Criminal Law Outline

CRIMINAL LAW
CMR 05 criminal law R.indd 1 9/22/2017 8:56:07 AM

C CM R CONVISER MINI REVIEW i.
CRIMINAL LAW
TABLE OF CONTENTS
INTRODUCTION: GENERAL APPROACH . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
I. JURISDICTION AND GENERAL MATTERS . . . . . . . . . . . . . . . . . . . . . . . 1

A. JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
B. SOURCES OF CRIMINAL LAW . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
C. THEORIES OF PUNISHMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
D. CLASSIFICATION OF CRIMES . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
E. VAGUENESS AND OTHER CONSTITUTIONAL LIMITATIONS . . . . . . . . 2
F. INTERPRETATIONS OF CRIMINAL STATUTES . . . . . . . . . . . . . . . . . 2
G. MERGER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1. Common Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
2. Modern Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
3. Rules Against Multiple Convictions for Same Transaction . . . . . . . . . . . 2
II. ESSENTIAL ELEMENTS OF A CRIME . . . . . . . . . . . . . . . . . . . . . . . . . . 2

A. ELEMENTS OF A CRIME . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
B. PHYSICAL ACT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1. Omission as an “Act” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
2. Possession as an “Act” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
C. MENTAL STATE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
1. Specific Intent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
2. Malice—Common Law Murder and Arson . . . . . . . . . . . . . . . . . . . 4
3. General Intent—Awareness of Factors Constituting Crime . . . . . . . . . . 4
4. Strict Liability Offenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
5. Model Penal Code Analysis of Fault . . . . . . . . . . . . . . . . . . . . . . . . 5
6. Vicarious Liability Offenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
7. Enterprise Liability—Liability of Corporations and Associations . . . . . . . 8
8. Transferred Intent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
9. Motive Distinguished . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
D. CONCURRENCE OF MENTAL FAULT WITH PHYSICAL ACT . . . . . . . . 8
E. CAUSATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
III. ACCOMPLICE LIABILITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

A. PARTIES TO A CRIME . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
1. Common Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
2. Modern Statutes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
B. MENTAL STATE—DUAL INTENT REQUIRED . . . . . . . . . . . . . . . . . . 9
1. Provision of Material . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
C. SCOPE OF LIABILITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
1. Inability to Be Principal No Bar to Accomplice Liability . . . . . . . . . . . . 11
2. Exclusions from Liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
IV. INCHOATE OFFENSES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

A. SOLICITATION
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

ii. CRIMINAL LAW
1. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
2. Defenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
3. Merger . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
B. CONSPIRACY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
1. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
2. Termination of Conspiracy . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
3. Liability for Co-Conspirators’ Crimes . . . . . . . . . . . . . . . . . . . . . . 14
4. Defenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
5. Punishment—No Merger . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
C. ATTEMPT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
1. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
2. Defenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
3. Prosecution for Attempt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
V. RESPONSIBILITY AND CRIMINAL CAPACITY . . . . . . . . . . . . . . . . . . . 17

A. INSANITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
1. M’Naghten Rule . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
2. Irresistible Impulse Test . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
3. Durham (or New Hampshire) Test . . . . . . . . . . . . . . . . . . . . . . . . 17
4. A.L.I. or Model Penal Code Test . . . . . . . . . . . . . . . . . . . . . . . . . 17
5. Procedural Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
6. Post-Acquittal Commitment to Mental Institution . . . . . . . . . . . . . . . 18
7. Mental Condition During Criminal Proceedings . . . . . . . . . . . . . . . . 18
8. Diminished Capacity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
B. INTOXICATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
1. Voluntary Intoxication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
2. Involuntary Intoxication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
3. Relationship to Insanity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
C. INFANCY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
VI. PRINCIPLES OF EXCULPATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

A. JUSTIFICATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
1. Self-Defense . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
2. Defense of Others . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
3. Defense of a Dwelling . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
4. Defense of Other Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
5. Crime Prevention . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
6. Use of Force to Effectuate Arrest . . . . . . . . . . . . . . . . . . . . . . . . . 22
7. Resisting Arrest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
8. Necessity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
9. Public Policy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
10. Domestic Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
B. EXCUSE OF DURESS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
1. Necessity Distinguished . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
C. OTHER DEFENSES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
1. Mistake or Ignorance of Fact . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
2. Mistake or Ignorance of Law—No Defense . . . . . . . . . . . . . . . . . . . 24
3. Consent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

C CM R CONVISER MINI REVIEW iii.
4. Condonation or Criminality of Victim—No Defense . . . . . . . . . . . . . . 25

5. Entrapment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
VII. OFFENSES AGAINST THE PERSON . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

A. ASSAULT AND BATTERY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
1. Battery . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
2. Assault . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
B. MAYHEM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
C. HOMICIDE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
1. Common Law Criminal Homicides . . . . . . . . . . . . . . . . . . . . . . . 27
2. Statutory Modification of Common Law Classification . . . . . . . . . . . . 30
3. Felony Murder . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
4. Causation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
5. Born Alive Rule . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
D. FALSE IMPRISONMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
E. KIDNAPPING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
1. Aggravated Kidnapping . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
VIII. SEX OFFENSES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

A. RAPE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
1. Absence of Marital Relationship . . . . . . . . . . . . . . . . . . . . . . . . . 33
2. Lack of Effective Consent . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
B. STATUTORY RAPE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
1. Mistake as to Age . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
C. ADULTERY AND FORNICATION . . . . . . . . . . . . . . . . . . . . . . . . . 34
D. INCEST . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
E. SEDUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
F. BIGAMY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
IX. PROPERTY OFFENSES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

A. LARCENY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
1. Possession . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
2. Intent to Permanently Deprive . . . . . . . . . . . . . . . . . . . . . . . . . . 35
3. Abandoned, Lost, or Mislaid Property . . . . . . . . . . . . . . . . . . . . . . 35
4. “Continuing Trespass” Situation . . . . . . . . . . . . . . . . . . . . . . . . 35
B. EMBEZZLEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
1. Distinguish from Larceny . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
2. Fraudulent Intent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
C. FALSE PRETENSES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
1. “Larceny by Trick” Distinguished . . . . . . . . . . . . . . . . . . . . . . . . 36
2. Misrepresentation Required . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
3. Intent to Defraud . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
D. ROBBERY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
1. Distinguish Larceny . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
E. EXTORTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
1. Distinguish Robbery . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
F. RECEIPT OF STOLEN PROPERTY . . . . . . . . . . . . . . . . . . . . . . . . 38
1. “Possession” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

iv. CRIMINAL LAW
2. “Stolen” Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

G. THEFT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
H. FORGERY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
1. Fraudulently Obtaining Signature of Another . . . . . . . . . . . . . . . . . 39
2. Uttering a Forged Instrument . . . . . . . . . . . . . . . . . . . . . . . . . . 39
I. MALICIOUS MISCHIEF . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
X. OFFENSES AGAINST THE HABITATION . . . . . . . . . . . . . . . . . . . . . . . 39

A. BURGLARY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
B. ARSON . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
1. Damage Required . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
2. Related Offense—Houseburning . . . . . . . . . . . . . . . . . . . . . . . . . 40
XI. OFFENSES INVOLVING JUDICIAL PROCEDURE . . . . . . . . . . . . . . . . . . 40

A. PERJURY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
B. SUBORNATION OF PERJURY . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
C. BRIBERY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
D. COMPOUNDING A CRIME . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
E. MISPRISION OF A FELONY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41

C CM R CONVISER MINI REVIEW 1.
CRIMINAL LAW
INTRODUCTION: GENERAL APPROACH
The Multistate Examination directs examinees to answer questions according to “the generally
accepted view” unless otherwise noted. In Criminal Law, the examiners may tell you the law to apply
if there is no prevailing view. For example:
(i) The call of a question might tell you that the common law applies or that the state follows the
Model Penal Code (“M.P.C.”) approach;
(ii) A fact pattern may also include a statute that you are to apply to the facts;
(iii) Finally, a question might reference a well-known legal doctrine (e.g., the Wharton rule or the
M’Naghten test).
Note that if the examiners do not tell you whether the common law or a statutory version of the
crime applies, it likely means that specific elements of the crime are not relevant to the question—for
example, the question may concern whether voluntary intoxication is a defense to a crime, in which
case the relevant factor is what type of mental state the crime requires, not other elements of the crime
that may vary from jurisdiction to jurisdiction.
I. JURISDICTION AND GENERAL MATTERS
A. JURISDICTION
Generally, a state has jurisdiction over a crime if: any act constituting an element of the offense
was committed in the state, an act outside the state caused a result in the state, the crime involved
the neglect of a duty imposed by the law of the state, there was an attempt or conspiracy outside
the state plus an act inside the state, or there was an attempt or conspiracy inside the state to
commit an offense outside the state.
B. SOURCES OF CRIMINAL LAW

There is no federal common law of crimes; all federal crimes are statutory. American criminal
law included the English common law of crimes unless repealed expressly or impliedly by statute.
The modern trend is to abolish common law crimes either expressly by statute or impliedly by the
enactment of comprehensive criminal codes.
C. THEORIES OF PUNISHMENT
Theories justifying criminal punishment include incapacitation of the criminal, special deter-
rence of the criminal, general deterrence of others, retribution, rehabilitation, and education of the
public.
D. CLASSIFICATION OF CRIMES
There are two classes of crimes: felonies and misdemeanors. Felonies are generally punishable by
death or imprisonment for more than one year; other crimes are misdemeanors.

2. CRIMINAL LAW
E. VAGUENESS AND OTHER CONSTITUTIONAL LIMITATIONS

Due process requires that a criminal statute not be vague. There must be (i) fair warning (i.e., a
person of ordinary intelligence must be able to discern what is prohibited), and (ii) no arbitrary
and discriminatory enforcement. The Constitution places two substantive limitations on both
federal and state legislatures—no ex post facto laws and no bills of attainder.
F. INTERPRETATIONS OF CRIMINAL STATUTES
Criminal statutes are construed strictly in favor of defendants. If two statutes address the same
subject matter but dictate different conclusions, the more specific statute will be applied rather
than the more general. The more recently enacted statute will control an older statute. Under new
comprehensive codes, crimes committed prior to the effective date of the new code are subject to
prosecution and punishment under the law as it existed at the time the offense was committed.
G. MERGER
1. Common Law
At common law, if a person engaged in conduct constituting both a felony and a misde-
meanor, she could be convicted only of the felony. The misdemeanor merged into the felony.
2. Modern Law
There is no longer any merger except that one who solicits another to commit a crime may
not be convicted of both the solicitation and the completed crime (if the person solicited
does complete it). Similarly, a person who completes a crime after attempting it may not
be convicted of both the attempt and the completed crime. Conspiracy, however, does not
merge with the completed offense (e.g., one can be convicted of both robbery and conspiracy
to commit robbery). Under the M.P.C., a defendant may not be convicted of more than one
inchoate crime (i.e., attempt, conspiracy, or solicitation) when his conduct was designed to
culminate in the commission of the same offense (e.g., a defendant who conspired to commit
burglary and then actually attempted to commit burglary could not be convicted of both
conspiracy and attempt).
3. Rules Against Multiple Convictions for Same Transaction
Double jeopardy prohibits trial or conviction of a person for a lesser included offense if
he has been put in jeopardy for the greater offense. However, a court can impose multiple
punishments at a single trial where the punishments are for two or more statutorily defined
offenses specifically intended by the legislature to carry separate punishments, even though
the offenses arise from the same transaction and constitute the same crime.
II. ESSENTIAL ELEMENTS OF A CRIME

A. ELEMENTS OF A CRIME
A crime almost always requires proof of a physical act (actus reus) and a mental state (mens rea),
and concurrence of the act and mental state. It may also require proof of a result and causation
(i.e., that the act caused the harmful result).
B. PHYSICAL ACT
Defendant must have either performed a voluntary physical act or failed to act under circum-
stances imposing a legal duty to act. An act is a bodily movement.

