Outline for Bar Exam

This is my outline for passing the bar exam.

Elements of a Crime

To establish criminal culpability in any criminal case, the prosecution must prove (1) actus reus, (2) mens rea, and (3) causation beyond a reasonable doubt.

The Model Penal Code is a minority rule. Only apply if directed. Otherwise, apply the majority rule, which is often the modern rule, or the common law rule if there is no modern majority rule.

Actus Reus

Actus reus requires a voluntary act or an omission if there was a duty to act.

Voluntary Act

A voluntary act is a bodily movement performed consciously as a result of effort or determination.

A voluntary act includes the possession of property if the actor was aware of his physical possession or in control of the property for a sufficient period to have been able to terminate it.

The following are not voluntary acts: reflex or convulsion; bodily movement during unconsciousness or sleep; conduct during hypnosis or resulting from hypnotic suggestion; bodily movement that otherwise is not a product of the effort or determination of the actor, either conscious or habitual.

A conditioned response is voluntary.

Coercion does not make something involuntary.

Martin v State (1944) (involuntarily and forcibly taken onto public highway by law enforcement officers after being arrested) Rule: Voluntary appearance in a public place is required to convict a person of intoxication in a public place.

People v. Decina (NY) (1956) (Decina voluntarily got in the car but did not voluntarily have a seizure) Rule: The definition of voluntary does not have any knowledge requirement.

Omission of Duty

In order to punish a person for an omission, the person must owe a legal duty to the victim, not just a moral duty.

Examples of duties: Statutory duties (law enforcement); Legal duty by contract (lifeguard/nursing home); Status relationship (husband/wife, parent/child); Voluntary undertaking to rescue that is abandoned; Failing to help after creating risk (hit & run).

People v. Beardsley (1907) (married bartender went on drinking binge with Blanche Burns, who took morphine tablets and died; bartender no duty to care for Blanche Burns)

Mens Rea

A defendant is not guilty of an offense, even if she has a culpable frame of mind, if she lacks the mental state specified in the definition of the crime.

Model Penal Code Mens Rea

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

Kinds of Culpability Defined

Purposely is when the conscious objective of the act is to bring about the prohibited result.

Knowingly is when the defendant knows, with almost absolute certainty, that the act will produce the prohibited result.

Recklessly is when the defendant is aware that the conduct creates an unjustifiable risk, but ignores that risk and engages in the conduct anyway.

Criminal Negligence is when the defendant should have been aware that conduct creates an unjustifiable risk, but is not aware and engages in the conduct. Reasonable person standard.

Some terms refer to multiple categories:

Intent: Acts intentionally with purpose or knowledge.

Willful: Acts purposely or knowingly, with moral turpitude (similar to intent).

New York Penal Law Mens Rea

(1) Intentionally

A person acts intentionally with respect to a result or to conduct described by a statute defining an offense when his conscious objective is to cause such result or to engage in such conduct.

(2) Knowingly

A person acts knowingly with respect to conduct or to a circumstance described by a statute defining an offense when he is aware that his conduct is of such nature or that such circumstances exist.

(3) Recklessly

A person acts recklessly with respect to a result or to a circumstance described by a statute defining an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur or that such circumstance exists.  The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation.  A person who creates such a risk but is unaware thereof solely by reason of voluntary intoxication also acts recklessly with respect thereto.

(4) Criminal Negligence

A person acts with criminal negligence with respect to a result or to a circumstance described by a statute defining an offense when he fails to perceive a substantial and unjustifiable risk that such result will occur or that such circumstance exists.  The risk must be of such nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation.

NYPL Section 15.05

Types of Intent

Specific intent requires proof that the defendant intended to create a specifically prohibited harm; includes acts done purposefully or knowingly (“with intent to”).

Nullified by an honest but unreasonable mistake of fact or by voluntary intoxication.

General intent only requires a desire to do the prohibited act; includes reckless and negligent states of mind.

Nullified by an honest and reasonable mistake of fact.

Strict liability has no mens rea element. If the actus reus element is satisfied, the defendant is guilty.

Mistake of fact is never a defense (e.g., mistake of fact not a defense for statutory rape, where the defendant mistakenly believes the victim was of legal age).

Transferred intent occurs when the defendant intends to produce a criminal result against one party, but harms another instead. The intent transfers from the intended victim to the unintended victim.

Concurrence requires the prosecution to prove that the act that caused the criminal result was actuated (set in motion) by the requisite criminal state of mind.

EXAMPLE: Common law burglary is the unlawful breaking and entering of the dwelling of another at night with the intent “to commit a felony or larceny therein.” If the defendant breaks into a house to escape from the rain, and then sees a valuable item and decides to steal it before he leaves, this is NOT burglary because the breaking and entering was not actuated by the requisite mens rea – there is no concurrence. Burglary requires proof beyond a reasonable doubt that the defendant broke and entered the dwelling with the intent to commit a felony or larceny once inside. Here, the intent was formed after the entry, so there is no burglary.

Classification of Crimes

Causation

To prove causation, the prosecution must prove that the defendant’s act was the actual cause and the proximate cause of the harm.

Actual cause

Actual cause can be satisfied by one of three tests.

But-For test: The result would not have occurred but for the defendant’s conduct.

Substantial Factor test: Multiple causes/parties are responsible for the result, but the defendant’s act was a substantial factor in causing the criminal result.

Acceleration test: The defendant’s conduct speeds up an inevitable death, even if briefly.

EXAMPLE: D1 stabs the victim in the heart with a knife. Simultaneous with this stabbing, D2 shoots the victim in the head. Medical testimony conclusively establishes that either the knife or bullet wound alone was sufficient cause to instantly kill the victim. Either D1 or D2’s act can be considered the actual cause of the victim’s death.

