Disclaimer: This outline does not contain every issue in the class.

The rules and application are from my understanding. If

the rules or the application is inconsistent with your professor or your notes, go with the professor’s application of the law.

Criminal Law Mentor Outline

Assault
An assault is an unlawful attempt coupled with a present ability to commit a violent injury on the person of another.
An assault may be found by (1) failed battery attempt; or (2) placing another in imminent fear of apprehension.

a. Failed battery attempted

i. Requires
1. Specific intent to commit battery
2. Substantial attempt towards batter
3. Actual ability to commit battery
 
b. Imminent fear of apprehension
i. Requires
1. Specific intent to create fear
2. Substantial threat of force is present
3. Actual apprehension in victim, need not be fear.
 
Burglary
The trespassory breaking and entering of the dwelling of another in the nighttime with the intent to commit a felony therein
(or a theft crime) therein.
Modernly: no night, breaking, or dwelling of another elements need to be met
 
1. Trespassory is without consent or unlawful.
a. Fraud vitiates consent (i.e. pretending to be a cable guy to gain consent to enter)
 
2. Breaking is the creation of an aperture, however slight.
a. Slightest force needed, must be created by the Defendant, just nudging a door will suffice.
1. Constructive breaking: when the breaking is effectuated through fraud, conspiracy through a
servant, or threat of force
2. Inner breaking –i.e. opening a door to a room when another door was open is still a breaking
 
3. Entering occurs when the D's body crosses the plane (threshold) of the dwelling.
a. Entry must follow breaking
i. Could be different nights (breaking and entering) but must be same location.
Note: Breaking during daytime and entry at night time doesn’t equal burglary.
b. Instrumentality Rule: If an instrument is used to effectuate the actual breaking. (i.e. using pole or cane to
reach in and grabs something)
 
4. Dwelling of another
a. Curtilage is the immediate or enclosed area surrounding the dwelling. Anything within the curtilage will
constitute part of the dwelling.
b. Example: garage, backyard shed (shed must be large enough for an adult to stand inside)
c. Note: Breaking into the curtilage is not a breaking, must be the structure.
 
5. Night is defined as one our past sunset, and one hour before sunrise. Some jurisdictions state where a face cannot
be recognized.
 
6. Intent to commit of a felony or theft crime therein. The intent must be formulated prior to the breaking and entering
and not once inside the dwelling.
a. Note: Do not just assume it is to steal something – it can be for any felony so keep in mind MRSBARK.
b. Example: D going into someone’s house to kidnap, rob, burn a house, rape, etc.
 
 
Battery
Battery is the unlawful application of force to the person of another.
1. Unlawful - must be intentional touching, not accidental (an accident would be a tort)
Daryoush Zolfaghari
Disclaimer: This outline does not contain every issue in the class. The rules and application are from my understanding. If
the rules or the application is inconsistent with your professor or your notes, go with the professor’s application of the law.

a. Transferred intent applies

b. Note: jumping out of the way of a motorcycle and injuring yourself - could be a battery through substantial
certainty that the injury would occur.
2. Force
a. Application of force can be serious or the slightest touching.
b. Force can be direct application (i.e. hitting someone or using an instrument) or indirect application (i.e. setting
a trap).
c. Force does not have to be physical (i.e. releasing a gas)
3. Of another
 
Mayhem
Mayhem is where the defendant maliciously maims, dismembers, disfigures, or permanently disable the V causing
permanent disability. The injury must be permanent (example: cut off ear, but surgeon reattaches the ear and there is a
scare - mayhem because of the scar)
 
Rape
The unlawful act of sexual intercourse by a male with a female without consent.
 
1. Four Elements:
a. Unlawful act (Forcible compulsion)
i. Physical force: throws you down, pins you
ii. Psychological force: "If you don’t have sex with me, I'll send you back to jail."
b. Sexual intercourse: Not necessary for D to reach emission; All that is required is the slightest penetration
i. Common law: penetration must be vaginal, not mouth or anal
c. Female (common law): Must be a female other than the D wife.
i. Modernly, some states allow rape of wife by husband and homosexual rape.
d. Without consent: Consent does not require the affirmative giving of consent.
i. Lack of consent equates to against her will.
 
