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Jurisdiction and General Matters
Jurisdiction State is the legal situs of the crime if either the conduct or result happened (or should have happened) there.   Merger: generally, there is no merger of crimes in American law. On MBE: solicitation and attempt of crime merge into the substantive offense.  Conspiracy does not merge with the substantive offense.  This means that on the bar exam, you can be convicted of both conspiring to do something and doing it. Example: conspiring to rob and robbery itself are both offenses
Essential Elements of Crimes – Checklist
Actus Reus Mens Rea
Essential Elements of Crimes – Actus Reus
A Physical Act (Actus Reus)   Can be any bodily movement.   Bodily movements that do not qualify for criminal liability: conduct that is not the product of own volition a reflexive or convulsive act (e.g., epileptic seizure) act performed while unconscious or asleep (e.g., sleep walking).   Act can be an omission if there was a duty to act.  Generally, there is no duty to rescue, but there a legal duty to act in 5 circumstances: By statute (e.g., filing tax return) By contract (e.g., lifeguard or nurse’s duties) Relationship of the parties (e.g., parents’ duties; spouses’ duties) Voluntarily assuming duty of care (e.g., jumping into lake to save drowning) Where conduct created the peril (e.g., you push someone into pool)
Essential Elements of Crimes – Mens Rea – Checklist
Specific Intent Malice Crimes General Intent Crimes Strict Liability Crimes
Essential Elements of Crimes – Mens Rea – Specific Intent and Malice Crimes
Specific intent crimes qualify for the additional defenses of voluntary intoxication and any mistake of fact.   Inchoate offenses (“incomplete offenses”) of solicitation, conspiracy, and attempt 1st degree murder Assault as attempted battery (thus, not intending to do it is a defense) Common Law Felonies Against Property: Larceny, Embezzlement, False Pretenses, Robbery, Burglary, Forgery   Malice crimes (only 2 crimes on bar exam: murder and arson) Murder Arson
Essential Elements of Crimes – Mens Rea – General Intent and Strict Liability
General Intent crimes (catch-all category): all crimes not mentioned so far are general intent crimes unless they qualify for formula for strict liability. Transferred Intent: if ∆ intended to harm victim 1 but harmed victim 2, her intent is transferred.  Never merge different crimes that have different victims (shoot at 1, hit 2= attempt and murder)   Strict Liability crimes (no intent required, and thus no defense that negates intention) Formula for strict liability: If the crime is in administrative, regulatory, or morality area and there are no adverbs (like knowingly, willfully, intentionally), then the question intends it to be a crime of strict liability. ie. Statutory rape
Offenses Against the Person – Checklist
Battery Assault Mayhem False Imprisonment Kidnapping
Offenses Against the Person - Battery
Battery: application of force to the person of another resulting in harmful or offensive touching Indirect application of force: sufficient Aggravated Battery: deadly weapon used, serious bodily injury, OR victim is child/woman/police
Offenses Against the Person - Assault
An attempt to commit battery (specific intent) OR intentional creation of a reasonable apprehension of imminent bodily harm (general intent)
Offenses Against the Person – Mayhem
The malicious maiming or disfiguring of another.
Offenses Against the Person – False Imprisonment
Unlawful detention or confinement of a person without his valid consent
Offenses Against the Person – Kidnapping
The intentional and unlawful movement of another against their will
Homicide – Checklist
Homicide Murder First Degree Murder Felony Murder Voluntary Manslaughter Involuntary Manslaughter
Killing of human being by another human being   Causation - Must be the actual and proximate cause, But for and foreseeable injury. Look for intervening act. If numerous parties substantial factor test. CL - Requires cessation of heartbeat and respiration ML - Requires permanent cessation of brain activity  
Homicide – Murder
Unlawful killing of a human being with malice aforethought   Must show 1 of 4 intents   Intent to Kill or Intent to Inflict Serious Bodily Heart Wanton/Reckless Indifference to An Unjustifiably high risk to human life; malignant heart Felony Murder - Burglary, arson, rape, robbery, mayhem kidnapping, sodomy, and sexual molestation. BARRM/KSS
Homicide – First Degree Murder
Any homicide committed in the perpetration of an inherently dangerous felony.   Burglary, arson, rape, robbery, mayhem kidnapping, sodomy, and sexual molestation. BARRM/KSS (any attempt to these will suffice)   Felony must be something other than killing   If ∆ has a defense to underlying felony, he has a defense to felony murder   Deaths caused while fleeing felony are felony murder BUT once ∆ reaches some point of temporary safety, deaths caused thereafter are not felony murders.   Co felons liable for killing victims   Killing of Innocent parties CL - Foreseeable Modern - co felon not liable unless it is a co felon doing the killing   Killing of co felon by victims of felonies  or pursuing police officer CL - Co felon liable Majority - not liable Minority - not liable   Lying in wait, poison, torture
Homicide - Second Degree Murder
All murder which is not murder in the first degree Wanton conduct may equate to murder though not felony Look for accomplice
Homicide - Voluntary Manslaughter
(“heat of passion”): Adequate provocation   Adequate Provocation: would arise sudden and intense passion in an reasonable  person;   A must in fact have been provoked;   Must not have been sufficient time to cool off, did he cool down;   Loss of mental equilibrium  
Homicide - Involuntary Manslaughter
