CRIMINAL LAW

I. JURISDICTION AND GENERAL MATTERS

Rule: A state acquires jurisdiction over a crime if either the conduct or the result happened in the state
II. ESSENTIAL ELEMENTS OF A CRIME
1. An Act (1) Physical act, (2) must be voluntary, (3) can be an omission (failure to act)
o Bad thoughts and involuntary acts are not enough
Conduct which is not a product of your own volition; a convulsive or reflex; and acts performed while unconscious or
asleep do not satisfy the voluntary act requirement
An Omission as an Act
o Generally there is no legal duty to rescue, but sometimes there is a legal duty to act. This can arise in 5 circumstances
1. By statute e.g., pay your taxes
2. By contract e.g., a lifeguard or nurse has a legal duty to act while on duty
3. Relationship of the parties e.g., parent duty to protect children or spouses duty to protect other spouse
4. Voluntarily assume a duty of care and fail to adequately perform it
e.g., party at your lake house, see someone drowning (if you do nothing, no act, no crime), but if you say Ill save
him, you assume duty and if you royally fuck up or stop, could be liable
5. Where your conduct created the peril
2. Mental State: four common law mental states for particular crimes
o 1. Four Specific Intent Crimes (FIAT) knowingly or intentionally intend to commit that crime against that person
1. First Degree Murder MBE will expressly state if first degree murder
2. In-Cohate Crimes CATS Conspiracy, Attempt, Solicitation
4. Assault with intent to commit battery
4. Theft offenses -- Larceny; Embezzlement; False Pretenses; Forgery; Burglary; Robbery
o Defenses: If its a specific intent crime, you are entitled to additional defenses not available for malice, general, or strict liability
crimes [Voluntary Intoxication & Mistake of Fact]

o 2. Two Malice Crimes Reckless disregard for human life

The Crimes (2) Murder and Arson (M&A)

o 3. General Intent Crimes the catch all category

The defendant intends to commit an act that is in fact unlawful.
Under MPC, done knowingly, recklessly, or negligently.
Most common tested are manslaughter, rape, and battery

o 4. Strict Liability Crimes no intent

Any defense that negates intent is inapplicable since no intent is required
Statutory: if the crime is in the administrative, regulatory, or morality area and you dont see any adverbs in the statue such
as knowingly, willfully or intentionally, then the statute is meant to be a no intent crime of strict liability
Ex. Statutory rape, bigamy
o Exam Tip: If an MBE question contains a statute, read it carefully for mens rea language
Intent to... = specific intent crime
Knowingly or recklessly.... = general intent crime
No mens rea language = Consider strict liability
o Transferred intent: if you intend to commit one crime, but in the process you commit another you were not intending, the intent
will transfer
Merger: A defendant can be convicted of more than one crime arising out of the same act. However, a defendant
cannot be convicted of two crimes when the two crimes merge into one. In that case, the defendant can only be
convicted of one of the crimes.
Ex. Shoot intending to kill Matt, but miss and kill Aaron. Attempted murder on Matt and Murder on Aaron
Attempt & Solicitation: merges into the complete offense if the defendant actually commits the crime.
Conspiracy does NOT merge!
III. PRINCIPALS, ACCOMPLICES, LIABILITY
Principal: whose act or omissions form the actus reus of the crime. Can be more than 1
o Ask: who committed that actus reus that gave rise to the offense?
Accomplices: People who help the principal either before or during the commission of a crime (active participation)
o Under the majority and MPC rule, a person is an accomplice in the commission of an offense if he acts with the purpose of
promoting or facilitating the commission of the offense.

1
 INTENT: Thus, the accomplice must intend that her acts will assist or encourage the criminal aim
o Accomplices must also have the requisite intent that the crime be committed
Mere knowledge that another person intends to commit a crime and mere presence on the scene are not enough to
make a person an accomplice.
o Accomplices are liable for the crime itself and all other foreseeable crimes
Exception: A person protected by a statute cannot be convicted as an accomplice in violating the statute.
Ex: An underage partner in a sexual relationship does not become an accomplice to statutory rape.
An accomplice to a crime can be convicted of the crime, even if he was not involved in the principal criminal actions. An
accomplice is responsible for the crime to the same extent as the principal.
o When the crime requires another party (i.e., the crime of distributing drugs requires a purchaser), the other party is not,
simply by engaging in the criminal act, guilty of the crime as an accomplice.