EXAMPLE: D1 shoots the victim in the chest. D2 then runs over the victim and kills him instantly. Medical evidence establishes that the victim would have died from the gunshot wound, but that he died more quickly as the result of being run over. Both D1 and D2 are substantial factors, and D2 is an accelerating factor.

Proximate Cause

Proximate cause requires the resultant harm to be within the risk created by the defendant’s conduct in crimes involving criminal negligence or recklessness, or sufficiently similar to that intended in crimes requiring intent.

A superseding intervening cause relieves the defendant of responsibility and breaks the casual connection to the criminal result.

If the intervening event is foreseeable, it will not supersede. The defendant is still responsible.

If the intervening event is unforeseeable, it normally will supersede.

Assessing Foreseeability

Determine whether the intervening cause was a dependent or responsive intervening cause, or merely a coincidence.

Dependent or responsive intervening causes do not supersede unless they are a very abnormal response to the defendant’s act.

Independent or coincidental intervening causes supersede unless they were foreseeable.

Crimes Against Persons

There are crimes against persons.

Criminal Homicide

Criminal homicide is the unlawful killing of a person by another. A killing is unlawful when it is committed as a result of a criminal state of mind (criminal mens rea); and without legal justification or excuse (no defense).

Homicide with malice is murder. Homicide without malice is manslaughter.

Murder

Murder is the unlawful killing of a person by another with malice.

At common law, death requires the victim to have been “born alive.”

Death must be caused by someone else (suicide is not homicide).

If the victim is already dying, accelerating the death is an actual cause of the death.

Year and a Day Rule: At common law a death that occurs after more than a year and a day is unforeseeable. Most states have eliminated this rule or extended the time period beyond one year, during which the defendant can be held responsible.

The defendant does not have to personally kill to be responsible. An accomplice may be held liable for the killer’s act. In a conspiracy, all members of the conspiracy can be held responsible if (1) the homicide was a reasonably foreseeable result of the conspiracy; and (2) the homicide was committed in furtherance of the conspiracy.

The defendant can be guilty of the death if their act was a substantial factor, where the defendant and a third-party cause the victim’s death (actual cause). The prosecution still has to show that the defendant was the proximate cause of the death.

A defendant can be guilty of murder if they are a co-felon and the person was killed during the commission of the felony.

Malice

A person has malice if they have the intent to kill. A person has an intent to kill if they purposely engage in conduct that will cause another person’s death or act knowing that their conduct will likely result in another person’s death.

Deadly Weapons Doctrine: Intent to kill is inferred from the defendant’s use of an instrument that is designed to kill or used in a manner likely to cause death or inflict grievous bodily harm (e.g., swinging a bat at the victim’s head).

Intent to Cause Serious Bodily Injury

The defendant acts with the intent to cause serious bodily injury if they have the conscious desire to seriously harm another person or are substantially certain that their act will result in serious or grievous injury to another person.

If the person dies, the mens rea is malice, and the crime is murder.

EXAM TIP: Any unlawful killing with malice is murder, even if the defendant did not set out to kill someone or did not even expect that their conduct would cause death.

Depraved-Heart Murder

A person commits depraved-heart murder if they recklessly engage in conduct that creates an extreme and unreasonable risk of death or serious bodily injury to another person, demonstrating a wanton and callous indifference to human life.

Felony Murder

A person commits felony murder if they participate in a serious or inherently dangerous felony during which an intentional or accidental killing occurs, and the killing is proximately caused by the commission or attempted commission of the felony.

Obstacles for prosecution are it has to be the “right type of felony” – (1) felonies listed in a statute, or (2) felonies that are independent of the killing and inherently dangerous.

The majority of states require the killing to be collateral (independent) to the felony. If the primary purpose of the felony is to cause serious physical harm, the felony is not independent and fails the collateral felony test. Felonies that fail this test are manslaughter, aggravated battery, aggravated assault, and mayhem.

Burglary; Arson; Rape; Robbery, and Kidnapping are felonies which satisfy the independent and inherently dangerous requirement.

Exception: Burglary with the intent to commit murder or cause serious injury, because the primary purpose of this crime is to cause serious harm. Therefore, it is not an independent felony.

The death must be a foreseeable outgrowth of the felony. This requirement is liberally applied – only coincidences are ruled out.

The death must be the result of injuries inflicted during the commission, attempt, or immediate flight from a felony. Felony starts when the defendant could be convicted of attempt. Terminates when the defendant reaches temporary safety.

Co-felon Responsibility: When a crime is committed by multiple people and the victim is killed by one felon, whether the co-felon is responsible for that killing will vary depending on jurisdiction.

Modern majority limits felony murder responsibility to a killing committed by a co-felon. Exempts felony murder responsibility for killings committed by non-felons.

Some majority jurisdictions will still apply the felony murder rule when a non-felon kills another non-felon (the victim aims at a felon, but kills a bystander instead).

At common law, felony murder responsibility attaches to all felons for any homicide committed during a felony. Only requires that the killing be proximately caused by the commission of the felony.

Exceptions:

Non-violent felon – Minority common law rule: A co-felon is exempt from felony murder responsibility if they are not armed and did not participate/have knowledge of the other co-felons’ intent.

Deserving victim – Minority common law rule: A co-felon is exempt from felony murder responsibility when anyone kills another co-felon.

Redline limitation – Majority common law rule: A co-felon is exempt from felony murder responsibility if the police or victim kills a co-felon.

Murder by Degrees

Many jurisdictions divide murder into degrees.

