Comprehensive Criminal Law Notes (Outline)

Jurisdiction and General Matters

  • Jurisdiction is the authority of a sovereign to create substantive criminal law; enforcement authority is primarily criminal procedure.
  • A. JURISDICTION
    • 1. Federal Criminal Jurisdiction: The federal government enforces crimes under four broad categories:
    • a. Power over Federally Owned or Controlled Territory (e.g., DC, territories, federal enclaves).
    • b. Power over conduct occurring within a state, limited to statutes grounded in express/implied constitutional authority.
    • c. Power over United States Nationals abroad (reach by express provision).
    • d. Power over conduct on ships or airplanes (maritime jurisdiction on American ships or aircraft on/over high seas or abroad).
    • 2. State Criminal Jurisdiction: States have inherent police power over internal affairs for health, safety, welfare, and morals.
    • a. Situs of the Crime: At common law, jurisdiction lies where the proscribed act occurs or where the harmful result occurs; libel example shows publication location vs writing.
    • b. Modern Bases for Jurisdiction: A person may be prosecuted in a state for (i) conduct wholly/partly within the state; (ii) an attempt/conspiracy with an act inside the state; (iii) conduct inside another jurisdiction that violates both states’ laws; (iv) omission-based offenses committed inside the state.
  • B. SOURCES OF CRIMINAL LAW
    • 1. Common Law Crimes: No federal common law crimes; many states abolished common law crimes in codes, though defenses (e.g., insanity) may survive.
    • 2. Constitutional Crimes: Treason defined; two witnesses to overt act or confession required.
    • 3. Administrative Crimes: Legislature may delegate rulemaking to admin agencies; criminal penalties may attach to violations, but no delegation of which regulations carry penalties or adjudication of guilt.
    • 4. The Model Penal Code (M.P.C.): Not a binding code, but a scholarly framework influencing state statutes; stresses coherent theory and fault concepts.
  • C. THEORIES OF PUNISHMENT
    • 1. Incapacitation (Restraint): Remove offender from society temporarily.
    • 2. Special Deterrence: Deter the individual offender.
    • 3. General Deterrence: Deter others from similar conduct.
    • 4. Retribution: Punish to vindicate moral balance and desert.
    • 5. Rehabilitation: Reform the offender for future conduct.
    • 6. Education: Public education about law through trial/publicity.
  • D. CLASSIFICATION OF CRIMES
    • 1. Felonies and Misdemeanors: Modern codes define felonies as crimes punishable by more than one year; misdemeanors punishable by less than one year or fines.
    • 2. Malum in se vs Malum prohibitum: Wrong in itself vs wrong because prohibited (e.g., battery vs speeding).
    • 3. Infamous Crimes: Historically crimes involving fraud/dishonesty; modernly broadened to include many felonies.
    • 4. Crimes Involving Moral Turpitude: Crimes reflecting depravity; may impact immigration, licensing, or impeachment.
  • E. PRINCIPLE OF LEGALITY—VOID-FOR-VAGUENESS DOCTRINE
    • 1. Fair Warning: Statutes must give ordinary people fair notice of forbidden conduct.
    • 2. Arbitrary/Discriminatory Enforcement Avoided: Laws should not invite arbitrary enforcement.
  • F. CONSTITUTIONAL LIMITATIONS ON CRIME CREATION
    • 1. No Ex Post Facto Laws: Prohibits retroactive criminalization, enhancement of punishment, retroactive rules of evidence, and retroactive procedural changes.
    • 2. No Bills of Attainder: Prohibits punishment without trial.
  • G. INTERPRETATIONS OF CRIMINAL STATUTES
    • 1. Plain Meaning Rule: If statute is clear, give effect; exception for unfair or absurd results.
    • 2. Ambiguous Statutes — Rule of Lenity: Ambiguities resolved in defendant’s favor.
    • 3. Expressio Unius, Exclusio Alterius: Expressing one thing implies exclusions of others.
    • 4. Specific Controls the General; More Recent Controls the Earlier: Specific or newer statutes control over general/older rules.
    • 5. Effect of Repeal: Saving provisions may apply; otherwise, pre-repeal violations may be prosecutable if final.
  • H. MERGER
    • 1. Common Law Rule: Misdemeanor merges into felony; no merger among offenses of same degree.
    • 2. Modern Rule: Generally no merger; exceptions include: (a) Merger of solicitation or attempt into completed crime; (b) Lesser-included offenses into greater offenses; (c) Inchoate offenses—modern rules (M.P.C.) limit multiple inchoate punishments for same objective; (d) No double jeopardy for multiple punishments in a single act where statute contemplates multiple punishments.
    • 3. Developing Rules Against Multiple Convictions for Parts of the Same “Transaction”: Many jurisdictions prohibit multiple convictions for acts within the same criminal transaction (no double jeopardy if the underlying statute permits multiple punishments).

