Criminal Law BAR EXAM

Actus reus

The act required to commit a given crime - must be a voluntary physical act

A failure to act can constitute actus reus if

D has a specific legal duty to act;

D had knowledge of facts giving rise to the duty; and

It was reasonably possible for D to perform the duty

Specific Intent

D must have a specific intent or objective to commit the given crime

General intent

D must be aware of his actions and any attendant circumstances

Defenses for specific intent crimes

Mistake of fact and voluntary intoxication

Malice

D acts with reckless disregard or undertakes an obvious risk, from which a harmful result is expected

Purposely (MPC Mens Rea)

A person acts purposely when his conscious objective is to engage in certain conduct or cause a certain result

Knowingly (MPC Mens Rea)

A person acts knowingly when he is aware that his conduct is of a particular nature or knows that his coonduct will necessarily or very likely cause a particular result

Recklessly (MPC Mens Rea)

A person acts recklessly when he knows of a substantial and unjustifiable risk and consciously disregards it

Negligence (MPC Mens Rea)

A person acts negligently when he fails to become aware of a substantial and unjustifiable risk

Specific Intent crimes

Solicitation, Conspiracy, Attempt, First Degree Premeditated Murder, Assault, Larceny, Embezzlement, False Pretenses, Robbery, Burglary, Forgery

General Intent crimes

Battery, Rape, Kidnapping, False Imprisonment

Malice crimes

Common law murder, Arson

Strict Liability Crimes

Statutory Rape, Regulatory crimes, Administrative crimes, Morality crimes

Concurrence requirement

D’s criminal act and the requisite intent (i.e., mens rea) for the crime must occur simultaneously

Causation requirement

D’s conduct must be both the cause-in-fact and the proximate cause of the crime committed

Proximate cause

The actual result is the natural and probable cause of D’s conduct, even if it did not occur exactly as expected

Cause in fact

But for D’s conduct, the result would not have occurred

Transferred intent doctrine

D may be held liable if he intends the harm caused, but causes it to a different victim or object than intended (does not apply to attempt)

Merger doctrine

Two or more offenses merge, prohibiting D from being prosecuted separately for each crime

To be liable as an accomplice, one must

1) Aid, counsel, or encourage principal before or during the crime, 2) with the intent a) to assist the principal and b) that the principal commit the crime

Scope of Liability for Accomplice Liability

Accomplice is liable for the crimes he committed or counseled and any other probable or foreseeable crimes committed

Accomplice liability does not apply where

Withdrawal, member of a protected class, parties not provided for in the statute

Accessory after the fact

Involves helping a known felon escape arrest, trial, or conviction

Accomplice can avoid liability by withdrawing from a crime before the principal commits it; accomplice must:

1) Repudiate prior aid or encouragement, 2) do all that is possible to counteract the prior aid; and 3) Do so before the chain of events is in motion and unstoppable

Solicitation

Inciting, urging, or otherwise asking another to commit a crime with the intent that they commit the crime

Conspiracy

An agreement between two or more people to commit a crime or unlawful objective

Conspiracy Elements

1) An agreement between two or more people, 2) Intent to enter into the agreement, 3) Intent to commit the target crime or pursue the unlawful objective, 4) An overt act in furtherance of the target crime (overt act not required at common law)

Unilateral vs. Bilateral - Conspiracy

At common law, two or more people must have the criminal intent, but MPC allows only one party (apply common law rule unless otherwise instructed)

Co-conspirator liability

Each conspirator is liable for co-conspirators’ crimes that are 1) foreseeable, and 2) committed in furtherance of the conspiracy

Withdrawal from Conspiracy

At Common Law, one cannot withdraw from conspiracy itself, MPC allows withdrawal if the withdrawing party thwarts the conspiracy

Attempt

An act, done with the specific intent to commit a crime, that constitutes an overt or substantial step towards committing the crime but falls short of completing the crime

Overt act for attempt

D must commit an act beyond mere preparation

Defense to attempt

Legal impossibility is a defense to attempt

Insanity defense

Legal insanity is a defense to all crimes, regardless of the intent requirement

M’Naghten test

Due to a mental disease or defect, at the time of the offense D lacked the ability to know the wrongfulness of his conduct or understand the nature and quality of his act

MPC ALI test

As a result of D’s mental disease, D lacked the capacity to either appreciate the criminality of his conduct or conform his conduct to the requirements of the law

Irresistible impulse test

Due to a mental illness, D was unable to control his actions or conform his conduct to the law

Durham test

D’s conduct was the product of a mental illness

Infancy defense for under 7 years old

No criminal liability

Infancy defense for 7-14 years old

Rebuttable presumption against criminal liability

Diminished capacity

A defense based on D’s mental defect, available if D can show that he has some mental defect short of insanity that prevented him from forming the mental state required for the crime

Due Process and D’s mental condition during trial

Due Process Clause forbids D from being tried, convicted, or sentenced if, as a result of his mental disease or defect, D is unable to either a) understand the nature of the proceeding, or b) assist his lawyer in the preparation of his defense

