CRIMINAL LAW
PROFESSOR KIP CORNWELL
Copyright © 2017 by BARBRI, Inc.
CRIMINAL LAW
Professor Kip Cornwell
Seton Hall University School of Law
I.
INTRODUCTION
A. SOURCES OF LAW FOR THE MULTISTATE BAR EXAMINATION
1.
_____________________________________________________________
2.
_____________________________________________________________
3.
_____________________________________________________________
B. OVERVIEW: CRIMINAL LAW TOPICS
1.
2.
ESSENTIAL ELEMENTS OF CRIMES
a) ___________________________
c) ______________________
b) ___________________________
d) ______________________
SPECIFIC CRIMES
a) ___________________________
3.
PARTIES TO CRIME AND LIABILITY FOR THE CONDUCT OF OTHERS
a) ___________________________
4.
b) ______________________
b) ______________________
INCHOATE (“Incomplete”) OFFENSES
a) __________________________
c)
_____________________
a) __________________________
e)
_____________________
b) __________________________
f)
_____________________
c)
__________________________
g) _____________________
d) __________________________
h) _____________________
b) __________________________
5.
DEFENSES
Copyright © 2017 by BARBRI
2. CRIMINAL LAW - MULTISTATE
C. PRELIMINARY MATTERS
1.
JURISDICTION
A crime may be prosecuted in any state where:
a) an ________ that was part of the crime took place; or
b) the ________________________ took place.
HYPO 1. D, in California, fills out a false insurance claim and mails it to Connecticut. In
which state(s) can D be prosecuted for insurance fraud?
(1) ___________________________, where the _________________ took place; and
(2) ___________________________, where the _________________ took place.
2.
BURDEN OF PROOF
a) Elements of the crime: In a criminal case, the prosecution must prove each
element of the crime ______________________________________________.
(1) Therefore, juries cannot be instructed to _________________________ that
the required mental state for the crime exists if they find that the defendant
committed the acts necessary to establish the offense.
3.
CLASSIFICATION OF CRIMES
a) Felony: A crime that may be punished by _____________ or imprisonment
for more than _______________________.
b) Misdemeanor: A crime punishable by a ___________ and/or imprisonment for
no more than ______________________.
CRIMINAL LAW - MULTISTATE 3.
II.
THE ESSENTIAL ELEMENTS OF CRIME
A. THE ACT REQUIREMENT (“ACTUS REUS”)
 Culpable acts can be either “commissions” (physical acts) or “omissions” (the
failure to act). We will address both.
1.
PHYSICAL ACTS (“COMMISSIONS”)
a) All bodily movements are physical acts that can be the basis for criminal liability,
provided they are _____________________________ .
b) Involuntary movements that are not considered criminal “acts”:
(1) one that is not the product of the actor’s ________________________.
(e.g., being pushed)
(2) _____________________ or otherwise __________________ conduct.
(3) a ____________________ or _________________________________.
2.
“OMISSIONS”: A failure to act can also be the basis for criminal liability, provided
three requirements are satisfied. (Remember: You need all three.)
a) *First and foremost, you need a _____________________________, which can
be created in five different ways:
(1) by _____________________________________
Examples: filing tax returns, professionals reporting child abuse
(2) by _____________________________________
Examples: babysitter, doctor, lifeguard
(3) by the _______________________________between the D and the victim
(4) Most important for the Bar:
(a) ____________________________________
(b) ____________________________________
(5) by the _________________________ assumption of care
Example: If D starts rescuing V, D has a duty to follow through; D cannot
abandon the effort unreasonably, if the rescue effort was undertaken
voluntarily.
(6) by _________________________________________________
Example: If D caused the problem initially, D has a duty to help.
b) Second, you need __________________________ of the facts giving rise to the
duty, and
c)
Third, you need the __________________________________________.
4. CRIMINAL LAW - MULTISTATE
B. MENTAL STATE (“MENS REA”)
1.
COMMON LAW MENTAL STATES: There are four common law mental states.
a) Mental State #1: ________________________________________________
(1) Definition: When the crime requires not just the desire to do the act, but
also the desire to achieve a _____________________________________.
(2) The 11 Specific Intent Crimes:
(a) _______________________________________
(b) __________________________ (statutory crime)
Crimes against
the person
(c) _______________________________________
(d) _______________________________________
(e) _______________________________________
Property crimes
(f) _______________________________________
(g) _______________________________________
(h) _______________________________________
(i) _______________________________________
(j) _______________________________________
Inchoate crimes
(k) _______________________________________
(3) *Defenses: There are two defenses that available only for specific intent
crimes. They are:
(a) _____________________________________________; and
(b) an unreasonable ____________________________________ .
CRIMINAL LAW - MULTISTATE 5.
b) Mental State #2: ________________________________________________
(1) Definition: When a defendant acts _________________________ or with
_____________________________________ of an obvious or known risk.
(2) Malice Crimes:
(a) _________________________
(b) _________________________
c)
Mental State #3: ________________________________________________
(1) Definition: The defendant need only be __________________________
______________________ of the factors constituting the crime; he need
not intend a specific result.
(Note: The jury can usually infer the general intent simply from the doing of
the act.)
(2) General Intent Crimes:
(a) ___________________________________
(b) ___________________________________
(c) ___________________________________
(d) ___________________________________
(All four are crimes against the person.)
d) Mental State #4: ________________________________________
(1) Definition: When the crime requires simply doing the act; no mental state is
needed.
(2) Two Types of Strict Liability Crimes
(a) ____________________________ offenses: Regulatory offenses that
implicate public health or safety and typically carry small penalties.
Examples (italicized elements are strict liability):
(i) transferring unregistered firearms
(ii) Selling contaminated food
(iii) Shipping adulterated drugs in interstate commerce
(b) _________________________________________:
Having sex with someone who is under the age of consent.
6. CRIMINAL LAW - MULTISTATE
2.
MODEL PENAL CODE (MPC) MENTAL STATES: The Model Penal Code no
longer uses the common law mental states; instead, it uses five mental states, defined
as follows:
a) Purpose: The defendant acts purposely when it is his ____________________
________________________ to achieve a particular result. (In other words, that
is what the defendant _______________ to do.)
b) Knowledge: The defendant acts knowingly when he is _____________ of what
he is doing. With respect to a result, the defendant acts knowingly when he is
aware that it is ________________________________________ that his conduct
will cause that result.
c)
Recklessness: The defendant acts recklessly when he is aware of a substantial
and unjustifiable risk, and ____________________________________ that risk.
d) Negligence: The defendant acts negligently when he _____________________
__________________________________ of a substantial and unjustifiable risk.
e)
Strict Liability: No mental state required (similar to the common law).
*Note: Because a number of states have adopted these MPC mental state categories,
you may encounter them in a hypothetical criminal statute on the MBE; thus,
it is useful to be familiar with them.
C. CAUSATION (Two types – You need both.)
1.
ACTUAL (OR “BUT FOR") CAUSATION
a) The Rule: A defendant is an actual cause (the “cause-in-fact”) if the bad result
would not have happened ______________________ the defendant’s conduct.
HYPO 2. Victor is walking quickly down the street when Dudley steps out of a doorway
with a gun and says “Stop right there! This is a stick-up.” Dudley rummages through
Victor’s pockets, takes Victor’s wallet, and runs off. Victor is still standing in the same spot
moments later when he is struck by lightning and killed.
Is Dudley an actual cause of Victor’s death?