II. ESSENTIAL ELEMENTS OF CRIME

  • A. ELEMENTS OF A CRIME
    • Actus Reus (guilty act): A bodily movement or unlawful omission by the defendant.
    • Mens Rea (guilty mind): The state of mind or intent at the time of the act.
    • Concurrence: The act and the mental state must coincide in time.
    • Harmful Result and Causation: A prohibited result caused by the defendant’s act, factually and proximally.
  • B. PHYSICAL ACT
    • 1. Act Must Be Voluntary: Not involuntary movements, reflexes, unconscious acts; thoughts do not count.
    • 2. Omission as an “Act”: A legal duty to act may create liability for omission; sources of duty include statute, contract, relationship, or voluntary assumption of care; knowledge of facts creating the duty and reasonable ability to perform also matter.
    • 3. Possession as an “Act”: Possession can be an act in crimes involving contraband; possession may be actual or constructive; state of mind may be required (e.g., “knowingly” possessing).
  • C. MENTAL STATE
    • 1. Purpose of Mens Rea: Distinguish inadvertent acts from blameworthy acts; strict liability crimes may dispense with mens rea.
    • 2. Specific Intent: Crimes requiring a particular objective; significance includes need for proof and applicability of certain defenses (e.g., voluntary intoxication).
    • 3. Malice—Common Law Murder and Arson: Reckless disregard of a high risk; not subject to typical specific-intent defenses.
    • 4. General Intent: Awareness of factors constituting the crime; can be inferred from the act.
    • 5. Strict Liability Offenses: Do not require awareness of all elements; defenses like mistake of fact are typically unavailable; many are public welfare/regulatory offenses; examples and constitutional considerations discussed.
    • 6. Model Penal Code (fault): Four-level framework—Purposely, Knowingly, Recklessly, Negligently; roles in determining liability across statutes.
    • 7. Vicarious Liability Offenses: Agencies may impose liability on organizations/agents; limitations include due process concerns; corporate liability rules under MPC (board-level or high managerial agent) and the need for individual liability independent of enterprise liability.
    • 8. Transferred Intent: Intent to harm one party transfers to a different victim; typically applies to homicide, battery, arson; not to attempt.
    • 9. Motive Distinguished: Motive is not the same as intent; motive generally immaterial to liability.
  • D. CONCURRENCE OF MENTAL FAULT WITH PHYSICAL ACT REQUIRED
  • E. CAUSATION
    • Some crimes require a result; must show causation: cause-in-fact (but-for) and proximate cause; year-and-a-day rule historically applied but many jurisdictions have abolished it; proximate cause concerns include superseding intervening acts, foreseeability, and the effects of victim’s conduct, third-party actions, or natural events.