Accessory before the fact

An accomplice who is neither physically nor constructively present during the commission of the crime, but who possesses
the requisite intent,
o Accessory after the fact
a person who aids or assists a felon in avoiding apprehension or conviction after commission of the felony. An accessory
after the fact must know that a felony was committed, act specifically to aid or assist the felon, and give the aid or
assistance for the purpose of helping the felon avoid apprehension or conviction.
Withdrawal:
o If the person encourages the crime, the person must repudiate the encouragement
o If the person aided by providing assistance to the principal (e.g., giving materials) he must do everything possible to neutralize
this assistance (e.g., attempting to retrieve the materials)
o Can always contact the police to withdraw
IV. DEFENSES FOR CRIMES BASED ON CRIMINAL CAPACITY
Insanity (four tests)
o MNaghten Rule: because of a defect of reason due to a mental disease, the defendant did not know at the time either the
nature and quality of the act or the wrongfulness of the act.
o Irresistible Impulse: lacked the capacity for self-control and free choice
o Durham Test: s conduct is a product of mental illness but for test
o Model Penal Code: lacked substantial capacity to conform his conduct to the requirements of law
Intoxication
o Voluntary intoxication is a defense to specific intent crimes (and specific intent crimes only)
Addicts and alcoholics are always voluntarily intoxicated
o Involuntary intoxication: unknowingly being intoxicated or becoming intoxicated under duress
Considered a form of temporary insanity and is a defense to all crimes
Ex. Something slipped into your drink or you are forced to drink
Mistake of Law: Ignorance of the law is no excuse
o Three potential exceptions: (1) Reliance on high level government official, (2) lack of notice, (3) mistake of law that goes to an
element of specific intent #3 only applies to FIAT crimes/specific intent crimes
Incorrect or bad legal advice from an attorney is not itself a valid mistake-of-law defense; BUT, it may negate the
required intent or mental state for a material element of the crime.
Mistake of Fact
o Key starting point: Whether the crime is a strict liability, a general intent, or a specific intent crime
Strict Liability: never a defense
General Intent: defense only if the mistake is reasonable
Specific Intent: defense anytime the defendant actually held the mistaken belief, whether reasonable or unreasonable.
Infancy Under age 7 no criminal liability. Under the age of fourteen, there is a rebuttable presumption of no criminal liability

V. INCHOATE OFFENSES (INCOMPLETE OFFENSES)

Conspiracy: (Intent: intend to agree to conspiracy + intend criminal goal of conspiracy)
o (1) An agreement; (2) btwn two or more people; (3) to commit an unlawful act (4) overt act (modern consp. stats add #4)
Conspiracy doesnt merge with the substantive offense. On the bar you can be convicted of conspiring to do something &
doing it
The agreement can be explicit or implicit
o Overt Act Requirement: in order to ground liability for conspiracy, there must be an agreement plus some overt act in furtherance
of the conspiracy
Any little act will satisfy this requirement (even one of mere preparation)
can be performed by any co-conspirator, with or without the knowledge of all co-conspirators and will be imputed to others.

2
 o Withdrawal: even if adequate, it can never relieve the defendant from liability for the conspiracy itself.
Common law: never possible to withdraw because the crime is completed the moment agreement is made
Federal rule: a conspirator can withdraw prior to the commission of any overt act by communicating her intention to
withdraw to all other conspirators or by informing law enforcement
MPC: A conspirator who helps to thwart the success of a conspiracy can raise a withdrawal defense even after an
overt act has occurred.
o Factual impossibility is not a defense to conspiracy.
o Liability for Co-Conspirators crimes
Chain Conspiracy: each conspirator is liable for all the crimes of co-conspirators if those crimes were committed in
furtherance of the conspiracy and were foreseeable Pinkerton Rule
Spoke hub conspiracy: the central person will be liable for all the crimes, but each of the spokes is treated as a separate
crime. Therefore, they will not be liable for each other's crimes.
Common law: no such thing as a unilateral conspiracy because two or more persons are required to form a
conspiracy.
MPC: focus of liability is on an individual defendant and his agreement to the object of the conspiracy. Thus,
unilateral conspiracies are recognized under the MPC.