_________. “____________________” the stick-up, Victor would not have been standing
in the spot where lightning struck.
CRIMINAL LAW - MULTISTATE 7.
b) Exception: An “accelerating” cause is an actual cause.
HYPO 3. Alex stabs Victor in the abdomen, causing a fatal wound that will kill Victor within
five minutes. One minute later, Dudley walks by and shoots Victor in the head, killing him
instantly.
Is Dudley an actual cause of Victor’s death?
_________. Dudley’s conduct is an _______________________________ cause of Victor’s
death, which qualifies as an actual cause.
2.
PROXIMATE (OR “LEGAL”) CAUSATION
a) The Rule: A defendant is a proximate cause if the bad result is a _____________
and ____________________________ consequence of the defendant’s conduct.
b) Applications:
(1) Intervening causes: D will not be considered a proximate cause if an
_______________________________________ event causes the bad result.
(2) Eggshell Victims: D will be considered a proximate cause even if the
victim’s _____________________________________________contributed
to the bad result.
HYPO 4. Reconsider HYPO 2, where Victor was killed by lightning shortly after being robbed
by Dudley.
Is Dudley a proximate cause of Victor’s death? ______. Being struck by lightning is an
_________________________________________________________event.
Is Dudley criminally liable for Victor’s death? ______. Criminal liability requires BOTH
____________________ and __________________________ causation.
HYPO 5. Dudley shoots Victor, but the wound is not fatal. Victor is taken to the hospital,
where a surgeon operates to remove the bullet. As a result of a blood-clotting disorder, Victor
dies on the operating table, due to excessive blood loss.
Is Dudley a proximate cause of Victor’s death?
___________. It doesn’t matter that Victor’s _______________________________________
contributed to his death.
8. CRIMINAL LAW - MULTISTATE
D. THE CONCURRENCE PRINCIPLE
1.
The Rule: The defendant must have the required ___________________________
at the same time as he engages in the _____________________________________.
2.
Application: Concurrence issues arise most frequently in two crimes:
a) ________________________; and
b) ________________________.
We will see how and why concurrence issues arise when we discuss these crimes
later in the lecture.
III. CRIMES AGAINST THE PERSON: ASSAULT AND BATTERY
A. BATTERY
1.
The _____________________________________
2.
application of ____________________ to another,
3.
resulting in either
a) ___________________________________ or
b) an _________________________________.
4.
Mental State: ___________________________
B. ASSAULT
1.
Version #1: ____________________________ (a swing and a miss)
2.
Version #2 (“reasonable apprehension”):
a) The ___________________________________ creation
b) other than by ___________________________
c)
of a __________________________________ in the mind of the victim
d) of _______________________________ bodily harm (a fake punch).
3.
Mental State: ______________________________________
CRIMINAL LAW - MULTISTATE 9.
IV. CRIMES AGAINST THE PERSON: HOMICIDE
A. THE YEAR-AND-A-DAY RULE
1.
THE MAJORITY RULE: Death may occur at any time.
2.
THE COMMON LAW RULE: Death must occur within a year-and-a-day of the
homicidal act.
B. HOMICIDE CRIMES
1.
MURDER (also called “common law murder”)
a) Definition
(1) the ___________________________ killing
(2) of _____________________________________
(3) with ____________________________________
b) Mental State: The requirement of “malice aforethought” is satisfied if the
defendant has any of the following four mental states:
(1) the intent to _____________________________
Example: Dudley points a gun at Victor, says: “I want to kill you.”
He then shoots and kills Victor.
(2) the intent to inflict ______________________________________
Example: Dudley shoots Victor in the leg, intending only to maim him.
Unfortunately, Victor dies from injuries related to the gunshot wound.
(3) ________________________________________________, meaning
reckless indifference to __________________________________
(Many states call this type of homicide “depraved heart murder.”)
Example: Dudley aims his pistol over Victor’s head and fires, intending to
scare Victor. Unfortunately, the bullet hits Victor’s head, killing him.
(4) the intentional commission of an __________________________________
________________________________ felony (“felony murder”)
Example: Dudley robs a bank. He points a gun at the teller. The gun
accidentally goes off, killing the teller.
10. CRIMINAL LAW - MULTISTATE
c)
“Intent to Kill” Murder: Special Rules
(1) Deadly Weapon Rule: The intentional use of a deadly weapon creates an
inference of an _______________________________________________.
Note: A deadly weapon is typically defined as any instrument used in a
manner likely to produce death or serious bodily injury.
(2) Transferred Intent (An MBE favorite): If a defendant intends to harm one
victim, but accidentally harms a different victim instead, the defendant’s
intent will transfer from the intended victim to the actual victim.
Note: This rule applies most frequently to murder but can also apply to other
crimes, such as battery and arson.
HYPO 6. Dudley shoots at Alex, intending to kill him. Alex ducks, and Dudley’s bullet
instead hits Victor, killing him.
6(a)
Is Dudley guilty of Victor’s murder?
________. The intent to kill Alex ___________________ to Victor.
6(b)
Is Dudley guilty of any crime with respect to Alex?
________, ______________________________ murder because Dudley
__________________ to kill Alex (two victims, so no merger)
(a) The Exception: Transferred intent does not apply to attempts, only to
crimes with “completed harms.”
HYPO 7. Dudley shoots at Alex, intending to kill him. Alex ducks, and Dudley’s bullet
instead hits Victor. Victor is wounded, but does not die.
7(a)
Is Dudley guilty of attempted murder of Alex?
_______. Dudley (still) _________________ to kill Alex.
7(b)
Is Dudley guilty of attempted murder of Victor?
_______. Because Victor did not die, the harm was ______________________
as to him; therefore, the intent to kill Alex does not ______________________ to
Victor.
CRIMINAL LAW - MULTISTATE 11.
(3) Statutory Variation – Degrees of Murder: The homicide statutes of most
states create two degrees of intentional murder, as follows:
(a) First Degree Murder: any intentional killing committed with
(i) _________________________________, and
(D thought about it ahead of time)
(ii) __________________________________ .
(D was cool, calm, and collected)
(b) Second Degree Murder: All other intentional murders (as well as
depraved heart murder and, where it still exists as a separate category of
homicide, intent-to-do-serious-bodily-harm murder)
d) Felony Murder
(1) Definition: _______ killing caused during the commission of or attempt to
commit a felony.
(2) Most common limitations on felony murder:
(a) D must have _____________________the underlying felony.
(If you have a defense to the felony, you have a defense to felony
murder.)
(b) The felony must be ______________________________________.
(A number of states “enumerate” the felonies that qualify for felony
murder. In these states, the most commonly included felonies are
burglary, robbery, rape, arson, and kidnapping.)
(c) The “merger” rule: The felony must be _________________________
of the killing.
(Therefore, for example, aggravated assault or battery cannot be the
underlying crime.)
(d) “Res gestae” principles: The killing must take place _______________
the felony or during _________________________________________
from the felony. Once the felon(s) reach a place of ________________
________________________, the felony ends.
(e) The death must be _________________________________ .
(f) The victim must not be a ___________________________.
12. CRIMINAL LAW - MULTISTATE
(3) Vicarious Liability:
(a) “Proximate Cause” theory: In some states, if one of the co-felons
proximately causes the victim’s death, all of the other co-felons will be
guilty of felony murder, even if the actual killing is committed by a
_____________________________ (e.g., a bystander, a police officer).
(b) “Agency” theory: In other states, however, the felony murder doctrine
applies only if the killing is committed by one of the _______________.
