Criminal Law BARBRI
Criminal Law BARBRI
Criminal Law BARBRI
CRIMINAL LAW i.
CRIMINAL LAW
TABLE OF CONTENTS
5.
Effect of Repeal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
a. Saving Provision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
H. MERGER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
1. Common Law Rule . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
a. Merger of Misdemeanor into Felony . . . . . . . . . . . . . . . . . . . . . 6
b. No Merger Among Offenses of Same Degree . . . . . . . . . . . . . . . . . 6
2. Modern Rule . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
a. “Merger” of Solicitation or Attempt into Completed Crime . . . . . . . . 6
1) “Merger” of More than One Inchoate Crime . . . . . . . . . . . . . 7
b. “Merger” of Lesser Included Offenses into Greater Offenses . . . . . . . 7
3. Developing Rules Against Multiple Convictions for Parts of Same
“Transaction” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
a. No Double Jeopardy If Statute Provides Multiple Punishments for Single
Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
2) Multiple Crimes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
3) Number of Conspiracies in Multiple Party Situations . . . . . . . . 22
a) “Chain” Relationship—One Large Conspiracy . . . . . . . . . 22
b) “Hub-and-Spoke” Relationships—Multiple Conspiracies . . . 22
4) Requirement of Two or More Parties . . . . . . . . . . . . . . . . . 23
a) Modern Trend—“Unilateral” Approach . . . . . . . . . . . . . 23
b) Traditional Rule—“Bilateral” Approach . . . . . . . . . . . . 23
(1) Husband and Wife . . . . . . . . . . . . . . . . . . . . . . 23
(2) Corporation and Agent . . . . . . . . . . . . . . . . . . . . 23
c) Wharton-Type Problems . . . . . . . . . . . . . . . . . . . . . 24
(1) Wharton Rule . . . . . . . . . . . . . . . . . . . . . . . . 24
(2) Agreement with Person in “Protected Class” . . . . . . . 24
d) Effect of Acquittal of Other Conspirators . . . . . . . . . . . . 25
b. Mental State—Specific Intent . . . . . . . . . . . . . . . . . . . . . . . . 25
1) Intent to Agree . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
2) Intent to Achieve Objective . . . . . . . . . . . . . . . . . . . . . . . 25
3) Intent to Facilitate a Conspiracy . . . . . . . . . . . . . . . . . . . . 25
4) “Corrupt Motive” Not Required . . . . . . . . . . . . . . . . . . . . 25
5) Conspiracy to Commit “Strict Liability” Crimes . . . . . . . . . . . 26
c. Overt Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
1) Attempt Distinguished . . . . . . . . . . . . . . . . . . . . . . . . . 26
2. Termination of Conspiracy . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
a. Acts of Concealment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
b. Government Frustration of Conspiracy’s Objective . . . . . . . . . . . . 27
3. Liability of One Conspirator for Crimes Committed by Other Conspirators 27
4. Defenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
a. Factual Impossibility Is No Defense . . . . . . . . . . . . . . . . . . . . . 27
b. Withdrawal Is No Defense . . . . . . . . . . . . . . . . . . . . . . . . . . 27
1) Defense to Subsequent Crimes of Co-Conspirators . . . . . . . . . . 27
5. No Merger—Conviction for Conspiracy and Substantive Crime . . . . . . . 28
6. State Codifications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
7. Punishment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
D. ATTEMPT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
1. Intent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
a. Attempt Requires Specific Intent . . . . . . . . . . . . . . . . . . . . . . 28
b. Attempt to Commit Crimes Requiring Recklessness or Negligence Is
Logically Impossible . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
c. Attempt to Commit Strict Liability Crimes Requires Intent . . . . . . . 29
2. Overt Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
a. Traditional Rule—Proximity Test . . . . . . . . . . . . . . . . . . . . . 29
b. Majority Rule—Model Penal Code Test . . . . . . . . . . . . . . . . . . 29
3. Defenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
a. Impossibility of Success . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
1) Legal Impossibility Is a Defense . . . . . . . . . . . . . . . . . . . . 29
a) Effect of Statute or Case Abolishing Impossibility Defenses . . 30
2) Factual Impossibility Is No Defense . . . . . . . . . . . . . . . . . . 30
a) Includes Impossibility Due to Attendant Circumstances . . . . 30
3) Distinguishing Between Factual and Legal Impossibility . . . . . . 31
CRIMINAL LAW v.
b. Abandonment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
4. Prosecution for Attempt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
5. Punishment for Attempt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
3. Relationship to Insanity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
C. INFANCY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
1. Common Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
a. Under Seven—No Criminal Liability . . . . . . . . . . . . . . . . . . . . 37
b. Under Fourteen—Rebuttable Presumption of No Criminal Liability . . 37
c. Over Fourteen—Adult . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
2. Modern Statutes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
a. Some Have Abolished Presumptions . . . . . . . . . . . . . . . . . . . . 37
b. Juvenile Delinquency . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
C. OTHER DEFENSES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
1. Mistake or Ignorance of Fact . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
a. Mistake Must Negate State of Mind . . . . . . . . . . . . . . . . . . . . . 43
b. Requirement that Mistake Be Reasonable . . . . . . . . . . . . . . . . . 43
1) Malice and General Intent Crimes—Reasonableness Required . . 43
2) Specific Intent Crimes—Reasonableness Not Required . . . . . . . 43
c. Strict Liability Crimes—Mistake No Defense . . . . . . . . . . . . . . . 43
2. Mistake or Ignorance of Law . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
a. General Rule—No Defense . . . . . . . . . . . . . . . . . . . . . . . . . 43
b. Mistake or Ignorance of Law May Negate Intent . . . . . . . . . . . . . 44
c. Exceptions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
1) Statute Not Reasonably Available . . . . . . . . . . . . . . . . . . . 44
2) Reasonable Reliance on Statute or Judicial Decision . . . . . . . . . 44
3) Reasonable Reliance on Official Interpretation or Advice . . . . . . 44
4) Compare—Reasonable Reliance on Advice of Private Counsel . . . 44
3. Consent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
a. May Negate Element of Offense . . . . . . . . . . . . . . . . . . . . . . 45
b. Requirements of Consent as Defense . . . . . . . . . . . . . . . . . . . . 45
4. Condonation by Injured Party No Defense . . . . . . . . . . . . . . . . . . . 45
5. Criminality of Victim No Defense . . . . . . . . . . . . . . . . . . . . . . . . 45
6. Entrapment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
a. Offering Opportunity to Commit Crime Distinguished . . . . . . . . . . 46
b. Inapplicable to Private Inducements . . . . . . . . . . . . . . . . . . . . 46
c. Availability If Offense Denied . . . . . . . . . . . . . . . . . . . . . . . . 46
d. Practical Difficulties of Entrapment . . . . . . . . . . . . . . . . . . . . 46
e. Minority Rule—Objective Test . . . . . . . . . . . . . . . . . . . . . . . 46
f. Provision of Material for Crime by Government Agent Not Entrapment 46
b.Voluntary Manslaughter . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
1) Elements of Adequate Provocation . . . . . . . . . . . . . . . . . . . 49
2) When Provocation Is Adequate . . . . . . . . . . . . . . . . . . . . 50
3) Provocation Inadequate as a Matter of Law . . . . . . . . . . . . . . 50
4) Imperfect Self-Defense . . . . . . . . . . . . . . . . . . . . . . . . . 50
c. Involuntary Manslaughter . . . . . . . . . . . . . . . . . . . . . . . . . . 50
1) Criminal Negligence . . . . . . . . . . . . . . . . . . . . . . . . . . 50
2) “Unlawful Act” Manslaughter . . . . . . . . . . . . . . . . . . . . . 50
a) “Misdemeanor-Manslaughter” Rule . . . . . . . . . . . . . . . 50
b) Felonies Not Included in Felony Murder . . . . . . . . . . . . . 51
3. Statutory Modification of Common Law Classification . . . . . . . . . . . . 51
a. Deliberate and Premeditated Killing . . . . . . . . . . . . . . . . . . . . 51
b. First Degree Felony Murder . . . . . . . . . . . . . . . . . . . . . . . . . 51
1) Second Degree Felony Murder . . . . . . . . . . . . . . . . . . . . . 51
2) Other State Variations . . . . . . . . . . . . . . . . . . . . . . . . . 51
c. Others . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
4. Felony Murder (and Related Matters) . . . . . . . . . . . . . . . . . . . . . . 51
a. What Felonies Are Included? . . . . . . . . . . . . . . . . . . . . . . . . 52
b. Scope of the Doctrine . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
c. Limitations on Liability . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
1) Commission of Underlying Felony . . . . . . . . . . . . . . . . . . . 52
2) Felony Must Be Independent of Killing . . . . . . . . . . . . . . . . 52
3) Foreseeability of Death . . . . . . . . . . . . . . . . . . . . . . . . . 52
4) During the Commission of a Felony—Termination of Felony . . . . 52
5) Killing of Co-Felon by Victims of Felonies or Pursuing Police
Officers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
a) Compare—Killing of Innocent Party by Victim or Police . . . 53
d. Related Limits on Misdemeanor Manslaughter . . . . . . . . . . . . . . 53
5. Causation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
a. General Requirement—Must Be Cause-in-Fact and Proximate Cause . . 53
1) Cause-in-Fact . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
2) Common Law Requirement—“Year and a Day” Rule . . . . . . . . 53
3) “Proximate” Causation . . . . . . . . . . . . . . . . . . . . . . . . . 54
a) All “Natural and Probable” Results Are Proximately Caused . 54
b. Rules of Causation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
1) Hastening Inevitable Result . . . . . . . . . . . . . . . . . . . . . . 54
2) Simultaneous Acts . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
3) Preexisting Condition . . . . . . . . . . . . . . . . . . . . . . . . . . 54
c. Intervening Acts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
6. Born Alive Rule . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
7. Summary—Analytical Approach . . . . . . . . . . . . . . . . . . . . . . . . 55
D. FALSE IMPRISONMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
1. Confinement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
2. “Unlawfulness” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
3. Lack of Consent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
E. KIDNAPPING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
1. General Pattern . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
2. Aggravated Kidnapping . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
CRIMINAL LAW ix.
d. Joint Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
e. Lost, Mislaid, and Abandoned Property . . . . . . . . . . . . . . . . . . 63
3. Taking . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
a. Destruction or Movement Is Not Sufficient . . . . . . . . . . . . . . . . . 63
b. Sufficient If Caused to Occur by Innocent Agent . . . . . . . . . . . . . 63
4. Asportation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
5. Taking Must Be “Trespassory” . . . . . . . . . . . . . . . . . . . . . . . . . . 64
a. Taking by Consent Induced by Misrepresentations—“Larceny by
Trick” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
6. State of Mind Required—Intent to Permanently Deprive . . . . . . . . . . . 64
a. Sufficient Intent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
1) Intent to Create Substantial Risk of Loss . . . . . . . . . . . . . . . 64
2) Intent to Pledge Goods or Sell Them to Owner . . . . . . . . . . . . 64
b. Insufficient Intent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
1) Intent to Borrow . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
2) Intent to Obtain Repayment of Debt . . . . . . . . . . . . . . . . . . 64
c. Possibly Sufficient . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
1) Intent to Pay for Property . . . . . . . . . . . . . . . . . . . . . . . 64
2) Intent to Claim Reward . . . . . . . . . . . . . . . . . . . . . . . . . 64
7. Specialized Application of Larceny Doctrine . . . . . . . . . . . . . . . . . . 65
a. Abandoned or Lost Property . . . . . . . . . . . . . . . . . . . . . . . . 65
b. Misdelivered Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
c. “Container” Situations . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
1) Issue Is Whether Defendant Already Has Possession . . . . . . . . . 65
2) Larceny May Depend on Whether Parties Intended to Transfer
Container . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
d. “Continuing Trespass” Situations . . . . . . . . . . . . . . . . . . . . . . 66
B. EMBEZZLEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
1. Distinguished from Larceny . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
a. Manner of Obtaining Property . . . . . . . . . . . . . . . . . . . . . . . 66
b. Manner of Misappropriation . . . . . . . . . . . . . . . . . . . . . . . . 67
2. Conversion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
3. Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
4. Requirement that Property Be that “Of Another” . . . . . . . . . . . . . . . 67
5. Fraudulent Intent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
a. Intent to Restore . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
b. Claim of Right . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
6. Necessity for Demand for Return . . . . . . . . . . . . . . . . . . . . . . . . 68
7. Limitation to Property Entrusted . . . . . . . . . . . . . . . . . . . . . . . . 68
C. FALSE PRETENSES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
1. “Larceny by Trick” Distinguished . . . . . . . . . . . . . . . . . . . . . . . . 68
2. Misrepresentation Required . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
a. False Representation Concerning Matter of Fact . . . . . . . . . . . . . 68
b. Misrepresentation of Past or Existing Fact . . . . . . . . . . . . . . . . 69
3. Requirement that Representation Be the “Cause” of Obtaining Property . . 69
4. State of Mind Required . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
5. Related Crimes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
a. Bad Check Legislation . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
CRIMINAL LAW xi.
CRIMINAL LAW
The Multistate Examination directs examinees to answer questions according to “the generally
accepted view” unless otherwise noted. In Criminal Law, the examiners may tell you the law to apply
if there is no prevailing view. For example:
(i) The call of a question might tell you that the common law applies or that the state follows the
Model Penal Code (“M.P.C.”) approach; hence, you should be familiar with both the common law
rules and the important M.P.C. distinctions discussed in this outline.
(ii) A fact pattern may also include a statute that you are to apply to the facts; the outline discusses
typical statutes on a variety of chapters that may be the subject of examination questions.
(iii) Finally, a question might reference a well-known legal doctrine (e.g., the Wharton rule or the
M’Naghten test); you should review those doctrines in the outline as well.
Note that if the examiners do not tell you whether the common law or a statutory version of the
crime applies, it likely means that specific elements of the crime are not relevant to the question—for
example, the question may concern whether voluntary intoxication is a defense to a crime, in which
case the relevant factor is what type of mental state the crime requires, not other elements of the crime
that may vary from jurisdiction to jurisdiction.
1) When the offense is committed wholly or partly within the state (“partly within
the state” includes occurrences within the state of either (i) conduct that is an
element of the offense, or (ii) a result constituting such an element—e.g., in
homicide, the “result” is either the physical contact causing death or the death
itself); or
2) When there is conduct outside the state that constitutes an attempt or
conspiracy to commit an offense within the state plus an act inside the state; or
3) When there is conduct within the state constituting an attempt, solicitation, or
conspiracy to commit, in another jurisdiction, an offense under the laws of both
the state and such other jurisdiction; or
4) When an offense based on the omission of performance of a duty imposed by
the law of a state is committed within that state, regardless of the location of the
offender at the time of the omission.
B. SOURCES OF CRIMINAL LAW
common law crimes, Congress has provided for common law crimes in the District of
Columbia.
2. Constitutional Crimes
The Constitution defines treason as levying war against the United States, adhering to
enemies of the United States, or giving them aid and comfort. No person can be convicted of
treason unless two witnesses testify to the same overt act, or unless the defendant confesses.
3. Administrative Crimes
A legislature may delegate to an administrative agency the power to prescribe rules, the
violation of which may be punishable as a crime. Note, however, that the legislature may not
delegate the power to determine which regulations shall carry criminal penalties; nor may
it delegate the power of adjudication (i.e., the determination of guilt or innocence). With the
proliferation of administrative agencies, this source of criminal law is becoming increasingly
important.
Example: Violation of the antifraud rules adopted by the Securities and Exchange
Commission may result in severe criminal liability.
C. THEORIES OF PUNISHMENT
Historically, several theories have been advanced to justify criminal punishment.
1. Incapacitation (Restraint)
While imprisoned, a criminal has fewer opportunities to commit acts causing harm to
society.
2. Special Deterrence
Punishment may deter the criminal from committing future crimes.
3. General Deterrence
Punishment may deter persons other than the criminal from committing similar crimes for
fear of incurring the same punishment.
4. CRIMINAL LAW
4. Retribution
Punishment is imposed to vent society’s sense of outrage and need for revenge.
5. Rehabilitation
Imprisonment provides the opportunity to mold or reform the criminal into a person who,
upon return to society, will conform her behavior to societal norms.
6. Education
The publicity attending the trial, conviction, and punishment of some criminals serves to
educate the public to distinguish between good and bad conduct and to develop respect for
the law.
D. CLASSIFICATION OF CRIMES
At common law, all crimes were divided into three classes: treason, felonies, and misdemeanors.
Several additional means of classifying crimes are now frequently employed either by the courts
or by state statutory schemes.
3. Infamous Crimes
At common law, infamous crimes are all crimes involving fraud, dishonesty, or the obstruc-
tion of justice. Under modern law, this concept has been expanded to include most felonies.