Attempt Specific Intent + an overt act in furtherance of the crime

o For attempt, the overt act must be a substantial step in furtherance of the commission of the crime, thus mere preparation cannot
ground liability
Contrast this with conspiracy, where mere preparation will satisfy the overt act requirement
o At common law, once the defendant has taken a substantial step toward the commission of the offense, the defendant may
not legally abandon the attempt to commit the crime because of a change of heart.
Preparatory acts, such as lying in wait for the victim or possessing materials required for the crime, may constitute a
substantial step if they corroborate the defendants criminal purpose.
o Defense: same as for FIAT/specific intent crimes
o Not a defense: Factual Impossibility

Solicitation: asking someone to commit a crime

o It is not necessary the person solicited agree to commit the crime (if they do agree to do it, it becomes a conspiracy and the
solicitation merges into the crime of conspiracy and the completed offense)

VII. OFFENSES AGAINST THE PERSON

Battery (general intent): Unlawful application of force to the person resulting in either bodily injury or offensive touching
o General Intent Crime: Need not be intentional, criminal negligence will suffice
o The force need not be applied directly
o Consent is a complete defense

Assault (specific intent): Two Different types

o An attempt to commit a battery; OR the intentional creationother than by mere wordsof a reasonable apprehension of
imminent bodily harm.
attempt requires a substantial step toward the commission of a crime, such as solicitation of an innocent agent to
engage in criminal conduct, coupled with intent to commit that crime.
o If there has been an actual touching, the crime is battery
Aggravated Assault (assault plus one)
o Assault plus use of a deadly or dangerous weapon OR with the intent to rape, maim, or murder

Homicide Murder with one of four mental states.

o Four Mental States and causation elements
1. Intent to kill; intent to inflict great bodily harm; reckless indifference to an unjustifiably high risk to human life; or intent
to commit a felony
2. Cause in fact: s conduct must be the cause-in-fact of the victims death. But for test
3. Proximate Cause: the death must be foreseeable. A defendants conduct is deemed to be foreseeable if death is the
natural and probable result of the conduct.
Consent is not a defense!

o First Degree (premeditated killing); Specific intent crime MBE will tell you when 1st Degree Murder
The victim must be human; the must have acted with intent or knowledge that his conduct would cause death.

3
 If a person is already dead when the defendant perpetrates an act that otherwise would result in the person's
death, a murder has not occurred.

o Common Law Murder (Second Degree) (Malice Crime volunt. intox. & unreas. mistake of fact are no def.!) Most murders
on MBE
The unlawful killing of another human being with malice aforethought
Four kinds of Malice
1. Intent to kill: The defendant acted with the desire that the victim end up dead (need not be pre-med.)
2. Intent to inflict serious bodily harm: The defendant intended to hurt the victim badly, and the victim died.
3. Abandoned or Malignant Heart: The defendant acted with a reckless disregard for human life and a death
resulted.

4. Felony Murder any killing, even accidental, committed during the course of another felony (other than the killing)
o The deaths must be foreseeable
o Deaths caused while fleeing from a felony are felony murders; but once the defendant reaches a point of
temporary safety, deaths caused thereafter are not felony murders
o If you have a defense to the underlying felony, then you have a defense to felony murder
o if a co-felon is killed by a victim or a police officer during the commission of an inherently dangerous
felony, the defendant is generally not guilty of felony murder
Tip: robbery (and arson) would merge into the felony murder conviction if someone died during a
felony for the purposes of Double Jeopardy.
o under the agency theory of felony murder, a felon is not liable for the death of a bystander caused by a
police officer, because the officer is not the felons agent.