2. Can there be rape with consent? - Yes, 4 "I's"
a. Insensibility: where the woman is incapable of giving consent because of intoxication, drugs, or
unconsciousness
b. Imposture (fraud ): Two types:
i. Fraud in the fact (is rape)- where the woman is unaware she is having sex, she believes something else
is happening (ex: medical procedure)
ii. Fraud in the inducement (is NOT rape) - woman is fully aware she is having sexual intercourse but she
is deceived about the circumstances (example: a promise for marriage for sex or a promise to pay for
sex and doesn’t pay)
c. Infancy: Two categories:
Defendant:
1. Common law: under 14 years old = not capable of rape
2. Modernly : under 7, there is a conclusive presumption not capable of rap; between 7-14, there is
a rebuttal presumption (can get an expert witness to show he was capable)
Victim:
1. Common law: 10 = 10 statutory rape
2. Statutory: 16-21; but most states are 18 for statutory rape
d. Insanity: woman who is insane is incapable of giving consent.
 
3. Is Resistance Required? No
 Subjective Test: must be real fear in the victim’s mind
 Objective Test: Is the fear reasonable for the reasonable person
 Example: Threat to a husband or child is sufficient (not to a relative --- this would not be
sufficient)
 
Kidnapping
The unlawful confinement of another accompanied by either a moving of the victim (asportation) or a secreting (hiding) of
the victim.The asportation must not be incidental to some other offense.
 
Daryoush Zolfaghari
Disclaimer: This outline does not contain every issue in the class. The rules and application are from my understanding. If
the rules or the application is inconsistent with your professor or your notes, go with the professor’s application of the law.

Example: Defendant robs a bank, tells the teller to move up against the wall- that is not asportation; raping a woman
from one room to another is kidnapping because the rape can be committed in the initial room- the move was not
necessary).
 
Arson
Arson is the (1) malicious (2) burning of the (3) dwelling of another. Modernly, any structure.
 
1. Malice: can be shown by (i) a specific intent to burn the house or (ii) willful wanton conduct
2. Burning: The slightest ignition of charring of fiber.
a. Smoke without fire is not sufficient
b. Do not need to be total destruction, or even substantial damage
c. Must be of the structure - a charred couch will not be sufficient
3. Dwelling of another
 
Larceny
Trespassory taking and carrying away of personal property of another with the intent to steal (animus furandi) or to
permanently deprive.
 
1. Trespassory
Trespassory is without consent of the possessor.
 
a. If there is no consent to begin with, you have trespassory and can move on to the other elements. However, if
you have consent (meaning the property was given to the defendant) then you must see if larceny by trick or
larceny by continuous trespass exists.
 
b. Larceny by trick: Where the taking is consensual, however, done by fraud which vitiates consent
("consensual + intent to steal").
i. Example: D intents to steal V's bike. He asks if he can use his bike for an hour and then sells it. Even
though there was consent, it was done by fraud so there is trespassory.
 
c. Larceny by continuous trespass: Where there is no intent to steal at time of taking, however, the intent to
steal is formulated later.
i. Example: Taking your friend's bike without consent, intending to return it but deciding to keep it later.
 
2. Taking
Taking is acquisition of dominion and control.
 
3. Carrying away
Carrying away is asportration (any slight movement) of the property.
 
4. Personal Property
Personal property must be tangible; not real property.
 
a. Difference between personal vs. real property
i. Apple that is taken off a tree is not personal property
ii. Apple that falls off a tree and taken from ground is personal property
 
5. Of another
The property taken must be property belonging to another
a. Someone can be guilty of larceny of their own personal property where someone else has a "greater
possessory interest" in the personal property.
b. Example: D takes his car to the mechanic. The mechanic fixes the car. D takes his car back without paying. D
can be guilty of larceny even since "of another" belongs to the mechanic since he has a greater possessory
interest - meaning he needs to get paid.
 