III. ACCOMPLICE LIABILITY

  • A. PARTIES TO A CRIME
    • 1. Common Law: Distinguishes principals in the first degree, second degree, accessories before the fact, and accessories after the fact; historically, guilt could depend on the principal’s guilt first. Modern jurisdictions largely abolish strict distinctions; all parties can be liable as accomplices.
    • 2. Modern Statutes: Generally, all “parties” can be found guilty as principals or accomplices for the substantive offense.
    • a. Principal: The person who actually commits the act with the requisite mental state; may include one who acts through an innocent or unwilling agent.
    • b. Accomplice: A person who aided, counseled, or encouraged the principal before or during the crime with intent to assist and intent that the principal commit the offense.
    • c. Accessory After the Fact: Aids felon after the crime to help escape or avoid arrest; penalties often separate from the principal offense and usually include limited punishment.
  • B. MENTAL STATE—DUAL INTENT REQUIRED
    • Accomplice liability requires: (1) intent to aid the principal; and (2) intent that the principal commit the offense; if the underlying offense has recklessness/neglect, accomplice liability may be found if the accomplice aided and acted with recklessness/neglect as required.
  • C. SCOPE OF LIABILITY
    • Accomplice liability extends to crimes that were intended or reasonably foreseeable in the course of aiding the principal; withdrawal or later events may limit liability if effective withdrawal occurs before chain of events becomes unstoppable; and accomplice may be liable for crimes committed in furtherance of the conspiracy.

IV. INCHOATE OFFENSES

  • A. IN GENERAL
    • Inchoate offenses include solicitation, attempt, conspiracy; complete offenses even if the principal offense is not completed; merger doctrine has evolved; conspiracy can be criminal even if the principal offense is not completed.
  • B. SOLICITATION
    • 1. Elements: inciting, counseling, or urging another to commit a crime with the intent that the person solicited commits the crime; completion is at the time of solicitation; no requirement that the solicited person agree or commit the crime.
    • 2. Attempt Distinguished: Solicitation is not always an attempt; overlap varies by jurisdiction.
    • 3. Defenses: Factual impossibility is not a defense; withdrawal is generally not a defense; exemption from intended crime as a defense if the crime solicited is not criminal for the solicitant.
  • C. CONSPIRACY
    • 1. Elements: (i) agreement between two or more persons; (ii) intent to enter into the agreement; (iii) intent to achieve the objective; and (iv) overt act in many jurisdictions; liability for all conspirators for crimes committed in furtherance and as a natural and probable consequence of the conspiracy; over time, unilateral (one guilty mind) approach has gained acceptance in many jurisdictions; Wharton Rule considerations apply when only the number of parties necessary for the crime matches; multiple theories of conspiracy (chain vs hub-and-spoke).
    • 2. Mental State—Specific Intent: Intent to agree, and intent to achieve the objective; intent to facilitate a conspiracy.
    • 3. Overt Act: Some jurisdictions require an overt act; traditional rule requires act in furtherance; attempts are distinguished by substantial steps vs mere preparation.
    • 4. Termination: When conspiracy ends depends on acts of concealment, government disruption, etc.; withdrawal defenses under MPC permitted if thwarting a conspiracy; subsequent crimes by co-conspirators may be limited if withdrawal is timely.
    • 5. No Merger—Conspiracy and Substantive Crime: Modern rule allows conviction for both conspiracy and the substantive offense; sometimes statutes set penalties for conspiracy separately.
  • D. ATTEMPT
    • 1. Elements: Intent to commit crime; overt act beyond mere preparation; in some places, proximity or substantial step tests; Model Penal Code uses substantial step and corroboration of criminal purpose.
    • 2. Defenses: Legal impossibility is a defense; factual impossibility is not; abandonment may be defense in MPC if fully voluntary and complete abandonment before completion; punishment varies (often up to less than the completed crime or sometimes same as the crime for severe cases).