Unintentional homicide without malice   Types    Criminal Negligence: killing is caused by A’s negligence (tougher standard than for tort liability)   “Unlawful Act” “Misdemeanor Manslaughter” rule: killing in course of commission of a misdemeanor or any felony not listed in the Felony Murder Statute
Sex Offenses
Rape: unlawful carnal knowledge of a woman by a man without valid consent   Statutory Rape: unlawful carnal knowledge of a woman below the age of consent (strict liability- consent and mistake of fact are not defenses)   Crime Against Nature   Adultery/Fornication   Incest   Seduction   Bigamy
Property Offenses – Checklist
Larceny Embezzlement False Pretenses Robbery Extortion Receipt of Stolen Goods Forgery Malicious Mischief
Property Offenses – Larceny
A wrongful taking and carrying away of (asportation – any movement of property is sufficient) personal property of another without consent of victim with specific intent to permanently deprive owner of property at time of taking.   Note: taking property in the belief that it’s yours or that you have a right to it is not common law larceny.   Larceny by trick is when consent is granted through misrepresentation. Larceny by conversion - had lawful acquisition and then intended to steal it.   Abandoned property no larceny, loss or mislaid property look for clues,
Property Offenses – Embezzlement
Specific Intent Entrustment Fraudulent conversion of personal property of another by person in lawful possession of that property.   No asportation is required.  Embezzler need not benefit from conversion.  Paradigm embezzler is the trustee (has lawful possession, but then illegally converts).   Look for some type of relationships
Property Offenses – False Pretenses
Specific Intent Defendant persuades owner to convey title by a false representation. The falsity must be with respect to current or past fact. False promise cannot ground liability for false pretenses.  If victim intends to convey only possession, it is larceny by trick.
Property Offenses – Robbery
The wrongful taking and carrying away of the property of another from his presence either by means of force or violence or intimidation (Larceny  lesser included offense)   Specific Intent   Armed robbery - with a weapon
Property Offenses – Extortion
Blackmail - Obtaining property from another with consent by means of intimidation which is of a lesser degree that that required of robbery
Property Offenses – Receipt of Stolen Goods
Must receive possession and control AND have knowledge that property was criminally obtained
Property Offenses – Forgery
Making or altering of a false writing with intent to defraud
Property Offenses – Malicious Mischief
Malicious destruction of or damage to the property of another
Offenses Against the Habitation - Checklist
Burglary Arson
Offenses Against the Habitation – Burglary
Requires a breaking and entering of the dwelling house of another  in the nightime with the specific intent to commit a felony therein.   Breaking (either actual (involving force) or constructive (threat or fraud)) Entering (any part of body crosses into dwelling, can be tool) Dwelling house of another - Can be barn, garage called curtilage, immediately surrounding house at nightime Specific Intent to commit felony (not borrow items inside, at that time)   ML - Trespassory/unlawful entrance in any structure with the intent to commit a crime required by majority of the jurisdictions
Offenses Against the Habitation - Arson
Common law arson is: the malicious burning of the dwelling house of another.  Each part must be satisfied: Burnings - Charring required not just blackening Malice - Reckless/Wanton Conduct not specific intent Dwelling - Someone else’s dwelling house - not your own   ML - Insurance fraud   can have duress defense
Offenses Against the Judicial Procedure
Perjury: willful taking of a false oath regarding a material matter in a judicial proceeding   Subordination of Perjury: procuring or inducing another to commit perjury   Bribery: corrupt payment or receipt of anything of value in return for official action   Compounding a Crime: failing to report or prosecute a crime in exchange for valuable consideration   Misprison of a Felony: failing to report knowledge of a felony committed (minority - most states say no duty to report)
Parties - Checklist
Accomplice Principal Accessories Defenses
Parties - Accomplice
Person who aids or encourages before, during a crime.  Mental State – Intent to aid or encourage.  Knowledge assist, intent. Common Law - Liable for all crimes Modern - No
Parties - Principal
Common Law – Person actually present when the crime is committed.    Principal in the first degree – person who actually engages in an act that constitutes a crime.   Principal in the second degree – person who aids, commands or encourages at the scene of the crime (early common law referred to this party as an accessory at the fact).   Modernly – Person who actually engages in an act that constitutes a crime. Mental State – Intent to aid or encourage. Knowledge, assist, intent. Common Law - Liable for all crimes Modern - No
Parties - Accessories 
Common Law – Person that are not actually present when crime is committed.   Accessory before the fact – person who aids or encourages but is not present. Knowledge assist, intent. Common Law - Liable for all crimes Modern - No   Accessory after the fact – person who aids after the crime.  Knowledge assist, intent. Common Law - Liable for all crimes Modern - No   Modernly- Person who aids another knowing that he has committed a felony for the purpose of escaping arrest, trail or punishment. Knowledge assist, intent. Common Law - Liable for all crimes Modern - No
Parties - Defenses
Withdrawal   Common Law: Communicated to all effectively and timely. Modern Notify authorities or crime is preventable.   Impossibility:   Factual impossibility - no defense. No – legal impossibility – valid defense.