HYPO 8. Dumb and Dumber rob a bank. Dumber sits outside in the getaway car, while Dumb
goes into the bank, points a gun at the teller, and says: “This is a stick up.” In the following
scenarios, indicate who, if anyone, is guilty of felony murder.
8(a)
Dumb’s gun goes off accidentally and kills the teller.
_________________________________
8(b)
A security guard fires his weapon at Dumb, but the bullet strikes and kills the
teller instead.
“Proximate cause” theory: ___________________________
“Agency” theory: ________________ is guilty of felony murder, because the
shooter was not a _________________.
8(c)
The teller gives Dumb a bag of money, and Dumb runs outside and jumps into the
getaway car. As Dumber speeds away, the getaway car collides with a police car
racing to the scene. Both Dumb and the officer are pronounced dead at the scene
from injuries sustained in the accident.
With respect to the officer? Dumber _______ guilty.
With respect to Dumb? Dumber ____________ guilty, because Dumb is a
_______________________.
8(d)
One hour after arriving at their secret hideout, Dumb drives to Starbucks for
coffee. En route, he runs a red light and kills a pedestrian lawfully crossing the
street.
___________ is guilty of felony murder. Once the felons reach a place of
_________________________________________, the felony ends.
CRIMINAL LAW - MULTISTATE 13.
2. VOLUNTARY MANSLAUGHTER
a) Definition:
(1) A killing that would otherwise be ___________________________
(2) committed in the _________________________________________
(3) upon __________________________________________________.
b) Core requirements: To qualify for voluntary manslaughter, the provocation
must satisfy four requirements:
(1) The provocation must be objectively adequate, which means it would arouse
a sudden and intense ____________________________ in the mind of a
reasonable person.
Examples of objectively adequate provocation at common law:
(a) serious ____________________or ____________________
(b) presently witnessed_______________________
(2) The defendant was _______________________________ provoked.
(3) The defendant did not have time to __________________________.
(4) The defendant did not _______________________________________
between the provocation and the killing.
3.
INVOLUNTARY MANSLAUGHTER
a) Two types:
(1) A killing committed during the commission of a _____________________
to which the felony murder doctrine does not apply.
(This is sometimes called “misdemeanor manslaughter” or “unlawful act
manslaughter.”)
(2) An unintentional killing committed:
(a) Common Law: with _______________________________________;
(i.e., a gross deviation from a reasonable standard of care)
(b) MPC/Modern trend: ____________________________.
(i.e., awareness and conscious disregard of a substantial and
unjustifiable risk of death)
14. CRIMINAL LAW - MULTISTATE
V. CRIMES AGAINST THE PERSON: CONFINEMENT OFFENSES AND SEX OFFENSES
A. CONFINEMENT OFFENSES
1.
FALSE IMPRISONMENT
a) Required Acts
(1) The _______________________________
(2) _________________________ of a person
(3) without his or her ___________________.
b) Mental State: ___________________________
2.
KIDNAPPING
a) Required Acts
(1) ___________________________________________________________
(2) that involves either ________________________ the victim or
______________________ the victim in a secret place.
b) Mental State: ____________________________
B. SEX OFFENSES
1.
FORCIBLE RAPE
a) Required Acts
(1) ________________________________________
(2) without the victim’s _______________________
(3) accomplished
(a) by _________________________________________, or
(b) by _________________________________________, or
(c) when the victim is _______________________________________.
b) Mental State: _______________________________
CRIMINAL LAW - MULTISTATE 15.
2.
STATUTORY RAPE
a) Required Acts
(1) ________________________________________________
(2) with someone under the age of ___________________
b) Mental State:
(1) Majority Rule: _______________________________
(2) MPC/Minority Rule: A _________________________ mistake of age is a
defense.
VI. PROPERTY CRIMES: THEFT OFFENSES
A. COMMON LAW THEFT CRIMES
1.
LARCENY
a) Definition:
Mnemonic: “Thieves Took Carmen’s Purse And Isaac’s Portfolio.”
T
TRESPASSORY
T
TAKING and
C
CARRYING AWAY the
P
PERSONAL PROPERTY
A
of ANOTHER, with the
I
INTENT to
P
PERMANENTLY RETAIN the property.
(1) “Trespassory”: _____________________or ______________________
(2) “Taking and Carrying Away”: The property must be _______________.
(the “asportation” requirement)
(3) “the Personal Property of Another”: Key question: Who had
_____________________________________ at the time of the taking?
(a) If D has lawful custody of the property, he cannot be guilty of larceny
for taking it (even if D doesn’t own it).
(b) Conversely, D can be guilty of larceny for taking his own property, if
someone else had lawful custody of the property when D took it.
16. CRIMINAL LAW - MULTISTATE
(4) “With the Intent to Permanently Retain the Property”: If the defendant
intends to give the property back, the taking lacks the _________________
_______________________________ that is necessary for larceny.
b) The Erroneous Takings Rule: A taking under a _________________________
is never larceny, even if the defendant ________________________ believes the
property is his.
HYPO 9. Is Dudley guilty of larceny?
9(a)
Dudley takes Victor’s cell phone from Victor’s bag without Victor’s permission,
planning to return the cell phone once he’s finished using it.
_____. Because Dudley plans to give the phone back, he lacks the _____________
__________________________________________ that is necessary for larceny.
9(b)
Dudley leases his car to Victor for a one-year term. Two months into the one-year
lease, Dudley has a change of heart and takes the car back without Victor’s
permission, intentionally violating the lease agreement.
______. At the time Dudley took the car, Victor had ________________________;
therefore, Dudley’s taking is __________________, even though he is the owner. (!)
9(c)
Dudley takes Victor’s laptop, mistakenly believing that the laptop is his.
______. Dudley’s “________________________________,” negates his liability,
even though it is _________________________.
c) “Continuing” Trespass: If a defendant wrongfully takes property, but without
the intent to steal, he will not be guilty of larceny. But, if a defendant wrongfully
takes property without the intent to steal and later forms that intent, the initial
trespassory taking is considered to have “_____________________” and he will
be guilty of larceny.
Note: This doctrine creates an exception to the “concurrence” principle.
CRIMINAL LAW - MULTISTATE 17.
HYPO 10. Dudley takes Victor’s cell phone from Victor’s bag without Victor’s permission,
planning to return the cell phone once he’s finished with it. After using it, however, Dudley
decides that Victor’s phone is so nice, he’s going to keep it. Is Dudley guilty of larceny?
_____. Dudley’s conduct constitutes a “__________________________________________”
under these circumstances.
2.
EMBEZZLEMENT
a) Definition: Conversion of the personal property of another by a person already
in lawful possession of that property, with the intent to defraud.
b) Mental State: specific intent to ________________________________
Note: If the defendant intends to give the exact property back in the exact form,
he will not have the intent to defraud.
c)
Key difference from Larceny: To constitute embezzlement, a D must have
________________________________ of the property that he misappropriates.
d) Possession vs. Custody: Possession involves more than mere custody. It
requires the authority to exercise some discretion over the property.
HYPO 11. Have the following defendants committed larceny, embezzlement, or neither?
11(a)
A trustee siphons off trust money and donates the money to her favorite charity.
This is classic ______________________. (Note: The beneficiary can be a third party.)
11(b)
A bank security guard wrongfully takes $1,000 from the bank’s vault.
