CRIMINAL LAW

I. GENERAL PRINCIPLES
Look for the guilty hand, moved by the guilty mind, sometimes causing a bad result, in the absence of a
justification or excuse.
A. Elements Of Crimes
1. Generally, the prosecution must prove the following elements beyond a reasonable doubt.
Be alert to a problem where the evidence fails to prove one of these essential elements!emember"
a missing element # not guilty.
a. Actus Reus" $he act %actus& that produces the criminally prohibited result %reus&.
%1& $his element may be met by"
%a& a voluntary conscious act that causes an unlawful result. 'asiest way to remember" physical
act ( volition # legal act.
1& EXAMPLE:
a& !eflex actions and sleepwalking" lack volition and not legal acts
b& )abitual acts conditioned responses %conditioned reaction&" volitional and legal acts.
c& *cts performed under duress" volitional act, but duress may end up being defense.
+here the defendant causes the criminal harm while sleepwalking, hypnoti,ed, or
during an epileptic sei,ure there is no criminal act and no crime.
EXAMPLE: * defendant kills his son by stabbing him after his son surprises him from
behind. -efendant claims his act was a conditioned response from his military training and
from his experience as a jungle fighter during +orld +ar ... $his evidence is irrelevant
because even if his reaction was a conditioned response, it satisfied the volition
re/uirement and is a voluntary act. )ad he killed his son while sleepwalking, or during
an epileptic sei,ure, there would be no voluntary act.
%b& an omission to act where defendant is under a legal duty to act satisfies the act re/uirement.
omission ( legal duty where the defendant could have acted # act.
1& 0ormally, failure to act, even when morally reprehensible, is not a criminal act. )owever,
where the law imposes upon a person in the defendant1s position a duty to act, the failure
to act is a criminal act.
2& Look for one of the following legal duties"
a& 3tatutory duties %a law enforcement officer&
b& Legal duty by contract %a life guard&
c& 3tatus relationship %husband4wife5 parent4child&
d& 6oluntary undertaking to rescue that is abandoned %telling others to stay back so you can
rescue someone, and then abandoning the effort&
e& 7ailing to help after creating the risk of peril %hit and run&
EXAMPLE: 0ursing home employees who abandoned elderly residents during
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hurricane ;atrina committed a criminal omission5 however, individuals who drove
out of the city with plenty of room for passengers and ignored the pleas for
evacuation by others on foot did not commit a criminal omission, even though if it
was obvious they were about to be engulfed by rising waters.
b. Mens Rea %guilty mind&
%1& 7or almost all crimes, a defendant1s guilt will depend upon the culpable state of mind that actuated
the criminal act or omission. $his mens rea element of crime is normally defined by statute, and
generally falls into one of the following categories"
%a& Purpose" -efendant acts with the conscious objective to bring about a prohibited result %e.g.,
shooting at someone with the objective to cause his death&.
%b& Knowledge: -efendant engages in conduct that he knows, with almost absolute certainty, will
produce a prohibited result %e.g., - plants a bomb with the purpose of killing one person, but
with knowledge it will kill 1< others&.
%c& Intent: -efendant acts intentionally when he acts with purpose or knowledge.
7or inchoate offenses, intent almost always means purpose only.
%d& illful: +illful is often used as a synonym for intent" * defendant acts willfully when"
a!ting wit" purpose or #nowledge$ and moral turpitude.
%e& %e!#lessness: * defendant acts recklessly when" he is aware that his conduct creates a risk
that is unjustifiable, but he ignores that risk and engages in the conduct anyway.
1& !ecklessness is easily understood as, =- knew the risk but didn1t care.>
2& !ecklessness is distinguished from knowledge because - is aware he is creating a risk,
but does not have substantial certainty that the harm produced by the risk will occur.
;nowledge re/uires an almost absolute certainty that a criminal act will occur
%f& Criminal &egligen!e: * defendant acts with criminal %sometimes called culpable negligence&
when" he created an unjustifiable risk without subjective awareness he is doing so, but where
a reasonable person would have reali,ed the risk.
1& ?riminal negligence re/uires a gross deviation from the normal reasonable standard of care,
a deviation greater than that re/uired for civil negligence.
2& ?riminal negligence is distinguished from recklessness because - was not subjectively
aware of the risk creation@A- did not reali,e he created the risk but he should have
because a reasonable person in that situation would have.1
0B$'
%2& Intent
%a& 'pe!ifi! intent ( re)uires proof t"at t"e * intended to produ!e spe!ifi!ally pro"ibited
"arm$ and normally in!ludes purpose or #nowledge i.e. lar!eny re)uires spe!ifi! intent
to permanently depri+e.
+henever a crime includes the term ,wit" intent to$- that is a specific intent element.
%b& .eneral intent only re/uires a desire or state of mind to do the prohibited act and generally
includes reckless or negligent state of mind.
EXAMPLE" -efendant is charged with *ssault with .ntent to ?ommit 9urder. $he state of mind
related to committing the assault only is a general intent element %placing the victim in fear of an
imminent battery or attempting to commit a battery&. .n contrast, the intent to murder the victim is a
specific intent element, re/uiring proof that -efendant acted with the purpose of killing his victim
when he committed the assault.
3pecific intent may be nullified by an "onest but unreasonable mista#e of fa!t, and by voluntary intoxication5
only an "onest and reasonable mista#e of fa!t will nullify general intent.
%C& Mali!e" 9alice is the essential mens rea element for murder at common law. $here are numerous
ways to prove malice.
%a& E/press Mali!e" is established by proving - intended to kill another human being. .ntent to kill
is established by proving"
1& - acted with purpose to kill5 B!
2& - acted with knowledge to kill another5 B!
C& - acted with intent to inflict grievous bodily harm
%b& Implied Mali!e" is established by proving that the defendant caused a death as the result of
extreme reckless or criminally negligent conduct that manifested a wanton disregard for the
value of human life.
1& .mplied malice may be established even where" the killing was unintentional if there was
wanton disregard for human life.
2& 9alice is also implied for a felony murder conviction, although felony murder will be
analy,ed as a distinct category.
!emember, any unlawful #illing 0 mali!e 1 murder, even if the defendant did not set out to
kill someone or didn1t even expect his conduct would cause death.
%D& 'tri!t liability !rimes re/uire no mens rea"
%a& *ct ( !esult # Guilt.
%b& *s a result, mistake of fact is never a defense %e.g., for statutory rape, where - mistakenly
believes the victim was of legal age&.
%E& $ransferred intent" +here the - intends to produce a criminal result against one victim, but instead
inadvertently harms another victim, the intent to harm first victim transfers to the other victim.
%a& .t is not a defense that" you hurt the wrong victim
c. Con!urren!e" .n order to prove guilt, the :rosecution must prove that the act that causes the criminal
result was actuated %set in motion& by the re/uisite criminal state of mind. $his is called concurrence.
%1& .t is not only necessary that" the mens rea %state of mind& and criminal act concur precisely in time.
+hat is necessary is that the mental state must actuate the conduct that produces the criminal
result.
EXAMPLE: ?ommon law burglary is the unlawful breaking and entering of the dwelling of another
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at night with the intent =to commit a felony or larceny therein.> .f -efendant breaks into a house to
escape from the rain, and then sees a valuable item and decides to steal it before he leaves, this
is 0B$ burglary because the breaking and entering was not a!tuated by the re/uisite mens rea@
there is no concurrence. Burglary re/uires proof beyond a reasonable doubt that -efendant broke
and entered in with the intent to commit the felony theft.
d. ?ausation between defendant1s act and the harm suffered %both actual and proximate causation are
re/uired&.
%1& $he defendant1s conduct must be" both the actual and proximate cause of the specified criminal
result. *ctual cause ( proximate cause # legal cause.
*ctual cause is *L+*F3 re/uired, but not always enough. -efendant cannot be a proximate
cause unless he is first an actual cause, but just because the defendant is an actual cause does
not mean he is also the proximate cause.
%a& A!tual !ause %also called cause in fact& may be satisfied by one of three tests"
1& 2ut 3or: If t"e !riminal result would not "a+e o!!urred 245 3O% t"e defendant6s
a!t or !ondu!t$ t"en t"e defendant6s a!t is t"e a!tual !ause of t"e !riminal result.
2& 'ubstantial 3a!tor: w"ere t"ere are multiple parties or !auses responsible for t"e
same !riminal result$ !ourt will still find t"e defendant6s responsible w"ere t"e
defendant6s !ondu!t or a!t was a substantial fa!tor in !ausing !riminal result.
C& A!!eleration 7Limited to 8omi!ide9: +hen -1s conduct speeds up an inevitable death,
even by a very brief amount of time, - is considered an actual cause of death because
he =accelerated> an inevitable result i.e. mercy killing cases.
EXAMPLE: -efendant 1 stabs 6ictim in the heart with a knife. 3imultaneous with this
stabbing, -efendant 2 shoots 6ictim in the head. 9edical testimony conclusively
establishes that either the knife or bullet wound alone was sufficient cause to instantly kill
6ictim. 'ither -efendant1s act can be considered the actual cause of 6ictim1s death.
EXAMPLE: -efendant 1 shoots victim in the chest5 -efendant 2 then runs over victim
and kills him instantly. 9edical evidence establishes victim would have died from the
gunshot wound, but that he died more /uickly as the result of being run over. Both -1
and -2 are substantial factors, and -2 is an accelerating factor.
%b& Pro/imate !ause" * cause in fact must also be the proximate cause of harm to /ualify as the
legal cause. :roximate cause is established when the harm produced by -1s cause in fact was
within the ob:e!ti+ely foreseeable range of objective possibility. .f the harm was a
foreseeable conse/uence of -1s conduct, - is the proximate cause5 if the harm was an
unforeseeable result of -1s conduct, - is not the proximate cause. 7oreseeability is critical to
this analysis, and an objective test.
Pro/imate !ause analysis is re)uired only w"en an inter+ening e+ent !omes between *6s
a!tual !ause and t"e !riminal result. .f the facts so indicate, it is necessary to determine
whether that intervening event %being by human or some other cause& supersedes -1s
responsibility. .f the intervening event is foreseeable, it does not supersede5 if it is
unforeseeable, it normally will supersede.
1& Grossly negligent or reckless conduct that accelerates a death set in motion by - will
normally be considered unforeseeable5 simple negligence is foreseeable.
EXAMPLE: Both a bank teller who dies of a heart attack because of the shock caused by
a robbery, and a guard who is shot in the arm and later dies due to ordinary medical
malpractice, are considered to have died proximately from the robbery, as both deaths
are objectively foreseeable conse/uences of an armed bank robbery.
2& Gnknown special sensitivities or vulnerabilities of a victim are considered foreseeable.
$herefore, the tort maxim =you take the plaintiff as you find him> applies to crime victims as
well.
%c& $o relieve the defendant of liability and break the causal connection to the criminal result, the
intervening cause must be a superseding cause. To supersede, it must be unforeseeable.
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7oreseeability is normally assessed by asking"
1& +as the intervening cause a dependent$ or responsi+e inter+ening !ause; as it
responsi+e to *6s initial !ause; Dependent or responsive interventions will not
supersede unless they are totally abnormal response to the defendant’s act.
EXAMPLE: - sees victim on an ocean pier and begins shooting at him. .n order to avoid
harm, victim dives into the ocean. $he currents are too strong, and victim drowns. $his is not
an abnormal response to -1s conduct, and therefore - is foreseeable. - is the proximate
cause of death.
2& Or$ was t"e inter+ening !ause independent inter+ening !ause or a mere
!oin!iden!e;
EXAMPLE: * bank customer is shot in the toe during a robbery. +hile waiting for the
'9$ to dress the wound and transport him to the '!, the teller is killed by a serial killer
who happens to be walking past the bank. $he serial killer is unrelated to the robbery.
$his is not foreseeable, and the independent intervening cause will supersede the
defendant1s act and break the causal connection to the victim1s death.
)F:B$)'$.?*L
7ranny 7rugel was walking home from work in a high crime area late at night when 9ugger 1 attacks
her. )e shoots her in the leg and steals her briefcase. *s 7ranny struggled to find her cell phone,
several minutes later 9ugger 2 %a third person& hits her in the head with a brick, steals her phone,
and accelerates her death as the result of blood loss from the leg and head. +ill 9ugger 1 be liable
for 7ranny 7rugel1s deathH .s 9ugger 2H
9ugger 1 is proximate cause of death, and 9ugger 2 is accelerating factor. 9ugger 2 was
coincidence and an intervening act, but the fact that 9ugger 1 attacked and shot her in a high
crime area and left her to die there makes it foreseeable that someone else would finish the job.
II. CRIMES AGAINST THE PERSON
A. 8omi!ide
*EA58 A' A& EXPEC5E* O45COME
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58I&K M4%*E%$
58E& LOOK 3O% A& E%A'E%
*EA58 A' A& 4&EXPEC5E* O45COME
O3 *6' 4&<4'5I3IE* %I'K C%EA5IO&:
58I&K MA&'LA4.85E%$
58E& LOOK 3O% A& E'CALA5O%
Common law Murder: implied mali!e
!eckless %knew risk and ignored& or negligent %should
have known risk&
?onduct, plus
'vidence proving a wanton disregard for "uman life
9urder" unlawful killing I58 malice
'xpress malice"
.ntent to killpurpose or #nowledge
.ntent to inflict grievous bodily harm %evidence proves - a!ted wit" a bla!#=malignant
"eart&
7elony murder
9alice implied from malum in se conduct"
B*!!; crime causes death
-'G!'' 9G!-'!"
An e/press mali!e murder$ PL4'
:remeditation and deliberation, B!
:roof murder falls into statutory category of 1st degree
!emember +oluntary into/ may erase : I -
6oluntary manslaughter"
* presumpti+e murder *O&.%A*E* because
mali!e is erased by"
:rovocation producing sudden "eat of passion
-iminished mental capacity
.nvoluntary manslaughter"
Gnlawful killing I58O45 malice
* killing resulting from re!#less conduct that does not
manifest a wanton disregard for the value of human life
* killing that results from !riminal=!ulpable negligent
!ondu!t %gross negligence&
1. )omicide is a killing of a human being caused by another human being. Criminal "omi!ide is the unlawful
killing of one human being by another.
a. * killing is unlawful when it"
%1& .s without legal justification or excuse %no valid defense&5
%2& .s committed as the result of a criminal state of mind %criminal mens rea&
*ccordingly, a criminal homicide results when the defendant is the legal cause of the death of
another human being with a criminal state of mind and without legal excuse or justification.
$hink of homicide offenses as cocktails and focus on the ingredients. *ll criminal homicide has a
base ingredient of =unlawful killing of a human being.> *dd malice and it e/uals murder %degrees of
murder will depend on adding additional ingredients, like premeditation and deliberation&. 'liminate
