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Flashcards in Criminal Law Deck (111):

Jurisdiction and General Matter

A state acquires jurisdiction over a crime if either the conduct or the result happened in that state.


What about merger?

Generally, there is no merger of crimes in American law.

BUT solicitation and attempt do merge into substantive offense. Thus, if you have completed that crime, you cannot be convicted of attempting to commit the crime.

Conspiracy does NOT merge into the substantive offense. THUS you can be convicted of conspiring to do something and doing it.


Essential Elements of a Crime

1. An Act.
2. An omission as an Act.
3. Mental State


What is an Act?

Bodily movement BUT the act must be a voluntary act.

Bad thoughts is not enough.


Examples of bodily movements that do NOT qualify for criminal liability


1. Conduct which is not the product of your own volition.
2. A reflexive or convulsive act..
3. An act performed while you are unconscious or asleep. (sleep walking)


What is an omission as an Act?

Generally there is no legal duty to rescue but sometimes there is a duty to act.


When is there a duty to act?

1. Required by statute
- Requirement to file tax returns.
2. Required by contract
- A lifeguard or nurse has a legal duty to act.
3. Because of the relationship between the parties.
- A parent's duty to protect children, or a spouse's duty to protect the other spouse.
4. Because you voluntarily assume a duty of care and fail to adequately perform it
5. Where you conduct created the peril


Four Common Law Mental States of a Crime

1. Specific intent crimes,
2. Malice crimes
3. General intent crimes
4. Strict liability crimes


Specific Intent Crimes

The importance of specific intent crimes is that they will qualify for additional defenses not available for other types of crime. (voluntary intoxication, unreasonable mistake of fact)

1. Solicitation (inchoate offense)
2. Conspiracy (inchoate offense)
3. Attempt (inchoate offense)
4. First degree murder
5. Assault
6. Larceny
7. Embezzlement
8. False pretenses
9. Robbery
10. Burglary
11. Forgery

Students Can Always Fake A Laugh, Even For Ridiculous Bar Facts


Malice Crimes

On the bar exam, there are only two malice crimes:
1. Murder
2. Arson

**Need a reckless disregard.


General Intent Crimes

All crimes not so far mentioned are general intent crimes unless they qualify for strict liability.

Rape, Battery


What happens when the test only says "murder"?

It is second degree murder. Common law murder.



Strict Liability Crimes (No intent)

The importance of strict liability on the bar exam is that any defense that negates intention cannot be a defense to no intent crimes of strict liability.

If the crime is in the administrative, regulatory, or morality (MOST OFTEN) area and you don't see any adverbs in the statute such as KNOWINGLY, WILLFULLY OR INTENTIONALLY, then the statute is meant to be a no intent crime of strict liability.



What about transferred intent fact patterns?

Always two crimes.

Attempted and Actual (Murder)


Mental States and the Model Penal Code

1. Purposely: One acts purposely when it is his conscious objective to engage in certain conduct or cause a certain result.

2. Knowingly: One acts knowingly when he is aware that his conduct will very likely cause the result.

3. Recklessly: One acts recklessly when he consciously disregards a substantial and unjustifiable risk.

4. Negligently: One acts negligently when he fails to be aware of a substantial and unjustifiable risk.


When given a statute, what do you look for?

1. Admin , regulatory, or morality purpose?
2. Any adverbs of intent?


Accomplice Liability

An accomplice is one who aids, advises or encourages the principal in the commission of the crime charged.

Accomplices must also have the requisite intent that the crime be committed.

Accomplices are liable for the crime itself and all other foreseeable crimes.


Accomplices and Withdrawl

If the person encouraged the crime, the person must repudiate the encouragement.

If the person aided by providing assistance to the principal, he must do everything possible to neutralize this assistance.

An alternate means of withdrawing is to contact police.


Inchoate Offenses

Means incomplete.

Three Kinds:
1. Solicitation
2. Conspiracy
3. Attempt



Asking someone to commit a crime. The crime ends when you ask them.

It is not necessary for the person to agree to commit the crime.

Factual impossibility is not a defense


What happens if the person you solicit actually does it?

Then it becomes conspiracy and the solicitation merges and the only crime left when the other person



An agreement, with the intent to agree, and an intent to pursue an unlawful objective.


Notes on Common Law Conspiracy

1. Conspiracy does not merge with the substantive offense.
- Robbery and Conspiracy to Commit Robbery

2. Liability for Co-conspirators' crimes: Each conspirator is liable for ALL the the crime of conspirators if those crimes were committed in FURTHERANCE and FORESEEABLE.

