Criminal Law - Fall 2025

Elements for Larceny

Wrongful Taking (Concurrent w/ intent);

Carrying Away;

Personal Property of Another;

With Intent to Permanently Deprive the owner of that property.

Elements for Burglary (Modern Approach)

Breaking (50% of states include Constructive Breaking);

Entering;

Of a Building;

With Intent to Commit a Felony/Theft Therein.

Elements for Aggravated (Estes) Robbery

Felonious Taking;

Carrying Away (“asportation”);

By Force/By Threat of Force (to keep property while escaping) —> continues until D reaches a place of relative safety;

Taken from the victim’s person or in their immediate presence.

Elements for Larceny by Trick

(a) wrongful taking; (b) carrying away; (c) of the personal property of another; (d) with intent to permanently deprive the owner/possessor of the property.

Elements for Larceny by Continuing Trespass

(a) wrongful taking; (b) carrying away; (c) of the personal property of another; (d) with intent to permanently deprive the owner/possessor of the property.

Elements for Common Law Burglary

(a) breaking; (b) entry; (c) dwelling home; (d) of another; (e) at night; (f) with the intent to commit a felony therein

Elements for Embezzlement

Intentional Conversion;

Property of Another;

By Someone who is Already in Lawful Possession of it (or by Someone Who Has Been Entrusted).

Elements for False Pretenses

False Statement of Fact that;

Causes the Victim;

To Pass Title to the Defendant;

Defendant Must Know the Statement is False; AND

Defendant Must Have Intended to Defraud the Victim.

Key Difference Between Civil and Criminal Law

-Criminal Law requires proof “Beyond a Reasonable Doubt” and a unanimous jury verdict.

-Civil Law requires a “Preponderance of the Evidence” and allows for non-unanimous jury verdicts.

What is a Plea Bargain?

A “Plea Bargain" is a settlement agreement where a person accused of a crime agrees to plead guilty in exchange for an agreed upon sentence.

What is Jury Nullification?

Jury nullification (conscientious acquittal) is when a jury acquits a defendant even when they believe the evidence shows the law was broken.

This happens when jurors decide the law is unjust or unfairly applied to the specific case, so they refuse to convict to send a message or because their sense of justice, morality, or fairness dictates it.

Because a "not guilty" verdict is final and cannot be overturned, the jury can effectively veto the law in that instance. 

4 Theories of Punishment

Deterrence

Incapacitation

Retribution

Rehabilitation

What is Deterrence?

The theory of deterrence is predicated on the idea that we need to punish people for their crimes because the fear of getting punished will prevent people from committing crimes.

What is Specific Deterrence?

Specific Deterrence: focuses on an individual. If that individual breaks the law and is punished for doing so, that individual is less likely to commit another crime in the future because they don’t want to face another punishment.

What is General Deterrence?

General Deterrence: focuses more broadly on society. We’ve seen that other people are punished for crimes so we avoid committing crimes because we don’t want to face that same punishment.

Criticisms of Deterrence

Deterrence theory is based on the assumption that people who commit crimes (i) think they’ll get caught; and (ii) engage in a rational cost-benefit analysis before breaking the law.

What is Incapacitation?

The idea that some people are so dangerous, where they create so many risks, that they shouldn’t be a part of the rest of society. They need to be removed, at least temporarily, so they can’t continue to cause harm.

In other words, people who commit crimes need to be isolated to keep society safe.

What is Rehabilitation?

Refers to the notion of helping people resolve their underlying trauma and any issues that drove them to commit crimes in the first place.

Foundational Principle: Since most people who commit crimes, will continue to be a part of society, it makes sense to invest in programs to help people leave criminal behavior behind.

Criticisms of Rehabilitation

Rehabilitative programs are not as available as they should be and that more funding is poured into retributive punishments than into rehabilitative programming.

What is Retribution?

The idea here is that by doing something bad, the government will do something bad to you. (“an eye for an eye, a tooth for a tooth”)

• The societal infliction of pain is seen as a just consequence for the pain or harm that the offender has caused.

• The offender is seen as blameworthy and deserving of the punishment and pain inflicted by the government in response to their wrongdoing.

• There is a general sense that there should be some amount of proportionality between the crime and the punishment between the retribution theory (“the punishment should fit the crime”)

Criticisms of Retribution

Criminal punishments have become too harsh. Some people argue that the amount of harm that the government imposes should be equivalent to the amount of harm that was caused by the crime.

