I.

Crimes
A. Common Law
1. Murder
a) Causing the death of another person with malice
aforethought. Death must occur within 1 year and a day of
homicidal act (majority changes to whenever).

b) Intent to kill
(1) Intentional use of a deadly weapon directed at a vital part
of the human anatomy authorizes a permissive inference of
intent to kill

c) Felony Murder
(1) Killing or another human being during the commission or
attempted commission of a (inherently dangerous) felony.

d) Intent to cause serious bodily harm

e) Depraved Heart

2. Manslaughter
a) Intentional killing committed in the heat of passion as the
result of adequate provocation

3. Involuntary Manslaughter
a) The killing of another human being with criminal negligence

4. Arson
a) The malicious burning of a building. Under CL it had to be
someone else’s dwelling, today typically extends to all
buildings.

5. Battery
a) Willful unlawful application of force against another

6. Assault

a) Attempted willful unlawful application of force against another

(1) Assault is attempted battery, you can’t have attempted

assault

7. Mayhem
a) Unlawful application of force upon another resulting in
dismemberment or permanent disablement of a body part

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 (1) Modern statues group with assault

8. Reckless Endangerment
a) Recklessly engaging in conduct that creates a substantial risk
of serious physical injury to another person

9. Rape
a) Carnal knowledge of a woman forcibly and against her will

10. Larceny
a) Trespassory taking and carrying away of the tangible personal
property of another with intent to permanently deprive the
possessor of the property

(1) Possession — sufficient control over the property to use it

in a reasonably unrestricted manner

(a) Actual physical possession — under your physical

control

(b) Constructive possession — not in actual physical control

but nobody else has actual possession b/c lost, mislaid,
another person has mere custody

(2) Custody — physical control over the property but his right
to use it is substantially restricted by the person in
constructive possession of the property

(3) Bailee — a person with who some article is left, usual

pursuant to a contract, who is responsible for the safe
return of the article to the owner when the contract is
fulfilled

(4) When an employer furnishes property to an employee for

use during employment, the employee only has custody
and the employer still has constructive possession.

(5) Asportation is required, however it only needs to be slight

and must constitute a carrying away movement.

11. Robbery
a) Larceny, but with force or threat of force.

b) A larceny from another’s person or presence by force or threat

of immediate injury

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 12. Burglary
a) Breaking and entering a dwelling of another at nighttime with
the intent to commit a felony therein

13. Embezzlement
a) Conversion of the personal property of another by a person
already in lawful possession of that property with the intent to
defraud

(1) Often also require that the person came into the
possession of the property in trust for another.

14. False Pretenses

a) Obtaining title to the personal property of another by an
intentional false representation with the intent to defraud.

II. Mental States

A. Common Law
1. General Intent
a) Requires only a level of intent with respect to the acts that
make up the offense (Rape, Battery)

2. Specific Intent
a) Requires that the person act with a specific intent or objective
(forgery, larceny)

3. Malice
a) Intentionally disregarding an obvious or known risk (ONLY
murder, arson)

4. Strict Liability
a) No mental state required for at least one element of the crime,
doing the act is enough (typically lower punishment crimes)

B. MPC Mental States — Priority

1. Purposely

2. Knowingly

a) High probability person knew, knowledge satisfied

3. Recklessly

4. Negligently

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 C. Other
1. Extreme Recklessness
a) Reckless indifference to human life (depraved heart murder)

2. Premeditated

a) Defendant thought about it ahead of time. Quantity of time

analysis.

3. Deliberate

a) Defendant was cool, calm, and collected. Had time to

measure and evaluate the problem. Quality of thought
analysis.

III. Omission/Duties to Act

A. Look for the duty to do something and then the failure to do it!

B. Common Law
1. Status Relationships

a) Husband to wife, parent to child

2. Contractural Obligations

a) Nurse to patient, lifeguard to swimmer

3. Voluntary Assumption of Care

a) If you volunteer to provide aid you must continue

b) Can’t send others away from providing

4. Risk Creation

a) You create harm to another person, have to provide care

C. Statutory Duties
1. Income Tax for instance

D. When is Rise of Liability

1. Legal Duty to Act

2. Knowledge of the facts that give rise to duty

3. The ability to perform the act

IV. Defenses
A. Mistake of Law
1. Under common law has to be an official statement later
determined to be invalid

B. Mistake of Fact

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 1. Common Law

a) Moral Wrong Doctrine

(1) Reasonable mistake of fact, but not an unreasonable one,
ordinarily exculpates a defendant prosecuted for a general
intent crime. Based on the morals at the time (immoral
conduct = unreasonable)

b) Legal Wrong Doctrine

(1) If defendant’s conduct, based on the facts as he believes
them to be, constitutes a crime — not simply an immorality
— he may be convicted of the more serious offense that his
conduct establishes.

2. MPC

a) Mistake is defense if it negates required mental element.

Defendant is charged with the lower offense that the facts as
he believed them would fit.

3. Must be good faith and reasonable, we need to look if even after

mistake of fact occurs conduct is still crime.

