Created Dec.

2024
Based on Dressler textbook

Burden of Proof:
State must prove every element of the offense Beyond a reasonable Doubt – judge instructs jury of law, defines
law. Reasonable doubt is part of instruction.
Prosecutor must prove beyond a reasonable doubt that D is guilty. D does not need to prove that he is not guilty (D
can challenge evidence and assert defenses).
ON APPEAL based on a claim of insufficient evidence: Appellate court will uphold a conviction if ANY rational
factfinder, viewing the evidence in the light MOST FAVORABLE TO THE STATE, could have found that
the state proved the elements of the offense beyond a reasonable doubt.

Defendant has Burden of Persuasion for defenses: which does not violate DPC.

Presumption of Innocence (jury) – think about Voi dire jury selection.

Jury Nullification (acquittal) – controversial.

Principles of Legality – Three Corollaries:

1) Criminal statutes should be understandable to reasonable law-abiding persons. Requirement for previously
defined conduct.
2) Should be crafted so that they do not delegate to policemen, judges and juries for resolution on ad hoc and
subjective basis.
3) Third, judicial interpretation of ambiguous statutes should be biased in favor of the accused, a concept that has
come to be known as the Lenity Doctrine.
Actus Reus:
Actus reus refers to the act or omission that comprise the physical elements of a crime as required by statute. It
must be voluntary.

CL voluntary Act: A “voluntary act” is a willed muscular contraction or bodily movement by the actor. An act is
“willed” if the bodily movement was controlled by the mind of the actor.

MPC NOT VOLUNTARY: 1. Reflex or convulsion 2. Movement during sleep or while unconscious 3. During
hypnosis 4. Movement that is not a product of effort or determination of the actor, whether conscious or habitual.
(HABITUAL ACTS ARE VOLUNTARY)
• Therefore, voluntary act = bodily movement that IS the result of conscious or habitual effort or
determination. …If Epileptic and know it and drive, it is voluntary act.

Omissions: Ordinarily, a person is not guilty of a crime for failing to act, even if such failure permits harm to occur
to another, and even if the person could act at no risk to personal safety

CL Duty to act - When there is

1) Duty Based on Statute
2) duty based on assumption of care - One who voluntarily assumes the care of another must continue to assist if
a subsequent omission would place the victim in a worse position than if the Good Samaritan had not assumed
care at all V is “in peril” and D started to help
3) duty is based on status special relationship (parent-child)
4) duty based on contract ex. bodyguard
5) Duty based on creation of risk – must act to prevent subsequent harm. (culpable or non-culpable)

Duty under MPC:

Liability for offense may not be based on omission (failure to act) UNLESS the omission is expressly made
sufficient by law defining the offense OR the duty to perform an omitted act is otherwise imposed by law.

Omission Analysis: Did D act?

a) If Y à what is the basis for the duty? CL bases? What was D obligated to do? Did D act as required?
b) If N à was D’s failure to discharge duty a but-for and proximate cause of the harm? If Y à did D have the
required mental states regarding 1. the basis of the duty? 2. The existence and content of the duty? 3. The
required mental states re: the result and circumstances of the crime charged?
Created Dec. 2024
Based on Dressler textbook

Concurrence - Requires the actus reus and mens rea to occur at the same time.

Mens Rea:
Mens rea = criminal intent, guilty mind, culpable mind.

Broad meaning of mens rea (culpability) = any blameworthy state of mind including recklessness. “Guilty mind.”
Narrow meaning (elemental) = mental state D must have w/ regard to “social harm” elements set out in definition of
offense. Modern trend is narrow meaning of mens rea, but both are relevant.

INTENT
Statutes using “intent “use the CL meaning unless otherwise noted. (Purposely or Knowingly)

Result Crimes – intent = results that are conscious objective AND results that are practically certain to occur, even if
not wanted. (Murder)

Proving intent from inference – cannot prove what is in someone’s mind. DPC not violated by jury instruction:
“the law presumes that a person intends the ordinary consequences of his voluntary acts.”

CL MENS REA – only required for elements of the crime that include a mental state.
1) Intentionally = if it was D’s conscious objective to cause the result, OR D knew that the result was virtually
certain to occur b/c of the conduct.
a) Transferred intent doctrine: Intent is satisfied if the result differs ONLY in respect to the identity of the
victim.
2) Knowingly = D acted knowingly IF D was either 1) aware of the fact; 2) correctly believes the fact exists or 3)
suspects the fact exists and purposefully avoids learning whether the suspicion is correct, which is called
“willful blindness”)
3) Risk-Taking – Unjustifiable risk taking is determined by gravity of harm, probability of harm, reason for
conduct.
a) Criminal Negligence = D SHOULD BE AWARE that the conduct creates a substantial and unjustifiable
risk of social harm.
b) Recklessness = D IS AWARE with conscious disregard of a substantial and unjustifiable risk that conduct
will cause the harm of the offense.
4) Malice – intentionally or recklessly causes the social harm of an offense. ** Murder has its own special malice
definition**
5) Specific and general intent - Specific = the offense contains a mens rea element in its definition. Intent to
commit; special motive or purpose; awareness of attendant circumstances. General = offense does not contain a
specific intent, general culpable state of mind. (Strict Liability has no mens rea requirement.)

MPC MENS REA - adopted by many states, consistently applies an ‘elemental’ approach aka narrow definition.
“Except as provided in Section 2.05, a person is not guilty of an offense unless he acted purposely, knowingly,
recklessly or negligently, as the law may require, with respect to each material element of the offense.”
1) Distinction btwn purpose and knowledge: A intended to blow up Z, and knew that Z’s wife would also get
blown up.
a) Purposefully = conscious object to cause such a result (w/ respect to the element), or Aware of attendant
circumstances involved in the element or hopes or believes they exist.
b) Knowingly = aware that it is practically certain that conduct will cause result, or aware of attendant
circumstances involved in the element. (MPC willful blindness = knowledge! reason to believe, unless D
actually believes contrary).
2) Reckless = consciously disregards substantial and unjustifiable risk that the element will result from conduct.
(jury decides the substantial and unjustifiable part). Refusal to believe attendant circumstances, in denial about
risk.
Created Dec. 2024
Based on Dressler textbook

a) a gross deviation from the standard of conduct that a law-abiding person would observe in the actor’s
situation. What did the actor believe regarding the probability that his conduct would cause the result? Why
take the risk? Was it justified?
3) Negligence = should be aware of substantial and unjustifiable risk (attendant circumstance) but isn’t. No state
of awareness involved, inadvertently creates risk. Jury decides the substantial and unjustifiable part.
a) Would a “reasonable person in the actor’s situation” have realized that his action created a substantial and
unjustifiable risk of causing the result? Or been aware of attendant circumstances?

“a person acts _(purposefully)__ with respect to a material element of an offense when __”

Attendant circumstances are the elements other than actus reus, mens rea and the result that define the crime. They
are additional facts that define the crime. (i.e. with a person under 18)

MPC default where statute is silent on mens rea: purposely, knowingly or recklessly.

