Criminal Law Law School Legends

Professor Charles Whitebread

I. Criminal Law Exams 3 Types of Questions A. Statutory Comparison Question Compare the Model Penal Code to your own states criminal code on some particular issue. B. Hypothetical Fact Pattern Essay Question 1. STEP 1 If the hypothetical contains multiple transactions, the first organizational division you should make is by transaction. Separate out each transaction. 2. STEP 2 For each transaction, organize by legal issue. 3. STEP 3 Answer the question using IRAC. a. Spot the ISSUE. b. State the RULE about that issue. Then, state whatever public policy issues there are that support that rule. c. ANALYZE or APPLY the rule to the set of facts given. d. Reach a tentative CONCLUSION. C. Objective or Short Answer Questions 1. If it is a multiple choice question, use process of elimination.

II. Jurisdiction A. A state acquires jurisdiction to adjudicate the crime if that state is the legal situs of the crime. This means that either the conduct happened in that state or the result happened in that state. B. Crimes of omission Jurisdiction lies where the act should have been performed. III. Essential Elements of Crime A. ACT or an OMISSION 1. Act can be any bodily movement a. Bodily movements that do not qualify for criminal liability: i. Conduct that is not the product of your own volition. ii. A reflexive or convulsive act. iii. An act performed while you are unconscious or asleep. 2. Omission a. Rule: Generally, there is no legal duty to act. b. Exceptions (5 circumstances): i. Statute ii. Contract iii. Relationship between the parties. iv. Voluntary assumption of a duty of care to another person. v. When your conduct created the peril. B. MENTAL STATE 1. Common Law mental states

a. Specific Intent i. Importance specific intent crimes qualify for additional defenses that are not available for other kinds of crimes. ii. Types of Specific Intent Crimes: (1) Solicitation (2) Conspiracy (3) Attempt (4) First Degree Murder (5) Larceny (6) Embezzlement (7) False Pretenses (8) Robbery (9) Burglary (10) Forgery b. Malice i. Murder ii. Arson c. General Intent Virtually all other crimes (e.g., rape and battery) d. Strict Liability i. No intent crimes. Therefore, any defense that negates intention cannot be a defense to strict liability. ii. Formula for Strict Liability If the crime is in the Inchoate Crimes

administrative, regulatory, or morality area and it does not have the words knowingly, willfully, or intentionally in the statute, then it is meant to be strict liability.

MULTIPLE CHOICE PRACTICE QUESTION

If the contributing charges were based on a statute reading: Whoever shall commit an act affecting the morals of a minor under sixteen years of age shall be deemed guilty of contributing to the delinquency of a minor and shall be punished by imprisonment in the state penitentiary for a period not to exceed five years. Dukes (the perpetrator of the act in question) best legal defense would be: A) B) C) D) Statute is unconstitutionally vague. Linda, the woman in question, consented to his actions. He was entrapped by Lindas appearance. He did not intend to contribute to her delinquency.

Correct Answer: A. This is a strict liability question. Therefore, any defense that negates
Dukes intent cannot be a defense. With respect to the contributing charge set out in the statute, proof by Duke that he was so inebriated he could not have formed the criminal intent would be: A) A good defense because the charge requires specific intent. B) A good defense because at least a general criminal intent is required for every defense. C) A poor defense because contributing to the delinquency of a minor is an offense against a child. D) A poor defense because the state of mind of the defendant is irrelevant to this event.

Correct Answer: D. The state of mind of the defendant is irrelevant to this offense, so
intoxication of defendant does not matter. 2. Model Penal Code mental states a. PURPOSELY If I engage in conduct that produces a desired result, no matter how unlikely it was to actually produce that result, the mental state is purposely. This is specific intent.