Justifications for Retribution

People who commit crimes, deserve harsh punishments and that if the government did not impose harsh penalties, people might take the law into their own hands and seek revenge when they’re victims of crime.

Methods of Statutory Interpretation: Rule of Lenity

The rule of lenity is a legal principle that requires courts to interpret ambiguous criminal statutes in the way most favorable to the defendant.

This means that if a law is unclear after other interpretive methods have been exhausted, the court must choose the interpretation that is narrower and more beneficial to the person accused of a crime.

Methods of Statutory Interpretation: Common Law Meaning

Considering established legal meanings or how courts previously interpreted similar statutes or the common law before the statute.

Methods of Statutory Interpretation: Case Law Interpreting Statute(s)

Case law interpreting statutes provides crucial context, showing how courts apply interpretive methods, with courts establishing precedents that guide future interpretations for similar laws, influencing how subsequent cases apply or differentiate those established rules

Methods of Statutory Interpretation: Plain Language Rule

Focuses on the ordinary, everyday meaning of words in the statute. If a statute's text is clear, courts apply it directly.

Methods of Statutory Interpretation: Context

Reading words within the entire statute, its sections, and its overall structure.

Methods of Statutory Interpretation: Grammar

Using grammatical rules and presumptions (canons) like "shall" (mandatory) vs. "may" (permissive), or the Rule of Lenity (favoring defendants in criminal cases).

Methods of Statutory Interpretation: Legislative History

Examining documents like committee reports, debates, and sponsors' statements to understand intent, though often less influential than text.

What is the Rule for Actus Reus?

Actus Reus (aka “guilty act”) = a voluntary physical act over which Defendant has control OR a failure to act when one has a duty to act (i.e. actionable to act by law)

When Can Actus Reus Requirement be Satisfied by Inaction?

• The individual had a duty to act?

• The individual knew of the circumstances giving rise to the duty to act and had the ability to act.

• The individual did not act (breached the duty).

• The failure to act caused the harm prohibited by the statute.

Exceptions to When People DO Have a Duty to Act

1. Special Relationship – Special relationships between the defendant and the victim (e.g. parent to child, or spouses);

2. Contract – When the defendant enters into a contract which requires them to either explicitly or implicitly to act in a particular duty (e.g. babysitter to child);

3. Statutory Duty – When there is a statutory duty to act (e.g. mandatory reporting laws for suspected child abuse);

4. Creation of Risk – When the defendant creates the risk of harm to the victim;

5. Assumption of Care – When the defendant voluntarily assumes care of a person in need of help.

Primary Mental States in the Criminal Law

1. Intent / Purpose;

2. Knowledge;

3. Recklessness / Gross Negligence;

4. Negligence.

How to Prove Intent / Purpose?

• A confession (where the D admits to what they were thinking).

  • Verbal testimony, recordings, written confessions, etc.

• Inferences: actions can sometimes demonstrate intent

  • E.g. someone walking into a store, taking an item off a shelf and putting it in their backpack.

    • These actions can demonstrate they were intending to steal the item.

• Natural and Probable Consequences Doctrine.

What is the Natural and Probable Consequences Doctrine?

Natural and Probable Consequences Doctrine is an alternative way to prove intent in some jurisdictions.

Consider the surrounding circumstances, including the weapon & manner of inflicting wound.

Advantages of the Natural and Probable Consequences Doctrine

• It’s an advantage for prosecutors, because if they were limited to relying on the defendant’s version of what was on their minds, it would be virtually impossible to prove intent since every defendant has an incentive to lie to avoid conviction.

• It’s hard to prove what was on someone’s mind, and we don’t want to set up an impossible standard that leads to guilty people literally getting away with murder.

• This doctrine allows jurors to use their common sense to figure out what was going on in someone’s mind.

Disadvantages of the Natural and Probable Consequences Doctrine

• Expands the ways that prosecutors can prove that someone acted intentionally or purposefully.

• At least in homicide cases, it makes it easier to convict people even when there may not be clear evidence that the person intended to kill.

• Ambiguities in the law generally tend to benefit members of privileged groups and tend to systematically disadvantage members of historically marginalized groups.

  • Black, Latino, and indigenous people are more likely to be harmed by this lower standard.

MPC Rule for Knowledge

A person acts knowingly with respect to a material element of an offense when:

(i) if the element involves the nature of his conduct of the attendant circumstances, he is aware that his conduct is of that nature or that such circumstances exist; and

(ii) if the element involves a result of his conduct, he is aware that it is practically certain that his conduct will cause such a result.

