Criminal Law Mbe

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Jurisdiction

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Generally, a state has jurisdiction over a crime if:
1. Any act constituting an element of the offense was committed in the state,
2. An act outside the state caused a result in the state,
3. The crime involved the neglect of a duty imposed by the law of the state, or
4. There was an attempt or conspiracy inside the state to commit an offense outside the state.

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Sources of Criminal Law

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There is no federal common law of crimes; all federal crimes are statutory. American criminal law included the English common law of cries unless repealed expressly or impliedly by statute. The modern trend is to abolish common law crimes either expressly or by statute or impliedly by the enactment of comprehensive criminal codes.

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Theories of Punishment

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Theories justifying criminal punishment include:
1. Incapacitation of the criminal,
2. Special deterrence of the criminal,
3. General deterrence of others,
4. Retribution
5. Rehabilitation, and
6. Education of the public.

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Classification of Crimes

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MBE: There are two classes of crimes: felonies and misdemeanors.

Felonies are generally punishable by DEATH OR IMPRISONMENT FOR MORE THAN ONE YEAR; other crimes are misdemeanors

NY: "Offense"= Conduct for which a penal sentence is provided by state or local law, or by an order, rule, or regulation of any governmental instrumentality.

"Crime"= Misdemeanors and felonies.

Traffic infractions: Offenses designated by the Vehicle and Traffic Law.

Violations: Offenses other than traffic infractions which are punishable by no more than 15 days imprisonment.

Misdemeanors: Offenses other than traffic infractions for which prison sentence exceeds 15 days, but cannot be in excess of one year.

Felonies: Offenses for which death or a prison sentence of more than one year may be imposed.

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Vagueness and Other Constitutional Limitations

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Due Process requires that a criminal statute not be vague.

There must be:
1. FAIR WARNING (i.e., a person of ordinary intelligence must be able to discern what is prohibited), and
2. NO ARBITRARY AND DISCRIMINATORY ENFORCEMENT.

The Constitution places two substantive limitations on both federal and state legislatures—no ex post facto laws and no bills of attainder.

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Interpretation of Criminal Statutes

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Criminal statutes are construed strictly in favor of defendants. If two statutes address the same subject matter but dictate different conclusions, the more specific statute will be applied rather than the more general. The more recently enacted statute will control an older statute. Under new comprehensive codes, crimes committed prior to the effective date of the new code are subject to prosecution and punishment under the law as it existed at the time the offense was committed.

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Merger: Common Law

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At common law, if a person engaged in conduct constituting both a felony and a misdemeanor, she could be CONVICTED only of the felony. The misdemeanor merged into the felony.

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Merger: Modern Law—No Merger

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There is no longer any merger EXCEPT that one who solicits another to commit a crime may not be convicted of BOTH THE SOLICITATION AND THE COMPLETED CRIME (if the person solicited does complete it). Similarly, a person who completes a crime after attempting it may not be convicted of BOTH THE ATTEMPT AND THE COMPLETED CRIME. Conspiracy, however, does not merge with the completed offense (e.g., one can be convicted of both robbery and conspiracy to commit robbery).

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Merger: Rules Against Multiple Convictions for Same Transaction

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Double jeopardy prohibits trial or convictions of a person for a lesser included offense if he has been put in jeopardy for the greater offense. However, a court can impose multiple punishments at a single trial where the punishments are for two or more statutorily defined offenses specifically intended by the legislature to carry SEPARATE PUNISHMENTS, even though the offenses arise from the same transaction and constitute the same crime.

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Elements of a Crime

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A crime almost always requires proof of a physical act (actus reus) and a mental state (mens rea), and concurrence of the act and mental state. It may also require proof of a result and causation (i.e., that the act caused the harmful result).

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Physical Act

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Defendant must have performed either a VOLUNTARY physical act or failed to act under circumstances imposing a legal duty to act. An act is a BODILY MOVEMENT.

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Exam Tip

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Remember that the act must be VOLUNTARY. In the past, the bar examiners have set up very unlikely scenarios testing this point—e.g., they have an unconscious person shoot a victim.

Don’t be fooled by these odd facts; if the facts tell you that the defendant was unconscious, the act was not voluntary, and thus defendant cannot be convicted of a crime based on this act. (The only exception to this rule would be if the defendant knew he was likely to become unconscious and commit the act, but this situation would have to be presented in the facts.)

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Physical Act: Omission as an “Act”

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Failure to act gives rise to liability only if:
1. There is a SPECIFIC DUTY TO ACT imposed by law;
2. The DEFENDANT HAS KNOWLEDGE of the facts giving rise to the duty to act; and
3. It is REASONABLY POSSIBLE TO PERFORM the duty.

A legal duty to act can arise from a statute, contract, relationship between the defendant and the victim (e.g., a parent has a duty to protect child from harm), voluntary assumption of care by the defendant for the victim, or creation of peril for the victim by the defendant.

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Exam Tip

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For an omission to be a criminal act, there must be a DUTY to act. There is no general Good Samaritan law requiring people to help others in trouble. Thus, a defendant is not liable for the failure to help or rescue another person unless he has a duty to do so—no matter how easy it would have been to render help.

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Physical Act: Possession as an “Act”

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Criminal statutes that penalize the possession of contraband generally require only that the defendant have control of the item for a long enough period to have an opportunity to terminate the possession. Possession need not be exclusive to one person, and possession also may be “constructive,” meaning that actual physical control need not be proved when the contraband is located in an area within the defendant’s “dominion and control.”

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Possession as an “Act”: State of Mind Requirement

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Absent a state of mind requirement in the statute, the defendant must be aware of his possession of the contraband, but he need not be aware of its illegality. However, many statutes add a state of mind element (e.g., “knowingly”) to possession crimes.

Under such statutes, the defendant ordinarily must know the identity or nature of the item possessed. On the other hand, a defendant may not consciously avoid learning the true nature of the item possessed; knowledge may be inferred from a combination of suspicion and indifference to the truth.

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Mental State: Specific Intent

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A crime may require not only the doing of an act, but also the doing of it with a specific intent or objective. The existence of a specific intent cannot be conclusively imputed from the mere DOING of the act, but the MANNER in which the crime was committed may provide circumstantial evidence of intent. The major specific intent crimes and the intents they require are as follows:
1. Solicitation: intent to have the person solicited commit the crime.
2. Attempt: Intent to complete the crime.
3. Conspiracy: Intent to have the crime completed.
4. First degree premeditated murder: Premeditation
5. Assault: Intent to commit a battery
6. Larceny and robbery: Intent to permanently deprive the other of his interest in the property taken.
7. Burglary: Intent to commit a felony in the dwelling.
8. Forgery: Intent to defraud
9. False pretenses: Intent to defraud
10. Embezzlement: Intent to defraud.

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Exam Tip

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Never forget that attempt is a SPECIFIC INTENT crime—even when the crime attempted is not. Thus, although murder does not require a specific intent to kill (i.e., recklessly disregarding a high risk to human life would be enough), attempted murder requires the specific INTENT TO KILL. Without that intent, a defendant is not guilty of attempted murder.

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Mental State: Malice—Common Law Murder and Arson

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The intent necessary for malice crimes (common law murder and arson) sounds like specific intent, but it is not as restrictive; it requires only a reckless disregard of an obvious or high risk that the particular harmful result will occur. Defenses to specific intent crimes (e.g., voluntary intoxication) do not apply to malice crimes.

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Mental State: General Intent—Awareness of Factors Constituting Crime

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Almost all crimes require at least “general intent,” which is awareness of all factors constituting the crime; i.e., defendant must be aware that she is acting in the proscribed way and that any required attendant circumstances exist. The defendant need not be certain that all the circumstances exist; it is sufficient that she is aware of a high likelihood that they will occur.

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Mental State: General Intent—Awareness of Factors Constituting Crime: Inference of Intent from Act

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A jury may infer the required general intent merely from the doing of the act.

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Mental State: General Intent—Awareness of Factors Constituting Crime: Transferred Intent

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The defendant can be liable under the doctrine of transferred intent where she intends the harm that is actually caused, but to a different victim or object. Defenses and mitigating circumstances may also usually be transferred. The doctrine of transferred intent applies to homicide, battery, and arson. It does not apply to attempt.

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Exam Tip

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A person found guilty of a crime on the basis of transferred intent is usually guilty of two crimes; the completed crime against the actual victim and attempt against the intended victim. Thus, if D intends to shoot and kill X, but instead shoots and kills V, D can be guilty of the murder of V (under the transferred intent doctrine) and the attempted murder of X.

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Mental State: General Intent—Awareness of Factors Constituting Crime: Motive Distinguished

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Motive is the reason or explanation for the crime; it is different from intent to commit the crime. Motive is immaterial to substantive criminal law.

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Mental State: Strict Liability Offenses

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MBE: A strict liability of public welfare offense is one that does not require awareness of all of the factors constituting the crime; i.e., the defendant can be found guilty from the mere fact that she committed the act. Common strict liability offenses are selling liquor to minors and statutory rape. Certain defenses, such as mistake of fact, are not available.

