Is th er e an ac t: Must be voluntary ≠ sleepwalking, unconsciousness, seizures, reflexes, convulsions.

La rceny by t ric k D uses deceptive means to obtain possession, but not title, of another’s property

expose the victim’s deformity or disgrace; to expose a secret. Claim of right split o Maj: no defense -- Min: a defense o MPC: not a defense to threats of physical force is a defense if threat is to tell a secret, civil action, accuse of crime – threat must be directly tied to property. Poli tica l e xtor tio n: (i) money or influence; (ii) is obtained or attempted to be obtained; (ii) under color of office (pretense that office is entitled to the benefit by virtue of the office. • Must be quid pro quo, a mere expectation of a benefit is insufficient Brib er y: something of value corruptly offered or demanded with the intent to be influence an official’s actions or be influenced: • CL: limited to public officials, • Mod: expanded to official action, but not political • Mens rea = corrupt intent i.e. to be influenced • Both parties are guilty, • Not a defense that benefit was not obtained or duress/extortion. • MPC’s 4 sufficient agreements 1. A benefit in exchange for the receiver’s discretion as a public official 2. A benefit in exchange for the receiver’s vote, or use of office 3. A benefit in exchange of a violation of a known legal duty Bur gla r y CL: breaking and entering the dwelling house of another person at night with the intent to commit a felony Modern: the unlawful entry of a building or structure with the intent to commit a crime

Liability of omissions?  Statutory duty, D created peril, special relationship, and voluntary assumption of care. T hef t La rceny:

No transfer of title  V must think they are only handing over possession Em bezzle men t: (i) Fraudulent; (ii) appropriation; (iii) of property; (iv) of another; (v) by one entrusted with possession.

• •

Taking? Brought into control Carrying away split? o CL/maj: requires asportation. o MPC/min: no asportation. Property? o CL: tangibles, movables, not pets, not information MD: intangibles, trade secrets, pets, energy – MPC real expansive. Of another?

Fraudulent split

o o •

“intent to deprive”  does not allow barrowing. CA “intent to deprive perm.” allows barrowing, but no substitution.

o o

Appropriation  use inconsistent with owner’s expectations or unauthorized.

Business partner/ spouse split  Not at CL, modern courts say yes o Can steal your own stuff • To deprive permanently? o Intent can be formed at any time cannot be taken back o Barrowing okay unless  Gone for property’s useful life  Expose to unreasonable risks  Place unreasonable conditions on property’s return. o Claim of right  If you think it is yours no intent -- Need only be honest o To pay for taken goods  If D intends to give equal value for a fungible good no intent  MPC/maj: only fungible goods, reasonable believe they are for sale, or on display for sale. • Defenses to larceny: • Voluntary intoxication diminished capacity, honest mistake of fact. La rceny of lost p rope r ty : Larceny + (i) intent at the time of discovery to deprive permanently; (ii) at time of taking there was reasonable clue to true owner. • Have to be at the time • Later forming intent or discovering clue = no liability • Forming intent at taking and then changing mind = liability Mis tak en deliv er lar cen yLarceny + (i) knowledge of mistake at the time of delivery/taking; (ii) intent to deprive permanently at the time of taking.

False pr eten ses (i) a misrepresentation by the D; (ii) of a present or past material fact; (iii) w/ the intent to defraud the victim; (iv) where the victim relies on the misrepresentation in; (v) transferring title to some property • Must transfer title

• •

V must honestly rely  not reasonable

Split on future fact o CL: statements about the future are not sufficient o MPC/maj: clearly false statements about one’s present intentions or about what one knows will happen in the future are misrepresentations of present facts, not future facts. • opinions do not count unless made by an expert w/ superior knowledge. ! Theft crimes are now consolidated! Ag g ravated p rope r ty cri mes Rob be r y: larceny + (i) by force or threat of imminent force; (ii) from the person or immediate presence and control of the person • Is threat of force imminent – if not think extortion

• • •

Claim of right split o CL/maj: yes a defense o Min: no defense unless actually prove it was your property (heirloom) Type of force split o CL/MPC: has to be actual force or threat of serious force o Min: trivial force is sufficient Timing of force split o CL: at the time of taking, force used to escape didn’t count o MPC: force used in attempt, taking, and in flight Armed robbery o CL: possession of actual weapon even if concealed.