3. The agreement need not be expressed.

4. Intent can be inferred from conduct.

5. Factual impossibility is no defense.

6. Withdrawal, even if adequate, can never relieve the liability for conspiracy, ONLY subsequent


Approaches to Conspiracy

Bilateral Approach

Unilateral Approach - one person have a genuine criminal intent. (MPC approach)


Overt Act requirement of Conspiracy

The majority rule is that in order to ground liability for conspiracy there must be an agreement PLUS some OVERT ACT in furtherance of the conspiracy.
- Any little act (mere preparation)

Minority rule and CL rule grounded liability for conspiracy with the agreement itself.

**Always apply majority unless told otherwise.


Criminal Attempt

1. Specific intent
2. Overt act in furtherance of the crime.


Overt Act in Attempt

Must be an substantial step in furtherance of the commission of the crime; thus, mere preparation cannot ground liability for attempt.


Abandonment Defense of Attempt

The majority rule is that, once Defendant has taken a substantial step toward committing the crime, abandonment is never a defense.

The Model Penal Code allows for this defense only if it is fully voluntary and a complete renunciation of criminal purpose.


Impossibility applied to Attempt

Legal impossibility is a defense to attempt but factual impossibility is not a defense


Defense for Crimes Based On Criminal Capacity

1. Insanity
2. Intoxication
3. Infancy


Insanity Tests

1. M'Naghten Rule: At the time of his conduct, Defendant lacked the ability to know the wrongfulness of his actions or understand the nature and quality of his actions.

2. Irresistible Impulse: Defendant lacked the capacity of control and free choice.

3. Durham Rule: Defendant's conduct was a product of mental illness.

4. Model Penal Code: Defendant lacked ability to conform his conduct to the requirements of law.


Two types of intoxication

1. Voluntary Intoxication
2. Involuntary intoxication.


Voluntary Intoxication

Is a defense on the bar exam only to specific intent crimes (and no other kind of crime).

For purposes of the bar exam, adicts and alcoholics are always voluntarily intoxicated.


Involuntary Intoxication

1. Unknowingly being intoxicated,
2. Becoming intoxicated under duress.


Examples of Involuntary Intoxication

1. You have something slipped into your drink and you didn't know what it was or what its effects are;

2. You are forced to drink.

A form of insanity. Thus, it is a defense to all crimes.



Two rules:

1. Under age seven (7) - no criminal liability.
2. Under age fourteen (14) rebuttable presumption of no criminal liability.


Principles of Exculpation and Other Defenses

1. Self Defense
2. Defense of a Dwelling
3. Duress
4. Necessity
5. Mistake of Fact


Self Defense Modes

1. Non-Deadly Force
2. Use of Deadly force
3. Original Aggressor and Defense
4. Defense of Others


Non-Deadly Force in Self Defense

A victim may use this anytime the victim reasonably believes that force is about to be used on him.


Deadly Force in Self Defense

Majority: Anytime victim reasonably believes deadly force will be used on him.

Minority: A victim is required to retreat if it is safe to do so EXCEPT:
1. From your home
2. If you are victim of rape or robbery
3. If you are police officer.


Original Aggressor and Defense in Self Defense

To get back the defense of self-defense, the original aggressor MUST:
1. Withdraw
2. Communicate withdraw

IF the victim of the initial aggression suddenly escalates a minor fight into one involving deadly force and does so without giving the aggressor the opportunity to withdraw, the original aggressor may use force in his own defense (reasonable)


Defense of Other

If they reasonably believes that the person assisted would have had the right to use force in his own defense

Majority Rule: No need for a special relationship.


Defense of a Dwelling

Deadly force may NEVER be used solely to defend property



A defense to a criminal act IF:
1. The person acts under the treat of imminent infliction of death or great bodily harm
2. That belief is reasonable

Threats to harm a third person may also suffice to establish the defense of duress.

Duress is a defense to all crimes except homicide.



Conduct that would otherwise be criminal is justifiable if, as a result of a pressure from natural forces, the defendant reasonably believes that his conduct was necessary to avoid a greater societal harm.

The necessity defense differs from duress because duress involves a human threat, and necessity involves pressure from natural forces.


Natuarl Forces

Flood, lightning fire, other stuff


Mistake of Fact

A defense only when the mistake negates intention.

The mistake has to be reasonable to be a defense to a malice or general intent crime

BUT, any mistake is a defense if the defendant is charged with a specific intent crime.

NEVER a defense to Strict Liability crimes.


The availability of mistake of fact defense

Specific Intent: Always, any mistake

Malice/General Intent Crimes: If reasonable mistake

Strict Liability Crimes: Never


Reasonable or Unreasonable Mistake of Fact

They will make it obvious.

