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California Bar Exam Outlines
I. Jurisdiction and General Matters
Generally a state has jx. over a crime if that state is the legal situs of the crime. Either the conduct happened there or the result happened there, or conspiracy, or overt act. More than one state may have jx. over a single crime.
Crimes of omission – jx. lies where the act should have been performed.
Generally, there is no merger. You can be convicted of more than one crime from a single act.
But, there is merger for solicitation and attempt. That is, solicitation and attempt merge into the substantive offense. Thus, actually committing the crime is a complete defense to attempt.
Note: conspiracy does NOT merge with the substantive offense. So you can be convicted of conspiracy to rob and robbery (not of solicitation to rob and conspiracy to rob though)
II. Essential Elements of a Crime
A crime always requires proof of a physical act and a mental state.
Any bodily movement. Except an act that is: (1) involuntary, (2) reflective or convulsive (e.g. epileptic seizure), or (3) performed while unconscious or asleep (sleep-walking).
Omission: failure to act gives rise liability only if
There is a specific duty to act. May arise from
Relationship between the parties (parents, spouses, etc.)
Voluntarily assuming duty of care for someone else, and then failing to adequately perform it (rescue)
Where your conduct created the peril
The D has knowledge of the facts giving rise to the duty to act
It is reasonably possible to perform the duty.
Specific Intent: requires intent to engage in proscribed conduct. All defenses that negate intent are available. Subjective test. Required to all inchoates, thefts, frauds + assault
Intent to have the person solicited commit the crime
Intent to have the crime completed
Intent to complete the crime
First Degree Murder
Pre-meditation (distinguished from murder (CL or 2nd degree) which requires malice).
Intent to commit a battery (as attempted battery, rather than threat)
Larceny & robbery
Intent to permanently deprive other’s interest in the property
Intent to a commit a felony in the dwelling
Intent to defraud
Students Can Always Fake A Laugh, Even For Ridiculous Bar Facts
Malice: requires a reckless disregard of an obvious or high risk that the particular harmful result will occur. Subjective test.
Defenses to specific intent crimes do not apply to malice crimes
Only applies to common law murder and arson
General Intent: requires awareness of acting in a proscribed manner. Subjective test.
Catch-all category; jury may infer it from doing of the act.
Includes: battery, rape, kidnapping, false imprisonment, assault as a threat
Strict Liability: requires conscious commission of a proscribed act. Mere commission w/o awareness of all facts is punishable. Objective test.
If the crime is (1) in the administrative, regulatory, or morality area and (2) there are no adverbs like knowingly, willfully, or intentionally → then it is likely be a SL crime.
Any defense that negates intention cannot be a defense
E.g. statutory rape, selling liquor to minors, bigamy (some jurisdictions)
Model Penal Code – for statutory violations:
Purposely: requires that D had conscious objective to engage in the proscribed conduct. Subjective test.
Knowingly: requires awareness that conduct is of a particular nature or will cause a particular result. Also, awareness of high probability of certain circumstance or result and deliberately avoiding learning truth (willful). Subjective test.
Recklessly: requires conscious disregard of a substantial and unjustifiable known risk, gross deviation of care std. (wanton). Reasonable mistake excuses. Subjective test.
* awareness of a slim chance of harmful result is reckless, not knowing
Negligently: failure to be aware of a substantial unjustifiable risk. Objective test.
Transferred Intent – D may be liable under the doctrine of transferred intent where she intends the harm that is actually caused, but to a different victim or object.
Results in two crimes/ two victims. E.g. shoot at someone, miss, but hit someone else. You’re guilty of attempted murder against V1 and actual murder against V2. (no merger issues b/c there are two different victims). One attempted and one completed.
Applies to homicide, arson and battery. (“BAH”) Specific intent transfers over too.
III. Accomplice Liability
Requires that the person was
Actively involved and the crime (by giving aid, counsel or encouragement to the principal)
With intent to encourage the crime dual (i) intent to assist ppal, and (ii) that P commits offense
What is NOT sufficient for accomplice liability
Merely being present when the crime is committed
Mere knowledge that a crime could result (no accomplice liability for knowingly selling gasoline to a person who later uses the gas to commit an arson)
Liability: Accomplices are liable for the crime itself AND all other foreseeable crimes. Exclusions:
Members of protected class
Necessary parties not provided for: drug purchaser not punishable, cannot be accomplice
Withdrawal is a defense, as long as withdrawal occurs before the crime becomes unstoppable.
Repudiation is sufficient withdrawal for mere encouragement
Attempt to neutralize is required if participation went beyond mere encouragement
Notifying the police or taking other action to prevent the crime is also sufficient.
Accessory after the fact person aids, comforts or assists escaping or evading trial or conviction of another who knows committed felony: separate offense, punished for crimes accessory knew of.
IV. Inchoate Offenses – Incomplete Offenses (all specific intent, never negligent SAC)
Solicitation: inciting, counseling, advising, urging, or commanding someone to commit a crime with the intent that the person solicited commit the crime.
Crime ends when you ask them if the person agrees to commit the crime → it becomes a conspiracy → solicitation merges with the conspiracy → the only crime left is conspiracy.
Defenses: withdrawal is NOT a defense to solicitation. Also, it is not a defense that the person solicited is not convicted, nor that the offense solicited could not in fact have been successful. Legislative exemption OF V is defense (minor that urges adult for sex no liable for stat rape)
Attempt: an act done with intent to commit a crime that falls short of completing the crime.
Requires: (1) specific intent to commit target crime AND (2) a substantial step [beyond mere preparation] in the direction of the commission of the crime. Traditional C/L test: “proximity”, test dangerously close to completion. No attempt of negligent or reckless crimes, yes SL.