Entry: any part of body; and w/ out consent o Maj: enter w/ intent inconsistent with conditional consent of owner o MPC: must actually trespass, cannot commit burglary in a store generally open to the public o CL: had to be a house you had not right to enter Type of crime needed:

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CL  felony MPC  any crime CA  felony or petty larceny

Containers: if it’s a container then time of taking = delivery; if it is not supposed to be a container then time of taking = discovery

Mens rea Specific: Larceny, burglary, solicitation, robbery, false pretenses Honest mistake of fact • Voluntary intoxication is evidence General:  Honest and reasonable mistake of fact negates MPC: purpose, knowledge (practically certain if event in future, high probability if existing fact) reckless, negligent.

MP C on los t and misdel iv er d la rceny: A person, who comes into control or property of another that he knows to have been lost, mislaid, or delivered by mistake is guilty of theft . . . if he fails to take reasonable steps to restore the property to the true owner.

Ex tor tio n (i) the use of a threat; (ii) in an attempt to obtain (in some jx actually obtaining); (iii) property of another or action by another.

Sufficient threats in CA: to injury someone person or property; to accuse the victim or his family of a crime’ to

Mistake of fact must be < culpability required by the crime  Negligent crime requires reasonable mistake

 Reckless crime requires reasonable mistake Stri ct lia bi lit y c rimes Strict liability  public welfare crimes, no mens rea required, only the act • Penalties will be low Vicarious liability  as long as empl. is acting within the scope of employment, Corporate liability split over the employee • Maj: must be acting on behalf of corp. w/in scope of employment, but no need for authorization • Min/MPC; act must be authorized, requested, or recklessly tolerated by high management/exec. Mistake of law as a defense: 1. When mistake of law negates a specific element of the crime 2. When the law is not published 3. Reasonable reliance on a statue later declared invalid

social utility of D’s conduct Magnitude of risk posed o Foreseeable of risk posed • Recklessness or Gross negligence. • If no conscious awareness of risk, you can’t go with murder Felon y mu r de r Must prove felony, mens rea for felony. Did felony end before murder. 1st degree if listed: burglary, arson, rape, robbery 2nd degree if inherently dangerous: determined by the court In the abstract (CA) v. As applied (maj) o If not inherently dangerous no felony murder – go to reckless murder or involuntary manslaughter Merger rule: if felony is assault it can’t be basis for felony murder charge CA – independent purpose test and includes Burglary w/ intent to commit assault may merge Did someone besides D actually cause the death?


MPC: corruption of a minor, if under 16 and 4 years older. Split on mistake of fact as a defense: • Maj: no it is a strict liability crime • CA/min: yes if honest and reasonable mistake force ful r a pe common law: (i) sexual intercourse; (ii) by a man; (iii) not her husband; (iv) against a women; (v) w/out her consent; (vi) by force; (vii) against her will (utmost resistance

• •

CL procedure: corroboration; timely notice; hale’s charge (rape is easy to accuse, hard to disprove)


• • •

Marital rape: use to be uncriminal o Most states have done away with this rule, or now punish it under separate statutes. Modern: (i) sexual intercourse; (ii) w/out consent; (iii) by force, or threat of force; or fear or serous force. • Actus reus = some force or threat of force •

Reasonable reliance on judicial decisions later overruled (appellate level?) Reasonable reliance on government official in the position to interpret the law Lambert, crime is pure omission, and no objective indicators exist that would give D notice of statute’s existence. • D has burden of showing by a preponderance of evidence.


Proximate cause: if death was foreseeable, in the realm of possibilities 1. 2.

o Penentration is not sufficient Berkowitz Mens rea = to have sex w/out consent o Split over mistake of fact defense  CA must be honest and reasonable

Homicide Commo n law Mur der  malice aforethought

Agency rule: person who caused death must be a cofelon. (maj/CA) Mod el penal cod e an d ho mici de Murder: purposefully, knowingly, or recklessly under circumstances manifesting extreme indifference to the value of human life. (does not grade murder)

At tem pt An intent to do an act or cause a result which constitutes a crime An act in furtherance of that intent that goes beyond mere preparation

• •

2. 3.