MPC - Culpability must be proved for Each Element of the offense, or no conviction. Culpability may involve:
1. Nature of forbidden conduct
2. Attendant circumstances
3. Result of conduct

MPC transferred intent - Causal Relationship Between Conduct and Result:

1) When purposely causing a particular result is an element of an offense, the element is not established if the
actual result is not within the purpose of the actor unless:
a) the actual result differs from that designed only in the respect that a different person is injured OR that the
injury designed would have been more serious or extensive than that caused.

Strict liability - An offense is “strict liability” in nature if commission of the actus reus of the offense, without
proof of a mens rea, is sufficient to convict the actor.

Statutory Rape is a strict liability crime. Felony Murder is strict liability. As are traffic offenses, possession of
narcotics, and selling alcohol to a minor. (torts - product liability is strict liability too).

Defenses that negate mens rea are not available b/c no mens rea required.

Mistake of Fact Defense to Mens rea

Mistake of fact is when D’s actions were based on an honest and reasonable misunderstanding of a fact. (identical
stroller at the grocery store, take the wrong one home, NOT child abduction).

CL
A defendant is not guilty of a specific-intent crime if her mistake of fact negates the specific-intent element of the
offense. Even an unreasonable mistake of fact—a mistake that a reasonable person would not make—will exculpate
the actor if the mistake negates the mens rea required for the offense.

A defendant is not guilty of a general-intent offense if her mistake of fact was reasonable. An unreasonable mistake
of fact does not exculpate

A mistake of fact, whether reasonable or unreasonable, is never a defense to a strict-liability offense. This rule is
logical: a strict-liability offense is one that requires no proof of mens rea.

MPC
Created Dec. 2024
Based on Dressler textbook

A mistake of fact is a defense to a crime if the mistake negates a mental state element required in the definition of
the offense. The Code doesn’t have general and specific intent offenses: the mistake-of-fact rule applies to all
offenses in the same manner.

Mistake of Law (not a defense to mens rea)

CL - In general, knowledge of the law is not an element of an offense. Moreover, a mistake of law—even a
reasonable one! —does not ordinarily relieve an actor of liability for the commission of a criminal offense.

Causation

Actual Cause - CL and MPC

A person is not guilty of an offense unless she is an actual cause of the ensuing harm. Both the common law and the
Model Penal Code provide that conduct is the “actual cause” of the prohibited result if the result would not have
occurred but for the actor’s conduct.
• CL only - Concurrent sufficient causes – In such cases, many courts resort to the “substantial factor” test,
a standard that is often used in tort cases. The Q to be asked is: “was D’s conduct a substantial factor in the
resulting harm?” (MPC only uses but-for test)

Proximate Cause – CL
A person who is an actual cause of resulting harm is not responsible for it unless she is also the proximate (legal)
cause of the harm. This is about fairness and when it is morally just to hold a person responsible.

Direct cause is but-for cause with no intervening factors between it and the harm, which is inherently the proximate
cause as well. D is responsible.
Intervening Cause – an actual (but for) cause that arises after D’s causal contribution to the result.
• Responsive intervening cause – response to D’s conduct. D is responsible unless highly abnormal response.
• Coincidental intervening cause – Presumptively unforeseeable - the cause would have come into play even
in the absence of D’s conduct. D not responsible UNLESS it was reasonably foreseeable from D’s
situation. (i.e. V is drunk at night without glasses beside the highway)
o Will break the ‘causal chain’ if: Act of God; Third party not foreseeable; act or omission of victim.

Proximate Cause MPC - defines proximate cause as the requirement that the result of a defendant's actions
must not be "too remote or accidental" to hold the defendant responsible.
The MPC's approach to proximate cause is pragmatic, recognizing that it's a matter of policy and moral
judgment. The MPC avoids creating a specific test for proximate cause, instead focusing on whether the
connection between the defendant's actions and the harm is "just"

In short: D is proximate cause (responsible) IF the intervening cause was reasonably foreseeable.

Defenses: Justifications

In general, a justification defense contains three components:

1. Necessity – use of force not justified unless necessary. Use nondeadly if it will do the job.
2. Proportionality – person may not use force that is disproportional to the threat that motivates the use of force.
3. Reasonable belief – Can use justification even if D is wrong about the circumstances. Use of force is justified if
D has reasonable, even if incorrect, belief that the use of force is necessary and proportional to the supposed
threat.

A justification defense tends to focus on the wrongfulness of an act or a result

Self-Defense

CL - a person is justified in using deadly force against another if: (a) he is not the aggressor; and (b) he reasonably
believes that such force is necessary to repel the imminent use of unlawful deadly force by the other person.
• Deadly force = force likely to cause, or intended to cause, death or serious bodily harm.
Created Dec. 2024
Based on Dressler textbook

• Aggressor may lose that status and regain right to defense IF:
o Non-deadly aggressor met with deadly force (or threat of). (Majority rule)
• Imminency – can use deadly force in self-defense if threatened force will occur immediately, almost at that
instant.

Proportionality - Deadly force may not be used in response to a nondeadly threat, even if this is the only way to
repel the nondeadly threat.
Lawful justified force – no right to defend oneself (i.e. arrest)
Duty to Retreat? – Non-MPC jdx Majority rule: no duty to retreat (stand your ground).
• All jdx: non-aggressor is never required to retreat from home.
o Castle Doctrine - The castle doctrine is an exception to the duty to retreat rule in self-defense
law. It allows a person to use force without having to retreat from their home, even if they could
safely do so. All states have adopted some variation of the castle doctrine.

CL BWS – homicide in nonconfrontational circumstances - a few courts now do permit self-defense justification to
go to the jury if “Battered Woman Syndrome” evidence is introduced to show that the defendant, as a battered
woman, suffered from this condition. Cite Cycle of Abuse in BWS, unable to leave, learned helplessness.

MPC - a person is not justified in using deadly force against another unless she believes that such force is
immediately necessary to protect herself against the exercise of unlawful deadly force, force likely to cause serious
bodily harm, a kidnapping, or sexual intercourse compelled by force or threat, by the other person on the present
occasion.
Retreat – follows minority CL position – must retreat if it will avoid the need to use deadly force. Except from
dwelling. Never need to retreat from dwelling.
Surrender/comply - deadly force may not be used if D can avoid it by surrendering a possession or complying
with a demand to abstain from action (like, “freeze”).

MPC Belief requirement – with all justification defenses, the right to use force to defend/protect is based on actor’s
subjective belief. (Not reasonable person standard)

Defense of Others

CL – Majority Rule - A person is justified is using deadly force to protect a third party from unlawful use of force
by an aggressor. The intervenor’s right to use force parallels the third party’s apparent right of self-defense.(D
reasonably believes that the third party would be justified in using force to protect herself)
• Minority rule: only if person being defended would in fact be justified in using the same degree of force in
self-defense. (D’s reasonable belief doesn’t matter)

MPC - A person is justified in using deadly force to protect another if: (1) the intervenor would be justified in using
such force to protect herself, if the facts were as she believed them to be; (2) according to the facts as the intervenor
believes them to be, the third person would be justified in using such force to protect herself; (3) the intervenor
believes force is necessary for the third party’s protection; and (4) if the third party would be required to retreat
under the Code self-protection rules, the intervenor must attempt to cause the third party to retreat before using
deadly force.

