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Criminal Law
Barbri Review
| Question | Answer |
|---|---|
| Jurisdiction and general matters- Rule | A state acquires jurisdiction over crime if either the conduct or result happened in that state |
| Jurisdiction and general matters- Merger; Generally | There is no merger of crimes in American law |
| Jurisdiction and general matters- Merger; Limitation (tested) | Solicitation and attempt do merge into substantive offense; If you have completed that crime, you cannot be charged with attempting to commit crime |
| Jurisdiction and general matters- Merger; Conspiracy | Does NOT merge into substantive offense; You CAN be convicted of conspiring to do something and doing it |
| Essential elements of crime- An act | An act can be any bodily movement, but act must be a voluntary act |
| Essential elements of crime- An act; Examples bodily movement NOT qualify for criminal liability | Conduct which is not product of own volition; A reflexive or convulsive; An act performed while you are unconscious or asleep (i.e. sleep walking) |
| Essential elements of crime- An omission as an act; Generally | No legal duty to rescue but sometimes there is a legal duty to act; |
| Essential elements of crime- An omission as an act; Legal duty to act can arise- By statute | Requirement to file tax returns |
| Essential elements of crime- An omission as an act; Legal duty to act can arise- By K | A lifeguard or nurse has a legal duty to act when on duty (part of K) |
| Essential elements of crime- An omission as an act; Legal duty to act can arise- B/c relationship b/w parties | A parent's duty to protect children, or spouse's duty to protect other spouse |
| Essential elements of crime- An omission as an act; Legal duty to act can arise- Voluntarily assume | B/c voluntarily assume duty of care and then fail to adequately perform it |
| Essential elements of crime- An omission as an act; Legal duty to act can arise- Created peril | Where your conduct created peril |
| Essential elements of crime- Mental state; Common law mental states of crime | 1. Specific intent, 2. Malice crimes, 3. General intent, 4. Strict liability |
| Essential elements of crime- Mental state; Common law mental states of crime: Specific intent crimes | Important: Qualify for additional defenses not available for other types of crime; Solicitation, conspiracy, attempt, first degree murder, assault, larceny, embezzlement, false pretenses, robbery, burglary, forgery |
| Essential elements of crime- Mental state; Common law mental states of crime: Specific intent crimes, Mnemonic | Students Can Always Fake A Laugh Even For Ridiculous Bar Facts |
| Essential elements of crime- Mental state; Common law mental states of crime: Malice crimes | On bar, there are only two- 1. Murder (common law, 2nd degree), and 2. Arson; Only need reckless disregard, high risk of harm |
| Essential elements of crime- Mental state; Common law mental states of crime: General intent | Catch-all; All crimes not so far mentioned unless they qualify for strict liability; Most common tested are rape and battery |
| Essential elements of crime- Mental state; Common law mental states of crime: Strict liability | No intent crimes; Any defense that negates intention cannot be a defense to no intent crimes of strict liability |
| Essential elements of crime- Mental state; Common law mental states of crime: Strict liability, No intent | Strict liability crimes are NO INTENT crimes |
| Essential elements of crime- Mental state; Common law mental states of crime: Strict liability, Administrative/regulatory/morality areas | If crime administrative/regulatory/MORALITY area and don't seen any adverbs in statute such as knowingly, willfully, or intentionally, then statute meant to be no intent crime of strict liability |
| Essential elements of crime- Mental state; Mental state and Model penal code: Purposely | One acts purposely when it is his conscious objective to engage in certain conduct or cause certain result |
| Essential elements of crime- Mental state; Mental state and Model penal code: Knowingly | One acts knowingly when he is aware that his conduct will very likely cause result |
| Essential elements of crime- Mental state; Mental state and Model penal code: Recklessly | One acts recklessly when he consciously disregards a substantial and unjustifiable risk |
| Essential elements of crime- Mental state; Mental state and Model penal code: Negligently | One acts negligently when he fails to be aware of a substantial and unjustifiable risk |
| Essential elements of crime- Mental state; Common law mental states of crime: General intent, Transferred intent | Always two crimes if transferred intent; Attempt and actual crime b/c two victims |
| Accomplice liability- Accomplice | One who aids, advises, or encourages the principal in commission of crime charged |
| Accomplice liability- Requisite | Accomplice must also have requisite intent that crime be committed |