3 Types of Knowledge

1. Actual Knowledge - The person has a conscious awareness that something is true.

2. Constructive Knowledge - more similar to a standard of negligence. The idea here is that anyone would have known what that person is supposed to know.

3. Willful Blindness - willful blindness requires showing that the defendant: (1) subjectively believed there was a high probability that a fact existed; and (2) took deliberate actions to avoid learning that fact.

MPC Rule for Recklessness

A person acts recklessly with respect to a material element of an offense when [they] consciously disregard a substantial and unjustifiable risk that the material element exists or will result from his conduct.

The risk must be of such a nature and degree that, considering the nature and purpose of the actor’s conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a law-abiding person would observe in the actor’s situation.

MPC Rule for Negligence

A person acts negligently with respect to a material element of an offense when [they] should be aware of a substantial and unjustifiable risk that the material element exists or will result from his conduct.

The risk must be of such a nature and degree that the actor’s failure to perceive it, considering the nature and purpose of his conduct and the circumstances known to him, involves a gross deviation from the standard of care that a reasonable person would observe in the actor’s situation.

Key Distinction Between Recklessness and Negligence

Recklessness: the individual was aware of the risk and proceeded anyway

Negligence: the individual was not aware of the risk but should have been.

Specific vs. General Intent Crimes (How to Distinguish)

• Specific = Requires the intent to cause a specific result or harm, or to do an additional act on top of the prohibited act.

  • Examples: burglary, embezzlement, forgery.

• General = Requires the intent to do the act that is prohibited (the ACTUS REUS). Crime where the MENS REA applies ONLY to the ACTUS REUS required by the crime.

  • Examples: rape, arson, kidnapping, false imprisonment.

Strict Liability

(Types of Crimes Strict Liability Typically Applies to, Policy Considerations)

Typically, minor offenses that (1) do not trigger harsh punishments, and (2) promote public welfare. —> All the prosecution needs to prove is the Actus Reus.

• Examples: traffic violations, littering, public urination, crimes pertaining to the sale of food and alcohol, etc.

Mistakes of Fact

It ONLY works when it undermines the Mens Rea require for an offense. Therefore, it does not apply to strict liability crimes.

It is always going to be link to the analysis of Mens Rea. The facts will tell you if a mistake was made, do NOT infer it.

How to Analyze Mistakes of Fact

• STEP #1: Can the defendant raise a mistake of fact defense? In order to raise a mistake of fact defense, we need analyze whether the following elements are satisfied when analyzing the Mens Rea:

• STEP #2: (1) Does the mistake of fact negate the Mens Rea of the crime the defendant is charged with?

• STEP #3: (A) Common Law jurisdiction: (2) Is the crime a general or specific intent crime?

  • If a general intent crime, the mistake must be honest and reasonable.

  • If a specific intent crime, mistake must be honest.

    • Honest = Good faith belief.

    • Reasonable = Would an ordinary person in a similar situation believe the same thing?

Good Samaritan Laws

Minority Rule: Some states have passed laws that impose a general duty to act. These laws are called ‘Good Samaritan Laws.’

In most jurisdictions, Good Samaritan Laws don't exist, and the duty to act is generally only triggered in the 5 major situations.

Examples of Involununtary Acts

• A reflex or convulsion;

• A bodily movement during unconsciousness or sleep;

• Conduct during hypnosis or resulting from hypnotic suggestion;

• A bodily movement that otherwise is not a product of the effort or determination of the actor, either conscious or habitual.

Case Examples of Solicitation and Conspiracy

1. State v. Pacheco 

2. People v. Swain 

3. United States v. Mothersill  - Patrick and Michael robbed and killed a drug dealer; their girlfriends helped to clean the car after the shooting. Paul tried to kill Michael’s GF but ended up killing a state trooper (bomb).

Case Examples of Attempts

1. People v. Rizzo (Common Law) - Intended to rob a man who worked for a bank. Could not find him so did not complete the crime. The court said this conduct didn’t go beyond mere preparation and thus did not constitute an attempt.

2. People v. Staples - Intent to burglarize a bank from the apartment above. Started drilling holes in the floor.  Stopped before he made it through the floor. Court ruled that the commencement of the drilling is the start of the entry element for burglary and thus was an attempt.

