CRIMINAL LAWEXAM: Comparing MPC to common law or state law.

Separate out transactions separately in fact pattern W/in transaction organize by legal issue. Use irac for each transaction to separate legal issues**When you state rule, state POLICY that underlies the rule**

Jurisdiction: State has jurisdiction to adjudicate a crime if (1) the conduct happened there, or (2) result happened there. Crimes of omission: their jurisdiction lies where the act should have been performed.

Act: can be any bodily movement, but need to know about those bodily movements that do not qualify for criminal liability: 1. conduct that is not the product of your own volition2. a reflexive or convulsive act, like having an epileptic seizure. 3. act performed while you’re unconscious or asleep (think sleep-walking, not falling asleep while you’re driving a car)

To have criminal liability, need act or omission. Generally, there is no legal duty to rescue in American law, but sometimes there is a legal duty to act. That legal duty to act can arise in one of five circumstances:

1. statute2. status relationship (i.e. spouses have legal duty to protect each other, parents/children)3. K (i.e. lifeguard/nurse)4. *voluntary assumption of care of another and then failing adequately to perform it.

Ex: people standing around in park, someone swimming in lake in park in trouble. D says I’ll save him, jumps in, sees it’s someone he doesn’t like, turns around, doesn’t rescue him. That can ground crim liability.

5. have legal duty to act where your conduct created the peril. Example: you push someone into swimming pool and they can’t swim.

Also need mental state*most important topic in crim law

At common law, four mental states for crime: 1. specific intent: qualify for additional defenses at common law that are not available for other kinds of crimes. Memorize specific intent crimes.

Real world diff btwn spf intent and gen intent crimes: If spf intent crime, prosecution must put in independent evidence of what you intended and your

intent cannot be inferred from your conduct. With general intent crimes, intent inferred from conduct. Do not require this separate evidentiary burden of putting in evidence of what you intended. All 3 inchoate crimes: conspiracy, solicitation, attempt are all specific intent crimes.Also 1st degree murder is spf intent. (CL did not have degrees of murder!) NOTE: If Professor asks you a question that just contains the word murder, they mean Common law murder—what we call today, murder in the 2nd degree, which is a malice crime, and not a spf intent crime. CL murder will not qualify for additional defenses. Larceny, embezzlement, false pretenses, robbery, burglary, forgery, assault* (assault as an attempted battery): all spf intent crimes at common law. All other crimes, not so far mentioned are gen intent crimes, unless they qualify for strict liability.

2. malice: are only two malice crimes (murder and arson).

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3. general intent: catch-all category: virtually every crime in state criminal code is a general intent crime. Example: rape and battery are general intent crimes. They can also be spf intent crimes. 4. strict liability: the no-intent crimes. Any defense that negates intention cannot be a defense to the no-intent crimes of strict liability. Formula: if when you read statute on exam, crime is in the administrative, regulatory or morality area, and no adverbs, or mens rea terms then think they mean it to be strict liability and once you know it’s SL (no intent crime) you know that any defense that negates intention is no defense to a no intent crime of SL

Note: consent of victim almost never a defense. Beware

MODEL PENAL CODEWanted result, if you engage in conduct that produces that result, no matter how unlikely it was to do so, that is what the model penal code calls purposely, and that is specific intent. Knowingly: engage in conduct overwhelmingly likely to produce result, although don’t intend end result. Specific intent. Recklessly/Negligently: not specific intent at common law.

Accomplice Liability: Accomplices are liable for the crime itself, and all other foreseeable crimes. (not going to give that kind of liability to people just standing around). On an exam: never give anyone accomplice liability unless in fact pattern you find them actively in on that crime. Not accomplice just b/c they’re present. Even if they seem to be consenting to the crime just b/c they’re present.

Inchoate crimes: 1. solicitation: asking someone to commit a crime. The crime of solicitation is over when you ask them. If the person you asked to commit a crime, says yes, it turns that solicitation into a conspiracy. At common law, the solicitation crime merged w/ the conspiracy crime and once the person says, yes I’ll do it, the only crime left at common law is conspiracy.

2. conspiracy: very central topic to criminal law. In any conspiracy question, the people must be pursuing an unlawful objective.

Elements of conspiracy are: a. an agreement: agreement does not have to be express—don’t need written or spoken words of agreement; various people can be in a conspiracy even though they don’t know each other, and the agreement does not have to be express. The unilateral theory of conspiracy: at common law, there had to be at least two guilty minds to have a conspiracy. So what did that mean if one person in conspiracy was an undercover cop? At common law, that would not be conspiracy. Overwhelmingly in this country, you can conspire w/ an undercover police officer.b. an intent to agreec. the intent to pursue the unlawful objective.