1. Fair Warning
A statute must give a person of ordinary intelligence fair notice that his contemplated
conduct is forbidden by the statute.
2. No Bills of Attainder
Bills of attainder are also constitutionally prohibited. A bill of attainder is a legislative act
that inflicts punishment or denies a privilege without a judicial trial. Although a bill of
attainder may also be an ex post facto law, a distinction can be drawn in that an ex post facto
law does not deprive the offender of a judicial trial.
Example: A criminal statute defines bigamy as the act of remarriage by one who has
a living spouse. The statute expressly provides an exception for one whose
spouse disappeared more than seven years before. Can a person remarry if the
spouse has been gone for less than seven years provided he or she believes in
good faith that the spouse is dead? Most jurisdictions answer no. The fact that
the statute provides one exception impliedly excludes all others.
4. The Specific Controls the General, the More Recent Controls the Earlier
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.
Examples: 1) If one statute prohibits all forms of gambling and another permits charity-
sponsored raffles, the latter will control a church raffle.
5. Effect of Repeal
At common law, in the absence of a saving provision, the repeal or invalidation of a statute
operates to bar prosecutions for earlier violations, provided the prosecution is pending or
not yet under way at the time of the repeal. However, a repeal will not operate to set free a
person who has been prosecuted and convicted and as to whom the judgment has become
final.
a. Saving Provision
Many of the new comprehensive codes include a provision to the effect that 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.
H. MERGER
2. Modern Rule
There is generally no merger in American law, with the following limited exceptions:
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 robbery and
conspiracy to commit robbery).
one offense where the multiple offenses were all part of the same “criminal transaction.” In
some states, this is prohibited by statute. In others, courts adopt a rule of merger or of double
jeopardy to prohibit it.
A. ELEMENTS OF A CRIME
Culpability under Anglo-American criminal law is founded upon certain basic premises that are
more or less strictly observed by legislatures and courts when formulating the substantive law of
crimes. Consequently, the prosecution is generally required to prove the following elements of a
criminal offense:
(i) Actus Reus (guilty act): A physical act (or unlawful omission) by the defendant;
(ii) Mens Rea (guilty mind): The state of mind or intent of the defendant at the time of his
act;
(iii) Concurrence: The physical act and the mental state existed at the same time; and
(iv) Harmful Result and Causation: A harmful result caused (both factually and proximately)
by the defendant’s act.
Virtually all crimes require a physical act and may require some sort of intent. Many crimes also
require proof of certain attendant circumstances without which the same act and intent would
not be criminal. For example, the crime of receipt of stolen property requires that the property
received has in fact been stolen. If the defendant receives property (the act) that he believes to
have been stolen (the mental element), when in fact the property has not been stolen, the absence
of this required circumstance renders the defendant not liable for receipt of stolen property. Other
crimes require result and causation. Homicide, for example, requires that the victim die and that
the defendant’s act be the cause of death.
B. PHYSICAL ACT
For there to be criminal liability, the defendant must have either performed a voluntary physical
act or failed to act under circumstances imposing a legal duty to act. For this purpose, an act
is defined as a bodily movement. A thought is not an act. Therefore, bad thoughts alone cannot
constitute a crime. Note, however, that speech, unlike thought, is an act that can cause liability
(e.g., perjury, solicitation).
CRIMINAL LAW 9.
c. Acts performed while the defendant was either unconscious or asleep unless the defen-
dant knew that she might fall asleep or become unconscious and engaged in dangerous
behavior.
2. Omission as an “Act”
Although most crimes are committed by affirmative action rather than by nonaction, a defen-
dant’s failure to act will result in criminal liability provided three requirements are satisfied.
a. Legal Duty to Act
The defendant must have a legal duty to act under the circumstances. A legal duty to act
can arise from the following sources:
3. Possession as an “Act”
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 termi-
nate 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 contra-
band is located in an area within the defendant’s “dominion and control.”
C. MENTAL STATE
2. Specific Intent
If the definition of a crime requires not only the doing of an act, but the doing of it with a
specific intent or objective, the crime is a “specific intent” crime.
a. Significance
It is necessary to identify specific intent for two reasons:
CRIMINAL LAW 11.
6) Larceny and robbery: Intent to permanently deprive another of his interest in the
property taken;
7) Burglary: Intent at the time of entry to commit a felony in the dwelling of another;
constituting the crime; i.e., the defendant must be aware that she is acting in the proscribed
way and that any attendant circumstances required by the crime are present. (Note that the
defendant need not be certain that these attendant circumstances exist; it is sufficient that she
is aware of a high likelihood that they exist.)
Example: To commit the crime of false imprisonment (see VII.D., infra), the defendant
must be aware that she is confining a person, and that the confinement has
not been specifically authorized by law or validly consented to by the person
confined.
b. Constitutionality
The majority view is that strict liability offenses are constitutional. Exception: The
CRIMINAL LAW 13.
Supreme Court struck down as a violation of due process a Los Angeles municipal
ordinance imposing strict liability for failure to register as a felon. The key factor in the
court’s decision was the absence of “circumstances which might move one to inquire
as to the necessity of registration.” Note: The scope of this holding is limited to statutes
making criminal the failure to register.
6. Model Penal Code Analysis of Fault
The M.P.C. advocates the elimination of the ambiguous common law distinction between
general and specific intent. Instead, the M.P.C. proposes four categories into which the
mental component of a criminal offense (i.e., the element of fault) can be characterized.
Because consistent use of these categories leads to analytical clarity, they have been incorpo-
rated into several state criminal codes. They likewise provide a convenient way of analyzing
problems on the exam that incorporate statutes.
a. Purposely, Knowingly, or Recklessly
When a statute requires that the defendant act purposely (“intentionally”), knowingly,
or recklessly, a subjective standard is being used; i.e., the question is what was actually
going on in the defendant’s mind.
1) Purposely
A person acts purposely with respect to his conduct when it is his conscious object
to engage in certain conduct or cause a certain result, e.g., burglary.
2) Knowingly
A person acts knowingly with respect to the nature of his conduct when he is
aware that his conduct is of that nature or that certain circumstances exist. He is
deemed to be aware of these circumstances when he is aware of a high probability
that they exist and deliberately avoids learning the truth. He acts knowingly with
respect to the result of his conduct when he knows that his conduct will neces-
sarily or very likely cause such a result. Conduct performed knowingly frequently
satisfies the mental state of a statute that requires willful conduct (but note: some
criminal statutes define willfulness as requiring that a defendant act knowingly
and intentionally).
3) Recklessly
A person acts recklessly when he consciously disregards a substantial and unjus-
tifiable risk that circumstances exist or that a prohibited result will follow, and this
disregard constitutes a gross deviation from the standard of care that a reason-
able person would exercise in the situation. An act performed recklessly is also
performed wantonly. Recklessness requires that the actor take an unjustifiable risk
and that he know of and consciously disregard the risk. Mere realization of the risk
is not enough. He must know that injury might result (if he knows that it is certain
to result, he acts knowingly). Thus, recklessness involves both objective (“unjustifi-
able risk”) and subjective (“awareness”) elements.
b. Negligence
A person acts negligently when he fails to be aware of a substantial and unjustifi-
able risk that circumstances exist or a result will follow, and such failure constitutes
a substantial deviation from the standard of care that a reasonable person would
14. CRIMINAL LAW
a. Limitation on Punishment
Because the imposition of criminal liability for faultless conduct is contrary to the
basic premise of criminal justice that crime requires fault on the part of the accused, at
least one state court has held that imprisonment in such cases violates the due process
guarantees of the state constitution. The current trend in the legislatures is to limit
vicarious liability to regulatory crimes and to limit punishment to fines.
1) Consists of the failure to discharge a specific duty imposed by law on the corpo-
ration;
9. Transferred Intent
If a defendant intended a harmful result to a particular person or object and, in trying to
carry out that intent, caused a similar harmful result to another person or object, her intent
will be transferred from the intended person or object to the one actually harmed. Any
defenses or mitigating circumstances that the defendant could have asserted against the
intended victim (e.g., self-defense, provocation) will also be transferred in most cases. The
doctrine of transferred intent most commonly applies to homicide, battery, and arson. It does
not apply to attempt.
Example: A shoots at B, intending to kill him. Because of bad aim, she hits C, killing
him. Is A guilty of C’s murder? Held: Yes. Her intent to kill B will be trans-
ferred to C. Note that A may also be guilty of the attempted murder of B.
Compare: A shoots twice at B, thinking that B was C, whom she had wanted to kill.
She wounds not only B, but also D, a bystander. Is A guilty of the attempted
murder of B and D? Held: A is guilty of the attempted murder of B, because
her mistake as to B’s identity is a mistake of fact that does not negate her
intent to kill the person in front of her (B). There is no transferred intent issue
CRIMINAL LAW 17.
in that scenario. However, most courts would hold that she is not guilty of the
attempted murder of D.
Compare: With the intent to kill B, A strangles B to the point of unconsciousness, but does
not actually kill B. Thinking B is dead, A buries B, and B dies as a result. Is A
guilty of murder, even though the death-causing act of burying B was done without
the intent to murder? Yes, in a majority of jurisdictions. Most courts would find
that the two acts were part of a single transaction with a common intent.
E. CAUSATION
Some crimes (e.g., homicide) require a harmful result and causation. For a full discussion of
causation, see VII.C.5., infra.
A. PARTIES TO A CRIME
1. Common Law
The common law distinguished four types of parties to a felony: principals in the first
degree (persons who actually engage in the act or omission that constitutes the criminal
offense); principals in the second degree (persons who aid, command, or encourage the
principal and are present at the crime); accessories before the fact (persons who aid, abet,
or encourage the principal but are not present at the crime); and accessories after the fact
(persons who assist the principal after the crime).
determined the principal’s guilt first. Most modern jurisdictions have abandoned this
requirement, and an accessory can be convicted even if the principal has evaded appre-
hension or has been tried and acquitted.
2. Modern Statutes
Most jurisdictions have abolished the distinctions between principals in the first degree,
principals in the second degree, and accessories before the fact (accessories after the fact are
still treated separately). Under the modern approach, all “parties to the crime” can be found
guilty of the criminal offense. For convenience, this section will designate the actual perpe-
trator of the criminal act as the principal and the other parties to the crime as accomplices.
a. Principal
A principal is one who, with the requisite mental state, actually engages in the act or
omission that causes the criminal result. Also, anyone who acts through an innocent,
irresponsible, or unwilling agent is classified as a principal.
Example: A gives a poisonous drink to B to give to C. B does so; C drinks it
and dies. If B did not know that the drink was poisonous, or if B was
mentally ill or under duress, A, not B, is the principal. Note that the
principal need not be present when the harm results.
b. Accomplice
An accomplice is one who (i) with the intent to assist the principal and the intent that
the principal commit the crime (ii) actually aids, counsels, or encourages the principal
before or during the commission of the crime.
1) Penalty
Typically the punishment for this crime bears no relationship to the principal
offense; five years is the most common maximum sentence. Exemptions are
usually provided for close relatives of the principal offender (the common law
exempted only the spouse).
1. Provision of Material
In the absence of a statute, most courts would hold that mere knowledge that a crime would
CRIMINAL LAW 19.
result from the aid provided is insufficient for accomplice liability, at least where the aid
involves the sale of ordinary goods at ordinary prices. However, procuring an illegal item or
selling at a higher price because of the buyer’s purpose may constitute a sufficient “stake in
the venture” for a court to find intent to aid.
Example: A tells B that he wants to buy a can of gasoline from B to burn a house down.
B sells A the gasoline and A burns down the house. B is not liable as an
accomplice to arson (unless it was illegal to sell gasoline in cans or B charged
A twice his usual price because of what A was using the gasoline for).
C. SCOPE OF LIABILITY
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, as long as the other crimes were
probable or foreseeable.
Example: A commands B to burn C’s house, and B does so. The fire spreads to X’s house,
and it was foreseeable that it would do so. A is an accomplice to the burning of X’s
house.
c. Withdrawal
One who has rendered encouragement or aid to another may avoid liability as an
accomplice if he voluntarily withdraws from the crime before it is actually committed
by the principal. What is necessary for an effective withdrawal depends upon what the
person initially did.
(i) If the person merely encouraged the commission of the crime, withdrawal
requires that he repudiate this encouragement.
(ii) If the person assisted by providing some material to the principal, withdrawal
requires at least that the person attempt to neutralize this assistance, e.g., by doing
everything possible to retrieve the material provided.
A. IN GENERAL
The inchoate offenses are solicitation, attempt, and conspiracy. An inchoate offense is committed
prior to and in preparation for what may be a more serious offense. It is a complete offense in
itself, even though the act to be done may not have been completed. At common law under the
doctrine of merger, inchoate offenses were regarded as misdemeanors; if the principal offense
was carried out, they were considered felonies. The doctrine of merger has been abandoned in
many jurisdictions in cases involving a conspiracy, allowing an accused to be convicted of both
conspiracy and the principal offense. However, an accused cannot be convicted of either attempt
or solicitation and the principal offense.
B. SOLICITATION
At common law it was a misdemeanor to solicit another to commit a felony or an act that would
breach the peace or obstruct justice. Modern statutes often retain the crime of solicitation, but
some restrict it to the solicitation of certain serious felonies.
1. Elements
Solicitation consists of inciting, counseling, advising, inducing, urging, or commanding
another to commit a crime with the specific intent that the person solicited commit the
crime (general approval or agreement is insufficient). The offense is complete at the time the
CRIMINAL LAW 21.
solicitation is made. It is not necessary that the person solicited agree to commit the crime
or do anything in response. (If the person solicited committed the crime, the solicitor would
be liable for the crime as a party; if the person solicited proceeded far enough to be liable for
attempt, the solicitor would be a party to that attempt.)
2. Attempt Distinguished
Solicitation generally is not an attempt to commit the crime solicited. This distinction is
important in jurisdictions where there is no crime of solicitation or where the crime of solici-
tation does not extend to as many offenses as does the crime of attempt.
3. Defenses
C. CONSPIRACY
1. Elements
The elements of conspiracy at common law are as follows:
Under the traditional definition of conspiracy, the agreement itself was the culpable act (the
actus reus). Today, a majority of states require an overt act in furtherance of the conspiracy,
but mere preparation will usually suffice.
a. Agreement Requirement
The parties must agree to accomplish the same objective by mutual action. The agree-
ment need not be express. The existence of an agreement may be shown by a concert
of action on the part of the conspirators over a period of time under circumstances
showing that they were aware of the purpose and existence of the conspiracy and agreed
22. CRIMINAL LAW
to participate in the common purpose. Where multiple crimes and multiple parties are
involved, there are often problems in deciding whether there is a single conspiracy or
several smaller conspiracies.
2) Multiple Crimes
Where the same parties perform a number of crimes over an extended period of
time, is each individual crime the subject of a separate conspiracy or are all the
crimes to be treated as arising out of one overriding conspiracy? If there is an
initial agreement among the parties to engage in a course of criminal conduct
constituting all the crimes, then there is only one conspiracy.
Example: A and B agree to commit one bank robbery each month for one
year. Even though they plan to rob 12 banks, they are guilty of only
one conspiracy.
c) Wharton-Type Problems
1) Intent to Agree
It is very difficult to separate the intent to agree from the act of agreement. Hence,
most courts do not even try. For bar exam purposes, the only thing that is impor-
tant to remember is that the intent to agree can be inferred from conduct.
c. Overt Act
At common law, the conspiracy was complete when the agreement with the requisite
intent was reached. This is still the law in some states. Most states, however, require
that an act in furtherance of the conspiracy be performed. If an overt act is required,
any act in pursuit of the conspiracy will suffice, even an act of mere preparation. The
act may be performed by any one of the conspirators.
Example: A, B, and C agreed to rob a bank. A, unbeknownst to B and C, rents a
car to be used in the getaway. If an overt act is required, the renting of a
car is sufficient.
1) Attempt Distinguished
In attempt cases, the law requires that there be a substantial step toward commis-
sion of the crime, whereas the overt act for conspiracy requires only an act of mere
preparation. The reason for this is that the secret activity in conspiracy cases is
potentially more dangerous to society and, since a group is involved, it is more
difficult for one person to stop the activity once the agreement has been made.
2. Termination of Conspiracy
Since acts or declarations of co-conspirators are admissible only if made in furtherance of
the conspiracy, it becomes critically important to determine when the conspiracy ends. This
is also important for statute of limitations purposes.
a. Acts of Concealment
Since most criminals attempt to conceal the fact that they have committed a crime,
courts have generally taken the view that evidence of overt acts of concealment is not
sufficient to make the act of concealment part of the conspiracy. In other words, there
must be direct evidence that the parties specifically agreed, prior to commission of the
crime, that they would act in a certain way to conceal the fact that they had committed
the crime.