3. State v. LaTraverse (MPC Rule) - LaTraverse was intimidating a witness near his house. Before Lombardi was set to testify against him in court. The court found that LaTraverse made a substantial step in completing the crime because: he lied in wait; in the place where he contemplated committing the crime; & had the materials to use to commit the crime.

4. People v. Harris (MPC Rule)

Actus Reus for Attempted Crimes (Common Law)

To satisfy the Common Law actus reus requirement for attempted crimes, the defendant must have taken action to commit a crime, beyond mere preparation, but fails to accomplish the intended result.

Once defendant enters the zone of perpetration, the crime is complete. No abandonment defense.

Act must be beyond mere preparation (i.e. dangerous proximity to the social harm + close in time/distance to the criminal goal).

Actus Reus for Attempted Crimes (MPC Rule)

The defendant must have taken a substantial step in the completion of the crime.

Under the MPC Approach, there must have been a substantial step in the completion of the intended crime.

Mens Rea for Attempted Crimes (Common Law)

The Common Law mens rea for attempted crimes requires the specific intent to commit the crime, even if the crime itself is not a specific intent crime.

Attempt merges with the completed offense, so you cannot be convicted of attempt and the offense itself. That said, you want to analyze them both (attempt and the crime itself), just know that the defendant would not be found guilty of both.

For attempted murder, need to have the specific intent to kill (recklessness would not satisfy the requirement here).

Mens Rea for Attempted Crimes (MPC Rule)

Under the MPC Approach, there must’ve been a substantial step towards the commission of the crime.

Abandonment is only a defense where there is a complete and voluntary renunciation of criminal purpose.

In order to be voluntary, the person can’t abandon the attempt just because they think they’re about to be caught.

Attempt merges with the completed offense, so you cannot be convicted of attempt and the offense itself. That said, you want to analyze them both (attempt and the crime itself), just know that the defendant would not be found guilty of both.

Actus Reus for Conspiracy

The actus reus for conspiracy is an agreement, which is a “meeting of the minds” between the guilty parties + an overt act to cement the conspiracy.

The majority rule requires a bilateral agreement whereas under the minority rule conspiracy can be established through a unilateral agreement. We need to find a singular purpose that the parties of the conspiracy are agreeing to.

The underlying crime never needs to actually be completed.

Mens Rea for Conspiracy

The mens rea for conspiracy is the specific intent to agree to commit the crime + the actual intent to commit the target offense.

Pinkerton Doctrine Rule

The Pinkerton Rule holds a co-conspirator guilty for a crime another conspirator commits (even if not part of the agreement) if the crime was:

(a) in furtherance of the conspiracy,

(b) within the scope of the conspiracy, and

(c) a reasonably foreseeable consequence of the conspiracy.

Actus Reus for Solicitation

The crime of solicitation occurs where there is an asking, inviting, requesting, or encouraging of the solicited party to commit the target crime.

The underlying crime never needs to actually be completed.

Mens Rea for Solicitation

The mens rea for solicitation is the specific intent that the solicited party commit the target crime.

The crime of solicitation is considered completed at the time of the asking.

Analysis for Self-Defense

If Self-Defense is Triggered, also analyze Provocation Defense.

Is the belief both honest and reasonable?

For a belief to be honest, the person who used the force must've actually believed that the force was going to be used against them and that they needed to use force to protect themselves.

For a belief to be reasonable, the person who used the force must've actually believed that they needed force to protect themselves.

Was the threatened force imminent?

For threatened force to be considered imminent, the belief has to be that the force that's being used against the defendant or that's been threatened against the defendant is immediate. In other words, it cannot be a worry that force will be used against the defendant in the future.

Was using force in self-defense necessary?

For use of force in self-defense to be deemed necessary, the person using self-defense has to believe that it was truly necessary to use force to protect themselves.

Was the amount of force used proportionate?

For the amount of force used to be considered proportionate, the force that's used in self-defense cases, must be proportional to the force you're defending against.

Was the person who’s claiming they acted in self-defense the initial aggressor?

An initial aggressor cannot use self-defense.

Was there a duty to retreat, and if so, could the person who used self-defense have retreated safely?

Common law rules require people to avoid using force if they have the option to escape from the force without putting themselves at risk.

Mistakes of Fact

It ONLY works when it undermines the Mens Rea require for an offense. Therefore, it does not apply to strict liability crimes.