NY: KNOWLEDGE OF WEIGHT of a controlled substance is NOT an element of the offense (e.g., defendant is STRICTLY LIABLE for the weight); only knowledge of the nature of the substance is required.

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Mental State: Model Penal Code Analysis of Fault

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The MPC eliminates the common law distinctions between general and specific intent and adopts the following categories of intent:
1. Purposely,
2. Knowingly,
3. Recklessly

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Mental State: Model Penal Code Analysis of Fault: Purposely

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A person acts purposely when his CONSCIOUS OBJECT is to engage in certain conduct or cause a certain result.

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Mental State: Model Penal Code Analysis of Fault: Knowingly

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A person acts knowingly when he is AWARE that his conduct is of a particular natures or KNOWS that his conduct will necessarily or very likely cause a particular result. Knowing conduct satisfies a statute requiring “willful conduct”.

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Mental State: Model Penal Code Analysis of Fault: Recklessly

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A person acts recklessly when he KNOWS of a SUBSTANTIAL AND UNJUSTIFIABLE RISK and CONSCIOUSLY DISREGARDS it. Mere realization of the risk is not enough. Thus, recklessness involves both objective (“unjustifiable risk”) and subjective “awareness”) elements. Unless the statute specifies a different degree of fault of is a strict liability offense, the defendant must have acted at least recklessly to be criminally liable.

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Exam Tip

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A criminal law question often asks you to interpret a statute. Check the language of the statute carefully for the mental state required for each material element of the crime, because whether a defendant is guilty often turns on that mental state.
For example, if the statute requires that a defendant act “knowingly” (such as “knowingly selling guns to a felon”), the defendant will not be guilty if she did not have that knowledge (e.g., did not know the purchaser was a felon). In interpreting a statute, also keep in mind that “willfully” is equivalent to “knowingly”.

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Mental State: Model Penal Code Analysis of Fault: Negligence

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A person acts negligently when he FAILS TO BE AWARE OF A SUBSTANTIAL AND UNJUSTIFIABLE RISK, where such failure is a substantial deviation from the standard of care. To determine whether a person acted negligently, an OBJECTIVE STANDARD is used. However, it is not just the reasonable person standard that is used in torts. The defendant must have taken a very unreasonable risk.

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Mental State: Vicarious Liability Offenses

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A vicarious liability offense is one in which a person without personal fault may nevertheless be held liable for the criminal conduct of another (usually an employee). The trend is to limit vicarious liability to regulatory crimes and to limit punishment to fines.

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Mental State: Enterprise Liability—Liability of Corporations and Associations

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At common law, a corporation does not have capacity to commit crimes. Under modern statutes, corporations may be held liable for an act performed by:
1. An agent of the corporation acting within the scope of his office or employment; or
2. A corporate agent high enough in hierarchy to presume his acts reflect corporate policy.

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Concurrence of Mental State with Physical Act

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The defendant must have had the intent necessary for the crime at the time he committed the act constituting the crime, and the intent must have actuated the act. For example, if D is driving to V’s house to kill him, he will lack the necessary concurrence for murder if he ACCIDENTALLY runs v over before reaching the house.

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Causation

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Some crimes (e.g., homicide) require result and causation.

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Accomplice Liability: Parties to a Crime: Common Law

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At common law, parties to a crime included the PRINCIPAL IN THE FIRST DEGREE (person who actually engaged in the act or omission that constitutes the offense or who caused an innocent agent to do so), PRINCIPAL IN THE SECOND DEGREE (person who aided, commanded, or encouraged the principal and was present at the time), ACCESSORY BEFORE THE FACT(person who assisted or encouraged but was NOT PRESENT), and ACCESSORY AFTER THE FACT (person who, with knowledge that the other committed a felony, assisted him to escape arrest or punishment). At common law, conviction of the principal was required for conviction of an accessory and the charge must have indicated the correct theory of liability (i.e., as principal or accessory).

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Accomplice Liability: Parties to a Crime: Modern Statutes

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Most jurisdictions have abolished the distinctions between principals in the first degree and principals in the second degree or accessories before the fact. All such “parties to the crime” can be found guilty of the principal offense. For convenience, however, think of the one who actually engages in the act (either personally or through an innocent agent) or omission as the principal and the other parties as accomplices.

Note: An accessory after the fact (one who assists another knowing that he has committed a felony in order to help him escape) is still treated separately. Punishment for this crime usually bears no relationship to the principal offense.

NY: Criminal Facilitation: Elements are:

1. The facilitator has KNOWINGLY AIDED in the commission of a crime but his culpability DOES NOT REACH ACCOMPLICE LEVEL;

2. The facilitator need only believe that it was PROBABLE that he was rendering aid;

3. The conduct alleged must have aided in the COMMISSION of the object felony; and

4. The fac

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Accomplice Liability: Mental State—Intent Required

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To be guilty as an accomplice, most jurisdictions require that the person give aid, counsel or encouragement to the principal with the INTENT to encourage the crime. In the absence of a statute, most courts would hold that MERE KNOWLEDGE that a crime will result is not enough, at least where the aid given is in the form of the sale of ordinary goods at ordinary prices (e.g., a gas station attendant will not be liable for arson for knowingly selling a gallon of gasoline to an arsonist). However, procuring an illegal item or selling at a higher price because of the buyer’s purpose (e.g., charging the arsonist 100 dollars for the gallon of gas) may constitute a sufficient “stake in the venture” to constitute intent.

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Accomplice Liability: Scope of Liability

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An accomplice is responsible for the crimes he did or counseled AND for any other crimes committed in the course of committing the crime contemplated to the same extent as the principal, as long as the other crimes were PROBABLE OR FORESEEABLE.

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Accomplice Liability: Scope of Liability: Inability to be Principal No Bar to Accomplice Liability

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One who may not be convicted of being a principal may be convicted of being an accomplice. Example: At common law a woman cannot be convicted of being the principal in a rape but can be found guilty as an accomplice if she aids the principal.

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Accomplice Liability: Scope of Liability: Exclusions from Liability: Members of the Protected Class

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Members of the class protected by a statute are excluded from accomplice liability. Example: A woman transported across state lines cannot be an accomplice to the crime of transporting women across state lines for immoral purposes, since she is within the class protected.

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Accomplice Liability: Scope of Liability: Exclusions of Liability: Necessary Parties Not Provided For

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A party necessary to the commission of a crime, by statutory definition, who is not provided for in the statute is excluded from accomplice liability. Example: If a statute makes the sale of heroin illegal, but does not provide for punishment of the purchaser, he cannot be found guilty under the statute as an accomplice to the seller.

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Accomplice Liability: Scope of Liability: Exclusions from Liability: Withdrawal

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A person who effectively withdraws from a crime before it is committed cannot be held guilty as an accomplice. Withdrawal must occur BEFORE the crime becomes unstoppable.

1. REPUDIATION is sufficient withdrawal for mere encouragement.
2. ATTEMPT TO NEUTRALIZE assistance is required if participation went beyond mere encouragement.

Notifying the police or taking other action to prevent the crime is also sufficient.

NY: Withdrawal is an AFFIRMATIVE DEFENSE to accomplice liability for the substantive offense, OTHER THAN AN ATTEMPT, if the accomplice:

1. Voluntarily and completely RENOUNCES his criminal purpose;

2. Withdraws PRIOR TO commission of the offense; and

3. Makes a substantial effort to PREVENT the crime.

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Inchoate Offenses: Solicitation: Elements

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Solicitation consists of INCITING, COUNSELING, ADVISING, URGING OR COMMANDING another to commit a crime, with the INTENT THAT THE PERSON SOLICITED COMMIT THE CRIME.

It is not necessary that the person solicited respond affirmatively.

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Inchoate Offenses: Solicitation: Defenses

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It is not a defense that the person solicited is not convicted, nor that the offense solicited could not in fact have been successful. In most jurisdictions, it is not a defense that the solicitor renounces or withdraws the solicitation.

The MPC recognizes renunciation as a defense if the defendant prevents the commission of the crime, such as by persuading the person solicited not to commit the crime. However, IT IS A DEFENSE that the solicitor could not be found guilty of the completed crime because of a legislative intent to exempt her (e.g., a woman cannot be found guilty of soliciting a man to transport her across state lines for immoral purposes).

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Inchoate Offenses: Solicitation: Merger

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If the person solicited commits the crime solicited, both that person and the solicitor can be held liable for that crime. If the person solicited commits acts sufficient to be liable for attempt, both parties can be liable for attempt.

If the person solicited agrees to commit the crime, but does not even commit acts sufficient for attempt, both parties can be held liable for conspiracy. However, under the doctrine of merger, the solicitor CANNOT BE PUNISHED FOR BOTH the solicitation and these other offenses.

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Inchoate Offenses: Conspiracy

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A conspiracy is an agreement between two or more parties to commit a crime.

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Inchoate Offenses: Conspiracy: Elements

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A conspiracy requires:
1. An AGREEMENT between two or more persons;
2. An INTENT TO ENTER INTO THE AGREEMENT; and
3. An INTENT by at least two persons TO ACHIEVE THE OBJECTIVE OF THE AGREMENT.