V. RESPONSIBILITY AND CRIMINAL CAPACITY

  • A. INSANITY
    • Insanity is a legal, not psychiatric, term; formulations include M’Naghten, Irresistible Impulse, Durham, and American Law Institute (Model Penal Code) tests; many jurisdictions exclude psychopaths from insanity; burdens of proof differ by jurisdiction (presumption of sanity; who bears burden; standards of proof: preponderance, beyond reasonable doubt, or clear and convincing in federal courts).
    • Post-acquittal commitments and procedural issues like competency to stand trial and competence at time of execution; bifurcated trials in some states; diminished capacity defenses in some states for specific intent crimes.
  • B. INTOXICATION
    • Voluntary intoxication: can negate specific intent crimes; not a defense to general intent or strict liability or crimes requiring malice; involuntary intoxication can be treated as sleep or insanity in some cases.
  • C. INFANCY
    • Common law prescribes age-based presumptions; Under 7: no liability; 7-14: rebuttable presumption of no liability; over 14: treated as adult; many modern statutes modify or abolish presumptions and provide juvenile delinquency jurisdictions with exclusive or concurrent jurisdiction; rehabilitation perspectives in some statutes (M.P.C.).

VI. PRINCIPLES OF EXCULPATION

  • A. JUSTIFICATION
    • Person may justify conduct if necessary to prevent greater harm, or in other socially sanctioned circumstances. The defendant bears burden of production or persuasion as to justification, depending on statute.
    • 1. SELF-DEFENSE
    • Nondeadly force: reasonable belief necessary to prevent unlawful imminent harm; no duty to retreat in most jurisdictions.
    • Deadly force: permitted if without fault, unlawful force, and imminent threat of death/great bodily harm; retreat rules vary; home defense exceptions; aggressor’s right to use force after withdrawal or sudden escalation.
    • Defense of others: depends on reasonable belief that the person defended had the right to use force; relationship or status may not be required; defense of dwelling and other property rules separate.
    • Defense of a dwelling: nondeadly and deadly force rules; entry-related factors (tumult, felony entry, etc.).
  • B. EXCUSE OF DURESS (COERCION)
    • Necessity distinguished: necessity may apply where threat is not human (e.g., natural force) whereas duress involves human threat; necessity is not available when defendant caused the situation.
  • C. OTHER DEFENSES
    • Mistake or Ignorance of Fact: Mistake negates the required state of mind if reasonable; specific intent crimes allow unreasonable mistakes; strict liability crimes are generally not defenses.
    • Mistake or Ignorance of Law: generally no defense; may negate intent if it negates required belief about a collateral aspect of the law; exceptions for not reasonably available statutes, reasonable reliance on statutes or official interpretations, or advice from private counsel.
    • Consent: may negate an element of the offense; requirements: voluntary consent, capacity to consent, and no fraud; condonation by injured party is generally not a defense; illegality of the victim’s conduct can be no defense.
    • Entrapment: defense when criminal design originated with law enforcement; predisposition of defendant must be shown; availability rules and tests vary; MPC permits entrapment defenses even if defendant denies participation; minority/majority rule debates.
    • Impossibility: legal impossibility is a defense; factual impossibility is not; abandonment rules under MPC may provide defense if completely voluntary and complete renunciation.