It is always going to be linked to the analysis of Mens Rea. The facts will tell you if a mistake was made, do NOT infer it.

WHEN ANALYZING, ASK:

1. Does the mistake of fact negate the Mens Rea of the crime the defendant is charged with?

   1. Need to analyze the Mens Rea for the crime first.

2. Is the crime a general or specific intent crime?

   1. If a general intent crime, the mistake must be honest and reasonable. If a specific intent crime, mistake must be honest.

      1. Honest = Good faith belief.

      2. Reasonable = Would an ordinary person in a similar situation believe the same thing?

Mistakes of Law

Mistakes of law are generally not a defense. Therefore, mistakes about the law would not affect one’s guilt for the crime.

Rule for Homicide

Homicide is an unlawful killing of one human being by another.

Actus Reus for Homicide

The actus reus for homicide is the voluntary act or omission that causes the unlawful killing of another human being.

Rule & Test for Factual Causation

Factual causation or “actual causation” establishes the direct link between the defendant’s action and the victim’s injury.

Test: But-for Analysis

But for the defendant’s actions, would the harm have occurred? If no, then the defendant’s actions are a factual cause of the harm.

Rule & Test for Proximate Causation

Proximate causation requires establishing a reasonably foreseeable link between the defendant’s voluntary act and the victim’s injury.

If there is an intervening act, discuss whether the act is dependent or independent of the initial causal chain.

If intervening act dependent (i.e. responsive to the act), defendant = proximate cause unless intervening act extremely unusual/bizarre.

If intervening act independent (e.g. acts of god), defendant not proximate cause unless act or harm foreseeable.

Rule for Malice (Mens Rea for Murders excluding Felony Murder)

Malice can be established where there is: an intent to kill, an intent to commit serious bodily injury or conduct that is extremely reckless in nature.

If yes to Malice, automatically 2nd degree murder.

• Can be increased to 1st Degree Murder if also Premeditation and Deliberation.

• Can be decreased to voluntary manslaughter if killing was done in the “heat of passion.”

Rule for Deliberation

Deliberation’ is the process of carefully weighing such matters as the wisdom of going ahead, the manner of the killing, and the possible consequences for the killer.

Courts often refer to this as “cool, calm reflection.”

Rule for Premeditation

Premeditation is the process simply of thinking about a proposed killing before engaging in the homicidal conduct.

The longer the amount of time, the clearer the answer re: premeditation will be.

Depraved Heart Murder

To establish a depraved heart murder, there must have been a conscious disregard of a substantial and unjustifiable risk to human life. In other words, they must have acted with extreme recklessness.

ANALYSIS:

1. Can the prosecution prove that the defendant acted with a conscious disregard of the risk?

2. Was the risk the defendant was aware of, a risk of danger to human life?

Rule for Voluntary Manslaughter (Heat of Passion)

A defendant must show they were provoked by something that would cause an ordinary person to lose self-control, acted in a state of intense passion, and had no reasonable time to "cool off" before the killing occurred.

Provocation Defense

The provocation doctrine is a partial legal defense that the defendant’s actions were the result of a provocation into a “sudden heat of passion,” which therefore entitles the defendant to a voluntary manslaughter charge as opposed to a murder charge.

Provocation Defense: Common Law’s Mere Words Doctrine

Mere words will ordinarily not qualify as a provocative act.

Courts have routinely made exceptions when a wife has told her husband that she’s been unfaithful.

Provocation Defense: Common Law’s Categorical Test

The provocative act must fall into one of the following categories: (1)

1. aggravated assault or battery;

2. observing a serious crime against a close relative;

3. illegal arrest;

4. mutual combat;

5. catching one’s wife (now spouse) in the act of adultery.

LIMITS:

a. limits the provocation defense to actually observing adultery, not merely hearing about it.

b. Some states only allow provocation to apply to married couples, not unmarried couples.

c. Illegal arrest has largely been abandoned in the modern day.

d. If a provoking event does not fall into one of these categories, it will not trigger the provocation defense, regardless of how reasonable or justifiable the explanation.

Provocation Defense: Modern Approach’s Reasonable Person Test

If the law follows the Modern Approach, then the Reasonable Person Test will apply.

Under this approach, there are four factors to consider:

1. whether the defendant acted in the heat of passion (subjective);

2. whether the defendant was reasonably provoked into a heat of passion (objective);

3. whether the defendant had sufficient time to “cool off” between the provocative act or event and the killing (subjective); and

4. whether a reasonable person in the defendant’s shoes would have had sufficient time to “cool off” (objective).