Liability for conspiracy: Each conspirator is liable for all the crimes of co-conspirators, if those crimes were committed in furtherance of the conspiracy and were foreseeable.

Overt acts for conspiracy:Majority rule: in order to ground liability for conspiracy, there must be an agreement plus some overt act beyond the agreement in furtherance of the conspiracy. * any little act will do to be an overt act in furtherance of a conspiracy.

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Example: attend a second meeting to talk about conspiracy, or you show up where the robbery or whatever will take place for whatever reason.Minority/Common Law Rule: grounded liability for conspiracy w/ the agreement itself.

Withdrawing from a Conspiracy: Common law: even if it was adequate, w/drawal could never w/draw the defendant from liability for the conspiracy itself. D could w/draw from liability for the other conspirators’ subsequent crimes.Person on exam: he cannot w/draw from the conspiracy—he can w/draw from subsequent crimes. Some states: you can escape liability if you w/draw from (renounce) conspiracy and prevent the commission of the crime. At common law that was never adequate.

Impossibility: no defense to conspiracy.

ATTEMPTAttempt = specific intent + a substantial step beyond mere preparation in the direction of the commission of the crime. Mere preparation for crime cannot ground liability for attempt. Common law: factual impossibility (someone tries to rob you but you have no money) was never a defense to attempt, but at common law, legal impossibility was.

Examples of legal impossibility at common law: charged w/ receipt of stolen property and property is not stolen OR somebody thinks that a prescription is required in order to obtain a particular drug, so he forges a prescription. Unknown to him, prescription requirement has been repealed, can be obtained over the counter, he can use legal defense of impossibility if he’s been charged w/ attempted receipt of forged prescription).

Model Penal Code changed these principles today: If the facts could have been as the defendant believed them, he is guilty of attempt, with no further need to decide btwn legal and factual impossibility.

Distinction btwn factual and legal impossibility, over the years, became untenable and hard to define, so drafters of MPC abandoned them and adopted above position.

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DEFENSES TO CRIMEInsanity: Tests—know what they focus on, trigger words1. McNaughton Test: if at the time of the crime, the D lacked the ability to know the wrongfulness of his actions or understand the nature and quality of his acts, he qualifies for the insanity defense. 2. Irresistible Impulse: D lacked capacity for self-control and free choice. 3. Durham Rule: D’s conduct was a product of a mental illness.4. *American Law Institute/MPC test of insanity: D lacked ability to conform his conduct to the requirements of law. Note: you can always use an insanity defense, even for SL crimes

Intoxication: 1. voluntary (self-induced) intoxication (addicts included) This is a defense only to specific intent crimes and to no other crime at all. 2. involuntary—something must be slipped into your drink, and you didn’t know it or you’re held down and made to drink it. This is a form of insanity, and thus may be used as a defense to any crime, including SL

Infancy: Common law:

Under age 7: no criminal liabilityUnder 14: rebuttable presumption of no criminal liability

Self-Defense1. use of non deadly force in self defense: a victim, may use nondeadly force in self defense any time that victim reasonably believes that force is about to be used on them. 2. use of deadly force

majority rule: victim may use deadly force in self-defense any time that victim reasonably believes that deadly force is about to be used on them. Minority rule: would require a victim, prior to using deadly force in self-defense to retreat to the wall if it is safe to do so. If you’re told in question that you’re in a “retreat jurisdiction” there are 3 time honored exceptions to duty to retreat:

1. don’t have to retreat out of your home2. don’t have to retreat if you are victim of rape or robbery3. police officers in retreat jurisdictions have no duty to retreat

Never give to an aggressor the defense of self defense. Only time original aggressor might get defense of self-defense is if original victim dramatically escalates the amount of force involved.

Defense of OthersHow reasonable was your belief (you who jumped into someone else’s fight) that they needed the help? Requires analysis, discussion to answer a question about this on an exam—wont be a multiple-choice question. You can’t kill trespassersNote: focus answers to criminal law

Defense of a DwellingDeadly force may never be used solely to defend your property. Look at what you’re using deadly force to protect when analyzing these problems.

Duress & Necessity: defenses to all crimes except homicide.Duress: someone holds gun on you and says rob that store or I will kill you. Threat has come from a human being.

