Criminal Law: Page-by-Page Comprehensive Notes

I. JURISDICTION AND GENERAL MATTERS

A. JURISDICTION

1. Federal Criminal Jurisdiction

• The power of the federal government to create crimes falls into broad categories:
  • a. Power over Federally Owned or Controlled Territory: DC, territories, federal enclaves (e.g., naval yards, federal courthouses, national parks).
  • b. Power over Conduct Occurring Within a State: Federal power to criminalize conduct within a state is limited to statutes grounded in express or implied constitutional authority.
  • c. Power over United States Nationals Abroad: Federal statutes may reach conduct by U.S. citizens on foreign soil by express provision.
  • d. Power over Conduct on Ships or Airplanes: Maritime jurisdiction extends to conduct aboard American ships or aircraft on the high seas or in foreign waters/ports.

1. State Criminal Jurisdiction

• States have inherent police power to regulate internal affairs for health, safety, welfare, morals.
• a. Situs of the Crime: At common law, and in many states, the situs (where the proscribed act occurs or where the harmful result occurs) governs jurisdiction. Example: libel may be crime where published, not where written.
• b. Modern Bases for Jurisdiction: A person may be prosecuted in a state for offenses committed within or outside the state under conditions including:
  • 1) Conduct wholly or partly within the state (element or harmful result within the state).
  • 2) Conduct outside the state that constitutes an attempt or conspiracy to commit an offense within the state plus an act inside the state.
  • 3) Conduct within the state constituting an attempt, solicitation, or conspiracy to commit, in another jurisdiction, an offense under both states’ laws.
  • 4) Omission-based offenses (duty to act) committed within the state.

B. SOURCES OF CRIMINAL LAW

1. Common Law Crimes

• No Federal Common Law Crimes: Federal law is statute-based; D.C. has some common law crimes.
• Traditional Approach—Common Law Crimes Retained: Historically, American criminal law included English common law unless expressly abrogated.
• Modern Trend—Common Law Crimes Abolished: Many states codify crimes, abolishing common law offenses, but defenses like insanity/necessity may remain unless statutes provide otherwise.

1. Constitutional Crimes

• Treason: Defined in the Constitution as levying war against the U.S., adhering to enemies, or giving aid and comfort. Conviction requires two witnesses to the same overt act or a confession.

1. Administrative Crimes

• Legislatures may delegate rulemaking to administrative agencies; violations may be criminal. However, cannot delegate the power to determine which regulations carry criminal penalties or adjudicate guilt.
• Example: SEC antifraud rules can create criminal liability.

1. The Model Penal Code (M.P.C.)

• Not a source of law but influential; MPC codifies many offenses, influences state statutes.

C. THEORIES OF PUNISHMENT

1. Incapacitation (Restraint): Remove offender from society to reduce harm.
2. Special Deterrence: Deterrence of the individual offender.
3. General Deterrence: Deterrence of the public at large.
4. Retribution: Moral outrage and just deserts.
5. Rehabilitation: Reform of the offender.
6. Education: Public education about law through publicity of punishment.

D. CLASSIFICATION OF CRIMES

1. Felonies and Misdemeanors

• Modern state codes typically classify crimes by punishment: felonies (over 1 year or death) and misdemeanors (less than 1 year or fines).
• Common law felonies included murder, manslaughter, rape, sodomy, mayhem, robbery, larceny, arson, burglary; many others now misdemeanors.

1. Malum In Se vs Malum Prohibitum

• Malum in se: inherently evil; generally require culpable mental state or involve moral turpitude.
• Malum prohibitum: wrong because prohibited by statute; e.g., license violations or regulatory offenses.

1. Infamous Crimes

• Historically, crimes involving fraud/dishonesty or obstruction of justice; modernly expands to many felonies.

1. Crimes Involving Moral Turpitude

• Moral turpitude reflects depravity; conviction can affect immigration, bar admission to professions, etc.