MPC Belief requirement – with all justification defenses, the right to use force to defend/protect is based on actor’s
subjective belief. (Not reasonable person standard)

Defense of Property

CL - A person is never justified in using deadly force to defend her real or personal property. A person is justified in
using nondeadly force if she reasonably believes that such force is necessary to prevent the imminent, unlawful
dispossession of her property.
Created Dec. 2024
Based on Dressler textbook

• Defender must be in lawful possession of the property at the time force is used. If she has already been
dispossessed of the property, force may not be used to recapture the property
o exception to this rule is that nondeadly force is permitted in fresh pursuit of a dispossessor of
property. (Treated as extension of effort to prevent dispossession.
• Possession is what matters, NOT title.

MPC - the MPC goes further than the common law in that it generally authorizes use of nondeadly force to retake
possession of land or recapture personal property, even after fresh pursuit has ended.
• Land recapture exception. Only ok to use force if judicial route would be “exceptional hardship.”

Deadly Force MPC - authorizes the use of deadly force if D believes that V:
1. intends to dispossess D of his dwelling w/o claim or right
2. intends to commit arson, burglary, robbery or felonious theft inside the dwelling and
a) V “has employed or threatened deadly force against or in the presence” of D
b) Or the use of nondeadly force to prevent commission of the crime would expose D or another to
substantial risk of serious bodily harm.

MPC Belief requirement – with all justification defenses, the right to use force to defend/protect is based on actor’s
subjective belief. (Not reasonable person standard)

Defense of Habitation

CL - D is justified in using deadly force against V if the actor reasonably believes that: (1) V intends unlawfully and
imminently to enter D’s dwelling; (2) V intends to commit an atrocious (violent or dangerous) felony inside (3)
deadly force is necessary to prevent the entry.

MPC - The Code does not recognize a separate interest in habitation, as distinguished from defense of property.

Necessity

Necessity involves natural, i.e., non-human, pressures

CL – 4 elements
• “Lesser of two evils”: the harm that D seeks to prevent by his conduct must be greater than the harm he
reasonably expects to cause by his conduct.
• Imminence: The actor must be seeking to avoid imminent harm (strict rule).
• Causal: The actor must reasonably believe that his actions will abate the threatened harm.
• Blamelessness: Many courts and/or statutes provide that the actor must not be at fault in creating the
necessity (must have clean hands).

MPC – (NO IMMINENCE requirement) A person is justified in committing an act that otherwise would constitute
an offense if:
(a) the actor believes that the conduct is necessary to avoid harm to himself or another; (
b) the harm that the actor seeks to avoid is greater than that sought to be avoided by his conduct; and
(c) there does not plainly exist any legislative intent to exclude the justification claimed by the actor. If the actor was
reckless or negligent in bringing about the emergency, the defense is unavailable.

MPC Belief requirement – with all justification defenses, the right to use force to defend/protect is based on actor’s
subjective belief. (Not reasonable person standard)

Special Rule for Intolerable prison conditions – Escapes and is caught. most courts recognize a limited defense.
Some courts require the escapee to turn herself in after the escape, or else the defense is automatically lost. 5
conditions must be met:
Created Dec. 2024
Based on Dressler textbook

• When a prisoner is threatened by another inmate with sexual or physical assault, is denied critical medical
care by prison officials, or is placed in some other intolerable condition.
• There is no time to complain to authorities, or there is a history of futile complaints
• No time or opportunity to resort to courts
• No evidence of violence against prison personnel or other innocent people in the escape
• Prisoner reports to authorities once he has reached a position of safety
This is listed under duress in Dressler, but he notes that it should be necessity.

Defenses: Excuses

An excuse defense is one that indicates that, although the actor committed the elements of the offense, and although
his actions were unjustified—wrongful—the law does not blame him for his wrongful conduct.

An excuse defense focuses on the actor, not the wrongfulness of an act or result.

Duress

Duress involves human-based threats. A coerced person is morally blameless, but not that she has done nothing
wrong.

CL - Generally speaking, a defendant will be acquitted of an offense other than murder on the basis of duress if she
proves that she committed the offense because: (a) another person unlawfully threatened imminently to kill or
grievously injure her or another person unless she committed the crime; and (b) she is not at fault in exposing herself
to the threat.

MPC - the defense may be raised although the defendant did not commit the lesser of two evils. Instead, the
defendant must show that: (a) he committed an offense because he was coerced to do so by another person’s use, or
threat to use, unlawful force against him or a third party; and (b) a person of reasonable firmness would have
committed the offense.
• Defense is lost if D put himself in situation which it was probable that he would be subjected to duress.
• Unlike the common law, there is no bar to use of the duress defense in murder prosecutions.

Voluntary Intoxication

CL - NOT an excuse, actually enhances culpability. BUT it is a mens rea defense for specific intent crimes where he
lacked the capacity to form the specific intent.

Intoxication may be defined as a disturbance of an actor’s mental or physical capacities resulting from the ingestion
of any foreign substance, most notably alcohol or drugs (including Rx).

MPC - voluntary intoxication is a defense to any crime if it negates an element of the offense.
• Exception: If the defendant is charged with an offense for which recklessness suffices to convict, she
cannot avoid conviction by proving that, because of intoxication, she was unaware of the riskiness of her
conduct. (Drunk and reckless is culpable state of mind).

Involuntary Intoxication

Intoxication is involuntary if: coercion; mistake; Rx medication; pathological intoxication (grossly excessive, given
the amount of intoxicant, to which actor does not know he is susceptible. Aka didn’t know is a lightweight or
allergic)
Created Dec. 2024
Based on Dressler textbook

CL and MPC - The defendant will be acquitted if, as a result of involuntary intoxication, the actor lacks the
requisite mental state of the offense for which she was charged, regardless of specific-intent or general-intent.
• D can claim temporary insanity due to involuntary intoxication rather than mental illness, IF she satisfied
the insanity test.

Insanity
A person who suffers from a severe cognitive or volitional disorder is undeterrable by the threat of punishment.
Therefore, punishment is inefficacious.

CL –
M’Naughten test: A person is legally insane if, at the time of the act, he was laboring under such a defect of reason,
from disease of the mind, as: (1) not to know the nature and quality of the act he was doing; or, (2), if he did know
it, that he did not know what he was doing was wrong.
• Many jdxs use the word “appreciate” instead of “know” b/c it is intended to convey a deeper, or broader,
sense of understanding than simple knowledge.

Irresistible Impulse test: Expands M’Naughten to include when D acted with irresistible and uncontrollable impulse,
or “lost the power to choose btwn right and wrong, as that her free agency was at the time destroyed.”

Product Test: A person is excused if his unlawful act was the product of a mental disease or defect. As subsequently
defined, “mental disease or defect” is “any abnormal condition of the mind which substantially affects mental or
emotional processes and substantially impairs behavior controls.”