Example: Suppose the statute of limitations for tax evasion is six years. If A and
B conspire to commit tax evasion, does their conspiracy end at the
time of the commission of the fraud, or does it extend for the six years
during which time A and B presumably endeavor to keep their crime a
secret? The answer depends upon whether at the time of the agreement
to commit tax evasion there was also a specific subsidiary agreement to
conceal the crime until the statute of limitations had run. If there was no
such specific agreement, as, for example, if A and B were not aware of
CRIMINAL LAW 27.
the statute of limitations, then the conspiracy does not extend beyond the
completion of the act of evasion.
(i) The crimes were committed in furtherance of the objectives of the conspiracy; and
(ii) The crimes were “a natural and probable consequence” of the conspiracy, i.e., foresee-
able.
This doctrine applies only if the conspirator has not made a legally effective withdrawal from
the conspiracy before the commission of the crime by the co-conspirator. (See 4.b., infra.)
4. Defenses
b. Withdrawal Is No Defense
The general rule is that withdrawal from a conspiracy is not a defense to a charge of
conspiracy, because the conspiracy is complete as soon as the agreement is made and an
overt act is committed. The M.P.C. recognizes voluntary withdrawal as a defense if the
defendant thwarts the success of the conspiracy (e.g., by informing the police).
6. State Codifications
While at common law a conspiracy was defined as a combination or agreement between
two or more persons to accomplish some criminal or unlawful purpose, or to accomplish
a lawful purpose by unlawful means, recent state codifications require that the object of
the conspiracy be a specifically proscribed offense. Yet many states essentially codify the
expansive common law notion by making it a crime to conspire to commit acts injurious to
the public welfare. The Supreme Court has indicated that such statutes are unconstitutionally
vague unless construed narrowly.
7. Punishment
Because a defendant may be convicted of both conspiracy and the completed crime, most
jurisdictions have enacted express penalty provisions for conspiracies. Some statutes make
conspiracy a misdemeanor regardless of its objective; some provide a permissible maximum
sentence regardless of the objective; and still others provide different maximums depending
upon the objective. Note that because the punishment for conspiracy usually is not expressed
as a fraction of the punishment for the completed crime, the punishment for conspiracy may
be more severe than the punishment for the completed crime.
D. ATTEMPT
A criminal attempt is an act that, although done with the intention of committing a crime, falls
short of completing the crime. An attempt therefore consists of two elements: (i) a specific intent
to commit the crime, and (ii) an overt act in furtherance of that intent.
1. Intent
The defendant must have the intent to perform an act and obtain a result that, if achieved,
would constitute a crime.
2. Overt Act
The defendant must have committed an act beyond mere preparation for the offense.
Several tests have been used to determine whether the act requirement for attempt liability
has been satisfied:
3. Defenses
a. Impossibility of Success
Factual impossibility traditionally has been distinguished from legal impossibility, and
should be distinguished for exam purposes.
b. Abandonment
If a defendant has, with the required intent, gone beyond preparation, may she escape
liability by abandoning her plans? The majority rule is that abandonment is never a
defense. The M.P.C. approach, followed in a number of jurisdictions, is that withdrawal
will be a defense but only if:
1) It is fully voluntary and not made because of the difficulty of completing the
crime or because of an increased risk of apprehension; and
A. INSANITY
The insanity defense exempts certain defendants because of the existence of an abnormal mental
condition at the time of the crime. The various formulations differ significantly on what effects a
mental illness must have had to entitle the defendant to an acquittal. Note that insanity is a legal
term rather than a psychiatric one. Furthermore, insanity is a generic term comprising many
possible mental abnormalities, all of which have only one thing in common: they are recognized
by law as dictating certain legal consequences. Usually, the cause of a defendant’s mental illness
or insanity is irrelevant in determining the legal consequences.
32. CRIMINAL LAW
a. M’Naghten Rule
1) Elements
The traditional M’Naghten rule provides that a defendant is entitled to an acquittal
if the proof establishes that:
c) Such that the defendant lacked the ability at the time of his actions to either:
2) Application
3) Evidence Admissible
In practice, the M’Naghten rule does not unduly restrict the evidence heard by
juries. Most jurisdictions admit any evidence that reasonably tends to show the
mental condition of the defendant at the time of the crime.
conform his conduct to the law. Contrary to what the name irresistible impulse might
imply, this inability need not come upon the defendant suddenly. Some jurisdictions
apply both M’Naghten and the irresistible impulse test. Thus, a person is entitled to an
acquittal if he meets either test.
This test combines the M’Naghten and the irresistible impulse tests by allowing for the
impairment of both cognitive and volitional capacity.
2. Exclusion of “Psychopaths”
Many formulations (including the A.L.I. test) expressly exclude the psychopathic criminal—
the person who repeatedly commits crimes without experiencing guilt. This is usually
accomplished by defining “mental illness” so as to exclude any abnormality evidenced only
by repeated antisocial conduct. “Sociopathic” and “psychopathic” are synonymous.
a. Burdens of Proof
2) Burden of Persuasion
In most states, the defendant must prove his insanity, generally by a preponderance
of the evidence. In some jurisdictions and under the M.P.C., however, once the
issue has been raised, the prosecution must prove the defendant was sane beyond
a reasonable doubt. Federal courts require the defendant to prove insanity by clear
and convincing evidence.
2) Neither Prosecutor Nor Judge May Raise Defense for Competent Defendant
Neither a prosecutor nor a judge can assert the insanity defense when a competent
defendant, who is adequately represented, has elected not to do so.
court’s finding of insanity by a preponderance of the evidence, may last until he has
regained his sanity or is no longer dangerous. This does not deny due process even if
the result is confinement for a period longer than the maximum period of incarceration
carried by his offense. Nor is the insanity acquittee entitled, at the end of the statu-
tory maximum incarceration period, to a civil commitment hearing at which proof of
his insanity would have to be established by clear and convincing evidence. [Jones v.
United States, 463 U.S. 354 (1983)]
(i) To understand the nature of the proceedings being brought against him; or
The Due Process Clause prevents a defendant from being declared incompetent without
notice and a hearing. Many jurisdictions grant a right to a jury determination of compe-
tence. A finding of incompetence will suspend the criminal proceedings and invari-
ably result in commitment until such time as the defendant regains competence. The
Constitution may demand that the defendant’s hospitalization be limited to a reasonable
period of time necessary to decide whether there is a likelihood of recovery in the near
future.
8. Diminished Capacity
Some states recognize the defense of “diminished capacity,” under which the defendant
may assert that as a result of a mental defect (e.g., neurosis, obsessive compulsiveness, or
dependent personality) short of insanity, he did not have the particular mental state (purpose,
knowledge, recklessness, or negligence) required for the crime charged. Most states recog-
nizing this defense limit it to specific intent crimes.
9. Bifurcated Trial
Some states, such as California, employ a two-stage trial process whenever the defense
of insanity is raised. The first stage determines guilt (did the defendant actually perform
the criminal act?); the second stage (which may be tried before a new jury at the judge’s
36. CRIMINAL LAW
discretion) determines insanity (was the defendant legally insane at the time he performed
the act?).
B. INTOXICATION
Intoxication may be caused by any substance. Alcohol, drugs, and medicine are the most
frequent. Evidence of intoxication may be raised whenever the intoxication negates the existence
of an element of a crime. The law generally distinguishes between voluntary and involuntary
intoxication.
1. Voluntary Intoxication
Intoxication is voluntary (self-induced) if it is the result of the intentional taking without
duress of a substance known to be intoxicating. The person need not have intended to
become intoxicated.
deliberation and premeditation. Common law “depraved heart” murders would fall into
the second degree category. Although voluntary intoxication may negate the defendant’s
ability to deliberate and premeditate (first degree murder), it cannot negate the criminal
recklessness required for depraved heart murder (second degree murder).
2. Involuntary Intoxication
Intoxication is involuntary only if it results from the taking of an intoxicating substance
(i) without knowledge of its nature, (ii) under direct duress imposed by another, or (iii)
pursuant to medical advice while unaware of the substance’s intoxicating effect.
3. Relationship to Insanity
Intoxication and insanity are two separate defenses. However, continuous, excessive drinking
or drug use may bring on actual insanity (e.g., delirium tremens). Thus, a defendant may be
able to claim both an intoxication defense and an insanity defense.
C. INFANCY
1. Common Law
At common law, the defense of lack of capacity to commit a crime by reason of infancy gave
rise to three presumptions. Physical age (not mental age) at the time of the crime (not at the
time of the trial) governs.
c. Over Fourteen—Adult
Children age 14 or older were treated as adults.
2. Modern Statutes
b. Juvenile Delinquency
All states have enacted some type of juvenile delinquency laws or have set up special
38. CRIMINAL LAW
juvenile or family courts. These laws ordinarily provide that with respect to conduct
that would be deemed criminal if committed by an adult, the juvenile court has exclu-
sive jurisdiction over children under a certain age, and concurrent jurisdiction (with the
criminal courts) over older children. In the “concurrent jurisdiction” situation, the child
must be “charged” with delinquency in juvenile court unless the juvenile court waives
jurisdiction and authorizes the trial of the child as an adult in criminal court. In most
jurisdictions, the common law immunity rules for infants do not apply in juvenile court
because the primary goal is rehabilitation rather than punishment. The M.P.C. follows
this approach, providing that the juvenile court has exclusive jurisdiction over minors
younger than 16 and concurrent jurisdiction over 16- and 17-year-old minors.
A. JUSTIFICATION
Under certain circumstances, the commission of a proscribed act is viewed by society as justified
and hence not appropriate for criminal punishment. Generally, the defendant must raise the issue
of justifiable use of force by introducing some evidence (“more than a scintilla”) tending to show
justification as an affirmative defense. Once she has done this, the state may require the prosecu-
tion to prove that the use of force was not justified, or it may impose on the defendant the burden
of proving this affirmative defense by a preponderance of the evidence.
1. Self-Defense
a. Nondeadly Force
As a general rule, an individual who is without fault may use such force as she reason-
ably believes is necessary to protect herself from the imminent use of unlawful force
upon herself. (See discussion infra on reasonableness and unlawful force.) There is no
duty to retreat before using nondeadly force, even if retreat would result in no further
harm to either party.
b. Deadly Force
A person may use deadly force in self-defense if she (i) is without fault, (ii) is
confronted with unlawful force, and (iii) reasonably believes that she is threatened with
imminent death or great bodily harm.
1) Without Fault
A person who has initiated an assault or provoked the other party will be consid-
ered the aggressor. (See discussion infra.)
2) Unlawful Force
The attacker must be using unlawful force (i.e., force that constitutes a crime or a
tort).
must be a present one. There is no right to use deadly force if harm is merely
threatened at a future time or the “attacker” has no present ability to carry out the
threat.
Example: A, who has his arms tied behind his back, says to D, “I am going to
kill you.” D pulls out a gun and shoots A. No self-defense.
4) Retreat
Must a person retreat as far as possible before using deadly force, if such retreat is
possible without the person endangering himself? For purposes of the examina-
tion, the majority rule is that there is no duty to retreat. A person (other than the
initial aggressor) may use deadly force in self-defense even if this could be avoided
by retreating. Even in the minority of courts that follow a common law rule and
impose a duty to retreat, retreat is only sometimes necessary. First, no retreat is
necessary unless it can be made in complete safety. Second, no retreat is necessary
in several special situations: (i) where the attack occurs in one’s own home, (ii)
where the attack occurs while the victim is making a lawful arrest; or (iii) where
the assailant is in the process of robbing the victim.
Example: A is standing in a public park feeding the birds. B walks up to A,
pulls a knife from his pocket, and—as he comes closer to A—says,
“I am going to kill you.” A pulls a gun from her pocket and shoots
B, killing him. Does A have a defense of self-defense? Under the
majority rule the answer would be yes, because A had no duty to
retreat before using deadly force, as long as the force was necessary
to defend herself against imminent attack. Even under the minority
approach the answer might be yes, because even if A was under
a general duty to retreat before using deadly force, here it did not
appear that such retreat could have been done in complete safety.
1) Withdrawal or Retreat
An aggressor who, in good faith, attempts to remove herself from the fight, and
communicates to the other person her desire to remove herself, regains her right to
use force in self-defense.
2) Sudden Escalation
If the victim of the initial aggression suddenly escalates a “minor” fight into one
involving deadly force and does so without giving the aggressor the chance to
withdraw or retreat, the aggressor may use deadly force in her own defense.
2. Defense of Others
There are two issues in determining whether a person who has used force to defend another
person is criminally liable for her acts.
defense she acted? The majority rule is no. One may use force in defense of any other
person if the other requirements of the defense are met. A few jurisdictions require that
the person whom the defendant aided must either have been a member of the defen-
dant’s family or the defendant’s employee or employer.
3. Defense of a Dwelling
a. Nondeadly Force
A person is justified in the use of nondeadly force in defense of her dwelling when, and
to the extent that, she reasonably believes that such conduct is necessary to prevent or
terminate another’s unlawful entry into or attack upon her dwelling.
b. Deadly Force
One is generally justified in the use of deadly force in two situations:
2) Felony
Use of deadly force is also justifiable where the person reasonably believes that
such force is necessary to prevent the entry into the dwelling by a person who
intends to commit a felony in the dwelling.
a. Nondeadly Force
Nondeadly force may be used to defend property in one’s possession from unlawful
interference. In the case of real property, this means entry or trespass; in the case of
personal property, this means removal or damage. The person must reasonably believe
that force is needed, and the need to use force must reasonably appear imminent. Thus,
force may not be used if a request to desist or refrain from the activity would suffice.
In addition, the right is limited to property in one’s possession. Force cannot be used to
regain possession of property that he reasonably believes was wrongfully taken, unless
the person using it is in “immediate pursuit” of the taker.
deadly force in the defense of property generally only in conjunction with another privi-
leged use of force, e.g., self-defense, defense of others, or to effectuate an arrest.
5. Crime Prevention
a. Nondeadly Force
Generally, one is privileged to use force to the extent that he reasonably believes is
necessary to prevent a felony, riot, or other serious breach of the peace, although some
states (e.g., California) have extended this to the prevention of any crime.
b. Deadly Force
The traditional rule was that deadly force could be used to prevent the commission
of any felony, but the modern view is that deadly force may be used only if it appears
reasonably necessary to prevent a “dangerous felony” involving risk to human life. This
would include robbery, arson, burglary of a dwelling, etc.
a. By Police Officer
The use of deadly force to apprehend a fleeing felon constitutes a seizure. The force
used to effect a seizure must be reasonable. Deadly force is reasonable only when the
felon threatens death or serious bodily harm and deadly force is necessary to prevent
his escape. [Tennessee v. Garner, 471 U.S. 1 (1985)] For purposes of state criminal
law, under this rule a police officer cannot use deadly force to apprehend an unarmed,
nondangerous felon; but an officer may use deadly force to prevent a felon from
escaping if the police officer has probable cause to believe that the felon poses a threat
of serious bodily harm to the officer or others.
b. By Private Person
A private person has the same right to use force to make an arrest as a police officer
or one acting at the direction of a police officer, except that the private person has a
defense to the use of deadly force only if the person harmed was actually guilty of the
offense (i.e., felony) for which the arrest was made. It is not enough that it reasonably
appeared that the person was guilty. 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.
7. Resisting Arrest
8. Necessity
Conduct otherwise criminal is justifiable if the defendant reasonably believed that the conduct
was necessary to avoid some harm to society that would exceed the harm caused by the
conduct. The test is objective; a good faith belief in the necessity of one’s conduct is insuffi-
cient. However, causing the death of another person to protect property is never justified.
Example: Throwing cargo overboard during a violent storm, if necessary to save the
lives of the crew and other people on board a ship, would not constitute
criminal damage to property. On the other hand, throwing some members of
the crew overboard to save the cargo would never be justifiable.
The defense of necessity is not available if the defendant is at fault in creating a situation
requiring her to choose between two evils. Finally, under the traditional common law view,
the pressure producing the choice of evils had to come from natural forces; however, modern
cases do not require that the necessity arise from natural forces.
9. Public Policy
A police officer (or one assisting her) is justified in using reasonable force against another, or
taking property, provided the officer acts pursuant to a law, court order, or process requiring
or authorizing her to so act.
Example: The public executioner is not guilty of murder when she carries out a lawfully
imposed sentence of execution. If the sentence was not lawful, the executioner
is still immunized from criminal liability by a reasonable belief that her
conduct was required by law.
1. Necessity Distinguished
Unlike necessity, duress always involves a human threat.
Example: A points a gun at B and threatens to kill B if she does not break into C’s
house and steal food. B does as she is told. B may raise the defense of duress.