EXAM TIP: Remember, all murders require proof of malice. Therefore, distinguishing between first and second-degree murder will always turn on proof of an additional “ingredient” to establish first-degree murder. Malice is always the base mens rea element.

First Degree Murder

First degree murder is the intentional killing of another person by someone who has acted willfully, deliberately, or with planning. Generally, there are two types of first-degree murder: premeditated intent to kill and felony murder.

First-degree murder involving premeditated intent to kill

At common law and most degree jurisdictions, a person commits first degree murder when with intent to cause the death of another person, he causes the death of such person or of a third person; and there is proof that he acted with premeditation and deliberation.

A premeditated intent to kill requires that the defendant had intent to kill and some willful deliberation (the defendant spent some time to reflect, deliberate, reason, or weigh their decision) to kill, rather than killing on a sudden impulse.

At common law, a person can premeditate immediately.

The modern majority rule is that some time is necessary to think, but it does not have to be a lot of time. Most jurisdictions require that the premeditation occurred after the intent to kill was formed, which means proof of some reflection.

Prior planning and deliberation are often closely intertwined. Courts focus on the “pre” in premeditation, and generally look for evidence that the defendant deliberated and subsequently formed the intent to kill prior to the act of killing.

Voluntary intoxication or diminished capacity may prevent deliberation.

EXAM TIP: The modern majority rule requires the jury to find that premeditation occurred after the intent to kill was formed, which means proof of some reflection to distinguish first-degree murder from spur-of-the-moment killings. The minority position resembles the common law view that little or nothing more than intent to kill is required in order to find premeditation and deliberation (like the time it takes to decide to pull a trigger) —basically collapsing the distinction between premeditated, deliberated, and intentional killings.

Second Degree Murder

A person commits second degree murder when they intentionally cause the death of another person or of a third person.

Second-degree murder is typically murder with malicious intent but not premeditated. The mens rea of the defendant is intent to kill, intent to inflict serious bodily harm, or act with an abandoned heart (e.g., reckless conduct lacking concern for human life or having a high risk of death).

Second-degree murder is any killing with malice, but without the additional element to prove first-degree murder. In a jurisdiction that defines first-degree murder only as murder with premeditation and deliberation, any murder committed without the purpose to kill must be second-degree murder.

Manslaughter

Manslaughter is the act of killing another human being without malice. It is a general intent crime that is distinct from murder because it requires less culpability.

Voluntary Manslaughter

Voluntary manslaughter is intentionally killing another person in the heat of passion and in response to adequate provocation.

Adequate provocation is a provocation that would lead a reasonable person to lose self-control and fly into a sudden homicidal rage. Mere words are not enough (generally).

Rage must be hot such as a reasonable person would not have cooled off.

There must be a causal connection between the provocation and the killing.

The defendant must actually have been provoked and must not have cooled off.

Mitigating circumstances can strip malice from intent to kill (reduces murder to manslaughter).

Diminished mental capacity (minority): Mental disturbance short of insanity.

Imperfect self-defense (many states): An honest but unreasonable judgment of necessity to use homicidal self-defense or defense of others.

Involuntary Manslaughter

Involuntary manslaughter is an unintentional killing resulting from unjustified risk creation (recklessness or gross negligence) that is not sufficiently extreme to rise to the level of implied malice.

Involuntary manslaughter is an unintentional killing resulting without malice aforethought caused either by recklessness, criminal negligence, or during the commission or attempted commission of an unlawful act. An unintentional killing that occurs during the commission or attempted commission of a misdemeanor that is malum in se, such as battery, is involuntary manslaughter under the misdemeanor-manslaughter rule. Unlike felony murder, the malum in se misdemeanor does not need to be independent of the cause of death. If a defendant punched the victim, which was a simple battery, and the battery resulted in an unintended death, the defendant is most likely guilty of involuntary manslaughter.

Reckless Homicide – Manslaughter

A person commits reckless homicide when they recklessly cause the death of another person. Reckless homicide is manslaughter.

Gross Negligence Homicide

A person commits gross negligence homicide when they negligently cause the death of another person. Negligent homicide is manslaughter.

The defendant is unaware of the risk, but should have known. Examples include mishandling loaded weapons, driving dangerously (DUI), and shaking a baby so hard that it causes death.

Misdemeanor Manslaughter

Misdemeanor manslaughter is an unintentional killing that occurs during the commission or attempted commission of a misdemeanor that is malum in se, or of a felony that is not of the inherently dangerous type required for felony murder.

Intent to Cause Serious Bodily Harm Murder

Intent-to-cause-serious-bodily-harm murder is an unintentional killing proximately resulting from an act intended to cause great bodily injury. Absent justification, excuse, or mitigation, intent-to-cause-serious-bodily-harm satisfies the malice element for general-intent murder. Here, the soldier and his friend entered into an agreement whereby the friend would inflict serious bodily harm on the soldier by shooting him in the foot. Because the friend intended to seriously injure the soldier, and because the friend’s act proximately caused the soldier’s death, the friend may be found guilty of intent-to-inflict-serious-bodily-injury murder.

Other Crimes against Persons

Other crimes against persons include battery.

Battery

Battery is an unlawful application of force directly or indirectly upon another person or their personal belongings, causing bodily injury or offensive contact. As a general intent crime, battery doesn’t require a specific mens rea.

To defend battery, the defendant can prove that they obtained the plaintiff’s consent or that they acted for the defense of others or in self-defense, even if the defense is only reasonable belief and not fact.