MPC - The MPC test represents a broadened version of the M’Naughten and irresistible impulse tests. With
modifications, it retains the second prong of M’Naughten and adds the volitional prong.

The Code provides that a person is not responsible for her conduct if, at the time of the criminal act, as the result of a
mental disease or defect (a term left undefined), she lacked the substantial capacity either: (1) to appreciate the
criminality (or, in the alternative, wrongfulness) of her actions; or (2) to conform her conduct to the dictates of the
law.

Diminished Capacity

A sane person may suffer from a mental disability (e.g., mental illness, mental retardation, Alzheimer’s) that
arguably prevents him from forming the mental state required for the commission of an offense.

CL - most states only permit evidence of an abnormal mental condition in order to negate the specific intent in a
specific-intent offense. Psychiatric evidence is inadmissible in the prosecution of general-intent offenses.

MPC - As a matter of logic, a defendant should be acquitted of any offense for which he lacked the requisite mens
rea, including those cases in which he lacked the mental state because of a mental disability, whether that disability
is permanent or temporary.

Entrapment

Entrapment issues arise when law enforcement agencies use undercover police officers to investigate crimes. The
issue is how far the police may go in such undercover activity.
• Subjective test: Entrapment is proved if a government agent implants in the mind of an innocent person the
disposition to commit the alleged offense and induces its commission in order that the government may
prosecute.
• Objective Test: whether the police conduct falls below standards, to which common feelings respond for
the proper use of power.
Created Dec. 2024
Based on Dressler textbook

Incohate Offenses

Attempt

CL - an attempt occurs when a person, with the intent to commit a criminal offense, engages in conduct that
constitutes the beginning of the perpetration of, rather than mere preparation for, the target (i.e., intended) offense.

Merger doctrine - A criminal attempt merges into the target offense, if it is successfully completed.

Actus reus - no single common law test of when an attempt occurs. Typically, the common law tests focus on how
close the actor is to completing the target offense.
• Last Act Test - rule used to be that a criminal attempt only occurred when a person performed all of the acts
that she believed were necessary to commit the target offense. Today, there is general agreement that an
attempt occurs at least by the time of the last act, but no jurisdiction requires that it reach this stage on all
occasions.
• Dangerous proximity test - the conduct “is so near to the result that the danger of success is very great.”
Three factors: the nearness of the danger; the substantiality of the harm; and the degree of societal
apprehension felt as the result of the defendant’s conduct. The more serious the offense, the less close the
actor must come to completing the offense to be convicted of attempt
• Physical Proximity Test: an act “must go so far that it would result or apparently result in the actual
commission of the crime it was designed to effect, if not extrinsically hindered or frustrated by extraneous
circumstances.”
• Unequivocality/Res Ipsa Loquitur test - a person is not guilty of a criminal attempt until her conduct ceases
to be equivocal, i.e., her conduct, standing alone, demonstrates her criminal intent.
• Probable desistance test – A person is guilty of attempt if she has proceeded past the point of no return.

Mens rea – Dual Intent - A criminal attempt involves two “intents.” First, the actor must intentionally commit the
acts that constitute an attempt, as discussed above. Second, the actor must do so with the specific intent to commit
the target offense.
- An attempt sometimes requires a higher level of mens rea than is necessary to commit the target offense.
Second, “attempt” is a specific-intent offense, even if the target crime is general-intent.
- At common law, it is unclear what mens rea, if any, an actor must possess regarding an attendant
circumstance to be guilty of attempt.

Special Defense: Impossibility – Pure Legal impossibility is a defense. This form of impossibility applies when an
actor engages in lawful conduct that she incorrectly believes constitutes a crime.
- Hybrid legal impossibility is a defense. Goal is illegal but commission of the offense is impossible.
- Factual impossibility, which is not a defense, may be defined as occurring when an actor’s intended end
constitutes a crime, but he fails to complete the offense because of a factual circumstance unknown to him
or beyond his control

MPC - the MPC generally treats inchoate offenses as offenses of the same degree, and thus subject to the same
punishment, as the target offense.
• One Exception: an attempt to commit a 1st degree felony, is a felony of the 2nd degree.

CL merger doctrine applies under MPC.

Actus Reus - The Code abandons all of the common law tests described above and replaces them with a substantial
step standard. Specifically, one has gone far enough to constitute an attempt if the act or omission constitutes a
substantial step in the course of conduct planned to culminate in the commission of the crime.
• Where CL looks to how close to completion an attempt gets, MPC looks at how far it has proceeded from
initiation of the target offense.
Created Dec. 2024
Based on Dressler textbook

Mens Rea – A person is NOT guilty of attempt UNLESS he “purposely engages in conduct that would constitute the
crime”; acts “with purpose of causing” or “with the belief that it will cause” the criminal result; or “purposely does
an act constituting a substantial step.” [Purpose is the mens rea]
• The “purpose” requirement for an attempt does not apply to attendant circumstances.
o only be as culpable regarding an attendant circumstance as is required for the target offense.

Special defense: Impossibility – Only Pure Legal Impossibility is a defense.

Special Defense: Renunciation - A person is not guilty of a criminal attempt, even if her actions constitute a
substantial step in the commission of an offense, if: (1) she abandons her effort to commit the crime or prevents it
from being committed; and (2) her conduct manifests a complete and voluntary renunciation of her criminal
purpose. [Abandonment]

Conspiracy

CL - A common law conspiracy is an agreement between two or more persons to commit an unlawful act or series
of unlawful acts. Conspiracy is a continuing offense which means it can continue until the conspirators abandon the
agreement.
- Misdemeanor, unless conspiracy to commit a felony, which will be a lesser offense than the target felony
(2nd for 1st).

Group criminality is considered more dangerous than individual wrongdoing. Acting together can do worse things.

Merger: common law conspiracy does not merge into the attempted or completed offense that is the object of the
agreement.

Actus Reus: the agreement by the parties to commit an unlawful act or series of unlawful acts together.
• Overt Act - A common law conspiracy is committed as soon as the agreement is made. No act in
furtherance of it is required. Today, many statutes provide that a conspiracy does not occur unless at least
one party to the agreement commits an overt act in furtherance of it. The overt act, however, need not
constitute an attempt to commit the target offense.
• conspiratorial agreement need not be in writing, nor even be verbally expressed. It may be implied from the
actions of the parties.
• The object of the agreement must be unlawful (morally wrong but not necessarily criminal).

Mens Rea: Conspiracy is a dual-intent offense. First, the parties must intend to form an agreement (the actus reus of
the conspiracy). Second, they must intend that the object(s) of their agreement be achieved. This second intent
makes conspiracy a specific-intent offense.

Plurality requirement: No person is guilty of conspiracy unless the other person is also guilty of conspiracy. This
does not require that two persons be prosecuted and convicted of conspiracy, only that the agreement was formed
with mens rea of both/all.

Multiple conspiracies: there are as many (or as few) conspiracies as there are agreements made.