6. Intent to steal
The intent to steal must be to permanently deprive the possessor of his personal property.
a. There must be an intent to steal or deprive at some point.
Daryoush Zolfaghari
Disclaimer: This outline does not contain every issue in the class. The rules and application are from my understanding. If
the rules or the application is inconsistent with your professor or your notes, go with the professor’s application of the law.

b. Temporary deprive is not sufficient (borrowing).

c. Serious Risk of Loss (even temporary) is sufficient to meet the intent to permanently deprive. Meaning where
it is "unlikely" for the owner to recover. Note: Difficulty does not mean risk of loss - has to be unlikely.
i. Example: Stealing a car and leaving it in a bad neighborhood with the keys in it.
 
Robbery
Robbery is larceny from one's person (or in his immediate presence) by force or fear.
 
1. Larceny elements: trespassory, taking, carrying away, personal property, of another, intent to permanently deprive
 
2. One's person
The personal property must be taken from the person or immediate presence of the victim. T
a. Close objects - objects in immediate presence close enough for the V to prevent the wrongful taking.
 
3. Force or Fear
The force or fear must be used to effectuate the asportation of the property.
a. Only the slightest force is necessary; but it is the slightest force in addition to the asportration requirement of
larceny.
b. The force that is applied to the person, not the property
c. Force or fear is used to effectuate the asportration
d. Threat of force is sufficient if it is of immediate injury - not future harm.
i. Note: Future harm may be extortion.
e. Causal connection - meaning it must be for the purpose of capturing and asportration.
i. If no causal connection (taking and force) then it is simply a larceny and a separate battery (example:
hitting V, V passes out, D comes back and decides to take his wallet).
f. Incapacitating - if someone incapacitates someone (i.e. drugs someone) to take something - that suffices as
force.
 
 
Receiving Stolen Property
Receiving stolen property knowing it to be stolen and with intent to deprive the owner.
 
1. Receive - assuming possession and control
2. Stolen property - Items must in fact be stolen
3. With knowledge that it to be stolen
a. Knowledge can be where a reasonable person should know or knows the items to be stolen.
i. Example: buying speakers out of a truck in back of alley for $20)
b. Must know at the time it was stolen or could be stolen
4. Intent to deprive - doesn't have to deprive specific / original owner (i.e. Best Buy) but just deprive some owner.
 
 
Embezzlement
The fraudulent conversion of the personal property of another by one who is already in lawful possession of it.
 
Elements
1. Fraudulent- the improper
2. Conversion of - requires serious act of interference to owner's rights; not mere act of moving (as in larceny)
3. Personal Property
4. Of another
5. One who is already in lawful possession
a. Note: Difference between possession vs. custody (Example: manager vs. stock room guy - the manager
counts the money in the resister so he is in lawful possession of it. If the stock room guy takes the money, it is
not embezzlement because he is not in lawful possession just because he works there - it's larceny)
 
Malicious Mischief
Malicious injury to property of anther.
1. Malicious: specific intent or willful wanton conduct
2. Injury: substantial damage (ex: burning a couch)
Daryoush Zolfaghari
Disclaimer: This outline does not contain every issue in the class. The rules and application are from my understanding. If
the rules or the application is inconsistent with your professor or your notes, go with the professor’s application of the law.

3. Property of another: real or personal property

 
Forgery
The fraudulent creation or alteration of a false writing having a parent legal significance.
 
Uttering
Committed when one passes a forged instrument.
 
Example: the cashing of the forged check
 
Counterfeiting
The unlawful making of false money in similitude of the genuine
 
Extortion
The obtaining of property by means of a threat not sufficient to robbery.
 
Note: No present intent- that would be robbery.
 
 
Attempt
A specific intent to commit an act which, if was successful, would be a crime and a perpetrated act done in pursuant of the
intent.
 