___________. The guard lacks the ______________________________________
over the money in the vault that is necessary for _____________________________.
11(c)
The curator of an art museum sells a $50,000 painting entrusted to his care without
asking the owner’s permission. The curator intends to buy the painting back, after
doubling the $50,000 from the sale by playing blackjack in Las Vegas. Unfortunately,
he loses all the money.
_______________. The curator’s intent to return the painting negates the intent to
__________________ that is necessary for larceny and the intent to _______________
that is necessary for embezzlement.
18. CRIMINAL LAW - MULTISTATE
3.
FALSE PRETENSES
a) Definition: Obtaining title to the personal property of another by a false
statement made knowingly, with the intent to defraud.
b) Key Difference from Larceny: In larceny, the defendant gets only custody of
the property; in false pretenses, the defendant gets _______________________,
meaning ________________________.
HYPO 12. Is Dudley guilty of false pretenses?
Dudley says to Victor: “If you give me your cell phone, I will write you a $100 check on my new
checking account, which has a balance of $1000 today.” Dudley knows that the checking account
is empty. Victor agrees to the deal and gives Dudley the cell phone in return for a $100 check.
________. Dudley knowingly made a false statement with the intent to defraud Victor and
obtained _____________ to Victor’s cell phone.
4.
LARCENY BY TRICK distinguished: If the defendant obtains only
_____________________ (not title) as a result of the false statement, the crime is
“larceny by trick,” not false pretenses.
HYPO 13. Is Dudley guilty of larceny by trick or false pretenses?
Dudley says to Victor: “If you give me unrestricted use of your cell phone, I will write you a
$500 check on my new checking account.” Dudley knows that the checking account is
empty. Victor agrees to the deal and Dudley writes him a check for $500.
________________________________. With respect to the cell phone, Dudley obtained
___________________ only, not ________________.
CRIMINAL LAW - MULTISTATE 19.
5.
ROBBERY (“Larceny + 2”)
a) Elements
(1) a _________________________________________________
(2) from someone else’s ___________________ or ____________________
(3) by _________________ or threat of ______________________ injury.
b) Mental State: the specific intent to ______________________
c)
“Presence”: Some location reasonably close to the victim, e.g. rooms in a house
other than the room in which the victim is located
d) “Force”: Any amount of force sufficient to overcome resistance is sufficient.
(1) Snatching a chain off the victim’s neck? _____________________
(2) Snatching a handbag off a woman’s extended arm? ____________
(3) Picking a man’s pocket? _____ (Pickpocketing is _________________.)
e)
Threats: Need immediate injury (“Your money or your life”)
(1) Under modern statutory law, an individual who obtains the property of
another through oral or written threats of future harm does not commit
robbery; he commits the crime of _____________________________,
which is also called ___________________________.
Example: “Give me your money, or I’ll post those pictures of you on the
web!”
6.
FORGERY
a) _____________________ or ____________________ a writing
b) so that it is _____________________ …
c)
Mental State: … with the specific intent to _________________________.
HYPO 14. Has Dudley committed forgery?
Needing $100 fast, Dudley takes Victor’s checkbook, writes out a $100 check to
himself, and signs Victor’s name to the check.
____. Dudley made a __________writing with the intent to __________________Victor.
20. CRIMINAL LAW - MULTISTATE
B. MODERN STATUTORY APPROACH TO THEFT OFFENSES
1.
CONSOLIDATION: The MPC and most states have consolidated the common law
property crimes of larceny, embezzlement, false pretenses, and larceny by trick into a
single offense typically known as ___________________.
2.
GRADING: Under these statutory approaches, the seriousness of the offense will be
determined by the ________________ of the property taken.
VII. PROPERTY CRIMES: HABITATION OFFENSES
A. BURGLARY
1.
COMMON LAW BURGLARY: Breaking and entering the dwelling of another at
night with the intent to commit a felony inside.
a) “Breaking”: Creating or enlarging an opening by at least ________________
________________
(1) Includes: breaking a window, opening a window, opening a door
(2) Does not include: climbing through an already open window, entering with
permission
(3) “Constructive” breaking: Entry is gained through fraud, threats or
intimidation.
Example: A woman obtains the key to an apartment by telling the owner
she will clean it for him while he is on vacation. She actually intends to steal
his television, which she does. Because she gained entry to the apartment by
fraud, this is a constructive breaking.
b) “Entry”: Some part of the defendant’s body must enter the building.
c)
“Dwelling”: A structure where someone regularly _______________
d) “Of Another”: You can’t burglarize your own house.
e)
“At Night”: Self-explanatory. (Look for clues: “The sun having set …”)
f)
“Intent to Commit a Felony Inside”: _______________________________
(intent to steal, rob, rape, assault, kill, etc.)
CRIMINAL LAW - MULTISTATE 21.
2.
MODERN STATUTORY CHANGES: Many states have eliminated the technical
requirements of common law burglary, especially the “breaking,” “dwelling” and
“nighttime” elements.
HYPO 15. Is Dudley guilty of common law burglary?
15(a). Dudley covets the new flat-screen television purchased by his neighbor, Victor. Knowing
Victor is a sound sleeper, Dudley breaks into Victor’s house at midnight to steal the TV.
______. Dudley broke into and entered Victor’s home at night to commit the felony of
_____________________.
15(b). Dudley is homeless. One frigid night in January, he breaks into Victor’s home to get warm.
As he is leaving 30 minutes later, Dudley sees Victor’s laptop and decides to steal it. He grabs the
laptop and hides it inside his jacket as he exits.
_______. There is a _________________________________ problem because Dudley lacked the
_______________________________________ when he entered the residence. He committed
________________________, but not ___________________________.
B. ARSON
1.
COMMON LAW ARSON
a) Definition: The malicious burning of the dwelling of another.
b) State of Mind: ___________________________________
c)
“Burning”:
(1) Requires ____________________________________; and
(“scorching” is not enough, but “charring” is)
(2) It must be the ________________________________ itself that burns.
(not the carpet, for example)
2.
MODERN STATUTORY CHANGES: Arson has been extended in most states and
under the Model Penal Code to structures other than dwellings and to damage caused
by explosion (not merely fire).
22. CRIMINAL LAW - MULTISTATE
VIII. PROPERTY CRIMES: POSSESSORY OFFENSES
A. POSSESSION OF CONTRABAND
1.
REQUIRED ACT: When a statute criminalizes the possession of contraband (e.g.,
drugs, stolen property, child pornography), “possession” means ________________
for a period of time long enough to have an opportunity to terminate
________________________________.
a) “Constructive Possession”: The contraband need not be in the defendant’s
actual possession, so long as it is close enough for him to exercise
_________________________ and ________________________ over it.
2.
MENTAL STATE: ____________________________ (of the possession and of the
character the item possessed).
B. RECEIPT OF STOLEN PROPERTY
1.
REQUIRED ACTS:
a) Receiving _________________________ and _______________________
b) of stolen ________________________ property.
(1) Note: Stolen property recovered by the police and used in an undercover
sting operation is not “stolen” property for purposes of this crime; the
property must have “stolen” status at the time it is received by the defendant.
2.
MENTAL STATE:
a) ___________________ that the property has been obtained criminally by another
party; and
b) with the ___________________ to permanently deprive the owner of his interest
in the property.