C CM R Exam Tip Remember that the act must be voluntary. In the past, the bar examiners have set up
very unlikely scenarios to test this point—e.g., they have an unconscious person shoot a victim.
Don’t be fooled by these odd facts; if the facts tell you that the defendant was unconscious, the act
was not voluntary, and thus defendant cannot be convicted of a crime based on this act. (The only
exception to this rule would be if the defendant knew he was likely to become unconscious and
commit the act, but this situation would have to be presented in the facts.)
1. Omission as an “Act”
Failure to act gives rise to liability only if:
(i) There is a legal duty to act (see below);
(ii) The defendant has knowledge of the facts giving rise to the duty to act; and
(iii) It is reasonably possible to perform the duty.
A legal duty to act can arise from a statute, contract, relationship between the defendant and
the victim (e.g., a parent/spouse has a duty to protect child/spouse from harm), voluntary
assumption of care by the defendant for the victim, or the creation of peril for the victim by
the defendant.
C CM R Exam Tip For an omission to be a criminal act, there must be a duty to act. There is no
general Good Samaritan law requiring people to help others in trouble. Thus, a defendant is
not liable for the failure to help or rescue another person unless he has a duty to do so—no
matter how easy it would have been to render help. Your moral outrage is not enough for a
criminal conviction.
2. Possession as an “Act”
Criminal statutes that penalize the possession of contraband generally require only that the
defendant have control of the item for a long enough period to have an opportunity to termi-
nate the possession. Possession need not be exclusive to one person, and possession also may
be “constructive,” meaning that actual physical control need not be proved when the contra-
band is located in an area within the defendant’s “dominion and control.”
a. State of Mind Requirement

Absent a state of mind requirement in the statute, the defendant must be aware of his
possession of the contraband, but he need not be aware of its illegality. However, many
statutes add a state of mind element (e.g., “knowingly”) to possession crimes. Under
such statutes, the defendant ordinarily must know the identity or nature of the item
possessed. On the other hand, a defendant may not consciously avoid learning the true
nature of the item possessed; knowledge may be inferred from a combination of suspi-
cion and indifference to the truth.
C. MENTAL STATE
1. Specific Intent
A crime may require not only the doing of an act, but also the doing of it with a specific
intent or objective. The existence of a specific intent cannot be conclusively imputed from
the mere doing of the act, but the manner in which the crime was committed may provide

4. CRIMINAL LAW
circumstantial evidence of intent. The major specific intent crimes and the intents they
require are as follows:
a. Solicitation: Intent to have the person solicited commit the crime.
b. Attempt: Intent to complete the crime.
c. Conspiracy: Intent to have the crime completed.
d. First degree premeditated murder: Premeditated intent to kill.
e. Assault: Intent to commit a battery.
f. Larceny and robbery: Intent to permanently deprive the other of his interest in the
property taken.
g. Burglary: Intent to commit a felony in the dwelling.
h. Forgery: Intent to defraud.
i. False pretenses: Intent to defraud.
j. Embezzlement: Intent to defraud.
C CM R Exam Tip Never forget that attempt is a specific intent crime—even when the crime
attempted is not. Thus, although common law murder does not require a specific intent to
kill (i.e., recklessly disregarding a high risk to human life would be enough), attempted
common law murder requires the specific intent to kill. Without that intent, a defendant is
not guilty of attempted murder.
Examples: 1) D intends to kill V but only wounds him. D had the requisite specific intent
(i.e., the intent to kill) and is guilty of attempted murder.
2) D intends to scare V by shooting V’s hat off his head. If D’s shot kills V, D
is guilty of murder; but if V is merely wounded, D is not guilty of attempted
murder. (D may, of course, be guilty of battery.)
2. Malice—Common Law Murder and Arson

The intent necessary for malice crimes (common law murder and arson) requires a reckless
disregard of an obvious or high risk that the particular harmful result will occur.
Defenses to specific intent crimes (e.g., voluntary intoxication) do not apply to malice
crimes.
3. General Intent—Awareness of Factors Constituting Crime

Almost all crimes require at least “general intent,” which is an awareness of all factors
constituting the crime; i.e., defendant must be aware that she is acting in the proscribed way
and that any required attendant circumstances exist. The defendant need not be certain that

all the circumstances exist; it is sufficient that she is aware of a high likelihood that they will
occur.
a. Inference of Intent from Act
A jury may infer the required general intent merely from the doing of the act.
4. Strict Liability Offenses

A strict liability or public welfare offense is one that does not require awareness of all of
the factors constituting the crime; i.e., the defendant can be found guilty from the mere fact
that she committed the act. Common strict liability offenses are selling liquor to minors and
statutory rape. Defenses that negate state of mind, such as mistake of fact, are not available.
5. Model Penal Code Analysis of Fault

The M.P.C. eliminates the common law distinctions between general and specific intent and
adopts the following categories of intent:
CMR
SUMMARY
REQUISITE INTENT FOR MAJOR CRIMES
CHART
Specific Intent General Intent Malice Strict Liability
1. Solicitation 1. Battery 1. Common Law 1. Statutory Rape

Murder
2. Attempt 2. Rape 2. Selling Liquor to
2. Arson Minors
3. Conspiracy 3. Kidnapping
3. Bigamy (some
4. First Degree 4. False jurisdictions)
Premeditated Imprisonment
Murder
5. Assault
(Attempted
Battery)
6. Larceny,
Robbery
7. Burglary
8. Forgery
9. False Pretenses
10. Embezzlement

6. CRIMINAL LAW
a. Purposely, Knowingly, or Recklessly

When a statute requires that the defendant act purposely, knowingly, or recklessly, a
subjective standard is used.
1) Purposely
A person acts purposely when his conscious object is to engage in certain conduct
or cause a certain result.
2) Knowingly
A person acts knowingly with respect to the nature of his conduct when he is
aware that his conduct is of a particular nature or that certain circumstances exist.
Also, he is deemed to be aware of these circumstances when he is aware of a
high probability that they exist and deliberately avoids learning the truth. He
acts knowingly with respect to the result of his conduct when he knows that his
conduct will necessarily or very likely cause a particular result. Knowing conduct
frequently satisfies a statute requiring willful conduct (but note: some criminal
statutes define willfulness as requiring that the defendant act knowingly and inten-
tionally/purposely).
3) Recklessly
A person acts recklessly when he consciously disregards a substantial and unjus-
tifiable risk that circumstances exist or that a prohibited result will follow, and this
disregard constitutes a gross deviation from the standard of care that a reason-
able person would exercise in that situation. Recklessness involves both objective
(“unjustifiable risk”) and subjective (“awareness”) elements. Unless the statute
specifies a different degree of fault or is a strict liability offense, the defendant
must have acted at least recklessly to be criminally liable. Reckless conduct satis-
fies a statute requiring wanton conduct.
C CM R Exam Tip A criminal law question often asks you to interpret a statute. Check the
language of the statute carefully for the mental state required for each material element
of the crime, because whether a defendant is guilty often turns on that mental state. For
example, if the statute requires that a defendant act “knowingly” (such as “knowingly
selling guns to a felon”), the defendant will be guilty only if she had that knowledge
(e.g., knew, or was aware of high probability and deliberately avoided the truth, that the
purchaser was a felon).
b. Negligence
A person acts negligently when he fails to be aware of a substantial and unjustifiable
risk, where such failure is a substantial deviation from the standard of care. To deter-
mine whether a person acted negligently, an objective standard is used. However, it is
not just the reasonable person standard that is used in torts. The defendant must have
taken a very unreasonable risk.
6. Vicarious Liability Offenses

A vicarious liability offense is one in which a person without personal fault may nevertheless
be held liable for the criminal conduct of another (usually an employee). The trend is to limit
vicarious liability to regulatory crimes and to limit punishment to fines.

CMR
SUMMARY STATE OF MIND
CHART
Objective or
Mens Rea State of Mind Required Subjective Test?
Common Law
Specific Intent Intent to engage in proscribed conduct Subjective
General Intent Awareness of acting in proscribed manner Subjective
Malice Reckless disregard of a known risk Subjective
Strict Liability Conscious commission of proscribed act Not Applicable
M.P.C. Fault Standards
Purposely Conscious object to engage in proscribed Subjective

conduct
Knowingly Awareness that conduct is of a particular Subjective

nature or will cause a particular result
Recklessly Consciously disregarding a substantial Subjective and

and unjustifiable risk objective
Negligently Failure to be aware of a substantial and Objective

unjustifiable risk

8. CRIMINAL LAW
7. Enterprise Liability—Liability of Corporations and Associations

At common law, a corporation does not have capacity to commit crimes. Under modern
statutes, corporations may be held liable for an act performed by: (i) an agent of the corpo-
ration acting within the scope of his office or employment; or (ii) a corporate agent high
enough in hierarchy to presume his acts reflect corporate policy.
8. Transferred Intent
The defendant can be liable under the doctrine of transferred intent where she intends the
harm that is actually caused, but to a different victim or object. Defenses and mitigating
circumstances may also usually be transferred. The doctrine of transferred intent applies to
homicide, battery, and arson. It does not apply to attempt.
C CM R Exam Tip A person found guilty of a crime on the basis of transferred intent is usually
guilty of two crimes: the completed crime against the actual victim and attempt against the
intended victim. Thus, if D intends to shoot and kill X, but instead shoots and kills V, D can
be guilty of the murder of V (under the transferred intent doctrine) and the attempted murder
of X.
9. Motive Distinguished
Motive is the reason or explanation for the crime; it is different from intent to commit the
crime. Motive is immaterial to substantive criminal law.
D. CONCURRENCE OF MENTAL FAULT WITH PHYSICAL ACT