1. To prove an attempt to commit a crime, you need to show:
a. Specific intent to commit the crime
i. Recklessness or negligence cannot be committed by recklessness or negligence.
b. Substantial step towards its commission
i. Must be more than mere preparation, needs "dangerous proximity to success.
ii. Buzz words: "Dangerous proximity towards success; substantial step towards success; preparation vs.
perpetration "
c. Failure to consummate its commission
 
2. Impossibility- Would the target offense been successful had it been completed? If Yes= Factual; If No= Legal
 
a. Factual Impossibility is not a defense attempt charge.
i. Rule: Factual impossibility normally exists where despite the act done, the circumstances preclude the
success.
ii. NOT a defense to the charge of attempt.
iii. Examples:
 D tries to poison someone but mistaken poison for non-harmful stuff.
 D buys heroin off a under-cover cop but its sugar.
 
b. Legal Impossibility is a defense to attempt charge.
a.Rule: Legal impossibility normally exists where despite the act done, the actor lacks the legal capacity to
be guilty of the crime intended or doesn’t act as intended.
b.This is when the act if committed would NOT be a crime.
c. Examples:
 D tries to rape someone but turns out its his wife.
 D tries to take a hat but turns out to be his.
 D intends to steal his car from mechanic but it is already paid for.
 
3. Renunciation (aka Abandonment or Withdrawal)
1. Common law: Renunciation from the conspiracy is no defense
2. Modernly: Allowed if it voluntary and prevents the crime ("thwarts crime") AND communicated to others
a. Prevents crime- by contacting police
 
Solicitation

Daryoush Zolfaghari
Disclaimer: This outline does not contain every issue in the class. The rules and application are from my understanding. If
the rules or the application is inconsistent with your professor or your notes, go with the professor’s application of the law.

Requesting, commanding, or enticing another to commit a crime. Modernly, solicitation merges to conspiracy.
 
1. Solicitation requires specific intent.
a. "I want to kill Dan" shows specific intent.
b. "I wish someone would kill Dan" is not solicitation because no specific intent.
 
2. Agreement or Refusal
a. Note: If the solicitee accepts, there is a good chance of conspiracy.
i. The solicitee is not guilty of "solicitation" but possible conspiracy.
ii. Could be guilty of an accessory before the fact or a principle in the second degree.
b. If the solicitee refuses, the solicitor is still guilty of attempt.
 
3. Communication Not Received: Courts are split on whether D can be guilty where D attempts to communicate
criminal activity but the proposal is never received.
a. Common law: D can only be guilty of attempt to solicitation
b. Modernly: D will be liable because D had the "specific intent"
 
4. Renunciation of the solicitation (same as withdrawal or abandonment):
a. Common law: There is no renunciation of your solicitation.
b. Modern: Renunciation is allowed if it is a voluntary renunciation and prevents the crime (example: Contacting
the police to stop the crime)
 
On exam, when you have a conspiracy, always discuss a solicitation where you see someone asking and
another person agreeing or refusing.
 
Conspiracy
An agreement between two or more persons to engage in conduct constituting a crime. Modernly, some jurisdictions
require an overt act in furtherance of the agreement.
 
1. Elements:
a. Agreement
i. Requires specific intent
ii. Tacit agreement is an implied agreement, where the act is sufficient to show an agreement
1. Example: D asks B to help him rob a bank by meeting him at 8 am outside the bank. B does not
agree but he shows up at 8 am. B showing up is sufficient under a tacit agreement.
b. Two or more persons
c. Conduct constituting a crime
d. Modernly: Over act can be mere preparation to the target crime (example: buying rope, a gun, gasoline)
i. Not all conspirators need to do the overt act, just one of them.
 