A substantial act towards preparation of an intended crime   SLAP   S - Specific Intent L - Legal (no attempt) v factual impossibility A - Apparent Liability P - Preparation v perpetration  - substantial step towards the crime   Defenses   Withdrawal - Majority - no effect if the zone of preparation entered. MPC - allowed if voluntarily and successful.   Factual Impossibility - Never a defense. D intends and acts to violate law but unknown factors make result impossible (go to steal wine not there)   Legal Impossibility - Always a defense. D's conduct even if carried out would not constitute a crime.  Tradition - Defense. MPC - No Defense unless intended conduct was not crime. 
Intent to induce another to commit a crime Ends when ∆ asks.   Merger Will merge with attempt, conspiracy or target offense. Solicitor can be held liable for crime solicited if solicitee actually commits the target offense Cannot be punished for both solicitation and the crime, if merge than the crime only No merger if solicitee takes no step in furtherance of solicitation   Defenses Withdrawal - once solicit cant withdraw but limits the accomplice liability. MPC - it must be complete and voluntary abandonment of criminal purpose. 
Conspiracy is an agreement between two or more persons to commit a crime with the specific intent to commit that crime.  Also by conduct.   Overt Act (Majority Rule – any little act will do) (Minority and Common Law Rule - you only need an agreement)   Pinkertons Rule - Each conspirator is liable for crimes committed by other conspirators if 1) the crimes are in furtherance of the conspiracy; and 2) they are foreseeable.   Wharton Rule – When a crime by its nature requires more than one party, a conspiracy can only be accomplished when at least one additional party is participating in the agreement. (i.e. Adultery, dueling, bribery, drug dealing).   Feigned Agreement – Only one guilty mind no conspiracy.  Unilateral Theory - Under the modern penal code defendant is guilty of conspiracy if he believes he entered into a conspiracy.   Impossibility is no defense to conspiracy Withdrawal- CL - Not a defense, MPC - Communicate to all conspirators, timely and effective, or anything to avert the crime.
Defenses for Crimes – Checklist
Self Defense Defense of Others Defense of Property Crime Prevention Necessity Insanity Diminished Capacity Infancy Intoxication Public Authority Domestic Authority Mistake of Fact Mistake of Law Duress Consent of Victim Entrapment
Defenses for Crimes – Self Defense
Murder Allowed to use amount of force reasonably necessary (reasonably neccessary) to prevent attack. Majority - No requirment that defendant retreat before using deadly force CL and Minority - Required D retreats before using deadly force in self defense   Other crimes   Only reasonable force not deadly force 
Defenses for Crimes – Defense of Others
Murder Deadly Attack, special relationship -  wife, child ect Majority - No relationship required Minority - Step in the shoes and can use same force   Other Crimes Relationship and no deadly force  and step into the shoes of the victim
Defenses for Crimes – Defense of Property
Murder Limited to home , must be have reasonable belief of that a felony or harm intended   Other Crimes Non deadly force Request to desist required unless futile
Defenses for Crimes – Crime Prevention
Murder CL - Deadly force to prevent perpetration of felony Modern - Deadly force limited to present public danger, Police can use it.   Other Crimes Non deadly force to prevent crime/felony
Defenses for Crimes – Necessity
Pressure created by physical forces Public Disaster may require deadly force
Defenses for Crimes – Insanity
M’Naghten Test: Right/Wrong Test - did not know what he was doing wrong   Irresistible Impulse Test: Inability to control conduct   Model Penal Code: Lacks the substantial capicity to confirm his conduct to the law or appreciate the wrongfulness of his conduct   Durham Rule: Conduct was due to mental illness
Defenses for Crimes – Diminished Capacity
Limited to specific Intent crimes
Defenses for Crimes – Infancy
0 to 6 - Presumption of incapacity to commit crime 7 to 14 - Rebuttal presumption based on heinous of crime 14 and over - Juvenile or Adult depends on the crime
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