D cannot be executed if he is

incapable of understanding the nature and purpose of the punishment at the time of execution

Voluntary intoxication

D chose to consume an intoxicant

Involuntary intoxication

Arises when D was given an intoxicant without her knowledge or forced to consume an intoxicant; defense to all crimes

An intoxicant is taken involuntarily if taken:

a) Without knowledge of its nature, b) Under direct duress imposed by another person, or c) pursuant to medical advice without notice of its intoxicating effect

Self defense by an initial aggressor is available if

Either a) initial aggressor effectively withdraws before the need for self-defense arrises and communicates his desire to do so, or b) victim of the initial aggression suddenly escalates a minor dispute into a deadly altercation

In self-defense, non-deadly force may be used if

1) D is not the initial aggressor, and 2) D reasonable believes it is necessary to protect himself from imminent unlawful force

Deadly force may be used in self-defense if

1) D was not the initial aggressor, 2) D was confronted with unlawful force, and 3) D reasonable believes he is confronted with unlawful force that threatens imminent death or great bodily harm

Police may use non-deadly force

to reasonably effectuate arrest

Police may use deadly force to

1) prevent the escape of a fleeing felon; and 2) fleeing felon poses a threat of death or serious bodily harm

Defense of dwelling with non-deadly force

Allowed to prevent or terminate an unlawful entry or attack on one’s dwelling

Defense of dwelling with deadly force

May be used if one reasonably believes a) Force is necessary to prevent attack on oneself or others by a person who made or attempted violent entry, or b) Force is necessary to prevent entry by a person who intends to commit a felony in the swelling

Assault

Intentional creation of victim’s reasonable apprehension of imminent bodily harm (general intent) OR attempted battery (specific intent)

Battery

an unlawful application of force to the person of another resulting in bodily injury or offensive touching (general intent)

Common law rape

Unlawful carnal knowledge of a woman by a man other than her husband, without effective consent

Modern statutes - Rape

The slightest penetration is sufficient to complete the crime; Most states have abolished element of marital status

Modern Statutes: Consent will not be found in rape case if:

a) Penetration accomplished by force or threat of immediate bodily harm, b) victim is incapable of consenting due to lack of capacity, or c) victim is fraudulently caused to believe the act is not intercourse

False Imprisonment

The unlawful confinement of a person without their consent

Kidnapping

The unlawful confinement of a person that involves either: a) some movement of the victim, or b) concealment of the victim in an unknown, hidden, or secret location

Murder

Unlawful killing of another human with malice aforethought

Malice aforethought

Arises when no mitigating facts reduce the killing to a lesser crime and D commits the killing with either: 1) intent to kill, 2) intent to inflict great bodily injury, 3) depraved/malignant heart, 4) felony murder

Depraved/malignant heart

A killing committed with reckless indifference to an unjustifiable risk of human life

Felony murder

killing caused during the attempt or commission of an inherently dangerous or statutorily enumerated felony (just need intent to commit the underlying felony)

First degree murder arises if either

A) Deliberate and premeditated, or B) Killed during an enumerated felony

Deliberate and premeditated

D must have killed in a dispassionate manner and must have considered or reflected on his killing, even if only momentarily

Voluntary Manslaughter

A killing resulting from an adequate provocation (heat of passion killing) or imperfect self-defense

Adequate provocation elements

1) Provocation would cause sudden and intense passion in an ordinary person, causing him to lose self-control,

2) D was in fact provoked (i.e., D actually lost control),

3) There was insufficient time for an ordinary person to cool off between the provocation and the killing,

4) D did not cool off between the provocation and the killing

if D murders while acting in self-defense, his criminal liability can be reduced to voluntary manslaughter if either

1. D initiated the altercation that required self-defense, or

2. D unreasonably believed deadly force was necessary

Involuntary Manslaughter

A killing committed with criminal negligence or during the commission of an unlawful act not constituting felony murder

Duress

A valid defense to a crime D committed under reasonable belief that the crime was necessary to prevent death or serious bodily harm to D or a member of D’s family

Necessity

Valid defense if D believed his conduct was reasonably necessary to avoid an imminent and greater injury to society

Necessity is not available as a defense if either

a) crime committed results in death of another, or b) D caused the events giving rise to the necessity

Larceny

The taking and carrying away of another’s tangible personal property without consent and with the intent to permanently deprive the person of the property

Elements of larceny

1) Taking, 2) Carrying away, 3) Without consent, 4) intent to permanently deprive

Embezzlement

Fraudulent conversion of another’s personal property by one in lawful possession

False pretenses

Obtaining title to another’s property using false statements of past or existing fact, with intent to defraud

Larceny by trick

Obtaining possession of another’s personal property using false statements of past or existing fact

Robbery

Wrongful taking of another’s personal property from his person or presence by force or threat of injury, with the intent ot permanently deprive