They will tell you whether or not.


Mistake of Fact vs. Factual Impossibility

When dealing with mistake of fact as a defense, the Defendant never has the intent.

When dealing with factual impossibility, the Defendant has the intent to commit the crime but it is impossible to do so because of the factual circumstances.



Consent of the victim is generally no defense.



A valid defense ONLY IF:
1. The criminal design originated with law enforcement offices
2. The defendant MUST NOT have been predisposed to commit the crime.

**Under cover officer, discuss this entrapment (difficult threshold)


Offenses Against the Person (Common Law Crimes)

1. Battery
2. Assault
3. Aggravate Assault
4. Homicide
5. False Imprisonment
6. Kidnapping



Unlawful application of force to the person resulting in either bodily injury or offensive touching.

A battery need not be intentional.

The force need not be applied directly (poisoning)

Remember that batter is a general defense crime.



An attempt to commit a battery.

The intentional creation, other than by mere words, of a reasonable apprehension of imminent bodily harm.

If there has been an actual touching, the crime is batter.


Aggravated Assault

Assault PLUS:
1. The use of a deadly or dangerous weapon.
2. Intent to rape, maime or murder.



An unlawful killing of another human being with malice aforethought.

Must have Cause-in-fact

Must have proximate cause


Required Mental States of Homicide

1. Intent to kill ;
2. Intent to inflict great bodily harm;
3. Intent to commit a felony;
4. Reckless indifference to an unjustifiably high risk to human life.


Cause -in-Fact

But for the Defendant's conduct X would not have occured


Proximate Cause

"natural and probable consequences"


Degrees of Murder

1. First Degree Murder
2. Second Degree murder
3. Manslaughter


First Degree Murder

1. Premeditated Murder
2. Felony Murder
3. Homicide of a Police Officer


Premeditated Killing

1. The victim must be a human.
2. The defendant must have acted with intent or knowledge that his conduct would cause death.

**Must be dead victim


Felony Murder

Any killing, even an accidental killing, committed during the course of a felony.


Defenses to Felony (Highly tested)

1. If the Defendant has to the underlying felony, then he has a defense to felony murder.

2. The felony they are committing must be a felony other than the killing.
- The killing itself does not elevate

3. The deaths must be foreseeable.
- by stander having a heart attack not enough

4. Deaths caused while fleeing from a felony murders. BUT once the Defendant reaches a point of temporary safety deaths caused thereafter are NOT felony murders.

5. On the MBE, Defendant is not liable for the death of a co-felon as a result of resistance by the victim or the police.


Homicide of a Police Officer

1. The defendant must know the victim is a law enforcement officer,
2. The victim must be acting in the line of duty.


Second Degree Murder

In many state, classifed as a depraved heard killing, a killing done with reckless indifference to an unjustifiably high risk to human life

Murders that are not classified as first degree murders



1. Voluntary Manslaughter
2. Imperfect Self-Defense
3. Involuntary Manslaughter


Voluntary Manslaughter

1. Killing in the heat of passion resulting from an adequate provocation by victim.
2. The provocation must be one that would arouse sudden and intense passion in the mind of an ordinary person such to cause him to lose self-control
3. There must not have been a sufficient time between the provocation and the killing for the passions of a reasonable person to cool.
4. The defendant in fact did not cool off between the provocation and the killing.


Imperfect Self-Defense

1. If Defendant has an honest but unreasonable belief that his life was in imminent danger, this defense will reduce a murder to manslaughter.

ONLY some states recognize this doctrine.


Involuntary Manslaughter

1. A killing of criminal negligence.
2. Misdemeanor manslaughter


Misdemeanor Manslaughter

Killing someone while committing a misdemeanor or un-enumerated felony.


False Imprisonment

Unlawful confinement of a person without his valid consent.

If a known alternate route is available, the confinement element will not be met for purposes of false imprisonment.

One's consent to the confinement precluded it from constituting false imprisonment.



On the bar exam, shit happens. USE COMMON SENSE

1. A person being taken away from their locale to a secret locale

Confinement of a person with either, some movement (asportation) or concealment in a secret place.


Sex Offense

1. Rape
2. Statutory Rape
3. Crimes Against Nature and Other Sex Crimes
-adultery, seduction, beastiality



Only one thing about rape you need to know for the MBE portion of the bar exam, THE SLIGHTEST PENETRATION completes the crime of rape.


Statutory Rape

A strict liability crime, meaning:
consent of the victim is no defense
mistake of fact is no defense


Property Crimes

1. Larceny (CL)
2. Embezzlement (CL)
3. False Pretenses (CL)
4. Robbery
5. Extortion
6. Forgery



Common Law larceny requires a wrongful taking, a carrying away (asportation) of property of another by trespass (without permission) with intent to permanently deprive.