VII. OFFENSES AGAINST THE PERSON

  • A. ASSAULT AND BATTERY
    • Battery: Unlawful application of force resulting in bodily injury or offensive touching; may be intentional or negligent; indirect application (e.g., dog attack) counts; aggravated battery involves deadly weapon, serious injury, or protected class victims.
    • Assault: Either attempt to commit a battery or the intentional creation of reasonable apprehension of imminent bodily harm; present ability to succeed matters in some statutes; aggravated assault includes use of a deadly weapon or intent to rape, maim, or murder.
  • B. MAYHEM
    • Common law mayhem involved disfigurement or disablement; modern statutes often treat mayhem as aggravated battery or similar offense.
  • C. HOMICIDE
    • Classifications: Justifiable, Excusable, and Criminal homicide. Common-law murder requires malice aforethought; four possible mental states that create malice: intent to kill; intent to inflict great bodily harm; reckless disregard of life (abandoned/malignant heart); or intent to commit a felony (felony murder).
    • Voluntary manslaughter: adequate provocation; heat of passion; no cooling-off period; imperfect self-defense; provocation adequacy varies by jurisdiction.
    • Involuntary manslaughter: criminal negligence or unlawful act manslaughter; felony murder doctrines and related limits.
    • Felony murder: death during commission of a felony; liability may extend to co-conspirators if death was a foreseeable consequence; required that underlying felony be independent of death; foreseeability; death during flight; co-felon deaths by victims or police generally reduce liability in many jurisdictions.
    • Causation: year-and-a-day rule historically, now largely abolished; proximate cause and superseding intervening acts considered.
    • Born alive rule: most jurisdictions have softened; unborn victims protection may exist in statute.
  • D. FALSE IMPRISONMENT; E. KIDNAPPING
    • False imprisonment requires unlawful confinement without consent; kidnapping adds movement or concealment and sometimes secrecy; modern statutes expand to aggravated kidnappings (ransom, other crimes, offensive purposes, child stealing).
  • VIII. SEX OFFENSES
  • A. RAPE
    • Penetration suffices; absence of marital relationship used to be required; many states gender-neutralize rape statutes; lack of effective consent (force, threats, incapacity, fraud in some limited cases) defines rape.
    • Fraud-related consent issues include misrepresentations about the act or the husband status; limitations on what fraud can convert to rape.
  • B. STATUTORY RAPE
    • Victim under age of consent; strict liability; mistake as to age not a defense in most jurisdictions; some jurisdictions permit defense if reasonable belief of age
  • C. CRIMES AGAINST NATURE; D. ADULTERY AND FORNICATION; E. INCEST; F. SEDUCTION OR CARNAL KNOWLEDGE; G. BIGAMY
  • IX. PROPERTY OFFENSES
  • A. LARCENY
    • Elements: Taking (caption); asportation; of tangible personal property; of another; by trespass; with intent to permanently deprive; Property subject to larceny includes realty severed materials, services, intangibles, documents; possession and ownership distinctions (custody vs possession; constructive possession); asportation; taking must be trespassory; intent to permanently deprive; specialized situations (early abandonment, container cases, continuing trespass).
  • B. EMBEZZLEMENT
    • Distinct from larceny: misappropriation occurs while in lawful possession; conversion; property of another; fraudulent intent to restore or claim of right; demand for return not always necessary; entrustment rules; property entrusted and the defendant’s duties.
  • C. FALSE PRETENSES
    • Obtaining title by false representation of past or existing fact with intent to defraud; distinguished from larceny by trick (where only custody is obtained); misrepresentation must be material; reliance of victim must be a major factor in transfer of title.
  • D. ROBBERY
    • Elements: taking of property from victim’s person or presence by force or fear with intent to permanently deprive; threats must be immediate; aggravated robbery increases penalties (often with a weapon).
  • E. EXTORTION (BLACKMAIL)
    • Modern definitions: threats to do harm or damage; need not involve immediate physical harm; property not necessarily in victim’s presence; sometimes it’s the threat itself that constitutes the offense.
  • F. RECEIPT OF STOLEN PROPERTY; G. STATUTORY CHANGES IN PROPERTY ACQUISITION OFFENSES; H. FORGERY (FORGERY, UTTERING A FORGED INSTRUMENT, WRITINGS SUBJECT TO FORGERY, MAKING, FALSITY, etc.); I. MALICIOUS MISCHIEF
  • X. OFFENSES AGAINST THE HABITATION
  • A. BURGLARY
    • Elements: breaking; entry; dwelling; another; nighttime; intent to commit a felony therein. Modern changes include: abandonment of breaking; remaining in a structure; broader structures; daylight entry; intent to commit any theft; “container” concept; trespass and consent; entry may be by momentary intrusion; the breaking may be by the entry itself; dwelling includes structures used for sleeping; occupancy controls; rules for entry and exit; modern statutes modify nighttime and structure definitions.
  • B. ARSON
    • Elements: malicious burning of a dwelling or structure of another; modern expansions cover other structures; “scorching” vs “charring” distinction; ownership not necessary; malice can be inferred; related offenses include houseburning and arson-for-insurance fraud; modern statutes broaden to include non-dwellings and various structures.
  • XI. OFFENSES INVOLVING JUDICIAL PROCEDURE
  • A. PERJURY
    • Elements: willful false oath; materiality; contradictory statements at proceedings may preclude later perjury prosecutions if corrected before deadlock; civil liability immunity for witnesses in 42 U.S.C. § 1983 cases.
  • B. SUBORNATION OF PERJURY
  • C. BRIBERY
    • Mutual criminal intent unnecessary; may apply to public officials and private actors; failure to report a bribe is a possible offense.
  • D. COMPOUNDING A CRIME
  • E. MISPRISION OF A FELONY

