April 1, 2012

Criminal Law Bar Exam Outline

I.    Classifications of Crimes

A.    Felonies - punishable by death or imprisonment exceeding 1 year (even though actually imposed may be less than 1 year).

1.    Burglary

2.    Arson

3.    Robbery

4.    Rape

5.    Larceny

6.    Murder

7.    Manslaughter

8.    Mayhem

B.    Misdemeanors - punishable by imprisonment of less than 1 year or by fine only.  At CL crimes not considered felonies were misdemeanors.

1.    Assault

2.    Battery

C.    Malum Prohibitum - a wrong that is legislatively prohibited or forbidden by statute.

D.    Malum in Se - a wrong or crime that is evil in itself (rape, drunk driving) or that involve moral turpitude (disbarring an attorney).

E.    Infamous Crimes - a crime that involves fraud or dishonesty.

F.    Burden of Proof - prosecution has burden of persuasion to prove every element of a crime beyond a reasonable doubt.

G.    Affirmative Defenses - D has initial burden to produce some evidence supporting his/her defense and then the burden shifts to the prosecution to persuade beyond a reasonable doubt.



II.    Elements of a Crime

A.    Actus Reus - the criminal act. 

1.    Must be voluntary and conscious.  Acts which are involuntary or unconscious will not create criminal liability (i.e. sleepwalking).

2.    Omission to Act - Generally a person is not under duty to render assistance to a stranger in peril.  However, in the following situations one is under a legal duty to act:

a.    Family Relationship
b.    Contract (i.e. lifeguard)
c.    Statute (i.e. filing income tax return)
d.    Creation of Peril (i.e. push somebody in front of car)
e.    Assumption of Care (i.e. if you come to rescue you must complete it)
B.    Mens Rea - the guilty mind.
1.    Types of Mental States:
a.    Intention - if you intend the crime you can be liable.

b.    Knowledge - some statutes require a person to act knowingly, willfully, or purposely to be criminally liable.
c.    Recklessness - where D has a subjective awareness of the substantial likelihood of causing death or serious bodily injury.
d.    Negligence - covers things such as battery.
C.    Concurrence - of Actus Reus and Mens Rea
1.    If no concurrence then no crime.
D.    Causation - the D’s criminal act must be the proximate or legal cause of the injury suffered by the victim.
1.    If D hastens the victim’s death then the D is still liable.
2.    Transferred Intent - If A intends to shoot B but accidentally shoots C then A is liable for killing A.
3.    Medical Malpractice - Where A intends to commit crime on B and strikes B, and when B gets to the hospital B dies b/c of negligent malpractice.
a.    If the intervening event is foreseeable then A will be held liable (the original wrongdoer).
E.    Harm or Injury Suffered by Victim


III.  General Classifications of Crimes
A.    Strict Liability Crimes - impose absolute criminal liability.  No defenses are available (i.e. statutory rape, bigamy).
B.    Vicarious Liability Crimes - one person though without personal fault is made criminally liable for the conduct of another, usually his/her employee.
C.    General Intent Crimes
1.    These crimes do not require a specific intent (mens rea); just an intent to do the act.
2.    The act is what is being punished and the bad state of mind is inferred.
3.    General intent crimes include:
a.    Rape
b.    Battery
c.    Arson
d.    Involuntary Manslaughter
e.    Depraved Heart Murder
D.    Specific Intent Crimes
1.    These crimes require a specific intent (mens rea) to commit the crime.
2.    Specific intent crimes include:
a.    Larceny
b.    Burglary
c.    False Pretenses
d.    Attempt
e.    Inchoate
f.    Solicitation
g.    Conspiracy

h.    Voluntary Manslaughter
i.    Intentional Murder


III.  Defenses
A.    Intoxication - is not a defense for general intent crimes but it is for specific intent crimes.  Intoxication can negate the specific intent required.
B.    Mistake of Fact - is a defense for specific intent crimes as long as honest.  For mistake of fact to be a defense for general intent crimes the mistake must be reasonable.
C.    Insanity
1.    M’Naghten Test - in majority of jxs a D is relieved of criminal liability where he was laboring from such a defect of reason from disease of mind as not to know the nature and quality of the act he was doing; or if he did know the nature and quality o act he did not know what he was doing was wrong.
a.    Seems to include any mental abnormality (psychosis, neurosis, organic brain disorders, low IQ, or feeblemindedness).
2.    Irresistible Impulse Test - in half of jxs a D will be found not guilty where he or she had a mental disease which keeps him/her from controlling his/her conduct.
3.    Durham (New Hampshire) Test - a D is not criminally responsible if his/her unlawful act was the product of mental disease or defect.
4.    Model Penal Code (Substantial Capacity) Test - a person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he/she lacks substantial capacity to appreciate the criminality or the wrongfulness of his/her conduct or to conform the conduct to the requirements of law.
5.    Bifurcated Trial Process - some states such as CA split the trial into two stages.  The first stages determines criminal liability.  The second stage determines the insanity.
6.    Diminished Capacity - a defense which is short of insanity.  Provides that where a D b/c of mental disease or defect lacks the required state of mind required for the commission the particular offense.
a.    This is NOT the same as an insanity defense.  A successful insanity defense is a finding of not guilty by reason of insanity.
b.    A showing of diminished capacity will result in a finding of not guilty of the offense charge but usually guilty of a lesser charge.
D.    Intoxication
1.    Voluntary - is self-induced by alcohol or narcotics.  It is a defense for specific intent crimes provided that the intoxication prevents the D from formulating the required intent or knowledge.
2.    Involuntary - is a defense if it puts the D in such a state of mind so that he/she does not know the nature and quality of act he/she is doing, or if he/she did know the nature and quality of the act was wrong.
a.    Can occur by taking an intoxicating substance:
(1)    without knowledge of its nature
(2)    under duress