The prima facie case for battery contains 4 components: (1) the defendant acts; (2) the defendant intends to cause contact with the victim; (3) the defendant’s contact with the victim is harmful or offensive; and (4) the defendant’s contact causes the victim to suffer a contact that is harmful or offensive

Bar prep definition has mens rea: Battery is the intentional, reckless, or criminally negligent unlawful application of force to a victim. It is a general intent crime established when (1) the defendant unlawfully applies force (can be indirect – the defendant throws rock at victim); (2) the defendant does so knowingly, recklessly, or as a result of a criminally negligent state of mind; and (3) the defendant has no legal justification/excuse.

Aggravated Battery

Aggravated battery is battery that involves an aggravating circumstance. Liability and sentencing for aggravated battery is typically harsher than that for battery.

Bar prep definition: In most jurisdictions, simple battery (misdemeanor) can be elevated to aggravated battery (felony) when the defendant (1) causes serious bodily injury; (2) uses a deadly weapon; or (3) there is a special category of victim (child, pregnant woman, or police officer).

Defenses to Battery

Consent.

Self-defense and defense of others, as long as proportional force is used.

Prevention of a crime, so long as proportional force is used.

Assault

Assault is an intentional act that puts another person in reasonable apprehension of imminent harmful or offensive contact. No physical injury is required, but the actor must have intended to cause a harmful or offensive contact with the victim and the victim must have thereby been put in immediate apprehension of such a contact.

Assault is a specific intent crime.

At common law, attempted battery is the only way to commit criminal assault. This type of assault requires an intent to commit a battery. Under the common law, an intent merely to frighten (even where accompanied by some fear-producing act, such as pointing an unloaded gun at the victim) will not suffice. Because an intent to injure is required, recklessness or negligence that comes close to causing injury (such as driving a car recklessly but just missing a victim) will not suffice for an assault.

Under the modern majority rule, a defendant commits criminal assault by attempting to commit battery or by intentionally causing the victim to fear an immediate battery.

A failed attempted battery requires proof that the defendant intended to actually batter a victim, but failed. So long as the defendant intended to commit battery, there is no defense that the victim was not aware of the assault or that the defendant was not presently able to commit the battery.

Fear of battery assault is a misdemeanor where the defendant never intended to actually batter the victim, but instead, intended to put the victim in fear of an immediate battery. The defendant must act with threatening conduct intended to cause reasonable apprehension of imminent harm to the victim.

For reasonable apprehension, the victim must simply anticipate that battery will result in immediate bodily harm. The victim must be aware of the threat of harm. There is no assault when a reasonable person would not expect imminent bodily harm.

Aggravated Felony Assault

Assault can rise to aggravated felony assault when (1) the defendant commits assault with a dangerous weapon; (2) the defendant acts with the intent to rape or murder; or (3) the victim is specially protected by statute.

Mayhem

At common law, mayhem requires the intent to maim or do bodily injury accompanied by an act that either (1) dismembers; or (2) disables the victim’s use of some part of their body.

Modern majority statutes have expanded the scope of the crime to include permanent disfigurement.

This crime is aggravated battery in jurisdictions that do not recognize the crime of mayhem.

False Imprisonment

A person commits false imprisonment when they engage in the act of restraint on another person which confines that person in a restricted area.

A person commits false imprisonment when they (1) willfully act with the intent to confine the plaintiff without the plaintiff’s consent and without the authority of law; (2) the defendant’s act causes the plaintiff’s confinement; and (3) the plaintiff is aware of the confinement.

Kidnapping

A person commits kidnapping when they intentionally abduct another person by means of force or the threat of force.

Abduction

Under the modern majority rule, for there to be abduction it is usually sufficient that the victim is taken to another location or secretly confined where the person is not likely to be found.

Some jurisdictions require some movement of the victim (asportation). Mere restraint is not enough (in a minority of jurisdictions unlawful restraint is enough).

A helpful definition of abduction is also provided in the Code of Virginia § 18.2-47 which states that “Any person who, by force, intimidation or deception, and without legal justification or excuse, seizes, takes, transports, detains or secretes another person with the intent to deprive such other person of [their] personal liberty or to withhold or conceal [them] from any person, authority or institution lawfully entitled to [their] charge, shall be deemed guilty of ‘abduction.’”

Rape

At common law, the original crime of rape had three elements. These were (1) carnal knowledge of a woman (vaginal penetration of the victim by the defendant) not his wife; (2) against her will (without consent); and (3) by force or threat of force (“NO” was not enough/resistance was required).

Rape is a crime at common law defined as unlawful sexual intercourse with someone without their consent and by means of fear, force, or coercion.

The modern majority rule, There is no implied resistance requirement. The focus is on objective evidence of lack of consent.

Penetration alone satisfies the “force” requirement.

If a reasonable person in the defendant’s situation would have known the victim was not consenting, that establishes the “against the will” and without consent element.

Mistake of fact can be a defense, because there is no requirement to prove extrinsic force. However, the mistake must be both honest and reasonable. Consent is determined objectively from observable circumstances.

Other non-consensual sexual contact is generally covered under a separate crime (sexual assault, sexual contact, sexual battery, or indecent acts).

Statutory Rape

If the victim is under the statutorily prescribed age of consent (usually 16), intercourse is rape, even if the victim expresses consent, because the victim is considered legally incapable of giving consent. It is no defense that the defendant mistakenly believed that the victim was of legal age.

Bigamy

Bigamy is the crime of marriage by one individual to more than one other person.

Incest

Incest is the crime of sexual relations between individuals who are closely related. The degree of relationship required varies by state.

Crimes Against Property

There are crimes against property.

Theft Crimes

Theft Crimes involve some taking of property from the victim by the defendant. The key to analyzing theft crimes is to examine three criteria:

1. How the defendant obtained the property (trespass, delivery, or trick).
2. Whether the defendant acquired custody, possession, or title to the property.
3. Whether the defendant had the intent to permanently deprive (steal) the property at some time while still in unlawful possession of the property.