A majority of states now also require an OVERT ACT, but an act of mere preparation will suffice.

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Inchoate Offenses: Conspiracy: Agreement Requirement

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The parties must agree to accomplish the same objective by mutual action. However, the agreement need not be express; it may be inferred from joint activity.

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Inchoate Offenses: Conspiracy: Requirement of Two or More Parties: Modern Trend—“Unilateral” Approach

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The modern trend follows the MPC’s “unilateral” approach to conspiracy, which requires that only ONE party have genuine criminal intent. Accordingly, under the unilateral approach, a defendant can be convicted of conspiracy if he conspires with one person only and that person is a police officer working undercover.

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Inchoate Offenses: Conspiracy: Requirement of Two or More Parties: Traditional Rule—“Bilateral” Approach

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At common law, a conspiracy requires at least TWO “guilty minds,” i.e., persons who are actually committed to the illicit plan. Under this “bilateral” approach, if one person in a two party agreement is only feigning agreement, the other party cannot be convicted of conspiracy. This requirement of two guilty minds gives rise to a number of problems.

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Exam Tip

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Conspiracy is probably the most tested inchoate crime. One important thing to look for is whether the jurisdiction follows the unilateral or common law approach to the two party requirement for conspiracy. If the jurisdiction follows the UNILATERAL APPROACH of the MPC, ONLY ONE PARTY need have genuine criminal intent, whereas the COMMON LAW requires that TWO PARTIES have the genuine criminal intent.

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Inchoate Offenses: Conspiracy: Requirement of Two or More Parties: Traditional Rule—“Bilateral Approach”: Husband and Wife

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At common law, a husband and wife could not conspire together, but this distinction has been abandoned in most states.

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Inchoate Offenses: Conspiracy: Requirement of Two or More Parties: Traditional Rule—“Bilateral Approach”: Corporation and Agent

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There can be no conspiracy between a corporation and a single agent acting on its behalf. There is a split of authority as to whether the agents of a corporation can be deemed co-conspirators with the corporation.

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Inchoate Offenses: Conspiracy: Requirement of Two or More Parties: Traditional Rule—“Bilateral Approach”: Wharton Rule

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Under the Wharton Rule, where two or more people are necessary for the commission of the substantive offense (e.g., adultery, dueling), there is no crime of conspiracy unless MORE PARTIES PARTICIPATE in the agreement than are necessary for the crime (e.g., because it takes two people to commit adultery, it takes three people to conspire to commit adultery).

Exception: The Wharton Rule does not apply to agreements with “necessary parties not provided for” by the substantive offense; both parties may be guilty of conspiracy even though both are necessary for commission of the substantive offense.

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Inchoate Offenses: Conspiracy: Requirement of Two or More Parties: Traditional Rule—“Bilateral Approach”: Agreement with Person in “Protected Class”

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If members of a conspiracy agree to commit a crime designed to protect persons within a given class, persons within that class cannot be guilty of the crime itself or of conspiracy to commit that crime. Likewise, the nonprotected person cannot be guilty of conspiracy if the agreement was with the protected person only.

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Inchoate Offenses: Conspiracy: Requirement of Two or More Parties: Traditional Rule—“Bilateral Approach”: Effect of Acquittal of Some Conspirators

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Under the traditional view, the ACQUITTAL of all persons with whom a defendant is alleged to have conspired precludes conviction of the remaining defendant. In some jurisdictions following the traditional view, a conviction for conspiracy against one defendant is allowed to stand when the alleged co-conspirator is acquitted in a SEPARATE TRIAL.

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Exam Tip

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Acquittal is the key here. If the defendant and others allegedly conspired and only the defendant is charged and tried (e.g., the other parties are not apprehended or not prosecuted), the defendat can be convicted. But if the defendant is charged and tried and ALL THE OTHERS HAVE BEEN ACQUITTED, the defendant cannot be convicted. (The acquittals show that there was no one with whom the defendant could conspire.)

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Inchoate Offenses: Conspiracy: Elements: Mental State—Specific Intent

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Conspiracy is a specific intent crime. Parties must have:
1. The intent to AGREE and
2. The intent to ACHIEVE THE OBJECTIVE of the conspiracy.

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Inchoate Offenses: Conspiracy: Elements: Overt Act

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At common law, the conspiracy was complete when the agreement with the requisite intent was reached. Most states now require that an act in furtherance of the conspiracy be performed. An act of mere preparation is usually sufficient.

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Accomplice Liability: Scope of Liability: Factors Not Constituting a Defense (NY)

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An accomplice is NOT absolved of liability:

1. By defenses of the principal;

2. By failure of the state to prosecute the principal; or

3. If the offense is defined so that the accomplice could not commit the offense in an individual capacity.

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Conspiracy: Liability for Co-Conspirators’ Crimes

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A conspirator may be held liable for crimes committed by other conspirators if the crimes:
1. Were committed IN FURTHERANCE of the objectives of the conspiracy; and
2. Were FORESEEABLE.

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Conspiracy: Termination of Conspiracy

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The point at which a conspiracy terminates is important because acts and statements of co-conspirators are admissible against a conspirator only if they were done or made in furtherance of the conspiracy.

A conspiracy usually terminates UPON COMPLETION OF THE WRONGFUL OBJECTIVE. Unless agreed to in advance, acts of concealment are NOT part of the conspiracy. Note also that the government’s defeat of the conspiracy’s objective does not automatically terminate the conspiracy.

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Conspiracy: Defenses: Factual Impossibility

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Factual impossibility is NOT a defense to conspiracy

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Conspiracy: Defenses: Withdrawal

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Generally, withdrawal from the conspiracy is NOT a defense TO THE CONSPIRACY, because the conspiracy is complete as soon as the agreement is made and act in furtherance is performed. Withdrawal MAY be a defense to CRIMES COMMITTED IN FURTHERANCE of the conspiracy, including the substantive target crime of the conspiracy.

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Conspiracy: When Withdrawal Effective

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To withdraw, a conspirator must perform an affirmative act that notifies all members of the conspiracy of her withdrawal. Not must be given in time for the members to abandon their plans. If she has also provided assistance as an accomplice, she must try to neutralize her assistance.

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Exam Tip

Back 67

Withdrawal from a conspiracy is an important test issue. Remember that a conspiracy is complete upon the agreement with the requisite intent and an overt act. Since the overt act can be a preparatory act, the conspiracy is usually complete very soon after the agreement. If the crime is complete, the defendant is GUILTY OF CONSPIRACY—even if the facts show that she had second thoughts, told her co-conspirators that she was backing out, warned the police, hid the weapons, etc. These actions come too late; defendant is guilty of conspiracy. (Such actions may relieve the defendant of criminal liability for her co-conspirators’ acts after this withdrawal, but they have no effect on the crime of conspiracy.)

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Conspiracy: Punishment—No Merger

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Conspiracy and the completed crime are distinct offenses; i.e., there is no merger. A defendant may be convicted of and punished for both.

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Number of Conspiracies in Multiple Party Situations

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In complex situations, there may be a large conspiracy with a number of subconspiracies. In such situations, it is important to determine whether members of one subconspiracy are liable for the acts of another subconspiracy. The two most common situations are:

1. Chain Relationship
2. Hub-and-Spoke Relationship

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Multiple Party Situations: Chain Relationship

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A chain relationship is a single, large conspiracy in which all parties to subagreements are interested in the single large scheme. In this case, all members are liable for the acts of the others in furtherance of the conspiracy.

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Multiple Party Situations: Hub-and-Spoke Relationship

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In a hub-and-spoke relationship a number of independent conspiracies are linked by a common member. Although the common member will be liable for all of the conspiracies, members of the individual conspiracies are not liable for the acts of the other conspirators.

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Attempt: Elements

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Attempt is an act, done with INTENT TO COMMIT A CRIME, that FALLS SHORT OF COMPLETING the crime.

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Attempt: Mental State

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To be guilty of attempt, the defendant must intend to perform an act and obtain a result that, if achieved, would constitute a crime. Regardless of the intent necessary for the completed offense, an attempt ALWAYS REQUIRES A SPECIFIC INTENT (i.e., the intent to commit the crime). Example: To be guilty of attempt to commit murder, defendant must have had the specific INTENT TO KILL another person, even though the mens rea for murder itself does not necessarily require a specific intent to kill.

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Exam Tip

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Attempt to commit a crime defined as the NEGLIGENT production of a result (e.g., negligent homicide) is logically impossible because a person does not intend to be negligent. Thus, there can be no attempted negligent homicide, etc. The same holds true for crimes that require RECKLESSNESS.

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Attempt: Overt Act

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Defendant must commit an act BEYOND MERE PREPARATION for the offense. Traditionally, most courts followed the “PROXIMITY” TEST, which requires that the act be “dangerously close” to successful completion of the crime (e.g., pointing a loaded gun at an intended victim and pulling the trigger, only to have the gun not fire or the bullet miss its mark is sufficient). However, today most state criminal codes (and the Model Penal Code) require that the act or omission constitute a “SUBSTANTIAL STEP in a course of conduct planned to culminate in the commission of the crime” that strongly corroborates the actor’s criminal purpose.