The defendant must have had the intent necessary for the crime at the time he committed the act
constituting the crime, and the intent must have actuated the act. For example, if D is driving to
V’s house to kill him, he will lack the necessary concurrence for murder if he accidentally runs V
over before reaching the house.
E. CAUSATION
Some crimes (e.g., homicide) require result and causation (see VII.C.4., infra).
III. ACCOMPLICE LIABILITY

A. PARTIES TO A CRIME
1. Common Law
At common law, parties to a crime included the principal in the first degree (person who
actually engaged in the act or omission that constitutes the offense or who caused an innocent
agent to do so), principal in the second degree (person who aided, commanded, or encouraged
the principal and was present at the crime), accessory before the fact (person who assisted or
encouraged but was not present), and accessory after the fact (person who, with knowledge
that the other committed a felony, assisted him to escape arrest or punishment). At common
law, conviction of the principal was required for conviction of an accessory, but most jurisdic-
tions have abandoned this requirement.
2. Modern Statutes
Most jurisdictions have abolished the distinctions between principals in the first degree and
principals in the second degree or accessories before the fact. All such “parties to the crime”

can be found guilty of the principal offense. For convenience, however, think of the one who
actually engages in the act (either personally or through an innocent agent) or omission as
the principal and the other parties as accomplices.
Note: An accessory after the fact (one who assists another knowing that he has committed
a felony in order to help him escape) is still treated separately. Punishment for this crime
usually bears no relationship to the principal offense.
CMR
SUMMARY
MODERN ACCOMPLICE LIABILITY
CHART
Defendant Conduct Liability
Principal Person who commits the Liable for principal crime

illegal act or who causes an
innocent agent to do so
Accomplice (includes Person who aids or Liable for principal crime if

common law accessory encourages principal to accomplice intended to aid or
before the fact) commit the illegal conduct encourage crime
Accessory After the Fact Person who aids another to Liable for separate, less
escape knowing that he has serious crime of being an
committed a felony accessory after the fact
B. MENTAL STATE—DUAL INTENT REQUIRED

In order to be convicted of a substantive crime as an accomplice, the accomplice must have (i) the
intent to assist the principal in the commission of a crime; and (ii) the intent that the principal
commit the substantive offense. When the substantive offense has recklessness or negligence as
its mens rea, most jurisdictions would hold that the intent element is satisfied if the accomplice
(i) intended to facilitate the commission of the crime; and (ii) acted with recklessness or negli-
gence (whichever is required by the particular crime).
1. Provision of Material
In the absence of a statute, most courts would hold that mere knowledge that a crime will
result is not enough, at least where the aid given is in the form of the sale of ordinary goods
at ordinary prices (e.g., a gas station attendant will not be liable for arson for knowingly
selling a gallon of gasoline to an arsonist). However, procuring an illegal item or selling at a
higher price because of the buyer’s purpose (e.g., charging the arsonist $100 for the gallon of
gas) may constitute a sufficient “stake in the venture” to constitute intent.
C. SCOPE OF LIABILITY
An accomplice is responsible for the crimes he did or counseled and for any other crimes
committed in the course of committing the crime contemplated to the same extent as the
principal, as long as the other crimes were probable or foreseeable.

CMR 05 criminal law R.indd 16
CMR
APPROACH
CLASSIFICATION OF CRIMES
CHART
No Was the crime committed prior Yes

to or in preparation for a more
10. CRIMINAL LAW
serious offense?
Property Was the crime committed Person

against property or against a
person? solicitation attempt conspiracy
(see inchoate crimes chart)
Was the crime

Habitation against the Personal Property Yes No
Did a death result?
habitation or
against personal
property?
burglary arson larceny embezzlement false robbery murder manslaughter felony battery assault false kidnapping rape
pretenses murder imprisonment
(see property crimes chart) (see homicide crimes chart)
9/22/2017 8:56:15 AM
1. Inability to Be Principal No Bar to Accomplice Liability

One who may not be convicted of being a principal may be convicted of being an accom-
plice. Example: At common law a woman cannot be convicted of being the principal in a
rape but can be found guilty as an accomplice if she aids the principal.
2. Exclusions from Liability
a. Members of the Protected Class
Members of the class protected by a statute are excluded from accomplice liability.
Example: A woman transported across state lines cannot be an accomplice to the
crime of transporting women across state lines for immoral purposes,
since she is within the class protected.
b. Necessary Parties Not Provided For
A party necessary to the commission of a crime, by statutory definition, who is not
provided for in the statute is excluded from accomplice liability. Example: If a statute
makes the sale of heroin illegal, but does not provide for punishment of the purchaser,
he cannot be found guilty under the statute as an accomplice to the seller.
c. Withdrawal
A person who effectively withdraws from a crime before it is committed cannot be held
guilty as an accomplice. Withdrawal must occur before the crime becomes unstoppable.
(i) Repudiation is sufficient withdrawal for mere encouragement.
(ii) Attempt to neutralize assistance is required if participation went beyond mere
encouragement.
Notifying the police or taking other action to prevent the crime is also sufficient. A mere
withdrawal from involvement without taking any additional action is not sufficient.
IV. INCHOATE OFFENSES

A. SOLICITATION
1. Elements
Solicitation consists of inciting, counseling, advising, urging, or commanding another to
commit a crime, with the intent that the person solicited commit the crime. It is not neces-
sary that the person solicited respond affirmatively.
2. Defenses
It is not a defense that the person solicited is not convicted, nor that the offense solicited
could not in fact have been successful. In most jurisdictions, it is not a defense that the
solicitor renounces or withdraws the solicitation. The M.P.C. recognizes renunciation as a
defense if the defendant prevents the commission of the crime, such as by persuading the
person solicited not to commit the crime. However, it is a defense that the solicitor could not
be found guilty of the completed crime because of a legislative intent to exempt her (e.g., a
minor female cannot be guilty of solicitation of statutory rape by urging an adult male to
have intercourse with her, because she could not be guilty of the completed crime).

12. CRIMINAL LAW
3. Merger
If the person solicited commits the crime solicited, both that person and the solicitor can
be held liable for that crime. If the person solicited commits acts sufficient to be liable for
attempt, both parties can be liable for attempt. If the person solicited agrees to commit the
crime, but does not even commit acts sufficient for attempt, both parties can be held liable
for conspiracy. However, under the doctrine of merger, the solicitor cannot be punished for
both the solicitation and these other offenses.
B. CONSPIRACY
1. Elements
Conspiracy is probably the most tested inchoate crime. A conspiracy requires (i) an agree-
ment between two or more persons; (ii) an intent to enter into the agreement; and (iii) an
intent by at least two persons to achieve the objective of the agreement. The object of the
conspiracy must be criminal or the achievement of the lawful object by criminal means.
Unlike the common law, a majority of states require an overt act, but an act of mere prepara-
tion will suffice.
a. Agreement Requirement
The parties must agree to accomplish the same objective by mutual action. However, the
agreement need not be express; it may be inferred from joint activity.
1) Requirement of Two or More Parties

A critical issue to look for is whether the jurisdiction follows the unilateral or
common law approach to the two-party requirement for conspiracy.
a) Modern Trend—“Unilateral” Approach

The modern trend follows the M.P.C.’s “unilateral” approach to conspiracy,
which requires that only one party have genuine criminal intent. Accordingly,
under the unilateral approach, a defendant can be convicted of conspiracy if
he conspires with one person only and that person is a police officer working
undercover.
b) Traditional Rule—“Bilateral” Approach

At common law, a conspiracy requires at least two “guilty minds,” i.e.,
persons who are actually committed to the illicit plan. Under this “bilateral”
approach, if one person in a two party agreement is only feigning agreement,
the other party cannot be convicted of conspiracy. This requirement of two
guilty minds gives rise to a number of problems.
(1) Husband and Wife

At common law, a husband and wife could not conspire together, but this
distinction has been abandoned in most states.
(2) Corporation and Agent

There can be no conspiracy between a corporation and a single agent
acting on its behalf. There is a split of authority as to whether the agents
of a corporation can be deemed co-conspirators with the corporation.

(3) Wharton Rule

Under the Wharton Rule, where two or more people are necessary for
the commission of the substantive offense (e.g., adultery, dueling), there
is no crime of conspiracy unless more parties participate in the agree-
ment than are necessary for the crime (e.g., because it takes two people
to commit adultery, it takes three people to conspire to commit adultery).
Exception: The Wharton Rule does not apply to agreements with
“necessary parties not provided for” by the substantive offense; both
parties may be guilty of conspiracy even though both are necessary for
commission of the substantive offense.
(4) Agreement with Person in “Protected Class”

If members of a conspiracy agree to commit a crime designed to protect
persons within a given class, persons within that class cannot be guilty
of the crime itself or of conspiracy to commit that crime. Likewise, the
nonprotected person cannot be guilty of conspiracy if the agreement was
with the protected person only.
(5) Effect of Acquittal of Some Conspirators

Under the traditional view, the acquittal of all persons with whom
a defendant is alleged to have conspired precludes conviction of the
remaining defendant. In some jurisdictions following the traditional
view, a conviction for conspiracy against one defendant is allowed to
stand when the alleged co-conspirator is acquitted in a separate trial.
C CM R Exam Tip Acquittal is the key here. If the defendant and others allegedly
conspired and only the defendant is charged and tried (e.g., the other parties
are not apprehended or not prosecuted), the defendant can be convicted. But
if the defendant is charged and tried and all the others have been acquitted,
the defendant cannot be convicted. (The acquittals show that there was no one
with whom the defendant could conspire.)
2) Number of Conspiracies in Multiple Party Situations

In complex situations, there may be a large conspiracy with a number of subcon-
spiracies. In such situations, it is important to determine whether members of
one subconspiracy are liable for the acts of another subconspiracy. The two most
common situations are:
a) Chain Relationship
A chain relationship is a single, large conspiracy in which all parties to
subagreements are interested in the single large scheme. In this case, all
members are liable for the acts of the others in furtherance of the conspiracy.
b) Hub-and-Spoke Relationship
In a hub-and-spoke relationship a number of independent conspiracies are
linked by a common member. Although the common member will be liable
for all of the conspiracies, members of the individual conspiracies are not
liable for the acts of the other conspirators.