malice and it e/uals manslaughter.
b. Murder: $he unlawful killing of a human being with 9alice. !emember, any killing with malice must be
murder.
Murder Manslaughter
Gnlawful killing
!esults within a
year and a day
)uman
9alice
Gnlawful killing
of a )uman
If you erase malice
%1& *n actus reus is the criminal act that legally causes the death of a human being. $his can be act (
volition B! omission ( duty.
%2& *t common law, death of a human being re/uired that the victim had been =born alive> %though a state
may extend criminal liability to include a fetus after the first trimester&.
%C& $he death must be caused by someone other than victim. 3uicide is not homicide.
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*ssisting someone commit suicide cannot result in accomplice liability for murder. But
engaging in reckless conduct that proximately causes someone else to take her life %like
encouraging someone to play !ussian !oulette& will result in homicide liability because it is not based on
accomplice liability. $his is why jurisdictions had to create assisted suicide laws because assisting
someone with suicide could not be tried as accomplice liability for murder
%D& .n situations when a victim is already dying, speeding up inevitable death, even by C< seconds is
considered cause of death. $his is the acceleration doctrine.
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Gnknown to :aul, ;iller intended to shoot and kill 7red 7reefall with a highJpowered rifle. :aul
pushed 7red 7reefall out of an airplane at 2<,<<< feet above ground. Kust as 7red 7reefall was about
to hit the ground, ;iller fired a bullet into his head, killing him instantly. .s ;iller1s act of shooting 7red
7reefall the actual cause of 7red1s deathH
Fes, due to acceleration doctrine, even if 7red shortened :aul1s life by two seconds, he is the
cause of death as he accelerated the inevitable.
%E& *t common law, if the victim died more than one year and one day after the defendant1s act that
was the cause in fact of death" the law treated the death as unforeseeable and the - was not legal
cause of death.
%a& 9ost states" have eliminated this rule or extended the period of time within which the victim
must day
%L& A defendant w"o does not personally #ill t"e +i!tim may nonet"eless be legally responsible
for a #illing in t"e following four !ir!umstan!es:
%a& *ccomplice" * - who is accomplice to actual killer may be held responsible for killing the
person
%b& ?onspiracy" where the reasonably foreseeable result of a conspiracy is homicide and the
homicide was committed in furtherance of conspiracy, all members of the conspiracy can be
held liable for the homicide, regardless of which conspirator actually killed the victim.
%c& 3ubstantial 7actor" +here both a third party and defendant caused the death, both will be
responsible for causing the death, although may have to determine who is the proximate
cause.
%d& ?oJ7elon Liability" if the killing /ualifies as felony murder, the nonJkilling coJfelons will also be
guilty of murder.
%M& 9alice is the mens rea for *LL murders. 9alice can be express or implied"
9alice may be established for both intentional and unintentional killings"
+here - engaged in conduct he expected would cause death, malice will normally be express.
+here - engaged in conduct he did not expect to cause death, but causes death as the result of
extreme risk creation, malice will be implied.
%N& 9alice is established by proof of" intent to kill5 intent to inflict grievous bodily harm5 or an unintended
killing resulting from extreme risk creation that manifests a wanton disregard for human life
%depraved heart murder&.
%a& Intent to #ill:
1& $he =deadly weapons do!trine>" .ntent to kill is normally inferred from -1s use of an
instrument designed to kill or used in a manner likely to kill or inflict grievous bodily harm.
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EXAMPLE" * defendant1s intent to kill can be inferred from deliberately shooting a pistol at a
victim or swinging a baseball bat at the victim1s head.
%b& Intent to !ause serious bodily "arm # 'xpress malice" even if the - did not have intent to
kill.
1& 3erious bodily injury, also called =great bodily injury> or =grievous bodily injury> means
significant but nonJfatal injury. Intent to inflict serious bodily harm malice like intent to kill
malice can result from D’s conscious desire or substantial certain that his actions will
result in serious bodily injury,
EXAMPLE: -efendant drives his car over victim1s legs, intending to break them in order
to perpetrate an insurance scam. )owever, victim ends up dying as a result of the injuries
sustained. -efendant acted with the necessary malice for murder.
%c& *epra+ed "eart murder: 9alice is implied where the defendant causes death as a result of an
extreme risk creation that manifests a wanton disregard for human life.
1& -epraved heart murder is an unintentional killing resulting from"
a& !eckless or grossly negligent conduct that creates e/treme ris# to others that
demonstrates defendant acted with wanton indifference to human life and a
conscious disregard of an unreasonable risk of causing death
EXAMPLE: 'ncouraging someone to play !ussian !oulette, where a person points
a gun at his head and has a one in six chance of dying, is likely to be considered
depraved heart murder.
EXAMPLE: * highly dangerous animal %like a killing dog or an exotic wild cat& kept
in a residential area escapes and kills a neighbor1s child. .f -efendant was reckless
or negligent in securing the animal this is likely depraved heart murder.
%d& 3elony>murder: 7or felony murder, mali!e is automati!ally establis"ed by !ausing a
deat" during t"e !ommission of t"e ?rig"t type6 of felony.
1& 7elonyJmurder is"
a& Gnintentional killing
b& :roximately cause during
c& ?ommission or attempted commission
d& Bf a serious or inherently dangerous felony
2& .f these re/uirements are met, malice is automatic. 0o intent to kill, or even an
expectation someone will die when the felony is commenced, is re/uired.
C& 3everal limitations have been placed on the scope of the felonyJmurder rule.
$hink of these as obstacles the prosecution must hurdle to reach the felony murder e/uation"
felony ( death # killing.
a& 5o be t"e ,rig"t type of felony-$ t"e felony must be eit"er listed in t"e murder
statute$ or be bot" independent of t"e #illing$ and in"erently dangerous.
i& * majority of states re/uire the killing to be collateral %independent& to the felony.
.f the primary felonious purpose of the felony is serious physical harm, the felony
is not independent and fails the collateral felony test. 7elonies that fail this test
include manslaughter, aggravated battery, aggravated assault, and mayhem.
)F:B$)'$.?*L
-efendant goes to 9aryanne1s .talian 9arket with the sole purpose of beating up 9rs. 3tevens. %.t
seems 9rs. 3tevens is acting as a bookie on the side and hasn1t paid on some bets.& .ntending to
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injure her, -efendant severely beats 9rs. 3tevens in the head, and she later dies from the wounds.
-efendant takes nothing from the store and does not attempt to rob anyone. +ill the criminal battery
be escalated to murder under the felonyJmurder ruleH
0o. - commits aggravated battery in this case. Because the primary underlying felonious purpose
of aggravated felony is to commit serious bodily harm, the prosecutor is not permitted to use this
felony for the felonyJmurder rule because it is not independent of the killing.
ii& *n independent felony must also be in"erently dangerous. $his test is
satisfied when the inevitable secondary effect of the felony is serious risk to
human life. $he majority of states apply an abstract test, which re/uires the
felony to be dangerous in all contexts. * minority of states applies a context
test, which considers the manner of commission in determining inherent
dangerousness.
iii& 7elonies that are both independent and in"erently dangerous are the =right
type of felonies> for felony murder. $he following felonies almost always satisfy
these re/uirements %B*!!;&"
B" Burglary %'xcept it won1t work is where burglary is committed to harm
someone in the house, but most of the time, burglary is intent to steal&.
*" *rson
!" !ape
!" !obbery
;" ;idnapping
EXAMPLE: -efendant pretended to be a doctor with a cancer cure and
induced 6ictim to pay OE,<<< for a medically worthless ointment that -efendant
claimed would cure cancer. :racticing medicine without a license is a felony in
the jurisdiction. .f 6ictim had received competent medical treatment, the cancer
would have been detected and cured. .f 6ictim dies of cancer, -efendant can
be charged with felonyJmurder in a context jurisdiction because the context of
the commission in this situation was inherently dangerous. .n an abstract
jurisdiction, this would not be the =right type of felony> because practicing
medicine without a license is not dangerous to human life in all situations.
b& 5o "a+e t"e ,rig"t !onne!tion to t"e felony-$ t"e resulting deat" must be a
foreseeable outgrowt" of t"e felony. 0ote that most courts have generally been
very liberal in applying the foreseeability re/uirement. $herefore, most deaths are
considered foreseeable for purposes of felonyJmurder.
"at is not foreseeable: - and an accomplice commit an armed robbery of a
bank. +hile driving from the crime scene, -efendant1s accomplice sees a person he
has hated all his life, and decides to use the opportunity to shoot and kill him. $his
killing had no connection to the felony, and therefore is unlikely to result in felony
murder liability.
c& 5o be t"e ,rig"t time-$ t"e resulting deat" must o!!ur as t"e %E'4L5 of
in:uries infli!ted during t"e !ommission$ attempt$ or immediate flig"t from
felony.
.t is not necessary that the death occur during the felony, only that the harm that
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results in death occurs during the felony.
i& 7or purposes of felonyJmurder, the felony starts when the defendant could be
convicted of attempting to commit felony. 3o it starts at attempt and there is no
re/uirement that attempt is completed
ii& $he felony is deemed to have terminated, when the felon has reached a place of
temporary safety.
)F:B$)'$.?*L
*ri, in an act of arson, torches the 9ar/uee $heatre. *ri waits until he believes the flames have
stopped flaring and goes home to watch his work on the evening news. +hile the building is still
smoldering, an intoxicated transient happens into the hallway seeking refuge from the cold outside
and falls asleep. )e is severely burned when a flareJup occurs and subse/uently dies. ?an *ri be
found guilty of felony murderH
7elony had terminated when *ri left the scene and went home because he was no longer in flight.
$he subse/uent injury that caused death of the vagrant occurred outside the time frame of the
felony, so *ri1s arson cannot be treated as felonyJmurder.
D& Co>3elon liability: +hen a victim is killed at the hand of one felon or another person, coJ
felon felony murder liability for that killing will vary depending on jurisdiction.
a& Modern Ma:ority Agen!y %ule: Gnder the majority rule"
i& $his rule exempts from felony murder liability all killings committed at the hand
of nonJfelons.
ii& )owever, some majority jurisdictions still apply felony murder liability when a
nonJfelon kills another nonJfelon %e.g., victim aims at felon but misses and kills a
police officer or bystander&.
b& Original Common Law: $his is the broadest application of coJfelon liability. *ll
felons were liable for any homicide that occurred during the perpetration of the
felony. +ho committed the act that caused death, or who was killed, was irrelevant.
EXAMPLE" .mmediately following a burglary while the felons are still in flight, the
homeowner trips, causing fatal injury, while running down the stairs to call the
police. *ll coJfelons are liable for felony murder for this death.
i& &on>@iolent 3elon E/!eption: * minority of common law jurisdictions exempt
from felony murder liability a nonJviolent coJfelon, for example, one who was not
armed and did not participate in or have any knowledge of the coJfelon1s intentions.
ii& *eser+ing @i!tim E/!eption: * minority of common law jurisdictions also
exempt from felony murder liability a killing of a coJfelon %remember this as the
=deserving victim> exception&.
iii& %edline Limitation: 9any common law jurisdictions apply a limited form of the
agency doctrine, exempting from felony murder liability killings at the hand of a
nonJfelon when the killing is a justifiable or excusable homicide on the theory that
there is no unlawful killing to attribute to a surviving felon.
EXAMPLE: * bank robber would not be charged with felony murder under this
limitation if the police justifiably kills his accomplice.
%P& Murder by *egrees: Based on the belief that not all murders are e/ually evil, many jurisdictions
divide murder into degrees.
Second Degree Murder First Degree Murder
Gnlawful killing
)uman
9alice
General or
intent to kill
:remeditation and
deliberation
)uman
Gnlawful
9alice
9ens rea" specific
intent
!emember, all murders re/uire proof of 9alice. $herefore, distinguishing between 1st and 2nd degree murder
will always turn on proof of an additional =ingredient> to the homicide cocktail, but malice is always the base
mens rea element.
%a& 3irst>degree murder: $his is the most egregious category of murder. Kurisdictions define by
statute the additional proof element that establishes a murder is most egregious, and therefore
1st -egree.
1& 5"e Original Additional Element: *t common law, and in almost all degree jurisdictions"
proof that the defendant1s decision to kill was both premeditated and deliberate, which
elevated secondJdegree murder to first murder.
Because premeditation and deliberation re/uires the defendant to consciously decide to
kill, the only =intent to kill> malice sufficient as the base element for 1st degree :I-
murder is purpose to kill.
a& Premeditate" /uantity of thought. - must form intent to kill, and have chance to
reflect on it.
b& *eliberate" /uality of thought. - must make a deliberate choice to kill which
re/uires rational thought.
i& $herefore, +oluntary into/i!ation or diminis"ed !apa!ity may disable the ability to
think rationally and prevent proof of deliberation.
.f the murderer does any reflection or premeditation, even if the reflection is cursory and brief, he
may be guilty of firstJdegree murder. 3ome jurisdictions re/uire little or nothing more than intent to
kill in order to find premeditation and deliberationJ basically collapsing distinction between
premeditated deliberated and intentional killings, like the time it takes to decide to pull a trigger.
9ost jurisdictions re/uire the jury to find that premeditation occurred after the intent to kill was
formed, which means proof of some reflection to distinguish firstJdegree murder from spur of the
moment killings.
EXAMPLE: Kerry walked into the ice cream shop and told Ben he1d just
=scored> with Ben1s new girlfriend. Ben, outraged, decided in that split second
to beat Kerry to death and began pounding on Kerry1s head with an ice cream
scoop. Kerry dies as a result of the beating. Ben could be considered to have
committed firstJdegree murder because he made decision to kill.
2& 9urder may also be defined to include other additional elements that elevate 2nd degree
murder to 1st degree. ?ommon examples include felonyJmurder, especially when felony
is listed in felonyJmurder statute5 murder accomplished by lying in wait5 murder by poison5
murder by terrorism5 murder by torture5 murder of special victim.
!emember, *LL murders re/uire proof of malice. $o distinguish 1st from 2nd degree
murder, just analy,e whether the proof establishes the additionally defined element
%ingredient& that, when added to malice, e/uals 1st degree murder.
'8*9 $.:

'8*9 $.:
'8*9 $.:

'8*9 $.:

%b& 'e!ond>degree murder
1& 3econdJdegree murder is any killing with malice, but without the additional element to
prove first degree murder. .n a jurisdiction that defines first degree murder as
premeditation and deliberation, any murder without purpose to kill is secondJdegree
murder.
2. @oluntary Manslaug"ter
a. 6oluntary manslaughter is an intentional killing mitigated by ade/uate provocation or other
circumstances negating malice. ?ommonly called heat of passion killing.
3udden )eat of :assion strips or =erases> malice off of the intent to kill, and because malice is the
essential ingredient for murder, the intentional killing wit"out malice # manslaughter.
b. Ade)uate pro+o!ation: $o trigger a sudden heat of passion, defendant must be ade/uately provoked.
$his is measured objectively"
%1& ?ourts will commonly find that a defendant was ade/uately provoked when he killed while in a
sudden heat of passion after he was the victim of a serious battery or a threat of a deadly force,
where she found her spouse engaged in sexual conduct with another person, or where he observes
the serious physical injury of a close family member.
%a& 9ere words are not enough" +here a defendant kills after an exchange of =mere words,”
%2& * causal connection must exist. *sk whether the intent to kill the result of sudden heat of passionH
EXAMPLE: * hit man finds his wife in bed with the person he is charged to kill, and shoots him.
'ven though a reasonable person would be provoked, he was not, so this is not voluntary
manslaughter.
%C& $he killing must occur while the rage is hot"
%a& .f a person actually cools off, despite the fact that even a reasonable person might not have, it
is murder and not voluntary manslaughter.
c. Bther mitigating circumstances that strip malice off of intent to kill and reduce what is murder to
manslaughter"
%1& -iminished mental capacity @ 9ental disturbance short of insanity to reduce murder to
manslaughter.
%2& .mperfect self defense @ )onest but unreasonable judgment of necessity to use deadly force in selfJ
defense will erase malice.
C. In+oluntary Manslaug"ter ( An unintentional #illing resulting from un:ustifiable ris# !reation i.e.
re!#lessness or gross negligen!e t"at is not suffi!iently e/treme to rise to t"e le+el of implied mali!e.
+hen the defendant did not intend to kill or expect his conduct would cause death, but causes
death as the result of an unjustified risk creation, the crime will normally be manslaughter. $o rise
to the level of murder, the risk creation %recklessness or gross negligence& must be so extreme
that it indicates a wanton disregard for human life.
a. In+oluntary Manslaug"ter re/uires proof that the defendant1s conduct creates an unjustifiable risk of
death or injury to others.
%1& .f the - is subjectively aware of the risk and ignores it, that is recklessness.
%2& .f the - was unaware of risk, but reasonable person would have been aware, then that is
negligence. $o be criminal, the deviation from reasonableness has to be gross.
%C& $he degree of that risk, however, has no precise, objective measure. .t is more than mere ordinary
negligence.
%a& 'xamples of activities that may be deemed criminal negligence are the mishandling of loaded
weapons or dangerous operation of a motor vehicle, including driving while intoxicated, or shaking a
'8*9 $.:

'8*9 $.:

baby so violently that it causes death.
b. Misdemeanor manslaug"ter: *n unintentional killing that occurs during the commission or attempted
commission of a misdemeanor, which is malum in se %evil in and of itself& or of a felony which is not of the
inherently dangerous type re/uired for felonyJmurder is classified as involuntary manslaughter under the soJ
called misdemeanorJmanslaughter rule.
*EA58 A' A& EXPEC5E* O45COME
O3 *E3E&*A&56' CO&*4C5:
58I&K M4%*E%$
58E& LOOK 3O% A& E%A'E%
*EA58 A' A& 4&EXPEC5E* O45COME O3
*E3E&*A&56' 4&<4'5I3IE* %I'K C%EA5IO&:
58I&K MA&'LA4.85E%$
58E& LOOK 3O% A& E'CALA5O%
Common law
Murder: implied mali!e
!eckless %knew risk and ignored& or negligent %should
have known risk&
?onduct, plus
'vidence proving a wanton disregard for "uman life
%evidence proves - a!ted wit" a bla!#=malignant
"eart&
7elony murder
9alice implied from malum in se conduct"
B*!!; crime causes death
9urder" unlawful killing I58 malice
'xpress malice"
.ntent to killpurpose or #nowledge
.ntent to inflict grievous bodily harm
-'G!'' 9G!-'!"
An e/press mali!e murder$ PL4'
:remeditation and deliberation, B!
:roof murder falls into statutory category of 1st degree
!emember +oluntary into/ may erase : I -
6oluntary manslaughter"
* presumpti+e murder *O&.%A*E* because
mali!e is erased by"
:rovocation producing sudden "eat of passion
-iminshed mental capacity
.nvoluntary manslaughter"
Gnlawful killing I58O45 malice
* killing resulting from re!#less conduct that does not
manifest a wanton disregard for the value of human life
* killing that results from !riminal=!ulpable negligent
!ondu!t %gross negligence&
2. Assault and 2attery
1. *ssault and battery were common law misdemeanors. )owever, modern statutes have created aggravated
forms of assault and battery, which are felonies.
2. 2attery
a. ?riminal battery is" intentional or reckless or criminally negligent unlawful application of force to the
victim.
b. ?riminal battery is a general intent crime established by proof of the following"
%1& - unlawfully applies force to victim5
%2& - does so intentionally, recklessly or as a result of criminal negligence5
%C& +ith no legal justification or excuse.
EXAMPLE" .f Kohn tells his attack bull to charge at a visitor, Kohn may be guilty of battery even
though he did not personally touch the visitor.
c. .n most jurisdictions, certain circumstances cause a simple battery %misdemeanor battery& to be elevated to
an aggra+ated battery. 9ost commonly, these circumstances include"
%1& - causing serious bodily injury
%2& - uses a deadly weapon to commit the battery
%C& - batters a special category of victim i.e. a child, woman, police officer.
d. *efenses
%1& 6alid consent is always a defense to battery but it is not a defense to breach of peace.
%2& 3elfJdefense and defense of others are valid defense to battery so long as defendant uses
proportional force
%C& :revention of crime so long as defendant uses proportional force
)F:B$)'$.?*L
$he Bugs did a final concert on the rooftop of Brange !ecords, their studio in downtown Big ?ity. Kohn :aul 3tar, bass
player for the Bugs, sees hundreds of fans gather in the streets below. )e then throws a beer bottle off the roof after
taking a swig between tunes. $he bottle hit and injured Bystander listening on the street below. .s 3tar criminally liable
for batteryH
Fes, because he saw the people down below, and was subjectively aware that throwing a bottle might cause unlawful
and offensive touching, and did it anyway. .f it seriously hurt someone, he may be liable for aggravated battery in a
jurisdiction that recogni,es it.
C. Assault
a. *n assault is an incomplete battery. $here are two types of assault"
%1& * failed attempted battery
%a& 3o long as defendant intended to commit the battery, it is no defense that the victim was not
aware of the assault or the - was not able to complete the battery.
%2& 7ear of battery assault @ - does not attempt to commit battery but instead put victim in fear of
immediate battery.
%a& 7or a =fear of battery> assault, the defendant must act with threatening conduct intended to
cause reasonable apprehension of imminent harm in the victim. * conditional threat is
generally insufficient, unless accompanied by an overt act to accomplish the threat. 9ere
words are insufficient.
EXAMPLE: -efendant who says, =.f you don1t pay me back, . will hit you> has probably not
committed an assault. .f he raises his fist in conjunction with this threat, -efendant has
committed a fear assault.
.f the defendant never intended to actually consummate the battery, the assault must be
proved by the fear theory, which re/uires the victim be aware of the threatened battery.
%b& 7or =fear of battery> assault, the defendant must put the victim in reasonable apprehension of
a battery.
1& %easonable Appre"ension
a& +hen a reasonable person would not expect imminent bodily harm, there is no
criminal assault. $hat1s why words are not enough
b& $he element of =apprehension> in this type of assault connotes expectation and not necessarily
fear of harm or pain.
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$he victim does not have to actually be afraid but rather to simply %and reasonably&
anticipate or expect that the defendant1s act%s& will result in immediate bodily harm.
0ote that in this type of assault %unlike attempted battery assault& the fear or apprehension piece is a key
element, so no assault has been committed where the victim is unaware of the threat of harm.
%c& *ny threatened contact, including one that is offensive or insulting, is sufficient to constitute an
apprehension assault. 0o need for actual pain or injury threatened.
b. * simple assault may rise to the level of an aggra+ated felony assault under certain circumstances.
9ost commonly, the circumstances include"
%1& $he defendant commits an assault with a dangerous weapon5
%2& $he defendant acts with the intent to rape or murder the victim5 or
%C& $he victim is specially protected by the statute.
)F:B$)'$.?*L
-uring a rock concert, defendant !ock 3tar kicks his foot toward the audience intending to kick 7an and prevent her from
coming on stage. 7an looks down, and just at the moment 3tar1s foot moved toward her, loses her balance and falls before
3tar1s foot can strike her. )as 3tar committed an assaultH
Fes. )e intended to kick her so it is a failed battery attempt which does not re/uire the intending victim to be aware
of the intended battery or apprehensive of harm for it to be assault.
C. May"em
1. $he felony of mayhem at common law re/uired an intent to maim or do bodily injury accompanied by an act
that either dismembered the victim B! disabled the use of the victim1s body part useful for fighting
2. .n modern law, statutes have expanded the scope of mayhem to include permanent disfigurement.
C. .n jurisdictions that do not retain the crime of mayhem, this offense will normally /ualify as an aggravated
battery. EXAMPLE: Bob intended to disfigure 'mily, and slashed her in the face with a ra,or. $his is mayhem
in modern jurisdictions.
'8*9 $.:

RECAP QUESTIONS
Before returning from your break, please take three minutes and answer the following /uestions. $ry to answer these
/uestions without looking at your Bar 0otes. .f you must go back to your notes, try rewriting the answer in your own words.
$his exercise will help improve your memory retention of these concepts.
1. -efine depraved heart murder. -epraved heart murder is unlawful killing that results from extreme risk creation that
manifests wanton disregard for human life.
2. 'xplain what constitutes the =right type> of felony for felony murder and list the felonies that almost always satisfy
the re/uirements. $he felony must be listed in murder statute or be independently and inherently dangerous.
B*!!;
C. -istinguish between first and secondJdegree murder. .n most jurisdictions, first degree murder is :(-.
D. -efine voluntary and involuntary manslaughter. 6oluntary manslaughter is intentional killing downgraded due to
removal of malice that could happen through heat of passion. .nvoluntary manslaughter is unintentional killing
without malice due to recklessness and negligence, which does not manifest wanton disregard for human life.
E. -efine criminal battery and the two types of assault. ?riminal battery is intentional, reckless or negligent unlawful
use of force. $wo types of assault are failed attempted battery and fear of battery assault.
*. 3alse Imprisonment
1. 7alse imprisonment is the !onfinement of one person by another where"
a. $he confinement is intentional and against the law. .f - is privileged to confine victim, such as a cop or
citi,en1s arrest, there is no false imprisonment.
b. $he victim must be fully confined. Blocking one exit and not another does not lead to false imprisonment.
EXAMPLE: *fter discovering -iane cheating on him with another man, Kack left -iane in the bedroom,
locked the door behind him, and said through the locked door, =.f you beg, . may let you out for
breakfast.> $he bedroom was on the first floor and there were windows to the outside that were open.
$hough Kack intended to lock his wife in the room, the availability of other exits indicates he is not guilty
of false imprisonment. )ad this been a third floor bedroom, he would be guilty.
E. Kidnapping
1. *t common law, kidnapping consisted of"
a. *n unlawful
b. !estraint of a person1s liberty
c. By force or show of force
d. 3o as to send the victim into another country.
2. Gnder modern law, it usually suffices that the victim be taken to another location or concealed.
C. *ll jurisdictions re/uire some movement of the victim %asportation&. .f the victim is restrained but is not
moved to some other location, it is not kidnapping.
)F:B$)'$.?*L
-efendant sees a young lady walking on the side of the road. )e offers her a ride, and she accepts. -efendant then
drives to an abandoned building. $he victim, reali,ing defendant is not driving her home, becomes frightened and
demands to be let out of the car. -efendant tells her to =shut up> and threatens to hurt her if she tries to exit the car.
+hen they arrive at the abandoned building, defendant sexually assaults the victim in the car and then lets her out.
)as defendant committed kidnappingH
Fes. $here was unlawful restraint of the victim by force and threat of force, and the victim was taken to another
location.
3. %ape: *t common law, rape was carnal knowledge of a woman, not the wife of the accused, against her will and
by force or threat of force.
1. $he original common law crime of rape had three essential elements"
a. carnal knowledge %vaginal sexual penetration of the victim by the defendant&5
b. against the victim1s will %without the consent of the victim&5
c. by force or threat of force %the victim1s submission was achieved by the use of force or by a threat of
imminent harm&.
%1& *t common law, a man could not rape his wife. 0o longer law.
%2& *t common law, a man could not rape his wife. ?hanged in many states.
2. Gnder the traditional common law approach" force or threat of force was re/uired for rape to occur. .f there
was no threat of force or force, connected to the submission, the proof failed to establish the intercourse was
against the victim1s will, even if the victim said no.
a. *s a result, in order to prove the re/uisite lack of consent, the victim either had to resist =to the best of
her ability>, or explain the lack of resistance because of the force or the threat used by the defendant.
b. Gnder the traditional approach, mistake of fact as to consent was almost never a defense, because the
proof of force or threat of force established defendant knew the victim was not consenting.
C. $he modern trend is to eliminate the implied resistance re/uirement and focus on objective evidence of the
victim1s lack of consent.
a. Gnder the modern approach, the force of sexual penetration is sufficient to satisfy the force element of
rape.
b. .f the jury determines that a reasonable person in the defendant1s situation would have known the
victim1s lack of consent, the evidence proves rape.
c. Gnder the modern approach, mistake of fact can be a defense because there is no re/uirement to prove
extrinsic force %which establishes defendant1s knowledge of lack of consent&.
%1& )owever, the mistake of consent must be both honest and reasonable.
d. ?onsent is determined objectively from the observable circumstances. * victim1s subjective lack of
consent will not suffice if the objective circumstances suggest that the defendant was unaware of the
victim1s lack of consent.
D. Bther nonJconsensual sexual contact is generally covered under separate crime such as sexual assault,
sexual battery or indecent acts.
E. 3tatutory !ape. +here a female is under the statutorily prescribed age of consent %usually 1L&" intercourse
constitutes rape, even if victim expressed her consent, or the - mistakenly believed she was of legal age.
* victim under the statutorily defined age is legally incapable of giving valid consent, so no
matter how =reasonable> the belief of consent might be, it is no defense to statutory rape.
.. Ot"er Crimes Against t"e Person
1. 2igamy is the crime of marriage by one individual to more than one other person.
a. Bigamy is a strict liability offense, re/uiring no mens rea.
b. .t is no defense that the defendant did not know about the other marriage.
2. In!est is the crime of sexual relations between individuals who are closely related to one another. $he degree
of relationship re/uired varies by state.
'8*9 $.:

BAR EXAM APPLICATION
Question 1
-efendant wanted to be on the travel team for his high school football team. )e was a senior who had lettered all three
previous years but a change in coach and knee injury had put him in a position of possibly not making the travel team,
and he feared that this would hurt his chances of obtaining a college scholarship. )e decided to injure one of the
sophomore players, because they had two more years to play and their future opportunities would not be as seriously
impacted by an injury. *fter practice, he waited in the locker room and, when the last player was in the shower, rushed
in and slashed him several times with a straight ra,or. Gnfortunately, during the slashing he accidentally cut the victim1s
jugular vein. -espite -efendant1s efforts to obtain help, the victim bled to death.
-efendant will most likely be guilty of
*& 1st degree murder.
29 And degree murder.
?& voluntary manslaughter.
-& involuntary manslaughter.
BAR EXAM APPLICATION
Question 2
-efendant is convinced his neighbor is having an affair with his wife, although he has no hard proof, and his wife has
denied the accusation. Because of this, -efendant hates his neighbor. -efendant decides he is going to kill his neighbor
in a garage parking lot when he leaves his office on 7riday night. Bn 9onday, -efendant buys a gun and goes to check
where the neighbor parks his car in the garage. Bn 7riday afternoon, -efendant goes to a pub near the office garage
and becomes intoxicated. )e leaves the pub around the time he expects the neighbor to be leaving work and walks to
the garage. *fter he enters the garage, he turns a corner and is surprised to see the neighbor walking right towards him.
$he neighbor says, =+hat are you doing hereH> -efendant then takes out the pistol and shoots the neighbor in the chest
twice. $he neighbor dies.
-efendant will most likely be guilty of
A9 Bst degree murder.
B& 2nd degree murder.
?& voluntary manslaughter.
-& involuntary manslaughter.
III. CRIMES AGAINST PROPERTY
A. 5"eft Crimes
1. 5"eft !rimes are crimes that involve some taking of property from the victim by the defendant. $he key to
analy,ing theft crimes is to examine three criteria"
a. )ow the defendant obtained the property" trespass, delivery, or trick5
b. +hether the defendant ac/uired custody, possession, or title to the property5 and
c. +hether the defendant formed the intent to permanently deprive %steal& the property at some time while
still in unlawful possession of the property.
.ntent to permanently deprive %or steal& is the sine qua non of all theft offenses. .f defendant never
forms the intent to permanently deprive before the property is restored the rightful possessor,
defendant cannot be guilty of any form of theft offense.
2. .eneral 3ramewor#
a. Larceny is the crime of unlawful taking of property in someone else1s possession with the intent to steal.
b. 'mbe,,lement is the crime of unlawful conversion of property in defendant1s possession with the intent
to steal.
c. $heft by false pretenses is the crime of obtaining title to the property owned by someone else through a
fraud.
d. Larceny by trick is the crime of" obtaining possession but not title through a fraud with the intent to steal.
C. 3orms of Control
a. $itle # legal ownership, and implies possession.
b. :ossession # full dominion and control over the property, but does not re/uire title.
'8*9 $.:

c. ?ustody # physical control of property in someone else1s possession without full dominion over the
property@the possessor places strict limits on permissible use of the property.
2. Lar!eny
1. *t common law, larceny was defined as"
a. trespassory taking.
?onverting custody to possession # trespassory taking5 converting possession to ownership
%stealing something you lawfully possess& cannot be a trespassory taking.
b. and carrying away
c. of the tangible personal property
d. of another
e. with the intent to permanently deprive or steal the property
'8*9 $.:

LA%CE&C
2C 5AKI&.
LA%CE&C
2C 5%ICK
EM2EDDLEME&5
3AL'E
P%E5E&'E'
Custody=Posse
ssion=5itle
$respassory taking @
converting custody to
possession
Gain possession
by fraud
Lawful possession but
unlawful conversion
Gnlawful transfer of
title prior to possession
ctus !eus
$respass
$aking and
carrying away
.nducement
of possession
by fraud
?onversion
Bbtain %lawful&
possession
7raudulent
conversion
7alse pretense
or representation
Bbtain title
"ens !ea
.ntent to permanently deprive %see also sale, reward, refund& .ntent to defraud
*efenses
Genuinely believe it is your property, abandoned, claim of right %even
if unreasonable&, i. '., Fou are not depriving someone else of their
property
but may not allow use of force to take property possessed by another
0o material reliance on
false representation
&otes
Lost property"
reasonable basis for
finding the true
owner
wrongful intent when
property found5
focus on the
rational inference
drawn from the
nature of the
finding
?ontinuing trespass
resolves the problem of
the lack of concurrence
between taking and
intent and the time of
the trespass.
7raud vitiates consent Generally re/uires
element of entrustment
:erson defrauded must
have relied on the false
pretense
%1& Larceny, re/uires that the specific intent to permanently deprive accompany the trespassory taking.
$he intent to keep, destroy, or hold property for ransom will suffice to prove this element.
%a& Gnder the doctrine of =!ontinuing trespass,> a trespassory taking =continues> for the duration
of the possession. $herefore, if the defendant takes property unlawfully intending at the time of
the taking only to use it temporarily, but later decides to permanently deprive the owner of the
property, this doctrine establishes concurrence between the unlawful taking and the re/uisite
intent to steal.
EXAMPLE: -efendant takes a car intending to just use it for a =joyride> and then return it. *fter
taking it, a friend offers to buy the car from -efendant. -efendant sells the car. +hen
-efendant decides to sell the car instead of returning it, larceny is established.
%b& Larceny re/uires the specific intent to permanently deprive. $herefore -1s honest, mistaken
belief, negates intent to steal no matter how unreasonable the belief is.
0B$'

!emember, it is impossible to intend to steal something you honestly believe is yours, no matter
how unreasonable that belief might be.
%c& +here a defendant recklessly exposes property to loss or deals with property in a manner
involving a substantial risk of loss" the intent to permanently deprive is satisfied.
%2& .f, at the time of taking, the defendant intends" to return the property to the victim, unconditionally
and within a reasonable time, there is no intent to steal
%a& - must have ability to return the property even if something unforeseeable stops the return.
%C& !eturning the property does not conclusively establish the absence of the intent to steal. 3o long as
the defendant intended to permanently deprive at the time of the taking or any time prior to the
return, he is still guilty of larceny.
!emember, giving the property back does not erase a prior intent to steal.
%D& *bandoning stolen property" with the hoping that it would returned to rightful owner, constitutes
larceny.
%E& .f a defendant pawns the property# he can negate the intent to steal element, if he intends to later
redeem the pawn check.
%L& .f the defendant intends to replace or pay for the property at a later time" this can also negate intent
to permanently deprive.
)F:B$)'$.?*L
Lorena took her car to +illy1s repair shop for repair work. +illy gave Lorena an estimate of O2,<<< for the work.
?oncerned about Lorena1s ability to pay for the work, +illy explained to her that state law provides him with a
mechanic1s lien, which means he obtains a possessory interest in the car until his bill is paid. *fter the work was
completed, Lorena could not come up with the money to pay the bill, so she used an extra key to drive the car from
+illy1s parking late one night without paying for the O2,<<< worth of repairs. .s Lorena guilty of larcenyH
Larceny is unlawful carrying away of property in another1s possession w4 intent to permanently deprive. ;ey fact here
is that Lorena knew that the mechanic1s lien gave +illy a possessory interest in her car. 3he took property from his
possession with intent to deprive, which is larceny. .f she did not know what mechanic1s lien meant, then she could
have asserted a defense that she honestly believed it was her property she could take it back, no matter how
unreasonable.
C. EmbeEElement is t"e !rime of abuse of entrustment. $he unlawful conversion of property entrusted to the
defendant with the intent to permanently deprive.
1. 'mbe,,lement is a statutory crime defined as"
a. unlawful conversion or misappropriation
b. of the tangible property of another
c. by one who is already in lawful possession of the property
%1& ?onversion means transforming possession of someone else1s property to your own. ?onversion is
established by some action toward the property, which seriously interferes with the rights of owner
%a& selling, consuming, pledging, donating, discarding, heavily damaging or claiming title to the
property
'8*9 $.:
'8*9 $.:
%b& slight movement or limited use would not suffice to seriously interfere with rights of owner
%2& $he specific fraudulent intent to steal may be negated by the defendant1s honest belief in right to
property B! by intent to restore the exact property %not substitute&.
%a& * defendant who converts property but intends to later substitute it for e/uivalent property is
guilty of embe,,lement.
*. %obbery
1. !obbery is larceny accomplished by force or threat of force.
a. $here must be" a trespassory taking of personal property with intent to steal.
%1& *n honest mistaken belief of right negates the intent to steal, and would therefore also negate
robbery.
b. $he taking must be from" the person or presence of the victim
c. $he taking must be accomplished by" force or threat of force that places the victim in actual fear at time
of taking
%1& $his element will be satisfied by slight force, but it must be more than what is re/uired to just move
the property.
%2& $he use of force must be" contemporaneous with the taking.
)F:B$)'$.?*L
3arah, an elderly woman, is walking down the street carrying her pocketbook and some grocery bags. * man
bumps into her, then apologi,es. 3arah continues home5 upon arriving there, she finds that she has her grocery
bags but does not have her pocketbook. .f the man who bumped into her stole her pocketbook, is he guilty of
robberyH Bf larcenyH
0o, because the taking of property was not accomplished by force or threat of force that put victim in fear of taking.
!ather, the amount of force used was slight and only what was re/uired to move the property. )e is guilty of
larceny.
E. Obtaining Property by 3alse Pretenses %-efendant obtains legal title to the property by a fraud and then moves
it&
1. $he statutory crime of obtaining property by false pretenses consists of"
a. * false representation of a present or past material fact by the defendant
b. +hich causes the victim to pass title to his property
c. $o the defendant
d. +ho knows it is false
e. *nd intends thereby to defraud.
EXAMPLE: $erry tells a car dealer that she paid for a car, and is there to pick up the keys. $he dealer
signs over the title to $erry, who got title by false pretenses.
!emember, if you own property before you move it, there is no trespassory taking and it cannot be
larceny.
'8*9 $.:

3. Lar!eny by 5ri!#: -efendant tricks the possessor into giving him possession %not title& through a fraudulent
misrepresentation.
1. Larceny by trick is form of larceny where - obtains possession but not title to the personal property of another
by means of a false representation.
2. Because title does not pass until a check clears" tricking the owner to deliver property by writing false check is
larceny by trick.
a. 9ost jurisdictions also have a specific crime of making or uttering a false check to address this
misconduct.
)F:B$)'$.?*L
Lola asks her friend Geena if she can borrow her diamond earrings to wear to the prom. Geena agrees. +hen Lola
received do,ens of compliments on the earrings at the prom that night, she decided to keep them and to tell Geena
she lost them. .s Lola guilty of larceny by trickH 'mbe,,lementH +hat if Lola lied to Geena and told her she was going
to have the earrings cleaned, and Geena gave them to her for that purpose. +ould it matter if Lola intended to steal
them at that time, or if she instead decided to steal them only after receiving the complimentsH
.t is not larceny by trick because Geena voluntarily gave Lola the earrings. $he earrings were in her possession and
she converted them for her own use. Gse of entrustment is embe,,lement.
.f she lies to Geena to get possession, then the possession is invalid. .t is false consent and thus, a trespassory
taking. .f she intended to steal them when she received them, then it is larceny by trick. .f she decides to keep them
later though, the doctrine of continuing trespass kicks in. because she lied to get them, it is trespassory taking and if
she forms intent to steal that would be larceny.
.. E/tortion
1. 'xtortion, commonly called blackmail, is" obtaining property of another by use of threats of future harm to
victim or his property.
a. !emember, obtaining property by threat of present harm is most likely robbery.
2. 3ome statutes consider the crime complete upon" threat is made. Bthers re/uire victim actually party with
property.
8. %e!ei+ing 'tolen Property
1. !eceiving stolen property was a common law misdemeanor.
a. $he receiving of stolen property
b. ;nown by the defendant to be stolen
c. +ith intent to permanently deprive the owner.
I. 3orgery
1. 7orgery is defined as fraudulent making of a false writing with apparent legal significant and the intent to
make wrongful use of the document.
a. *n alteration must be material %change the legal meaning or effect of the document& to /ualify the action
as an element of forgery, such as signing a false signature to a will.
<. Crimes Against t"e 8abitation
1. 2urglary
a. -efinition"
%1& $he brea#ing and entering of t"e dwelling of anot"er at nig"t wit" intent to !ommit felony
t"erein.
%a& $his element typically re/uired" some use of force to create an open. *t common law,
extending an open door or window was not breaking in.
%b& $oday, most burglary statutes have either relaxed the =breaking> element to include even the
slightest enlargement of an existing opening and some have even deleted the breaking
element altogether.
%c& ?onstructive Breaking" if a - gains entry by fraud, deception, or threat of force, this satisfies
the breaking element.
%2& *nd entering
%a& Breaking to exit" rather than enter is not burglary.
%b& 'ntry is achieved by" placing any portion of the body inside the structure.
1& *t common law" use of a tool for the purposes of entering was insufficient.
%c& $oday use of tool is considering entering in all jurisdictions.
%C& Bf the dwelling "ouse of anot"er
%a& *t common law" this meant a home where people lived whether or not occupied at time of
entry. 3tructures on the curtilage included i.e. toolshed, garage
%b& 9odern statues" include almost any structure whether or not it is a dwelling
%D& *t nig"t
%a& 9odern statutes" dispense with this re/uirement.
%E& +ith the intent to !ommit a felony t"erein.
%a& Burglary re/uires that the breaking and entering be accompanied by" a simultaneous felonious
intent.
1& )owever, it is possible to =break> into a room once inside a structure, and doing so with
intent to commit a felony in the room is burglary.
2. Arson
a. *t common law, a malicious act that creates a considerable risk of the burning of the dwelling of another.
b. 9odern statutes like burglary have fre/uently dispensed with the dwelling re/uirement.
BAR EXAM APPLICATION
Question C
Bill recently moved into new house in a development of =track> homes where all the homes look very similar. Bne night
after work he stops at the local pub for a beer. +hen he sees an old friend he decides to stay for a few hours sharing
stories about the =glory days.> Bill has about D beers, and at midnight they decide to leave. Bill can1t find his keys, so the
friend offers to drive him home. Bill is a bit confused in the dark trying to find his home, but then says, =that1s it, leave me
here.> Bill goes to the front door but it is locked. )e then goes around back and enters through an unlocked door. Bill
immediately reali,es he is in the wrong house, and turns to leave. *s he does, he sees an i:ad on a table near the
door. Bill takes the i:ad and leaves. Bill is subse/uently arrested and brought to trial. $he jury concludes Bill was not
intoxicated, but that he honestly believed it was his house when he entered through the back door, although that belief
was unreasonable under the circumstances.
+hat is the likely outcome of Bill1s trialH
*& Guilty of burglary and larceny
29 &ot guilty of burglary$ but guilty of lar!eny
?& 0ot guilty of larceny, but guilty of burglary
-& 0ot guilty of burglary or larceny
BAR EXAM APPLICATION
Question D
Baker, a 0ew ;ent resident and BlympicJclass archer, would often stop joggers in the park, point his arrow at them and
demand that they hand over certain valuable items, later giving those items to a local thrift store to help the poor
residents of the city. LongJtime residents of 0ew ;ent were wellJac/uainted with Baker1s activities and were normally
happy to hand over the re/uested items in anticipation of a fine meal.
*l, a new resident of 0ew ;ent, was jogging in the park when Baker pointed his bow at *l and said, =Give me your
sunglasses or . will shoot you with my arrow.> 7earing for his life, *l gave Baker his sunglasses, whereupon Baker said,
=thanks, . will bring these to the thrift shop and when they are sold . am sure someone less fortunate will be very
grateful.>
?an Baker be found guilty of robberyH
*& 0o, because Baker intended to donate the sunglasses to charity.
B& 0o, Baker never really intended to harm *l.
C9 Ces$ be!ause 2ar#er obtained t"e sunglasses by pla!ing Al in fear for "is life.
-& 0o, because most of the residents in 0ew ;ent were happy to give Baker their property.
IV. INCHOATE CRIMES
A. In!"oate Crimes: =.ncomplete> crimes. *ll inchoate offenses re/uire the same mens rea" $he specific intent,
which in this case means the purpose to commit another offense.
1. 'oli!itation: $he crime of trying to get someone else to commit your crime@the key is" communication
2. Attempt: $he crime of =almost> committing a crime@key is" evidence that - crossed the line from preparation
to perpetration
C. Conspira!y: $he crime of planning to commit crime with someone else@the key is" evidence that - crossed
the line from thinking about the crime to preparing the crime.
2. 'oli!itation
1. 3olicitation" 'nticing, advising, inciting, inducing, urging, or otherwise encouraging another to commit a target
offense %another crime&.
a. *t original common law, solicitation was a misdemeanor and crime solicited had to be a felony or breach
of the peace.
b. *lmost all modern jurisdictions define solicitation broadly to include re/uesting anther to commit any
offense, including misdemeanors
2. $he solicitor must intend %have the purpose&" that the solicitee perform the criminal acts. 9ere approval of the
criminal acts is not enough.
C. $he offense is complete at the time" the solicitation is made
a. Bnce the solicitation is communicated" the solicitor cannot withdraw from solicitation
D. $here is no re/uirement that the solicitee commit target offense.
a. )owever" if the solicitee does commit the target offense, or attempts to commit the target offense, the
solicitation merges into the offense, and the solicitor is charged with the target crime.
)F:B$)'$.?*L
*nnie, talking aloud to herself in the movie theater, says, =. can1t hear the movie. . wish someone
would take out that blonde in the front row.> Bruce overhears *nnie and kills the blonde. +ill *nnie
be charged as an accomplice to murder because she solicited the crimeH
0o, solicitation re/uires more than mere encouragement @ it re/uires an intent or purpose to solicit
another to commit the crime. *nnie did not intend to solicit anyone to actually commit the crime.
C. Attempt
1. $he crime of attempt consists of two elements"
a. * specific intent or purpose to bring about a criminal result
b. 3ignificant, overt act in furtherance of that intent that proves that - went past preparation and began
perpetration.
EXAMPLE: * missed gunshot can be considered attempted murder, even though no one is injured.
2. $he specific intent %purpose& for attempt is"
EXAMPLE: * and B attack ?. * intends to kill ?, but B intends only to seriously injure him. .f ? does not
die, then only * can be convicted of attempted murder. 'ven in a jurisdiction that recogni,es murder
based on a mens rea, which itself does not re/uire specific intent to kill %e.g., murder based on intent to
seriously injure&, to be guilty of attempted murder, one still must have a specific intent to kill . * is guilty of
attempted murder5 B is guilty of aggravated assault because cannot prove B acted with purpose to kill ?.
C. 3everal approaches are used to determine what constitutes a sufficient overt act that proves - began
perpetration and has therefore committed an attempt.
a. $he strict !ommon law re/uirement" - was re/uired to perform the last act necessary
b. MPC 'tandard: $oday, acts prior to the last act are often sufficient to prove attempt as long as the act is
a substantial step that indicates a purpose to actually complete the attempt.
c. 9any jurisdictions apply a ,pro/imity- test" )ow close in time and physical distance a - was to the time
and place the crime was to be committed
d. 3ome jurisdictions use an ,e)ui+o!ality- test, which re/uires that the defendant1s" conduct
une/uivocally indicates that he was going to complete the target offense.
EXAMPLE: *t common law, -efendant would have to pull the trigger to be guilty of attempted murder.
$oday, loading bullets while located in proximity to the intended victim with a clear line of sight would
likely be sufficient.
D. *efenses
a. Abandonment
%1& *t common law" - could not abandon at an attempt once line was crossed from preparation to
perpetration.
%2& Gnder the 9:?" a +oluntary and complete abandonment can be raised as a defense.
b. Legal impossibility: Fou cannot be guilty of attempting to do something that is not a crime just because
you believed it was a crime.
%1& Legal impossibility is a defense to attempt and involves the situation where the defendant thought he
was committing a crime, but his acts did not constitute a crime.
EXAMPLE: * visitor from Germany goes to 9c-onalds on her first day in the G.3. .n Germany,
customers must pay for =9c;etchup>. Believing the same is true in the G.3., the visitor sees
;etchup sitting out on a counter and decides to take some without paying for it. 'ven though the
visitor believes she is stealing ketchup, she cannot be convicted of attempted larceny because it is
not a crime to take ketchup in a G.3. 9c-onalds.
c. 3a!tual impossibility: .f defendant would have committed the target offense had the facts %except the
mistaken belief that the conduct is illegal& been as she believed them to be, defendant is guilty of
attempt.
EXAMPLE: -efendant, believing his pistol is working, points it at 6 and pulls the trigger intending to kill 6.
Because the pistol is defective and jams, it was factually impossible for -efendant to commit the offense of
murder. -efendant is still guilty of attempted murder.
*. Conspira!y
1. * conspiracy is"