If, however, B is a starving victim of a plane crash in a desolate area and
commits the same act, she has the defense of necessity.
C. OTHER DEFENSES
Compare: A, hunting in the woods, shoots through the trees at a figure he believes
to be his enemy B, intending to kill him. In fact, the figure is C, who is
killed. A is guilty of murdering C despite his mistake of fact as to C’s
identity, because A’s mistake does not negate his intent to kill a person.
prohibited by the criminal law or that she mistakenly believed that her acts were not
prohibited. This is true even if her ignorance or mistake was reasonable.
c. Exceptions
not allowed as a true affirmative defense to a crime. If, however, the reliance on
the attorney negates an otherwise necessary mental state element (e.g., knowingly
violating the law), such reliance can demonstrate that the government has not
proved its case beyond a reasonable doubt.
3. Consent
1) The consent was voluntarily and freely given (without compulsion or duress);
2) The party was legally capable of consenting; and
3) No fraud was involved in obtaining the consent.
4. Condonation by Injured Party No Defense
Forgiveness by the injured party after the crime has been committed ordinarily does not
operate as a defense to the commission of a crime, unless a statute establishes such a defense.
Example: Forgiveness by an assault victim would not bar a criminal prosecution of the
perpetrator.
Compare: Some statutes provide that marriage of the parties will bar a prosecution for
seduction.
6. Entrapment
Entrapment occurs if the intent to commit the crime originated not with the defendant,
but rather with the creative activities of law enforcement officers. If this is the case, it is
presumed that the legislature did not intend to cover the conduct and so it is not criminal.
The defense of entrapment consists of two elements:
46. CRIMINAL LAW
(i) The criminal design must have originated with law enforcement officers; and
(ii) The defendant must not have been predisposed to commit the crime prior to the initial
contact by the government.
If the defendant offers credible evidence on these two elements, in most jurisdictions the
government must then show predisposition beyond a reasonable doubt.
based solely upon the fact that a government agent provided material for commission of
the crime, even if the material provided was contraband. [United States v. Russell, 411
U.S. 423 (1973); Hampton v. United States, 425 U.S. 484 (1976)] A few states, however,
make the provision of essential material—such as ingredients for drugs or the drugs
themselves—entrapment.
1. Battery
Battery is an unlawful application of force to the person of another resulting in either bodily
injury or an offensive touching. Simple battery is a misdemeanor.
a. State of Mind—Specific Intent Not Required
A battery can be, but need not be, intentional. It is sufficient that the defendant caused
the application of force with general intent, interpreted in most jurisdictions today as
requiring no more than criminal negligence.
b. Indirect Application of Force Sufficient
The force need not be applied directly. Thus, it is sufficient if the force is applied by
a force or substance put in motion by the defendant. For example, battery may be
committed by causing a dog to attack the victim or by causing the victim to take a
poisonous substance.
c. Aggravated Battery
Most statutes define certain acts as aggravated batteries and punish them as felonies.
Among the most common are batteries in which:
1) A deadly weapon is used (any ordinary object may become a deadly weapon
depending upon how it is used);
2) Serious bodily injury is caused; or
3) The victim is a child, woman, or police officer.
d. Consent as a Defense
Contrary to the general rule that consent of the victim is not a valid defense, some
jurisdictions recognize consent as a defense to simple battery and/or certain specified
batteries, e.g., a medical operation, or reasonable injuries incurred in consensual athletic
contests.
2. Assault
In a majority of jurisdictions, an assault is either:
(i) An attempt to commit a battery; or
b. Battery Distinguished
If there has been an actual touching of the victim, a battery has been committed.
If there has been no such touching, the act may or may not constitute an assault,
depending on the circumstances.
B. MAYHEM
1. Common Law
At common law, the felony of mayhem required either dismemberment (the removal of some
bodily part) or disablement of a bodily part. The crime was enforced to preserve the King’s
right to his subjects’ military service.
2. Modern Statutes
Most states retain the crime of mayhem in some form, although the recent trend is to abolish
mayhem as a separate offense and to treat it instead as a form of aggravated battery. Modern
statutes have expanded the scope of mayhem to include permanent disfigurement. A few
states require a specific intent to maim or disfigure.
C. HOMICIDE
1. Classifications of Homicides
At common law, homicides were divided into three classifications:
b. Excusable homicides (those for which there was a defense to criminal liability); and
c. Criminal homicides.
CRIMINAL LAW 49.
a. Murder
Murder is the unlawful killing of another human being with malice aforethought.
Malice aforethought may be express or implied.
1) Malice Aforethought
In the absence of facts excusing the homicide or reducing it to voluntary
manslaughter, malice aforethought exists if the defendant has any of the following
states of mind:
b. Voluntary Manslaughter
Voluntary manslaughter is a killing that would otherwise be murder but is distinguish-
able from murder by the existence of adequate provocation—i.e., a killing in the heat of
passion.
a) The provocation must have been one that would arouse sudden and intense
passion in the mind of an ordinary person such as to cause him to lose his
self-control;
c) There must not have been a sufficient time between the provocation and
the killing for the passions of a reasonable person to cool. (This is a factual
question that depends upon the nature of the provocation and the attendant
circumstances, including any earlier altercations between the defendant and
the victim); and
d) The defendant in fact did not cool off between the provocation and the
killing.
4) Imperfect Self-Defense
Some states recognize an “imperfect self-defense” doctrine under which a murder
may be reduced to manslaughter even though:
c. Involuntary Manslaughter
Involuntary manslaughter is of two types.
1) Criminal Negligence
If death is caused by criminal negligence (or by “recklessness” under the M.P.C.),
the killing is involuntary manslaughter. Criminal negligence requires a greater
deviation from the “reasonable person” standard than is required for civil liability.
(Some states also require that the defendant have had a subjective awareness of the
risk.)
a) “Misdemeanor-Manslaughter” Rule
A killing in the course of the commission of a misdemeanor is manslaughter,
although most courts would require either that the misdemeanor be malum in
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c. Others
Some statutes make killings performed in certain ways first degree murder. Thus,
killing by lying in wait, poison, or torture may be first degree murder.
c. Limitations on Liability
There are some limitations on liability under the broad felony murder doctrine.
3) Foreseeability of Death
The majority rule is that death must have been a foreseeable result of the commis-
sion of the felony. However, it is important to note that courts have been willing to
find most deaths foreseeable. A minority of courts do not apply a foreseeability
requirement, requiring only that the felony be malum in se.
Example: A intentionally sets fire to a dwelling. B, a firefighter, dies in an
effort to extinguish the blaze. C, the owner of the dwelling, dies of a
heart attack while watching his largest possession being destroyed.
Is A guilty of felony murder? Of B, yes. The death of a firefighter
is a foreseeable consequence of setting a fire. Of C, no. The heart
attack was unforeseeable.
police? The majority view is no. The so-called Redline view (the majority position)
is that liability for murder cannot be based upon the death of a co-felon from
resistance by the victim or police pursuit.
5. Causation
1) Cause-in-Fact
The defendant’s conduct must be the cause-in-fact of the result; i.e., the result
would not have occurred “but for” the defendant’s conduct.
3) “Proximate” Causation
Problems of proximate causation arise only when the victim’s death occurs
because of the defendant’s acts, but in a manner not intended or anticipated by the
defendant. The question in such cases is whether the difference in the way death
was intended or anticipated and the way in which it actually occurred breaks the
chain of “proximate cause” causation.
b. Rules of Causation
2) Simultaneous Acts
Simultaneous acts by two or more persons may be considered independently suffi-
cient causes of a single result.
3) Preexisting Condition
A victim’s preexisting condition that makes him more susceptible to death does not
break the chain of causation; i.e., the defendant “takes the victim as he finds him.”
Example: A, with malice aforethought, shoots B in the leg. B bleeds to
death before he can receive medical attention because he is a
hemophiliac. A is liable for murder despite the fact that a person
without hemophilia would not have died from the shooting.
c. Intervening Acts
As a general rule, an intervening act will shield the defendant from liability if the act
is a mere coincidence or is outside the foreseeable sphere of risk created by the defen-
dant’s act.
Examples: 1) Act of Nature: A is driving negligently. To avoid A’s swerving car, B
takes an unaccustomed route home. B’s car is struck by lightning, and B
dies. Can A be charged with manslaughter? No. The fact that lightning
struck B was a mere coincidence.
7. Summary—Analytical Approach
In analyzing any homicide situation, the following questions must be asked and answered:
a. Did the defendant have any of the states of mind sufficient to constitute malice afore-
thought?
b. If the answer to a. is yes, is there proof of anything that will, under any applicable
statute, raise the homicide to first degree murder?
d. If the answer to a. is no, is there a sufficient basis for holding the crime to be involun-
tary manslaughter, i.e., criminal negligence or misdemeanor manslaughter?
e. Is there adequate causation between the defendant’s acts and the victim’s death? Was
the defendant’s act the factual cause of death? Is there anything to break the chain of
proximate causation between the defendant’s act and the victim’s death?
Example: A came upon B, who was letting the air out of a tire on A’s car. When A
shouted at B, B picked up a rock and threw it at A, shouting obscenities.
B ran off, but A went to his car, pulled a gun out, and shot at B, hitting
him in the leg. B was taken to a hospital where he underwent surgery;
the wrong gas was used as an anesthetic, and B died. Generally, wounds
of this sort are not deadly. A testifies under oath that he merely intended
to wound B as revenge for causing A the inconvenience of the flat tire.
What is A’s liability?
1) Even if A intended only to wound B with a bullet, this is intent to inflict great
bodily injury and is sufficient for malice aforethought.
56. CRIMINAL LAW
2) If the statute makes premeditated killings first degree murder, A almost certainly
did not premeditate.
3) While B’s shouted obscenities might not be adequate provocation, a jury could
certainly find that throwing the rock was such provocation.
4) If the answer to inquiry a. had been no, A’s actions would have constituted
criminal negligence.
5) There is causation. But for A’s shot, B would not have died. Negligent medical
care is not a superseding intervening factor that will break the chain of proximate
causation, unless it is “gross” negligence or intentional malpractice.
D. FALSE IMPRISONMENT
The common law misdemeanor of false imprisonment consisted of:
(i) Unlawful
1. Confinement
Confinement requires that the victim be compelled either to go where he does not wish to
go or to remain where he does not wish to remain. It is not confinement to simply prevent a
person from going where he desires to go, as long as alternative routes are available to him.
The confinement may be accomplished by actual force, by threats, or by a show of force. The
M.P.C. takes a similar approach in that the confinement must “interfere substantially” with
the victim’s liberty.
2. “Unlawfulness”
Confinement is unlawful unless it is specifically authorized by law or by the consent of the
person.
3. Lack of Consent
Consent to the confinement precludes it from constituting false imprisonment, but the
consent must be freely given by one with capacity to give such consent. Thus, consent is
invalidated by coercion, threats, deception, or incapacity due to mental illness, substantial
cognitive impairment, or youth.
E. KIDNAPPING
At common law, the misdemeanor of kidnapping was the forcible abduction or stealing away of
a person from his own country and sending him into another. Modern statutes and the M.P.C.
generally expand the definition of kidnapping far beyond the common law definition, although it
usually remains a form of aggravated false imprisonment.
1. General Pattern
Kidnapping is often defined as confinement of a person that involves either:
CRIMINAL LAW 57.
2. Aggravated Kidnapping
Modern statutes often contain as a separate offense an aggravated kidnapping crime. Among
the more common forms of this offense are:
d. Child Stealing
Leading, taking, enticing, or detaining a child with the intent to keep or conceal the
child from a guardian or parent is often defined as aggravated kidnapping. Use of
“enticement” covers the situation in which a child is persuaded by promises or rewards
to come with the defendant or remain. The consent of a child to his detention or
movement is not of importance, because the child is incapacitated by age from giving
valid consent.
3. Required Movement
Although at common law extreme movement was required, most modern statutes require
only some movement of the person; if such movement occurs, the extent of the movement
is not material. Other statutes require no movement, making confinement (as used in false
imprisonment) sufficient.
4. Secrecy
Generally, it is not necessary that kidnapping involve secrecy. Some statutes, however,
require secrecy when the kidnapping is based on confinement rather than movement of the
victim.
5. Consent
As with false imprisonment, free consent given by a person competent to give it precludes
the confinement or movement of a person from being kidnapping. But a person may be
incompetent to give such consent by reason of age (see above) or mental condition.
substantially increases the risk to the victim over and above that necessarily involved in
the other crime. If no such increased risk is involved, the defendant will be held to have
committed only the robbery or rape.
A. RAPE
Traditionally, rape (a felony) was the unlawful carnal knowledge of a woman by a man, not her
husband, without her effective consent. Today, a number of states have renamed “rape” as “sexual
assault” and have made such statutes gender neutral.
1. Penetration Sufficient
Rape requires only the penetration of the female sex organ by the male sex organ. Emission
is not necessary to complete the crime.
3) Other Fraud
Other kinds of fraud will not make the intercourse rape.
Example: D promises to marry V at a later time and thereby induces V to
consent to intercourse. D never intended to marry V. Is D guilty of
rape? No. (But D may be guilty of seduction (see F., infra).)
B. STATUTORY RAPE
2. Mistake as to Age
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 consent.
1. Adultery
Under modern statutes, any person who cohabits or has sexual intercourse with another not
his spouse commits the misdemeanor offense of adultery if:
b. The person is married and the other person involved in such intercourse is not his
spouse; or
c. The person is not married and knows the other person in such intercourse is married.
2. Fornication
Fornication is sexual intercourse between or open and notorious cohabitation by unmarried
persons.
E. INCEST
Incest is a statutory offense, usually a felony, that consists of either marriage or a sexual act (inter-
course or deviate sexual conduct) between persons who are too closely related.
1. Degree of Relationship
No uniformity exists among the states. A majority restricts the crime to blood relations,
although a significant number of states include some nonblood relatives.
2. Degree of Responsibility
Some states make a distinction in penalties depending on the parties involved.
In many states, subsequent marriage of the parties is a defense, but there is no uniformity as
to whether the marriage must be entered into before indictment, after sentence, or anywhere in
between.
G. BIGAMY
Bigamy is a traditional strict liability offense that consists of marrying someone while having
another living spouse. At common law, a defendant is guilty of bigamy even if she reasonably
believes that a purported divorce is valid or that her spouse is dead.
This section deals with a number of property offenses. Many of these offenses have been consolidated
into state theft statutes. But for purposes of the examination, the greatest challenge is in distinguishing
among three property crimes: larceny, embezzlement, and false pretenses. There is no difference
among the intents required for the three crimes. The major differences among these crimes are in the
kind of misappropriation of the property.
A. LARCENY
Larceny was the basic common law property offense. It has been significantly modified by statute
in many American jurisdictions. Larceny consists of:
CRIMINAL LAW 61.
(iv) Of another;
(v) By trespass;
(vi) With intent to permanently (or for an unreasonable time) deprive the person of his interest in
the property.
b. Services
Traditionally, obtaining services wrongfully cannot give rise to larceny.
c. Intangibles
Intangibles cannot give rise to larceny.
Example: A wrongfully obtains entrance to B’s theater and observes a performance
of a play. Has A committed larceny of that performance? Held: No. The
right or ability to observe a play is intangible.
Note that gas and electricity are considered to be personal property that may be stolen.
2) Employees
Low level employees generally have only custody of their employers’ property.
They have possession, however, if the employer gives them especially broad
powers over it or if the property is given directly to them by a third person, without
the employer having intermediate possession.
c. Stolen Property
Stolen property can be the subject of larceny (i.e., a second thief is guilty of larceny
when he takes property from a first thief).
d. Joint Property
At common law, larceny could not be committed by the taking of jointly held property
by one of the joint owners.
3. Taking
It is essential that the defendant actually obtain control of the property.
4. Asportation
Larceny requires asportation, i.e., that all parts or portions of the property be moved and that
this movement—which need only be slight—be part of the carrying away process.
Example: A came upon two upside-down wheelbarrows in B’s yard. She turned them
both right side up, and moved one six inches toward the gate. Was she guilty
of larceny of one, two, or no wheelbarrows? Held: Guilty of larceny of
one. Merely turning the wheelbarrows over is not part of the carrying away
movement; thus, it is not asportation. But merely moving the other wheel-
barrow a short distance is enough, because that movement is part of carrying
it away.
64. CRIMINAL LAW
1) Intent to Borrow
If the defendant intends to return the property within a reasonable time and at the
time of the taking has a substantial ability to do so, the unauthorized borrowing
does not constitute larceny. Note that many states make it a crime to borrow a
motor vehicle, even when the borrower fully intends to return it (“joyriding”).