Intent to kill  1st degree if P/D Intent to cause grave bodily harm Extreme recklessness (depraved heart) a. Must have conscious awareness b. If you talk about this talk about involuntary manslaughter Felony murder 1st if listed (burglary and robbery are listed in CA) ; 2nd if inherently dangerous Premeditation and deliberation

Recklessness is presumed if D is attempting or committing robbery, burglary, rape, kidnapping.  shifts burden on D to rebut Manslaughter: Homicide otherwise murder but committed under the influence of extreme mental or emotional disturbance, for which there is a reasonable explanation. Reasonableness is determined from the viewpoint of a person in the actor’s shoes. Recklessly, and they also have Negligent homicide

• • •

Last proximate step test  common law Substantial step test strongly corporative of criminal purpose o Lying in wait, unlawful entry, casing the joint o Solicitation alone is insufficient


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Carol: can be meet in an instant Anderson: need evidence of planning activity, cool calculated performance. Diminished capacity defense? Not in CA.

Volu nta r y mans laug hte r ( brings down intent to kill/SBI/ and Ex. Reck)


Reasonable provocation (would reasonable person be provoked) a. CL: being assaulted, unlawful arrest, family is attacked, adultery.

Death penal ty (36 sta tes) Must have: first degree; and aggravating factors outweighing mitigating factors Furman v. Georgia: jury’s can’t have unchecked discretion. Locket: jury must be able to weigh all mitigating factors, individualized sentencing Procedure: Must be over 18 (roper), not for rape, Cannot be insane, or retarded Accomplice eligible only if: they were extremely reckless, and participation was major, could foresee lethal force would be used tison. Aggravating: killing cop, 2 deaths, history of violence, for financial gain Mitigating: clean record, under duress, minor role, child abuse, broken home. sta tuto r y r a pe age of consent: typically 16, 18 in CA

Merges with completed crime. Can’t be charged with both Defense of abandonment: CL = no def MPC = defense if complete and voluntary • Still liable for crimes committed along the way • Can abandon after last prox step if criminal step is avoided • Can’t once D puts in motion forces causing crime & can’t stop them. Defense of impossibility: only a defense to attempt

• • • •

Pure: a mistake as to the law not a fact, always a defense Legal: if D did everything he wanted to do there would not be a crime o Look for mistake of identity Factual: consequences sought be D are criminal, no defense MPC: no defense, if D’s conduct would have constituted a crime if the attendant circumstances were as he believed them to be (maj_ So lici ta tion Encouraging, requesting, or advising another person to commit a crime With the intent that the crime be committed • Merges once you have an attempt or a conspiracy.

b. 2.

Minority  sympithtic provocation from point of view of jury

D acted in the heat of passion ( was he provoked, and did not cool off) 3. There was no time to cool off In volu nta r y mans laug hte r • if you talk about this you have to talk about reckless murder

1. 2.

Split over communication: CL = yes MPC = no Split over group solicitation: some courts say yes others no Split over type of crime: CL = felonies; MPC = any crime mod = listed crimes. Abandonment defense: not at common law, but MPC says yes if • You persuade the person not to commit the crime; or • Otherwise thwart the commission of the crime • Must be complete and voluntary ac comp lice lia bili ty players: principals in 1st and 2nd are present, and before the fact Gives aid or encouragement MPC  attempting to give aid • Omission can be aid, if duty to act and fail to act with intent to aid • Principal must be guilty of crime, though not convicted. Mens rea: Intent to give aid or encouragement to the principal with the Intent that the principal commit the offense split: maj: purposeful wanting the crime to be committed, minority: knowing is enough if: crime is serous, or aid is critical.