Special defense: Wharton’s Rule - If a crime by definition requires two or more persons as willing participants, there
can be no conspiracy to commit that offense if the only parties to the agreement are those who are necessary to the
commission of the underlying offense. [controversial, SCOTUS doesn’t like it]

Abandonment defense: NO. The crime of conspiracy is complete as soon as the agreement is formed by two or more
culpable persons. There is no turning back from that.

Controversial, held in many jurisdictions, Pinkerton doctrine, named after SCOTUS ruling in Pinkerton v. United
States. This doctrine provides that a conspirator is responsible for any crime committed by any other member of the
Created Dec. 2024
Based on Dressler textbook

conspiracy, whether or not he assisted, if the offense falls within the scope of the conspiracy or a reasonably
foreseeable consequence thereof.

MPC - The MPC provides that “a person is guilty of conspiracy to commit a crime” if that person, “with the
purpose of promoting or facilitating” commission of the crime, “agrees with such other person or persons that they
will engage in conduct that constitutes such crime or an attempt or solicitation to commit such crime,” or if that
person agrees to aid the other person or persons in commission of the offense or of an attempt or solicitation to
commit such crime.

A conspiracy to commit any offense other than a felony of the first degree is graded the same as the crime that is the
object of the conspiracy.

Merger: Unlike the common law, a conspirator may not be convicted of both conspiracy and the target offense(s),
unless the conspiracy involves a continuing course of conduct.

Actus Reus: In contrast to the common law, an overt act is required except for felonies of the first and second
degree. And in contrast to CL, the object of the agreement must be a crime, not merely an “unlawful” act.

Mens Rea: A person is not guilty of conspiracy unless she acts with the purpose of promoting or facilitating the
commission of the conduct that constitutes a crime. Mere knowledge is not enough.

NO plurality rule: MPC rejection of the common law plurality requirement. It takes two people to agree, but only
one to be guilty of conspiracy.

NO multiple conspiracies: only one conspiracy btwn same parties.

NO Wharton’s Defense.

Renunciation Defense: A person is not guilty of conspiracy under the Code if he renounces his criminal purpose
and then thwarts the success of the conspiracy “under circumstances manifesting a complete and voluntary
renunciation of his criminal purpose.”

Solicitation

CL - a person is guilty of solicitation if she intentionally invites, requests, commands, or encourages another person
to engage in conduct constituting a felony or a misdemeanor involving a breach of the peace or obstruction of
justice.

Misdemeanor except that a solicitation to commit a felony is usually treated as a felony, but of a lesser degree than
the felony solicited.

Yes Merger.

MPC - The Code definition of “solicitation” is broader than the common law in that it applies to solicitation to
commit any misdemeanor (as well as all felonies).

MPC treats a solicitation to commit any offense other than a felony of the first degree as an offense of equal grade as
the target offense.

Yes Merger.

Renunciation defense: if the soliciting party: (1) completely and voluntarily renounces her criminal intent; and (2)
persuades the solicited party not to commit the offense or otherwise prevents her from committing the crime.

CL and MPC
Created Dec. 2024
Based on Dressler textbook

Actus Reus: when the actor communicates the words or performs the physical act that constitutes the invitation,
request, command, or encouragement of the other person to commit an offense.
• At common law, a solicitation does not occur unless the words or conduct of the solicitor are successfully
communicated to the solicited party.
• In contrast, the Model Penal Code provides that one who unsuccessfully attempts to communicate a
solicitation is guilty of solicitation.

Mens Rea:
• Solicitation is a specific-intent offense at common law. The solicitor must intentionally commit the actus
reus (request, encourage, etc., another to commit the crime) with the specific intent that the person solicited
commit the target offense.
• The Model Penal Code does not deal in concepts of “specific intent” and “general intent.” However, the
analysis is the same: a person is not guilty of solicitation unless she acts with the purpose of promoting or
facilitating the commission of the solicited offense.

Assault

CL - an attempted battery. (A battery is unlawful application of force to the person of another.) But it developed
BEFORE crime of attempt. So, it gets its own place as inchoate.
• Requires closer to completion than other attempt crimes.
• Most states expanded to include tort definition: intentionally placing another person in reasonable
apprehension of an imminent battery.

Complicity

Accomplice Liability

CL - A person is an accomplice in the commission of an offense if she intentionally assists another person to engage
in the conduct that constitutes the offense.

Derivative liability – derived from the party whom she assisted. (based on agency concept)

The accomplice is ordinarily convicted of the offense committed by the primary party.

There are 4 common law categories of parties to criminal offenses:

1. Principal in 1st degree - the person who, with the requisite mens rea, personally commits the offense, or who
uses an innocent human instrumentality to commit it. The “innocent instrumentality doctrine” provides that a
person is a principal in the first degree if she dupes or coerces an innocent human being to perform the acts that
constitute an offense.
2. Principal in 2nd degree - This is the person who intentionally assists the principal in the first degree to commit
the offense, and who is actually or constructively present during its commission. A person is “constructively”
present if she is close enough to assist the principal in the first degree during the crime.
3. Accessory before the fact - This is the person who intentionally assists in the commission of the offense, but
who is not actually or constructively present during its commission.
4. Accessory after the fact - This is the person who knowingly assists a felon to avoid arrest, trial, or conviction.

Assists: A person “assists” in an offense, and thus may be an accomplice in its commission, if she solicits or
encourages another person to commit the crime, or if she aids in its commission.
• Not accomplice unless her conduct IN FACT assists in commission of the crime.
• If a person intentionally aids in the commission of an offense, she is liable as an accomplice, No Matter
How trivial.
• Mere Presence at the scene is not enough UNLESS she IN FACT assists in the crime. (psychological
encouragement is enough).
• Omission: one may be an accomplice by failing to act to prevent a crime when she has a duty to so act.
Created Dec. 2024
Based on Dressler textbook

Mens Rea: A person is an accomplice in the commission of an offense if she possesses two mental states. She must:
(1) intentionally engage in the acts of assistance; and (2) act with the level of culpability required in the definition of
the offense in which she assisted.
• For crimes of recklessness or negligence: enough to show reckless or negligent, no need for intentional.

Natural and Probable Consequences Doctrine: An accomplice is guilty not only of the offense she intended to
facilitate or encourage, but also of any reasonably foreseeable (that is, foreseeable) offense committed by the person
whom she aided.

Perpetrator acquitted: If a jury finds that no crime occurred, it logically follows that any accomplice must be
acquitted as well, as there is no guilt to derive, one cannot be an accomplice to a nonexistent crime.
• Perpetrator acquitted on a defense: If justification defense, no guilt as accomplice. If excuse defense,
accomplice is guilty.

Legislative exemption: A person may not be convicted as an accomplice in her own victimization.

MPC - A person is guilty of an offense that she did not personally commit if she is an accomplice of another person
in the commission of the offense.
• To be an accomplice in the commission of an offense, the person must: (a) solicit the offense; (b) aid, agree
to aid, or attempt to aid in its commission; or (c) fail to make a proper effort to prevent commission of the
offense (assuming that she has a legal duty to act)

Mens Rea: To be an accomplice, the person must act “with the purpose of promoting or facilitating the commission
of the offense.”
• Provision for a crime of recklessness or negligence:
o A person who is an accomplice in the commission of conduct that causes a criminal result, is also
an accomplice in the result thereof, if she has the level of culpability regarding the result required
in the definition of the offense.