14. CRIMINAL LAW
b. Mental State—Specific Intent

Conspiracy is a specific intent crime. Parties must have: (i) the intent to agree and (ii)
the intent to achieve the objective of the conspiracy.
C CM R Exam Tip On your exam, remember to tie in the state of mind requirement with
the “two or more parties” requirement. In states following the common law bilateral
approach, there must be two parties with the specific intent to pursue an unlawful
objective.
c. Overt Act
At common law, the conspiracy was complete when the agreement with the requisite
intent was reached. Most states now require that an act in furtherance of the conspiracy
be performed. An act of mere preparation is usually sufficient.
2. Termination of Conspiracy
The point at which a conspiracy terminates is important because acts and statements of
co-conspirators are admissible against a conspirator only if they were done or made in
furtherance of the conspiracy. A conspiracy usually terminates upon completion of the
wrongful objective. Unless agreed to in advance, acts of concealment are not part of the
conspiracy. Note also that the government’s defeat of the conspiracy’s objective does not
automatically terminate the conspiracy.
3. Liability for Co-Conspirators’ Crimes

A conspirator may be held liable for crimes committed by other conspirators if the crimes (i)
were committed in furtherance of the objectives of the conspiracy and (ii) were foreseeable.
4. Defenses
a. Factual Impossibility
Factual impossibility is not a defense to conspiracy.
b. Withdrawal
Generally, withdrawal from the conspiracy is not a defense to the conspiracy, because
the conspiracy is complete as soon as the agreement is made and an act in furtherance
is performed. Withdrawal may be a defense to crimes committed in furtherance of the
conspiracy, including the substantive target crime of the conspiracy.
1) When Withdrawal Effective

To withdraw, a conspirator must perform an affirmative act that notifies all
members of the conspiracy of her withdrawal. Notice must be given in time for the
members to abandon their plans. If she has also provided assistance as an accom-
plice, she must try to neutralize the assistance.
C CM R Exam Tip Withdrawal from a conspiracy is another important test issue. You must be
careful here not to let your feelings get in the way of a correct answer. Remember that a
conspiracy is complete upon the agreement with the requisite intent and an overt act. Since
the overt act can be a preparatory act, the conspiracy is usually complete very soon after
the agreement. If the crime is complete, the defendant is guilty of conspiracy—even if the
facts show that she had second thoughts, told her co-conspirators that she was backing out,

warned the police, hid the weapons, etc. These actions come too late; defendant is guilty of
conspiracy. (Such actions may relieve defendant of criminal liability for her co-conspirators’
acts after this withdrawal, but they have no effect on the crime of conspiracy.)
5. Punishment—No Merger
Conspiracy and the completed crime are distinct offenses; i.e., there is no merger. A defen-
dant may be convicted of and punished for both.
C. ATTEMPT
1. Elements
Attempt is an act, done with intent to commit a crime, that falls short of completing the
crime.
a. Intent
To be guilty of attempt, the defendant must intend to perform an act and obtain a
result that, if achieved, would constitute a crime. Regardless of the intent necessary
for the completed offense, an attempt always requires a specific intent (i.e., the intent
to commit the crime). Example: To be guilty of attempt to commit murder, defendant
must have had the specific intent to kill another person, even though the mens rea for
murder itself does not necessarily require a specific intent to kill.
C CM R Exam Tip Attempt to commit a crime defined as the negligent production of a result
(e.g., negligent homicide) is logically impossible because a person cannot intend to be
negligent. Thus, there can be no attempted negligent homicide, etc. The same holds
true for crimes that require recklessness.
b. Overt Act
Defendant must commit an act beyond mere preparation for the offense. Traditionally,
most courts followed the “proximity” test, which requires that the act be “dangerously
close” to successful completion of the crime (e.g., pointing a loaded gun at an intended
victim and pulling the trigger, only to have the gun not fire or the bullet miss its mark
is sufficient). However, today most state criminal codes (and the Model Penal Code)
require that the act or omission constitute a “substantial step in a course of conduct
planned to culminate in the commission of the crime” that strongly corroborates the
actor’s criminal purpose.
C CM R Exam Tip Note that the overt act required for attempt is much more substantial than
the overt act required for conspiracy.
2. Defenses
a. Legal Impossibility
If the defendant, having completed all acts that he had intended, would have committed
no crime, he cannot be guilty of an attempt to do the same if he fails to complete all
intended acts. Legal impossibility is a defense, albeit rare.
b. Factual Impossibility
The substantive crime is incapable of completion due to some physical or factual
condition, unknown to the defendant. Factual impossibility is not a defense.

16. CRIMINAL LAW
C CM R
Exam Tip If you get stumped on a question that asks you to decide whether impos-
sibility is a defense, ask yourself: “If the defendant were able to complete all of the acts
that he intended to do, and if all of the attendant circumstances actually were as the
defendant believed them to be, would the defendant have committed a crime?” The
answer usually will be yes, in which case the impossibility is factual and not a defense.
In the unusual case where the answer is no, the defendant most likely has a legal impos-
sibility defense.
c. Abandonment
Abandonment is not a defense at common law. If defendant had the intent and
committed an overt act, she is guilty of attempt despite the fact that she changed her
mind and abandoned the plan before the intended crime was completed. The M.P.C.,
followed in a number of jurisdictions, provides that a fully voluntary and complete
abandonment is a defense.
3. Prosecution for Attempt
A defendant charged only with a completed crime may be found guilty of the completed
crime or an attempt, but a defendant charged only with attempt may not be convicted of the
completed crime.
CMR
COMPARISON INCHOATE CRIMES
CHART
Solicitation Conspiracy Attempt
Culpable Conduct Solicitation of another Agreement between Performance of an

to commit a crime two or more people to act that would be a
commit a crime crime if successful
Mental State Specific intent that Specific intent to: (i) Specific intent to
person solicited enter into agreement; commit the particular
commit the crime and (ii) achieve crime attempted
objective
Overt Act No act (other than the Act in furtherance of M.P.C.—substantial

solicitation) the conspiracy (no step test (Traditional
act was required rule—act
under common law) dangerously close to
success)
Merger into Yes No Yes

Substantive
Offense?
Withdrawal a Generally no No, except for Generally no

Defense? further crimes of
co-conspirators

V. RESPONSIBILITY AND CRIMINAL CAPACITY
A. INSANITY
There are several formulations of the test to be applied to determine whether, at the time of the
crime, the defendant was so mentally ill as to be entitled to acquittal.
1. M’Naghten Rule
Under this rule, a defendant is entitled to acquittal if: (i) a disease of the mind; (ii) caused a
defect of reason; (iii) such that the defendant lacked the ability at the time of his actions to
either know the wrongfulness of his actions or understand the nature and quality of his
actions. Delusions, belief that one’s actions are morally right, or loss of control because of
mental illness are not defenses unless this test is met.
2. Irresistible Impulse Test

Under this test, a defendant is entitled to acquittal only if, because of a mental illness, he was
unable to control his actions or conform his conduct to the law.
3. Durham (or New Hampshire) Test

Under this test, a defendant is entitled to acquittal if the crime was the product of his mental
illness (i.e., crime would not have been committed but for the disease). The Durham test is
broader than either the M’Naghten test or the irresistible impulse test. It is followed only in
New Hampshire.
4. A.L.I. or Model Penal Code Test

Under the M.P.C. test (which represents the “modern trend”), a defendant is entitled to
acquittal if he had a mental disease or defect, and, as a result, he lacked the substantial
capacity to either: (i) appreciate the criminality of his conduct; or (ii) conform his conduct
to the requirements of law.
C CM R Exam Tip It is important to know these separate insanity tests because questions may ask
you about a specific test (e.g., “If the jurisdiction has adopted the M.P.C. test for determining
insanity, what is defendant’s best argument for acquittal on this ground?”). To answer this
type of question, you must know the requirements for that particular test. A shorthand way to
remember the test is:
M’Naghten—defendant does not know right from wrong or does not understand his
actions;
Irresistible Impulse—(as the name says) an impulse that defendant cannot resist;
Durham—but for the mental illness, defendant would not have done the act;
A.L.I. or M.P.C.—combination of M’Naghten and irresistible impulse.
5. Procedural Issues
a. Burdens of Proof and Persuasion

All defendants are presumed sane; the defendant must raise the insanity issue. In most
states, once the issue is raised, the defendant must prove his insanity, generally by a
preponderance of the evidence. Other states (and the M.P.C.) require the prosecution

18. CRIMINAL LAW
to prove the defendant was sane beyond a reasonable doubt. Federal courts require the
defendant to prove insanity by clear and convincing evidence.
b. When Defense May Be Raised

Although the insanity defense may be raised at the arraignment when the plea is taken,
the defendant need not raise it then. A simple “not guilty” at that time does not waive
the right to raise the defense at some future time.
c. Pretrial Psychiatric Examination

If the defendant does not raise the insanity issue, he may refuse a court-ordered psychi-
atric examination to determine his competency to stand trial. If the defendant raises the
insanity issue, he may not refuse to be examined by a psychiatrist appointed to aid the
court in the resolution of his insanity plea.
6. Post-Acquittal Commitment to Mental Institution

In most jurisdictions, a defendant acquitted by reason of insanity may be committed to a
mental institution until cured. Confinement may exceed the maximum period of incarcera-
tion for the offense charged.
7. Mental Condition During Criminal Proceedings

Under the Due Process Clause of the United States Constitution, a defendant may not be
tried, convicted, or sentenced if, as a result of a mental disease or defect, he is unable (i)
to understand the nature of the proceedings being brought against him; or (ii) to assist his
lawyer in the preparation of his defense. A defendant may not be executed if he is incapable
of understanding the nature and purpose of the punishment.
8. Diminished Capacity
Some states recognize the defense of “diminished capacity” under which the defendant may
assert that as a result of a mental defect short of insanity, he did not have the mental state
required for the crime charged. Most states allowing the diminished capacity defense limit it
to specific intent crimes, but a few states allow it for general intent crimes as well.
B. INTOXICATION
Intoxication may be caused by any substance (e.g., drugs, alcohol, medicine). It may be raised
whenever intoxication negates one of the elements of the crime. The law usually distinguishes
between voluntary and involuntary intoxication.
1. Voluntary Intoxication
Intoxication is voluntary if it is the result of the intentional taking without duress of a
substance known to be intoxicating.
a. Defense to Specific Intent Crimes

Evidence of “voluntary” intoxication may be offered by the defendant only if the crime
requires purpose (intent) or knowledge, and the intoxication prevented the defendant
from formulating the purpose or obtaining the knowledge. Thus, voluntary intoxication

CMR
SUMMARY
DEFENSES NEGATING CRIMINAL CAPACITY
CHART
Defense Elements Applicable Crimes
Insanity Meet applicable insanity test Defense to all crimes

(M’Naghten, irresistible
impulse, Durham, or M.P.C.)
Intoxication
– Voluntary Voluntary, intentional taking Defense to specific intent
of a substance known to be crime if intoxication prevents
intoxicating formation of required intent
– Involuntary Taking intoxicating substance Treated as mental illness (i.e.,

without knowledge of its apply appropriate insanity
nature, under duress, or test); may be a defense to all
pursuant to medical advice crimes
Infancy Defendant under age 14 at Common law: Under age

common law ; under modern seven, absolute defense to all
statutes, defendant under age crimes; under 14, rebuttable
13 or 14 presumption of defense.
Modern statutes: Defense to
adult crimes but may still be
delinquent
Diminished Capacity As a result of mental defect Most states with this defense
(some states) short of insanity, defendant did limit it to specific intent
not have the required mental crimes
state to commit the crime