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Exam Tip

Back 76

Note that the overt act required for attempt is MUCH MORE SUBSTANTIAL than the overt act required for conspiracy.

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Defenses to Attempt: Legal Impossibility

Back 77

If the defendant, having completed all acts that he had intended, would have committed NO CRIME, he cannot be guilty of an attempt to do the same if he fails to complete all intended acts. Legal impossibility IS A DEFENSE.

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Defenses to Attempt: Factual Impossibility

Back 78

The substantive crime is incapable of completion due to some PHYSICAL OR FACTUAL CONDITION, unknown to the defendant.

Factual impossibility is NOT A DEFENSE.

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Exam Tip

Back 79

If you get stumped on a question that asks you to decide whether impossibility is a defense, ask yourself: “If the defendant were able to complete all of the acts that the intended to do, and if all of the attendant circumstances actually were as the defendant believed them to be, would the defendant have committed a crime?” The answer usually will be YES, in which case the impossibility is FACTUAL AND NOT A DEFENSE. In the unusual case where the answer is no, the defendant most likely has a legal impossibility defense.

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Defenses to Attempt: Abandonment

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Abandonment is NOT a defense at common law. If the defendant had the intent and committed an overt act, she is guilty of attempt despite the fact that she changed her mind and abandoned the plan before the intended crime was completed. The M.P.C. followed in a number of jurisdictions, provides that a FULLY VOLUNTARY and COMPLETE abandonment is a defense.

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Prosecution for Attempt

Back 81

A defendant charged only with a completed crime may be found guilty of the completed crime OR an attempt, but a defendant charged only with attempt may NOT be convicted of the completed crime.

Front 82

Insanity

Back 82

There are several formulations of the test to be applied to determine whether, at the time of the crime, the defendant was so mentally ill as to be entitled to acquittal.

Front 83

Insanity: M’Naghten Rule

Back 83

Under this rule, a defendant is entitled to acquittal only if he had a mental disease or defect that caused him to either:
1. NOT KNOW THAT HIS ACT WOULD BE WRONG; or
2. NOT UNDERSTAND THE NATURE AND QUALITY OF HIS ACTIONS.

Loss of control because of mental illness is no defense.

Front 84

Insanity: Irresistible Impulse Test

Back 84

Under this test, a defendant is entitled to acquittal only if, because of a mental illness, he was UNABLE TO CONTROL HIS ACTIONS OR CONFORM HIS CONDUCT TO THE LAW.

Front 85

Insanity: Durham (or New Hampshire) Test

Back 85

Under this test, the defendant is entitled to acquittal if the CRIME WAS THE PRODUCT OF HIS MENTAL ILLNESS (i.e., crime would not have been committed but for the disease).

The Durham test is broader than either the M’Naghten test or the irresistible impulse test.

Front 86

Insanity: A.L.I. or Model Penal Code Test

Back 86

Under the MPC test (which represents the “modern trend”), a defendant is entitled to acquittal if he had a mental disease or defect, and, as a result, he LACKED THE SUBSTANTIAL CAPACITY to either:
1. APPRECIATE THE CRIMINALITY of his conduct; or
2. CONFORM HIS CONDUCT to the requirements of law.

Front 87

Exam Tip

Back 87

It is important to know these separate insanity tests because questions may ask you about a specific test (e.g., “If the jurisdiction has adopted the MPC test for determining insanity, what is defendant’s best argument for acquittal on this ground?”) To answer this type of question, you must know the requirements for that particular test. A shorthand way to remember the test is:

M’Nagthen—defendant does NOT KNOW RIGHT FROM WRONG

Irresistible Impulse—an IMPULSE that defendant CANNOT RESIST;

Durham—BUT FOR THE MENTAL ILLNESS, defendant would not have done the act;

ALI/MPC—COMBINATION of M’Naghen and irresistible impulse.

Front 88

Insanity: Procedural Issues: Burdens of Proof and Persuasion

Back 88

All defendants are presumed sane; the defendant must raise the insanity issue. In most states, once the issue is raised, the defendant must prove his insanity, generally by a preponderance of the evidence. Other states (and the MPC) require the prosecution to prove the defendant was sane beyond a reasonable doubt.

Front 89

Insanity: Procedural Issues: When Defense May Be Raised

Back 89

Although the insanity defense may be raised at the arraignment when the plea is taken, the defendant need not raise it then. A simple “not guilty” at that time does not waive the right to raise the defense at some future time.

Front 90

Insanity: Procedural Issues: Pretrial Psychiatric Examination

Back 90

If the defendant does NOT raise the insanity issue, he MAY refuse a court-ordered psychiatric examination to determine his competency to stand trial.

If the defendant RAISES the insanity issue, he may NOT refuse to be examined by a psychiatrist appointed to aid the court in the resolution of his insanity plea.

Front 91

Insanity: Post-Acquittal Commitment to Mental Institution

Back 91

In most jurisdictions, a defendant acquitted by reason of insanity committed to a mental institution until cured. Confinement may exceed the maximum period of incarceration for the offense charged.

Front 92

Mental Condition During Criminal Proceedings

Back 92

Under the Due Process Clause, a defendant may not be tried, convicted, or sentenced if, as a result of a mental disease or defect, he is unable:
1. To understand the nature of the proceedings being brought against him; or
2. To assist his lawyer in the preparation of his defense.


A defendant may not be executed if he is incapable of understanding the nature and purpose of the punishment.

Front 93

Diminished Capacity

Back 93

Some states recognize the defense of “diminished capacity” under which the defendant may assert that as a result of a mental defect short of insanity, he did not have the mental state required for the crime charged. Most states allowing the diminished capacity defense limit it to specific intent crimes, but a few states allow it for general intent crimes as well.

Front 94

Intoxication

Back 94

Intoxication may be caused by any substance (e.g., drugs, alcohol, medicine). It may be raised whenever intoxication negates one of the elements of the crime. The law usually distinguishes between voluntary and involuntary intoxication.

Front 95

Voluntary Intoxication

Back 95

Intoxication is voluntary if it is the result of the intentional taking without duress of a substance known to be intoxicating.

Front 96

Voluntary Intoxication: Defense to Specific Intent Crimes

Back 96

Evidence of “voluntary” intoxication may be offered by the defendant only if the crime requires PURPOSE (INTENT) OR KNOWLEDGE, and the intoxication prevented the defendant from formulating the purpose or obtaining the knowledge.

Thus, voluntary intoxication may be a good defense to SPECIFIC INTENT crimes, but NOT to general intent, malice, or strict liability crimes. This defense is not available if the defendant purposely becomes intoxicated in order to establish the defense.

Front 97

Involuntary Intoxication

Back 97

Intoxication is involuntary only if it results from the taking of an intoxicating substance WITHOUT KNOWLEDGE of its nature, UNDER DIRECT DURESS imposed by another, or PURSUANT TO MEDICAL ADVICE while unaware of the substance’s intoxicating effect. Involuntary intoxication may be treated as a mental illness, and the defendant is entitled to acquittal if she meets the jurisdiction’s insanity test.

Front 98

Relationship to Insanity

Back 98

Continuous, excessive drinking or drug use may bring on actual insanity and thus a defendant may be able to claim both an intoxication defense AND an insanity defense.

Front 99

Infancy

Back 99

At common law, there could be no liability for an act committed by a child under age seven. For acts committed by a child between ages 7 and 14 there was a rebuttable presumption that the child was unable to understand the wrongfulness of his acts. Children 14 and older were treated as adults.

Modern statutes often modify this and provide that no child can be convicted of a crime until a stated age is reached, usually 13 or 14. However, children can be found to be delinquent in special juvenile or family courts.

Front 100

Principles of Exculpation: Justification

Back 100

The justification defenses arise when society has deemed that although the defendant committed a proscribed act, she should not be punished because the circumstances justify the action.

Front 101

Exam Tip

Back 101

The right to self-defense or other justification defenses depend on the immediacy of the threat; a threat of future harm is not sufficient. Thus, if someone threatens the defendant by saying, “Tomorrow I’m going to kill you,” the defendant is NOT JUSTIFIED in killing the person to “protect” himself.

Front 102

Exam Tip

Back 102

It is crucial to determine the level of force that the defendant used in committing the proscribed act. As a rule of thumb, NONDEADLY FORCE is justified where it appears necessary to avoid imminent injury or to retain property; DEADLY FORCE is justified only to prevent death or serious bodily injury.

Front 103

Principles of Exculpation: Self-Defense: Nondeadly Force

Back 103

A person without fault may use such force as REASONABLY APPEARS NECESSARY to protect herself from the imminent use of unlawful force upon herself. There is no duty to retreat.

Front 104

Principles of Exculpation: Self-Defense: Deadly Force

Back 104

A person may use deadly force in self-defense if:
1. She is without fault;
2. She is confronted with “unlawful force”; and
3. She is threatened with imminent death or great bodily harm.