C. Intoxication
1. No defense for general intent crimes, defense for specific intent
crimes. Voluntary intoxication doesn’t tend to work, involuntary
does.

D. Insanity
1. Insanity is an excuse defense. You look at what the defendant
knew at the time of the offense. There are five tests.

a) M’Naghten — oldest test, the touchstone insanity test. Mental

disease or defect prevented the defendant form (1) knowing
the nature and quality of the act he was doing or (2) if he did
know it, he did not know what he was doing was wrong.

b) Federal Test — proof of a severe disease or defect, tests

specifically the cognition of wrong/right. Replaces knowing in
M’Naghten test with appreciates. Places a higher burden of
proof on defense, brings it to clear and convincing evidence.

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 c) Irresistible Impulse — There is a mental disease or defect that
creates an irresistible and uncontrollable impulse to commit a
crime. “The disease made me do it.” This is a volition test,
instead of the cognition tests given above. Requires a total
incapacitation of free will.

d) Durham or Product Test — rarely used, behavior was the

product of the mental disease or defect, and but for the
mental disease or defect he would not have committed the
crime. Too broad, gives too much weight to expert testimony.

e) Model Penal Code — § 4.01 — not responsible for conduct if

at the time of the conduct as a result of the mental disease or
defect you lack capacity to appreciate criminality of your
conduct, and lacked substantial capacity to conform conduct
to the requirements of the law. Allows for cognition and
volition defects.

E. Infancy
1. Under seven not capable to form criminal intent, fourteen and
over capable to form criminal intent, seven to fourteen rebuttable
presumption of incapacity

F. Entrapment
G. Duress
1. Not a defense to murder. Some places will allow it to mitigate
down to manslaughter.

2. Requires three elements:

a) Immediate threat of death or serious bodily injury

b) A well grounded fear that the threat will be carried out

c) No reasonable opportunity to escape the threatened harm

H. Necessity
1. Test for Necessity Defense

a) The act charged must have been done to prevent a significant

evil

b) There must have been no adequate alternative

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 c) The harm caused must not have been disproportionate to the
harm avoided.

2. Requirements

a) Clean Hands Doctrine — You are limited in claiming necessity

if you were part of causing situation

b) Failure on some of above factors does not negate offense

I. Defense of Personal Property

1. Sometimes — non-deadly force to repel imminent unlawful of
property

J. Defense of Habitation
1. Non-deadly force to keep chattel

2. Deadly force sometimes allowed when person reasonably

believes:

a) Person is intending to make an imminent unlawful entry

b) Deadly force is necessary to repel the intrusion

c) States vary as to what the intruder needs to intent to do inside

(rape, murder, arson, etc)

K. Defense of Other Persons

1. Alter Ego Rule (Minority)

a) The right of self defense of the person that is actually at risk

governs the right of self defense of a third party who comes to
their rescue.

2. Reasonable Belief Standard (Majority)

a) Third party has to believe that the person reasonably could

use self defense and reasonably believe the amount of force
third party used would be appropriate for victim to use.

L. Self Defense
1. Typically a justification defense, could be an excuse depending
on jurisdiction.

2. Aggressor does not have right of self defense, initial aggressor

can withdrawal by communicating it to opponent.

3. Requirements under Peterson

a) Actual or apparent threat of deadly force against D

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 b) Threat must be unlawful and immediate

c) D believes self to be in imminent peril of death or serious

bodily harm

d) D must believe the response to be necessary to save himself

e) Beliefs just be honest and objectively reasonable

4. Majority
a) You do not have to retreat before defense of self

5. Minority
a) Duty to retreat before self defense

M. Extreme Emotional Disturbance

1. Theres a reasonable excuse for the way you acted because of
adequate b. Mitigates murder down to manslaughter.

a) Rule of Provocation
(1) There must have been adequate provocation

(2) The killing must have been in the heat of passion.

(3) It must have been a sudden heat of passion—that is, the

killing must have followed the provocation before there had
been a reasonable opportunity for the passion to cool.

(4) There must have been a casual connection between the

provocation, the passion, and the fatal act.

N. Impossibility
1. NEVER A DEFENSE TO CONSPIRACY

2. Legal impossibility is a defense to an attempt charge. Two

flavors:

a) Pure Legal Impossibility

(1) Exists if the criminal law does not prohibit D’s conduct or
the result she has sought to achieve

b) Hybrid Legal Impossibility

(1) Exists when the goal was illegal but the commission of the
offense was impossible due to a factual mistake by actor
regarding the legal status of some factor relevant to her
conduct.

3. Factual Impossibility

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 a) A failed attempt due to circumstances beyond actor’s control.
Attendant circumstance beyond actor’s control prevented
crime from taking place.