2) Intent to Obtain Repayment of Debt
It is not larceny to take money or goods of another if the defendant honestly
believes that she is entitled to them as repayment for a debt of the other (although
the goods must not be worth more than the amount of the debt). In these situa-
tions, the defendant believes the property is “hers” and therefore lacks an intent to
deprive someone else of “his” property.
c. Possibly Sufficient
this is not larceny. However, if she takes them not intending to return them unless
she is assured of a reward, this is larceny because it creates a substantial risk of
loss.
(i) The finder must know or have reason to believe she can find out the identity of the
owner; and
(ii) The finder must, at the moment she takes possession of the lost property, have the
intent necessary for larceny.
If the finder takes custody of the lost property without the intent to steal, but later
formulates this intent, she has not committed larceny. Nor has she committed embezzle-
ment, since no trust relationship between the finder and the owner has been created.
(See below.)
b. Misdelivered Property
One to whom property is delivered by mistake may, by accepting the property, commit
larceny of it. Two requirements must be met:
1) The recipient must, at the time of the misdelivery, realize the mistake that is being
made; and
2) The recipient must, at the time she accepts the delivery, have the intent required
for larceny.
c. “Container” Situations
the recipient is regarded as taking immediate possession of both the container and
its contents. Her later misappropriation of the contents is not larceny, because it
occurs at a time when she already has possession. If, however, both parties did not
intend to transfer a container but rather regarded the items transferred as empty (or
otherwise not involving a transfer of contained items), the recipient does not obtain
possession of the contents until she discovers them. If at the time she discovers and
appropriates them she has the intent to steal, she is guilty of larceny.
B. EMBEZZLEMENT
Embezzlement was not originally a common law crime. Intended to plug the gaps in the law
of larceny, it was made a misdemeanor by statute in 1799 and is regarded as part of American
common law. Modern statutes often distinguish between grand embezzlement (a felony) and
petit embezzlement (a misdemeanor) based upon the value of the property embezzled. Although
variously defined in different jurisdictions, embezzlement generally requires:
(ii) Conversion;
(iii) Of property;
(iv) Of another;
lawful possession of it. In larceny, it occurs generally at the time the defendant obtains
wrongful possession of the property.
Example: A was foreman of a construction crew. One day, he took a tool used by
the crew to his home. The next day, he was fired. On his way out, he
took another tool. Was he guilty of embezzlement of one, two, or no
tools? Held: Only of the first tool, which he converted while it was in his
possession by virtue of his employment. He had no right to possession of
the tools at the time he took the second.
b. Manner of Misappropriation
Larceny requires caption and asportation with the intent to permanently deprive.
Embezzlement requires intentional conversion. (See below.)
2. Conversion
The conversion required by embezzlement requires only that the defendant deal with the
property in a manner inconsistent with the trust arrangement pursuant to which he holds it.
No movement or carrying away of the property is required. The conversion need not result in
direct personal gain to the defendant.
Example: A trustee who siphons off trust fund money in order to donate to a favorite
charity is as guilty of embezzlement as the trustee who uses the converted
funds to pay his overdue gambling debts.
3. Property
Embezzlement statutes are often worded in terms of “property that may be subject to
larceny”; i.e., real property and services may not be embezzled. Some relatively expansive
statutes, however, make embezzlement of real property a crime.
Example: A, an agent with apparent authority to sell B’s real estate, fraudulently trans-
fers the title to a bona fide purchaser. Is A guilty of embezzlement? No, under
the traditional embezzlement statute. Yes, under the more expansive statute.
4. Requirement that Property Be that “Of Another”
Embezzlement requires that the property converted be that of someone other than the
converter. Therefore, a person who borrows money, converts the sum to his own use, and
subsequently fails to repay it is not guilty of embezzlement.
5. Fraudulent Intent
A defendant must intend to defraud for a conversion to become embezzlement. This appears
to be the functional equivalent of larceny’s specific intent to permanently deprive.
a. Intent to Restore
If the defendant intended to restore the exact property taken, it is not embezzlement.
But if he intended to restore similar or substantially identical property, it is embezzle-
ment, even if it was money that was initially taken and other money—of identical
value—that he intended to return.
b. Claim of Right
As in larceny, embezzlement is not committed if the conversion is pursuant to a claim
of right to the property, as where it is retained for payment of a debt honestly believed
to be owed. The fact that the defendant retained the property openly tends to establish a
claim of right.
68. CRIMINAL LAW
C. FALSE PRETENSES
The offense of false pretenses was created by English statute in 1757, and consequently is part
of the common law in those American states that use 1776 as the determining date. Like larceny
and embezzlement, most jurisdictions distinguish grand false pretenses (a felony) from petit false
pretenses (a misdemeanor). The offense of false pretenses generally consists of:
(iii) By a knowing (or, in some states, an intentional) false statement of past or existing fact;
Compare: Same facts as above, except the note purportedly signed by Y is due in 30
days rather than on demand. Based on Y’s good credit, X agreed to convey
full title to the car in exchange for the note. D drove off in the car. D has
committed false pretenses rather than larceny.
2. Misrepresentation Required
There are several limits upon the misrepresentations required for false pretenses. (These also
apply to larceny by trick.)
5. Related Crimes
Many states have enacted specific legislation covering certain conduct that resembles the
crime of false pretenses but is sufficiently different to warrant separate consideration.
D. ROBBERY
Robbery, a felony in all jurisdictions, consists of the following:
(i) A taking;
70. CRIMINAL LAW
Thus, robbery is basically an aggravated form of larceny in which the taking is accomplished by
force or threats of force.
4. Aggravated Robbery
Statutes often create a form of aggravated robbery, usually defined as robbery accomplished
with a deadly weapon.
E. EXTORTION
Extortion is an offense that generally has been expanded by modern statutes far beyond its initial
common law definition.
2. Modern Definition—Blackmail
In many modern statutes, extortion (or blackmail) is defined as obtaining property from
another by means of certain oral or written threats. The prohibited threats often include
threats to do physical harm to the victim or others, or threats to damage the victim’s
CRIMINAL LAW 71.
property. Under some statutes, the crime is completed when the threats are made with the
intent to obtain money or something of value; the threat is the essence of the offense. Under
other statutes, the money or property must actually be obtained by means of the threats.
(v) With the intent to permanently deprive the owner of his interest in the property.
1. Possession
Manual possession of the property, while sufficient for “receiving,” is not necessary. It is also
receiving if: (i) the thief places the stolen property in a place that the defendant has desig-
nated; or (ii) for profit, the defendant arranges for a sale of the property by the thief to a third
person.
2. “Stolen” Property
Most jurisdictions define “stolen” property broadly to include property obtained by commis-
sion of any of the property offenses. However, the property must have “stolen” status at the
time it is received by the defendant. Thus, if stolen goods have been recovered by the police
and are used in an undercover operation with the owner’s permission, the goods are not
stolen and the defendant cannot be guilty of receipt of stolen property; however, the defen-
dant may be guilty of attempt to receive stolen goods (see IV.D.3.a.2)a), supra).
H. FORGERY
At common law, forgery and uttering a forged instrument are separate offenses.
1. Forgery
Forgery consists of the following:
a. Making or altering;
b. Of a false writing;
a. Offering as genuine;
Writings that derive their value from the mere fact of their existence—historical or artistic
value—cannot be the subject of forgery.
Example: A painted a picture and signed it “Rembrandt.” She then sold it to X, repre-
senting it as an original “Rembrandt.” Is A guilty of forgery? No, because the
CRIMINAL LAW 73.
picture and signature derive their value from the fact of their existence. (Note:
A did commit false pretenses by the sale.)
2) B obtains blank receipts from A’s warehouse, fills them in so they repre-
sent that certain grain has been received, and signs A’s name. Is this forgery?
Held: Yes. The instruments purport to be what they are not, i.e., warehouse
receipts issued by one with authority to do so.
5. Required “Making”
I. MALICIOUS MISCHIEF
The common law misdemeanor of malicious mischief consists of:
(i) Malicious;
1. Damage Required
Destruction of the property is not required for malicious mischief. All that is necessary is
that some physical damage be done that impairs the utility of the property or materially
diminishes its value.
74. CRIMINAL LAW
A. BURGLARY
At common law, the elements of burglary are:
(i) A breaking;
(iv) Of another;
(v) At nighttime;
1. Breaking Required
b. Constructive Breaking
Constructive breaking consists of gaining entry by means of fraud, threat, or intimida-
tion, or by use of the chimney.
Example: P wants to get into V’s apartment to commit a felonious assault on V,
but V’s door is securely locked. P knocks and when V asks who it is, P
responds, “I am a friend of your brother and he asked me to deliver this
message to you.” V then unlocks the door and invites P in. P enters. P
has never met V’s brother. Is P guilty of burglary? Yes. Since entry was
obtained by fraud, this is constructive breaking.
during limited periods, however, will not prevent entry by force at other times from
being a breaking. Moreover, if the consent was procured by fraud or threats, this is a
constructive breaking.
2. Entry Required
Entry is made by placing any portion of the body inside the structure, even momentarily.
Insertion of a tool or inanimate object into the structure is entry if it is inserted for the
purpose of accomplishing the felony. It is not sufficient if it is inserted for purposes of
gaining entry.
Examples: 1) A approached B’s dwelling and shot a bullet through his window, intending
to kill B. Has A committed burglary? Held: Yes. He has inserted an inanimate
object into the dwelling by breaking for the purpose of committing the felony.
2) Z intends to go into V’s house and steal valuable jewels from a safe. He
carefully cuts out a small portion of glass from a window and reaches in with
his hand to unlock the window. At that point he is apprehended. Is Z guilty of
burglary? Yes. His hand had “entered” the dwelling.
5. Requirement of Nighttime
Burglary could be committed only during the nighttime, defined as that period during which
the countenance of a person could not be discerned by natural light.
76. CRIMINAL LAW
b. Remaining in a Structure
It is often a burglary to remain concealed in a structure with the intent to commit an
offense.
B. ARSON
At common law, arson consists of:
(ii) Burning;
(iv) Of another.
1. Requirement of a “Burning”
a. Necessity of Fire
At common law, the required damage (see below) must be caused by fire; damage
caused by an explosion does not constitute arson.
to complete the crime of arson. But mere blackening by smoke or discoloration by heat
(scorching) is not sufficient. There must be some damage to the fiber of the wood or
other combustible material; this is generally stated as the rule that “mere charring is
sufficient.”
2. “Dwelling”
At common law, dwelling was defined for arson as it was for burglary. (See above.) Most
states by statute extend arson to structures other than dwellings. (Note: Questions on the
Multistate Exam that are testing on other arson issues (e.g., malice) will often assume
without saying that the jurisdiction’s arson law applies to structures other than dwellings.)
5. Related Offenses
a. Houseburning
The common law misdemeanor of houseburning consists of:
2) Burning;
a) In a city or town; or
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.
A. PERJURY
A misdemeanor at common law, perjury consisted of the willful and corrupt taking of a false oath
in regard to a material matter in a judicial proceeding.
1. Materiality
Materiality is an element of this offense, which must be alleged in the indictment and proved
by the prosecution. The statement is material if it might affect some phase or detail of the
trial, hearing, declaration, etc.
2. Contradictory Statements
If a witness has made two contradictory statements at the same proceeding and admits,
before the end of the proceeding, that one of the statements is false, he cannot be prosecuted
for having made the false statement. This is to encourage witnesses to correct any false state-
ments they may have made before substantial damage is caused.
3. Civil Liability
In litigation brought under 42 U.S.C. section 1983 (Civil Rights Act), all witnesses—
including police officers—are absolutely immune from civil liability based on their testi-
mony (i.e., alleged perjury) in judicial proceedings. [Briscoe v. LaHue, 460 U.S. 325 (1983)]
B. SUBORNATION OF PERJURY
A separate offense at common law, subornation of perjury consists of procuring or inducing
another to commit perjury. In some states, this is not part of the perjury statute.
C. BRIBERY
The common law misdemeanor of bribery consisted of the corrupt payment or receipt of anything
of value in return for official action. Under modern statutes, it can be a felony, and it may be
extended to classes of persons who are not public officials (e.g., athletes). Either the offering of a
bribe or the taking of a bribe may constitute the crime.
D. COMPOUNDING A CRIME
At common law, the misdemeanor of compounding a crime consisted of entering into an
agreement for valuable consideration to not prosecute another for a felony or to conceal the
commission of a felony or whereabouts of a felon. Under modern statutes, the definition remains
CRIMINAL LAW 79.
essentially the same, except that it refers to any crime (not only felonies). A few states make it a
felony offense.
E. MISPRISION OF A FELONY
At common law, the misdemeanor of misprision of a felony consisted of the failure—by someone
other than a principal or accessory before the fact—to disclose or report knowledge of the
commission of a felony. Misprision was distinguished from compounding a crime in that no
passage of consideration was required for the former. Today, most jurisdictions do not recognize
the crime of misprision of a felony. In these jurisdictions, therefore, a person is under no obliga-
tion to report a crime.
CMR
APPROACH
CLASSIFICATION OF CRIMES
CHART
burglary arson larceny embezzlement false robbery murder manslaughter felony battery assault false kidnapping rape
pretenses murder imprisonment
(see homicide crimes chart)
CRIMINAL LAW CHARTS 1.
2. CRIMINAL LAW CHARTS
CMR
SUMMARY
DEFENSES NEGATING CRIMINAL CAPACITY
CHART
Intoxication
– Voluntary Voluntary, intentional taking Defense to specific intent
of a substance known to be crime if intoxication prevents
intoxicating formation of required intent
Diminished Capacity As a result of mental defect Most states with this defense
(some states) short of insanity, defendant did limit it to specific intent
not have the required mental crimes
state to commit the crime
CRIMINAL LAW CHARTS 3.
CMR
SUMMARY
JUSTIFICATION DEFENSES
CHART
Effectuate Arrest
CMR
APPROACH HOMICIDE CRIMES
CHART
Yes
Did defendant
have the intent
Did the killing to kill or inflict
Was the crime a occur during the
dangerous Yes No great bodily
commission of harm, or
felony? a crime? recklessly
disregard great
risk to human
life?
Yes No Yes No
Yes No Yes No
Note: This chart will lead you to the prima facie homicide that defendant committed. You must then
decide whether any defenses apply.
CRIMINAL LAW MULTIPLE CHOICE QUESTIONS 1.
INTRODUCTORY NOTE
You can use the sample multiple choice questions below to review the law and practice your under-
standing of important concepts that you will likely see on your law school exam. To do more questions,
access StudySmart Law School software from the BARBRI website.
Question 1 Question 2
The accused was driving his beat-up old car After drinking heavily at his bachelor party at
along a narrow road when he was passed by the a beachfront resort, the groom was helped into
victim in her new car. The victim’s daughter a speedboat by a few of his friends and trans-
was lying down in the back seat and could not ported to a small island off the coast as a joke.
be seen. The accused sped up, drew even with They left him on the island, which had a small
the victim, and repeatedly rammed his car shelter but no communication facilities, without
into the side of the victim’s car. After several telling anyone else. As a result, the groom
collisions, the victim was forced off the road, missed his wedding the next day. One of the
rolling down a cliff for several yards. Due to the participants was charged with kidnapping, which
rolling, both the victim and her daughter were is defined in the jurisdiction as the unlawful
severely injured. The accused was charged with movement or concealment of a person without
attempted murder of both of them. At his trial, his consent. In his defense, the participant claims
he testifies that he was angry because of the that he was so intoxicated that he did not realize
cavalier way the victim passed him in her new what he was doing, and that the groom had
car, and that his only intent in smashing into her consented to being left on the island.
car was to scratch and dent it so that she would
not be so haughty in the future. Which of the following would not be helpful
to his defense?
Assuming that the jury believes this testi-
mony, of whom may the accused be convicted of (A) The groom was not legally intoxicated that
attempted murder? evening.
(D) Neither the victim nor her daughter. (D) The participant had overheard the groom
say that he was not sure about going
through with the wedding.
2. CRIMINAL LAW MULTIPLE CHOICE QUESTIONS
Question 3 Question 4
The defendant and the victim got into a minor An obsessive fan was heartbroken when her
verbal altercation, concluding with the defendant favorite actor announced his engagement to
lightly shoving the victim. The victim lost his a well-known actress. The fan waited for the
balance and struck his head on the pavement, couple outside of a nightclub. When they arrived,
causing serious bodily injury. The defendant was the fan raised a gun and fired it at the actress,
charged with battery, which is defined in the but as she fired, the actor’s bodyguard spotted
jurisdiction as “purposely or knowingly causing the gun and knocked it to one side. The bullet
serious bodily injury to another.” grazed the bodyguard’s hand, causing minor
injuries, and lodged in the actor’s chest. Through
Should the defendant be convicted of battery? prompt emergency medical treatment, the actor
survived the shooting.