b. KNOWINGLY If I engage in conduct that is overwhelmingly likely to produce a result, even if I did not care about that actual result, the mental state is knowingly. This is specific intent. c. RECKLESSLY d. NEGLIGENTLY III. Crimes A. Accomplice Liability 1. Definition A defendant is liable for the crime itself and all other foreseeable crimes. 2. However, the defendant must be actively in on the crime. Do not give anyone accomplice liability unless he is actively in on the crime. Do not give them anyone liability just because he is present when the crime is committed. B. Inchoate Crimes 1. Solicitation a. Definition Asking someone to commit a crime. The crime of solicitation is over as soon as the person is asked. 2. Conspiracy a. Definition As soon as the person you asked to commit a crime says yes, it becomes conspiracy. b. At Common Law Conspiracy and solicitation merged into conspiracy. c. Elements of Conspiracy: i. An agreement ii. Intent to agree iii. Intent to pursue the unlawful objective

d. Liability Each conspirator is liable for all crimes committed by co-conspirators if those crimes were committed in furtherance of the conspiracy and were foreseeable. e. Agreement Requirement The agreement does not have to be express. It is not required that there be any written or spoken words of agreement. Various people can be in a conspiracy even though they do not know each other. f. Unilateral Theory of Conspiracy At Common Law, there had to be at least two guilty minds in order to be a conspiracy. This meant that if one party was an undercover police officer, then there was no conspiracy because there was no meeting of the minds. Under the Unilateral Theory of Conspiracy, though, you can conspire with an undercover police officer. g. Overt Acts Required for Conspiracy Division between Majority Rule and Common Law i. Majority Rule In order to ground liability for conspiracy, there must be an agreement and some overt act beyond the agreement in furtherance of the conspiracy. Any little act will do to be an overt act in furtherance of the conspiracy. ii. Common Law (minority rule) Grounds liability for conspiracy with the agreement itself. h. Withdrawal From Conspiracy i. Common Law Withdrawal, even if it was adequate, could never withdraw the defendant from liability for the conspiracy itself. However, it could withdraw the defendant from liability for the co-conspirators subsequent crimes after withdrawal. ii. Limited Statutory Withdrawal Right In some states, you can withdraw from the liability of conspiracy only if you: (1) Renounce the conspiracy, and (2) prevent the commission of the crime.

3. Attempt a. Definition Attempt = Specific Intent + Substantial step beyond mere preparation in the direction of the commission of the crime. b. Common Law At common law, factual impossibility was never a defense to attempt. However, legal impossibility was a defense to attempt. c. Model Penal Code Under the Model Penal Code, if the facts could have been as the defendant believed them, he is guilty of attempt. IV. Defenses A. Insanity 1. McNaughton Test At the time of the crime, the defendant lacked the ability to know the wrongfulness of his actions or understand the nature and quality of his acts. 2. Irresistible Impulse Defendant lacked the capacity for self-control and free choice. 3. Durham Rule Defendants conduct was the product of mental illness. 4. American Law Institute and Model Penal Code Test Defendant lacked the ability to conform his conduct to the requirements of law. B. Intoxication 1. Voluntary Intoxication (including addicts and alcoholics) Defense only to specific intent crimes and no other crime at all. 2. Involuntary Intoxication A form of insanity, and just like insanity, a defense to all crimes, including no intent crimes of strict liability, C. Infancy 1. Common Law Under 7 years old, no criminal liability. Under 14 years old, rebuttable presumption of no criminal liability.

D. Self-Defense 1. Non-deadly Force A victim may use non-deadly force in self-defense any time that the victim reasonably believes that force is about to be used on him. 2. Deadly Force a. Majority Rule A victim may use deadly force any time that the victim reasonably believes that force is about to be used on him. b. Minority Rule Requires a victim, prior to use of deadly force in self-defense, to retreat to the wall if it is safe to do so. i. Exceptions to the Duty to Retreat: (1) Do not have to retreat out of your home. (2) Do not have to retreat if you are a victim of rape or robbery. (3) Police officers do not have a duty to retreat. 3. Original Aggressor In general, do not give the original aggressor the defense of self-defense. The only instance in which an original aggressor might get a defense of self-defense is if the original victim dramatically escalated the amount of force involved. E. Defense of Others The only issue is the reasonableness of the belief that the other person needed the help.