20. CRIMINAL LAW
may be a good defense to specific intent crimes, but not to general intent, malice, or
strict liability crime (e.g., voluntary intoxication will be a good defense to first degree
(premeditated) murder, but not second degree murder, because it includes common law
(malice) murder).
C CM R Exam Tip For crimes that require recklessness (i.e., conscious disregard of a substan-
tial and unjustifiable risk), a person who would have been aware of the risk had he not
been intoxicated acts recklessly with regard to the risk. Additionally, the defense is
not available if the defendant purposely becomes intoxicated in order to establish the
defense.
2. Involuntary Intoxication
Intoxication is involuntary only if it results from the taking of an intoxicating substance
without knowledge of its nature, under direct duress imposed by another, or pursuant to
medical advice while unaware of the substance’s intoxicating effect. Involuntary intoxication
may be treated as a mental illness, and the defendant is entitled to acquittal if she meets the
jurisdiction’s insanity test.
3. Relationship to Insanity
Continuous, excessive drinking or drug use may bring on actual insanity and thus a defen-
dant may be able to claim both an intoxication defense and an insanity defense.
C. INFANCY
At common law, there could be no liability for an act committed by a child under age seven. For
acts committed by a child between ages seven and 14, there was a rebuttable presumption that the
child was unable to understand the wrongfulness of his acts. Children age 14 or older were treated
as adults. Modern statutes often modify this and provide that no child can be convicted of a crime
until a stated age is reached, usually 13 or 14. However, children can be found to be delinquent in
special juvenile or family courts.
VI. PRINCIPLES OF EXCULPATION
A. JUSTIFICATION
The justification defenses arise when society has deemed that although the defendant committed a
proscribed act, she should not be punished because the circumstances justify the action.
C CM R Exam Tip The right to self-defense or other justification defenses depends on the immediacy of
the threat; a threat of future harm is not sufficient. Thus, if someone threatens the defendant by
saying, “Tomorrow I’m going to kill you,” the defendant is not justified in killing the person to
“protect” himself.
C CM R Exam Tip It is crucial to determine the level of force that the defendant used in committing
the proscribed act. As a rule of thumb, nondeadly force is justified where it appears necessary to

avoid imminent injury or to retain property; deadly force is justified only to prevent death or seri-
ous bodily injury.
1. Self-Defense
a. Nondeadly Force
A person without fault may use such force as the person reasonably believes is neces-
sary to protect herself from the imminent use of unlawful force upon herself. There is
no duty to retreat.
b. Deadly Force
A person may use deadly force in self-defense if she (i) is without fault; (ii) is
confronted with “unlawful force”; and (iii) reasonably believes that she is threatened
with imminent death or great bodily harm.
C CM R Exam Tip If the defendant kills in self-defense but not all three of the requirements
for the use of deadly force are met, some states would find the defendant guilty of
manslaughter rather than murder under the “imperfect self-defense” doctrine.
1) Retreat
Generally, there is no duty to retreat before using deadly force. The minority view
requires retreat before using deadly force if the victim can safely do so, unless: (i)
the attack occurs in the victim’s own home; (ii) the attack occurs while the victim is
making a lawful arrest; or (iii) the assailant is in the process of robbing the victim.
c. Right of Aggressor to Use Self-Defense

If one is the aggressor in the confrontation, she may use force in defense of herself only
if (i) she effectively withdraws from the confrontation and communicates to the other
her desire to do so, or (ii) the victim of the initial aggression suddenly escalates the
minor fight into a deadly altercation and the initial aggressor has no chance to withdraw.
2. Defense of Others
A defendant has the right to defend others if she reasonably believes that the person assisted
has the legal right to use force in his own defense. All that is necessary is the reason-
able appearance of the right to use force. Generally, there need be no special relationship
between the defendant and the person in whose defense she acted.
3. Defense of a Dwelling
A person may use nondeadly force in defense of her dwelling when, and to the extent that,
she reasonably believes that such conduct is necessary to prevent or terminate another’s
unlawful entry into or attack upon her dwelling. Deadly force may be used only to prevent a
violent entry and the person reasonably believes that the use of force is necessary to prevent
a personal attack on herself or another in the dwelling, or to prevent an entry to commit a
felony in the dwelling.

22. CRIMINAL LAW
4. Defense of Other Property
a. Defending Possession
Deadly force may never be used in defense of property. Reasonable, nondeadly force
may be used to defend property in one’s possession from what she reasonably believes
is an imminent, unlawful interference. Force may not be used if a request to desist or
refrain from the activity would suffice.
b. Regaining Possession
A person may use force to regain possession of property that he reasonably believes
was wrongfully taken only if he is in immediate pursuit of the taker.
5. Crime Prevention
Nondeadly force may be used to the extent that it reasonably appears necessary to prevent a
felony or serious breach of the peace. Deadly force may be used only if it appears reasonably
necessary to terminate or prevent a dangerous felony involving risk to human life.
6. Use of Force to Effectuate Arrest
a. Police Officers
Nondeadly force may be used by police officers if reasonably necessary to effectuate an
arrest. Deadly force is reasonable only if it is necessary to prevent a felon’s escape and
the police officer reasonably believes that the felon threatens death or serious bodily
harm. A bystander summoned by a police officer to assist him in making an arrest has
the same authority to use force as the officer, and the bystander's good faith assistance
is justified even if it turns out that the officer was exceeding his authority.
b. Private Persons
A private person has the same right to arrest as a police officer with the following
exceptions: A private person has a privilege to use nondeadly force to make an arrest
if a crime was in fact committed and the private person has reasonable grounds to
believe the person arrested has in fact committed the crime. A private person may use
deadly force only if the person harmed was actually guilty of the offense for which the
arrest was made.
7. Resisting Arrest
Under the majority rule, nondeadly force may be used to resist an improper arrest even if a
known officer is making that arrest. (A minority of courts and the M.P.C. do not allow one
to resist a known police officer.) Deadly force may be used, however, only if the person does
not know that the person arresting him is a police officer.
8. Necessity
It is a defense to a crime that the person reasonably believed that commission of the crime
was necessary to avoid an imminent and greater injury to society than that involved in
the crime. The test is objective; a good faith belief is not sufficient. Under the traditional
common law view, the pressure producing the choice of evils had to come from natural
forces; modern cases have abandoned this requirement.

CMR
SUMMARY
JUSTIFICATION DEFENSES
CHART
Defense Amount of Force Allowed
Nondeadly Force Deadly Force
Self-Defense If person reasonably believes Only if person reasonably

force is necessary to protect self believes that he is threatened
with death or great bodily harm
Defense of Others If person reasonably believes Only if person reasonably

force is necessary to protect believes that other is threatened
other person with death or great bodily harm
Defense of Dwelling If person reasonably believes Only if person inside reasonably

force is necessary to prevent believes he is threatened or to
or end unlawful entry prevent felony inside
Defense of Other Property If person reasonably believes Never

force is necessary to defend
property in his possession (but
if request to desist would
suffice, force not allowed)
Crime Prevention If person reasonably believes Only to extent person

force is necessary to prevent reasonably believes deadly
felony or serious breach of force is necessary to prevent
peace or end felony risking human life
Effectuate Arrest
– Police If officer reasonably believes Only to prevent escape of

force is necessary to arrest felon, and police officer
reasonably believes that the
suspect threatens death or
great bodily harm
– Private Person If crime in fact committed and Only to prevent escape of

reasonable belief that this person who actually
person committed it committed felony, and person
reasonably believes that the
suspect threatens death or
great bodily harm
Resisting Arrest If improper arrest Only if improper arrest and

defendant does not know
arrester is a police officer
Necessity If reasonably necessary to Never

avoid greater harm

24. CRIMINAL LAW
a. Limitation—Death
Causing the death of another person to protect property is never justified.
b. Limitation—Fault
The defense of necessity is not available if the defendant is at fault in creating the situa-
tion requiring that he choose between two evils.
9. Public Policy
A police officer (or one assisting him) is justified in using reasonable force against another,
or in taking property, provided the officer acts pursuant to a law, court order, or process
requiring or authorizing him to so act.
10. Domestic Authority

The parents of a minor child, or any person “in loco parentis” with respect to that child, may
lawfully use reasonable force upon the child for the purpose of promoting the child’s welfare.
B. EXCUSE OF DURESS
It is a defense to a crime other than intentional homicide that the defendant reasonably believed
that another person would imminently inflict death or great bodily harm upon him or a member
of his family if he did not commit the crime. Traditionally, threats to property were not suffi-
cient; however, a number of states, consistent with the M.P.C., do allow for threats to property to
give rise to a duress defense, assuming that the value of the property outweighs the harm done to
society by commission of the crime.
1. Necessity Distinguished
Unlike necessity, duress always involves a threat by a human.
C. OTHER DEFENSES
1. Mistake or Ignorance of Fact

Mistake or ignorance of fact is relevant to criminal liability only if it shows that the defen-
dant lacked the state of mind required for the crime; thus, it is irrelevant if the crime
imposes “strict” liability.
a. Reasonableness
If mistake is offered to “disprove” a specific intent, the mistake need not be reason-
able; however, if it is offered to disprove any other state of mind, it must have been
reasonable mistake or ignorance.
C CM R Exam Tip Don’t confuse the defense of mistake of fact with the issue of factual impos-
sibility, discussed earlier. Even though in both situations defendant is mistaken about
certain facts, the results are different. Mistake is usually raised as a defense to a crime
that has been completed; mistake of fact may negate the intent required for the crime.
Impossibility arises only when defendant has failed to complete the crime because of
his mistaken belief about the facts, and is being charged with an attempt to commit the
crime; factual impossibility is not a defense to attempt.
2. Mistake or Ignorance of Law—No Defense

Generally, it is not a defense that the defendant believed that her activity would not be a

crime, even if that belief was reasonable and based on the advice of an attorney. However,
if the reliance on the attorney negates a necessary mental state element, such reliance can
demonstrate that the government has not proved its case beyond a reasonable doubt.
a. Exceptions
The defendant has a defense if: (i) the statute proscribing her conduct was not published
or made reasonably available prior to the conduct; (ii) there was reasonable reliance on
a statute or judicial decision; or (iii) in some jurisdictions, there was reasonable reliance
on official interpretation or advice.
b. Mistake or Ignorance of Law May Negate Intent

If the defendant’s mistake or ignorance as to a collateral legal matter proves that
she lacked the state of mind required for the crime, she is entitled to acquittal. The
ignorance or mistake must involve the elements of the crime, not the existence of a
statute making the act criminal. For example, a defendant cannot be found guilty of
selling a gun to a known felon if she thought that the crime the buyer had been found
guilty of was only a misdemeanor.
3. Consent
Unless the crime requires the lack of consent of the victim (e.g., rape), consent is usually not
a defense. Consent is a defense to minor assaults or batteries if there is no danger of serious
bodily injury. Whenever consent may be a defense, it must be established that: (i) the consent
was voluntarily and freely given; (ii) the party was legally capable of consenting; and (iii)
no fraud was involved in obtaining the consent.
4. Condonation or Criminality of Victim—No Defense

Forgiveness by the victim is no defense. Likewise, the nearly universal rule is that illegal
conduct by the victim of a crime is no defense.
5. Entrapment
Entrapment exists only if (i) the criminal design originated with law enforcement officers
and (ii) the defendant was not predisposed to commit the crime prior to contact by the
government. Merely providing the opportunity for a predisposed person to commit a crime is
not entrapment.
a. Unavailable—If Private Inducement or If Material for Crime Provided by

Government Agent
A person cannot be entrapped by a private citizen. Under federal law, an entrapment
defense cannot be based solely on the fact that a government agent provided an ingre-
dient for commission of the crime (e.g., ingredients for drugs), even if the material
provided was contraband.
C CM R Exam Tip Entrapment is a difficult defense to establish in court and so too on the
MBE. In fact, on the exam, the defendant is usually predisposed to commit the crime
and thus entrapment usually is a wrong choice.