(3)    pursuant to medical advice
E.    Infancy
1.    At CL children under age of 7 were conclusively presumed to be without criminal capacity.  Children between 7-14 were rebuttably presumed to lack criminal capacity.  Children over the age of 14 were held responsible as adults.
2.    At modern law it is dependent on combination of offense committed and age of D.
F.    Justification or Excuse Defenses
1.    Self-Defense - if a person has a reasonable belief that she is in imminent danger of unlawful bodily harm then she may use that amount of force which is reasonably necessary to prevent such harm.
a.    Deadly Force - is that which threatens death or serious bodily injury.  Non-deadly threatens only bodily harm.
b.    Rights of an Aggressor - The right of self-defense is not available to the aggressor except where:
(1)    complete withdrawal perceived by other party
(2)    escalation of force by victim after initial aggression
c.    Duty to Retreat - no duty to retreat under American view.
2.    Defense of Others - same as Self-Defense.  Used where one believes another person is in immediate danger of bodily harm.
a.    Minority rule is that of “alter ego” where you can use self-defense if person being defended would be justified in using self-defense.
3.    Defense of Property - Cannot use deadly force or mechanical device that is capable of killing someone.  Can only use reasonable non-deadly force.
4.    Law Enforcement Defenses
a.    Police - Police officer may use that amount of non-deadly force which he/she reasonably believes is necessary to effectuate an arrest or prevent escape by arrestee.  Deadly force may not be used against a misdemeanant.  Deadly force is OK for dangerous felony or to effectuate an arrest where it reasonably appears necessary to the officer to reasonably arrest a person reasonably believed to have committed a felony.
b.    Private Citizen - is privileged to use non-deadly force reasonably necessary to prevent commission of felony or misdemeanor.  A citizen may use nondeadly force if a crime has in fact ben committed and he/she reasonably believes the person against whom they are using the force has committed the crime.  A private may use same amount of deadly force only if a dangerous felony has been committed and the person against whom the force is used has committed that felony.
5.    Resisting Unlawful Arrest - a person may use reasonable nondeadly force to resist an unlawful arrest.
6.    Resisting Lawful Arrest - only where D does not know other person is a police officer (this situation becomes self-defense).
7.    Necessity - situations with pressure from natural or physical forces. 

a.    Where an individual reasonably believes his criminal conduct is necessary to avoid imminent injury resulting from natural, nonhuman forces, then the D is justified in engaging in criminal conduct. (i.e. killing one person to save two or more; firefighter destroying property to prevent spread of fire).
b.    Intentionally killing another to save yourself is NOT a situation where
8.    Duress - situations with pressure from human sources. 
a.    Where the D reasonably believes the only way to avoid threats of bodily harm is to engage in conduct prescribed by law.
9.    Domestic Authority - parents may use resaonable force to promote the child’s welfare.
10. Entrapment - occurs if the intent to commit the crime originated with law enforcement officers and not the D.  Requires proof of:
a.    Criminal design originated with law enforcement
b.    D was not in anyway predisposed to commit the crime
11. Mistake
a.    Mistake of Fact - is a defense where it negates a material element of a crime or specific mental state required for commission of crime.
(1)    General Intent - may be a defense to general intent crime only if the mistake is reasonable.
(2)    Specific Intent - the mistake just needs to be honest to negate specific intent.
b.    Mistake of Law - ignorance is not a defense except where:
(1)    D does not know of enactment of crime AND enactment was not publicized
(2)    where D r/by relies on an official statement of the law or official interpretation by public officer which is subsequently found to be invalid.
12. Consent - is a defense, except where obtained by fraud or deceit.  Also not to fraternity hazing.