Provocation Defense: MPC’s Rule re: Extreme Emotional Distress

The MPC test, (a) does not require a provocative act —> focuses on the defendant’s state of mind and whether they are experiencing some extreme sort of mental disturbance; (b) assesses what was reasonable from the perspective of the defendant.

If Provocation Defense Applies, results in a charge reduction from Second Degree Murder to Voluntary Manslaughter.

When Can Actus Reus Requirement be Satisfied by Inaction?

• The individual had a duty to act.

• The individual knew of the circumstances giving rise to the duty to act and had the ability to act.

• The individual did not act (breached the duty).

• The failure to act caused the harm prohibited by the statute.

Mens Rea for Involuntary Manslaughter

The mens rea for involuntary manslaughter is gross negligence / criminal negligence, which is established where the Defendant should have known that there was a substantial and unjustifiable risk to human life.

Some states use an ordinary recklessness standard. The main difference is that for ordinary recklessness the defendant doesn’t need to be aware of a risk that was so serious that it posed a risk to human life.

Actus Reus for Accomplice Liability

To establish the actus reus for accomplice liability, the defendant must aid, abet, or encourage the crime.

Mens Rea for Accomplice Liability

1. Intentional Aid in the Commission of a Crime

   1. Under Common Law, aiding and abetting requires proving that the defendant intended to assist in a crime and took an affirmative act to facilitate its commission.

2. Mens Rea is Satisfied for the Underlying Crime

   1. For 1st Degree Murder: Malice

   2. For 2nd Degree Murder: Malice

   3. For Voluntary Manslaughter: Malice

   4. For Involuntary Manslaughter: Gross Negligence / Criminal Negligence

   5. For Felony Murder: Intent to commit the underlying felony.

   6. For Conspiracy: specific intent to agree to commit the crime + the actual intent to commit the target offense.

   7. For Solicitation: specific intent that the solicited party commit the target crime.

   8. For Attempts: specific intent to commit the crime, even if the crime itself is not a specific intent crime.

   9. For Robbery: Intent to permanently deprive + Intent to use force.

   10. For Burglary: Intent to commit felony/theft therein.

   11. For Larceny: Intent to permanently deprive.

   12. For Larceny by Trick: Intent to permanently deprive.

   13. For Larceny by Continuing Trespass: Intent to permanently deprive.

   14. For Embezzlement: Intent to defraud.

   15. For False Pretenses: Intent to defraud.

Felony Murder Analysis

1. Can the felony murder theory be established in this fact pattern?

   1. Is the defendant guilty of the underlying felony?

   2. Did the defendant do something (or fail to do something) that satisfies the actus reus requirement for a homicide? In other words, what did the defendant do that led to the death?

      1. We are looking for a voluntary/willful act or a failure to act that would satisfy the actus reus requirement.

   3. Do any of the limits to the felony murder doctrine that are designed to keep its reach from expanding too broadly apply?

      1. Is the felony Inherently Dangerous?

         1. For a felony to be inherently dangerous it needs to be either one of the enumerated felonies (robbery, burglary, rape, kidnapping, arson), which would trigger a first-degree murder conviction, or not part of the enumerated felonies but still inherently dangerous to human life, which would trigger a second-degree murder conviction.

            1. Analyze whether a felony is inherently dangerous to human life.

      2. Did the death occur during the commission of the felony?

         1. We look here both at the timing and the geographic location/distance.

      3. Was there a causal link?

         1. But-For test v. causal link (i.e. the death must be a consequence of the felony and not merely a coincidence).

      4. Does the Merger Rule Apply?

      5. Does the Agency Rule Apply?

Two ways to analyze whether a felony is inherently dangerous to human life

(1) Analyze the Felony in the abstract; OR (2) Analyze the specific facts of the case.

1. Abstract approach (CA Rule) – We focus on the status itself and ask whether every person who violates this statute creates a substantial risk that someone by killed.

2. Analyze the specific facts of the case – We focus on the facts and circumstances of the individual case to assess whether a felony, as it was carried out by the defendant, was inherently dangerous to human life.

Two Ways to Establish Causation for Felony Murder

There are two different approaches that the courts follow when establishing causation in felony murder cases:

1. “But-for” the felony would the death have happened?