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Necessity: example: plane crashes in remote location, people resort to cannibalism—had to.

Tests: prof will match defenses to crime w/ mental states we went over at beginning—favorite way to do this is w/ mistake of fact.

Defense of Mistake of Fact (how defense works varies depending on mental state)Mistake must be reasonable. General intent crime: mistake must be reasonable to be defense. Crim law exam: any mistake, no matter how crazy, is a defense, if defendant is charged w/ a spf intent crime. B/c mistake of fact is a defense only when it negates intention it is never a defense to no-intent crimes of SL.

Chart: Mistake of Fact Defense.

Mental State of the Crime Charged Application of the Defense

Specific intent ANY mistake reasonable or unreasonable

Malice & reasonable mistakes onlyGen Intent

Strict Liability NEVER

Example of unreasonable mistake of fact—mistaking a Ferrari for your Pinto and getting into it and driving it off. Would be enough if you were charged w/ spf intent crime, but not enough for malice and general intent crimes.

Consent Defense: *Do not use consent of the victim defense—almost never a defense to crime in this country. Examples of when you can use consent defense:Showing that victim consented to intercourse is a defense to forcible rape. Showing that adult consented to travel w/ you would be defense to kidnapping.

Entrapment defense: Very narrow defense, almost never available. Why?Predisposition on the part of the D to commit that crime negates the defense of entrapment. _____________________

On any exam: every time first lay down elements of the common law crime before discussing any modern statutory modifications. Always lead w/ elements of common law crime. Modern statutes merely plug up the holes in the common law crimes…i.e. CL burglary had to happen at night. If you know CL crimes, you can predict modern statutes. Obviously it’s been changed so now it doesn’t have to happen at night.

BATTERY: A completed assault.

ASSAULT: 5

CL: 2 theories of assault. 1. assault as an attempted battery: example—I go to hit you, you duck, and I miss.

Like all attempts, this is a specific intent crime. 2. assault as a threat: general intent crime.

On exam: almost always the professor will have to state in the question, either by giving you a statutory definition or by stating it, which theory of assault is being used.

HOMICIDE: Unsettled points on homicide:

Any homicide question: Victim MUST BE HUMAN (killing animals not murder).Victim must be DEAD, duh

Common law did not have degrees of murder. If on exam: prof uses just word “murder” she will always mean common law murder, murder in the 2nd degree.Murder is malice crimeUNSURE OF THIS: Voluntary intoxication, any mistake of fact not defense to murder at common law. ????? Homicide at common law is murder if you show: 1. intent to kill2. intent to do serious bodily harm 3. abandoned and malignant heart, depraved heart, highly reckless murder. Example of this: playing Russian roulette. Intentionally performing some act that has a substantial likelihood of causing death. 4. Felony Murder: If you kill someone while you are committing a felony, it makes that death murder.

Defenses to Felony Murder: 1. if D has a defense to the underlying felony, he has a defense to felony murder. 2. felony that is being committed must be some other felony than the killing—felony must be independent of the killing3. deaths must be foreseeable. Not a foreseeable death: arson—someone sets fire to building, owner on observing has heart attack—this is not felony murder—death is unforeseeable.4. Deaths caused while fleeing from a felony are felony murder, BUT, once D reaches some point of safety (likely, he spends night at mother’s house, own house) deaths caused thereafter are not felony murder. They are considered separately. 5. majority rule: the “red line view”. D is not liable for death of a co-felon, as a result of resistance by the victim or the police. Watch out for this on exam. Example: Slick & Joe holding up convenience store, owner shoots at Joe, misses him and kills a customer—Slick & Joe are liable for death of customer.

2 kinds of manslaughter: NEVER Attach label “voluntary manslaughter” unless in the facts of the question, you can find some “passion”1. voluntary manslaughter: killing from passion—the provoked killing. Some provoking event (usually fight), no cooling off period, D kills. 2. involuntary manslaughter: 2 types:

a. killings from criminal negligence (i.e. falling asleep at wheel, car jumps curb, kills two people)b. misdemeanor manslaughter: killing someone while you are committing either a misdemeanor or an unenumerated felony. Unenumerated felony: almost all statutes have list of enumerated felonies…if you’re not on this list, it’s an unenumerated felony.

First Degree Murder: 1st deg murder created by statuteno uniform definition of 1st deg murder in this country **find out how professor will deal w/ first degree murder.