O. Abandonment

1. NOT A COMMON LAW DEFENSE

2. Actor must voluntarily and completely renounce his criminal

purpose — defense to attempts

a) No defense if a change in circumstances increases likelihood

of arrest

b) No defense if there is an increase in chances that the offense

will not be successfully completed

V. Attempts
A. Common Law (Two Intents)
1. Actor must intentionally commit the act

2. Must commit the act with the specific intention of committing the
target offense, including all attendant circumstances

B. Tests for Attempt

1. Physical Proximity

a) You have to be close to target

2. Dangerous Proximity

a) Poses a danger to target or others

3. Indispensable Element

4. Probable Desistance

a) D reaches a point where he will no longer give up without

outside interruption

5. Abnormal Step

a) Something someone normally wouldn’t do

6. Res Ipsa Loquitur

a) No innocent explanation

C. Other Notes
1. Attempts merge into the completed offense, you cannot charge
for both.

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 2. CL does not require substantial step for attempted murder (some
step is still required)

VI. Solicitation/Conspiracy
A. Solicitation — inchoate offense
1. Common Law
a) You ask a person to commit the crime for you.

b) A un-communicated request is not criminalized (there could

be an attempt to solicit charge, however)

c) Asker is liable for the actions of the person they asked to

commit the crime.

d) There has to be a specific intent that the crime occur.

e) Once there is an agreement, solicitation becomes conspiracy.

Once the act is completed, solicitation merges into completed
offense.

B. Conspiracy — inchoate offense

1. Common Law
a) Agreement between two or more actors to commit an offense.
Requires intent to form an agreement and intent that the
object of the agreement be satisfied.

b) Under CL does not merge with completed offense.

c) Under CL no overt act is required.

d) There can be multiple distinct agreements — separate

charges

e) Abandonment of Conspiracy
(1) CL does not allow withdrawal to avoid liability for
conspiracy itself, but does allow withdraw to avoid liability
for future crimes.

(a) Every member must know that you’ve withdrawn

(b) May need to dissuade other members or turn them into

the police

(c) If there is an overt act requirement (and the act has

happened yet), you aren’t liable for conspiracy

2. Pinkerton Liability

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 a) Conspiracy continues unless there is evidence of an
affirmative withdrawal (telling coconspirators and possible
police you withdrew — see above).

b) The overt act of one or more conspirators can be contributed

to the coconspirators without further agreement so long as the
act is in furtherance of the conspiracy and is foreseeable

3. Supplier Liability
a) Direct evidence that the supplier intends to participate, OR

b) Through an inference that the supplier intends to participate

based on

(1) His special interest in the activity, OR

(a) You charged above market price, derive bulk of profit

from criminals, no legitimate purpose for goods or
amount of goods

(2) The aggravated nature of the crime itself

C. Accomplice Liability — Substantive Offense

1. You don’t have to intend to commit the offense like in
conspiratorial liability, you only have to intend to provide
assistance. No agreement is required.

a) There can be agreement to provide assistance and this leads

to some overlap with conspiracy. This leads to Pinkerton
Liability.

b) Crime does not have to require a specific intent, unlike

attempt or conspiracy.

2. Common Law
a) Must intend to assist the primary party to engage in the
conduct that forms the basis of the offense AND

b) Must have the mental state required for the commission of the
offense, as defined in the definition of the offense

(1) Look for some type of active conduct, encouragement, or

an omission. You need to intend to help and then actually
provide some type of aid (mere presence can sometimes

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 be enough, i.e. agreeing to provide notice of police if they
come but not having to do so).

c) Abandonment Defense
(1) Person can abandon the activities and avoid liability for
future crimes committed by the primary party

d) Principal vs. Accessory/Accomplice

(1) Person who is merely present at the scene of the crime is
not accomplice.

(2) Person who merely has knowledge of the crime is not

accomplice

(3) Victims of the crime are not accomplices (they are

members of a protected class).

(4) An innocent agent is not an accomplice (it could be

children, animals, basically look for someone who doesn’t
know what is going on but cannot form intent to commit)

(5) Common Law

(a) Principal in the first degree
i) Person who commits a crime (either by own hand,
inanimate agency, or innocent human agent)

(b) Principal in the second degree

i) Person who is guilty because they aided, counseled,
commanded or encouraged at the moment of
perpetration

(c) Accessory before the fact

i) Guilty of felony by reason of having aided, counseled,
commanded, or encouraged the commission
therefore without having been present either actually
or constructively a the moment of perpetration

(d) Accessory after the fact

i) One who, with knowledge of the other’s guilt, renders
assistance to a felon in the effort to hinder his
detection arrest, trial, or punishment

(6) Majority (Modern) Approach

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 (a) Principal
i) Person who commits the crime

(b) Accomplice
i) Person who assists the principal in the commission of
the crime

VII. Doctrines
A. Natural and Probable Consequences Doctrine
1. Did the primary party commit the target offense (or inchoate
version thereof)

2. If Yes, was the defendant an accomplice in the commission of

the target offense?

3. If yes, did the primary party commit another crime/crimes

beyond the target offense?

4. If yes, were the latter crimes reasonably foreseeable

consequences of the original criminal acts?

B. Continuing Trespass
1. Initial trespass continues so long as the wrongdoer remains in
possession of the property

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