II. ESSENTIAL ELEMENTS OF CRIME

A. ELEMENTS OF A CRIME

• Culpability requires proving the following:
  1) Actus Reus: A physical act (or unlawful omission) by the defendant;
  2) Mens Rea: The state of mind or intent;
  3) Concurrence: The act and the mental state must coincide;
  4) Harmful Result and Causation: A harmful result caused by the defendant’s act (factual and proximate causation).

• Most crimes require a physical act and may require a mental state; many include attendant circumstances.

B. PHYSICAL ACT

• Act must be voluntary: a conscious movement of the body; thoughts alone are not acts.
• Omission as an Act: Liability for omissions requires a legal duty to act, knowledge of circumstances, the ability to perform, and other specifics.
• Possession as an “Act”: Possession can be an act for possession-based offenses; can be actual or constructive; state of mind (e.g., knowledge of possession) may be required depending on statute.

C. MENTAL STATE

• Purpose of Mens Rea: Distinguish intentional acts from accidental; some crimes do not require mens rea (strict liability).

• Specific Intent: Crimes requiring a particular purpose or objective (e.g., solicitation, attempt, conspiracy, first-degree murder premeditation, larceny, burglary, forgery, etc.). Defenses may hinge on specific intent (e.g., voluntary intoxication may negate certain specific intents).

• Malice: For common-law murder and arson, malice can be express (intent to kill or to inflict serious harm) or implied (reckless disregard for risk).

• General Intent: Awareness of act and attendant circumstances; intent inferred from conduct.

• Strict Liability Offenses: Do not require proof of mental state for at least one element; defenses like mistake may not negate liability.

• Model Penal Code Fault (MPC): Four categories; eliminates the general/specific intent dichotomy in many statutes:

  • $Purposely, Knowingly, in Recklessly, NeGligently$
  • 1) Purposely: conscious objective to engage in conduct or cause a result.
  • 2) Knowingly: aware of conduct or circumstances; aware that conduct will cause the result.
  • 3) Recklessly: conscious disregard of a substantial and unjustifiable risk; gross deviation from reasonable-person standard.
  • 4) Negligently: failure to be aware of a substantial and unjustified risk; deviation from standard of care; objective standard.

• c. Evidence and Application: Statutes may apply state-of-mind to all material elements; general recklessness may satisfy, but statutes may require higher levels for certain elements; higher fault satisfies lower fault requirements.

• d. Vicarious Liability Offenses: Offenses where liability attaches to others (employers, corporations) without personal fault; may be limited by due process concerns; models include enterprise liability and MPC standards.

• e. Transferred Intent: If defendant intends a harm to one person but harms another, intent transfers to the actual victim (common in homicide, battery, arson; not for attempts).

• f. Motive Distinguished: Motive is generally irrelevant to substantive liability.

III. CONCURRENCE OF MENTAL FAULT WITH PHYSICAL ACT REQUIRED

• The mental state must exist at the time of the act and must prompt the act.

• Example: If A intends to kill B but negligently causes B’s death while driving, some jurisdictions require the same intent to prompt the act to satisfy the crime of murder.

IV. INCHOATE OFFENSES

A. IN GENERAL

• Inchoate offenses are completed even if the intended target crime is not completed: solicitation, attempt, conspiracy.
• Merger doctrine varies: conspiracy does not merge with the substantive offense in most jurisdictions, but solicitation/attempt may; attempted crimes cannot merge with the completed offense in many jurisdictions.

B. SOLICITATION

1. Elements: incite, counsel, advise, induce to commit a crime with intent that the solicited commit the crime.
2. Defenses: factual impossibility not a defense; withdrawal/renunciation is not a defense in most places, though MPC recognizes renunciation as a defense if the defendant prevents the crime.
3. Attempt Distinguished: solicitation is generally not an attempt to commit the solicited crime.