IX. PARTIES TO CRIME AND LIABILITY FOR THE CONDUCT OF OTHERS
A. PARTIES TO CRIME: PRINCIPALS AND THEIR ACCOMPLICES
1.
The person who commits the crime is called the _______________________.
2.
The person who helps is called the ____________________________.
a) Act: __________________ or _________________________ the principal
b) Mental State: with the _________________ to assist the principal and with the
_______________________ that the underlying crime be committed.
CRIMINAL LAW - MULTISTATE 23.
(1) Recklessness and Negligence Crimes: If the principal’s crime requires a
mental state of recklessness or criminal (i.e., gross) negligence, most
jurisdictions hold an accomplice liable for intentional conduct that aids the
principal and manifests the required recklessness or negligence.
Example: Mary gives Bill her car keys to drive home, knowing that Bill is
intoxicated. On his way home, Bill causes an accident that kills the driver of
the other vehicle. If Bill is found guilty of involuntary manslaughter in a
jurisdiction that requires criminal negligence, Mary would also be liable if
the jury found that her intentional act of giving Bill her car keys, knowing
that he was drunk, demonstrated criminal negligence because she should
have been aware that doing so created a substantial risk of death to others.
B. SCOPE OF ACCOMPLICE LIABILITY
1.
THE RULE: The accomplice is guilty of:
a) all crimes that he ________________ or ________________________
(just as if he did it), and
b) all other _____________________ crimes committed along with the aided crime.
2.
WHEN A PERSON IS NOT AN ACCOMPLICE
Two important principles:
a) _______________________________ at the scene of the crime does not make
someone an accomplice; he or she must actively aid or encourage the principal.
b) ______________________________________________ of the crime does not
make someone an accomplice; he must intend to aid or encourage the principal.
3.
WITHDRAWAL: An accomplice can avoid criminal liability by withdrawing
before the crime is committed. What he must do to withdraw depends on how he
assisted the principal:
a) Encourager: An accomplice who only “encouraged” the principal may withdraw
simply by _______________________ the encouragement before the crime is
committed.
24. CRIMINAL LAW - MULTISTATE
HYPO 16. Penny complains to her friend Dudley that she is short on money. Dudley
responds, “I know just the opportunity for you. The drug dealer who used to operate at the
corner of Center and Main was arrested yesterday. Why don’t you set up shop there and start
selling drugs?” If Penny takes his advice and starts selling drugs, Dudley will be guilty as
Penny’s accomplice.
What must Dudley do avoid criminal liability?
Since Dudley merely __________________________ Penny to sell drugs, he must simply
______________________________ this encouragement before she starts selling.
b) Aider: An accomplice who actually helped the principal must either
________________________ the assistance or otherwise ___________________
the crime from happening (by notifying the authorities, for example).
HYPO 17. What if, in addition to advising Penny to sell drugs, Dudley also gave her a
supply of small plastic baggies, a stamp to brand the baggies with a trademark, and an
untraceable cell phone? What must Dudley do now to avoid liability as an accomplice to
drug dealing?
Dudley has now provided material assistance; therefore, to withdraw he must either:
(a) _______________ all three items (the baggies, the stamp and the cell phone) before
Penny starts selling drugs; or
(b) _______________ Penny from committing the crime, e.g., by calling the cops
C. ACCESSORY AFTER THE FACT
1.
THE COMMON LAW APPROACH: To commit the separate common law
offense of being an “accessory after the fact,” a defendant must:
a) _____________________________ a principal who has committed a felony
b) with _________________________ that the crime has been committed, and
c)
2.
with the _________________ to help the principal avoid arrest or conviction.
MODERN APPROACHES: In many jurisdictions, common law accessories after
the fact commit separate statutory crimes, e.g., “obstruction of justice,” “harboring a
fugitive,” or “hindering prosecution.”
CRIMINAL LAW - MULTISTATE 25.
D. ENTERPRISE LIABILITY: CORPORATIONS AND THEIR AGENTS
1.
GENERAL RULE: When a corporate agent engages in criminal conduct, the
corporation and the agent may be held criminally liable, provided the agent is acting:
a) _______________________________________ the corporation; and
b) ________________________________________ of his or her office.
2.
“PUBLIC WELFARE” OFFENSES: When a corporation commits a regulatory
offense involving public health or safety, its agents can also be held criminally liable,
provided the agents stand in “____________________________________________
to the situation” that created a public danger.
Example: Where unsanitary conditions persisted at the warehouse of a national food
store chain, it was appropriate to find both the corporation (Acme Markets, Inc.) and
its President criminally responsible for violations of the Federal Food, Drug and
Cosmetic Act. The company President, by virtue of his position, had the authority to
address the “situation,” i.e., unsanitary conditions that exposed warehoused food to
rodent infestation and other health hazards.
X. INCHOATE OFFENSES
A. THE THREE INCHOATE OFFENSES
1.
SOLICITATION
a) Definition: ____________________ someone to commit a crime, with the
_________________________________ that the crime be committed.
b) Mental State: ________________________________________________
c)
Completion Unnecessary: The crime is in the _________________________.
(Note: It doesn’t matter whether the other person agrees or whether the crime is
actually committed.)
26. CRIMINAL LAW - MULTISTATE
2.
CONSPIRACY
a) Required Acts: An _________________________ between two or more people
to commit a crime, plus an _____________________________ in furtherance of
the crime.
(1) Agreement: Need not be “express;” can be proved by conduct – that is, a
“_____________________________________” towards a common goal.
(2) Overt Act: Any act, even if merely ____________________________,
performed by any of the co-conspirators. (Traditionally, the common law did
not require an overt act, but most states now do.)
b) Mental State: The specific intent to do two things:
(1) enter into an _________________________ ; and
(2) to accomplish the ________________________ of the conspiracy.
c)
Completion Unnecessary: The “essence” of the crime of conspiracy is the
__________________________; completion of the conspiratorial objective is
unnecessary for conviction.
d) Can You Have a One-Person Conspiracy?
(1) Common law rule: ________.
(a) The “Bilateral” Approach: There must be at least _____ guilty minds,
both of whom actually agree to accomplish the conspiracy’s objectives.
(b) Related Rule: If all other parties to the agreement are ______________,
the last remaining defendant cannot be convicted.
(2) Model Penal Code rule: ________. Under the “unilateral” approach, a
defendant may be guilty of conspiracy even if the other parties are
____________________ or were just _____________________ to agree.
HYPO 18. Dudley and Donnie agree to kill Victor, Dudley’s business partner. Unbeknownst
to Dudley, Donnie is actually an undercover police agent. Dudley is arrested while he is
preparing to kill Victor. Is Dudley guilty of conspiracy to commit murder?
18(a)
Common law rule? ______. Because Donnie is a police agent, there are not
_____ guilty minds.
18(b)
Model Penal Code rule? _____. The ___________________________ approach
of the MPC requires only ________ guilty mind for conspiracy.
CRIMINAL LAW - MULTISTATE 27.
e)
Wharton Rule: When two or more people are necessary for the commission of
the substantive offense, there is no conspiracy unless more parties participate in
the _____________________________ than are necessary for the crime.
HYPO 19. Dudley and Alex agree to meet at dawn to engage in a duel, which is unlawful in this
jurisdiction. Officer Victor finds out about the plan and arrives the next morning just after Dudley
and Alex have begun the duel. They are charged with dueling and conspiracy to engage in a duel.
Do they have a defense to the conspiracy charge?