| Accomplice liability- Liability | Accomplice liable for the crime itself and all other foreseeable crimes; Active participation; Under common law, no good Samaritan laws |
| Accomplice liability- Accomplices and withdrawal; Encouragement | If person encouraged crime, the person must repudiate the encouragement |
| Accomplice liability- Accomplices and withdrawal; Aided with assistance | If person aided by providing assistance to principal (such as giving materials), he must do everything possible to neutralize this assistance (such as attempting retrieve materials) |
| Accomplice liability- Accomplices and withdrawal; Alternate meaning | Alternate meaning of withdrawing is to contact the police |
| Inchoate offenses | Inchoate means incomplete |
| Inchoate offenses- Types; Solicitation: Rule | Solicitation is asking someone to commit a crime; Crime ends when you ask them |
| Inchoate offenses- Types; Solicitation: Under common law | It is not necessary that person solicited agree to commit the crime |
| Inchoate offenses- Types; Solicitation: Agrees to commit crime | Then it becomes a conspiracy and solicitation merges and only crime left when other person agrees to do it is conspiracy (NO solicitation now) |
| Inchoate offenses- Types; Solicitation: Factual impossibility | No defense |
| Inchoate offenses- Types; Conspiracy: Rule | An agreement, with an intent to agree, and an intent to pursue unlawful objective |
| Inchoate offenses- Types; Conspiracy: Common law, Merger | Does NOT merge with substantive offense; On bar you can be convicted conspiring to do something and do something; Example- Robbery and conspiracy to commit |
| Inchoate offenses- Types; Conspiracy: Common law, Liability for co-conspirators' crime | Each conspirator if those crimes were committed in furtherance of conspiracy and were foreseeable |
| Inchoate offenses- Types; Conspiracy: Common law, Agreement requirement | The agreement need NOT be expressed; Intent can be inferred from conduct; If one person in two party conspiracy merely feigning agreement, the other person CANNOT be guilty of conspiracy (unless indicated jurisdiction follows MPC unilateral approach) |
| Inchoate offenses- Types; Conspiracy: Common law, Overt act requirement (majority) | In order to ground liability for conspiracy there must be agreement plus some overt act in furtherance of conspiracy |
| Inchoate offenses- Types; Conspiracy: Common law, Overt act requirement (minority/common law) | Grounded liability for conspiracy with agreement itself |
| Inchoate offenses- Types; Conspiracy: Common law, Overt act requirement (majority)- Requires | Agreement + overt act, ANY LITTLE act will do to be an overt act in furtherance of conspiracy, even if act of mere preparation |
| Inchoate offenses- Types; Conspiracy: Common law, Overt act requirement- MBE | Always APPLY MAJORITY RULE, unless specifically told otherwise in question |
| Inchoate offenses- Types; Conspiracy: Common law, Factual impossiblity | NO defense to conspiracy |
| Inchoate offenses- Types; Conspiracy: Common law, Withdrawal | Even if adequate, can NEVER relieve D from liability from conspiracy; D can withdraw from liability other conspirators other substantive crimes, but cannot withdraw from conspiracy |
| Inchoate offenses- Types; Conspiracy: Common law, Requires two guilty parties | Acquittal of all persons with whom D is alleged to have conspired precludes conviction of remaining D |
| Inchoate offenses- Types; Attempt: Rule | 1. Specific intent, plus 2. Overt act in furtherance of crime |
| Inchoate offenses- Types; Attempt: Overt act | Must be a substantial step in furtherance of commission of crime; Mere preparation cannot ground liability for attempt |
| Inchoate offenses- Types; Attempt: Impossibility | Legal impossibility IS defense to attempt (what trying to do not illegal), BUT factual impossibility NOT defense |
| Defenses For Crimes Based On Criminal Capacity- Insanity; Four tests: M'Naghten Rule | At time of conduct, D lacked the ability know wrongfulness of his actions or understand nature and quality of his actions |
| Criminal Capacity- Insanity; Four tests: Irresistible impulse | D lacked the capacity for self control and free choice |
| Criminal Capacity- Insanity; Four tests: Durham rule | D's conduct product of mental illness |
| Criminal Capacity- Insanity; Four tests: Model penal code | D lacked ability to conform his conduct to requirements of law |
| Criminal Capacity- Intoxication; Voluntary | Self-induced intoxication |
| Criminal Capacity- Intoxication; Voluntary: Defense | Is defense on bar only to specific intent crimes (and no other kind of crime) |
| Criminal Capacity- Intoxication; Voluntary: Bar exam | Addicts and alcoholics are always voluntary intoxicated; So cannot claim involuntary intoxication |
| Criminal Capacity- Intoxication; Involuntary | 1. Unknowingly being intoxicated,or 2. Becoming intoxicated under duress |
| Criminal Capacity- Intoxication; Involuntary: Examples | You have something slipped into your drink (didn't know), or You are forced to drink |