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KIDNAPPING

RAPERemember that at common law, the slightest penetration completed the crime of rape. Look class notes.

Statutory Rape:Classic example of strict liability crime. Consent of victim, mistake of fact no defense.

Larceny, embezzlement, false pretenses. Must be able to distinguish between these three common law property crimes.

Larceny:Common law: (basically what we call stealing)1. a taking (always an unlawful taking for CL, by trespass or by trick)2. a carrying away (asportation)3. the personal property of another 4. without his consent (and any consent gained by fear or fraud is not a valid consent)5. with the intent to deprive the owner permanently of his interest in the property. (must exist at the time of the taking or it’s not CL larceny).At common law, taking property in the belief that it’s yours or that you have some right to it, is not common law larceny. Specific intent crime. (so at common law, ANY mistake of fact is a defense to a spf intent crime)

Larceny by Trick: changing price tags on items as a customer in a storeLarceny by Continuing Trespass: designed to plug up problem that intent to deprive permanently of one’s interest must exist at time of taking. Example: take black umbrella out of restaurant, didn’t know it wasn’t yours when you took it, but when you got home you realize it’s not yours but you don’t return it.

Common law Embezzlement: Embezzler always has lawful possession. Paradigm embezzler: a trustee over a trust fund. Has lawful possession and engages in an illegal conversion. Doesn’t have to be any carrying away. 1. lawful possession2. illegal conversion3. embezzler doesn’t have to benefit herself. Larcenists and embezzler always get possession ONLY, not title.

False Pretense: The D persuades the owner of property to convey titleConveyance of title is the essential part of false pretense. False representation as to past or present face. A false promise to do something in the future cannot ground liability for false pretenses.

These 3 very important. Don’t ever mention statutory modifications until you have laid out CL definition of the crime. **If on exam, you ever see “theft” know immediately there was no CL crime of theft. What does that word mean? It signifies a modern statutory change that many states have that allows all 3 of common law property crimes, larceny, embezzlement, and false pretenses to be charged under the name “theft”.

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Robbery = larceny + assaultSo you will have all elements of common law larcenyAssault elements that distinguish larceny from robbery: D must take from the person or his presence with violence with use of fear, threat of imminent harm. This was very broad requirement at common law. Threat of imminent harm—NOT threat of future harm. What constitutes fear: Your money or your life. Or your money or her life. What is amount of force? Picking a pocket= not robbery. Yanking necklace off your neck: is robbery. I.e. tie farmer up in barn, take stuff from his house (meets presence test).

Extortion is blackmail. Only two distinctions btwn extortion and robbery.

1. to be extortion you don’t have to take anything from the person or his presence2. w/ extortion, the threat is of future harm.

Offenses against HabitationBurglaryCL: requires a breaking (can be either actual, involving some force, however slight OR it could be a constructive breaking, by threats or fraud).Not a break-in for someone to come in uninvited through wide open door or window. But, if they then push open an interior door, that’s breaking. Entering: Occurs whenever any part of D’s body crosses into that house. A dwelling house of another (can’t be commercial building of common law)At nighttime (any issue of when sun went down in ? – will deal w/ burglary)W/ intent to commit a felony therein (has to exist at the time of the breaking & entering or it is not CL burglary).

Look at modern definition.

ARSON: Common law arson: the malicious burning of the dwelling house of another. Each of these had to be met at common law. Only covers fires, does not cover explosion, water damage or smoke damage. Damage required: to be CL arson there must be a material wasting of the fiber of the building by fire. Bar exam: someone sets fire in hallway of apt house—doesn’t catch building on fire, catches carpet on fire—not common law arson. Can predict what statutory modifications are: Any fire damage to any structure, whether you own it or not.

Most likely things on exam: (Tailor to own course)1. mental states for crime (common law & MPC), esp spf intent crimes w/ 2 additional defenses (voluntary intoxication and any mistake of fact, reasonable or unreasonable) Those are not the only defenses to spf intent crimes, they are the 2 additional defenses. 2. Accomplice liability: liable for crime itself and all other foreseeable crimes. Never give anyone accomplice liability unless in the facts of that ? you can see that person is actively in on the crime. 3. inchoate offenses: solicitation, conspiracy*, attempt4. for crim law course: insanity defense. (not so important on bar exam)5. intoxication—voluntary/involuntary6. infancy rules7. self-defense/defense of others. 8. mistake of fact—use chart

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9. homicide in general, five defenses to felony murder10. ask prof how to deal w/ first degree murder

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