2. Was there a direct causal link (closer nexus)?

   1. The death must be a consequence of the felony and not merely a coincidence.

Felony Murder: What is the Merger Rule?

Not all jurisdictions follow this rule.

For those that do, the crime (not the homicide) has to be separate and distinct from the homicide.

The underlying felony cannot be “assaultive” in nature (NOTE: An assault is an act of violence towards somebody else).

Felony Murder: What is the Agency Rule?

Majority rule states that the person who does the killing has to be the defendant or co-defendant.

The minority rule states that a defendant can be guilty of any killings that transpire during the course of the felony, even if perpetrated by the victim or another third party.

What is Entry by Instrumentality

Entry by Instrumentality = when an instrument other than a part of the defendant's body enters for the purpose of committing the target crime.

• If the tool is used to take the place of the person’s body to carry out the intended crime, then the entry element CAN be satisfied by the instrument going inside.

• If the tool is used simply to gain entry, but the defendant would still need to go inside to carry out the crime, then the entry element CANNOT be satisfied.

Modern Approach Burglary: Rule for “Breaking”

A breaking requires force that creates an entry or that defendant gains entry by fraud, artifice, or false pretenses.

• Only about half the states include breaking as an element.

  • For those that include breaking, constructive breaking (a slight movement of a structural impediment) qualifies as a breaking.

  • Constructive breaking (fraud/deceit)

Common Law Burglary: Rule for “Entry”

Under common law, the entry element of burglary requires an actual or constructive physical entry, where a portion of the offender’s body passed the threshold of the dwelling, or an instrument was introduced to commit the underlying crime (can’t just be used for entry into the dwelling).

• Many modern burglary statutes allow the entry element to be satisfied when someone remains in a certain location beyond the time when they were allowed to be there in order to carry out a crime.

• Tools can function as an extension of one’s body if the tool goes inside. This is called “Entry by Instrumentality.”

Common Law Burglary: Rule for “Building/Structure” Element

The building/structure element of burglary requires that the burglary take place in any house, room, apartment, tenement, shop, warehouse, store, mill, barn, stable, outhouse or other building, tent, vessel, etc.

Common Law Burglary: Rule for “Of Another”

The “of another” element of burglary requires that the dwelling must belong to someone other than the burglar.

Common Law Burglary: Rule for the “with the intent to commit a felony therein” element

Under common law, the “with the intent to commit a felony therein” element of burglary requires that the perpetrator had the specific intent to commit a felony (such as theft, murder, arson, etc.) once inside the dwelling.

Specific intent requires the intent to cause a specific result or harm, or to do an additional act on top of the prohibited act.

Rule for Embezzlement

Embezzlement is the intentional conversion of the property of another by someone who is already in lawful possession of it (or by someone who has been entrusted).

Embezzlement: Rule for Intentional Conversion

An intentional conversion requires that the defendant must have converted the property for their own use, or the use of another, in a way that violates their position of trust.

• “Conversion” = an act that seriously interferes with the owner’s ability to use the property.

  • Using something up;

  • Selling something;

  • Giving something away;

  • Inflicting serious damage;

  • Delivering an item to someone not entitled to it.

Embezzlement: Rule for Property of Another

The property of another element of embezzlement requires that property is taken without the owner’s consent.

Embezzlement: Rule for “by someone who is already in lawful possession of it (or by someone who has been entrusted)”

The “by someone who is already in lawful possession of it (or by someone who has been entrusted)” element of embezzlement requires that property is taken by a person in a position of trust (concerning the property in question).

Possession requires “sufficient control to use it in a reasonably unrestricted manner.”

Rule for False Pretenses

The crime of false pretenses is a false statement of fact that causes the victim to pass title to the defendant, where the defendant knows the statement is false AND the defendant must have intended to defraud the victim.

False Pretenses: Rule for False Statement

A false statement of fact requires the defendant to make a deceptive statement or action regarding a material fact.

False Pretenses: Rule for Causation

The causation element of false pretenses requires that the false statement is a fact important enough to influence the victim’s decision.

False Pretenses: Rule for “Passing of Title”

The “passing of title” element requires that false statement of fact causes the victim to pass title/transfer ownership to the defendant.

• With crimes of false pretense, the victim intends to transfer title/ ownership to the defendant based on a lie or misrepresentation.

• False pretense crimes also require false statements about the past or present (not the future).

False Pretenses: Rule for Knowledge

The knowledge element requires that the defendant knew that the statement or representation they were making was false.