______. Because the substantive crime of dueling requires two parties (You can’t duel yourself!),
the Wharton rule requires at least ____________ participants in the agreement for the conspiracy.
f)
Vicarious (“Pinkerton”) Liability:
In addition to conspiracy, a defendant will be liable for other crimes committed
by his co-conspirators, so long as those crimes:
(1) were committed in __________________________ of the conspiracy’s
objective, and
(2) were __________________________________.
HYPO 20. Dudley and Alex agree to rob a bank. As they are making their preparations, Alex says
“I’ll go steal a gun that we can use when we rob the bank.” That night, Alex breaks into Victor’s
house and steals Victor’s gun. Dudley and Alex later use the gun to rob the bank. Of what crimes
may Dudley be convicted?
Dudley is directly liable for ___________________ and _____________________ to rob the bank.
In addition, Dudley is vicariously liable under Pinkerton for the __________________________
(of Victor’s house) and _________________________ (for the taking of the gun).
g) Impossibility: Impossibility is ___________________ a defense to a charge of
conspiracy.
Example: Dudley and Alex agree to kill Victor. When they arrive at Victor’s
house, they find that he is already dead. Dudley and Alex can still be convicted
of conspiracy to commit murder.
28. CRIMINAL LAW - MULTISTATE
3.
ATTEMPT
a) Required Acts
(1) General Requirement: Unlike conspiracy, attempt requires an overt act
__________________ mere preparation.
(2) Common Law “Proximity” Test (better for defendant): The defendant
must engage in conduct that gets _______________________________ to
the commission of the crime.
(3) Majority/MPC “Substantial Step” Test (better for prosecution): The
defendant must engage in conduct that constitutes a ____________________
_____________ towards the commission of the crime, provided that conduct
______________________________________ the actor’s criminal purpose.
HYPO 21. Dudley wants to kill Victor. His plan is to shoot Victor as Victor is walking home
from work. At what point has Dudley engaged in enough conduct to be guilty of attempted
murder?
21(a)
Dudley buys an untraceable gun from an illegal gun dealer ….
Common Law: No, not ____________________________ (too much left to be done)
Majority/MPC: Yes. The jury can find (but they don‘t have to) that this conduct is a
______________________________________ that _________________________
__________________________ Dudley’s criminal purpose.
21(b)
Dudley takes the loaded gun and drives along the route that Victor typically uses when he
walks home from work, but he can’t find Victor ….
Common Law: No, you’re not ____________________________ close if you haven’t
located the victim.
Majority/MPC: same as in 21(a)
21(c)
Two days later, Dudley tries again. This time, he sees Victor walking down the street.
As Dudley raises the gun, Officer Alex tackles him, which causes Dudley to lose hold
of the gun.
Common Law: _________
Majority/MPC: Yes (more than enough)
CRIMINAL LAW - MULTISTATE 29.
b) Mental State:
(1) The Rule: Attempt requires the __________________________ to commit
the underlying crime.
(2) Unintentional Crimes: You cannot attempt ________________________
crimes, since you cannot ____________________________ do something
unintentional. Practically speaking, this means that there are no attempt
versions of:
(a) ___________________________ crimes, or
(b) ___________________________ crimes , or
(c) _________________________________.
HYPO 22. In need of money, Dudley takes Alice’s checkbook out of her purse when she is
not looking. He writes a check for $100, payable to “cash,” and has just begun signing
Alice’s name to the check when he is arrested. Is Dudley guilty of attempted forgery?
_____. Forgery is a ________________________________ crime and Dudley has engaged in
one or more _______________________________________ that strongly corroborate his
criminal purpose.
HYPO 23. Wanting to scare Victor, Dudley fires a bullet in his direction, aiming at a trash
can six feet away from Victor. A poor shot, Dudley misses the target and the bullet strikes
Victor’s shoulder, leaving him permanently disabled. Is Dudley guilty of attempted
involuntary manslaughter?
_____. Involuntary manslaughter requires either ____________________________
____________________________________ or ___________________________________,
depending on the jurisdiction. Either way, there is no attempt liability.
30. CRIMINAL LAW - MULTISTATE
B. INCHOATE OFFENSE DOCTRINES
1.
WITHDRAWAL/RENUNCIATION/ABANDONMENT:
What happens when a solicitor, co-conspirator, or attempter changes his mind?
a) General Rule: Withdrawal is _______ a defense.
*(1) Exception: Once a defendant withdraws from a conspiracy he will no
longer be ___________________________________ liable for crimes
committed by his co-conspirators after he left the conspiracy.
*(2) However, the defendant is still guilty of conspiracy and of all foreseeable
crimes committed by his co-conspirators ___________________ to his
withdrawal.
HYPO 24. On January 1, Dudley conspires with Victor and Alex to sell drugs to students at Setonia
University. On January 8, Victor sells drugs to Alice, a Setonia student. On January 12, Dudley
withdraws from the conspiracy. On January 14, Alex sells drugs to another Setonia student, Connie.
Dudley is arrested on January 21.
For what crimes is Dudley criminally responsible?
Dudley is guilty of _______________________ to sell drugs and the sale of drugs to ____________.
He is not responsible for the sale to __________________ because he had _____________________
from the conspiracy two days earlier.
2.
MERGER RULES FOR INCHOATE OFFENSES:
a) ___________________________ and ____________________________ merge
with the completed crime;
b) *_________________________________ does not merge. (A Bar favorite!)
CRIMINAL LAW - MULTISTATE 31.
3.
INCHOATE OFFENSES: REVIEW
HYPO 25. Dudley wants to kill Victor but thinks he needs some help. He decides, therefore,
to recruit a partner in crime.
25(a)
Is Dudley guilty of a crime?
_________________________________
(He hasn’t done anything yet!)
Dudley asks his friend Alex to help him kill Victor.
25(b)
Dudley is now guilty of:
_________________________________
Alex says, “Sure.” Dudley then shows Alex a photo of the gun he wants to use in the killing.
Alex takes the photo and agrees to procure the weapon for Dudley.
25(c)
Dudley is now guilty of:
_________________________________
Armed with the gun Alex has given him, Dudley hides in the bushes outside Victor’s house
waiting for Victor to come home from work. When Victor arrives, however, he is
accompanied by a bodyguard, so Dudley decides to wait.
25(d)
Dudley is now guilty of:
_________________________________
Dudley returns the next day and kills Victor.
25(e)
Dudley is now guilty of:
_________________________________
25(f)
Is Dudley still guilty of solicitation?
_________________________________
25(g)
Is Dudley still guilty of attempt?
_________________________________
25(h)
Is Dudley still guilty of conspiracy?
_________________________________
32. CRIMINAL LAW - MULTISTATE
XI. DEFENSES
A. CAPACITY DEFENSES
1.
INSANITY
a) The first requirement for the insanity defense is that the defendant must have a
________________________________________________________________.
b) Most jurisdictions use of one of two major tests to determine whether the mental
disease or defect renders the defendant legally insane:
(1) M’Naghten Test (majority test – purely cognitive)
The defendant must prove that he either:
(a) did not know that his conduct was ____________________, or
(b) did not understand the ______________________ of his conduct.
(2) MPC Test (used in roughly 25% of the states – cognitive or volitional):
Defendant must establish that he lacked the substantial capacity to either:
(a) appreciate the __________________________ of his conduct, or
(b) _____________________ his conduct to the requirements of law.
c)
Distinguished from Incompetency
(1) Insanity
(a) The issue is whether the defendant was insane at the time of the
____________. If he was, the defendant is _______________________
by reason of insanity.