C. CONSPIRACY

• 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 furtherance (in many jurisdictions).
• Agreement: need not be express; concert of action can show a conspiracy.
• Object: usually unlawful, or unlawful means to achieve a lawful objective.
• Multiple conspiracies in multiple-party contexts: chain vs hub-and-spoke relationships; unilateral vs bilateral approaches (modern trend favors unilateral approach—one guilty mind suffices).
• Wharton Rule: where two or more parties are necessary for the substantive offense, conspiracy requires more than those parties (i.e., aggregate conspirators beyond essential participants).
• Overt Act: many jurisdictions require an overt act; attempt requires substantial step vs conspiracy’s mere preparation.
• Termination: conspiracy may continue even if authorities frustrate objective; liability for co-conspirators’ crimes may extend to foreseeable crimes committed in furtherance of the conspiracy; withdrawal can limit liability.
• No Merger for Conspiracy and Substantive Offense: modern rule permits conviction for both conspiracy and substantive offense if the conspiracy succeeds.

D. ATTEMPT

• Elements: (i) intent to commit a crime, (ii) overt act beyond mere preparation.
• Intent: requires specific intent; attempts to commit reckless or negligent crimes are generally impossible (logically).
• Overt Act: theories include proximity test (dangerously close to completion) and substantial-step test (MPC). Corroboration required for some substantial steps.
• Defenses: legal impossibility is a defense; factual impossibility is not; abandonment is generally not a defense, but MPC recognizes a defense if abandonment is voluntary and complete.
• Prosecution for Attempt: a defendant may be convicted of attempt or the completed offense; the reverse is not true.
• Punishment: varies; often up to one-half the maximum penalty of the completed crime; exceptions for capital crimes; MPC allows broader or same-level punishment for attempts depending on statute.

V. RESPONSIBILITY AND CRIMINAL CAPACITY

A. INSANITY

• The insanity defense is a legal concept; not a psychiatric diagnosis; many formulations exist: M’Naghten, Irresistible Impulse, Durham (Product of mental disease), American Law Institute (MPC).
• Exclusion of psychopaths from some defenses; some jurisdictions exclude sociopaths/psychopaths from insanity defenses.
• Procedural issues: burdens of proof (presumption of sanity; burden of production; persuasive burden often on defendant; default standards vary: preponderance, beyond reasonable doubt, or clear and convincing in federal law).
• Competency issues: competence to stand trial; incompetency at time of execution; bifurcated trials; post-acquittal commitment if insanity.
• Diminished capacity: some jurisdictions recognize as a partial defense to reduce liability for certain crimes, often limited to specific-intent offenses.

B. INTOXICATION

• Voluntary intoxication: may be a defense to specific intent crimes; not a defense to strict liability or crimes requiring malice, recklessness, or negligence.
• Involuntary intoxication: treated as defense to insanity or as a separate defense depending on jurisdiction.
• Relationship to insanity: intoxication may mimic insanity in some cases; continuous intoxication can lead to insanity.

C. INFANCY

• Common law: under seven no liability; seven to fourteen rebuttable presumption of lack of criminal capacity; over fourteen treated as adult.
• Modern statutes: many abolish strict presumptions; juvenile delinquency laws grant exclusive or concurrent jurisdiction; rehabilitation emphasis; M.P.C. follows a younger-juvenile track.

VI. PRINCIPLES OF EXCULPATION

A. JUSTIFICATION

• Justification applies when the conduct is socially acceptable under circumstances. The defendant bears some burden of production to show evidence of justification; prosecution bears burden to negate justification beyond reasonable doubt in many jurisdictions.

1. Self-Defense

• Nondeadly force: justified if reasonably necessary to protect from imminent unlawful force; no duty to retreat for nondeadly force in many jurisdictions; some exceptions exist.
• Deadly force: justified if without fault, unlawful force, and reasonably believed imminent death or great bodily harm; retreat rules vary; home defense exceptions; aggressor policy; use of force to arrest; use of force by private individuals.
• Right of aggressor to use self-defense: withdrawal or sudden escalation can restore right to defend; aggressor may regain rights if the other escalates or withdraws with intent to disengage.

1. Defense of Others

• No special relationship required in many jurisdictions; reasonable belief that the person aided has right to defend themselves; some jurisdictions require a specific relation (family/employee).

1. Defense of a Dwelling

• Nondeadly force to prevent unlawful entry; deadly force in certain circumstances (tumultuous entry + personal danger; or defense against intruder intending to commit a felony in the dwelling).