EXAM PREPARATION AND CHART-STYLE GUIDANCE

  • The Multistate Examination uses generally accepted views; be familiar with both common law and MPC distinctions; read exam cues about which jurisdiction applies. When a question omits jurisdiction reference, focus on the mental state and elements rather than jurisdiction-specific elements (e.g., voluntary intoxication defense depends on the offense’s mental state requirement).
  • The following formula captures the core framework for exam analysis:
    • (extActusReus)<br/>ightarrow(extMensRea)<br/>ightarrowextConcurrence<br/>ightarrowextCausation/Harm( ext{Actus Reus}) <br /> ightarrow ( ext{Mens Rea}) <br /> ightarrow ext{Concurrence} <br /> ightarrow ext{Causation / Harm}
  • Remember the major cross-cutting principles:
    • Plain meaning vs lenity; agency rules for corporations; transferred intent; merger vs non-merger; overt acts in conspiracy/attempt; defense vs justification distinctions.

Key LaTeX-Formatted Points to Memorize

  • Elements of crime: extActusReus,extMensRea,extConcurrence,extHarmfulResult/Causation.ext{Actus Reus}, ext{Mens Rea}, ext{Concurrence}, ext{Harmful Result / Causation}.
  • MPC fault categories: extPurposely,extKnowingly,extRecklessly,extNegligently.ext{Purposely}, ext{Knowingly}, ext{Recklessly}, ext{Negligently}.
  • Felony murder core limitation: extUnderlingfelonymustbeindependentofkillingandforeseeable.ext{Underling felony must be independent of killing and foreseeable}.
  • Burglary concepts: extBreaking<br/>ightarrowextEntry<br/>ightarrowextDwelling<br/>ightarrowextWhoisindwelling<br/>ightarrowextNighttime<br/>ightarrowextIntenttocommitfelonyatentry.ext{Breaking} <br /> ightarrow ext{Entry} <br /> ightarrow ext{Dwelling} <br /> ightarrow ext{Who is in dwelling} <br /> ightarrow ext{Nighttime} <br /> ightarrow ext{Intent to commit felony at entry}.
  • Self-defense standard: extNondeadlyforceextavailableifnecessarytopreventunlawfulforce;Deadlyforceallowedifwithoutfault,unlawfulforce,andimminentthreatofdeath/greatbodilyharm.ext{Nondeadly force} ext{ available if necessary to prevent unlawful force; Deadly force allowed if without fault, unlawful force, and imminent threat of death/great bodily harm.}
  • Accomplice liability: extIntenttoaid+extintentthatprincipalcommitthecrime<br/>ightarrowextliabilityforconductinfurtherance/foreseeablecrimes.ext{Intent to aid} + ext{intent that principal commit the crime} <br /> ightarrow ext{liability for conduct in furtherance/foreseeable crimes.}
  • Entrapment test (general): extCriminaldesignoriginatedwithauthoritiesanddefendantnotpredisposed.ext{Criminal design originated with authorities and defendant not predisposed.}
  • Statutory interpretation maxims: extPlainMeaning,extRuleofLenity,extExpressioUnius,extSpecificoverGeneral,extSavingProvisions.ext{Plain Meaning}, ext{Rule of Lenity}, ext{Expressio Unius}, ext{Specific over General}, ext{Saving Provisions}.

Title

Comprehensive Criminal Law Notes (Outline Style)