Front 105

Exam Tip

Back 105

If the defendant kills in self-defense but not all three of the requirements for the use of deadly force are met, some states would find the defendant guilty of manslaughter rather than murder under the “imperfect self-defense” doctrine.

Front 106

Self-Defense: Retreat

Back 106

Generally, there is no duty to retreat before using deadly force. The minority view requires retreat before using deadly force if the victim can safely do so, UNLESS:
1. The attack occurs in the victim’s own home (but a victim who is an “initial aggressor” must regain his right to use self-defense, even though he may be in his home);
2. The attack occurs while the victim is making a lawful arrest, or
3. The assailant is in the process of robbing the victim.

Front 107

Right of Aggressor to Use Self-Defense

Back 107

If one is the aggressor in the confrontation, she may use force in defense of herself only if:

1. She EFFECTIVELY WITHDRAWS from the confrontation and COMMUNICATES to the other her desire to do so, OR
2. The victim of the initial aggression SUDDENLY ESCALATES the minor fight into a deadly altercation and the initial aggressor has no chance to withdraw.

Front 108

Defense of Others

Back 108

A defendant has the right to defend others if she reasonably believes that the person assisted has the legal right to use force in his own defense. All that is necessary is the REASONABLE APPEARANCE of the right to use force. Generally, there need be no special relationship between the defendant and the person in whose defense she acted.

Front 109

Defense of a Dwelling

Back 109

NONDEADLY FORCE may be used to prevent or terminate what is reasonably regarded as an unlawful entry into or attack on the defender’s dwelling. DEADLY FORCE may be used only to prevent a violent entry made with the intent to commit a personal attack on an inhabitant, or to prevent entry to commit a felony in the dwelling.

Front 110

Defense of Other Property: Defending Possession

Back 110

DEADLY FORCE may never be used in defense of property. NONDEADLY FORCE may be used to defend property in one’s possession from unlawful interference, but may not be used if a request to desist or refrain from the activity would suffice.

Front 111

Defense of Other Property: Regaining Possession

Back 111

Force CANNOT be used to regain possession of property wrongfully taken unless the person using force is in immediate pursuit of the taker.

Front 112

Crime Prevention

Back 112

NONDEADLY FORCE may be used to the extent that it reasonably appears necessary to prevent a felony or serious breach of the peace. DEADLY FORCE may be used only to terminate or prevent a dangerous felony involving risk to human life.

Front 113

Use of Force to Effectuate Arrest

Back 113

NONDEADLY FORCE may be used by police officers if it reasonably appears necessary to effectuate an arrest. DEADLY FORCE is reasonably only if it is necessary to prevent a felon’s escape AND the felon threatens death or serious bodily harm.

Front 114

Use of Force to Effectuate Arrest: Private Persons

Back 114

A private person has a privilege to use NONDEADLY FORCE to make an arrest if a CRIME WAS IN FACT COMMITTED and the private person has REASONABLE GROUNDS TO BELIEVE the person arrested has in fact committed the crime. A private person may use DEADLY FORCE ONLY IF the person harmed was ACTUALLY GUILTY of the offense for which the arrest was made.

Front 115

Resisting Arrest

Back 115

NONDEADLY FORCE may be used to resist an improper arrest even if a known officer is making that arrest. DEADLY FORCE may be used, however, only if the person does not know that the person arresting him is a police officer.

Front 116

Necessity

Back 116

It is a defense to a crime that the person REASONABLY BELIEVED that commission of the crime was necessary to avoid imminent and greater injury to society than that involved in the crime. The test is objective; a good faith belief is not sufficient. Under the traditional common law view, the pressure producing the choice of evils has to come from natural forces; MODERN CASES HAVE ABANDONED THIS REQUIREMENT.

Front 117

Necessity: Limitation—Death

Back 117

Causing the death of another person to protect property is NEVER JUSTIFIED.

Front 118

Necessity: Limitation—Fault

Back 118

The defense of necessity is not available if the defendant is at fault in creating the situation requiring that he choose between two evils.

Front 119

Public Policy

Back 119

A police officer (or one assisting him) is justified in using reasonable force against another, or in taking property, provided the officer acts pursuant to a law, court order, or process requiring or authorizing him to so act.

Front 120

Domestic Authority

Back 120

The parents of a minor child, or any person “in loco parentis” with respect to that child, may lawfully use reasonable force upon the child for the purpose of promoting the child’s welfare.

Front 121

Principles of Exculpation: Excuse of Duress

Back 121

It is a defense to a crime OTHER THAN HOMICIDE that the defendant reasonably believed that another person would imminently inflict death or great bodily harm upon him or a member of his family if he did not commit the crime. Traditionally, THREATS TO PROPERTY were NOT SUFFICIENT; however, a number of states, consistent with the MPC, do allow for threats to property to give rise to a duress defense, assuming that the value of the property outweighs the harm done to society by commission of the crime.

Front 122

Necessity Distinguished from Duress

Back 122

Unlike necessity, duress ALWAYS involves a threat by a human.

Front 123

Principles of Exculpation: Other Defenses: Mistake or Ignorance of Fact

Back 123

Mistake or ignorance of fact is relevant to criminal liability only if it shows that the defendant LACKED THE STATE OF MIND REQUIRED for the crime; thus, it is irrelevant if the crime imposes “strict” liability.

Front 124

Principles of Exculpation: Other Defenses: Mistake or Ignorance of Fact: Reasonableness

Back 124

If mistake is offered to “disprove” a SPECIFIC INTENT, the mistake NEED NOT BE REASONABE; however, if it is offered to disprove any other state of mind, it MUST HAVE BEEN REASONABLE mistake or ignorance.

Front 125

Exam Tip

Back 125

Don’t confuse the defense of mistake of fact with the issue of factual impossibility. Even though in both situations defendant is mistaken about certain facts, the results are different. MISTAKE is usually raised as a defense to a crime that has been completed; mistake of fact may negate the intent required for the crime. IMPOSSIBILITY arises only when defendant has FAILED to complete the crime because of his mistake belief about the facts, and is being charged with an ATTEMPT to commit the crime; factual impossibility is NOT a defense to attempt.

Front 126

Mistake or Ignorance of Law—No Defense

Back 126

Generally, it is not a defense that the defendant believed that her activity would not be a crime, even if that belief was reasonable and based on the advice of an attorney. However, if the reliance on the attorney negates a necessary mental state element, such reliance can demonstrate that the government has not proved its case beyond a reasonable doubt.

Front 127

Mistake or Ignorance of Law—No Defense: Exceptions

Back 127

The defendant has a defense if:
1. The statute proscribing her conduct was not published or made reasonably available prior to the conduct;
2. There was reasonable reliance on a statute or judicial decision; or
3. In some jurisdictions, there was reasonable reliance on official interpretation or advice

Front 128

Mistake or Ignorance of Law—No Defense: Ignorance of Law May Negate Intent

Back 128

If the defendant’s mistake or ignorance as to a collateral legal matter proves that she lacked the state of mind required for the crime, she is entitled to acquittal. The ignorance or mistake must involve the ELEMENTS of the crime, NOT THE EXISTENCE of a statute making the act criminal. For example, a defendant cannot be found guilty of selling a gun to a known felon if she thought that the crime the buyer had been found guilty of was only a misdemeanor.

Front 129

Principles of Exculpation: Other Defenses: Consent

Back 129

Unless the crime requires the lack of consent of the victim (e.g., rape), consent is usually NOT a defense. Consent is a defense to minor assaults or batteries if there is no danger of serious bodily injury. Whenever consent may be a defense, it must be established that:
1. The consent was VOLUNTARILY AND FREELY GIVEN;
2. The party was LEGALLY CAPABLE of consenting; and
3. NO FRAUD was involved in obtaining the consent.

Front 130

Principles of Exculpation: Other Defenses: Condonaton or Criminality of Victim—No Defense

Back 130

Forgiveness by the victim is no defense. Likewise, the nearly universal rule is that illegal conduct by the victim of a crime is no defense.

Front 131

Principles of Exculpation: Other Defenses: Entrapment

Back 131

Entrapment exists only if:
1. The CRIMINAL DESIGN ORIGINATED WITH LAW ENFORCEMENT OFFICERS and
2. The defendant was NOT PREDISPOSED to commit the crime prior to contact by the government.

Merely providing the opportunity for a predisposed person to commit a crime is not entrapment.

Front 132

Principles of Exculpation: Other Defenses: Entrapment: Unavailable—If Private Inducement or If Material for Crime Provided by Government Agent

Back 132

A person cannot be entrapped by a private citizen. Under federal law, an entrapment defense cannot be based solely on the fact that a government agent provided an ingredient for commission of the crime (e.g., ingredients for drugs), even if the material provided was contraband.

Front 133

Exam Tip

Back 133

Entrapment is a difficult defense to establish in court and so too on the MBE. In fact, on the exam, the defendant is usually predisposed to commit the crime and thus entrapment usually is a wrong choice.

