I.

Defining Criminal Conduct

A. 4 Elements of A Crime
i. Actus Reus
ii. Mens Rea
iii. Harm
iv. Attended Circumstances
 Greater punishment under certain circ.
 D doesn’t have to know or intend circ.
 Age, value, time, place
B. Culpability
1. Actus Reus—Culpable Actions
a. Commission—Punishing Actions
i. Act—physical activity including words; not
including thoughts
ii. Voluntary—opportunity for conscious choice at the
time the act was made
 Hypnosis, sleep walking and mere muscle
reflexes are involuntary

b. Omission—Punishing Failure to Act—[includes physician

assisted suicide]

i. There needs to be a legal duty to act, opportunity to

for conscious choice to act, and failure to act.

ii. When is there a legal duty to act?

 Statutory duty
 Contractual duty
 Relationship duty
 Assumed care of another AND seclusion
such that no one else could help
 Peril created by defendant

iii. Good Samaritan Element

 Majority/CA: no duty to help others
 Minority: duty to help others

2. Mens Rea—Culpable Mental States

a. Specific Intent—intent to perform the resultant harm

b. General Intent—intent to perform the act that led to the

harm with at least negligence
c. MPC---abandoned specific/general intent for gradations of
mental state
i. Intentionally and Purposely
ii. Knowingly
iii. Recklessly
iv. Negligently
v. Strict Liability

d. Mistake of Fact or Law

i. General intent—honest and reasonable mistake
exonerates

ii. Specific Intent—honest, even if unreasonable,

mistake exonerates

iii. Strict Liability—no mistake can exonerate crime

iv. Statutory Rape

 Majority [Strict Liability]: no mistake can
exonerate crime
 Minority/CA [General Intent]: honest and
reasonable mistake exonerates when the
victim is between 16-18 years old
 British Rule [Specific Intent]: honest and
even unreasonable mistake exonerates

e. Strict Liability—No mens rea requirement

i. 4 Questions to determine if crime is SL:
 Words of culpability in statute?

 Is the crime known at common law?

o Crimes unknown at common law are
strict liability
o Crimes known at common law are
specific intent EXCEPT:
- Statutory rape = SL
- Bigamy = SL
- Felony Murder = SL
- Forcible rape = General
- Trespass = General
- Assault = General

 Public welfare/regulatory offense?

 Did legislature intend to do away with

culpability?
 ii. Vicariously Strictly Liable:
 Requires duty to prevent / oversee the
operation

iii. Mistake of Fact in Strict Liability Crime

 Ignorance of facts is no excuse

iv. Mistake of Law in Strict Liability Crime

 Ignorance of law/statute is no excuse
o Exceptions:
- Mistaken Reliance: mistake
must be honest, reasonable,
and in reliance upon an
interpretation of the law by
one authorized to do so
which is afterward
determined to be erroneous
- Knowledge of the law is
made an element of the crime
- Failure of Duty in Absence
of Notice
- Recent Enactments
C. Legality
1. Procedural Due Process
a. Ex post facto
i. Legislative: legislature cannot
 Make criminal that which wasn’t criminal
when done
 Expand punishment retroactively
 Reduce the proof necessary to convict
 Permit evidence that had been prohibited

ii. Judicial
 Majority: unforeseeable retroactive
judicial expansion making something
criminal that was not criminal when done
does not violate procedural due process
UNLESS the conduct was innocent
 Minority: does violate procedural due
process
 Does not apply to prospective judicial
expansion
 b. Vagueness
i. When the conduct has no overtones of
constitutional rights, the legislature can write in
vague terms

c. Common Law Crimes

i. Court cannot determine what is a crime if there is
no statute, even if common law determined it a
crime

2. Substantive Due Process

a. Fundamental Rights
i. If the conduct involves a fundamental right (i.e.
deeply rooted in nation’s tradition), court needs a
compelling state interest to criminalize
ii. If no fundamental right, court needs a rational basis
to criminalize
II. Forcible Rape

A. Majority/CA Rule
1. Actus Reus
a. Vaginal sexual intercourse
b. By force or threat of force
i. To prove force there must be honest and reasonable
resistance, UNLESS…
ii. Honest and reasonable fear such that they do not
have to resist (i.e. too afraid)
c. Without consent of victim

2. Mens Rea
a. General Intent: honest and reasonable mistake exonerates
b. No mistake defense when there are two interpretations of
the facts