IV. Inchoate Crimes (crime need not be completed to find D guilty)
A.    Solicitation - crime complete at moment D solicits, entices, counsels, encourages someone else to commit an unlawful act.
1.    If crime is completed then solicitation merges into the completed offense and the person who solicited the crime is guilty of that crime.
B.    Attempt - this is a specific intent crime which may also merge. 
1.    Two elements:
a.    Whatever the attempt the D must have had the specific intent to commit that crime.
b.    The D must perform an act which constitutes a substantial step / overt act in commission of the crime.
2.    Defenses:
a.    Legal Impossibility - is a valid defense under CL.
b.    Factual Impossibility - no defense under CL.
c.    Modern View - don’t look to impossibility but look at the D’s subjective mind.
C.    Conspiracy - this is a specific intent crime which does NOT merge. 
1.    Two elements:
a.    There must be specific intent.

b.    Must be an agreement between two or more individuals.
2.    Each co-conspirators are criminally liable for all the foreseeable crimes committed by cohorts in furtherance of the conspiracy’s goal.
3.    Procedural Issues - there must be at least two guilty conspirators for there to be a conspiracy.
4.    Wharton Rule
a.    Applies to crimes (i.e. bigamy, incest, adultery, dueling, or bribery) that require participation of two or more individuals.
b.    If you convict them of the completed crimes then you cannot convict them of conspiracy.
5.    Defenses to Conspiracy
a.    Withdrawal is NOT
b.    Only Way is to Inform the Other Members of the Conspiracy and Thwart the Success of the Criminal Endeavor.


V.    Parties to Crime; Accomplice Liability
A.    Common Law Classifications
1.    Principal in the First Degree - this is the person who commits the crime
2.    Principal in the Second Degree - this is person who is present during the crime but doesn’t actually commit the crime by his/her own hand.  They are just as guilty as the principal in the first degree.
3.    Accessory Before the Fact - this is one who aids, abets another in the commission of the crime but is not present during the commission of the crime.  They also have same degree of liability as the Principal in the First or Second Degree.
4.    Accessory After the Fact - this is not an accomplice but rather a person who has obstructed justice.
B.    Accomplice Liability
1.    Two requirements:
a.    Must aid, abet or encourage another person in the commission or attempted commission of crime.
b.    With the intent that the crime be committed.
2.    An accomplice is criminally responsible for all of the consequences which are reasonably foreseeable.


VI. Crimes Against the Person
A.    Murder
1.    Intentional Killing
a.    Premeditation
b.    Deliberation
2.    Intent to Inflict Serious Bodily Injury Murder

a.    Covers situations where D doesn’t intend to kill victim but it turns out the victim dies from the injuries.
3.    Felony Murder
a.    Covers an unintentional killing or death that occurs during the commission or attempted commission of a serious / inherently dangerous felony.
b.    Felonies Associated with Felony Murder (BARK)
(1)    “B” - burglary
(2)    “A” - arson
(3)    “R” - rape
(4)    “K” - kidnapping
c.    There Must be a Causal Connection to the Death Which Occurs.
4.    Depraved Heart Murder
a.    An unintentional killing resulting from the D’s reckless conduct.
b.    The distinction with involuntary manslaughter is that involuntary manslaughter involves grossly or wantonly negligent conduct.  Examples:
(1)    Driving car at 100 miles per hour at 12Noon in downtown and subsequently killing someone is depraved heart.
(2)    Driving car at 100 miles per hour at 2AM in backcountry and subsequently killing someone is involuntary manslaughter.
c.    Examples of Depraved Heart Murder
(1)    Russian Roulette - survivor in the game of Russian roulette is guilty of depraved heart murder.
(2)    Lighted Kerosene Lamp - if you throw object at someone carrying a kerosene lamp and the person burns themselves and dies that is depraved heart murder.
(3)    Firing a Pistol Near but Not at Someone is depraved heart murder.
5.    Redline View - a felon is not guilty of felony murder where the killing constitutes a justifiable homicide.  For example, if police, victim, or co-felon shoots another co-felon then the felon is not guilty for that killing.
6.    Degrees of Murder
a.    First Degree - premeditation and deliberation, or felony-murder
b.    Second Degree - intent to commit serious bodily harm, or depraved heart murder.
7.    Manslaughter
a.    Voluntary Manslaughter - always an intentional killing in the heat of passion where the D acts with adequate provocation.
b.    Involuntary Manslaughter- always an unintentional killing that results from D’s grossly negligent and reckless conduct.
(1)    Criminal Negligence Involuntary Manslaughter - where there is an unintended death cause by gross and wanton conduct of the D.
(2)    Misdemeanor / Unlawful Act Manslaughter - where assault or battery results in an unintended death.  Also extends to non-dangerous felonies such as larceny.
c.    Model View - is to take into account the subjective susceptibility or sensitivities of a particular D.

d.    Majority View - is used on the MBE and uses an objective view.
e.    In some states an imperfect right of self-defense exists where D honestly but unreasonably believed he had a right of self-defense (don’t follow on multi-state unless they tell you).