(A) No, because the defendant did not know
that the victim would be seriously injured. Of whom may the fan be charged with
attempted murder?
(B) No, because the defendant did not strike a
serious blow to the victim. (A) The actress.
Question 5 Question 6
A kidnapper and his cohort hatched a scheme A petty thief and a felon decided to meet at
to kidnap the son of a wealthy man and hold the mall, armed with a gun or knife, to look
him for ransom. After conducting a surveillance for elderly women wearing expensive jewelry,
of the wealthy man’s home, they decided that intending to follow them home and rob them.
they would have to have inside help to disable The felon pocketed a gun and headed to the
the alarm at the home. They agreed that the mall. The thief headed to the mall also, but
kidnapper would contact the man’s butler, who began to have second thoughts when he consid-
they learned was heavily in debt and frequented ered that the felon had already done time
a local racetrack during his time off. The butler for armed robbery and assault with a deadly
would be offered money to disconnect the alarm weapon, and that he had vowed that he would
on the night of the planned kidnapping. Shortly never “do time” again because “somebody
before the kidnapper was to go to the track to finked to the cops.” The thief told the felon when
make contact with the butler, the cohort had a they met at the mall that he had changed his
change of heart about the scheme and contacted mind and wanted no part of the action, and went
the butler. He warned the butler not to have home. That evening, the felon robbed and beat
anything to do with the kidnapper. The butler an elderly woman returning home from the mall.
met with the kidnapper anyway and pretended Because of her ill health and age, the woman
to go along with his proposal, accepting the died as a result of the beating.
down payment that the kidnapper offered. After
meeting with him, the butler contacted the Of what crime is the thief guilty?
authorities.
(A) No crime.
The kidnapper and cohort are charged with
conspiracy in a jurisdiction that follows the (B) Conspiracy.
common law rule for conspiracy.
(C) Murder.
What is the most likely result?
(D) Murder and conspiracy.
(A) Both the kidnapper and cohort are guilty of
conspiracy because the cohort agreed with
the kidnapper to commit the offense.
Question 7 Question 8
The crimes below are listed in descending (C) The accomplice only.
order of seriousness.
(D) Neither the store owner nor the accomplice.
If the enforcer is charged with the pawnshop
owner’s killing, what is the most serious crime
for which he can be convicted?
Question 9 Question 10
A thief looking for targets in a hotel lobby The defendant wanted to borrow his neigh-
one evening spotted the victim wearing what bor’s car to go shopping for lawnmowers.
appeared to be expensive jewelry as she checked Knowing that the neighbor was out of town for
into the hotel. After finding out the victim’s the weekend, the defendant opened the neigh-
room number, the thief broke into a supply bor’s garage door and took a car key that the
room and put on a bellhop’s uniform. She then neighbor hid in an old coffee can for emergen-
grabbed some flowers from a vase in the hall cies. Once inside, the defendant, mistakenly
and knocked on the door to the victim’s room, believing that larceny applied only to the taking
announcing the delivery of a bouquet of flowers. of items valued at over $100, decided to take the
After the victim let her in, the thief scanned the neighbor’s lawnmower (worth $75) in order to
room for the jewelry while putting the flowers trade it in on a new mower. However, on the way
in a vase. When she did not see the jewelry, she to the store with the mower, he was involved in
pulled out a knife and forced the victim to reveal an automobile accident, totaling the car.
the whereabouts of the jewelry, which turned out
to be the hotel’s safe. The thief made the victim In a common law jurisdiction, of what
call the front desk and ask that someone bring property is the defendant guilty of larceny?
the jewelry to the room. The thief then locked
the victim in the bathroom, changed out of the (A) Both the car and the mower.
bellhop’s uniform, and accepted the jewelry
when it was brought to the room. She was appre- (B) Neither the car nor the mower.
hended a few days later trying to sell the jewelry.
(C) The car, but not the mower.
Under these facts, what are the most serious
crimes the thief can be convicted of? (D) The mower, but not the car.
Question 11 Question 12
(A) Larceny for the money and embezzlement If the homeowner is charged with arson in
for the wine. a jurisdiction retaining the common law rules,
what is the likely verdict?
(B) Embezzlement for the money and larceny
for the wine. (A) Not guilty, because he did not have the
requisite intent to burn the dwelling of
(C) Larceny for both the money and the wine. another.
(D) Embezzlement for both the money and the (B) Not guilty, because he realized his mistake
wine. before any burning of the dwelling
occurred.
Answer to Question 1
(D) The accused may not be convicted of attempted murder because he lacked the necessary intent.
A criminal attempt consists of (i) a specific intent to commit the crime; and (ii) an overt act in
furtherance of that intent. In other words, the defendant must have the intent to perform an act
and obtain a result that would constitute the crime charged if achieved. Regardless of the intent
required for the completed offense, an attempt always requires a specific intent. Thus, attempted
murder requires the specific intent to kill another person, even though the mens rea for murder
itself does not require a specific intent—had the victim or her daughter died, the accused could
be convicted of murder because malice aforethought can be established here by awareness of
an unjustifiably high risk to human life (i.e., “abandoned and malignant heart”). However, the
accused did not have the intent to kill either victim, so he lacked the intent necessary for attempt.
(D) is therefore correct, and (A), (B), and (C) are incorrect. In answering questions such as this,
remember to be objective and answer the question asked. Although the accused is surely guilty of
some crimes (e.g., assault and battery), he is not guilty of the crime charged.
Answer to Question 2
(B) It would be least helpful to a kidnapping participant’s defense if kidnapping were a general intent
crime in the jurisdiction. Although courts have not always clearly defined “general intent,” the
mental state required for the material elements of the offense are analogous to “recklessness”
under the Model Penal Code: conscious disregard of a substantial or unjustifiable risk that the
material element exists or will result from his conduct. Thus, the defendant need not be certain
that his conduct will cause the result or that the attendant circumstances required by the crime
exist; it is enough if he is aware of a high likelihood of that result or circumstance. In contrast, a
specific intent crime requires the doing of an act with a conscious intent or objective. Most impor-
tantly for the participant’s purposes, defenses such as voluntary intoxication and unreasonable
mistake of fact are not recognized as defenses to general intent crimes, but are for specific intent
crimes. If the jurisdiction treats kidnapping as a specific intent crime, the participant’s intoxica-
tion could be used to show that he was incapable of forming the requisite intent or that he mistak-
enly believed that the groom had consented to being left on the island. For specific intent crimes,
any mistake of fact, even if unreasonable, is a defense. In contrast, voluntary intoxication is not a
defense to a general intent crime, and any mistake of fact offered to negate a general intent must
be reasonable to be valid. Hence, it would be helpful to the participant’s defense if the jurisdic-
tion treated the offense as a specific intent crime, but not if it were treated as a general intent
crime. Thus, (B) is correct because it is not helpful, and (C) is incorrect because it is helpful. (D)
is incorrect because that fact may be helpful to the participant’s defense. If he believed that the
groom wanted to be left on the island, he may not have had the intent required for the offense.
(A) is incorrect because it is helpful to the participant’s defense. The offense is defined as the
unlawful movement or concealment of a person without his consent. If the participant was not
legally intoxicated, his consent would be a valid defense; if he was legally intoxicated, it could be
argued that he was incapable of consenting, thus negating the participant’s defense.
Answer to Question 3
(A) The defendant should not be convicted of battery. Under the statute’s fault standards, a defen-
dant must have acted purposely (i.e., with conscious intent to cause the result) or knowingly
(i.e., with knowledge that his conduct will necessarily or very likely cause the result) as to the
8. ANSWERS TO MULTIPLE CHOICE QUESTIONS
harmful result. The apparent inference to be drawn from the facts is that the defendant did not
consciously desire, nor contemplate to a practical certainty, the serious injury to the victim that
actually occurred. Had the defendant intended to cause such severe harm, he no doubt would
have dealt the victim a strong blow rather than simply giving the victim a light shove. Therefore,
as to the nature of the result, the defendant did not act with “purpose” or “knowledge” as those
terms are defined in the Model Penal Code and modern criminal codes. (B), while close, is not
as good an answer as (A) because it does not address the state of mind issue in the problem. A
light shove might be sufficient for a battery as defined under a different set of facts (e.g., if the
defendant believes that the victim would fall down stairs with a light shove). (C) is incorrect
because it addresses the act but not the result. As defined in this question, battery must not only
be committed by a purposeful act, but also be done with a “purposeful” or “knowing” state of
mind as to the result. (D) is incorrect for much of the same reason—the state of mind requirement
also applies to the result, as discussed above. The injury must have been purposely or knowingly
caused, and that concept is not contained within choice (D).
Answer to Question 4
(A) The fan should be charged with the attempted murder of her original target, the actress. A criminal
attempt is an act that, although done with the intention of committing a crime, falls short of
completing the crime. The fan fired a gun at the actress; her intentional use of a deadly weapon
permits an inference that she had the intent to kill the actress. If her plan had succeeded, she would
have been guilty of murder. (B), (C), and (D) are incorrect because the fan did not have the intent
to kill the actor. Had the fan actually killed the actor, her intent to kill the actress could have been
transferred to make her guilty of murdering the actor, but the doctrine of transferred intent does not
apply to an attempt. (D) is also incorrect because the fan did not have intent to kill the bodyguard.
Answer to Question 5
(A) Both the kidnapper and the cohort are guilty of conspiracy. At common law, a conspiracy was an
agreement between two or more persons to commit an unlawful act or to commit a lawful act in
an unlawful manner. The elements are: (i) an agreement between two or more persons; (ii) the
intent to enter into an agreement; and (iii) the intent to achieve the objective of the agreement.
When the kidnapper and the cohort decided to kidnap the wealthy man’s son, they were guilty of
common law conspiracy, which did not require an overt act in furtherance of the conspiracy. (A
majority of states now require an overt act in furtherance of the conspiracy, but mere preparation,
such as the surveillance here, suffices.) (B) is wrong for two reasons: If a person withdraws from
a conspiracy, he is no longer liable for future crimes committed in furtherance of the conspiracy,
but he remains liable for the crime of conspiracy, which was complete at the time of the agree-
ment. Second, to have a successful withdrawal, a person must communicate the withdrawal to
his co-conspirators, which the cohort did not do. (C) is also wrong for two reasons: First, the
cohort is still liable for conspiracy. Second, even if his withdrawal relieved him from liability for
subsequent offenses, the kidnapper could still be convicted of conspiracy. (D) is wrong because,
at common law, both parties must have the intent, at the time of the agreement, to commit the
unlawful act. Given that the butler did not have the necessary intent, neither he nor the kidnapper
can be convicted of conspiracy with respect to their conversations.
Answer to Question 6
(B) The thief’s withdrawal from the conspiracy absolves him of liability for the subsequent murder
committed by the felon, but does not provide a defense to the crime of conspiracy. Conspiracy
consists of: (i) an agreement between two or more persons; (ii) an intent to enter into an
ANSWERS TO MULTIPLE CHOICE QUESTIONS 9.
agreement; and (iii) an intent to achieve the objective of the agreement. In addition, most states
require an overt act in furtherance of the conspiracy (although an act of mere preparation will
suffice). Each conspirator is liable for the crimes of all other conspirators if such crimes were
committed in furtherance of the objectives of the conspiracy and they were a natural and probable
consequence of the conspiracy, i.e., foreseeable. However, if a conspirator has made a legally
effective withdrawal from the conspiracy at the time of commission of such a crime, he will
not be liable for that crime. Withdrawal requires an affirmative act that notifies all members
of the conspiracy and is done in time for them to have the opportunity to abandon their plans.
Withdrawal, however, will not be a defense to the conspiracy charge itself. The thief and the felon
agreed to rob elderly women whom they followed home from the shopping center. They intended
to enter into this agreement and to achieve its objective (to rob the women). The felon’s going to
the mall at the agreed-on time, armed with a gun, constitutes a sufficient act in furtherance of the
conspiracy. (Note that the overt act may be performed by any one of the conspirators.) Conse-
quently, all of the elements of conspiracy have been satisfied. Given that he cannot use withdrawal
from the conspiracy as a defense to that charge, the thief will be convicted of conspiracy. (A) is
therefore incorrect. Ordinarily, the thief would also be guilty of the woman’s murder. The killing
resulted from a beating administered during the course of the robbery; thus, it was committed in
furtherance of the conspiracy’s objective. Also, it was foreseeable that death might result where
all of the intended victims were elderly women. However, the thief had withdrawn from the
conspiracy prior to the time the killing was committed. He made an effective withdrawal when he
explicitly told the felon that he no longer wanted any part of the plan at a time when there was still
an opportunity to abandon the plan. Thus, criminal liability for the killing will not attach to the
thief, and (C) and (D) are therefore incorrect.
Answer to Question 7
(C) The most serious crime for which the enforcer can be convicted is murder in the third degree.
Under the statute in the question, all murders are third degree murder unless the prosecution
proves any of the stated requirements for first or second degree murder, and here the facts do not
establish any of those requirements. (A) is incorrect. The enforcer did not commit an intentional
and premeditated killing because the facts state that he acted only with the intent to injure. (B)
is incorrect because, while assault with a deadly weapon may be a dangerous felony, the felony
murder rule can be applied only when the underlying felony is independent of the killing. A felony
such as assault or battery that directly causes death (as in this case) would not be considered an
independent felony. (D) is incorrect because the enforcer can be convicted of the more serious
crime of third degree murder, because he acted with the intent to cause serious bodily injury and
death occurred. This satisfies the malice aforethought requirement for common law murder.
Answer to Question 8
(B) The robber can be found guilty of felony murder of the store owner only. This choice represents
an exception to the general rule that almost any death occurring in the course of a felony is felony
murder. In the majority of jurisdictions, the robber would not be held guilty of felony murder
for a justifiable killing of a co-felon by a police officer. The Redline view (the majority position)
holds that the killing of a felon by a police officer or resisting victim cannot be the basis for felony
murder. Thus, (A) and (C) are incorrect. (C) and (D) are incorrect because a person has no right
of self-defense when he is the aggressor, and especially if he is engaged in a felony. The store
owner, who was the victim of this felony, had the right to use at least the threat of force against
the robber. Because the death occurred in the course of the felony, and the robber had no right of
self-defense, he is guilty of felony murder, as well as deliberate premeditated murder.
10. ANSWERS TO MULTIPLE CHOICE QUESTIONS
Answer to Question 9
(B) The thief can be convicted of burglary and robbery. At common law, the elements of burglary are:
(i) a breaking (ii) and entry (iii) of the dwelling (iv) of another (v) at nighttime, (vi) with the intent
to commit a felony therein. Here, the thief has committed a constructive breaking because she
gained entry by means of a fraud. The hotel room constitutes a dwelling for purposes of burglary,
and the thief apparently had the intent to commit larceny when she entered the room. The thief
has also committed robbery, which is defined as (i) a taking (ii) of personal property of another
(iii) from the other’s person or presence (iv) by force or intimidation, (v) with the intent to perma-
nently deprive the other of the property. The “presence” element is satisfied if the victim is in the
vicinity when the property is taken. The thief used the threat of force against the victim to obtain
the property, and obtained it while the victim was locked in the bathroom of the hotel room, and
therefore in the vicinity. Thus, she can be convicted of both burglary and robbery, making (C) and
(D) incorrect. (A) and (C) are incorrect because the elements of larceny are contained within the
more serious offense of robbery, which is basically an aggravated form of larceny.
Answer to Question 10
(D) The defendant is guilty of larceny of the mower, but not the car. Larceny is the taking and
carrying away of the personal property of another by trespass with the intent to permanently (or
for an unreasonable time) deprive the other of his interest in the property. The intent to perma-
nently deprive may be found when the defendant intends to use the property in such a manner
as to create a substantial risk of loss. As to the mower, the defendant took and carried away the
mower with the intent to permanently deprive his neighbor of it. The defendant’s mistake as to the
coverage of the criminal law does not negate his intent to commit the crime, and thus provides
no mistake of law defense. Thus, (B) and (C) are incorrect. However, the defendant is not guilty
of larceny of his neighbor’s car because he did not have the intent to permanently deprive the
neighbor of the car; rather, his intent was to borrow the car. Furthermore, merely driving a car
does not constitute a use that creates a substantial risk of loss sufficient to find the intent to perma-
nently deprive the neighbor of the car. As a result, (A) and (B) are incorrect.
Answer to Question 11
(C) The cashier is guilty of larceny in both cases. Larceny is the taking and carrying away of tangible
personal property of another by trespass, with the intent to permanently deprive the other of his
interest in the property. The cashier is guilty of larceny in the case of the money, even though she
originally had possession of the fifty dollar bill when she first received it from the customer. If
she had converted it at that time, she would have been guilty of embezzlement because the money
never reached the possession of her employer. However, when she placed the bill in the cash
register, the employer then obtained possession of the bill, and the cashier’s rights over the money
were reduced to custody. When she took the bill from the cash register at the end of the day, she
committed a trespassory taking from her employer’s possession and therefore committed larceny.