Perpetrator acquitted: an accomplice in the commission of an offense may be convicted of that offense, even if the
alleged perpetrator “has been convicted of a different offense or degree or has been acquitted.”

Special defenses:
Legislative exemption: A person may not be convicted as an accomplice in her own victimization.

Inevitable Incidence: An accomplice is not guilty of an offense if her conduct is an inevitable incident to the
commission of the offense, such as a customer in the act of prostitution.

Abandonment: A person is not an accomplice in the commission of a crime if she terminates her participation before
the crime is committed, and if she either neutralizes her assistance, gives timely warning to the police of the
impending offense, or in some other manner prevents commission of the crime.

Criminal Homicide

A criminal homicide is a homicide committed without justification (e.g., in self-defense) or excuse (e.g., as the result
of insanity).

Today, virtually every state provides that a person may be deemed legally dead if he experiences an irreversible
cessation of breathing and heartbeat (the common law definition), or suffers from “brain death syndrome,” which
occurs when the whole brain (not just one portion of it) permanently loses the capacity to function.

The common law provides that a fetus is not a human being until it is born alive. [But some states (CA) do consider
it murder if a pregnant woman gets punched in the stomach and a viable fetus dies.]
Created Dec. 2024
Based on Dressler textbook

At common law, a homicide prosecution may only be brought if the victim dies within one year and a day of the
injury inflicted by the accused. Today, in light of medical advances and life-support machinery, many states have
abolished this rule.

Common Law Murder & Statutory approach (aka Pennsylvania scheme)

Common law murder is a killing of a human being by another human being with malice aforethought.

Malice: A person acts with “malice” if she unjustifiably, inexcusably, and in the absence of any mitigating
circumstance, kills a person with any one of the following four mental states:
a) the intention to kill a human being;
b) the intention to inflict grievous bodily injury on another;
c) an extremely reckless disregard for the value of human life (often called “depraved heart” at common law);
or
d) the intention to commit a felony during the commission or attempted commission of which a death
accidentally occurs (the “felony-murder rule”).
The first form of malice (“intent to kill”) is often called “express malice”; the other three versions of malice are
called “implied malice.”

These four categories of malice are considered below:

1) Murder with Intent to kill – RULE: An intentional killing that is unjustifiable, inexcusable, and absent
mitigating circumstance (i.e. heat of passion), constitutes CL murder. (No defense to bring down to
manslaughter)
o Prosecutor must prove beyond a reasonable doubt that the killer purposely or knowingly took
another’s life. The jury may infer (but not presume) intent as natural and probable consequences of
the voluntary acts.

• Statutory approach: a “willful, deliberate, premeditated” killing is 1st degree murder. [if willful but not
premeditated = 2nd degree]
o Willful – intentional
o Premeditated – to think about beforehand. Majority: no time is too short. Minority: some
appreciable time.
o Deliberate – measured and evaluated the major facets of a choice or problem.

2) Murder with Intent to inflict grievous bodily harm – RULE: A person acts with malice aforethought if she
intends to inflict grievous bodily injury on another human being. Therefore, if a death results from her
conduct, she is guilty of murder.
o Grievous bodily injury = injury that imperils life, likely to be attended with dangerous or fatal
consequences. Or gives rise to apprehension of danger to life, health or limb.

• Statutory approach: In states that distinguish between degrees of murder, one who kills another person
with this state of mind is usually guilty of second-degree murder.

3) Extreme Recklessness (Depraved Heart) - RULE: A person who acts with a “depraved heart” or an
“abandoned and malignant heart” is one who acts with malice aforethought. If a person dies as a result of
such conduct, the actor is guilty of murder, although the death was unintended.
o Depraved Heart = extreme indifference to the value of human life, manifested is he consciously
takes a substantial and unjustifiable foreseeable risk of causing human death. I.e. Extreme
recklessness.
• Statutory approach: In states that divide murder into degrees pursuant to the traditional model, a
depraved-heart homicide ordinarily is second-degree murder.
4) Felony Murder (see below)
Created Dec. 2024
Based on Dressler textbook

Felony Murder

CL - At common law, a person is guilty of murder if she kills another person, even accidentally, during the
commission or attempted commission of any felony. (Generally excludes death of co-felons, but not in all jdxs)

Statutory Approach: Many states that divide murder into degrees have a dual approach to felony-murder. The
murder statute will often provide that a killing that occurs during the commission of certain specifically listed
felonies (most commonly: arson, robbery, rape, and burglary) is first-degree murder; a death during the commission
of any non-listed felony constitutes murder of the second-degree.

Deterrence Rationale - cause felons to commit their crimes in a less dangerous manner, thereby decreasing the risk
that deaths will ensue.

Inherently Dangerous Limitation - Many states limit the felony-murder rule to killings that arise during the
commission of “inherently dangerous” felonies.
Courts disagree, however, on how to determine whether a felony is inherently dangerous. Some courts consider the
felony in the abstract: they look at the definition of the crime and ask whether the offense could be committed
without creating a substantial risk of loss of life. Other courts consider a felony inherently dangerous if it is
dangerous in the abstract or in light of the circumstances surrounding the particular case.

Merger: Some courts require that the felony that serves as the predicate for the felony-murder rule be ‘independent’
of the homicide. A felony that is not independent merges with the homicide. (i.e. crime of assault with a deadly
weapon merges with the homicide).

Res Gestae Limitation: Many courts provide that the mere fact that a death occurs, in a temporal sense, “during” the
commission of a felony, is insufficient to trigger the felony-murder rule. There must also be a causal connection
between the felony and the death. However, a death that occurs after the felony is committed, but during the escape
from the site of the crime, falls within the “res gestae” of the felony.

Some jurisdictions provide that the felony-murder rule does not apply if the person who commits the homicide is a
non-felon resisting the felony. [Cops]
• “agency” theory of felony-murder. Killing must be committed by the felon/s. That is, a felon is only
responsible for homicides committed in furtherance of the felony, thus by a person acting as the felon’s
“agent.” Therefore, a homicide committed by a police officer, the victim of the felony, or a bystander, falls
outside the felony-murder rule.
• “proximate causation” theory – liability attaches for any death proximately resulting from the unlawful
activity if the felon sets in motion the acts resulting in death. A felon may be held responsible for a
homicide perpetrated by a non-felon if the felon proximately caused the shooting.
o BUT this does not apply to co-felons killed by the lawful acts of a police officer acting in self-
defense or attempting to apprehend.

Common Law Manslaughter

Common law manslaughter is an unlawful killing of a human being by another human being without malice
aforethought.