| Criminal Capacity- Intoxication; Involuntary: Insanity | Involuntary intoxication is form of insanity; It is a defense to ALL crimes |
| Criminal Capacity- Infancy; Rules: Under 7 yrs old | Under age 7= NO criminal liability |
| Criminal Capacity- Infancy; Rules: Under 14 yrs old | Under age 14= Rebuttable presumption of no criminal liability |
| Principles of Exculpation and Other Defenses- Self-defense; Non-deadly force | Victim may use non-deadly self-defense anytime the victim reasonably believes that force is about to be used on him |
| Principles of Exculpation and Other Defenses- Self-defense; Use of deadly force in self-defense: Majority | Victim may use deadly force in self-defense anytime victim reasonably believes that deadly force is about to be used on him |
| Principles of Exculpation and Other Defenses- Self-defense; Use of deadly force in self-defense: Minority | Victim is required to retreat if it is safe to do so |
| Principles of Exculpation and Other Defenses- Self-defense; Use of deadly force in self-defense: Minority, "Retreat" jurisdiction | IF examiners say "retreat" jurisdiction then exceptions- 1. No duty to retreat from your home, 2. No duty to retreat if you are victim of a rape or robbery; 3. Police officers have no duty to retreat |
| Principles of Exculpation and Other Defenses- Self-defense; Original aggressor and self-defense: To get back to self-defense | Original aggressor must- 1. Withdraw, and 2. Communicate withdraw; ALMOST NEVER HAPPENS b/c communication |
| Principles of Exculpation and Other Defenses- Self-defense; Original aggressor and self-defense: Victim suddenly escalates minor fight | Into one involving deadly force and does so without giving aggressor opportunity to withdraw, original aggressor may use force in own defense (includes deadly force if reasonable) |
| Principles of Exculpation and Other Defenses- Self-defense; Defense of others: Rule | D can raise a "defense of others" defense if he reasonably believes that person assisted would have had right to use force in his own defense |
| Principles of Exculpation and Other Defenses- Self-defense; Defense of others: Majority | There need not be a special relationship b/w D and the person in whose defense he acted |
| Other Defenses- Defense of a dwelling; Rule | Deadly force may NEVER be use solely to defend your property |
| Other Defenses- Duress; Rule | Duress is defense to criminal act if- 1. Person acts under threat of imminent infliction of death or great bodily harm, and 2. That belief is reasonable |
| Other Defenses- Duress; Threats to harm a third person | May also suffice to establish defense of duress |
| Other Defenses- Duress; Defense | Duress is defense to ALL crimes except homicide |
| Other Defenses- Necessity; Rule | Conduct that would otherwise be criminal justifiable if, as a result of pressure from natural forces, the D reasonably believes his conduct was necessary to avoid a greater societal harm; Hurricane, tornado, floods, fires |
| Other Defenses- Necessity; Necessity v. Duress | Necessity differs from duress b/c duress involves human threat, and necessity involves pressure form natural forces |
| Other Defenses- Mistake of fact; Rule | Mistake of fact is defense only when mistake negates intention |
| Other Defenses- Mistake of fact; Defense | Mistake has to be reasonable to be a defense to a malice or general intent crime |
| Other Defenses- Mistake of fact; On bar | Any mistake, no matter how ridiculous, is a defense if D is charged with a specific intent crime; Can even be unreasonable |
| Other Defenses- Mistake of fact; NEVER defense | To strict liability crimes Ex: mistaken of age of individual who was really minor |
| Other Defenses- Mistake of fact; Review | Specific intent crimes= ANY MISTAKE will do; Malice/general intent crimes= REASONABLE MISTAKE only; Strict liability= NEVER; Factual impossibility DIFFERENT from mistake |
| Other Defenses- Consent | Consent of victim is generally NO DEFENSE |
| Other Defenses- Entrapment; Rule | Criminal design must have originate with law enforcement officers, and D must not have been predisposed to commit the crime; Undercover officer involved in buying contraband then ALWAYS entrapment, but usu. NOT defense b/c inducement |
| Offenses Against The Person- Battery; Rule | Unlawful application of force to person resulting in either bodily injury or offensive touching |
| Offenses Against The Person- Battery; Not intentional | Battery need not be intentional; Sufficient D acted with criminal negligence so force applied |
| Offenses Against The Person- Battery; Force | Force need not be applied directly; Ex: Poison in food causing illness |
| Offenses Against The Person- Battery; Remember | Battery is a general intent crime |
| Offenses Against The Person- Assault; Attempt | An attempt to commit a batter, OR |
| Offenses Against The Person- Assault; Intentional creation | Other than mere words; Of reasonable apprehension of imminent bodily harm |