Front 134

Offenses Against the Person: Battery

Back 134

Batter is an UNLAWFUL APPLICATION OF FORCE to the person of another resulting in either BODILY INJURY OR OFFENSIVE TOUCHING.

Simple battery is a misdemeanor. A battery can be, but NEED NOT BE intentional, and the force need not be applied directly (e.g., causing a dog to attack the victim is a battery). Some jurisdictions recognize consent as a defense to simple battery and/or certain specified batteries.

Front 135

Aggravated Battery

Back 135

Most jurisdictions treat the following as aggravated batteries and punish them as felonies:

1. Battery with a deadly weapon;
2. Battery resulting in serious bodily harm; and
3. Battery of a child, woman, or police officer.

Front 136

Assault

Back 136

Assault is EITHER:
1. An ATTEMPT TO COMMIT A BATTERY; or
2. The INTENTIONAL CREATION—other than by mere words—OF A REASONABLE APPREHENSION in the mind of the victim of IMMINENT BODILY HARM. If there has been an actual touching of the victim, the crime can only be battery, not assault.

Front 137

Aggravated Assault

Back 137

Aggravated assault (e.g., with a deadly weapon or with intent to rape or maim) is treated more severely than simple assault.

Front 138

Exam Tip

Back 138

Think of assault as two separate crimes:
1. Attempted battery assault—a SPECIFIC INTENT crime (i.e., defendant must intend to commit a battery), and
2. Creation of reasonable apprehension assault.

Be sure to consider both types of assault in answering a question, because one may apply even though the other does not. For example, if D stops V at knifepoint and demands V’s money, D has committed creation of reasonable apprehension assault but NOT attempted battery assault. You would not want to decide that D is not guilty of assault because you thought only about attempted battery assault.

Front 139

Mayhem

Back 139

At common law, the felony of mayhem required either dismemberment or disablement of a bodily part. The trend is to abolish mayhem as a separate offense and to treat it instead as a form of aggravated battery.

Front 140

Common Law Criminal Homicides

Back 140

At common law, criminal homicide is divided into three categories:
1. Murder
2. Voluntary Manslaughter
3. Involuntary Manslaughter.

Front 141

Common Law Criminal Homicides: Murder

Back 141

Murder is the unlawful killing of a human being with MALICE AFORETHOUGHT. Malice aforethought exists if there are no facts reducing the killing to voluntary manslaughter or excusing it (i.e., giving rise to a defense) and it was committed with one of the following states of mind:
1. Intent TO KILL;
2. Intent TO INFLICT GREAT BODILY INJURY;
3. RECKLESS INDIFFERENCE TO AN UNJUSTIFIABLY HIGH RISK TO HUMAN LIFE (“abandoned and malignant heart”); or
4. Intent to COMMIT A FELONY (felony murder).

Intentional use of a deadly weapon authorizes a permissive inference of intent to kill.

Front 142

Exam Tip

Back 142

If a defendant killed with one of the states of mind above, he is guilty of murder; if he did not, he is not guilty of murder (although he could be guilty of other crimes). Thus, even where the facts go out of their way to paint the defendant as a despicable human being, you cannot convict him of murder when some element of murder is missing. More troublesome is the mercy killing case. If defendant intends to kill, even as an act of love, he IS guilty of murder.

Front 143

Common Law Criminal Homicides: Voluntary Manslaughter

Back 143

Voluntary manslaughter is a killing that would be MURDER BUT FOR THE EXISTENCE OF ADEQUATE PROVOCATION.

Provocation is adequate ONLY IF:
1. It was a provocation that would arouse SUDDEN AND INTENSE PASSION in the mind of an ordinary person, causing him to lose self-control (e.g., exposure to a THREAT OF DEADLY FORCE or finding your SPOUSE IN BED WITH ANOTHER is adequate);
2. The defendant was IN FACT PROVOKED;
3. There was NOT SUFFICIENT TIME between provocation (or provocations) and killing for passions of a reasonable person to cool; and
4. The defendant IN FACT DID NOT COOL OFF between the provocation and the killing.

Front 144

Exam Tip

Back 144

The adequacy of provocation is a key issue in homicide questions. Be sure to consider carefully the four factors for adequate provocation and not just jump to the conclusion that there was adequate provocation because you see some signs of provocation in the fact pattern. Also note the interplay between the reasonable person standard and what actually happened to defendant. Consider:

1. SUDDEN AND INTENSE PASSION that would cause a REASONABLE PERSON to lose control—passion must be reasonable under the circumstances; defendant cannot have been set off by something that would not bother most others.
2. DEFENDANT LOST CONTROL—even if a reasonable person would have been provoked, if defendant was not, there is no reduction to manslaughter.
3. NOT ENOUGH TIME for REASONABLE PERSON to cool off—this is tricky because it is hard to say how much time is needed to cool off; a lot depends on this situation, but the more time that has passed, the more likely it is that a reasonable person would have cooled off.
4.

Front 145

Exam Tip

Back 145

Remember that “heat of passion” is no defense to a killing, although it may REDUCE the killing from murder to manslaughter. Often a question will set up facts showing sufficient provocation and then ask about a defendant’s criminal liability. Don’t be fooled by a choice “Not guilty, because defendant acted in the heat of passion.” The correct choice will be something like “Guilty of manslaughter, but not murder, because defendant acted in the heat of passion.”

Front 146

Common Law Criminal Homicides: Voluntary Manslaughter: Imperfect Self-Defense

Back 146

Some states recognize an “imperfect self-defense” doctrine under which murder may be reduced to manslaughter even though:
1. The defendant was at fault in starting the altercation; or
2. Defendant UNREASONABLY but honestly believed in the necessity of responding with deadly force (i.e., defendant’s actions do not qualify for self-defense).

Front 147

Common Law Criminal Homicides: Involuntary Manslaughter

Back 147

A killing is involuntary manslaughter if it was committed WITH CRIMINAL NEGLIGENCE (or by “recklessness” under the MPC) or, in some states, DURING THE COMMISSION OF AN UNLAWFUL ACT (misdemeanor or felony not included within felony murder rule). Foreseeability of death also may be a requirement.

Front 148

Exam Tip

Back 148

Some questions refer specifically to the type of manslaughter (voluntary or involuntary), while others just say “manslaughter.” If the question does NOT SPECIFY the type, be sure to consider BOTH, although on the MBE voluntary manslaughter is more often involved.

Front 149

Homicide: Statutory Modification of Common Law Classification

Back 149

In some jurisdictions, murder is divided into degrees by statute. A murder will be second degree murder unless it comes under the following circumstances, which would make it first degree murder:
1. Deliberate and Premeditated
2. First Degree Felony Murder
3. Others (some statutes make killings performed in certain ways (e.g., by torture) first degree murder.)

Front 150

Homicide: Statutory Modification of Common Law Classification: Deliberate and Premeditated

Back 150

If defendant made the decision to kill in a cool and dispassionate manner and actually reflected on the idea of killing, even if only for a very brief period, it is first degree murder.

Front 151

Exam Tip

Back 151

First degree murder based on premeditation requires a specific intent, which may be negated by the defense of VOLUNTARY INTOXICATION. If the defendant was so intoxicated that he was unable to premeditate, he can be convicted only of second degree or common law murder, which requires only reckless indifference to human life (and for which voluntary intoxication is NOT a defense).

Front 152

Homicide: Statutory Modification of Common Law Classification: First Degree Felony Murder

Back 152

In many states, a killing committed during the commission of AN ENUMERATED felony is felony murder and called first degree murder. The felonies most commonly listed are burglary, arson, rape, robbery, and kidnapping, but other felonies that are inherently dangerous to human life are often specifically added. Another statute (or case) may provide that a killing during ANY felony is felony murder, but the killing will typically be classified as second degree murder. Some other states do not list the felonies that may be used for felony murder AT ALL, and the first degree murder classification is most often attached. Some states require that the felony be inherently dangerous or the felony be dangerous to human life as committed when it provides for felony murder liability based on the commission of a felony that is not enumerated.

Front 153

Felony Murder

Back 153

Any death caused in the COMMISSION OF, OR IN AN ATTEMPT TO COMMIT, A FELONY is murder. Malice is implied from the intent to commit the underlying felony.

Front 154

Felony Murder: Felonies Included

Back 154

At common law, there are only a handful of felonies (e.g., burglary, arson, rape, sodomy, etc.) Statutes today have created many more felonies.