MULTIPLE CHOICE PRACTICE QUESTION

Ted frequently visited Janet, his next-door neighbor. Janet was separated from her husband, Howard. Howard resided with his mother, but jointly owned the house in which Janet resided. Late one night, Ted and Janet were sitting on the bed in Janets bedroom drinking, when Howard burst through the door and told Ted to get out. When Ted refused, Howard challenged him to go outside and fight it out. Ted again refused. Howard pulled a knife from his pocket and lunged at Ted. Ted grabbed a lamp and hit Howard in the head with it and killed him. On a charge of Murder, Ted should be found:

A) B) C) D)

Not guilty because Ted had as much right as Howard to be in the house. Not guilty because Howard attacked Ted with a deadly weapon. Guilty because Teds presence in Howards bedroom provoked the attack. Guilty because Teds failure to obey Howards order made him a trespasser.

Correct Answer: B. A victim may use deadly force in self-defense any time he reasonably
believes that deadly force is about to be used by him. F. Defense of a Dwelling Deadly force may never be used solely to defend property. G. Duress and Necessity Defenses to all crimes except homicide. 1. Duress Where someone holds a gun to you and says, Rob the store, or Ill kill you. 2. Necessity Where your plane crashes in the Andes and you have to eat people to stay alive. H. Mistake of Fact Defense only when it negates intention. The mistake must be reasonable. Mental State of the Crime Charged 1. Specific Intent 2. Malice and General Intent 3. Strict Liability I. Consent Consent of the victim. J. Entrapment The entrapment defense is very narrow. It is almost never available because predisposition on the part of the defendant to commit the crime negates the defense of entrapment. V. Common Law Crimes A. Battery A completed assault. B. Assault 1. An attempted battery. Application of the Defense Any mistake, reasonable or unreasonable. Reasonable mistakes only. Never.

2. A threat of bodily harm. C. Homicide 1. Common Law Murder (At Common Law, there were not degrees of murder.) a. The victim must be human. b. Homicide is murder under common law if you show one of the following intents: i. Intent to kill. ii. Intent to do serious bodily harm. iii. Abandoned and malignant heart. iv. Felony Murder 2. Manslaughter a. Voluntary Manslaughter Killing from passion. b. Involuntary Manslaughter i. Killings from criminal negligence. ii. Misdemeanor manslaughter Killing someone when you are committing either a misdemeanor or an enumerated felony. 3. First Degree Murder No uniform definition in the United States. 4. Felony Murder a. Defenses to Felony Murder i. If the defendant has a defense to the underlying felony, he has a defense to the felony murder. ii. The felony must be independent of the killing. The defendant must be committing some other felony besides the killing.

iii. The death must be foreseeable. iv. Deaths caused while fleeing from a felony are felony murder. However, once the defendant reaches some point of temporary safety, deaths caused thereafter are not felony murder. v. Majority position is the Red Line View. Defendant is not liable for the death of a co-felon as a result of resistance by the victim or police. D. Kidnapping You need a kid and a napping. E. Rape At common law, the slightest penetration completed the crime of rape. F. Statutory Rape Strict Liability crime. Consent of the victim is no defense. Mistake of fact is no defense. G. Common Law Property Crimes 1. Larceny Requires an unlawful taking by trespass or trick. Must be intent to permanently deprive at the time of the taking. At common law, taking property in the belief that it is yours or that you have some right to it is not larceny. 2. Embezzlement The embezzler always has lawful possession of the property and engages in an unlawful conversion. The embezzler gets possession only, not title. 3. False Pretenses Defendant persuades the owner of the property to convey title via false representations. A false promise to do something in the future cannot ground liability for false pretenses. . H. Robbery 1. Robbery = Larceny + Assault 2. In order to be robbery, the defendant must take from the person or his presence. There must be a threat of imminent harm, not future harm. (Your money or your life.)