| Offenses Against The Person- Assault; Assault v. battery | If there has been an an actual touching, the crime is battery NOT assault |
| Offenses Against The Person- Aggravated assault | Assault + 1. Use of deadly force or dangerous weapon, OR 2. With intent to rape, Mame, or murder |
| Offenses Against The Person- Homicide; Murder: Generally | Unlawful killing of another human being with malice aforethought; Just "murder"= common law murder, 2nd degree, malice crime NOT specific intent |
| Offenses Against The Person- Homicide; Murder: State of mind if- | 1. Intent to kill, or 2. Intent to inflict great bodily harm, or 3. Reckless indifference to an unjustifiably high risk human life, or 4. Intent to commit felony (felony murder) |
| Offenses Against The Person- Homicide; Cause-in-fact | D conduct must be cause-in-fact of victim's death; Death would not have occurred but for D's conduct |
| Offenses Against The Person- Homicide; Proximate cause: G/R | D is responsible for all results that occur as a natural and probable consequence of his conduct, even if did not anticipate exact manner in which they would occur |
| Offenses Against The Person- Homicide; Degrees of murder: First-degree of murder, Premeditating murder | 1. Victim must be human and dead, and 2. Must have acted with intent or knowledge that his conduct would cause death |
| Offenses Against The Person- Homicide; Degrees of murder: First-degree of murder, Felony murder | Any killing- even an accidental killing- committed during course of felony |
| Offenses Against The Person- Homicide; Degrees of murder: First-degree of murder, Felony murder- Defenses, ... | If D has a defense to underlying felony, then he has defense to felony murder |
| Offenses Against The Person- Homicide; Degrees of murder: First-degree of murder, Felony murder- Defenses, Other than killing | Felony they were committing must be a felony other than killing |
| Offenses Against The Person- Homicide; Degrees of murder: First-degree of murder, Felony murder- Defenses, Temporary safety | Deaths caused by felling from felony are felony murders; But, once D reaches point of a temporary safety deaths caused thereafter NOT felony murders |
| Offenses Against The Person- Homicide; Degrees of murder: First-degree of murder, Felony murder- Defenses, MBE | D is NOT liable for death of co-felon as result of resistance by victim or police |
| Offenses Against The Person- Homicide; Degrees of murder: First-degree of murder, Homicide of police officer | 1. D must know victim is law enforcement officer, and 2. Victim must be acting in line of duty |
| Offenses Against The Person- Homicide; Degrees of murder: First-degree of murder, Felony murder- Defenses, Foreseeability | Deaths must be foreseeable |
| Offenses Against The Person- Homicide; Degrees of murder: Second-degree murder, ... | A killing done with reckless indifference to any unjustifiable high risk to human life, OR Not classified as first-degree murders; Depraved heart killing |
| Offenses Against The Person- Homicide; Degrees of murder: Manslaughter, Voluntary- Heat of passion | Killian in heat of passion resulting from an adequate provocation of victim |
| Offenses Against The Person- Homicide; Degrees of murder: Manslaughter, Voluntary- Provocation | Must be one that would arouse sudden and intense passion in mind of ordinary person such to cause him to lose self-control |
| Offenses Against The Person- Homicide; Degrees of murder: Manslaughter, Voluntary- No sufficient time | b/w provocation and killing for passion of reasonable person to cool |
| Offenses Against The Person- Homicide; Degrees of murder: Manslaughter, Voluntary- No cool down | D did not cool off b/w provocation and killing |
| Offenses Against The Person- Homicide; Degrees of murder: Manslaughter, Involuntary | A killing of criminal negligence, OR |
| Offenses Against The Person- Homicide; Degrees of murder: Manslaughter, Involuntary- Misdemeanor manslaughter | Killing someone while committing misdemeanor or unenumerated felony (not in state statute) |
| Offenses Against The Person- False imprisonment; Rule | Unlawful confinement of person without valid consent |
| Offenses Against The Person- False imprisonment; Known ... | If a known alternative route is available, the confinement element will not be met for purposes of false imprisonment |
| Offenses Against The Person- False imprisonment; ... | One's consent to confinement precludes it from constituting false imprisonment |
| Offenses Against The Person- Kidnapping; Rule | Use common sense (esp. if forget on bar); Confinement of a person with some movement or concealment in secret place |
| Sex Offenses- Rape | Slightest penetration completes the crime of rape (for bar exam know) |
| Sex Offenses- Statutory rape; Strict liability crime | Consent of the victim is no defense and mistake of fact is no defense |
| Sex Offenses- Crime against nature and other sex crimes | Adultery, bestiality, fornication |