26. CRIMINAL LAW
CMR
SUMMARY
EXCULPATORY DEFENSES
CHART
Defense Applicable To When Available
Justification (self-defense, Usually crimes of force Nondeadly force may

defense of others, defense of (e.g., battery, homicide) usually be used if reasonably
property, necessity, etc.) necessary to avoid imminent
injury or to retain property;
deadly force may be used
only to prevent serious bodily
harm
Duress All crimes except intentional Defendant reasonably

homicide believed that another would
imminently harm him or a
family member if he did not
commit the crime
Mistake of Fact Crimes with a mental state For specific intent crimes,
element (i.e., all crimes any mistake that negates
except strict liability) intent; for other crimes, only
reasonable mistakes
Mistake of Law Crimes with a mental state Mistake must negate

element and statutory crimes awareness of some aspect
of law regarding the
elements of the crime
required or must be due to:
statute not being reasonably
available, reasonable
reliance on statute or judicial
interpretation, or (in some
states) reasonable reliance
on official advice
Consent Crimes requiring lack of Applicable only if: consent is

consent (e.g., rape) and freely given, the party is
minor assaults and batteries capable of consenting, and
no fraud was used to obtain
consent
Entrapment Most crimes, but not Criminal design originated

available if the police merely with the police and the
provide the opportunity to defendant was not
commit the crime predisposed to commit the
crime before contact with
police

VII. OFFENSES AGAINST THE PERSON

A. ASSAULT AND BATTERY
1. Battery
Battery is an unlawful application of force to the person of another resulting in either
bodily injury or an offensive touching. Simple battery is a misdemeanor. A battery can be,
but need not be, intentional, and the force need not be applied directly (e.g., causing a dog to
attack the victim is a battery). Some jurisdictions recognize consent as a defense to simple
battery and/or certain specified batteries.
a. Aggravated Battery
Most jurisdictions treat the following as aggravated batteries and punish them as
felonies: (i) battery with a deadly weapon; (ii) battery resulting in serious bodily harm;
and (iii) battery of a child, woman, or police officer.
2. Assault
Assault is either (i) an attempt to commit a battery or (ii) the intentional creation—other
than by mere words—of a reasonable apprehension in the mind of the victim of imminent
bodily harm. If there has been an actual touching of the victim, the crime can only be
battery, not assault.
a. Aggravated Assault
Aggravated assault (e.g., with a deadly weapon or with intent to rape or maim) is treated
more severely than simple assault.
C CM R Exam Tip Think of assault as two separate crimes: (i) attempted battery assault—a
specific intent crime (i.e., defendant must intend to commit a battery), and (ii) creation of
reasonable apprehension assault. Be sure to consider both types of assault in answering a
question, because one may apply even though the other does not. For example, if D stops
V at knifepoint and demands V’s money, D has committed creation of reasonable appre-
hension assault but not attempted battery assault. You would not want to decide that D is
not guilty of assault because you thought only about attempted battery assault.
C CM R Exam Tip Be aware that some jurisdictions have eliminated the term “battery” and define

that offense as a type of assault. In those states, an “assault” may be either a battery, an
attempted battery, or the intentional creation of a reasonable apprehension of imminent
bodily harm.
B. MAYHEM
At common law, the felony of mayhem required either dismemberment or disablement of a bodily
part. The trend is to abolish mayhem as a separate offense and to treat it instead as a form of
aggravated battery.
C. HOMICIDE
1. Common Law Criminal Homicides
At common law, criminal homicide is divided into three categories:
a. Murder
Murder is the unlawful killing of a human being with malice aforethought. Malice
aforethought exists if there are no facts reducing the killing to voluntary manslaughter
or excusing it (i.e., giving rise to a defense) and it was committed with one of the
following states of mind:

28. CRIMINAL LAW
CMR
APPROACH HOMICIDE CRIMES
CHART
Did defendant’s No No homicide

acts cause the liability
victim’s death?
Yes
Did defendant
have the intent
Did the killing to kill or inflict
Was the crime a occur during the
dangerous Yes No great bodily
commission of harm, or
felony? a crime? recklessly
disregard great
risk to human
life?
Yes No Yes No
Apply felony Apply Did defendant Did defendant

murder rules misdemeanor act in response act with
manslaughter to adequate criminal
rules provocation? negligence?
Yes No Yes No
Voluntary Involuntary No homicide

manslaughter Murder manslaughter liability
Note: This chart will lead you to the prima facie homicide that defendant committed. You must then
decide whether any defenses apply.

(i) Intent to kill;
(ii) Intent to inflict great bodily injury;
(iii) Reckless indifference to an unjustifiably high risk to human life (“abandoned

and malignant heart”); or
(iv) Intent to commit a felony (felony murder).
Intentional use of a deadly weapon authorizes a permissive inference of intent to kill.
C CM R Exam Tip Homicides are emotionally charged crimes, so you must be careful not to let
your emotions lead you to an incorrect answer. If a defendant killed with one of the states
of mind above, he is guilty of murder; if he did not, he is not guilty of murder (although he
could be guilty of other crimes). Thus, even where the facts go out of their way to paint the
defendant as a completely despicable human being, you cannot convict him of murder when
some element of murder is missing. More troublesome is the mercy killing case. If defendant
intends to kill, even as an act of love, he is guilty of murder. Society does not accept compas-
sion as a sufficient justification for the killing of a human being.
b. Voluntary Manslaughter
Voluntary manslaughter is a killing that would be murder but for the existence of
adequate provocation. Provocation is adequate only if:
(i) It was a provocation that would arouse sudden and intense passion in the mind
of an ordinary person, causing him to lose self-control (e.g., exposure to a threat
of deadly force, finding your spouse in bed with another, or being a victim of a
serious battery);
(ii) The defendant was in fact provoked;
(iii) There was not sufficient time between provocation (or provocations) and killing
for passions of a reasonable person to cool; and
(iv) The defendant in fact did not cool off between the provocation and the killing.
C CM R Exam Tip The adequacy of provocation is a key issue in homicide questions. Be sure
to consider carefully the four factors for adequate provocation and not just jump to the
conclusion that there was adequate provocation because you see some signs of provoca-
tion in the fact pattern. Also note the interplay between the reasonable person standard
and what actually happened to defendant. Consider:
(i) Sudden and intense passion that would cause a reasonable person to lose
control—passion must be reasonable under the circumstances; defendant cannot
have been set off by something that would not bother most others.
(ii) Defendant lost control—even if a reasonable person would have been provoked, if
defendant was not, there is no reduction to manslaughter.

30. CRIMINAL LAW
(iii) Not enough time for reasonable person to cool off—this is tricky because it is
hard to say how much time is needed to cool off; a lot depends on the situation, but
the more time that has passed, the more likely it is that a reasonable person would
have cooled off.
(iv) Defendant did not cool off—this is a little easier to judge; if the facts show that
defendant calmed down, there is no reduction to manslaughter.
C CM R Exam Tip Remember that “heat of passion” is no defense to a killing, although it

may reduce the killing from murder to manslaughter. Often a question will set up
facts showing sufficient provocation and then ask about defendant’s criminal liability.
Don’t be fooled by a choice such as “Not guilty because defendant acted in the heat of
passion.” The correct choice will be something like “Guilty of manslaughter, but not
murder, because defendant acted in the heat of passion.”
1) Imperfect Self-Defense
Some states recognize an “imperfect self-defense” doctrine under which murder
may be reduced to manslaughter even though (i) the defendant was at fault in
starting the altercation; or (ii) the defendant unreasonably but honestly believed
in the necessity of responding with deadly force (i.e., defendant’s actions do not
qualify for self-defense).
c. Involuntary Manslaughter
A killing is involuntary manslaughter if it was committed with criminal negligence
(or by “recklessness” under the M.P.C.) or, in some states, during the commission
of an unlawful act (misdemeanor or felony not included within felony murder rule).
Foreseeability of death also may be a requirement.
C CM R Exam Tip Some questions refer specifically to the type of manslaughter (voluntary or
involuntary), while others just say “manslaughter.” If the question does not specify the
type, be sure to consider both, although on the MBE voluntary manslaughter is more
often involved.
2. Statutory Modification of Common Law Classification

In some jurisdictions, murder is divided into degrees by statute. A murder will be second
degree murder (similar to common law murder) unless it comes under the following circum-
stances, which would make it first degree murder:
a. Deliberate and Premeditated

If defendant made the decision to kill in a cool and dispassionate manner and actually
reflected on the idea of killing, even if only for a very brief period, it is first degree
murder.
C CM R Exam Tip First degree murder based on premeditation requires a specific intent,
which may be negated by the defense of voluntary intoxication. If the defendant was
so intoxicated that he was unable to premeditate, he can be convicted only of second
degree or common law murder, which requires only reckless indifference to human life
(and for which voluntary intoxication is not a defense).

b. First Degree Felony Murder

In many states, a killing committed during the commission of an enumerated felony
is felony murder and called first degree murder. The felonies most commonly listed are
burglary, arson, rape, robbery, and kidnapping, but other felonies that are inherently
dangerous to human life are often specifically added. Another statute (or case) may
provide that a killing during any felony is felony murder, but the killing will typically
be classified as second degree felony murder. Some other states do not list the felonies
that may be used for felony murder at all, and the first degree murder classification
is most often attached. Some states require that the felony be inherently dangerous to
human life or the felony be dangerous to human life as committed when it provides for
felony murder liability based on the commission of a felony that is not enumerated.
c. Others
Some statutes make killings performed in certain ways (e.g., by torture) first degree
murder.
3. Felony Murder
Any death caused in the commission of, or in an attempt to commit, a felony is murder.
Malice is implied from the intent to commit the underlying felony.
a. Felonies Included
At common law, there are only a handful of felonies (e.g., burglary, arson, rape, sodomy,
etc.). Statutes today have created many more felonies.
b. Limitations on Liability
There are several limitations on this rule:
(i) The defendant must have committed or attempted to commit the underlying
felony; a defense that negates an element of the underlying offense will also be a
defense to felony murder.
(ii) The felony must be distinct from the killing itself (e.g., commission of aggravated
battery that causes a victim’s death does not qualify as an underlying felony for
felony murder liability).
(iii) Death must have been a foreseeable result of the felony (a minority of courts
require only that the felony be malum in se).
(iv) The death must have been caused before the defendant’s “immediate flight”
from the felony ended; once the felon has reached a place of “temporary safety,”
subsequent deaths are not felony murder.
(v) In most jurisdictions, the defendant is not liable for felony murder when a co-felon
is killed as a result of resistance from the felony victim or the police.
(vi) Under the “proximate cause” theory, felons are liable for the deaths of innocent
victims caused by someone other than a co-felon. Under the alternative “agency”
theory of felony murder, the killing must be committed by a felon or his “agent”
(i.e., an accomplice) with limited exceptions in cases in which the victim was used
as a shield or otherwise forced by the felon to occupy a dangerous place.