B. Minority Rule
1. Actus Reus
a. Force found in the act of penetration
2. Mens Rea
a. England: Specific Intent
b. Alaska: Recklessness

C. Fraud
1. In the inducement: person knows they’re having sex, but was
fraudulently induced—no rape
2. In the fact: person doesn’t know they’re having sex—rape
 D. Marital Exemption
1. Majority—rape is possible amongst spouses
2. MPC---rape is not possible amongst spouses

III. Homicide

A. Murder
1. CA: Intentional killing of a human being (or fetus) with malice
aforethought
a. Mens Rea: Malice Aforethought (MA)
i. Express—premeditation and deliberation
ii. Implied—no premeditation and deliration

2. Degrees
a. First Degree
i. Premeditation & Deliberation
 Majority rule: mere seconds are enough
 Minority: need opportunity for reflection
on the intention to kill after it is formed
ii. Lying in wait
iii. Death During Enumerated Felonies (i.e. Felony
Murder: Burglary, Arson, Rape, Robbery
Kidnapping)

b. Second Degree
i. Intentional in unreasonable heat of passion
ii. Negligence with conscious disregard for high risk
of death
iii. Intent to commit grievous bodily injury

c. MPC—no degrees of murder

3. Five Types of Murder

a. Intent to Kill
i. Express MA
ii. Specific Intent

b. Intentional in Unreasonable Heat of Passion

i. Implied MA
ii. Specific Intent

c. Negligence with Conscious Disregard for High Risk of

Death
i. Implied MA
ii. General Intent
 iii. “abandoned and malignant heart” means “conscious
disregard for high risk of death”

d. Intent to Commit Grievous Bodily Injury

i. Implied MA
ii. Specific Intent to commit only serious bodily harm
iii. D must be subjectively aware of risk
iv. MPC: rejects this as murder

e. Felony Murder
i. Implied MA
ii. Strict Liability
iii. Murder during intentional attempt of one of
enumerated felonies (Burglary, Arson, Rape,
Robbery Kidnapping) = first degree murder
iv. Murder during one of unlisted felonies = second
degree
v. Limitations
 Must be Inherently Dangerousness
o Majority: fact based—felony
murder if the felony was dangerous
in this particular circumstance
o Minority 1/CA: abstract—felony
murder only if this felony is
dangerous in all of its applications
o Minority 2: Apply both
 Merger
o Majority: all elements of the
underlying felony cannot be
contained in the homicide—assault
cannot be used in felony murder; but
burglary can be used in felony
murder
o Minority/CA: (1) if burglary when
the intended felony is assault of a
person inside—no felony murder b/c
single felonious assaultive purpose;
however, (2) if burglary w/ intent to
steal—felony murder because
independent felonious purpose
 Agency: Each cofelon is liable for another
cofelon’s criminal act done in furtherance
of felony
o Limitations
- Murder cannot be done on an
independent venture
 - Death must be of a person
who is not a felon
- Majority: Murder cannot be
committed by nonfelons (i.e.
cops or bystanders)
- Minority: Murder can be
committed by nonfelons if D
proximately caused the
killing
B. Manslaughter
1. Three types of Manslaughter
a. Voluntary
i. No Implied MA
ii. Specific Intent
iii. Reasonable Heat of Passion
 Majority: Murder reduced to
manslaughter if:
o Acts of Provocation (not just words)
- Danger: self-defense, battery,
assault
- Illegal Arrest
- Mutual Combat
- Sudden discovery of spouses
adultery
o Reasonable person would have been
provoked
o D was provoked
o Reasonable period for cooling off
has not occurred
o D did not cool off
 Minority:
o Anything (including words) that
would excite an reasonable person to
kill is sufficient
iv. MPC: extreme emotional disturbance reduces

b. Involuntary
i. Gross Negligence
 No Implied MA
 General Intent
 Majority: Reasonable person would know
there’s a high risk of death
 Minority: Subjective awareness of risk
required
ii. Unlawful Act / Misdemeanor Manslaughter:
Death during and caused by reasonable performance
 of a misdemeanor or non-violent felony (reasonably
running through a stop sign and hitting someone)
 No Implied MA
 Strict Liability
 Limitations
o Dangerous Misdemeanor
o Causation
o Foreseeability