(2) Incompetency
(a) The issue is whether, at the time of ____________, the defendant
cannot either:
(i) __________________ the nature of the proceedings against him; or
(ii) __________________ his lawyer in the preparation of his defense.
(b) If either (i) or (ii) is established, trial is _________________________
until the defendant regains competency.
CRIMINAL LAW - MULTISTATE 33.
2.
VOLUNTARY INTOXICATION (self-induced) (commonly tested on MBE)
a) Common Law approach
(1) Can be a defense to ______________________________________ only.
(2) Cannot, therefore, be a defense to malice, general intent, or strict liability
crimes.
(3) The defense of intoxication generally requires such severe “prostration of the
faculties” that the defendant cannot form the requisite specific intent.
HYPO 26. Dudley and his friend, Pyro, are sitting around drinking beer one night at
Dudley’s house. After polishing off their fifth six-pack, they decide that it would be fun to
create a big bonfire by torching the empty barn next door. They grab some lighter fluid
and matches from the garage and stumble out the door. One hour later, the duo is arrested
as they stare transfixed at the towering inferno they created.
Can Dudley and Pyro plead intoxication as a defense to the following crimes?
(1) Conspiracy to commit arson? _____. Conspiracy is a ________________________
______________________ crime.
(2) Arson? _____. Arson is a ______________________ crime.
3.
INFANCY
a) Common Law (“Rule of Sevens”)
(1) If, at the time of crime, the defendant’s age is less than ______________,
prosecution is not allowed.
(2) If, at the time of crime, the defendant’s age is less than _______________,
there is a rebuttable presumption against prosecution.
(3) If, at the time of crime, the defendant’s age is ________________or older,
prosecution is allowed.
34. CRIMINAL LAW - MULTISTATE
B. OTHER DEFENSES
1.
MISTAKE
a) Mistake of Fact
(1) Common Law Approach: Whether a defendant’s mistake of fact will be a
defense depends upon the mental state for the crime and whether the mistake
is reasonable or unreasonable.
Accordingly, if the mental state for the crime is:
(a) ________________________________, any mistake of fact
(even an unreasonable one) will be a defense.
(b) ______________________or _________________________________,
only a reasonable mistake of fact will be a defense.
(c) ______________________________, mistake of fact will never be a
defense.
(2) Common Law redux: Therefore:
(a) A ____________________________ mistake of fact will be a defense
to any crime, except a crime of strict liability.
(b) An ___________________________ mistake of fact will be a defense
only to specific intent crimes.
b) Mistake of Law
(1) Common Law Rule: Mistake of law is generally _________ a defense.
(a) Exception: If the statute specifically makes knowledge of the law an
element of the crime (e.g., “selling phony Rolex watches knowing it is
unlawful to do so”).
CRIMINAL LAW - MULTISTATE 35.
2.
SELF-DEFENSE (JUSTIFICATION)
a) Deadly vs. Nondeadly Force
(1) Common examples of nondeadly force _____________________________
(2) Common examples of deadly force: ________________________________
b) The Rule for Use of Nondeadly Force: An individual may use nondeadly force
in self-defense if he is without fault and
(1) _____________________________________ that doing so is necessary
(2) to protect himself from the _____________________________ use
(3) of ______________________________ force upon himself.
c)
The Rule for Use of Deadly Force: An individual can use deadly force in selfdefense only if he is confronted with unlawful force, is without fault, and
reasonably believes he is facing an imminent threat of ___________________
or _______________________________________________.
d) Two Complications for the Use of Force in Self-Defense:
(1) The “Initial Aggressor” Rule: A defendant may not use force in selfdefense if he is the initial aggressor – that is, the person who
___________________ the fight. But, the initial aggressor can “regain” his
right to use force in self-defense if:
(a) He _____________________ from the fight and __________________
that withdrawal to the other person; or
(b) the victim suddenly __________________________ a nondeadly fight
into a deadly one.
HYPO 27. Dudley punches Victor in the nose. In response, Victor pulls out a knife and runs
at Dudley. Just before Victor is able to stab Dudley, Dudley pulls out a gun and shoots Victor,
killing him. Will Dudley be able to plead self-defense under these facts?
______. Although Dudley was the initial aggressor, he was using ___________________
force. Victor _________________________ the fight into a deadly one. In so doing, Victor
allowed Dudley to ___________________ the right to use (deadly) force in self-defense.
36. CRIMINAL LAW - MULTISTATE
(2) The Retreat Rule: In some states, a defendant is required to retreat before
using deadly force in self-defense.
(a) Majority rule: Retreat is __________ required.
(b) Minority rule: Retreat is required, unless:
(i) D cannot retreat in ________________________________, or
(ii) D is in his ____________ (the “castle exception”).
e) Reasonableness and Mistake: What happens if D is mistaken about the need to
use unlawful force in self-defense?
(1) Reasonable mistake: _________________________________
(2) Unreasonable mistake:
(a) Majority Rule: ________________________________________
(b) Minority/MPC Rule: ____________________, but does not exonerate
(i) “Imperfect Self-Defense”: An unreasonable belief in the need to
use deadly force in self-defense will mitigate murder to (voluntary)
manslaughter.
HYPO 28. Dudley is walking down a dark street, late at night, by himself. Suddenly, Victor
appears out of a doorway and walks quickly toward Dudley. Dudley starts to get nervous and
asks Victor what he wants. Victor doesn’t respond but, instead, reaches for his waistband.
Dudley is afraid that Victor is about to pull out a gun; therefore, Dudley pulls out his own gun
and fires, killing Victor. It turns out that Victor was just reaching for his wallet.
Is Dudley guilty of a homicide offense? _______________________.
(a) If the jury finds that Dudley’s belief in the need to use deadly force was
_____________________, he is not guilty of homicide.
(b) If the jury finds that Dudley’s belief in the need to use deadly force was
_________________________, he will be guilty of a homicide offense. Which one?
(i)
Majority rule: ___________________________ (no defense)
(ii) Minority/MPC rule: ___________________________ (partial defense)
CRIMINAL LAW - MULTISTATE 37.
f)
Use of Force to Prevent a Crime
(1) Nondeadly force may be used, if reasonably necessary, to prevent any
serious ____________________________________.
(2) Deadly force may only be used to prevent a felony risking
_________________________________.
g) Defense of Others: A defendant may use force, even deadly force, to protect
others just the same as he could use it to defend himself.
h) Defense of Property:
General Rule: Deadly force may __________ be used to defend property.
i)
Use of Deadly Force by Law Enforcement:
An officer may use deadly force only when doing so is ____________________
under the circumstances.
Compare:
It was unreasonable for an officer to shoot a fleeing burglar who had disobeyed
an order to halt since the officer lacked probable cause to believe that the suspect
was armed or otherwise posed an immediate physical threat to the officer or
others. (Tennessee v. Garner, 471 U.S. 1 (1985))
Because the suspect’s conduct posed an immediate threat to his own life and that
of innocent bystanders, it was reasonable for an officer to end a high-speed chase
by bumping the rear of the suspect’s vehicle and thereby causing the suspect’s car
to crash. (Scott v. Harris, 550 U.S. 372 (2007))
3.
NECESSITY (JUSTIFICATION):
a) The Rule: Conduct that is otherwise criminal is justifiable if the defendant
_______________________________________ that the conduct was necessary
to prevent a _________________________________.