2. Pinkerton Rule: Once the conspiracy is formed, all conspiring members are guilty of the acts of other members so
long as it is within the scope of the conspiracy.
a. Scope: Natural and foreseeable consequences of the crime
i. Example: Conspire to robbing a bank- it may be foreseeable that someone is killed .
b. Each conspirator does NOT have to know the other conspirators or their roles.
c. Each conspirator does not have to be capable to committing the target crime.
i. Example: Conspiring someone to rape your wife ("can't be guilty of raping your wife")
 
3. Exceptions to Conspiracy
1. Wharton Rule: Crimes that two people cannot be guilty of conspiracy if the target crime actually requires two
people.
a. Example: Adultery, bigamy, dueling, receiving stolen property
2. Feigned Accomplice: A person not in agreement because they lack the guilty mind (specific intent)
a. Example: undercover cop
b. Modernly, you may have a unilateral conspiracy.
 

Daryoush Zolfaghari
Disclaimer: This outline does not contain every issue in the class. The rules and application are from my understanding. If
the rules or the application is inconsistent with your professor or your notes, go with the professor’s application of the law.

On exam, if you see someone trying to get an undercover cop to commit a crime - you discuss solicitation,
then you discuss conspiracy, fail it at common law because of the feigned accomplish rule but do mention that
modernly, courts may find a unilateral conspiracy.
 
3. Acquittal: Where A and B are tried together, if A is acquitted, all courts agree B must be acquitted.
a.Tried Separately: Where A and B are tried separately, the courts are split in B's acquittal.
b.NOT REALLY TESTED IN CRIMINAL LAW EXAM - MORE PROCEDURAL
 
4. Conspiracy is over when the target offense is complete.
 
5. Renunciation (aka Abandonment or Withdrawal)
a. Common law- Renunciation from the conspiracy is no defense
b. Modernly- Allowed if it voluntary and prevents the crime ("thwarts crime") AND communicated to others
a. Prevents crime- by contacting police
 
Parties to a Crime
 
All principles and accessories are treated as far as the conspiracy charge; however the sentencing will differ.
 
1. Principle in the first degree: The perpetrator, or the wrongdoer that actually causes the harm.
Example: the guy that sets the bomb
 
2. Principle in the second degree: Wrongdoer that actually helped but was not directly responsible. At the scene either
aiding, encouraging, commanding or enticing.
Example: the guy that watches out for police while the bomb is being set.
 
3. Accessory before the fact (aka Aiding and Abetting): Wrongdoer that aids, encourages and commands but is not
present at the scene
Example: the one that helped plan for the bomb to be set.
 
4. Accessory after the fact: Aids, comforts or hides perpetrator of the crime after the commission.
Example: After the bomb is set off, the person who lets the wrong doing hide out.
 
Defenses
 
Infancy
1. Under 7 years old: No criminal capacity
2. 7-14 years old: Presumed no criminal capacity but rebuttable by showing malice
3. Over 14 years old: Adult
 
Insanity (M'Naghten Rule)
Because of mental disease, the defendant's reasoning is defective and the mental disease precluded his knowing the
nature and quality of his act or that the act was wrong.
 
Intoxication
1. Voluntary intoxication is not a defense to a crime charged based upon acts committed while intoxicated, however,
will negate crimes that require specific intent.
a. Exception: will not negate if intoxication was done to bolster courage to commit the crime.
b. Minority jurisdiction does not negate specific intent.
2. Involuntary intoxication is a complete defense in that the intoxication prevented the actor from knowing right from
wrong. (example: being drugged)
 
Self Defense
1. Must always have a reasonable belief that the attack is imminent (objective standard)
2. Non Deadly Force: Non aggressor may use non deadly force against aggressor who is using a non-deadly attack.
3. Deadly Force: Non aggressor may use deadly force against aggressor using deadly attack.
4. Imperfect self-defense: Non aggressor has an honest but unreasonable belief that deadly force is imminent.
(subjective)
Daryoush Zolfaghari
Disclaimer: This outline does not contain every issue in the class. The rules and application are from my understanding. If
the rules or the application is inconsistent with your professor or your notes, go with the professor’s application of the law.

 
Defense of Others
See self defense
 
Defense of Property
Non deadly force may cannot be used to protect personal property unless deadly force is being used on defendant. (see
self-defense)
 
 

Daryoush Zolfaghari
Disclaimer: This outline does not contain every issue in the class. The rules and application are from my understanding. If
the rules or the application is inconsistent with your professor or your notes, go with the professor’s application of the law.