a. an agreement to create an unlawful criminal combination between two or more persons
b. with the intent to agree, and the specific intent or purpose to commit the unlawful act
EXAMPLE: Bnce the two people Kerry solicits to kidnap his wife so that he may extort money from
her family agree to do so, a conspiracy has been entered into.
2. Bvert act re/uirement"
a. *t common law" the agreement itself constituted a crime with no re/uirement of overt act
b. 9odern statutes" usually re/uire an overt act in furtherance of the conspiracy.
Be careful to distinguish the overt act for conspiracy from the overt act for attempt.
%1& $he overt act for conspiracy simply proves that the -1s began preparation to commit the crime,
and can be very trivial and far removed from the crime.
%2& $he overt act for attempt proves that the defendant began to commit the crime, and must indicate
that defendant went beyond the point of preparation and began perpetration.
EXAMPLE: .n the example above, Kerry giving the kidnapper keys to a car in payment would be
enough to /ualify as an overt act for conspiracy, but would be insufficient to convict for an
attempted kidnapping.
C. ?oJconspirator liability and the :inkerton -octrine
a. 'ach coJconspirator is liable for the crimes of all the other coJconspirators where the crimes were both"
%1& a foreseeable conse/uence of the conspiracy
%2& committed in furtherance of the conspiratorial goal
D. +hen assessing coJconspirator liability, the nature of the agreement determines whether the defendant is
connected to other coJconspirators.
a. .n a ,!"ain- relations"ip" where several crimes are committed under one large scheme where each
member either explicitly or implicitly knows the other parties participating in the activity.
EXAMPLE: .n a drug distribution conspiracy, each member of the distribution effort is connected
implicitly by a chain to the other. $herefore, all participants are liable for any crime that was a
foreseeable outgrowth of the conspiracy and committed in furtherance of the conspiracy.
b. * =w"eel>and>spo#e- relations"ip" where one common member, the wheel, enters into agreements wit
commit series of crimes with multiple people. $here are multiple conspiracies originating from one spoke.
$hese are not connected to one another unlike organi,ed crime.
E. Pro!edural Issues
'8*9 $.:
a. *t common law, where there are only two conspirators, an ac/uittal of one coJconspirator re/uired" an
ac/uittal of a single remaining conspirator because needed two guilty parties to prove conspiracy.
b. 9ost modern jurisdictions %9:?& recogni,e =unilateral !onspira!y,> which" prevents conviction of a
single party who feigned agreement or is ac/uitted.
c. $he "arton %ule: .f the target offense re/uires two or more people as a necessary element for
commission" their agreement to commit the offense cannot be a conspiracy.
EXAMPLE: -ueling re/uires proof of an agreement to engage in private combat. .f * and B engage in a
duel, they are guilty of the crime of dueling but not of conspiracy to duel. .f a third party encourages *
and B to duel, then all three parties can be convicted of conspiracy to duel.
L. *efenses
a. *t common law and 9:?, a complete and voluntary wit"drawal" from the conspiracy, severs the
withdrawing defendant from future crimes of the former coJconspirators. But withdrawal is not a defense
to the conspiracy itself. *lso, withdrawal re/uires timely notice to all coJconspirators.
b. $he 9:? recogni,es the additional defense of =renun!iation>" if the coJconspirator withdraws and
performs an affirmative act to thwart the success of the conspiracy, he can sue this renunciation as an
affirmative defense to the conspiracy itself.
)F:B$)'$.?*L
Bn 9onday, Bscar, 7ernando, and 9arco enter into an agreement to rob the +ells 7argo bank on the following
7riday. Bn +ednesday, Bscar gets =cold feet> and tells 7ernando and 9arco that he is withdrawing from the plan.
7riday morning, Bscar is so worried that his friends are still going to rob the bank that he calls the police and tips them
off to the plan. Bn 7riday, 7ernando and 9arco %without Bscar1s involvement& commit the bank robbery. :olice are
waiting, and during the course of the robbery, 7ernando shoots and kills a police officer. +hat is Bscar1s liability in a
common law jurisdictionH +hat about 9:?H
*t common law, his withdrawal severs his liability for future crimes %shooting the police officer& but it does not act as
a defense to the conspiracy. Guilty of conspiracy but not charged with conspiracy murder. Gnder the 9:?, his
withdrawal severs liability for future crimes and tipping the police officer, /ualifies as renunciation of the conspiracy,
which is an affirmative defense to the conspiracy.
V. PARTIES TO CRIME
A. A!!ompli!e" *n accomplice is charged as if he was the principal %the person by whose hand the crime is
committed&. *ccomplice liability is not an offense" it is a method of linking the accomplice to a crime committed by
someone else1s hand.
1. *n individual is criminally liable as an a!!ompli!e if" he does some act or omission with a legal duty that
facilitates the principle1s commission of the crime or attempt, including encouragement.
a. )e does some act %or omission with a duty to act& that"
%1& 0o causation re/uirement" $he act of facilitation may be trivial and there is no re/uirement to prove
it was essential to bringing about the crime.
b. +ith the purpose to" bring about commission of the crime.
%1& .n a minority of modern statutes, accomplice liability may be established when the provider of goods
or services has knowledge that he is assisting commission of a crime and benefits from the
transaction, such where a seller, knowing of the buyer1s intent to commit arson, sells him an
explosive device.
EXAMPLE: Kohn is in a bank when three armed robbers come in and announce, =everyone get
down, this is a robberyR> Kohn turns to his friend and says, =. wonder if they reali,e there are
surveillance cameras on the ceilingH> * robber hears this, looks on the ceiling and sees the
camera, and shoots it. Kohn may have done something that facilitated the commission of the
robbery, but he did not act with the purpose of doing so. $herefore, he is not an accomplice.
EXAMPLE: $om, -ick, and )arry decide to burglari,e a home. $om is the getaway driver, -ick is
the lookout, and )arry will go into the home to steal jewelry. )arry enters the home while -ick acts
as the lookout. )arry exits with the jewelry and they all drive away. 0o one else is in the area so
-ick never has to alert anyone. $om and -ick are both guilty of burglary as accomplices. $hey both
did some act to facilitate commission of the crime with the purpose to do so. .t does not matter that
)arry could have committed the crime without their assistance.
2. '!ope of A!!ompli!e Liability: *n accomplice is liable for the crime he purposefully facilitated, and for all
other crimes committed by the principal that are" reasonably foreseeable outgrowths of the primary crime
a. 7oreseeability is" an objective test. $herefore, it is no defense that the accomplice did not expect the
principal to commit the secondary offense.
EXAMPLE: .n the example above, if )arry killed the homeowner, $om and -ick are both responsible as
accomplices for the burglary %primary offense& and for murder %secondary offense& because it is
foreseeable that a burglar may engage in violence if confronted by the homeowner. .t does not matter if
$om and -ick did not expect )arry to use violence.
C. *efenses
a. *t common law" an accomplice could withdraw by giving principal timely notice and nullifying the effect of
prior act of facilitation. But withdrawal only cuts off future liability.
b. $he 9:? re/uires the accomplice do one of three things"
%1& !ender his prior assistance to the perpetrator completely ineffective5
%2& :rovide the police with a timely warning of the perpetrator1s plan5 or
%C& 9ake a proper effort to prevent the perpetrator from committing the crime.
2. Common Law Pleading 5erms" $he common law used specific terms for specific categories of accomplices. *ll
were guilty as if they actually committed the crime.
1. Prin!ipal in t"e 3irst *egree" $he trigger puller@the perpetrator who performs the criminal act with the
re/uisite mental state.
2. Prin!ipal in t"e 'e!ond *egree" one who aids or abets and is present at the scene of the offense %e.g., a
getaway car driver who waits outside during a bank robbery&.
a. !emember" mere presence or knowledge without assistance or assistance without intent is not enough
C. A!!essory 2efore t"e 3a!t" is one who aids or abets but is not present at the scene.
D. A!!essory After t"e 3a!t: Bne who aids or abets a principal after commission of the crime. $his re/uires
proof of"
a. a completed felony must have been committed5
b. the accessory must have known of the commission of the felony5 and
c. the accessory must have personally given aid to the felon to hinder the felon1s apprehension, conviction
or punishment.
EXAMPLE: )arry1s wife knows he is going to burglari,e a home. +hen he gets home, he tells her things
went bad and he had to shoot the homeowner. +hen police come to the home looking for )arry, his wife
lies and tells them he is not home. )arry1s wife is an accessory after the fact and can now be charged
with burglary and murder.
d. .n all modern :urisdi!tions, one who meets the re/uirements to be a common law accessory after the
fact is charged with a distinct crime, such as hindering apprehension or obstruction of justice, not with
the crimes committed by the principal.
VI. DEFENSES
A. *efense fall under two broad !ategories:
1. <ustifi!ation *efenses: * justification establishes that what is normally unlawful was not unlawful under the
particular facts of the case, and thereby nullifies the =reus> of crime %unlawfulness&. Kustifications include selfJ
defense, defense of others, defense of property, and necessity.
*ll justification defenses turn on one ultimate /uestion" +as it truly necessary for the defendant to take the law into
her own hands and commit an act that is normally unlawfulH
2. E/!use *efenses: *n excuse =forgives> the defendant for committing an unjustified crime because of some
disturbance of the defendant1s mental process, and thereby nullifies the culpability for the crime.
a. 'xcuses include insanity, involuntary intoxication, and duress.
*ll excuses turn on one ultimate /uestion" +as defendant1s mental process overwhelmed to the
point that it is unfair to hold him accountable for the crimeH
2. 5"e E/!use of La!# of Mental %esponsibility
1. Insanity: .f the defendant is legally insane at the time of his criminal act, no criminal liability will be imposed.
3our tests for insanity are followed in various jurisdictions.
a. $he M6&ag"ten test, which focuses on the defendant1s reasoning abilities.
%1& Gnder this test, a defendant is relieved of criminal responsibility upon proof that at the time of
commission of the act"
%a& )e suffered from a severe mental disease or defect
%b& *s a result, he was unable to know
1& the nature or /uality of his act5 or
2& that he is incapable of knowing that what he was doing was wrong
%2& 3ome jurisdictions will find that a defendant is not insane where, even though the defendant
believes the act was not morally wrong, he knows it to be illegal. Bthers will find defendants who do
not know an act was morally wrong to be insane regardless of their belief as to the act1s legality.
EXAMPLE: -efendant kills a police officer who pulls him over for a traffic violation. :sychiatric
evidence establishes that at the time of the killing -efendant suffered from severe schi,ophrenia
and that as a result he was convinced the police officer was a 9artian sent to earth to kill the
defendant and everyone else in the community. -efendant is considered insane and excused under
910aghten test.
b. $he ,irresistible impulse- test" -efendant will be found not guilty where" as the result of a severe
mental disease or defect, he is incapable of controlling the impulse to commit a crime, even when he
knows what he is doing and he knows he is wrong.
EXAMPLE: -efendant has an intense urge to kill the :resident in order to impress an actress. .f -efendant
'8*9 $.:

'8*9 $.:

was acting under an irresistible impulse, -efendant is considered insane under the irresistible impulse test,
even if he knew what he was doing was wrong.
c. Model Penal Code 5est: $he 9:? modifies traditional insanity tests in two ways"
%1& .t =softens> the M6&ag"ten ,in!apable of #nowing- standard re/uiring" a finding of substantial
capacity.
%a& .t is typically easier to establish 9:? insanity because" it does not re/uire total or absolute
loss of cognitive loss or volition.
%2& .t combines the M6&ag"ten ,!ogniti+e- test %appreciate the criminality %wrongfulness& of his
conduct& and the irresistible impulse =volition> test %conform his conduct to the re/uirements of law&.
d. Gnder the *ur"am %or &ew 8amps"ire& %ule, also known as the =product> rule" Gnder the -uraham
rule, is not criminal responsible if his unlawful act was the product of mental disease or defect.
)F:B$)'$.?*L
*ndrea Fates drowns her five children in a bathtub. :sychiatric evidence establishes that at the time of she killed her
children, she had a delusional belief that doing so was the only way to protect them from the fate of being condemned
to hell. *s a result, her mental disease or defect rendered her incapable of appreciating that killing the children was
wrongful. +ill she be ac/uitted by reason of insanityH )ow would the test be different in a 9:? jurisdictionH
3he has cognitive failure under 91naughten and 9:?, because she didn1t understand her actions were wrong. Gnder
common law, jury has to conclude that she was totally incapable of understanding wrongfulness of her conduct.
)owever, under 9:?, only re/uires substantial incapacity to understand wrongfulness of conduct so she would be
ac/uitted.
2. Into/i!ation
a. .nvoluntary intoxication %whether brought about by alcohol or by narcotic drugs&, is a defense to any
crime re/uiring proof of mens rea, so long as it negates the mens rea.
!emember, +oluntary intoxication is not a complete defense, but may reduce a defendant1s
level of culpability by negating a re/uisite specific intent element, like intent to steal or
premeditation and deliberation.
EXAMPLE: -efendant voluntarily drank himself silly, then punched a student. .f -efendant is charged
with simple battery, his voluntary intoxication is no defense because there is no re/uirement to prove
specific intent. .f, however, -efendant is charged with Battery with .ntent to .nflict Grievous Bodily )arm,
his voluntary intoxication may be raised to nullify his ability to form that specific intent element.
C. *uress
a. $he defense of duress excuses criminal conduct where the defendant" reasonably believes that the only
way to avoid unlawful threats of grievous bodily harm or imminent death is to engage in unlawful
conduct.
%1& -uress almost always involves a threat by a human, rather than by natural forces.
b. -uress is not a defense to murder, unless" defendant is charged with felony murder.
C. <ustifi!ation *efenses
1. 'elf>*efense: *n honest and reasonable judgment that it is necessary to use force to defend against an
unlawful, imminent threat of bodily harm"
'8*9 $.:

a. - is victim of unlawful threat
b. - is in imminent danger of unlawful bodily harm
c. - uses proportional force, no more than reasonably necessary.
2. 8omi!idal self>defense %deadly force&"
a. -eadly force is permitted only" in response to an imminent threat of death or grievous bodily injury.
b. $he first aggressor may not claim selfJdefense because the first aggression results in =unclean hands.>
%1& At !ommon law, an aggressor could" regain t"e rig"t of self>defense only by !omplete
wit"drawal.
%2& Modern :urisdi!tions restore the aggressor to the right of selfJdefense %cleans his hands& if" the
first victim responds to aggressor with unreasonable or excessive force.
EXAMPLE: *be takes a swing at Bob in a bar. Bob responds by pulling out a gun and aiming it at *be.
.n modern jurisdictions, *be1s right of selfJdefense is now restored, and he is legally justified in swinging
his butcher knife at Bob to prevent being shot.
c. 5"e %etreat %ule
%1& *t common law, a victim of unlawful violence had a duty to =retreat to the wall> %i.e., to run away&
before resort to homicidal selfJdefense was considered truly necessary.
%2& *pproximately CE states have eliminated this retreat re/uirement and allow any victim of unlawful
imminent threat of death or grievous bodily harm to =stand his ground.>
%C& 'ven in states that retain the =retreat rule>, retreat is not re/uired when"
%a& - is in his own home, auto or office %?astle exception&
%b& - does not need to retreat if it is not a feasible option.
SELF DEFENSE
NECESSITY
Honest and reasonable
%through eyes of -7&
Subecti!e"obecti!e standard
%through eyes of -7&
M#C $ariance"
if you are the aggressor %dirty hands&
and the other person responds
with excessive force, that protects you,
restores your clean hands,
and allows you to protect yourself
Castle Doctrine"
:erson1s home is most protected and private5
?L says if threatened in home there1s no retreat
your turf, defend it %gives you necessity argument&5
includes area immediately surrounding your home
Clean hands defense %CL&"
when -7 creates the situation,
can1t use this5
then he1s the aggressor,
so no self defense
IMMINENT"
about to happen
'ET'E(T
#')#)'TI)N(TE"
just enough force to
accomplish the purpose
%to defeat the threat&
M#C $ariance"
$hreat has to be
immediately apparent
for you to use force
C. *efense of a 5"ird Person
a. .s justified when the threat of imminent death or grievous bodily harm.
%1& $he ma:ority rule" -id the defendant make a reasonable judgment that the person protected was
the victim of unlawful violence. .f the third person is also the aggressor or a felon resisting lawful
arrest" and the - reasonably but mistakenly uses force to protect the first aggressor, then the - still
gets to claim the defense of others.
%2& $he minority rule" $he defendant =steps into the shoes> of the person protected. $his is called the
alterJego rule.
$herefore, if the person protected was the first aggressor, or failed to retreat when re/uired by law, the
defendant has no defense, even if he had no idea the person defendant had no individual right to claim
selfJdefense.
D. *efense of Property
a. !easonable non>deadly for!e is justified in defending one1s property from theft, destruction, or trespass
where"
%1& $he - has a reasonable belief that the property is in immediate danger
%2& 0o greater force than is necessary is used
b. *eadly for!e may ne+er be used merely to defend property.
%1& $rap guns or mechanical devices that cause death or grievous bodily harm are per se excessive
and unlawful.
%2& !emember, however" deadly force may be used that the threat to property involves threat to life.
E. &e!essity
a. 0ecessity is a general defense that justifies the commission of what is normally a crime when"
%1& .t is necessary to avoid an immediate threat of greater harm to persons or property.
%2& $here is no reasonable alternative to breaking the law to avoid the greater harm.
%C& - is not responsible for causing the harm.
b. *t common law, necessity was never a defense to murder, unless" it is raised as a defense to an
underlying felony for felony murder.
9:?" 0o limitation on claiming necessity.
EXAMPLE: * pilot of a commercial passenger plane with numerous passengers would likely be permitted
to raise the defense of necessity in a 9:? jurisdiction to crash landing her disabled plane on a highway,
knowing it will kill several motorists, because it is the only way to save the lives of the passengers.
BAR EXAM APPLICATION
Question E
Barney1s Books, the local bookstore, occasionally held =free book> days where Barney would place several books on
marked tables. $hese books were free with the purchase of another book at the regular price. *l entered Barney1s
Books on a =free book> day. *l asked where the free books were, and Barney directed him to the nearby tables. )e saw
a book on one of the marked tables and proceeded to take the book without paying for another book at the regular
price. +hen *l was caught he screamed. =. thought the book was free>. $he jury found that *l honestly but
unreasonably believed the book was free for the taking. *l is charged with larceny.
*l should be found
*& guilty because his belief was unreasonable.
B& guilty because a mistake of fact is only a defense to general intent crimes.
?& not guilty because Barney directed *l to the free book table.
*9 not guilty be!ause "is belief was "onest.
BAR EXAM APPLICATION
Question L
6ic is out drinking and decides that it would be inadvisable to drive home. )e has a boat at the local marina and decides
to stay on board. )owever in his drunken condition he picks the wrong boat. +hen he cannot get the door to the cabin
open he just breaks a small window and unlocks the door manually. )e eats some food out of the cabinet and passes
out in the bedroom.
.n the morning Koe, who owns the boat, gets on board, goes to the bridge and starts his boat. 6ic thinking someone is
stealing his boat runs up to the bridge and takes a punch at Koe. Koe, startled, pushes 6ic away. 6ic falls overboard and
drowns.
.f Koe is charged in the death of 6ic, which will be his most effective defenseH
A9 'elf *efense.
B& -efense of :roperty.
?& )is action was not the proximate cause of 6ic1s death.
-& )is action was not the actual cause of 6ic1s death.
RECAP QUESTIONS
1. List and define the inchoate crimes and the re/uisite mens rea.
2. 'xplain the four different approaches to determine what constitutes a sufficient =overt act> for the crime of attempt.
C. List and explain three defenses to an attempt crime.
D. -istinguish an =overt act> for purposes of a conspiracy as compared to an attempt crime.
E. +hat are the defenses to a conspiracy chargeH
L. +hen is an individual criminally liable as an accomplice and what defenses may be assertedH
M. List and explain the four tests for the insanity defense.
N. +hen can a defendant act in defense of his self or others and what type of force is appropriateH

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