• • • •

Common law: must tell all co-conspirators you’re out. Or affirmative acts inconsistent with the object of conspiracy if that would put all on notice MPC: either tell all the co-conspirators, or tell the police

Cannot have placed self in position. MPC: a person of reasonable firmness would be unable to resist. Not a defense to homicide, unless MPC

Overt act jx: if withdraw comes before overt act, complete defense. Renunciation: complete defense -- ends all liability Common law: must thwart the success of the conspiracy, must be complete and voluntary ( though need not be sole cause of thwart) o Some jx allow substantial attempt to thwart or calling police

Entrapment: Prohibits law enforcement from instigating a criminal act by persons otherwise innocent in order to lure them to its commission and to punish them.

• •

Subjective: inducement must be but for case of act, D must not be predisposed to commit crime Objective: inducement would cause an ordinary person to commit the crime Not a defense to murder

MPC: actually thwarts the conspiracy voluntary and complete. RIC O : conducting the affirms of an enterprise through a pattern of racketeering activity (2 crimes in 10 years which are connected but separate).

intoxication: If involuntary always a defense if it negates Mens reas. If voluntary only evidence of lack of specific intent crimes –i.e. murder. • MPC: only admissible evidence of purpose/knowledge crimes o Getting drunk is reckless so not admissible to reckless crimes. Necessity (i) D was faced w/ choice btw/ 2 evils; (ii) he acted to prevent the lesser one; (iii) reasonably anticipated a direct causal relationship btw/ his acts and the harm to be avoided; (iv) he had no legal alternatives. • No defense if D creates situation leading to choice between two evils • Not a defense if legislature had said harm was not an evil. • Not a defense to murder, expect MPC

• •

Liable for all crime that are the natural and probable consequences of the initial crime they assisted.

Not an accessory if participation is inevitable incident to commission of crime accessory after the fact (i)A felony has been committed by the recipient of aid; (ii) D knows the felon committed the crime; (iii) D aids the felony; (iv) with the purpose of hindering his apprehension. • Obstruction of justice today Abandonment defense: must effectively withdraw all aid and encouragement in a timely manner or give the police notice in time to prevent the crime • Does not have to be voluntary, • Still liable for crimes committed along the way.

Defenses insanity M’Naghten: a cognitive incapacity to tell right from wrong OR the person did not know the nature and quality of their conduct. Split: courts differ as to whether D must fail to understand his actions are wrong in a moral or legal sense • D must think he is acting correctly due to his mental illness not his religion. Irresistible impulse: a volitional prong Durham: but for D’s mental illness MPC: at the time of crime as a result of mental disease or defect D lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the law. self defense: a person is justified in using force against another when they reasonable believe they are under the threat of immediate serious bodily harm. • Imminent – proportional – reasonable • Duty to retreat, not at CL, modern/MPC. defense of dwelling • CL: allowed deadly force to be used

lovercamp test. (1) specific threat of death, rape of grave bodily harm (2) not time to complain, or complaints have been futile; (3) no time to access the courts; (4) escape must be non violent; (5) must report to authorites upon reaching a point of safety.

MPC  otherwise make proper effort to prevent crime

1. 2. 3. 4. 5.

Cons pir ac y An agreement between two people With the intent to enter into the agreement An over act in furtherance of the agreement (not at CL, but majority) Purpose to promote the unlawful act that is the objective of the conspiracy Knowledge that object is unlawful (minority)

MPC’s unilateral approach  agreeing is sufficient • Does not merge, procedural advantages. Mens rea: 2 elements, intent to agree and intent to promote unlawful object Split: majority requires purposeful, but minority will allow knowing if: • Serious felony is object OR D has stake in venture. Wharton rule: if crime needs 2 no conspiracy, rejected by MPC Pinkerton doctrine: D is liable for the crimes of the coconspirators if foreseeable and in furtherance of the objective of conspiracy, rejected by MPC Withdraw defense: an incomplete defense – only ends pinkerton liability

Modern trend: a reasonable belief that intruder will use any force against the occupant justifies the use of deadly force Anderson. CA: deadly force is okay if occupant reasonable believes intruder is going to commit a forcible felony or use deadly force

Prevention of felonies: At common law you could use any force. Today, deadly force is only justified if there is reason to believe the felon poses a threat to community. Duress D is coerced to commit a crime by the use of imminent threat of death or bodily harm. • No reasonable chance to escape

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