32. CRIMINAL LAW
Example: If a bystander is accidentally killed by a police officer during a shootout

at the crime scene, the felons will be guilty of felony murder under
the proximate cause theory, because they put into operation a series of
events that caused the death of the innocent party. However, there would
be no felony murder liability under the agency theory because a police
officer caused the bystander’s death.
1) Misdemeanor Manslaughter
Note that there are similar limitations on misdemeanor manslaughter. Generally,
the misdemeanor must be “malum in se,” or, if the misdemeanor involved is not
malum in se, the death must have been a foreseeable result of the commission of
the misdemeanor.
4. Causation
The defendant’s conduct must be both the cause-in-fact and the proximate cause of the
victim’s death.
a. Cause-in-Fact
A defendant’s conduct is the cause-in-fact of the result if the result would not have
occurred “but for” the defendant’s conduct.
b. Proximate Causation
A defendant’s conduct is the proximate cause of the result if the result is a natural
and probable consequence of the conduct, even if the defendant did not anticipate the
precise manner in which the result occurred. Superseding factors break the chain of
proximate causation.
c. Rules of Causation
An act that hastens an inevitable result is still the legal cause of that result. Also,
simultaneous acts of two or more persons may be independently sufficient causes of a
single result. A victim’s preexisting weakness or fragility, even if unforeseeable, does
not break the chain of causation.
d. Limitations
1) Year and a Day Rule

Traditionally, for a defendant to be liable for homicide, the death of the victim must
occur within one year and one day from infliction of the injury or wound. Most
states that have reviewed this rule have abolished it.
2) Intervening Acts
Generally, an intervening act shields the defendant from liability if the act is
a coincidence or is outside the foreseeable sphere of risk created by the defen-
dant. Note that a third party’s negligent medical care and the victim’s refusal of
medical treatment for religious reasons are both foreseeable risks, so the defen-
dant would be liable.
5. Born Alive Rule

Traditionally, an infant had to be “born alive” to be a victim of a homicide crime. However,

a number of states have abrogated this rule by statute by extending protection to unborn
children as potential homicide victims.
D. FALSE IMPRISONMENT
False imprisonment consists of the unlawful confinement of a person without his valid consent.
The M.P.C. requires that the confinement must “interfere substantially” with the victim’s liberty.
It is not confinement to simply prevent a person from going where she desires to go, as long as
alternative routes are available to her. Note also that consent is invalidated by coercion, threats,
deception, or incapacity due to mental illness, substantial cognitive impairment, or youth.
E. KIDNAPPING
Modern statutes often define kidnapping as unlawful confinement of a person that involves either
(i) some movement of the victim, or (ii) concealment of the victim in a “secret” place.
1. Aggravated Kidnapping
Aggravated kidnapping includes kidnapping for ransom, kidnapping for the purpose of
committing other crimes, kidnapping for offensive purposes, and child stealing (the consent
of a child to her detention or movement is not of importance because a child is incapable of
giving valid consent).
VIII. SEX OFFENSES

A. RAPE
Traditionally, rape was the unlawful carnal knowledge of a woman by a man, not her husband,
without her effective consent. Today, a number of state statutes have renamed “rape” as gender-
neutral “sexual assault.” The slightest penetration is sufficient.
1. Absence of Marital Relationship
Under the traditional rule and the M.P.C., a husband cannot rape his wife, but most states
today either reject this rule entirely or reject it where the parties are estranged or separated.
2. Lack of Effective Consent
To be rape, the intercourse must be without effective consent. Lack of effective consent exists
where:
(i) Intercourse is accomplished by actual force;

(ii) Intercourse is accomplished by threats of great and immediate bodily harm;
(iii) The victim is incapable of consenting due to unconsciousness, intoxication, or mental
condition; or
(iv) The victim is fraudulently caused to believe that the act is not intercourse.
Note that consent due to other types of fraud (e.g., perpetrator persuading victim that he is
her husband or that he will marry her) is effective.
B. STATUTORY RAPE
This is carnal knowledge of a person under the age of consent; it is not necessary to show lack of
consent.

34. CRIMINAL LAW
1. Mistake as to Age
Will a defendant’s reasonable mistake as to the victim’s age prevent liability for statutory
rape? For purposes of the examination, the best answer is no, since statutory rape is a strict
liability crime. A second best answer, to be used only if no alternative making use of the
best position is presented, is that a reasonable mistake as to age will prevent conviction if the
defendant reasonably believed the victim was old enough to give an effective consent.
C. ADULTERY AND FORNICATION
Adultery is committed by both parties to sexual intercourse if either is validly married to someone
else. It is often required that the behavior be open and notorious. Fornication is sexual intercourse
or open and notorious cohabitation by unmarried persons.
D. INCEST
Incest consists of marriage or a sexual act between closely related persons.
E. SEDUCTION
Seduction consists of inducing, by promise of marriage, an unmarried woman to engage in inter-
course. The M.P.C. does not require chastity or that the female be unmarried.
F. BIGAMY
Bigamy is the common law strict liability offense of marrying someone while having another
living spouse.
IX. PROPERTY OFFENSES

A. LARCENY
Larceny consists of:
(i) A taking (obtaining control);
(ii) And carrying away (asportation);
(iii) Of tangible personal property (excluding realty, services, and intangibles, but including
written instruments embodying intangible rights such as stock certificates);
(iv) Of another with possession;
(v) By trespass (without consent or by consent induced by fraud);
(vi) With intent to permanently deprive that person of her interest in the property.
1. Possession
The property must be taken from the custody or possession of another. If the defendant
had possession of the property at the time of the taking, the crime is not larceny, but may be
embezzlement.
a. Custody vs. Possession
Possession involves a greater scope of authority to deal with the property than does
custody. Generally, the defendant has possession if she was given discretionary
authority over the property and has custody if she was given only limited authority

over the property. Ordinarily, low level employees have only custody of an employer’s
property and so are guilty of larceny for taking it.
b. Bailee and “Breaking Bulk”
Generally, a bailee has possession and thus may be guilty of embezzlement if she takes
the property. However, if the bailee opens closed containers in which the property has
been placed by the bailor (i.e., she “breaks bulk”), the possession is regarded, by use of
a fiction, as returning to the bailor, and thus the bailee may then be guilty of larceny if
she takes that property.
2. Intent to Permanently Deprive
Generally, larceny requires that at the time of the taking defendant intended to permanently
deprive a person of her property.
a. Sufficient Intent
An intent to create a substantial risk of loss, or an intent to sell or pledge the goods to
the owner, is sufficient for larceny.
b. Insufficient Intent
Where the defendant believes that the property she is taking is hers or where she intends
only to borrow the property or to keep it as repayment of a debt, there is no larceny.
c. Possibly Sufficient Intent

There may be larceny where the defendant intends to pay for the goods (if the goods
were not for sale) or intends to collect a reward from the owner (if there is no intent to
return the goods absent a reward).
C CM R Exam Tip For a larceny question, be sure that the defendant had the intent to perma-
nently deprive when she took the property. If not, there is no larceny (unless it is a
continuing trespass situation (see 4., infra)). Many questions turn on this one small point.
3. Abandoned, Lost, or Mislaid Property
Larceny can be committed with lost or mislaid property or property that has been delivered
by mistake, but not with abandoned property.
4. “Continuing Trespass” Situation

If the defendant wrongfully takes property without the intent to permanently deprive (e.g.,
without permission borrows an umbrella), and later decides to keep the property, she is guilty
of larceny when she decides to keep it. However, if the original taking was not wrongful (e.g.,
she took the umbrella thinking it was hers) and she later decides to keep it, it is not larceny.
B. EMBEZZLEMENT
Embezzlement is:
(i) The fraudulent;
(ii) Conversion (i.e., dealing with the property in a manner inconsistent with the arrangement by
which defendant has possession);
(iii) Of personal property;

36. CRIMINAL LAW
(iv) Of another;
(v) By a person in lawful possession of that property.
1. Distinguish from Larceny
Embezzlement differs from larceny because in embezzlement the defendant misappropriates
property while it is in his rightful possession, while in larceny the defendant misappropriates
property not in his possession.
2. Fraudulent Intent
Defendant must intend to defraud.
a. Intent to Restore
If the defendant intends to restore the exact property taken, it is not embezzlement.
However, if the defendant intends to restore similar or substantially identical property,
it is embezzlement, even if it was money that was initially taken and other money—of
identical value—that he intended to return.
b. Claim of Right
As in larceny, embezzlement is not committed if the conversion is pursuant to a claim of
right to the property. Whether defendant took the property openly is an important factor.
C. FALSE PRETENSES
The offense of false pretenses is:
(i) Obtaining title;
(ii) To personal property of another;
(iii) By an intentional false statement of a past or existing fact;
(iv) With intent to defraud the other.
1. “Larceny by Trick” Distinguished
If the victim is tricked—by a misrepresentation of fact—into giving up mere custody of
property, the crime is larceny by trick. If the victim is tricked into giving up title to property,
the crime is false pretenses.
2. Misrepresentation Required
The victim must actually be deceived by, or act in reliance on, the misrepresentation, and
this must be a major factor (or the sole cause) of the victim passing title to the defendant.
Traditionally, the defendant’s misrepresentation must have related to a past or present fact,
and false promises to do something in the future, even without the present intent to perform,
were not sufficient. However, under the M.P.C. and the modern prevailing view, any false
representation suffices, including a false promise to perform in the future.
3. Intent to Defraud
Depending on the statute involved, the defendant must either have known the statement to be
false or have intended that the victim rely on the misrepresentation. Most states will find that
the defendant “knew” of the falsity of any statements when, after being put on notice of the
high probability of the statement’s falsity, he deliberately avoided learning the truth.