Front 155

Felony Murder: Limitations on Liability

Back 155

There are several limitations on this rule:
1. The DEFENDANT MUST HAVE COMMITTED OR ATTEMPTED TO COMMIT the underlying felony; a defense that negates an element of the underlying offense will also be a defense to felony murder.
2. The FELONY MUST BE DISTINCT from the killing itself (e.g., commission of aggravated battery that causes a victim’s death does not qualify as an underlying felony for felony murder liability).
3. DEATH MUST HAVE BEEN A FORESEEABLE RESULT of the felony (a minority of courts require only that the felony be malum in se).
4. The DEATH MUST HAVE BEEN CAUSED BEFORE THE DEFENDANT’S “IMMEDIATE FLIGHT” from the felony ended; once the felon has reached a place of “temporary safety,” subsequent deaths are not felony murder.
5. In most jurisdictions, the defendant is NOT liable for felony murder when a CO-FELON is killed as a result of resistance from the felony victim or the police.
6. Under the “PROXIMATE CAUSE” THEORY followed in most states, felons are liable for the deaths of innocen

Front 156

Felony Murder: Misdemeanor Manslaughter

Back 156

Note that there are similar limitations on misdemeanor manslaughter. Generally, the misdemeanor must be “malum in se,” or, if the misdemeanor involved is not malum in se, the death must have been a foreseeable result of the commission of the misdemeanor.

Front 157

Homicide: Causation

Back 157

The defendant’s conduct must be both the cause-in-fact and the proximate cause of the victim’s death.

Front 158

Homicide: Causation: Cause-in-Fact

Back 158

A defendant’s conduct is the cause-in-fact of the result if the result would not have occurred “BUT FOR” the defendant’s conduct.

Front 159

Homicide: Causation: Proximate Causation

Back 159

A defendant’s conduct is the proximate cause of the result if the result is A NATURAL AND PROBABLE CONSEQUENCE of the conduct, even if the defendant did not anticipate the precise manner in which the result occurred. Superseding factors break the chain of proximate causation.

Front 160

Homicide: Causation: Rules of Causation

Back 160

An act that HASTENS AN INEVITABLE RESULT is still the legal cause of that result. Also, SIMULTANEOUS ACTS of two or more persons may be idependently sufficient causes of a single result. A victim’s preexisting weakness or fragility, even if unforeseeable, does not break the chain of causation.

Front 161

Homicide: Causation: Limitations: Year and a Day Rule

Back 161

Traditionally, for a defendant to be liable for homicide, the death of the victim must occur within one year and one day from infliction of the injury or wound. Most states that have recently reviewed this rule have abolished it.

Front 162

Homicide: Causation: Limitations: Intervening Acts

Back 162

Generally, an intervening act shields the defendant from liability if the act is a coincidence or is outside the foreseeable sphere of risk created by the defendant. Note that a third party’s negligent medical care and the victim’s refusal of medical treatment for religious reasons are both foreseeable risks, so the defendant would be liable.

Front 163

False Imprisonment

Back 163

False imprisonment consists of the UNLAWFUL CONFINEMENT of a person WITHOUT HIS VALID CONSENT. The MPC requires that the confinement must “INTERFERE SUBSTANTIALLY” with the victim’s liberty. It is not confinement to simply prevent a person from going where she desires to go, as long as alternative routes are available to her. Note also that consent is invalidated by coercion, threats, deception, or incapacity due to mental illness, substantial cognitive impairment, or youth.

Front 164

Kidnapping

Back 164

Modern statutes often define kidnapping as unlawful confinement of a person that involves either:
1. Some MOVEMENT of the victim, or
2. CONCEALMENT of the victim in a “secret” place.

Front 165

Aggravated Kipnapping

Back 165

Aggravated kidnapping includes kidnapping for ransom, kidnapping for the purpose of committing other crimes, kidnapping for offensive purposes, and child stealing (the consent of a child to her detention or movement is not of importance because a child is incapable of giving valid consent.

Front 166

Rape

Back 166

Traditionally, rape was the unlawful carnal knowledge of a woman by a man, not her husband, without her effective consent. Today a number of state statutes have renamed “rape” as gender-neutral “sexual assault.” The slightest penetration is sufficient.

Front 167

Rape: Absence of Marital Relationship

Back 167

Under the traditional rule and the MPC, a husband cannot rape his wife, but most states today either reject this rule entirely or reject it where the parties are estranged or separated.

Front 168

Rape: Lack of Effective Consent

Back 168

To be rape, the intercourse must be without effective consent. Lack of effective consent exists where:

1. Intercourse is accomplished by ACTUAL FORCE;
2. Intercourse is accomplished by THREATS OF GIANT AND IMMEDIATE BODILY HARM;
3. The victim is INCAPABLE OF CONSENTING due to unconscious, intoxication, or mental condition; or
4. The victim is FRAUDULENTLY CAUSED TO BELIEVE THAT THE ACT IS NOT INTERCOURSE.

Note that consent due to other types of fraud (e.g., perpetrator persuading victim that he is her husband or that he will marry her) IS effective.

Front 169

Statutory Rape

Back 169

This is carnal knowledge of a person under the agent consent; it is not necessary to show lack of consent.

Front 170

Statutory Rape: Mistake as to Age

Back 170

Will a defendant’s reasonable mistake as to the victim’s age prevent liability for statutory rape? For purposes of the examination, the best answer is no, since statutory rape is a STRICT LIABILITY CRIME. A second best answer, to be used only if no alternative making use of the best position is presented, is that a reasonable mistake as to age will prevent conviction if the defendant reasonably believed the victim was old enough to give an effective.

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Adultery and Fornication

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Adultery is committed by both parties to sexual intercourse if either is validly married to someone else. It is often required that the behavior be open and notorious. Fornication is sexual intercourse or open and notorious cohabitation by unmarried persons.

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Incest

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Incest consists of marriage or a sexual act between closely related persons.

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Seduction

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Seduction consists inducing, by promise of marriage, an unmarried woman to engage in intercourse. The MPC does not require chastity or that the female be unmarried.

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Bigamy

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Bigamy is the common law strict liability offense of marrying someone while having another living spouse.

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Larceny

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Larceny consists of:

1. A TAKING (obtaining control);
2. AND CARRING AWAY (asportation);
3. OF TANGIBLE PERSONAL PROPERTY (excluding realty, services, and intangibles, but including written instruments embodying intangible rights such as stock certificates);
4. OF ANOTHER with possession;
5. BY TRESPASS (without consent or by consent induced by fraud);
6. WITH INTENT TO PERMANENTLY DEPRIVE that person of her interest in the property.

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Larceny: Possession

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The property must be taken from the custody or possession OF ANOTHER. If the DEFENDANT had possession of the property at the time of the taking, the crime is not larceny, but may be embezzlement.

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Larceny: Custody vs. Possession

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Possession involves a greater scope of authority to deal with the property than does custody. Ordinarily, low level employees have only custody of an employer’s property and so are guilty of larceny for taking it. A bailee, on the other hand, has a greater scope of authority over an owner’s property and so is not guilty of larceny for taking it, but may be guilty of embezzlement.

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Larceny: Intent to Permanently Deprive

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Generally, larceny requires that AT THE TIME OF THE TAKING defendant intended to permanently deprive a person of her property.

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Larceny: Intent to Permanently Deprive: Sufficient Intent

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An intent to create a substantial risk of loss, or an intent to sell or pledge the goods to the owner, is sufficient for larceny.

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Larceny: Intent to Permanently Deprive: Insufficient Intent

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Where the defendant believes that the property she is taking is hers or where she intends only to borrow the property or to keep it as repayment of a debt, there is no larceny.

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Larceny: Intent to Permanently Deprive: Possibly Sufficient Intent

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There MAY BE larceny where the defendant intends to pay for the goods (IF the goods were not for sale) or intends to collect a reward from the owner (IF there is no intent to return the goods absent a reward).

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Exam Tip

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For a larceny question, be sure that the defendant had the intent to permanently deprive WHEN SHE TOOK THE PROPERTY. If not, there is no larceny (unless it is a continuing trespass situation).

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Larceny: Abandoned, Lost, or Mislaid Property

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Larceny can be committed with lost or mislaid property or property that has been delivered by mistake, but not with abandoned property.

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Larceny: “Continuing Trespass” Situation

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If the defendant WRONGFULLY take property WITHOUT the intent to permanently deprive (e.g., without permission borrows an umbrella), and later decides to keep the property, she is guilty of larceny when she decides to keep it. However, if the original taking was NOT WRONGFUL (e.g., she took the unmbrella thinking it was hers) and she later decides to keep it, it is not larceny.

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Embezzlement

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Embezzlement is:

1. The FRAUDULENT;
2. CONVERSION (i.e., dealing with the property in a manner inconsistent with the arrangement by which defendant has possession);
3. Of PERSONAL PROPERTY;
4. Of ANOTHER;
5. By a person IN LAWFUL POSSESSION of that property

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Embezzlement: Distinguish from Larceny

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Embezzlement differs from larceny because in embezzlement the defendant misappropriates property while it is in his rightful possession, while in larceny the defendant misappropriates property not in his possession.

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Embezzlement: Fraudulent Intent

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Defendant must intend to defraud

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Embezzlement: Fraudulent Intent: Intent to Restore

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If the defendant intends to restore the EXACT property taken, it is NOT embezzlement. However, if the defendant intends to restore similar or substantially identical property, it is embezzlement, even if it was money that was initially taken and other money—of identical value—that he intended to return.

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Embezzlement: Fraudulent Intent: Claim of Right

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As in larceny, embezzlement is not committed if the conversion is pursuant to a claim of right to the property. Whether the defendant took the property openly is an important factor.