Voluntary manslaughter: Provocation (Heat of Passion)

RULE: An intentional, unjustified, inexcusable killing, which ordinarily is murder, constitutes manslaughter (or
“voluntary manslaughter”) if it is committed in sudden heat of passion, as the result of adequate provocation.
o Provocation doctrine functions as a defense to reduce from murder to manslaughter.
Created Dec. 2024
Based on Dressler textbook

o Most commentators today now characterize the defense as a partial excuse, as a concession to
normal human frailty: the social harm is unmitigated, but the culpability of the actor is reduced
because of the provocation.

Elements of the Defense:

• Adequate Provocation – The provocation must be such that it might “inflame the passion of a reasonable
man and tens to cause him to act foe the moment from passion rather than reason.
o Fixed Categories: Serious battery; mutual combat; visual discovery by husband of his wife in the
act of adultery.
o Modern Trend – go beyond the fixed categories, leave it to the jury to decide whether the
provocation would render an ordinary or reasonable person likely to act rashly.
o Most jdxs hold that Words Alone are Never enough.
• State of Passion - the defendant must kill the victim while in a state of passion, not after he has cooled off.
Although the typical “passion” is anger, any over-wrought emotional state, including fear, jealousy, or even
deep depression, may qualify.
• Suddenness - The killing must occur in sudden heat of passion. That is, the defendant must not have had
reasonable time to cool off.
• Causal Connection - A causal link between the provocation, the passion, and the fatal act must be proved.

CL and Statutory: Involuntary Manslaughter: Criminal Negligence

RULE: A person who kills another person in a criminally negligent manner is guilty of involuntary manslaughter.
This offense often blurs into the depraved-heart version of reckless murder.
• (Negligence Mens rea reprise)
• Negligence standard applies to caretakers – they must provide children with the same standard of medical
care that an ordinarily prudent person in the same situation would believe is necessary.

CL and Statutory: Involuntary Manslaughter: Unlawful Act

RULE: In an analogue to the felony-murder rule, a person is guilty of involuntary manslaughter if she kills another
person during the commission or attempted commission of an unlawful act that does not otherwise trigger the
felony-murder rule.
• Some state apply the rule to all misdemeanors as well as felonies excluded from felony murder rule. Other
states limit the rule to “dangerous” misdemeanors.

Model Penal Code Criminal Homicide

The MPC provides that a person is guilty of criminal homicide if she takes the life of another human being
purposely, knowingly, recklessly, or negligently. Unlike the common law, the Code divides criminal homicide
into three, rather than two, offenses: murder, manslaughter, and negligent homicide.

Murder
RULE: A homicide constitutes a murder if the killing is committed (a) purposely; (b) knowingly; or (c) “recklessly
under the circumstances manifesting an extreme indifference to the value of human life.”

The MPC does NOT divide murder into degrees.

The Code abandons the felony murder rule. But it provides that reckless indifference to human life may be presumed
if the person causes the death during commission of one of the felonies enumerated in the code (robbery, arson,
burglary, kidnapping, felonious escape, or rape or deviate sexual intercourse by threat of force). This presumption is
rebuttable.

Manslaughter
RULE: Criminal homicide constitutes manslaughter in two circumstances, (1) Recklessness and (2) Extreme mental
or emotional disturbance (EMED).
Created Dec. 2024
Based on Dressler textbook

• Recklessness - A homicide committed recklessly constitutes manslaughter. The difference between reckless
manslaughter and reckless murder is that here the conduct, although reckless, does not manifest an extreme
indifference to human life.
• Extreme mental or emotional disturbance – much broader than the CL provocation doctrine, also allows
states to recognize a ‘partial responsibility’ diminished capacity defense, if they wish to do so.
o The EMED must have a reasonable explanation or excuse.
§ Reasonableness of the D’s explanation or excuse for EMED should be determined from
the perspective of a person “in the actor’s situation under the circumstances as he
believes them to be.”
§ Cannot be EMED peculiar to that person.
o Words alone can be enough.
o No cool off period rule.

NO unlawful act manslaughter provision under MPC. Killing during commission of a misdemeanor is NOT
categorically presumed to be any mens rea as a matter of strict liability.

Negligent Homicide
RULE: A criminally negligent killing - killing—involuntary manslaughter at common law – is the lesser offense of
“negligent homicide” under MPC.
Rape

Common Law Forcible Rape

Forcible rape = “carnal knowledge of a woman forcibly and against her will.”

Statutory law: The traditional rape statute is apt to provide that forcible rape is sexual intercourse by a male, with a
female not his wife, by means of force or threat of force, against her will, and without her consent.

Actus Reus
The common law offense was not complete in the absence of penetration. Nonconsensual oral and anal sexual
penetration constituted the separate offense of sodomy.
• Modern Reform Statutes - Many states that have reformed their law have re-named the offense “sexual
assault” or “sexual battery.” These offenses typically prohibit all forms of forcible sexual penetration, and
not simply vaginal intercourse. They also tend to be gender neutral.
o Also, some states prohibit “sexual contact”—undesired contact that does not result in
penetration—as a lesser degree of the offense.
• At original common law, a husband was not guilty of personally raping his own wife.

“Nonconsent” is an element of the crime, rather than consent being a defense. This means that the prosecutor
must prove nonconsent beyond a reasonable doubt.

Force Rule - The crime of forcible rape is not complete simply upon proof that the intercourse was
nonconsensual. It must also be shown that the male acted forcibly or by threat of physical force.
• If the male uses or threatens force likely to cause death or serious bodily injury to the female, she is not
required to Resist. If the male uses ‘moderate’ force, the female IS required to resist the rapist ‘to the
utmost’ or ‘until exhausted or overpowered.’
• LESS FORCE - Some states have begun to reshape forcible rape law by requiring far less proof of
force, at least in cases involving atypical facts.
• LESS RESISTANCE – a few states abolished resistance requirement. Most still have it, but only
require ‘reasonable resistance,’ which leaves it to the jury to decide the sufficiency of the female’s
resistance.
• One state (Minn.) has gone so far as to hold that the force inherently involved in the sexual act itself is
sufficient proof of “force” to permit a forcible rape conviction. The effect of this decision is to make
all cases of sexual intercourse “forcible.” The only remaining issue is whether the intercourse was
nonconsensual.
Created Dec. 2024
Based on Dressler textbook

Mens Rea
Rape is a general-intent offense. Therefore, most jurisdictions provide that a person is not guilty of rape if, at the
time of intercourse, he entertained a genuine and reasonable belief that the female voluntarily consented.

Common Law Statutory Rape

Actus Reus
All states provide that intercourse by a male with an underage female to whom he is not married constitutes rape.
Neither force nor the underage female’s lack of consent are elements of the offense.
• Today, many states divide statutory rape into degrees of offense, based on the age of the female. The most
severe penalties are imposed when the male is an adult, and the female is pre-pubescent.

Mens Rea
Nearly all jurisdictions treat statutory rape as a strict-liability offense. Therefore, the defendant is guilty of the
offense, even if he reasonably believed that the victim was old enough to consent.

Rape by fraud

Consent to engage in sexual intercourse is invalid if, as the result of fraud, the victim is unaware that she has
consented to an act of sexual intercourse.