EXAM TIP: Intent to permanently deprive (or steal) is the key to all theft offenses. If the defendant never forms the intent to permanently deprive before the property is restored to the rightful possessor, the defendant cannot be guilty of any form of theft offense. An unlawful taking, even with intent to temporarily deprive, is never theft.

General Framework

Larceny: Unlawful taking of property in someone else’s possession with intent to steal.

Embezzlement: Unlawful conversion of property in your possession with intent to steal.

False Pretenses: Obtaining title to property owned by someone else through fraud.

Larceny by Trick: Obtaining possession, but not title, through fraud, with intent to steal.

Forms of Control

Title is legal ownership and implies possession.

Possession is full dominion and control over the property but does not require title.

Custody is physical control of property in someone else’s possession without full dominion over the property – possessor places strict limits on permissible use of the property.

Larceny

At common law, larceny is trespassory taking which occurs when a person, without consent or right, exercises dominion and control over another’s property; and carrying away; of tangible personal property; of another; with intent to permanently deprive or steal (specific intent).²

Modern statutes have expanded the kinds of property to include theft of services and other intangibles.

Continuing Trespass Doctrine: If a defendant takes property, but at the time intends the taking to be temporary, and later decides to permanently deprive the owner of the property, the doctrine of continuing trespass establishes concurrence between the unlawful taking and the requisite intent to steal.

There is no intent if you think the property is yours, no matter how unreasonable.

Intent is satisfied if the defendant recklessly exposes property to loss or deals with property in a manner involving substantial risk of loss.

If, at the time of taking, the defendant intends to return the property to the victim unconditionally and within a reasonable time, there is no intent (only applies if the defendant has the ability to return the property).

Returning property DOES NOT establish the absence of intent to steal. A defendant is guilty of larceny if they intended to permanently deprive at the time of the taking or at any time prior to returning the property.

You can commit larceny in a grocery store if you put candy in your pocket, even if you put it back on the shelf a minute later.

Abandoning stolen property with the hope that it will be returned is still larceny.

The defendant can negate the intent element by: (1) pawning the property, but with the intent to reacquire the pawned property and return it to the owner; or (2) intending to replace or pay for the property at a later time if, for example, the property is easily replaceable (i.e., not unique).

Embezzlement

Embezzlement is the unlawful conversion of property already in the defendant’s possession with the intent to permanently deprive (statutory crime).

Conversion means transforming someone else’s property to your own – there must be some action toward the property that seriously interferes with the owner’s rights, i.e. selling, consuming, damaging, claiming title to it.

Unlawful conversion is conversion of the tangible personal property of another; by one who is already in lawful possession; with the intent to permanently deprive or steal.

Many embezzlement statutes require that the property be “entrusted” to the defendant.

Honest Belief

Specific fraudulent intent to steal can be negated by an honest belief that the defendant has a right to the property.

Robbery

Robbery needs all of the elements of larceny plus two additional elements:

1. The taking must be from the victim’s person or presence (area within their control); and
2. The taking occurs through force or threat of force that places the victim in actual fear at the time of the taking.
3. The taking must be a trespassory taking of personal property with the intent to steal.

An honest mistaken belief of right negates the intent to steal.

Pickpocketing is larceny, not robbery.

Theft by False Pretenses

Theft by false pretenses is obtaining title to property owned by someone else through fraud.

There must be false representation of present or past material fact by the defendant; who knows the representation is false; which causes the victim to pass title to his property to the defendant; and the victim’s reliance upon the false representation must be a reason—but not necessarily the only reason—for why the victim transferred title.

Puffery and statements of opinion cannot be the basis of a false pretenses conviction, because these are not representations of fact.

The defendant intends thereby to defraud.

EXAMPLE: Terry tells a car dealer that she paid for a car, and is there to pick up the keys. The dealer signs over the title to Terry, who got title by false pretenses.

Larceny by Trick

Larceny by trick is obtaining possession of property (not title) through fraud.

This is a form of larceny where the defendant obtains possession of property by means of a representation or promise that they know to be false at the time they take possession.³

Writing a fake check is larceny by trick, not false pretenses, because title does not pass until the check clears (most jurisdictions have a specific crime for this conduct).

EXAM TIP: For both false pretenses and larceny by trick, the evidence must show that the defendant obtained the property as the result of reliance on the material misrepresentation. If the defendant has the intent to steal, but the property is delivered to the defendant without such reliance, neither crime has occurred.

Extortion

Extortion (blackmail) is obtaining the property of another by threat of future harm to the victim or their property.

Tip: If it’s a threat of present harm, it’s probably robbery, not extortion.

Receiving Stolen Property

Receiving stolen property is the receipt of stolen property, known to be stolen, and with the intent to permanently deprive the owner (this was a common law misdemeanor).

The defendant must either know or constructively know that the property is stolen at the time that the defendant received the property.

Constructive knowledge exists when the facts and circumstances surrounding the receipt of the property leave no reasonable doubt that the receiver must have known, without further inquiry, that it was stolen.

Forgery

Forgery is fraudulently making a false writing with apparent legal significance with the intent to make wrongful use of the forged document.

The alteration must be material (change the meaning or effect of the document) to qualify (signing a false signature on a will).

Crimes Against the Habitation

There are crimes against the habitation.

Burglary

Burglary occurs when a person breaks and enters into a structure of another with an intent to commit a felony or theft crime therein.

Breaking:

In the past, at common law, breaking required some force. The modern majority has relaxed this requirement to include slight enlargement of an opening.

EXAM TIP: Watch for statutes that have deleted the “breaking” element altogether.

At common law and modern majority, entry by fraud, deception, or threat of force qualifies as breaking.