| Property Crimes- Larceny; Rule | Common law larceny requires wrongful taking, a carrying away(asportation) of property of another by trespass with intent to permanently deprive |
| Property Crimes- Larceny; ... | Slightest movement of property is enough for purposes of bar |
| Property Crimes- Larceny; Intent to deprive owner permanently | Must exist at time of taking or it is not common law larceny; But, if person takes property not intending to steal it, but then later decides to keep, can be guilty of larceny under theory of continuing trespass |
| Property Crimes- Larceny; Taking property in belief it is yours | Is NOT common law larceny |
| Property Crimes- Embezzlement; Rule | The fraudulent conversion of property of another |
| Property Crimes- Embezzlement; MBE notes | 1. Embezzler always has lawful possession followed by illegal conversion, 2. Trustee often MBE embezzler, 3. You don't have to carry away to be an embezzler (lawful possession), 4. Embezzler doesn't have to get the benefit |
| Property Crimes- False pretenses; Rule | D persuades owner of property to convey title by false pretenses (false representation) |
| Property Crimes- False pretenses; MBE notes | 1. It is conveyance of title that is key, 2. False representation could be as to a present or past fact, 3. False promise to do something in future cannot ground liability for false pretense |
| Property Crimes- False pretenses; Larceny by trick distinguished | If only possession of property is obtained, offense is larceny by trick; If title is obtained, offense is false pretenses |
| Property Crimes- Robbery; Rule | Taking of personal property of another from other person's presence, by force or threat with intent to permanently deprive him of it |
| Property Crimes- Robbery; MBE notes: Presence requirement | Bradly drawn; Would even cover farmer tied up in his barn and taking things from his house |
| Property Crimes- Robbery; MBE notes: Taking by force/threat | Ripping necklaces from neck is sufficient; Threat must be of imminent harm |
| Property Crimes- Extortion; Rule | Knowingly seeking to obtain property or services by means of a future threat |
| Property Crimes- Extortion; Extortion v. Robbery | 1. Don't have to take anything from person or presence to be extortion, 2. Threat are of imminent harm, not imminent in extortion |
| Property Crimes- Robbery; Armed robbery: Simulated deadly weapon | Finger as gun, or bomb in back pack BUT really NOT a weapon STILL armed robbery |
| Offenses Against Habitation- Burglary; Rule | Breaking and entering of dwelling of another at night with intent to commit felony therein |
| Offenses Against Habitation- Burglary; MBE notes: Breaking | Can be actual (involving some force, however slight) or constructive |
| Offenses Against Habitation- Burglary; MBE notes: Breaking, Actual | No actual breaking for someone to come uninvited through a wide open door or window; If wide open- no breaking; But someone pushes open an interior door to bedroom or living room then breaking |
| Offenses Against Habitation- Burglary; MBE notes: Breaking, Constructive | A breaking by fraud or threat |
| Offenses Against Habitation- Burglary; MBE notes: Entering | Occurs when any part of the body crosses into house |
| Offenses Against Habitation- Burglary; MBE notes: Dwelling house of another | Cannot be barn or commercial structure |
| Offenses Against Habitation- Burglary; MBE notes: At night | Common law had to be at night |
| Offenses Against Habitation- Burglary; MBE notes: Within intent to commit felony therein | Intent to commit felony must exist at time of breaking and entering or it is NOT common law burglary; Commit felony includes- sexual assault, attempt, murder, etc. so do NOT just need intent for burglary |
| Offenses Against Habitation- Arson; Rule | The malicious burning of dwelling of another |
| Offenses Against Habitation- Arson; Malice requirement | No specific intent is required; Acting with a reckless disregard of an obvious risk that structure would burn will suffice for arson culpability |
| Offenses Against Habitation- Arson; MBE notes: Burning | Only applies to burning, not to smoke damage |
| Offenses Against Habitation- Arson; MBE notes: Common law | Building burned had to be dwelling; Could not be a barn or a business |
| Offenses Against Habitation- Arson; MBE notes: Exam questions | Other arson issues (malice) will often assume without saying jurisdiction's arson law applies to structure other than dwelling |
| General notes and tips | Know mental states of crime (specific intent, and transferred), Accomplice liability will show up, Mistake of fact a favorite; Substantial step in furtherance applies to both conspiracy and attempt |
| General notes and tips continued... | Reasonable belief for defenses- self, duress, necessity, mistake of fact; Trigger words- trapped/confined=false imprisonment, touched=battery, fearful=assault; Either get to or have to do something |
Created by:
dmoore147
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