D. ROBBERY
Robbery consists of:
(i) A taking;
(ii) Of personal property of another;
(iii) From the other’s person or presence (including anywhere in his vicinity);
(iv) By force or threats of immediate death or physical injury to the victim, a member of his
family, or some person in the victim’s presence;
(v) With the intent to permanently deprive him of it.
C CM R Exam Tip For a defendant to be guilty of robbery, the victim must give up her property because
she feels threatened. If she gives up her property for another reason (e.g., she feels sorry for the
defendant, or she wants the defendant to go away), the defendant will not be guilty of robbery. He
may, however, be guilty of attempted robbery.
1. Distinguish Larceny
Robbery differs from larceny because robbery requires that the defendant use force or
threats to obtain or retain the victim’s property. Thus, pickpocketing generally would be
larceny, but if the victim notices the attempt and resists, the taking would be robbery.
CMR
COMPARISON PROPERTY CRIMES
CHART
Crime Activity Method Intent Title
Larceny Taking and Without consent With intent to Title does not
asportation of or with consent steal pass
property from obtained by
possession of fraud
another person
Embezzlement Conversion of Use of property With intent to Title does not

property held in a way defraud pass
pursuant to a inconsistent with
trust agreement terms of trust
False Pretenses Obtaining title to By consent With intent to Title passes

property induced by defraud
fraudulent
misrepresenta-
tion
Robbery Taking of By force or With intent to Title does not

property from threat of force steal pass
another’s
presence

38. CRIMINAL LAW
E. EXTORTION
Common law extortion consists of the corrupt collection of an unlawful fee by an officer under
color of office. Under modern statutes, extortion (blackmail) often consists of obtaining property by
means of threats to do harm or to expose information. Under some statutes, the crime is complete
when threats are made with the intent to obtain property; i.e., the property need not be obtained.
1. Distinguish Robbery
Extortion differs from robbery because in extortion the threats may be of future harm and
the taking does not have to be in the presence of the victim.
F. RECEIPT OF STOLEN PROPERTY
Receipt of stolen property consists of:
(i) Receiving possession and control;
(ii) Of “stolen” personal property;
(iii) Known to have been obtained in a manner constituting a criminal offense;
(iv) By another person;
(v) With the intent to permanently deprive the owner of his interest in it.
1. “Possession”
Manual possession is not necessary. The defendant possesses the property when it is put
in a location designated by her or she arranges a sale for the thief to a third person (i.e.,
“fencing”).
2. “Stolen” Property
The property must be stolen property at the time the defendant receives it.
C CM R Exam Tip In analyzing receipt of stolen property questions, carefully check the property’s
status at the time defendant receives it. If the police have already recovered the property
and use it with the owner’s permission, it is no longer stolen, and the defendant cannot be
convicted of receipt of stolen property. Note, however, that the defendant can be convicted of
attempted receipt of stolen property if she intended to receive the property while believing it
to be stolen.
G. THEFT
Under many modern statutes and the M.P.C., some or all of the above property offenses are
combined and defined as the crime of “theft.”
H. FORGERY
Forgery consists of the following:
(i) Making or altering (by drafting, adding, or deleting);
(ii) A writing with apparent legal significance (e.g., a contract, not a painting);
(iii) So that it is false; i.e., representing that it is something that it is not, not merely containing
a misrepresentation (e.g., a fake warehouse receipt, but not an inaccurate real warehouse
receipt);

(iv) With intent to defraud (although no one need actually have been defrauded).
1. Fraudulently Obtaining Signature of Another

If the defendant fraudulently causes a third person to sign a document that the third person
does not realize he is signing, forgery has been committed. But if the third person realizes
he is signing the document, forgery has not been committed even if the third person was
induced by fraud to sign it.
2. Uttering a Forged Instrument

Uttering a forged instrument consists of: (i) offering as genuine; (ii) an instrument that may
be the subject of forgery and is false; (iii) with intent to defraud.
I. MALICIOUS MISCHIEF
Malicious mischief consists of:
(i) The malicious;
(ii) Destruction of or damage to;
(iii) The property of another.
Malice requires no ill will or hatred. It does, however, require that the damage or destruction have
been intended or contemplated by the defendant.
X. OFFENSES AGAINST THE HABITATION
A. BURGLARY
Common law burglary consists of:
(i) A breaking (creating or enlarging an opening by at least minimal force, fraud, or intimida-
tion; if defendant had the resident’s consent to enter, the entry is not a breaking);
(ii) And entry (placing any portion of the body or any instrument used to commit the crime into
the structure);
(iii) Of a dwelling (a structure used with regularity for sleeping purposes, even if used for other
purposes such as conducting a business);
(iv) Of another (ownership is irrelevant; occupancy by someone other than the defendant is all
that is required);
(v) At nighttime;
(vi) With the intent to commit a felony in the structure (felony need not be carried out to consti-
tute burglary).
Modern statutes often eliminate many of the “technicalities” of common law burglary, including
the requirements of a breaking, that the structure be a dwelling, that the act occur at nighttime,

40. CRIMINAL LAW
and that the intent be to commit a felony (i.e., intent to commit misdemeanor theft is often
enough).
C CM R Exam Tip The intent to commit a felony within must be present at the time of entry; a later-
acquired intent is not sufficient. This technicality is tested; remember it.
B. ARSON
Arson at common law consists of:
(i) The malicious (i.e., intentional or with reckless disregard of an obvious risk);
(ii) Burning (requiring some damage to the structure caused by fire);
(iii) Of the dwelling;
(iv) Of another.
Like statutory changes for burglary, modern arson statutes (including the M.P.C.) have modified
the common law rules, usually to expand potential criminal liability. Most states have expanded
the definition of arson to include damage caused by explosion, and expanded the types of property
that may be destroyed to include commercial structures, cars, trains, etc.
C CM R Exam Tip Although common law arson requires a burning of a dwelling, MBE questions test-
ing on other arson issues often assume, without specifically stating, that arson extends to struc-
tures other than dwellings. Many statutes so provide.
1. Damage Required
Destruction of the structure, or even significant damage to it, is not required to complete the
crime of arson. Mere blackening by smoke or discoloration by heat (scorching) is not suffi-
cient, but mere charring is sufficient.
2. Related Offense—Houseburning
The common law misdemeanor of houseburning consisted of: (i) a malicious; (ii) burning;
(iii) of one’s own dwelling; (iv) if the structure is situated either in a city or town, or so near
to other houses as to create a danger to them.
XI. OFFENSES INVOLVING JUDICIAL PROCEDURE
A. PERJURY
Perjury is the intentional taking of a false oath (lying) in regard to a material matter (i.e., one
that might affect the outcome of the proceeding) in a judicial proceeding.
B. SUBORNATION OF PERJURY
Subornation of perjury consists of procuring or inducing another to commit perjury.
C. BRIBERY
Bribery at common law was the corrupt payment or receipt of anything of value for official action.

Under modern statutes, it may be extended to nonpublic officials, and either the offering of a bribe
or the taking of a bribe may constitute the crime.
D. COMPOUNDING A CRIME
Compounding consists of agreeing, for valuable consideration, not to prosecute another for a
felony or to conceal the commission of a felony or the whereabouts of a felon. Under modern
statutes, the definition refers to any crime.
E. MISPRISION OF A FELONY
At common law, misprision of a felony consisted of the failure to disclose knowledge of the
commission of a felony or to prevent the commission of a felony. Under modern statutes, mispri-
sion is no longer a crime, or if it remains a crime, it requires some affirmative action in aid of the
felon.


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CRIMINAL LAW

CMR 05 criminal law R.indd 1 9/22/2017 8:56:07 AM

INTRODUCTION: GENERAL APPROACH . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

I. JURISDICTION AND GENERAL MATTERS . . . . . . . . . . . . . . . . . . . . . . . 1

II. ESSENTIAL ELEMENTS OF A CRIME . . . . . . . . . . . . . . . . . . . . . . . . . . 2

III. ACCOMPLICE LIABILITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

IV. INCHOATE OFFENSES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

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V. RESPONSIBILITY AND CRIMINAL CAPACITY . . . . . . . . . . . . . . . . . . . 17

VI. PRINCIPLES OF EXCULPATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

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4. Condonation or Criminality of Victim—No Defense . . . . . . . . . . . . . . 25

VII. OFFENSES AGAINST THE PERSON . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

VIII. SEX OFFENSES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

IX. PROPERTY OFFENSES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

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2. “Stolen” Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

X. OFFENSES AGAINST THE HABITATION . . . . . . . . . . . . . . . . . . . . . . . 39

XI. OFFENSES INVOLVING JUDICIAL PROCEDURE . . . . . . . . . . . . . . . . . . 40

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I. JURISDICTION AND GENERAL MATTERS

B. SOURCES OF CRIMINAL LAW

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E. VAGUENESS AND OTHER CONSTITUTIONAL LIMITATIONS

II. ESSENTIAL ELEMENTS OF A CRIME

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(i) There is a legal duty to act (see below);

(iii) It is reasonably possible to perform the duty.

a. State of Mind Requirement

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a. Solicitation: Intent to have the person solicited commit the crime.

b. Attempt: Intent to complete the crime.

c. Conspiracy: Intent to have the crime completed.

d. First degree premeditated murder: Premeditated intent to kill.

e. Assault: Intent to commit a battery.

g. Burglary: Intent to commit a felony in the dwelling.

h. Forgery: Intent to defraud.

i. False pretenses: Intent to defraud.

j. Embezzlement: Intent to defraud.

2. Malice—Common Law Murder and Arson

3. General Intent—Awareness of Factors Constituting Crime

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4. Strict Liability Offenses

5. Model Penal Code Analysis of Fault

Specific Intent General Intent Malice Strict Liability

1. Solicitation 1. Battery 1. Common Law 1. Statutory Rape

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a. Purposely, Knowingly, or Recklessly

6. Vicarious Liability Offenses

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Specific Intent Intent to engage in proscribed conduct Subjective

General Intent Awareness of acting in proscribed manner Subjective

Malice Reckless disregard of a known risk Subjective

Strict Liability Conscious commission of proscribed act Not Applicable

M.P.C. Fault Standards

Purposely Conscious object to engage in proscribed Subjective

Knowingly Awareness that conduct is of a particular Subjective

Recklessly Consciously disregarding a substantial Subjective and

Negligently Failure to be aware of a substantial and Objective