Breaking to exit is not sufficient for burglary.

Entering

Entry is placing any portion of the body inside the structure. The entering element can also be proven by showing that the defendant inserted a tool inside the structure, so long as that tool was inserted for the purpose of accomplishing the felony or theft within.

EXAMPLE: A defendant intends to break a window to steal jewelry. If a crowbar is used to break a window and push glass out of the way, its entry into the structure is not sufficient. However, if a pole with a hook is used to reach through the window (regardless of whether it was open or broken by the defendant) with the intent to pull out the jewelry on the hook, such entry would be sufficient.

Dwelling house of another

At common law, this was a home where people lived, whether occupied or not and included structures on the “curtilage” such as storage sheds.

The modern majority includes almost any structure, whether or not it is a “dwelling.”

At night

Modern majority generally dispenses with this requirement.

With intent to commit a felony or theft crime therein

Breaking and entering must be accompanied by simultaneous felonious intent or intent to commit larceny (intent after breaking is insufficient).

Arson

Arson occurs when a person maliciously burns property.

Malice is established by actions that intentionally or recklessly cause property to burn.

There must be proof that some portion of the structure was damaged as the result of burning. It is not necessary that the dwelling be substantially or totally damaged. However, there must have been some charring (i.e., slight burning) of the premises; a mere blackening or warping of the surface is not enough.

At common law, arson is the malicious burning of a dwelling of another.

The modern majority does not require that the property be the “dwelling of another.” Modern statutes now define arson to include most buildings, as well as vessels and personal property. Arson also includes situations where an owner maliciously burns his own structure or property.

Inchoate Crimes

Inchoate crimes are “incomplete” crimes. All require specific intent (purpose) to commit the target offense.

Inchoate crimes are solicitation, attempt and conspiracy.

Solicitation

Solicitation is the crime of trying to get someone else to commit your crime by enticing, advising, inciting, inducing, urging, or encouraging another person to commit the target offense.

At common law, this was a misdemeanor and the crime solicited had to be a felony or breach of the peace.

The modern majority rule is defined as requesting another to commit any offense.

Specific intent is required. The defendant must intend the solicitee to perform criminal acts. Solicitation requires more than encouragement.

The offense is complete when the solicitation is made.

Once the solicitation is communicated, the solicitor cannot withdraw from the solicitation.

There is no requirement that the solicitee commit the target offense BUT if they do (or attempt to) solicitation merges into that offense and the solicitor will be charged as an accomplice to the target offense, not with solicitation.

Attempt

Attempt is “almost” committing a crime.

For there to be attempt, there must be (1) specific intent or purpose to bring about a criminal result; and (2) a significant overt act in furtherance of that intent that proves the defendant went past the point of preparation and began perpetration.

Specific intent for attempt is the purpose (objective) to commit a target offense. This is true regardless of whether the target offense is a specific intent, general intent, or strict liability crime.

EXAMPLE: A and B attack C. A intends to kill C, but B intends only to seriously injure him. If C does not die, then only A can be convicted of attempted murder. Even in a jurisdiction that recognizes murder based on a mens rea, which itself does not require specific intent to kill (e.g., murder based on intent to seriously injure), to be guilty of attempted murder, one still must have a specific intent to kill.

At common law, for there to be attempt, the defendant is required to perform the last act necessary to achieve the intended result.

Under the Model Penal Code, for there to be attempt, an act is sufficient as long as it is a “substantial step” toward commission that indicates a purpose to complete the offense.

Many Jurisdictions use the proximity test: Ask how close in time and physical distance the defendant was to the time and place the target offense was to be committed.

Some jurisdictions use the equivocality test: The defendant’s conduct unequivocally indicates that he was going to complete the target offense.

EXAMPLE: At common law, the defendant would have to pull the trigger to be guilty of attempted murder. Today, loading bullets while located in proximity to the intended victim with a clear line of sight would likely be sufficient to prove attempt.

Defenses to Attempt

Abandonment of the attempt:

At common Law, there is no defense once the attempt is complete (moved from preparation to perpetration).

Under minority rule and Model Penal Code, a voluntary and complete abandonment is a defense.

Legal impossibility: the defendant is not guilty if they thought they were committing a crime, but it’s not actually a crime.

Factual impossibility: If the defendant would have committed the offense had the facts been as they believed them to be, the defendant is guilty of attempt, even if it was factually impossible to complete the crime.

EXAMPLE: The defendant, believing his pistol is working, points it at the victim and pulls the trigger intending to kill the victim. Because the pistol is defective and jams, it was factually impossible for the defendant to commit the offense of murder. The defendant is still guilty of attempted murder.

Conspiracy

Conspiracy is the crime of planning to commit a crime with someone else.

A conspiracy requires an agreement between two or more persons to commit a crime and an overt act (committed by any conspirator) in furtherance of the conspiracy. There must be intent to agree and specific intent (purpose) to commit an unlawful act.

EXAMPLE: Jerry solicits two people to kidnap his wife so that he may extort money from her family. Once the two people agree to do so, a conspiracy has been entered into.

Overt Act Requirement:

Common law does not require an overt act; the agreement itself is a crime.

Modern majority rule requires an overt act in furtherance of the conspiracy. Beginning preparation to commit the crime is all that is required; it can be very trivial (unlike the requirement in attempt where the defendant must go beyond preparation to beginning perpetration).

EXAMPLE: In the example above, Jerry giving the kidnappers keys to a car in payment for their participation would be enough to qualify as an overt act for conspiracy, but would be insufficient to convict for an attempted kidnapping.