Homicide

Homicide
A homicide is the unlawful killing of one human by another human.
 
Murder
Murder is the intentional killing of one human, by another human, with malice aforethought. Malice can be expressed or
implied. Malice can be established though four applications: 1) intent to kill; 2) intent to cause great bodily harm; 3)
depraved heart; and 4) pursuant to the felony murder rule.
 
Classification of Murder - on exam, you must find all that may apply given the facts. Start with the highest and mitigate
down as the defendant will argue out of murder into manslaughter.
 
First Degree Murder
First degree murder can be established by either (1) Premeditation and Deliberation or (2) pursuant to the felony
murder rule (FMR).
 
Premeditation and Deliberation
Premeditation is where the actor formed the requisite intent for a time prior to the actual killing so as to enable
to mind to fully reflect on the intent. Deliberation is the result of careful thought and weighing consideration.
 
Felony Murder Rule
Any death occurring during the perpetration of an inherently dangerous felony.
 MRSBARK- Mayhem, Robbery, Sodomy, Burglary, Arson, Rape, Kidnapping
 Res gestae (perpetration) includes the acts leading up to the crime and the escape. D must reach a
"place of safety" or they are still in perpetration.
 
 
Second Degree Murder
Second degree murder can be established by 1) intent to kill; 2) depraved heart; 3) intent to cause great bodily
injury; 4) pursuant to felony murder rule not dangerous enumerated.
 
Intent to kill
Where one has the intent to kill another without the premeditation and deliberation.
 
Depraved heart
Reckless indifference to the value of human life. Malice is implied by the conduct of the defendant.
Gross negligence + I don’t care attitude = indifference to value of human life.
Example:
 Having 10 beers, friends trying to take keys so you don’t drive, and you drive 100 mph in
residential.
 Shooting into a house that you know is having a party.
 
Intent to cause great bodily injury
Occurs when an individual has no intent to kill but intends to commit an act amounting to great bodily injury.
An act where one believes or should know may result in death.
Example:
 Bar fight where a person beats another person with a glass bottle repeatedly even after
unconscious.
 A bar fight where one punch knocks a person to the ground and he hits his head on the edge of a
table is not sufficient.
 
Felony Murder Rule (rarely tested)
Any death occurring the perpetration of an inherently dangerous felony NOT one enumerated in the first
degree enumeration but actions constitute high probability of death. (Not one of MRSBARK)
Must establish that the conduct is inherently dangerous in the abstract.

Daryoush Zolfaghari
Disclaimer: This outline does not contain every issue in the class. The rules and application are from my understanding. If
the rules or the application is inconsistent with your professor or your notes, go with the professor’s application of the law.

Example
 Selling beer to a 6 year old and he dies is not dangerous in the abstract since selling it to a 30
year old is not dangerous.
 Selling cocaine is not dangerous in the abstract - arguable.
 
 
Manslaughter
Manslaughter is the killing of one human by another without malice aforethought.
 
Two types of manslaughter: 1) voluntary and 2) involuntary
 
Voluntary manslaughter
Voluntary manslaughter is occurs where defendant acted with the 1) intent to kill 2) in a sudden heat of passion in
3) response to a provocation that would be sufficient to cause a reasonable person to lose self-control, 4) where
defendant had not cooled off by the time he kills.
1. Intent to kill can also be transferred intent.
2. Heat of passion
 Subjective test
 Rekindle (Example: Where D knew his wife was cheating for months but when he actually saw it in
person the heat of passion was rekindled.)
 D does not have to be angry.
3. Provocation
 Objective test- would the reasonable person have been provoke to killing.
 Words alone are not sufficient provocation.
 Categories of provocation: illegal arrest, adultery (not mere words), combat, mutual quarrel.
4. Not "cooled off" by the time he kills.
 There is not set amount of time to cool off - argue both sides.
 