**The slightest movement of the property is enough for purposes on the bar exam.
**The intent to deprive owner permanently must be present at the time of the taking BUT if later decides to keep property they are liable under continuing trespass.
**Taking property in the belief that it is yours (or that you have some right to it) is NOT common law larceny.


Continuing Trespass

If a person takes property not intending to steal it, but then later decides to keep the property, she can be guilty of larceny.



The fraudulent conversion of property of another


MBE notes on Embezzlement

The embezzler always has lawful possession following by an illegal conversion.

A trustee is often the MBE embezzler.

You don't have to carry away to be an embezzler just the lawful possession.

The embezzler doesn't have to get the benefits.


False Pretense

The Defendant persuades the owner of property to convey title by false pretense. (false representation)


MBE Notes on False Pretense

It is the conveyance of title that is the center of false pretense.

The false representation could be as to present or past fact.

A false promise to something in the future ground liability for false pretenses.


Larceny By Trick

Only possession is obtained--larceny by trick
If title conveyed--false pretenses



The taking of personal property of another from the other person's presence by force or threat (of imminent harm) with the intent to permanently deprive him of it.


MBE notes on Roberry

The presence requirement is broadly drawn and would even cover a farmer tied up in his barn and taking things from his house.

As for taking either by force or threat, things such as ripping a necklace from a person's neck is sufficient.

The thread must be a threat of imminent harm.



Knowingly seeking to obtain property or services by mean of a future threat.


Differences between Extortion and Robbery

1. You don't have to take anything from the person or his presence to be extortion.

2. The threats are of future harm, not imminent harm.


Simulated Deadly Weapon Hypo

Enough for Armed robbery.

bomb in backpack, hand in



The making or altering of a false writing with intent to defraud.

Any writing that has APPARENT LEGAL SIGNIFICANCE is subject to the crime of forgery.


Offenses Agaisnt Habitation

1. Burglary
2. Larson



The breaking and entering of a dwelling of another at night with the intent to commit a felony (any kind) therein.


MBE Notes on Burglary

Breaking - can be actual (some force) or constructive.

Entering - occurs with any part of the body crosses into the house.

Dwelling house of another - cannot be a barn OR commercial structure.

At night - common law had to be at night

With the intent to commit a felony therein - the intent to commit the felony must exist at the time of the breaking and entering or it is not common law burglary.


Actual Breakings

It is NOT an actual breaking for someone to come uninvited through a wide open door or window.

If wide open - there is not breaking
BUT if someone pushes open interior door to the bedroom or living room then a breaking exists.


Constructive Breakings

A breaking by fraud OR threat.



The malicious burning of the dwelling of another.

As for the "malice" requirement, no specific intent is required.

Acting with a reckless disregard of an obvious risk that the structure would burn will suffice for arson culpability.


MBE Notes for Arson

Only applies to burning, not to smoke damage. Scorching is insufficient, but charring is sufficient.

At CL, the building burned had to be a dwelling; it could not be a barn or a commercial structure (building).

BUT: MBE will often assume without saying that the jurisdiction's arson law applies to structures other than dwellings.

At CL, the burning had to be a house of another. One could not be guilty of burning his own house.


General Tips from Instructor

1. Mental states of crimes MUST KNOW.

2. Transferred Intent on exam 66% of time. Two victims and two crimes.

3. Accomplice Liability is heavy on essays. Remember, shovel/wisper/fist pump (aid/inspire/encourage)

4. Mistake of Fact is all time favorite.

5. Homicide crimes in general is tested heavily.

6. Defenses to felony murder

7. Start with this outline to go back to the bigger outline.



Reasonable Belief as a Defenase

Self Defesne



Mistake of Fact


Trigger words for False Imprisonment

Trapped or confined


What if someone is touched?

Think battery.


What if someone is fearful?

Think assault.



One acts purposely when it is his conscious objective to engage in certain conduct or cause a certain result.



One acts knowingly when he is aware that his conduct will very likely cause the result.



One acts recklessly when he consciously disregards a substantial and unjustifiable risk.



One acts negligently when he fails to be aware of a substantial and unjustifiable risk.


M'Naghten Rule

At the time of his conduct, Defendant lacked the ability to know the wrongfulness of his actions or understand the nature and quality of his actions.


Irresistible Impulse

Defendant lacked the capacity of control and free choice.


Durham Rule

Defendant's conduct was a product of mental illness.


Model Penal Code

Defendant lacked ability to conform his conduct to the requirements of law.