IV. Causation  ONLY FOR HOMICIDE

A. Causation
1. Actual Cause
a. But for D’s actions, harm would not have occurred

2. Legal Cause
a. Defendant is required to foresee the harm
i. Exclude:
 Falling gargoyles
 Acts of nature
 Voluntary act by capable victim
 Acts of God
ii. Include:
 Involuntary acts by unintelligent victim
who is the instrumentality of defendant
 Merely reckless acts by victims

b. Tests:
i. Majority / MPC: is harm too remote from the act
by defendant as to make it unfair to punish?
ii. Bar Bri: is harm the natural and probable cause of
the act by defendant?
iii. NY: is harm sufficiently and directly caused by the
act by defendant?
iv. CA: Highly extraordinary causes cut off chain of
causation (includes grossly negligent but not merely
negligent acts)
V. Attempt

A. Actus Reus
1. MPC/Majority rule: Substantial Step Strongly Corroborative of
the Individual’s Intent (i.e. towards completion of the crime)
a. Not how far D has gone, but how clearly his acts
corroborate the firmness of D’s criminal intent.
b. Dangerousness of D, not his acts.
2. CA test: Unequivocal Act Towards the Individual’s Intent
 a. Dangerousness of D, not his acts
3. AL rule: Slight Act in Furtherance of Individual’s Intent
a. Dangerousness of D, not his acts
4. NY rule: Dangerous Proximity To Success Test—acts must
come or advance near the accomplishment of the intended crime
a. Dangerousness of acts, not of D
b. Abandonment is irrelevant if you’ve already achieved
dangerous proximity

B. Mens Rea
1. Specific Intent—even if the underlying crime is a general intent

C. Impossibility (only a defense in jurisdictions that use the CLOSE

PROXIMITY TO SUCCESS TEST)
1. Legal Impossibility—When D has completed all the acts that he
wanted to do, if there is no possibility of success, you cannot
have attempt and legal impossibility is a defense

2. Factual Impossibility—When D has not completed all the acts

that he wanted to do, you can have attempt and factual
impossibility is not a defense

D. Abandonment
1. Voluntary Renunciation---can change your mind before
completed attempt
2. Limitation---cannot renounce because there is a cop watching the
bank (this is involuntary)

E. Caveat
1. Burglary and Loitering---although completed, it is only an
attempt

VI. Group Criminality

A. Accomplice Liability—helper/accessory aids, helps, encourages or

facilitates the crime

1. Actus Reus
a. Voluntary activity that facilitated crime even if crime
would have been accomplished anyhow
b. Accomplice’s mere presence even without act is enough
ONLY IF the actor knows of presence

2. Mens rea
a. Specific intent to ACCOMPLISH the crime; AND
b. Specific intent to HELP accomplish the crime
 3. Punishment
a. Accessory cannot be guilty of more than what the actor has
performed
b. Accessory cannot be guilty of no more than what the actor
has intended, even if the actor does a greater crime
c. You are liable for what someone you hire to commit a
crime does; even if they do worse

4. Relationship between Liability of Parties

a. Fake actor + real accomplice = no liability for either
because no crime
b. Real actor + fake accomplice = actor is liable, accomplice
is not.
c. However, even if real actor is not convicted, accomplice
can still be convicted

5. Instrumentality
a. If the accomplice is using the actor as an instrument, then
the accomplice is really the actor

6. Additional criminality
a. Accomplice is liable for those additional crimes he
intentionally assisted

B. Conspiracy—agreement between two or more people to commit an

unlawful act
1. Actus Reus
a. Mutuality of understanding—express or tacit meeting of
the minds
b. Overt Act—act must directly move towards commission of
the crime and must be more than mere preparation

2. Mens Rea:
a. Two elements:
i. Intent to agree
ii. Specific intent to accomplish crime

3. Additional criminality—Wheel and Chain liability

a. Majority: Each conspirator, link or spoke can be held
liable for the acts of others only if the act:
i. Is in furtherance of original agreement
ii. Falls within scope of original agreement
iii. Is reasonably foreseeable
 b. CA: Conspirator is liable for any additional acts he
intentionally assisted

c. NJ: co-conspirator may be liable for acts to go beyond

scope if they’re reasonably foreseeable.