(B) and (D) are therefore incorrect. The cashier is also guilty of larceny in the case of the wine.
Here, as a bailee she clearly was in possession of the entire trailer. However, when she entered
the trailer and took one wine bottle, she broke bulk, and possession of the wine bottle is deemed
to revert back to the owner of the wine. Thus, when she removed that bottle from its place in the
trailer with the intention of depriving its owner of the wine permanently, she committed larceny;
hence, (A) and (D) are incorrect.
ANSWERS TO MULTIPLE CHOICE QUESTIONS 11.
Answer to Question 12
(C) The homeowner should be found guilty. Common law arson consists of the malicious burning
of the dwelling of another. At common law, the state of mind required—malice—is satisfied not
only by intentionally burning the dwelling of another but also by acting with reckless disregard
of an obvious risk that the structure would burn. While many courts ordinarily require that the
defendant be subjectively aware of the risk, they will find malice when the failure to be aware
of the risk is due to voluntary intoxication. Even had the homeowner done what he intended,
he would have put his neighbor’s house in jeopardy of burning. The fact that his intoxication
caused him to fail to recognize the risk would not be a defense. Nor could he raise a mistake of
fact defense because mistake of fact must be reasonable to negate the existence of malice, and
here the facts state that his mistake was caused by his intoxication. (A) is incorrect because the
malice required for common law arson may be satisfied by something less than the intent to burn
down the dwelling of another, and here malice is established. (B) is incorrect because he caused
a burning of the back porch, which is part of the dwelling, with the requisite malice; his conduct
once he realized his mistake is irrelevant to his guilt. (D) is incorrect because his intent to burn
down his own house does not constitute an intent to commit arson, which at common law is the
burning of the house of another. His intent to burn down his own house also constituted malice
for purposes of the burning of his neighbor’s house, but not because of the doctrine of transferred
intent.
APPROACH TO CRIMINAL LAW 1.
APPROACH TO EXAMS
CRIMINAL LAW
IN A NUTSHELL: A person who actually commits a physical act that has been made illegal by law
with the accompanying state of mind may be charged with and convicted of a crime. (If either the
act or intent is lacking, the defendant is not guilty of that crime.) Additionally, any person who is an
accomplice to that person also may be charged with and convicted of the crime. The law will list the
physical acts and mental state(s) required for crime; these are called elements of the crime. Crimes
include not only actual criminal acts, but also certain preparatory crimes (“inchoate offenses”). The
study of crimes requires the study of the elements of the offense and the elements of a defense that the
accused may raise.
A. Physical Act
1. Must be voluntary act
B. Mental State
1. Specific intent
a. Requires doing an act with a specific intent or objective
b. Cannot infer specific intent from doing the act
c. Major specific intent crimes are solicitation, attempt, conspiracy, assault, larceny,
robbery, burglary, forgery, false pretenses, embezzlement, and first degree premeditated
murder
2. Malice
a. Applies to common law murder and arson
b. Generally shown with (at least) reckless disregard of an obvious or high risk that a
particular harmful result would occur
3. General intent
a. Defendant must be aware that she is acting in the proscribed manner and that any atten-
dant circumstances required by the crime are present
b. Can infer general intent from doing the act
4. Model Penal Code
a. Purposely—conscious object to engage in act or cause a certain result
b. Knowingly—as to nature of conduct: aware of the nature of conduct or that certain
circumstances exist; as to result: knows that conduct will necessarily or very likely
cause result
c. Recklessly—conscious disregard of a substantial and unjustifiable risk that circum-
stances exist or a prohibited result will follow, and this disregard is a gross deviation
from a “reasonable person” standard of care
d. Negligently—failure to be aware of a substantial and unjustifiable risk that circum-
stances exist or a prohibited result will follow, and this disregard is a gross deviation
from a “reasonable person” standard of care
required. Mere presence not enough even if by presence defendant seems to be consenting to
the crime or even if defendant fails to notify the police
2. If crime is one of recklessness or negligence, accomplice must intend to facilitate commis-
sion and act with recklessness or negligence
3. Liability is for the crime itself and all other foreseeable crimes
4. Accessory after the fact (is not an accomplice)
a. Helping someone escape
1) Not liable for the crime itself
2) A separate lesser charge
B. Defenses
1. Withdrawal is an affirmative defense if prior to the crime’s commission
a. If encouraged crime, must repudiate encouragement
b. If provided material, must neutralize the assistance
c. Or may notify police or otherwise act to prevent crime
A. Solicitation
1. Elements:
a. Asking someone to commit a crime
b. With the intent that the crime be committed
2. Defenses:
a. The refusal or the legal incapacity of the solicitee is no defense
b. If legislative intent is to exempt solicitor, that is a defense
B. Conspiracy
1. Elements:
a. An agreement;
b. An intent to agree;
c. An intent to achieve the objective of the agreement; and
d. An overt act (most jurisdictions)
2. Liability—each conspirator is liable for all crimes of other conspirators if foreseeable and in
furtherance of the conspiracy
3. Defenses:
a. Withdrawal
1) General rule—can only withdraw from liability for future crimes; no withdrawal
from conspiracy possible because agreement coupled with act completes crime of
conspiracy
2) M.P.C. recognizes voluntary withdrawal as defense if the defendant thwarts
conspiracy (e.g., informs police)
b. Factual impossibility is no defense
4. Merger
a. No merger—can be convicted of both conspiracy and substantive offense
C. Attempt
1. Elements:
a. Specific intent; and
APPROACH TO CRIMINAL LAW 3.
b. Overt act—a substantial step in the direction of the commission of the crime (mere
preparation not enough)
2. Defenses:
a. Factual impossibility is no defense
1) Factual impossibility arises when defendant sets out to do an illegal act, but cannot
complete the act due to some unknown reason
b. True legal impossibility is always a defense
1) Legal impossibility arises when defendant sets out to do a legal act that he believes
is illegal
c. Abandonment generally no defense after the substantial steps have begun
1) M.P.C. recognizes abandonment as defense if (i) fully voluntary and (ii) complete
(i.e., not a postponement due to unfavorable circumstances)
IV. DEFENSES/JUSTIFICATION
A. Insanity
1. M’Naghten test—disease of the mind caused a defect of reason so defendant lacked the
ability at time of his actions to know wrongfulness or understand nature and quality of
actions
2. Irresistible impulse test—unable to control actions or conform conduct to law
3. Durham test—crime was product of mental disease or defect
4. M.P.C. test—combination of M’Naghten and irresistible impulse tests
B. Intoxication
1. Voluntary intoxication is a defense if it negates “specific intent”
C. Self-Defense
1. Nondeadly force (“NDF”)—a person may use NDF in self-defense if she reasonably believes
force is about to be used on her; no duty to retreat
2. Deadly force (“DF”)
a. A person may use DF if she is:
1) Without fault;
2) Confronted by unlawful force; and
3) Reasonably believes that she is threatened with imminent death or great bodily
harm
b. Duty to retreat before using DF
1) Majority rule—no duty to retreat
2) Minority rule—duty to retreat, except:
a) When it cannot be done safely, and
b) In one’s home
c. DF in self-defense may be used by original aggressor only if he tries to withdraw (e.g.,
run for door) and communicates that withdrawal to the original victim, or if sudden
escalation of violence by original victim
d. Use of DF to arrest—officer must reasonably believe suspect armed or presents a danger
to the public
e. If fact-finder determines absence of right to self-defense, defendant may be guilty of
voluntary manslaughter under “imperfect self-defense” theory
3. Defense of others or dwelling
4. APPROACH TO CRIMINAL LAW
D. Necessity
1. Choice of evils—harm to society exceeded by harm of criminal act
a. Objective test
b. Not available if defendant is at fault for creating situation requiring choice
c. Traditionally, choice had to arise from natural forces; modern cases do not have this
requirement
E. Duress
1. Defendant performs a criminal act under a threat of death or serious bodily harm to him or
another
a. Threat must be made by another human
b. Traditionally, threat to property was not sufficient; MPC now recognizes threat to
property as sufficient if harm threatened outweighs harm of criminal act
F. Mistake
1. Mistake of fact
a. Must negate state of mind
b. Malice and general intent crimes—mistake must be reasonable
c. Specific intent crimes—mistake can be reasonable or unreasonable
d. Strict liability—mistake is not a defense
2. Mistake of law
a. Generally not a defense
G. Entrapment
1. Elements:
a. Criminal design originated with authorities; and
b. Defendant was not predisposed to commit crime
V. HOMICIDE
A. Murder
1. Elements of common law murder:
a. Unlawful;
b. Killing of another human being; and
c. With malice aforethought
1) Malice means
a) Intent to kill;
b) Intent to do serious bodily harm;
c) Reckless indifference to unjustifiably high risk to human life (depraved heart
murder); or
d) Felony murder
d. One of these four intents plus a lack of justification and no provocation and the defen-
dant kills—what is the crime? Common law murder
APPROACH TO CRIMINAL LAW 5.
2. Defenses:
a. Justification (self-defense); and
b. Provocation (reduces the crime to voluntary manslaughter)
3. Felony murder:
a. If defendant has a substantive defense to the underlying felony, he usually has a defense
to felony murder; “procedural” defenses (e.g., statute of limitations) generally no
defense
b. The killing must be foreseeable
c. Deaths caused while fleeing from a felony are felony murder, but deaths that arise after
defendant has found some point of temporary safety are not
d. Majority rule—defendant is not liable for felony murder for the death of a co-felon as a
result of resistance by the victim or the police
B. Manslaughter
1. Two kinds—voluntary and involuntary
2. Voluntary manslaughter
a. Elements:
1) Adequate provocation;
2) Gave rise to heat of passion; and
3) No adequate cooling-off period
b. Failed self-defense claim is voluntary manslaughter
3. Involuntary manslaughter
a. Types:
1) Killing resulting from criminal negligence; or
2) Misdemeanor manslaughter
C. Causation
1. General rule—defendant is liable for all natural and probable consequences of his conduct
unless the chain of causation is broken by the intervention of some superseding factor
a. Superseding factors:
1) Acts of nature;
2) Coincidence; or
3) Negligent medical care not a superseding factor unless gross negligence or inten-
tional malpractice
b. Two commonly encountered rules:
1) Hastening an inevitable result; and
2) Simultaneous acts by two or more parties
c. Add a causation analysis to any homicide question that presents the issue
INTRODUCTORY NOTE
The essay questions that follow have been selected to provide you with an opportunity to experience
how the substantive law you have been reviewing may be tested in the hypothetical essay examination
question context. These sample essay questions are a valuable self-diagnostic tool designed to enable
you to enhance your issue-spotting ability and practice your exam writing skills.
It is suggested that you approach each question as though under actual examination conditions.
The time allowed for each question is 60 minutes. You should spend 15 to 20 minutes spotting issues,
underlining key facts and phrases, jotting notes in the margins, and outlining your answer. If you
organize your thoughts well, 40 minutes will be more than adequate for writing them down. Should
you prefer to forgo the actual writing involved on these questions, be sure to give yourself no more
time for issue spotting than you would on the actual examination.
The BARBRI technique for writing a well-organized essay answer is to (i) spot the issues in a
question and then (ii) analyze and discuss each issue using the “CIRAC” method:
C — State your conclusion first. (In other words, you must think through your answer before you
start writing.)
I — State the issue involved.
R — Give the rule(s) of law involved.
A — Apply the rule(s) of law to the facts.
C — Finally, restate your conclusion.
After completing (or outlining) your own analysis of each question, compare it with the BARBRI
model answer provided herein. A passing answer does not have to match the model one, but it should
cover most of the issues presented and the law discussed and should apply the law to the facts of the
question. Use of the CIRAC method results in the best answer you can write.
CRIMINAL LAW EXAM QUESTIONS 3.
Bob, age 13, and Hal, age 16, bored by the prospect of another long summer afternoon, set out on
their favorite pastime—rummaging through the garages and toolsheds of neighbors. In the past they
had sometimes merely used, but had sometimes also taken, tools kept there. Hal’s younger brother Jim,
age six, tagged along for the first time.
The boys entered Smith’s garage, which was attached to the rear of his home, through the closed
but unlocked garage door. Bob and Hal rummaged through the toolboxes and practiced cutting wood
on the table saw. Jim, alone near a corner shelf in the garage, saw a gold watch that had been left there
inadvertently by Smith. Jim picked up the watch, put it in his pocket, and without a word left for home.
After about an hour in the garage Bob and Hal also left and continued to Jones’s toolshed for the
stated purpose of taking a large screwdriver that had, on a prior occasion, caught Bob’s fancy. Jones’s
shed was detached and about 50 yards from her house. Although the door was always locked, the boys
had never had difficulty in prying open the door, and on this occasion they again broke the lock. As
Hal pushed the door open and stepped into the shed, he was shot in the head, suffering a fatal wound.
On the prior evening Jones had mounted a loaded pistol in the shed, aimed at the door and
connected so that the pistol would discharge if the door were pushed open. Jones told the police she
mounted the gun to protect her property from thieves, that she intended to scare them away and did not
intend to kill anyone. No statute prohibited the use of spring guns.
(1) Bob and Jim are charged with burglary of Smith’s garage and larceny of Smith’s watch.
(2) Bob is charged with burglary of Jones’s toolshed.
(3) Jones is charged with the murder of Hal.
What result as to each charge? Discuss.
4. CRIMINAL LAW EXAM QUESTIONS
John, Max, Rip, and Dopey, all engaged in the illegal numbers racket, planned to burn down the
home of another numbers bookie. Pursuant to the plan, Dopey was given $2 and sent to a nearby gas
station to buy a can of gasoline to start the fire.
On the way, Dopey stopped in a tavern and spent the money on whiskey. Afraid to return without
the gasoline, Dopey went to the station and attempted to fill the can from the pump while the operator
wasn’t looking. When he was spotted, Dopey ran across the highway carrying the full can with the
operator chasing him. The operator, intent on catching Dopey, ran into the path of an oncoming
automobile and was killed instantly. John, Max, Rip, and Dopey were arrested before the planned
burning took place.
What crimes were committed by John, Max, Rip, and Dopey? Discuss.
CRIMINAL LAW EXAM QUESTIONS 5.
Adams suspected that his girlfriend, Kitty, was unfaithful to him. He told Barlow that he needed
his help to test Kitty. Adams’s plan was that he would bring a box of chocolates laced with a fatal dose
of LSD to Barlow at the pool hall they frequented; Barlow was then to offer the chocolates to Kitty. If
Kitty accepted the chocolates from Barlow, who was a stranger to her, this would satisfy Adams that
she was unfaithful to him and deserved to die.
Barlow entertained excessive and irrational suspicions and distrust of others. For this reason and
because he feared what Adams would do to him if he refused, he was afraid to refuse to join in the
plan.
Adams brought the chocolates to the pool hall, laid the box beside his coat on a bench, and went off
to shoot pool while waiting for Barlow to show up. Cox, the proprietor, opened the box and sampled
the candy. He soon became unconscious. Adams discovered Cox and thought he was dead, although in
fact the dose of LSD taken by Cox was not sufficient to kill him. Adams dragged the unconscious Cox
out of the pool hall, put him in a car, and drove to a secluded spot and left him there. Shortly thereafter,
Cox died from exposure without regaining consciousness.
Adams is charged with the attempted murder of Kitty. Is he guilty? Is he guilty of any other crime or
crimes? Is Barlow? Discuss.
6. CRIMINAL LAW EXAM QUESTIONS
Don, in need of funds, approached Oscar, a friend who sold stereo equipment. Oscar told Don that
he had no ready cash to give him, but that he owned thousands of dollars worth of readily saleable and
fully insured stereo equipment stored in a nearby warehouse that he also owned. Don replied that if
this were the case Oscar would not lose any money if some of the equipment “disappeared” and Don
sold it. Oscar then said he would give Don a duplicate key to the warehouse so that Don, with Don’s
brother Allen, could remove the equipment, on condition that Don reimburse him for any loss for
which he could not recover from his insurance company. Don said, “That’s great,” and left with the
key.
Don told Allen about the plan, and Allen agreed to help him. Don and Allen entered the warehouse
with the key, and the two men loaded Don’s truck with $50,000 worth of equipment. After the items
were removed and the warehouse locked, it was agreed that Allen would immediately drive the truck
and equipment to Mexico, to be joined later by Don. It was also agreed that Don should go home
by means of an automobile that the two had observed in an enclosed parking area to the rear of the
warehouse.