Must prove causation (Actual & Proximate cause)

o Actual Cause: If the victim would not have died but for the defendants act, then the defendants act is the
actual cause of the killing. When the defendant sets in motion forces that lead to the death of the victim,
the defendant is the actual cause of the victims death.
o Proximate Cause: exists only when the defendant is deemed to be legally responsible for the crime. To be
legally responsible for the crime, the death must be foreseeable. A defendants conduct is deemed to be
foreseeable if the death is the natural and probable result of the conduct. Actions by a force of nature that
are not within the defendants control are generally not foreseeable. However, an act that accelerates
death is a legal cause of the death.
o Mansluaghter: -- All unlawful killings of another human being that arent first-degree murder or common-law murder
Two types: Voluntary and involuntary
1. Voluntary Manslaughter killing in the heat of passion resulting from an adequate provocation by the victim
o The provocation must be one that would arouse the sudden and intense passion in the mind of an ordinary
person, such to cause him to lose self-control
enraged mental state mitigates the crime from murder to voluntary manslaughter.
o There must not have been a sufficient time between the provocation and the killing for the passions of a
reasonable person to cool; and
o The in fact did not cool off between the provocation and the killing
2. Involuntary Manslaughter a killing of criminal negligence or during an unlawful act
Involuntary manslaughter is an unintentional homicide committed with criminal negligence or during an
unlawful act. Criminal negligence is grossly negligent action that puts another person at a significant risk of
serious bodily injury or death. It requires more than ordinary negligence for tort liability and something less
than the extremely negligent conduct required for depraved-heart murder.
o Defense: reasonable mistake of fact
False Imprisonment Unlawful confinement without valid consent
o If a known alternate route is available, the confinement element will not be met ( must know about it)
o Ones consent to the confinement precludes it from constituting false imprisonment

Kidnapping
o Unlawful confinement of a person with some movement; or concealment in a secret place
perpetrator must hide the victim for a substantial period of time or move the victim at least a short distance.
Does not require the person to suffer boidly harm
o If the kidnapping occurs incident to another crime (e.g., robbery), then the movement must be more than is necessary for
the commission of that crime in order for the perpetrator to be liable for both kidnapping and the separate offense.
4
VIII. SEX OFFENSES
Rape (general intent) sexual intercourse without consent. Even the slightest penetration completes the crime of rape
o Fraudulent conduct does not negate consent in most situations
Statutory rape sex with someone under the statutory age
o Strict liability crime: consent of the victim or mistake of fact are no defenses.
o Factual Impossibility is not a defense to attempt if the crime attempted is factually impossible to commit due to
circumstances unknown to the defendant.
A factual impossibility occurs when, at the time of the attempt, the facts make the intended crime impossible to
commit although the defendant is unaware of this when the attempt is made.
IX. PROPERTY CRIMES
Larceny (Specific Intent): (1) taking, (2) another persons property, (3) without his consent, (4) and with the intent to deprive him of it
o [Intent: Must have intent to steal even if return the goods later, still liable; intent to borrow = no larceny]
o The slightest movement of the property is enough
o The intent to deprive the owner permanently must exist at the time of the taking. If not, no common law larceny
But, if a person takes property, not intending to steal it, but then later decides to keep it can be guilty of larceny under a
continuing trespass theory
o If you take property in the belief that it is yours (or that you have some right to it), it is not common law larceny*
o Note: second thief is guilty of second count of larceny when he steals the property from the first thief, unless the second
thief had superior possessory interest in the property

Larceny by Trick: The defendant persuades the owner of property to allow him to possess it by false representation
o requires that the defendant obtain possession of, but not title to the property owned by another. (title = false pretenses)

False Pretenses: The defendant takes someone elses title to property by fraud or deception.
o The false representation can be as to a present or past fact, but cannot be about a false promise to do something in the future
o Must be centered around a conveyance of title
a false representation of a past or present material fact made by the defendant with the intent to cause the victim to
pass title to the defendant, and title is passed.