Example: Dudley creates a firewall to prevent rapidly approaching wildfires
from consuming an apartment building that houses physically disabled persons.
In so doing, he redirects the fire to an empty warehouse, which burns to the
ground. Necessity provides a complete defense to Dudley’s criminal
responsibility for the destruction of property that resulted from his actions.
38. CRIMINAL LAW - MULTISTATE
b) Limitations: The defense of necessity is unavailable if:
(1) The defendant causes the death of another person to protect
___________________; or
(2) The defendant is ___________________ in creating a situation that creates a
choice of evils.
4.
DURESS
a) The Rule: It is a defense to criminal conduct if the defendant was ____________
to commit a crime because of a threat, from another person, of ______________
death or serious bodily injury to himself or a close family member.
Example: Dudley jumps into Alice’s car, points a gun at her head and tells her
that he will kill her unless she helps him rob the bank across the street. If Alice
helps Dudley rob the bank, duress provides a complete defense to any robbery
charges filed against her.
b) Limitation: Duress cannot be a defense to intentional ____________________.
5.
ENTRAPMENT (very narrow defense)
If a defendant believes that the government unfairly tempted him to commit a crime,
he may claim entrapment.
a) Majority Test (Subjective): To prevail on the defense, the defendant must
prove that:
(1) the criminal design ________________________ with the government, and
(2) *he was not ____________________________ to commit the crime.
b) Minority Test (Objective): To prevail on the defense, the defendant must prove
that police activity was reasonably likely to cause an ____________________
person to commit the crime in question.
(1) Under this approach, the ___________________________________ of
the defendant is irrelevant.
CRIMINAL LAW - MULTISTATE 39.
CRIMINAL LAW LECTURE OUTLINE
Prof. Kip Cornwell
I.
INTRODUCTION .........................................................................................................................1
A. SOURCES OF LAW (MBE) ..................................................................................................1
B. OVERVIEW: CRIMINAL LAW TOPICS ...................................................................................1
C. PRELIMINARY MATTERS .....................................................................................................2
1. JURISDICTION ...........................................................................................................2
2. BURDEN OF PROOF .................................................................................................2
3. CLASSIFICATION OF CRIMES ................................................................................2
II. THE ESSENTIAL ELEMENTS OF CRIME ...................................................................................3
A. THE ACT REQUIREMENT .....................................................................................................3
1. PHYSICAL ACTS ........................................................................................................3
2. “OMISSIONS” .............................................................................................................3
B. MENTAL STATES.................................................................................................................4
1. COMMON LAW MENTAL STATES.........................................................................4
2. MODEL PENAL CODE MENTAL STATES .............................................................6
C. CAUSATION ........................................................................................................................6
1. ACTUAL CAUSATION .............................................................................................6
2. PROXIMATE CAUSATION ......................................................................................7
D. THE CONCURRENCE PRINCIPLE ..........................................................................................8
III. CRIMES AGAINST THE PERSON: ASSAULT AND BATTERY ......................................................8
A. BATTERY .........................................................................................................................8
B. ASSAULT .........................................................................................................................8
IV. CRIMES AGAINST THE PERSON: HOMICIDE ............................................................................9
A. THE YEAR-AND-A-DAY RULE ............................................................................................9
1. MAJORITY RULE .......................................................................................................9
2. COMMON LAW RULE ..............................................................................................9
B. HOMICIDE CRIMES ..............................................................................................................9
1. MURDER .....................................................................................................................9
2. VOLUNTARY MANSLAUGHTER..........................................................................13
3. INVOLUNTARY MANSLAUGHTER .....................................................................13
40. CRIMINAL LAW - MULTISTATE
V. CRIMES AGAINST THE PERSON: CONFINEMENT OFFENSES AND SEX OFFENSES ................14
A. CONFINEMENT OFFENSES .................................................................................................14
1. FALSE IMPRISONMENT .........................................................................................14
2. KIDNAPPING ............................................................................................................14
B. SEX OFFENSES ..................................................................................................................14
1. FORCIBLE RAPE ......................................................................................................14
2. STATUTORY RAPE .................................................................................................15
VI. PROPERTY CRIMES: THEFT OFFENSES .................................................................................15
A. COMMON LAW THEFT CRIMES..........................................................................................15
1. LARCENY..................................................................................................................15
2. EMBEZZLEMENT ....................................................................................................17
3. FALSE PRETENSES .................................................................................................18
4. LARCENY BY TRICK ..............................................................................................18
5. ROBBERY .................................................................................................................19
6. FORGERY ……………………………………………………………………….…19
B. MODERN STATUTORY APPROACH TO THEFT OFFENSES ....................................................20
VII. PROPERTY CRIMES: HABITATION OFFENSES ......................................................................20
A. BURGLARY .......................................................................................................................20
1. COMMON LAW BURGLARY .................................................................................20
2. MODERN STATUTORY CHANGES ......................................................................21
B. ARSON ..............................................................................................................................21
1. COMMON LAW ARSON .........................................................................................21
2. MODERN STATUTORY CHANGES ......................................................................21
VIII. PROPERTY CRIMES: POSSESSORY OFFENSES ...................................................................22
A. POSSESSION OF CONTRABAND ..........................................................................................22
B. RECEIPT OF STOLEN PROPERTY ........................................................................................22
IX. PARTIES TO CRIME AND LIABILITY FOR THE CONDUCT OF OTHERS...................................22
A. PARTIES TO CRIME: PRINCIPALS AND THEIR ACCOMPLICES ..............................................22
B. SCOPE OF ACCOMPLICE LIABILITY ....................................................................................23
1. THE RULE ................................................................................................................23
2. WHEN A PERSON IS NOT AN ACCOMPLICE .....................................................23
3. WITHDRAWAL .......................................................................................................23
CRIMINAL LAW - MULTISTATE 41.
C. ACCESSORY AFTER THE FACT ..........................................................................................24
1. THE COMMON LAW APPROACH .........................................................................24
2. MODERN APPROACHES ........................................................................................24
D. ENTERPRISE LIABILITY: CORPORATIONS AND THEIR AGENTS ...........................................25
1. GENERAL RULE.......................................................................................................25
2. “PUBLIC WELFARE” OFFENSES ...........................................................................25
X. INCHOATE OFFENSES .............................................................................................................25
A. THE THREE INCHOATE OFFENSES .....................................................................................25
1. SOLICITATION ........................................................................................................25
2. CONSPIRACY ...........................................................................................................26
3. ATTEMPT ..................................................................................................................28
B. INCHOATE OFFENSE DOCTRINES .......................................................................................30
1. WITHDRAWAL/RENUNCIATION/ABANDONMENT .........................................30
2. MERGER RULES ......................................................................................................30
3. INCHOATE OFFENSES: REVIEW ..........................................................................31
XI. DEFENSES ...............................................................................................................................32
A. CAPACITY DEFENSES ........................................................................................................32
1. INSANITY..................................................................................................................32
2. VOLUNTARY INTOXICATION ..............................................................................33
3. INFANCY ...................................................................................................................33
B. OTHER DEFENSES .............................................................................................................34
1. MISTAKE ...................................................................................................................34
2. SELF-DEFENSE (JUSTIFICATION) ........................................................................35
3. NECESSITY ...............................................................................................................37
4. DURESS .....................................................................................................................38
5. ENTRAPMENT ........................................................................................................38