B.    Assault and Battery
1.    Battery - an unlawful application of force to the person of another that results in either bodily harm or offensive touching.  It is a general intent crime and includes unintentional touchings caused by D’s recklessness or negligence.
2.    Assault
a.    two types:
(1)    Attempt to Commit a Battery- majority view.
(2)    Intent to Frighten - minority view.
b.    Aggravated Assault is always punished more severely than simple assault.
(1)    Example - if loaded gun and intent is only to frighten (minority jx) then aggravated; if the gun was unloaded then its simple assault.
C.    Mayhem - at CL required intent to maim or do bodily injury by act which either dismembered or disabled the victim.  Modern view includes permanent disfigurement.  Most jxs now treat it as aggravated assault.
D.    Kidnapping - an unlawful restraint of one’s personal liberty by force or show of force so as to send victim to another country.  Modern view only requires that victim is taken to another location.
E.    Rape - non-consensual sexual intercourse with a woman against her will.
1.    Statutory Rape - sexual intercourse with girl under statutorily prescribed age.  S/L and no defenses available.


VII. Theft Offenses
A.     Larceny
1.    Defined at CL as:
a.    Trespassory - can exist in situations or continuing trespass where initial intent was not to steal.  Here, the intent was formulated later.
b.    Taking
c.    Carrying Away - need only be a slight distance (6 inches)
d.    Personal Property - at CL needed tangible personal property; modern statutes have expanded to intangibles.
e.    Of Another
f.    With Intent to Steal
2.    Defense - Where you take someone’s property to use temporarily and then return unconditionally AND you have the means to return it.
3.    Mislaid Property - two requirements:
a.    At time of finding finder intends to steal property, and
b.    Know who owner is or reasonably believe he could find out the owner.

4.    Larceny by Trick - the same as larceny except that the taking of the property is accomplished by lies, deceit, or false statements.  D only acquires possession of the property NOT title to the property.

B.    False Pretenses
1.    Similar to larceny by Trick but in this case D obtains title to the property.
2.    Where you have money involved, title passes with money.  If you see these crimes the are false pretense crimes:
a.    Credit Card Fraud
b.    Mail Fraud
c.    Confidence Game Schemes - “get rich quick” schemes
d.    Violation of Blue Sky Laws - selling worthless stocks
e.    Bad Checks
(1)    Split of authority - if D intends to defraud victim and knows that he/she has insufficient funds then you have false pretense.

C.    Embezzlement - the fraudulent conversion or misappropriation of the personal property of another by one who is in lawful possession of it.
1.    Defenses:
a.    claim of right
b.    intent to return the property in same condition (intent to return the equivalent is not a valid defense)

D.    Robbery - basically the same as larceny.
1.    Defined at CL as:
a.    Trespassory - can exist in situations or continuing trespass where initial intent was not to steal.  Here, the intent was formulated later.
b.    Taking
(1)    From the Victim’s Person or Presence
(2)    By Force
c.    Carrying Away - need only be a slight distance (6 inches)
d.    Personal Property - at CL needed tangible personal property; modern statutes have expanded to intangibles.
e.    Of Another
f.    With Intent to Steal
2.    Larceny and Battery or Assault will merge into Robbery.
3.    Snatching is not enough to constitute the force element of robbery.  However, if a struggle ensues then there is robbery.
4.    The threat must be of immediate bodily injury not future harm.  A mere threat unaccompanied by physical force is enough it it amounts to a reasonable degree of fear in the victim.


E.    Receiving Stolen Property - where D has actual or constructive knowledge that the property is stolen.  Once the police recover stolen property it loses its status as stolen.


VII.    Crimes Against Property
A.    Burglary
1.    Defines at CL as:
a.    Breaking
(1)    If someone enters through open door or window that is not enough.  Moving the window is.
(2)    Constructive Breaking - entry through fraud, intimidation, or through a chimney is sufficient.
b.    Entering
c.    Dwelling - includes any place of human habitation (hotel, motel, trailor, or van).  Basically any place where someone sleeps.  Barns or stables might be subject to burglary if they were part of the curtilage of the dwelling house. 
(1)    Businesses - A place of business can be subject to burglary if it is slept in by the proprieter.  If the business is attached to the dwelling house that is enough as well.
d.    Of Another
e.    At Nighttime
f.    With Intent to Commit Larceny or Felony Therein

B.    Arson
1.    Defined at CL as:
a.    Malicious
b.    Burning of
c.    Dwelling House
d.    Of Another.
2.    It is a general intent crime.
3.    Charring or slight burning of the premises is sufficient to constitute damage to the structure to