Co-conspirator liability/Pinkerton Doctrine (majority): Each co-conspirator is liable for the crimes of all other co-conspirators where the crimes were both a foreseeable outgrowth of the conspiracy AND committed in furtherance of a conspiratorial goal.

“Chain” relationship: Where several crimes are committed under one large scheme in which each member explicitly or implicitly knows of the other parties’ participation and a community of interest exists, one single conspiracy results and all “links in the chain” are responsible for the crimes of each other.

EXAMPLE: In a drug distribution conspiracy, each member of the distribution effort is connected implicitly by a chain to the other. Therefore, all participants are liable for any crime that was a foreseeable outgrowth of the conspiracy and committed in furtherance of the conspiracy.

“Wheel and spoke” relationship: Where one common member enters into agreements to commit a series of crimes with others, multiple conspiracies exist and the tip of each “spoke” is connected to a common “wheel,” but not to other “spokes.”

Procedural Issues with Conspiracy

At common law, if there are only two conspirators, acquittal of one co-conspirator requires acquittal of the other, because two guilty parties are needed for a conspiracy conviction. If one person feigned agreement, then no conspiracy existed because there was no true meeting of the minds.

Model Penal Code permits conviction of a single party when the other conspirator feigned agreement or is acquitted (a “unilateral conspiracy”).

Wharton Rule: If the target offense requires two or more people as a necessary element they cannot be convicted of a conspiracy to commit the crime. But, if the agreement involves an additional person not essential to the definition of the crime, the “third-party exception” allows for all parties to be convicted of conspiracy.

EXAMPLE: Dueling requires proof of an agreement to engage in private combat. If A and B engage in a duel, they are guilty of the crime of dueling but not of conspiracy to duel. If a third party encourages A and B to duel, then all three can be convicted of conspiracy to duel.

Defenses to Conspiracy

Withdrawal (Common law and MPC): Complete and voluntary withdrawal severs liability for future crimes, but is no defense to the conspiracy itself. Requires notice to all conspirators.

Renunciation (MPC only): Withdrawal and an affirmative act to thwart the conspiracy can eliminate responsibility for the conspiracy itself.

Parties to Crime

There are parties to crime.

Accomplice

Accomplice liability is not an offense, but a way to link an accomplice to a crime committed by someone else. An accomplice is charged as if they were the principal (one who committed crime).

The defendant is criminally responsible as an accomplice if they do some act (or omission with duty to act) that facilitates the principal’s commission of the crime (or attempt), including encouragement with the intent of bringing about the commission of the crime. Even a small amount of assistance is sufficient.

The prosecutor has to prove that the defendant intended to commit the acts of assistance or encouragement and further intended to assist or encourage another to commit the crime charged.

Modern (minority) rule is that accomplice liability may be established when a provider of goods or services has knowledge that he is assisting in the commission of a crime and benefits (seller knows buyer will commit arson and sells him an explosive device).

Accomplices are responsible for crimes that are purposefully facilitated and all others that are reasonably foreseeable outgrowths of the primary crime. This is an objective test. It is no defense that the accomplice did not expect the crimes to happen.

Common Law Approach to Accomplice Liability

Principal in the first degree is the “trigger puller” – the perpetrator who performs the act with the requisite mental state.

Principal in the second degree is a person who aids or abets and is present at the scene (getaway driver).

Accessory before the fact is a person who aids or abets but is NOT present at the scene.

Accessory after the fact is a person who aids or abets the principal after the commission of the crime.

To show that a person was an accessory, the prosecutor must prove that (1) there was a completed felony; (2) the accessory knew of the commission of the felony; and (3) the accessory personally gave aid to the felon to hinder their apprehension, conviction, or punishment.

EXAMPLE: Harry’s wife knows that he is going to burglarize a home. When he gets home, he tells her things went bad and he had to shoot the homeowner. When police come to the home looking for Harry, his wife lies and tells them he is not home. Harry’s wife is an accessory after the fact and can now be charged with burglary and murder (under common law).

In all modern Jurisdictions one who meets the requirements to be a common law accessory after the fact is charged with a distinct crime, such as hindering apprehension or obstruction of justice, not with the crimes committed by the principal.

Aiding and Abetting

A party who, with the requisite intent, aids, abets, or encourages the commission of a crime while at or near the scene of the crime is a principal in the second degree.

Defenses to Accomplice Liability

Renunciation:

An accomplice may avoid accomplice liability, before the crime begins, if that accomplice (1) stopped assisting and encouraging the principal; and (2) effectively communicated to the principal their intent to withdraw.

A minority of jurisdictions require the accomplice to neutralize their prior assistance or encouragement. However, these jurisdiction do not additionally require the accomplice to try to thwart the commission of the crime.

Defenses

There are two broad categories of defenses. These are excuse defenses and justification defenses.

Excuse defenses “forgive” the defendant for committing an unjustified crime because of some disturbance of the defendant’s mental process, thus nullifying culpability for the crime (insanity, involuntary intoxication, and duress).

EXAM TIP: All excuses turn on one ultimate question: Was the defendant’s mental process overwhelmed to the point that it is unfair to hold them accountable for the crime?

Justification defenses establish that what is normally unlawful was not unlawful under the particular facts of the case, and thus nullify the “reus” of the crime (self-defense, defense of others, defense of property, and necessity).

EXAM TIP: All justification defenses turn on one ultimate question: Was it truly necessary for the defendant to take the law into their own hands and commit an act that is normally unlawful?

Excuse Defenses

Excuse defenses are insanity, involuntary intoxication, voluntary intoxication, and duress.

Insanity

If the defendant was legally insane at the time of his criminal act, no criminal responsibility will be imposed.

A defendant is presumed sane; the burden is on the defendant to prove otherwise.