Embezzlement: The fraudulent conversion of property of another

o The embezzler always has lawful possession followed by an illegal conversion (e.g., a trustee)
o Unlike larceny, you dont have to carry anything away, you just have to have lawful possession
o You also dont have to get the benefit, you can embezzle for the benefit of another.
*Requires obtaining title to the property (including money) of another person through the reliance of that person on a
known false representation of a material past or present fact, when the representation is made with the intent to
defraud.
Robbery: Larceny + Assault [battery merges into the completed offense of Robbery]
(1) Taking, (2) another persons property, (3) without consent, (4) with intent to deprive him of it permanently, (5) the taking occurs
from the victims person or his possession, (6) either by physical violence or putting the victim in fear of immediate physical harm.
o Force: can be ripping something off of someone, e.g., a necklace or more physical force
o Threat: must be of immediate serious physical injury to the victim, a close family member, or other person present. (your
money or your life)
A threat to injure the owners dog (i.e., property), rather than the owner, is likely insufficient to constitute
intimidation for purposes of robbery.

Extortion: Knowingly seeking to obtain property or services by means of a future threat

o You dont have to take anything from the person or his presence to be extortion. Threats are also of future harm (compared to
robbery) meaning not imminent
X. OFFENSES AGAINST HABITATION
Burglary: Breaking and Entering; dwelling of another; at night; with the specific intent to commit a felony therein
o Breaking: can be actual (involving some force, however slight) or constructive
Actual: not a breaking for someone to come uninvited through a wide open door, but if the burglar pushes open an interior
door, this will suffice
Constructive breaking: procuring entrance by fraud or threat satisfies the requirement of breaking
o Entering: occurs when any part of the body crosses into the house
o Dwelling house of another: cannot be a barn or a commercial structure
o At night: factual question, but dont overlook in a fact pattern
o With the intent to commit a felony therein:

5
 *the intent to commit the felony must exist at the time of the breaking and entering
o *Persons taking back their own property or taking property in the honest but mistaken belief that the property belongs to
someone who has authorized them to take it lack the intent to steal required for Burglary.

Arson (Malice): malicious burning of another persons dwelling Tested on MBE

o Malicious (intent) = a reckless disregard of a high risk of harm
o Burning: At common law, there had to be burning (fire) as opposed to just an explosion or smoke damage. It also required
damage to the structure, not just the contents inside.
Under modern statutes, it is arson even if there is no damage to the structure of the building or if the fire was caused
by an explosion.
o Another Person: At common law, you couldnt torch your own house.
Under modern statutes, burning your own home is arson.
o Dwelling: Had to be a dwelling, not another (commercial) structure
Under modern statutes, burning down a commercial building is arson.

VI. PRINCIPLES OF EXCULPATION AND OTHER DEFENSES

Intoxication: Ask two questions: (i) Was the intoxication involuntary or voluntary? (ii) Is the charged crime a specific-intent
crime or a general-intent crime?
o 1. Specific-intent crimes: Can use either voluntary or involuntary intoxication as a defense if the defendant could not
maintain the state of mind necessary for the offense
o 2. General-intent crimes: Can use only involuntary intoxication as a defense
Self-Defense
o Non-Deadly Force a victim may use non-deadly self-defense anytime the victim reasonably believes that force is about to be
used on him
o Deadly Force: a victim may use deadly force anytime the victim reasonably believes that deadly force is about to be used on him
Majority rule: no need to retreat | minority rule: a victim is required to retreat if it is safe to do so (subject to 3 exceptions)
No duty to retreat from your own home; no duty to retreat if you are victim of rape or robbery; or if you are a cop
Can use deadly force in response to rape
o Defense of others An individual has the same right to defend other individuals against a criminal that she has to defend
herself.
Defense of a Dwelling: Deadly force may never be used solely to defend your property
Duress: defense to a criminal act if: the person acts under the threat of imminent infliction of death or great bodily harm; and the belief
is reasonable
o Threats to harm a 3rd person may also suffice to establish the defense
o This is a valid defense to all crimes except homicide
Necessity: Conduct that would otherwise be criminal is justifiable if, as a result of pressure from natural forces, the defendant
reasonably believes that his conduct was necessary to avoid a greater societal harm
o Contrast with duress (human threat) and necessity (natural forces)