I. Extortion 1. Two differences between extortion and blackmail: a. To be extortion, you do not have to take anything from the person or his presence. b. To be extortion, there must be threats of future harm, not imminent harm. J. Burglary Common law burglary requires a breaking (either actual involving some force or a constructive breaking involving threats or fraud) into a dwelling of another person at night with the intent to commit a felony inside. K. Arson Common law arson is the malicious burning of the dwelling house of another. There must be a material wasting of the fiber of the building by the fire. VI. Additional Issues A. Mental States for Crime under the Model Penal Code 1. PURPOSELY You want the result, and if you engage in conduct, no matter how unlikely to produce the result, if you produce it, its done purposely. 2. KNOWINGLY You engage in conduct overwhelmingly likely to produce a certain result, regardless of whether or not you care about the actual result. B. Accomplice Liability Accomplices are liable for the crime itself and all other foreseeable crimes. 1. Accessories After the Fact Someone who assists a person in his escape is not an accomplice and is not responsible for the crimes. Guilty of a separate crime. 2. Principals in the 2nd Degree Someone who was either present or nearby when the crime was committed. This person is an accomplice. 3. Accessories Before the Fact Someone who was not present when the crime was committee, but is still an accomplice.

C. Inchoate Offenses 1. Conspiracy At common law, the position was that in order to be liable for conspiracy, it required two guilty minds. a. Unilateral Theory of Conspiracy Allows someone who is conspiring with an undercover police officer to be charged with conspiracy. b. Withdrawal i. Common Law Withdrawal, even if adequate, can never withdraw the defendant from the conspiracy itself, but, rather, can withdraw the defendant from liability for co-defendants subsequent crimes. ii. Some states, now, do allow a conspirator to withdraw from liability for the conspiracy itself, but, in order to do so, the conspirator must: (1) Renounce the conspiracy; and (2) Thwart the commission of the crime. 2. Attempt a. Model Penal Code Enacted a provision that said that if the facts could have been as the defendant believed them to be, then he is guilty of attempt, thereby eliminating the common law distinction between factual and legal impossibility. D. Defenses 1. Defense of Others a. Someone jumps into a fight on behalf of one of the parties. There are two issues in determining whether or not the person will be criminally liable for his acts. i. The relationship between the defendant and the person whose defense in which he acted.

(1) Majority Rule There does not have to be a special relationship. (2) Minority Rule Must either be a member of the defendants family, or the defendants servant, employer, or employee. ii. A defendant has the defense of others defense only if she reasonably believed that the person she assisted had the legal right to use force. If it turns out that that the person did not actually have the legal right to use force, does it negate the defense? (1) Majority Rule No, so long as the defendants belief was reasonable that the person she was aiding was not the aggressor. (2) Minority Rule The defendant steps into the shoes of the person she defends, and, therefore, has no defense if that person had no legal right to use force in self-defense. 2. Duress Implies a threat from a human being. 3. Necessity Implies z threat from physical circumstances. a. Rule Duress and necessity are defenses to all crimes except homicide. b. Some jurisdictions have made duress and necessity affirmative defenses. They are affirmative defenses to all crimes. 4. Entrapment a. Majority Rule Views entrapment defense as a statutory exception. It is as though every criminal statute in the land ended in the words unless entrapped. b. Minority Rule Replaces the statutory exception rule with a test based entirely on the nature of the policy activity. The entrapment defense would be available to a defendant if the police activity was such that it was reasonably likely to cause an innocent person to commit the crime.

C. Common Law Crimes 1. Homicide a. First Degree Murder No uniform definition of first degree murder in this country. Generally, the state will bear the burden to prove the aggravating circumstances that convert common law murder (second degree murder) to first degree murder. b. Felony Murder Many states, though not a majority, have a narrower definition of felony murder that says in order to be felony murder, one of the perpetrators of the crime must do the killing and some non-perpetrator of the crime must die. (This is narrower that the Red Line View.) 2. Larceny a. Larceny By Trick Classic Example: Changing the price tag on an item in the store. b. Larceny By Continuing Trespass Classic Example: You take a black umbrella from a restaurant that you thought was yours. You get home and discover it was not yours. However, you decide not to return it. 3. Burglary Statutory burglary applies to breaking or entering or remaining behind inside any kind of structure (does not have to be a dwelling) at any time of day (does not have to be at night) with the intention of committing any kind of crime inside (it does not have to be a felony.) 4. Arson Statutory arson covers explosions, water damage, smoke damage, fires to any kind of structure whether you own it or not.