1. Defense of Other Property; 5. Crime Prevention; 6. Use of Force to Effectuate Arrest

• Distinctions between nondeadly and deadly force; deadliness permitted only when reasonably necessary; police and private arrest rules; private reticence to resist arrest; resists arrest depending on knowledge of officer identity.

1. Resisting Arrest

• Right to resist nonprotected arrests; variations when the arresting officer is known; nondeadly vs deadly force distinctions.

1. Necessity

• Conduct justified when necessary to avoid greater harms; objective test; not available when defendant is at fault creating the situation; property harms do not justify killing; focus on evils and balancing.

1. Public Policy

• Police actions under statutory or constitutional authority may justify force or seizure when authorized by law/court order.

1. Domestic Authority

• Parents or guardians may use reasonable force to promote welfare.

B. EXCUSE OF DURESS (COMPULSION)

• Duress: defense to crimes other than intentional homicide when threat of death or great bodily harm compels the act; threats to a third party can also suffice if reasonable; necessity vs duress distinguished; coercion by a human threat.

C. OTHER DEFENSES

1. Mistake or Ignorance of Fact

• Mistake may negate specific intent or negate the actual mental state when necessary; reasonable mistakes in malice or general intent crimes may be defenses; strict liability mistakes typically no defense. Exceptions apply to strict liability statutes.

1. Mistake or Ignorance of Law

• General rule: not a defense; but ignorance may negate required mental state if belief relates to a collateral aspect of the law; reasonable reliance on statute or judicial decision or official interpretation may create a defense in some jurisdictions; reliance on private counsel generally not a defense unless it negates mental state.

1. Consent

• Consent may negate an element of an offense; requirements include voluntariness, capacity, and absence of fraud; consent is not a defense to crimes where the victim’s lack of consent is not relevant (e.g., statutory rape); in some offenses, consent has limited effect (e.g., assault vs battery).

1. Condonation by Injured Party

• Forgiveness by a victim generally does not defeat prosecution; exceptions may exist in some statutes.

1. Criminality of Victim

• Victim’s illegal conduct does not excuse offender.

1. Entrapment

• Elements: (i) criminal design originated with law enforcement; (ii) defendant not predisposed to commit the crime; defense to entrapment depends on pre-disposition; government inducement may be insufficient for entrapment in many cases; minority/objective tests exist; government provision of material for the crime may be entrapment depending on jurisdiction.

VII. OFFENSES AGAINST THE PERSON

A. ASSAULT AND BATTERY

1. Battery

• Unlawful application of force resulting in bodily injury or offensive contact; simple battery is a misdemeanor; state-of-mind requirement is not necessarily specific intent; indirect application of force is enough (e.g., dog or poisonous substance).
• Aggravated Battery: use of deadly weapon, serious injury, or victim protected class (e.g., child, woman, police officer).

1. Assault

• Present ability to complete a battery or causing reasonable fear of imminent harm; many jurisdictions treat assault as either attempt to commit battery or the creation of apprehension; simple assault is misdemeanor; aggravated assault includes enhancements.

B. MAYHEM

• Historically: mayhem involved dismemberment or disabling a body part; modern statutes often merge mayhem into aggravated or enhanced battery; some jurisdictions retain mayhem as separate offenses.

C. HOMICIDE

1. Classifications

• Justifiable, Excusable, and Criminal homicide.

1. Common Law Criminal Homicides

• Murder: unlawful killing with malice aforethought; malice can be express or implied; Deadly Weapon Rule (death inferred from use of deadly weapon).
• Voluntary Manslaughter: killing under adequate provocation; elements include provocation that would arouse sudden passion, actual provocation, no cooling off, and no opportunity to cool off.
• Involuntary Manslaughter: criminal negligence or unlawful act causing death; misdemeanor-manslaughter and felony murder variations.
• Statutory Modifications of Common Law Classification: first-degree murder (deliberate and premeditated), felony murder rules, second-degree murder definitions, etc.
• Felony Murder: death resulting during the commission of a felony triggers murder liability; underlying felony must be independent and the death must be foreseeable, with some exceptions (death of felon by victims or police typically not counted in modern Redline jurisdictions).

