim Law/MPC Q: How to construct the element(s) of a crime?

Postby Sogui » Wed Apr 27, 2011 10:23 am

I was looking through an old exam for my crim law class. The question was a hypo and whether or not someone was guilty of "writing bad checks" under the Model Penal Code (Section 224.5.)

The law essentially prohibits "passing a check for payment of money... knowing it will not be honored by the drawee".

In the Professor's grading commentary he stated that for an 'honors' grade (A-, A) it was essential to recognize that the law could be construed by its result and thus require "practical certainty" that a check would not be honored... OR that the "bad check" element could be construed as an attendant circumstance and thus require only "high probability" of awareness that the check would not be honored (invoking 2.202(7)).

I may not have a chance to question our professor about this and I haven't found a clear answer anywhere else. This answer really bothered me because I have no idea how constructing the crime so that "knowing the check will not be honored" is an attendant circumstance, is a permissible construction of the law.

Doesn't a crime under the MPC require that at least SOME of the "evil" be captured by either the CONDUCT element or RESULT element, or in other words, is it possible to construct a criminal law under the MPC where the conduct is completely legal but the "attendant circumstance" captures the entire essence of blameworthiness that 'defines' the crime?

Since there is only one "evil" within the bad checks law (knowing that a check will bounce), classifying that evil as an attendant circumstance to otherwise perfectly legal conduct (giving someone a check) seems odd to me.

The only clear evidence I've found for this question was in a Lexis Crim law outline:

Elements of Social Harm – The social harm of an offense, as defined by statute or at common law, may consist of wrongful conduct, wrongful results, or both. Moreover, the offense will contain so-called “attendant circumstance” elements.

This seems to indicate that it would not be permissible for a judge to classify the bad checks law as a law that prohibits perfectly legal conduct WITH an attendant circumstance that captures 100% of the social harm.


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Re: Crim Law/MPC Q: How to construct the element(s) of a crime?

Postby ogurty » Wed Apr 27, 2011 3:01 pm

I don't think you're right. Lots of MPC-friendly laws penalize conduct that's normally not socially harmful but for an attendant circumstance. Think any law prohibiting things done to minors (having sex, selling booze, etc).

To be honest, I don't understand how else that statute could be construed. No element of the law suggests that the check must not be honored. The result element is the check having been "passed".

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