Allen drove away and Don reentered the warehouse to reach the parking area. He took the automo-
bile and with it rammed through the locked gate of the fence that enclosed the parking area and
proceeded to his apartment.
Allen was driving in excess of the speed limit when a highway patrol officer attempted to stop him.
Allen, believing the theft had been discovered, attempted to escape by driving at over 100 miles per
hour. In the ensuing chase the highway patrol officer lost control of his patrol car and was killed when
it overturned.
(A) Has Don committed burglary (i) in the removal of the stereo equipment, or (ii) in the theft of
the vehicle? Discuss.
(B) Is Don guilty of either murder or manslaughter in the death of the highway patrol officer?
Discuss.
(C) Is Oscar criminally liable for any crime or crimes committed by Don? Discuss.
CRIMINAL LAW EXAM ANSWERS 1.
That said, a similar question arises as to whether Bob can be an accomplice to Jim’s “crimes.”
An accomplice is one who (i) with the intent to assist the principal and the intent that the crime be
committed; (ii) actually aids, counsels, or encourages the principal before or during the crime. If one
is an accomplice, he is criminally liable for the crimes he did or counseled and for any other crimes
committed in the course of committing the crime contemplated, as long as the other crimes were
probable or foreseeable.
Here, like the conspiracy discussed above, the problem of whether there was intent to encourage Jim
in his crime arises. Again, the facts state that Jim merely “tagged along” with Bob and Hal, and that
neither Bob nor Hal even knew that Jim took the watch. Thus, the intent to assist is lacking, and Bob
cannot be guilty as an accomplice to Jim’s wrongful act.
As a result, Bob is not guilty of larceny of the watch.
inflict serious bodily harm upon anyone who opened the door—regardless of her protestations to the
contrary.
In the absence of any factor of justification, excuse, or mitigation, either of the above mental states is
sufficient “malice” for murder.
Arguably, Jones’s use of deadly force may be justified as prevention of a felony. Jones’s purpose
in setting the spring gun was to prevent criminal acts directed against her toolshed and its contents.
Here, Hal (who has no “youthfulness” defense since he is over 14 years of age) was committing statu-
tory burglary. The common law permitted the use of deadly force only to prevent “dangerous” or
“atrocious” felonies, of which burglary was one. In many jurisdictions today, statutory burglary is
similarly treated. In such jurisdictions, Jones’s homicide of Hal would be deemed justified, and hence
the killing was without the requisite malice.
However, other jurisdictions hold (and this is deemed the better view) that using deadly force for
the prevention of burglary is justified only when there is actually a human being within, or in the
general vicinity of, the structure burglarized. Otherwise, the particular burglary is not “dangerous”
or “atrocious.” In these jurisdictions, Jones would be guilty of common law murder—unless the court
accepted “imperfect crime prevention” as a form of mitigation, which would reduce the homicide from
murder to voluntary manslaughter. If the court rejects such an argument, Jones is guilty of common
law murder because the killing is not otherwise justified, excused, or mitigated.
By statute, most jurisdictions today divide murder into two degrees. One form of first degree murder
is an intentional murder with “premeditation and deliberation.” Another form is a murder committed
by means of poison, torture, bomb, or ambush. If Jones is found to have intended to kill, she would
be guilty of first degree murder, because she clearly premeditated and deliberated with respect to this
intention. This inference is compelling in a spring gun situation, which by its very nature shows that
the idea of killing was considered for an appreciable time, and then calmly acted upon.
Conspiracy
All four are guilty of conspiracy to commit arson. At issue is whether a sufficient overt act was
committed to hold the defendants criminally liable for conspiracy. Conspiracy consists of an intentional
agreement between two or more persons to commit an offense and (in most jurisdictions) an overt
act by any member of the conspiracy in furtherance of the agreement. The four clearly intended and
agreed to commit arson. The overt act requirement was satisfied when they sent Dopey to buy gas to
start the fire. An act of preparation, even one innocent in itself, is sufficient. Thus, all four are guilty of
a conspiracy to commit arson.
Attempted Arson
The four are not guilty of attempted arson. At issue is whether the defendants progressed far enough
in their plan to be held liable for a criminal attempt. The mens rea of attempt is specific intent to
commit the crime, and the four clearly intended to perpetrate an act that would be arson. But the actus
reus of attempt requires an act beyond mere preparation: an act that comes very “close” to completing
the crime and/or that is a “substantial step” toward the completion of the crime that strongly corrobo-
rates the defendant’s intent. The four were a long way from actually burning their competitor’s home.
They still had to go there, spread the gas around, and set it on fire. Nor did the acts already accom-
plished unequivocally demonstrate an intent to commit arson. Obtaining a can of gas is a common act
not ordinarily limited to arsonists. Although arson is a very heinous crime, so that one will be deemed
to enter its zone of perpetration sooner than would be true as to some other crimes, this act was “prepa-
ratory” in the fullest meaning of the term. Thus, all four are not guilty of attempted arson.
4. CRIMINAL LAW EXAM ANSWERS
Theft of $2
Dopey is guilty of either petty larceny or petty embezzlement of the $2. At issue is whether Dopey
formed the intent to spend the money on whiskey before or after he received it. The others gave Dopey
possession of the $2 for the sole purpose of buying gas. If a bailee receives property, intending at
that time to spend it on himself, and he does so, he is guilty of larceny. On the other hand, if a bailee
receives property, and only later forms the intent to misappropriate it, when he does so, he is guilty
of embezzlement. (In many jurisdictions both crimes would now be denominated simply as “theft,”
so that the timing of Dopey’s intention to steal would not be important.) Theft of property worth less
than $200 (or in some jurisdictions as little as $50) is petty theft. The $2 Dopey stole is clearly in the
petty category. It would be no defense to Dopey that the victims of his theft were themselves criminals.
Thus, Dopey is guilty of either petty theft or petty embezzlement.
Theft of Gasoline
Dopey is also guilty of petty larceny of the gasoline. At issue is whether Dopey satisfied the asporta-
tion element of larceny. Larceny includes taking and carrying away the personal property of another
without her consent (i.e., trespassorily) and with intent to deprive her of it permanently. All of these
conditions were met here. The gas Dopey stole could not have been worth more than a few dollars and
is clearly in the petty category. To move Dopey’s actions from attempted larceny to larceny itself, it is
necessary only that he “carry away,” not that he “get away.” Thus, Dopey is guilty of petty theft of the
gasoline.
Involuntary Manslaughter
Criminal Negligence Theory: Dopey may also be guilty of involuntary manslaughter, which
consists of causing the death of another person through criminal negligence. At issue is whether
Dopey’s actions rise to the level of criminal negligence and whether Dopey was the actual and proxi-
mate cause of the operator’s death. To establish “criminal negligence,” it must be shown that the
accused’s conduct created a serious risk of harm to another of which a reasonable person would have
been aware (a higher probability of such harm than in “ordinary” or civil negligence).
Here, a reasonable person may well have realized that in attempting to escape across a busy highway,
it was foreseeable that the gas station operator would give chase and thereby be placed in danger from
cars on the highway.
As for the causation requirement, Dopey’s acts must be shown to be both an actual and proxi-
mate cause of the operator’s death. They clearly were an actual cause, because “but for” the theft and
attempted escape the operator would not have been killed. They were a proximate cause as well. It is
true that two other events intervened to cause the death, but neither operates to “break the chain” of
causation leading back to Dopey’s act. The act of the station operator in heedlessly pursuing Dopey out
into the highway was a dependent or responsive cause, one generated by what Dopey did, and it cannot
be said to be a totally abnormal response, especially from the vantage point of hindsight. The act of the
driver in running down the station operator was an independent or coincidental intervening force, but it
should have been foreseen by Dopey. Neither a normal dependent intervening force nor a foreseeable
independent intervening force will “break the chain” of proximate causation between Dopey’s act and
the operator’s death.
Thus, Dopey is guilty of involuntary manslaughter under a criminal negligence theory.
Misdemeanor Manslaughter Theory: Dopey could also be convicted of involuntary manslaughter
under a misdemeanor manslaughter theory. At issue is whether the misdemeanor was complete when
the operator was killed. Manslaughter (involuntary) can also be committed by killing another person in
the course of committing a misdemeanor. As discussed above, Dopey perpetrated the misdemeanor of
petty larceny against the operator, and this crime was a cause of the operator’s death. Even though the
operator was killed after the larceny itself was consummated, in most jurisdictions flight following a
crime (especially where there is immediate pursuit) is considered part of the crime for purposes of the
CRIMINAL LAW EXAM ANSWERS 5.
misdemeanor manslaughter rule. An additional requirement is that the misdemeanor be malum in se,
which means inherently wrong by common moral standards. Larceny falls within this category. Thus,
Dopey is guilty of involuntary manslaughter under a misdemeanor manslaughter theory.
Vicarious Liability
John, Max, and Rip are not liable for Dopey’s substantive crimes. At issue is whether Dopey’s
theft and killing were a foreseeable result of the conspiracy. Conspirators are liable for acts of their
co-conspirator that take place within the foreseeable scope of the conspiracy. However, Dopey’s theft
of the gasoline and his subsequent acts in escaping therefrom were not foreseeable to the other three;
indeed, they had given him money to buy the gasoline. Therefore, his subsequent loss of the money
and decision to steal the gasoline cannot be regarded as within the foreseeable scope of the criminal
conspiracy. It was really a side excursion of his own to cover up the misappropriation of the money.
Accordingly, John, Max, and Rip are not liable for the larceny of the gas or the death of the gas station
operator. Since they neither advised nor aided the larceny of the gas, they were not accomplices to
Dopey’s theft. Thus, John, Max, and Rip are not liable for any of Dopey’s substantive crimes.
Solicitation consists of counseling, inciting, and inducing another person to commit a crime, with
the intention of procuring its commission. Adams’s statements to Barlow fit within this definition, as he
was in substance proposing that Barlow aid him in poisoning Kitty if she accepted the chocolates.
The crime of solicitation was complete when the plan was proposed by Adams. It is immate-
rial whether Barlow agreed thereto, or intended to carry it out. Thus, Adams is guilty of a criminal
conspiracy. (However, if Barlow did in fact agree thereto, and such agreement constituted a criminal
conspiracy, see below, most courts hold that the solicitation is merged with the conspiracy.)
that Adams intentionally performed acts that created an unjustifiably high risk that another would die
and that he was recklessly indifferent to that risk. Nothing in the facts lends support to this theory.
First, Adams was apparently unaware that anyone would open and sample the box of poisoned candy
that he had laid on the bench. Second, when Adams later dumped Cox in the woods, he clearly had no
awareness of the risk to human life involved, because he thought the body was already lifeless. Conse-
quently, Adams lacked the requisite mens rea for murder.
Manslaughter: Adams is apparently guilty of involuntary manslaughter, which is a criminal
homicide committed without malice aforethought, as a result of criminal negligence, or in the
commission of an unlawful, malum in se act.
The “unlawful act” category is clearly involved in this case. In dumping what he thought to be a
lifeless body in the woods, Adams was apparently attempting to conceal evidence of what he thought
was a crime. This attempt to conceal evidence is probably itself a crime; but even if it is not, it is
clearly an attempt to interfere with the processes of justice and hence an inherently evil (“malum
in se”) act. Consequently, any death resulting from the commission of such an act, even though
accidental, is involuntary manslaughter.
It is also possible to argue that Adams is guilty of manslaughter on a “criminal negligence” theory—
i.e., that he was grossly negligent in determining whether Cox was still alive, and it was this negli-
gence that led to his dumping the body in the woods and Cox’s subsequent death. There was certainly
no social utility whatsoever in Adams’s conduct, and he apparently made no effort whatsoever to seek
medical aid or diagnosis, so that his acts would move quickly from the “ordinary” to the “criminal”
negligence category. (Comment: It is tempting to discuss “criminal negligence” on the theory that
Adams was negligent in leaving a box of LSD-laced chocolates lying around where others could eat
them. However, this would be an erroneous analysis because leaving the box of chocolates was not the
cause of Cox’s death. Cox died from exposure to the elements, not from consuming the chocolates.)
Thus, although Adams is not guilty of Cox’s murder, he is guilty of Cox’s manslaughter, and as a
result is guilty of a criminal homicide of Cox.
(A) Burglary
The Stereo Equipment: Don has not committed burglary in taking the stereo equipment. At issue
is whether the trespass element has been satisfied.
8. CRIMINAL LAW EXAM ANSWERS
Under the common law, the felony of burglary involved the trespassory breaking and entering of
the dwelling house of another at night for the purpose of committing a felony therein. We are told that
Don “entered” the warehouse. Furthermore, his use of a key to do so means that he opened a closed
door—a sufficient physical act to constitute the element of “breaking.” Although at common law a
commercial building, such as a warehouse, was not considered a “dwelling house” within the definition
of burglary, this element has been universally expanded by statute; hence, in modern times many sorts
of structures, including a warehouse, can be burglarized.
We are not told whether Don’s activity at the warehouse took place at night, as is required at
common law; nor are we told whether, if it took place in the daytime, the jurisdiction involved is one
that has abandoned the nighttime requirement for burglary, as many states have done. But in any event,
Don’s activity does not constitute burglary because Oscar’s consent to the entry of the warehouse and
the taking of the stereo equipment operates to eliminate the “trespass” element of this crime. Since
Oscar authorized Don to do precisely what he did do, his entering of the structure was not trespas-
sory, and his taking of the stereo equipment was not larcenous. Thus, he is not guilty of burglary with
respect to the stereo equipment.
The Vehicle in the Parking Lot: It is unclear whether Don committed burglary in taking the
vehicle. At issue again is whether there was a trespass, and whether there was a breaking.
This fact pattern raises a number of problems regarding the elements of the crime of burglary. First,
there are the same “dwelling house” and “nighttime” issues discussed above. Second, burglary usually
occurs when one enters a building in order to commit a felony “therein.” Where, as here, it is neces-
sary to go through a closed building in order to commit a felony in an open area, it is possible that
the entering of that building will be a burglary. Nevertheless, the problem remains that although we
are told Don “reentered the warehouse,” we are left to infer whether he reopened a door to do so, or
whether he opened any door in order to exit.
The question of consent also arises. Since the warehouse and the parking lot were owned and
possessed by Oscar, presumably he would have authorized Don, his cohort in crime, to act as he did in
the warehouse and in the parking lot area. If this were the case, there was no “trespass” by Don.
Finally, there is a problem as to whether Don’s actions in taking the automobile constituted larceny,
since we are not told whether he intended to keep the automobile permanently or to use it temporarily
and then abandon it. If his intent was to abandon the car, under the circumstances here the intent to
steal for larceny would be missing, although it could be argued that Don’s action created a risk of loss
of the automobile that would suffice for larceny. Thus, if his plan for the auto was not larcenous, then
he lacked the “felonious intent” required for burglary at the time of his reentry, and he would not be
guilty.
Intent is a problem to finding Don guilty of murder in that Allen did not intend to kill or to inflict
serious bodily injury upon the police officer. Moreover, since Don’s activities with respect to the stereo
equipment and the warehouse were not larcenous because of Oscar’s consent (discussed above), the
felony murder rule probably would not be operative (even if one assumes that at this time and place
the felony was still being “perpetrated” as required by that rule) unless the jurisdiction treated the
attempt to defraud the insurance company as a felony, but this is not indicated by the facts. However,
it is possible to be guilty of murder even without committing a felony, and without intending harm. A
person has malice aforethought if he is recklessly indifferent to an unjustifiably high risk to human life.
(This type of malice is sometimes called “depraved heart” or “abandoned and malignant heart.”) The
killing of another human being while recklessly indifferent to an unjustifiably high risk to human life
is common law murder. Under modern statutes, such murder is second degree murder. Furthermore,
even if a jury did not consider Allen’s conduct to be recklessly indifferent, driving an automobile at that
rate of speed would at least be considered criminally negligent, in which event the homicide would be
involuntary manslaughter.
Returning to Don’s liability as an accomplice and a co-conspirator of Allen, Don is chargeable with
any crimes that Allen foreseeably committed for the purpose of accomplishing the underlying criminal
goals. Since it could be anticipated that Allen, hurrying with the truck toward Mexico, would drive in
excess of the speed limit, and that if a police car tried to stop him, Allen would think that the “theft”
had been discovered and try to escape the officer, the murder or manslaughter committed by Allen
would be imputable to Don, his accomplice. As a result, Don may be criminally liable for the officer’s
death.
corroborate the intent to defraud the insurance company. Under the proximity test, however, reporting
the false theft to the insurance company may be required as the last act to come “dangerously close”
to completing the crime, although it is certainly arguable that the plan has progressed far enough to
satisfy even the proximity test. Oscar’s liability may come down to which test the jurisdiction uses.
As a result, it is unclear whether Oscar will face criminal liability for an attempt to defraud the
insurance company.