1. Causation, Proximate Cause, and Year-and-a-Day rules

• Causation: must be both cause-in-fact and proximate cause; the year-and-a-day rule has largely been abolished; proximate cause questions consider whether results were natural and probable consequences of defendant’s actions; superseding intervening acts may break the chain of causation.
• Born Alive Rule: historically required a born-alive infant for homicide; many jurisdictions have abolished this in statute.

1. Voluntary and Involuntary Manslaughter

• Voluntary: heat of passion, adequate provocation, cooling-off time missed; imperfect self-defense may reduce murder to manslaughter.
• Involuntary: criminal negligence or unlawful acts causing death.

1. Felony Murder and Related Matters

• Felony murder liability extends to deaths caused during the commission of enumerated felonies; underlying felony must be independent and death must be foreseeable.
• Some limitations: deaths of co-felons by victims or police typically reduce or eliminate liability under Redline rules.

VIII. SEX OFFENSES

A. RAPE

• Penetration of the female sex organ by the male sex organ; absence of effective consent; marital status rules largely changed; some states retain criminalization of rape; surrogate terminology includes sexual assault and gender-neutral statutes.
• Lack of Effective Consent: force, threats, incapacity (drunk, unconscious, or mentally impaired), fraud in certain circumstances (e.g., misrepresentation of whether intercourse constitutes sex).
• Fraud as to whether act constitutes intercourse or whether defendant is victim’s husband can negate consent in some jurisdictions; other frauds generally do not.

B. STATUTORY RAPE

• Victim below age of consent; strict liability; reasonable mistake about age generally not a defense unless statute allows rely on age belief.

C. CRIMES AGAINST NATURE; D. ADULTERY AND FORNICATION; E. INCEST; F. SEDUCTION OR CARNAL KNOWLEDGE; G. BIGAMY

• These cover variations on sexual offenses; rules differ by jurisdiction; many become misdemeanors; certain provisions treat bigamy as strict liability; seduction/romance-specific statutes vary; the MPC contains provisions on seduction that do not require chastity or that the female be unmarried in some contexts.

IX. PROPERTY OFFENSES

A. LARCY

• Larceny involves taking and carrying away of tangible personal property of another, with intent to permanently deprive.
• Property subject to larceny includes realty-related severed materials, services generally not included, intangibles typically not; documents and instruments may be redistributable depending on jurisdiction.
• Elements include: taking from possession of another by trespass, intent to permanently deprive.
• Special applications: lost/mislaid/abandoned property; container cases; continuing trespass; employee/bailee situations; bearing on property entrusted.

B. EMBEZZLEMENT

• Embezzlement requires fraudulent conversion by a person in lawful possession of property; conversion may be non-physical; property may be real or personal depending on statute.
• Distinctions from larceny: misappropriation while in lawful possession; intent to convert; property “of another”; intent to defraud; necessity of demand for return in some cases.

C. FALSE PRETENSES

• Obtaining title to property by a false representation of past or existing fact with intent to defraud; distinguishes from larceny by trick depending on whether title passes.
• Misrepresentation must be of a past or present fact (or in MPC any false representation); the misrepresentation must cause reliance leading to title transfer; the misrepresentation must be false knowing its falsity; intent to defraud.

D. ROBBERY

• Robbery is larceny by force or intimidation from the victim’s person or presence; required threats of imminent death or serious injury; typically a felony; includes aggravated forms with weapon use.

E. EXTORTION (BLACKMAIL)

• Modern extortion uses threats to obtain property; threats need not involve imminent physical harm; may include threats to property or to cause harm; property need not be in victim’s presence.

F. RECEIPT OF STOLEN PROPERTY

• Receiving possession and control of stolen property knowing it was obtained by a crime; possession may be through direct possession or control of property the thief placed; knowledge of illegality; intent to permanently deprive owner.

G. STATUTORY CHANGES IN PROPERTY ACQUISITION OFFENSES

• Modern codes consolidate larceny, embezzlement, false pretenses, and receipt of stolen goods under Theft; broaden property subjects to theft; many jurisdictions reject asportation requirement; reduce trespass demand; simplify control aspects.