Involuntary manslaughter
Involuntary manslaughter is the unintentional killing, without malice, through gross negligence.
 Gross negligence (gross deviation from the norm - "knew or should have known")
 Example: shooting at rocks
 Missing the "I don’t care attitude" in depraved heart 2nd degree
 2nd degree depraved heart and involuntary manslaughter are very similar - facts will lend to both discussions.
Defendant will always try and mitigate down.
 
 
Justifiable Homicide: Justified in the intent to kill
 Self-defense, defense of another, imperfect self-defense
 
Excusable Homicide:
 Car accident- no one's fault?
 Insanity defense, youthfulness,
 
Murder Causation
Proximate cause is the cause which through its natural and foreseeable consequence, unbroken by a sufficient
intervening cause, produces the injury which would not have occurred BUT FOR that cause.
 Apply the "but for test"
 Intervening acts (same as torts)
Examples:
 D shoots V. In surgery, the doctor messes up and V dies. D still liable because it is foreseeable that
surgery can go wrong.
 D shoots V. Ambulance gets into an accident while going to the hospital. D still liable because it is
foreseeable that can happen.
 D shoots V. Ambulance on the way to the hospital is shot at by sniper on a roof and crashes. V dies. D
not liable because superseding intervening act.

Daryoush Zolfaghari
Disclaimer: This outline does not contain every issue in the class. The rules and application are from my understanding. If
the rules or the application is inconsistent with your professor or your notes, go with the professor’s application of the law.

 
Felony Murder Causation
Proximate cause is the cause which through its natural and foreseeable consequence, unbroken by a sufficient
intervening cause, produces the injury which would not have occurred BUT FOR that cause.
 Must be a causal relationship between the death and the felony.
 Apply the "but for test"
 Intervening acts are different depending on the felony:
 
Arson
 If V is inside a building or home when the arson occurs- FMR applies
 Firefighter dies while putting the fire out - FMR applies because it is foreseeable
 Firefighter drives to the fire and killed in an accident - FMR applies because it is foreseeable
 Firefighter drives to the fire but shot by a sniper- NO FMR - not foreseeable
 Passerby running into the fire, who dies would not be foreseeable and is considered an intervening
cause - NO FMR
 
Robbery
 Robber shoots the V, even if it is accidently - FMR applies
 Robber kills bystander accidently - FMR applies - whether he shoots or drives away and runs over a
bystander (even if not driving recklessly) because he was in the Res Gestae (escape) of the felony.
 During the robbery, V or police officer tries to shoot at the D but miss and kill a bystander - Courts are
split if FMR applies
 CA: No FMR if the shot came from anyone but the robber.
 Other jurisdictions - depends if robber fires the first shot.
 If yes - FMR applies
 If not - FMR doesn’t apply
 One felon kills another (partner) during the robbery- courts are split
 Some say FMR applies (foreseeable), some say it doesn’t apply (because it doesn’t extend to the
killing of another felon)
 The V or police officer kills one of the co- robbers, is the other felony liable? - courts are split
 A co -felon kills himself (not necessarily intentional) -courts are split
 
Accomplice Liability Theory of Felon
The issue becomes if one co-felon kills, will the other co-felon be liable under the Felony Murder Rule?
 Accidental Death: All will be liable if it was committed in furtherance to the target crime.
 Example: Robbing a bank, one conspirator shoots and kills a guard- all liable.
 Intentional Act: FMR applies if the killing was in furtherance of the felony; If co felons can show it was
not in furtherance- FMR won't apply.
 Example: Conspiring to break in and steal a bike from a house (burglary), but one co-conspirator
goes up stairs and kills someone.
 
 
Exam Hint: Even if you establish a felony murder, if there are facts to mitigate the defendant down to a lesser
offense, do so even though it will fail if you establish felony murder.
 
 
 
 
 
 
 
 
 
 
 
 

Daryoush Zolfaghari
Disclaimer: This outline does not contain every issue in the class. The rules and application are from my understanding. If
the rules or the application is inconsistent with your professor or your notes, go with the professor’s application of the law.

Daryoush Zolfaghari