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False Pretenses

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The offense of false pretenses is:
1. Obtaining TITLE;
2. To PERSONAL PROPERTY OF ANOTHER;
3. By an INTENTIONAL FALSE STATEMENT of a past or existing fact;
4. With INTENT TO DEFRAUD the other.

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False Pretenses: “Larceny by Trick” Distinguished

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If the victim is tricked—by a misrepresentation of face—into giving up mere CUSTODY of property, the crime is larceny by trick. If the victim is tricked into giving up TITLE to property, the crime is false pretenses.

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False Pretenses: The Misrepresentation Required

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The victim must actually be deceived by, or act in reliance on, the misrepresentation, and this must be a major factor (or the sole cause) of the victim passing title to the defendant. Traditionally, the defendant’s misrepresentation must have related to a past or present fact, and false promises to do something in the future, even without the present intent to perform, werenot sufficient. However, under the MPC, any false representation suffices, including a false promise to perform.

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False Pretenses: Intent to Defraud

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Depending on the statute involved, the defendant must either have known the statement to be false or have intended that the victim rely on the misrepresentation. Most states will find that the defendant “knew” of the falsity of any statements when, after being put on notice of the high probability of the statement’s falsity, he deliberately avoided learning the truth.

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Robbery

Back 194

Robbery consists of:

1. A TAKING;
2. Of PERSONAL PROPERTY OF ANOTHER;
3. FROM THE OTHER’S PERSON OR PRESENCE (including anywhere in his vicinity);
4. BY FORCE OR THREATS OF IMMEDIATE DEATH OR PHYSICAL INJURY to the victim, a member of his family, or some person in the victim’s presence;
5. With the INTENT TO PERMANENTLY DERPIVE him of it.

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Exam Tip

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For a defendant to be guilty of robbery, the victim must give up her property because she feels threatened. If she gives up her property for another reason (e.g., she feels sorry for the defendant, or she wants the defendant to go away), the defendant will not be guilty of robbery. He may, however, be guilty of attempted robbery.

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Robbery: Distinguish Larceny

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Robbery differs from larceny because robbery requires that the defendant use FORCE THREATS to obtain or retain the victim’s property. Thus, pickpocketing generally would be larceny, but if the victim notices the attempt and resists, the taking would be robbery.

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Extortion

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Common law extortion consists of the corrupt collection of an unlawful fee by an officer under color of office. Under modern statutes, extortion (blackmail) often consists of obtaining property BY MEANS OF THERATS to do harm or expose information. Under some statutes, the crime is complete when threats are made with the intent to obtain property; i.e., the property need not be obtained.

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Extortion: Distinguish Robbery

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Extortion differs from robbery because in extortion the threats may be of future harm and the taking does not have to be in the presence of the victim.

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Receipt of Stolen Property

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Receipt of stolen property consists of:

1. Receiving POSSESSION AND CONTROL;
2. Of “STOLEN” PERSONAL PROPERTY;
3. KNOWN to have been obtained in a manner constituting a criminal offense;
4. BY ANOTHER PERSON;
5. With the INTENT TO PERMANENTLY DEPRIVE the owner of his interest in it.

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Receipt of Stolen Property: “Possession”

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Manual possession is not necessary. The defendant possesses the property when it is put in a location designated by her or she arranges a sale for the thief to a third person (i.e., fencing).

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Receipt of Stolen Property: “Stolen” Property

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The property must be stolen property AT THE TIME THE DEFNDANT RECEIVES IT.

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Exam Tip

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In analyzing receipt of stolen property questions, carefully check the property’s status at the time defendant receives it. If the police have already recovered the property and use it WITH THE OWNER’S PERMISSION, it is no longer stolen, and the defendant cannot be convicted of receipt of stolen property. Note, however, that the defendant CAN be convicted of ATTEMPTED receipt of stolen property if she intended to receive the property while believing it to be stolen.

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Theft

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Under many modern statutes and the MPC, some or all of the above property offenses are combined and defined as the crime of “theft”

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Forgery

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Forgery consists of the following:

1. MAKING OR ALTERING (by drafting, adding, or deleting);
2. A WRITING with apparent legal significance (e.g., a contract, not a painting);
3. So that it is FALSE; i.e., representing that it is something that it is not, not merely containing a misrepresentation (e.g., a FAKE warehouse receipt, but not an INACCURATE real warehouse receipt);
4. With INTENT TO DEFRAUD (although no one need actually have been defrauded).

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Forgery: Fraudulently Obtaining Signature of Another.

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If the defendant fraudulently causes a third person to sign a document that the third person does not realize he is signing, forgery has been committed. But if the third person realizes that he is signing the document, forgery has not been committed even if the third person was induced by fraud to sign it.

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Uttering a Forged Instrument

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Uttering a forged instrument consists of:
1. OFFERING AS GENUINE;
2. An INSTRUMENT that may be the subject of forgery and is FALSE;
3. With INTENT TO DEFRAUD.

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Malicious Mischief

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Malicious Mischief consists of:
1. The MALICIOUS;
2. DESTRUCTION of or damage to;
3. The PROPERTY OF ANOTHER.

Malice requires no ill will or hatred. It does, however, require that the damage or destruction have been INTENDED OR CONTEMPLATED by the defendant.

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Burglary

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Common law burglary consists of:
1. A BREAKING (creating or enlarging an opening by at least minimal force, fraud, or intimidation; if defendant had the resident’s consent to enter, the entry is not a breaking);
2. And ENTRY (placing any portion of the body or any instrument used to commit the crime into the structure);
3. OF A DWELLING (a structure used with regularity for sleeping purposes, even if used for other purposes such as conducting a business);
4. OF ANOTHER (ownership is irrelevant; occupancy by someone other than the defendant is all that is required);
5. AT NIGHTTIME;
6. WITH THE INTENT TO COMMIT A FELONY IN THE STRUCTURE (felony need not be carried out to constitute burglary).

Modern statutes often eliminate many of the “technicalities” of common law burglary, including the requirements of a breaking, that the structure be a dwelling, that the act occur at nighttime, and that the intent be to commit a felony (i.e., intent to commit misdemeanor theft is often enough).

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Exam Tip

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The intent to commit a felony within must be present AT THE TIME OF ENTRY; a later-acquired intent is not sufficient. This technicality is tested; remember it.

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Arson

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Arson at common law consists of:
1. The MALICIOUS (i.e., intentional or with reckless disregard of an obvious risk);
2. BURNING (requiring some damage to the structure caused by fire);
3. OF THE DWELLING;
4. OF ANOTHER.

Like statutory changes for burglary, modern arson statutes (including the MPC) have modified like the common law rules, usually to expand potential criminal liability. Most states have expanded the definition of arson to include damage caused by explosion, and expanded the types of property that may be destroyed to include commercial structures, cars, trains, etc.

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Exam Tip

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Although common law arson requires a burning of a DWELLING, MBE questions testing on other arson issues often assume, without specifically saying, that arson extends to structures other than dwellings. Many statutes so provide.

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Arson: Damage Required

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Destruction of the structure, or even significant damage to it, is not required to complete the crime of arson. Mere blackening b
Like statutory changes for burglary, modern arson statutes (including the MPC) have modified like the common law rules, usually to expand potential criminal liability. Most states have expanded the definition of arson to include damage caused by explosion, and expanded the types of property that may be destroyed to include commercial structures, cars, trains, etc.

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Exam Tip

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Although common law arson requires a burning of a DWELLING, MBE questions testing on other arson issues often assume, without specifically saying, that arson extends to structures other than dwellings. Many statutes so provide.

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Arson: Damage Required

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Destruction of the structure, or even significant damage to it, is not required to complete the crime of arson. Mere blackening by smoke or discoloration by heat (scorching) is not sufficient, but mere CHARRING IS SUFFICIENT.

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Arson: Related Offense—Houseburning

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The common law misdemeanor of houseburning consisted of:
1. The malicious,
2. Burning;
3. Of one’s own dwelling;
4. If the structure is situated either in a city or town, or so near to other houses as to create danger to them.

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Perjury

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Perjury is the INTENTIONAL taking of a false oath (lying) in regard to a MATERIAL MATTER (i.e., one that might affect the outcome of the proceeding) in a judicial proceeding.

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Subornation of Perjury

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Subornation of perjury consists of PROCURING OR INDUCING another to commit perjury

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Bribery

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Bribery at common law, was the corrupt payment or receipt of anything of value for official action. Under modern statutes, it may be extended to nonpublic officials, and either the offering of a bribe, or the taking of a bribe may constitute the crime.

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Compounding a Crime

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Compounding consist of agreeing, for valuable consideration, not to prosecute another for a felony or to conceal the commission of a felony or the whereabouts of a felon. Under modern statutes, the definition refers to any crime.

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Misprision of a Felony

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At common law, misprision a felony consisted of the failure to disclose knowledge of the commission of a felony or to prevent the commission of a felony. Under modern statutes, misprision is no longer a crime, or if it remains a crime, it requires some affirmative action in aid of the felon.