H. FORGERY

• Forgery involves making or altering a false writing with intent to defraud; uttering forged instruments involves presenting a false instrument as genuine; writings subject include those with apparent legal significance; making or altering subject to the inherent falsity and the notion of making a document with fraudulent intent.

I. MALICIOUS MISCHIEF

• Malicious destruction or damage to property, not necessarily total destruction; malice is required; damages may be limited to impairment of usefulness or monetary value.

X. OFFENSES AGAINST THE HABITATION

A. BURGLARY

• Common law elements: breaking; entry; dwelling; of another; at nighttime; with intent to commit a felony in the structure.
• Breaking: actual (minimal force) or constructive (fraud, threat, or entry through other means); trespass is required; entry must be into the structure or a secured subpart; breaking to exit is not burglary.
• Entry: any part of the body into the structure constitutes entry; insertion of a tool may count as entry if for the purpose of committing the felony.
• Dwelling: includes structures used for sleeping purposes; temporary absences may still count; occupancy is determinative, not ownership.
• Nighttime: original common-law requirement; many modern statutes have abolished or lowered this requirement.
• Modern Statutory Changes: abandonment of breaking requirement; continuing in structure; expansion to non-dwellings; elimination of nighttime requirement; broadening to include misdemeanor theft intent; modifications to the Wharton Rule applicability.

B. ARSON

• Arson requires malice in burning a dwelling or other structure; must involve burning (not merely scorching, charring); ownership immaterial; modern statutes broaden to include damage by explosion; many statutes incorporate homes, businesses, and other properties; malice does not require ill will but a reckless disregard for risk.

XI. OFFENSES INVOLVING JUDICIAL PROCEDURE

A. PERJURY

• Perjury is making a false oath or affirmation about a material matter with the intent to affect a proceeding; materiality is essential; contradictory statements at the same proceeding may negate subsequent perjury if corrected; civil liability aspects exist in some contexts (e.g., 42 U.S.C. § 1983 posts).

B. SUBORNATION OF PERJURY

• Procuring another to commit perjury; related to perjury but a separate offense.

C. BRIBERY

• Bribery is the corrupt payment or receipt of value in exchange for official action; mutual criminal intent not required; failure to report a bribe may also be criminal.

D. COMPOUNDING A CRIME

• Agreement not to prosecute or conceal the commission of a felony in exchange for something of value; modern statutes cover any crime (not just felonies).

E. MISPRISION OF A FELONY

• Failure to disclose knowledge of a felony; many jurisdictions have repealed this offense; in some places remains.

APPENDIX: NOTES ON EXAM PRACTICE AND CHARTS

• The material above is organized to reflect a page-by-page structure similar to the Multistate Bar Exam outline. It includes the major headings and the subpoints you were given, including exceptions, examples, and the MPC-based distinctions.
• LaTeX formulas and key terms:
  • Elements of crime: $Actus ext{ Reus}, ext{ }Mens ext{ Rea}, ext{ }Concurrence, ext{ }Causation$
  • MPC fault categories: $Purposely, hinspace Knowingly, hinsp Recklessly, hinspace Negligently$
  • Distinctions like $Malum ext{ in} ext{ Se}$ vs $Malum ext{ prohibitum}$, and $Transferred ext{ Intent}$.
• Practical exam tips included in the notes:
  • Distinguish between common-law and MPC approaches where both exist.
  • Note whether the question concerns jurisdiction, sources of criminal law, or particular offenses.
  • Watch for the nuance between inchoate offenses (solicitation, conspiracy, attempt) and the concepts of merger and non-merger for concurrent convictions.
  • Distinguish justification vs excuse defenses and the specific rules such as self-defense, necessity, duress, consent, entrapment, and intoxication.
  • For homicide, analyze malice, provocation, and causation, and apply the felony-murder limitations (independence, foreseeability, etc.).

If you’d like, I can tailor these notes further to a specific jurisdiction (e.g., MPC-based vs common law) or condense into a study-ready outline with flashcards for quick review.