Under federal law, a defendant has the burden of proving insanity by clear and convincing evidence in federal court.

In the majority of states, the defendant has the burden of proving insanity by a preponderance of the evidence in state court.

NOTE: Do not confuse incompetency and insanity. Incompetency typically refers to a doctrine that prevents defendants from being tried, convicted, or punished unless they have sufficient present ability to consult counsel with a reasonable and rational understanding of the proceedings. If a defendant is found incompetent, they can later be tried and punished if competency is restored. Whereas, insanity concerns the defendant’s mental state at the time the offense is committed.

Four Tests to Show Insanity

M’Naghten Test:

Focuses on the defendant’s reasoning abilities. The defendant will be relieved of criminal responsibility upon proof that at time of commission, (1) the defendant suffered from a severe mental disease or defect (“disease of the mind”), and (2) as a result, was unable to know either (a) the nature and quality of his act; or (b) that what he was doing was wrong (delusional self-defense).

There is a split of authority in M’Naghten jurisdictions as to whether “wrong” includes both legal and moral wrongs. Some jurisdictions will deny a defendant the M’Naghten defense if the defendant understands that their conduct is illegal, even though they believe that it is morally right. Others will find defendants who do not know an act was morally wrong to be insane, regardless of their belief as to the act’s legality.

“Disease of the mind” includes all mental abnormalities, but not a psychopathic personality.

Irresistible impulse Test:

The defendant is not guilty if they had a mental disease that kept them from controlling their conduct, even if he knew that what he was doing was wrong.

Model Penal Code Test:

The defendant is not responsible for their criminal conduct if, at the time of such conduct and as a result of a mental disease or defect, they lacked substantial capacity to appreciate the criminality (wrongfulness) of their conduct or to conform their conduct to the law.

Durham (or New Hampshire) Rule:

The defendant is not criminally responsible if the unlawful act was the product of a mental disease/defect – it would not have been committed “but for” the disease/defect.

Involuntary Intoxication

Involuntary intoxication is a defense to any crime requiring proof of general or specific intent, so long as it negates mens rea or it caused temporary insanity.

If the involuntary intoxication caused temporary insanity, it is not a mental disease or defect, but rather, an intoxicated condition that causes the insanity. Regardless, the rules of insanity would otherwise govern.

Voluntary Intoxication

Voluntary intoxication may be a valid defense to a specific intent crime if it negates the requisite mental state (may negate purposeful or knowing mental state). Voluntary intoxication is not a defense to general intent crimes and won’t negate recklessness, negligence, or strict liability.⁴

EXAM TIP: Voluntary intoxication can negate deliberation, therefore reducing first-degree murder to second-degree murder, but not to manslaughter.

Duress

Duress excuses criminal conduct where the defendant reasonably believes that the only way to avoid an unlawful threat of great bodily harm or imminent death is to engage in unlawful conduct.

Duress is not a defense to murder, except to excuse the underlying felony in felony murder.

Justification Defenses

Justiication defenses are self-defense, homicidal self-defense, retreat or stand your ground, defense of others, defense of property, and necessity.

Self-Defense

Self-defense is an honest and reasonable judgment that it is necessary to use force to defend against an unlawful imminent threat of bodily harm.

For a defense of self-defense, the defendant must be a victim of an unlawful threat (not initial aggressor); in imminent danger of unlawful bodily harm (would call police otherwise); and uses proportional force (no more than reasonably necessary) to prevent imminent harm.

Homicidal Self-Defense or Deadly Force

Homicidal self-defense (deadly force) is permitted only in response to an imminent threat of death or grievous bodily harm.

Unclean Hands: The first aggressor may not claim self-defense.

At common law, the first aggressor could regain the right to self-defense only by complete withdrawal perceived by the original victim.

The modern majority follows the same rule as the common law, but the first aggressor will also regain the right of self-defense if the original victim responds to the aggression with excessive force.⁵

Retreat Rule or Stand Your Ground Rule

The duty to retreat if it exists is only when the person has a duty to retreat before using deadly force!!! Deadly force is key.

At common law, the victim of unlawful violence had a duty to retreat before a use of deadly force. This was eliminated in 35 states (stand your ground jurisdictions).

In states that retain the retreat rule, retreat is NOT required in the defendant’s own home, car, or office, and is not required if retreat is not feasible.

Defense of Others

A defendant is justified when it is necessary to defend a third party who is facing an unlawful imminent threat of bodily harm. Deadly force is only justified when there is a threat of death or grievous bodily harm.

The majority looks at the reasonableness of the defendant’s belief that the third person was being unlawfully attacked. If the defendant was reasonable but mistaken, they can still claim defense of others.

The minority rule is the defendant steps into the shoes of the victim. If the third party was the first aggressor or failed to retreat when required by law, the defendant has no defense.

Defense of Property

Reasonable non-deadly force is justified in defending one’s property from theft, destruction, or trespass where the defendant has a reasonable belief that their property is in immediate danger AND uses no greater force than necessary.

Deadly force may never be used to defend property (no spring or trap guns).

Deadly force may be used where the defender reasonably believes that the threat to property involves an imminent threat to life (confronting a burglar in your home in the middle of the night).

Necessity

Necessity justifies the commission of what is normally a crime when (1) it is necessary to avoid an immediate threat of greater harm to persons or property; (2) no reasonable alternative to breaking the law will avoid greater harm; and (3) the defendant is not responsible for causing the harm.

At common law, necessity is never a defense to murder, unless it is raised as a defense to the underlying felony for felony murder.

Under the Model Penal Code, the defendant can raise necessity for all charges, even homicide, which might result in acquittal, if the defendant kills one person to save multiple lives.⁶

Footnotes