4. Caveats
a. Need more than number necessary for crime
b. Situations where supplying is sufficient to infer intent to
agree
i. Supplying item knowing it will be used in
dangerous felony
 Majority / CA: needs to be a dangerous
item
 Minority: can be an innocent item
ii. Having a stake in the venture
iii. Receiving unusual profits

5. RICO
a. Elements:
i. Enterprise—some org whose purpose is to perform
a pattern of racketeering activity
ii. Racketeering Activity—any criminal act specified
in the anti-racketeering statute
iii. Pattern of Racketeering Activity—two or more
racketeering activities

b. 4 Crimes under RICO

i. Investing money derived from criminal activity
ii. Collecting unlawful debt
iii. Working for company involved in racketeering
iv. Conspiring to commit i-iii

c. RICO conspiracy is an agreement between two or more

people to perform the predicate acts prohibited by the anti
racketeering statute in furtherance of the enterprise; you
can have liability of conspiracy of parties because the
enterprise is the rim/hub

6. Elimination of Responsibility
a. Renunciation—not guilty of conspiracy if you successfully
thwart the success of the agreement by turning them into
the cops
b. Abandonment—not guilty of accomplice liability if you
voluntarily communicate to all your resignation (you are
still liable for what happened up until your abandonment)
VII. Defenses
A. Justification  No crime so exonerates accomplice liability
1. Self-Defense:
a. Elements:
i. Unlawful and immediate threat
ii. Subjective belief of imminent peril of death/harm
iii. Honest and reasonable belief

b. Deadly force: deadly force may be used to thwart or repel

threatened apparent deadly force
i. Majority / NY: honest AND reasonable belief of
threatened deadly force justifies use

ii. Minority / Imperfect self defense—honest, even if

unreasonable, belief of threatened deadly force
justifies use

iii. MPC: honest but unreasonable belief = negligent

manslaughter

iv. CA: honest but unreasonable belief = voluntary

manslaughter

c. Battered Women’s Syndrome Defense

i. Expert witness can show this person has syndrome
and person w/ syndrome may reasonably do what
person did

d. Retreat
i. Majority: you can use deadly force even if you can
retreat safely
ii. Minority/NY/NJ: you must retreat if you know you
can do so in complete safety. Exception if you’re in
your home.

2. Defense of Others
a. Majority: can use such force as reasonably necessary to
thwart deadly force if you honestly and reasonably believe
someone else is in harm
b. Minority: actor steps into their shoes and court sees if they
could use self defense
c. Mistake
i. Majority: mistakenly killing a cop is okay
ii. Minority: mistakenly killing a cop is not okay

3. Property
 a. Home (when occupied)
i. Majority: you cannot use deadly force to thwart the
taking of property unless the taking of property is
accompanied by the threat of deadly force (i.e.
burglary is assumed to incorporate deadly force)
ii. Minority/CA: burglary must involve a threat of
deadly force and most burglaries do not (CA statute:
if burglar killed, assumption of deadly force)
b. Home (unoccupied)
i. Majority: deadly force trap never allowed
ii. Minority: deadly force trap allowed if you could
have used deadly force if you were there

4. Force used to resist arrest

a. Defendant can use force to resist ILLEGEAL arrest

5. Forced used to effectuate arrest

a. Misdemeanor: can use deadly force to effectuate an arrest
for a misdemeanor ONLY WHEN:
i. Deadly force was used in that misdemeanor; OR
ii. Deadly force was used in resisting arrest

b. Felony: can use deadly force to effectuate an arrest for a

felony ONLY WHEN:
i. Deadly force was used in that felony
ii. Deadly force was used in resisting arrest; OR
iii. Reasonable belief that deadly force will be used
after the escape

6. Necessity
a. Acquittal if honest, reasonable, and imminent belief that act
was necessary to avoid greater harm

b. Exoneration from Crime of Escape:

i. Threat of death, rape, or harm
ii. No time for complaint to authorities
iii. No time to resort to courts
iv. No violence used in escape
v. Immediately reports to authorities once he has
attained position of safety

7. Duress: will is overborne  NOT A DEFENSE TO MURDER

a. Majority/MPC: coerced through threat of force against
you or another which a reasonable person would be unable
to resist (no imminence requirement)
b. Minority: D must be an innocent non-conspirator
B. Excuse  Still a crime so there is still accomplice liability
1. Intoxication
a. Pre-existing intent: if you already wanted to do it, but were
too chicken, then got drunk and did it—no excuse
b. Voluntary intoxication mitigates specific intent to general
intent b/c drunks cannot form required mens rea; no
defense to general intent/strict liability crime
c. Involuntary intoxication – must not have known that you
were consuming an intoxicant – negates specific and
general intent crimes, but not strict liability
d. Product Defense: I would not have done it, if it were not for
the intoxication  REJECTED