MPC Forcible Rape

A male who has sexual intercourse with a female not his wife is guilty if he compels her to submit by force or by
threat of imminent death, serious bodily injury, extreme pain or kidnapping, to be inflicted on anyone.
• Gender specific. Recognizes marital immunity.
• “Sexual intercourse” is defined elsewhere to include oral and anal sex.
• D compels V, no mention of consent. Thus, the MPC does not include a resistance requirement.

The Code grades rape as a felony of the second degree. Aggravated to 1st degree felony if he actually inflicts serious
bodily harm on anyone during course of rape; or she was not his voluntary social companion upon the occasion or
ever before.

Prohibited Nonforcible sexual intercourse – (1) If he substantially impaired her power to appraise or control her
conduct by administering or employing without her knowledge drugs, intoxicants, or other means for the purpose of
preventing resistance. (2) if she was unconscious at the time of the intercourse. (3) if she is under 10 years of age -
and there is no reasonable belief defense on that.

Gross Sexual Imposition – MPC made a new sexual offense for when a man rapes his wife.

Larceny

Larceny is the trespassory taking and carrying away of the personal property of another with the intent to
permanently deprive the other person of the property.

Larceny is a crime of possession not of title. (False pretenses is Title crime)

In modern statutes, petty larceny is a misdemeanor; grand theft is a non-capital felony.

Mens Rea
Created Dec. 2024
Based on Dressler textbook

Larceny is a specific-intent offense. The defendant is not guilty of the crime unless he commits the actus reus with
the specific intent to steal the property.
• larceny may still be found, absent intent to permanently deprive, when: (1) the defendant intends to sell the
property back to its owner; (2) the defendant intends to claim a reward for finding the property and (3) the
defendant intends to return the property to its owner for a refund.
• Concurrence – mens rea at same time as actus reus. PLUS, the legal fiction of “Continuing trespass” which
provides that when a person trespassorily takes possession of property, she commits a new trespass every
moment that she retains wrongful possession of it. Therefore, even if the wrongdoer does not have the
intent to steal the property when she originally takes property trespassorily, the concurrence requirement is
met if she later decides to steal the property.

Actus Reus
• The taking of another person’s personal property is not larceny unless the taking is trespassory in nature. A
trespass occurs if the defendant takes possession of the personal property of another, i.e., she dispossesses
another person, without the latter’s consent or in the absence of a justification for the nonconsensual taking.
o A “taking” involves the wrongful taking of possession, rather than mere custody, of property.
§ Possession if she has sufficient control over it to use it in a generally unrestricted manner.
May be actual (physical control of property) or constructive (nobody else is in actual
possession).
§ Custody if she has physical control, but her right to use it is substantially restricted.
Temporary and limited right to use the property.
• An act that deprives the rightful owner of possession of property already in the
actor’s custody is a taking sufficient for larceny.
• Taking occurs at the D wrongfully interferes with owner’s possessory interest
• Bailment: When a bailee is entrusted by the bailor with a container for delivery
to another person, the bailee receives possession of the container, but mere
custody of its contents. Therefore, if bailee wrongfully opens the container and
removes its contents (breaks bulk), he takes possession of the contents at that
moment.
§ Employer/Employee special rule of possession/custody - When an employer furnishes his
personal property to his employee for use in the employment relationship, the common
law ruled that the employer retains constructive possession of the property. The employee
has mere custody.
§ Third Person to Employee to Employer - When a person furnishes personal property to
another person’s employee, in order that it will be delivered to the employer, he transfers
possession of the property to the employee
• A person is not guilty of larceny unless he carries away the property (asportation). Virtually any movement
of property away from the place where possession was taken constitutes asportation.
o Intangible personal property—property that, by definition, cannot be taken and carried away—is
not protected by the common law of larceny, but is covered in most modern statutes.
o Property attached to land (trees, crops) is real property until severed from the land, then becomes
personal property of the first person to take possession of it in that form. (fruit thieves are not
committing larceny).

Larceny by trick (same crime, a specific type of larceny)

A person who secures property deceitfully acts trespassorily, i.e., the fraud vitiates the consent of the original
possessor of the property.
• Consent gained by deception = no consent.

Lost Property Does lost property become the subject of larceny by the finder? – for the Jury to decide.
• The rights of a finder of lost property depend on two factors: the possessory interest of the person who lost
the property at the time the property is discovered by the finder (is there a reasonable clue that they still
have constructive possession?); and the finder’s state of mind when he retrieves the lost property
(permanently deprive owner).
Created Dec. 2024
Based on Dressler textbook

o Concealed it? Saw the ‘lost item’ posters?

Embezzlement

Transfer of Possession, not title. Similar to larceny, but Nontrespassory.

Today, embezzlement is a felony or a misdemeanor, depending on the value of the property embezzled.

Because the offense is statutory in nature, and differs from jurisdiction to jurisdiction, the precise contours of the
offense cannot be stated. However, in general the offense requires proof of two or three elements:
1. Manner of obtaining possession - Embezzlement occurs when the actor takes possession of the personal
property of another in a lawful—nontrespassory—manner.
2. Conversion - After securing lawful possession of the property, the actor converts the property to his own use,
i.e., he uses the property in a manner that manifests his intention to deprive another person of the property
permanently.
3. Entrustment - Many embezzlement statutes provide that the actor must have obtained possession as a result of
entrustment by another person.
False Pretenses (Fraud)

The crime of “obtaining property by false pretense” is a felony or misdemeanor, depending on the value of the
property taken.

As with embezzlement, the statutory nature of the crime allows for only general description of the offense.

With false pretenses, the victim transfers title, rather than mere possession, to the wrongdoer. This is the key
difference between false pretenses, on the one hand, and larceny and embezzlement, on the other.

Nature of Fraud - False pretenses involves a false representation of an existing fact.

• The misrepresentation may be in written or oral form or can be the result of misleading conduct. Silence—
nondisclosure of a fact—does not usually constitute false pretenses, even if D knowingly takes advantage
of V’s false impressions.
• The misrepresentation must be of a fact and not of opinion.

Mens rea
The deceiver must make the false representation knowingly and with the intent to defraud.
• actor must know that the representation is false; and he must make the false statement with the specific
intent of defrauding the other person.

Arson

Cl - Arson is originally defined as “the malicious burning of the dwelling of another.” However, the definition
changes slightly depending upon the jurisdiction. For some jurisdictions, arson is the intentional setting of a
fire to a building, others it is the intentional setting of a fire to a building where people live. Additionally, there
are some minor differences between arson at the state and federal level.

MPC - defines arson as the intentional starting of a fire or explosion with the intent to:
• Destroy a building or occupied structure.
• Destroy or damage property to collect insurance

The MPC does not require that damage to property occur for a person to be guilty of arson.
Created Dec. 2024
Based on Dressler textbook

Arson is a felony, and the penalties vary depending on the degree of arson. Factors that can affect the degree
of arson include: The type of property burned, the defendant's intent, and Whether the fire caused physical
injury or death.

MPC provides a more nuanced view of arson than common law. However, the definition of arson can vary by
jurisdiction.