2. Insanity  ABSOLUTE DEFENSE

a. D must be competent to stand trial, understand charges and
assist defense counsel
b. If successful in defense, D will be locked up in a mental
facility until a doctor deems her sane
c. Raising mental condition of D
i. Guilt phase—requisite mental state
ii. Defense phase—reasonable explanation
iii. Penalty phase—doesn’t deserve max punishment
iv. 4 tests for insanity used in state courts:
 Majority/CA: M’Naughten—did D, at
time of act, lack ability to know right from
wrong or the nature and quality of the act?
o Knowledge not comprehension--he
doesn’t need to understand it
 Minority: M’Naughten PLUS—
irresistible impulse to perform activity
without time to brood
 MPC: lacked the substantial capacity to
appreciate the criminality of his acts or to
conform their acts to the requirements of
law
 Federal test: lacked capacity to appreciate
the wrongfulness of the act

3. Diminished Capacity  Mitigates Specific Intent to General

Intent
a. D didn’t have the specific intent necessary b/c of condition.
Preemptive action (cf. affirmative def) b/c D’s not
admitting to the crime b/c he never had mens rea
b. Majority: allows for intoxication and insanity
c. Minority: only allows for intoxication
VIII. Theft Crimes  RETURNING OBJECT IS NOT A DEFENSE

A. Larceny  Specific Intent (to not return it)

1. trespassory—w/o consent (even consent gained thru fraud = no
trespass)

2. taking—exercise dominion and control

3. w/ asportation—any movement of the property suffices

4. of another’s superior possessory interest in valuable property

a. trusted employees/bailees given superior interest over
owner, but if they convert, it is embezzlement
b. finders—when constructive possession and higher interest
than owner, if finder takes, it is criminal conversion
c. Valuable property—capable of being transferred (includes
realty, stocks, services, labor)

5. w/ intent to permanently deprive other

a. Specific intent to not return it

6. of beneficial use of property

7. Larceny Today includes:

a. Larceny by Trick—possession of thing
b. Larceny by False Pretense—title of thing
c. Embezzlement—superior possessory interest

B. Robbery—forcible larceny
1. intentional
2. larcenous taking of another’s property
3. by force or threat of force
4. immediately (not future threat, or threat to person not present)
5. from the person of the V (or person in V’s presence)

C. Extortion—larceny by threat
1. intentional
2. larcenous taking of another’s property
3. by threat (needn’t be violent, direct or immediate, but can be)

D. Burglary  Specific Intent

1. Common Law
a. breaking and entering—some movement
b. a dwelling—place where people stay over night
c. at night—attended circumstance
 d. with intent to commit—specific intent
e. a felony therein—listed, not misdemeanor

2. Modernly
a. Entering—artificial means like extension of self/child OK
b. A structure—3 walls and a roof
c. w/ intent to commit—specific intent
d. a crime therein—any crime included
IX. Punishment

A. Sentencing For Years

1. Legislature determines max sentences
a. Misdemeanor = 1 year max in county facility
b. Felonies = 1 year max in prison
2. Judge determines what is appropriate for that individual

B. Appeal
1. You can appeal determination of guilt or innocence
2. Not reviewable if the judge sentences maximum term
3. No appeal in regard to actual sentence; UNLESS
4. Sentence violates the 8th amendment—whether the sentencing for
years is grossly disproportionate to the evolving standards of
decency in a civilized society (objective standard)

C. Death Penalty
1. Death penalty is not unconstitutional as long as it is administered
w/ standards
a. MPC standards:
i. Separate evidentiary hearing to use death penalty
 Jury hears aggravating and mitigating
circumstances (i.e. facts of particular D
such as violent past)
ii. Victim given choice of the mode

2. Limitations
a. States require death penalty when there is a killing of a
police officer or of at least two people
b. Cannot impose strict sentencing (i.e. has to be case by case)
c. Felony Murder
i. Can execute the actor
ii. Cannot execute the planner; UNLESS
iii. He was the killer or played a major role in the

3. Groups who cannot receive Death Penalty

a. Retardation, Insanity, Competence, Age