Factual impossibility is NOT a defense (e.g. not a defense to attempted robbery that the intended victim had not money)
Legal impossibility IS a defense (e.g. that it is no crime to that which the D intended)
Abandonment is NOT a defense in C/L, renunciation of crim purpose is in MPC
There IS Merger: D cannot be found guilty of both attempt and the completed crime.
Conspiracy: two people must be pursuing an unlawful objective.
An agreement between two or more people (does not have to be express. It may be inferred from joint activity. Parties do not have to know each other.)
An intent to agree, to the conspiracy. Bilateral in CL, unilateral MPC
An intent to pursue an unlawful objective
[the majority of states also require an overt act by any of conspirators].
No Merger: You can be convicted of conspiring to do something and the underlying crime.
Wharton: more parties than necessary for the crime, exc party not provided for.
Liability: each conspirator is liable for all the crimes of co-conspirators if those crimes were committed in furtherance of the conspiracy and were foreseeable. No liability if all acquitted.
Impossibility is no defense to conspiracy.
Withdrawal: D can withdraw from liability for the other conspirator’s subsequent crimes by affirmative act notifying with time for others to abandon plans. But, D can never withdraw from the conspiracy itself.
Generally the defenses apply to ALL crimes, EXCEPT: (1) voluntary intoxication and (2) unreasonable mistake of fact, which apply exclusively to specific intent crimes.
Insanity – 4 Formulations
M’Naghten Rule: D is entitled to acquittal only if due to his mental illness, at the time of his conduct, D lacked the ability to (1) know the wrongfulness of his actions or (2) understand the nature and quality of his actions. (loss of control, moral beliefs and delusions punishable)
Irresistible Impulse Test: D is entitled to acquittal only if due to his mental illness, D lacked the capacity to (1) control his actions or (2) conform his conduct to the law (no self-control, free-will)
Durham Test: D is entitled to acquittal if his conduct was the product of mental illness.
Model Penal Code: D is entitled to acquittal if due to his mental illness D lacked the substantial capacity to either (1) appreciate the criminality of his conduct, or (2) conform his conduct to the requirements of the law.
Presumption of sanity: D may raise insanity by preponderance of evidence, (clear and convincing in FedCt) or (MPC) prosecution required to prove sanity beyond reasonable doubt.
Burden of proof. On D, may prove by preponderance of the evidence
Voluntary Intoxication: intentional taking (w/o duress) of a substance known to be intoxicating (defense to specific intent crimes if the intoxication prevents formation of the required intent exc becomes intoxicated to establish defense). No claiming mistake of fact due to voluntary intoxication, no defense for awareness element of recklessness either.
Involuntary Intoxication: taking an intoxicating substance w/out knowledge of its nature, under duress, or pursuant to medical advice (treated as a mental illness – apply insanity test)
Under 7 → no criminal liability
Under 14 → rebuttable presumption of no criminal liability
Non-deadly force: A V w/o fault may use non-deadly force in self-defense anytime that V reasonably believes that force is necessary to protect self, no duty to retreat
Majority: V w/o fault may use deadly force anytime the V is confronted w/ unlawful force and reasonably believes that death or great bodily injury would result.
Minority: V may use deadly force only after retreat where safe to do so. EXC: No duty to retreat from 1. your home, 2. V of rape or robbery, or 3. By Police officer
Defense of a Dwelling
Non-deadly force: V may use non-deadly force he reasonably believes is necessary to prevent or end unlawful entry
Deadly Force: You may NEVER use deadly force for the sole purpose of defending your property. But, deadly force may be used to protect persons inside home.
Defense of property
Reasonable non deadly force may be used to defend property in possession, if request to desist not sufficient.
If possession lost, force can be used to regain possession of property reasonably believed wrongfully taken while in immediate pursuit of taker
Reasonable belief crime committed, PO can use force necessary for arrest
Crime in fact committed and reasonable belied person committed it.
Prevent escape of felons reasonably believed to threat death of great bod harm
Against who actually committed a felony, and person believes suspect threats dead or great bod harm
Where someone reasonably believes that another person would imminently inflict death or great bodily harm upon him or a member of his family. (e.g. when someone holds a gun on you and says if you don’t rob that bank I’m going to kill you).
A defense against all crimes except homicide
Mistake of Fact: a defense only when it negates intention.
Mental state of the crime charged
Application of the defense
Any mistake (reasonable or unreasonable)
Malice and general intent together
Reasonable mistakes only
Generally NOT a defense UNLESS the crime requires lack of consent of the victim (e.g. rape)
Where consent is required, defense applicable only if:
Consent is freely given
The party is capable of consenting AND
No fraud was used to obtain the consent.
Entrapment – very narrow defense. Available only if:
The criminal design originated with law enforcement officers and
The D was not predisposed to commit the crime prior to contract by the government
VI. Common Law Crimes
Assault & Battery
Battery: an unlawful application of force to the person of another resulting in either bodily injury or an offensive touching (general intent crime).
Assault: either (1) an attempt to commit battery (specific intent crime) or (2) a threat (general intent crime) (Remember merger: if there has been a touching of the V, the crime can only be battery, not assault).
Murder (CL or 2nd Degree): unlawful killing of a human being with malice aforethought. Malice aforethought exists if, the D had:
Intent to kill;
Intent to inflict great bodily injury;
Reckless indifference to an unjustifiably high risk to human life (e.g. Russian Roulette); OR
Intent to commit a felony (felony – 1st degree murder)
Voluntary Manslaughter: a killing that would be murder but for the existence of adequate provocation. Provocation is adequate only if: (note subjective and objective prongs)
The provocation would arouse sudden and intense passion in the mind of an ordinary person, causing him to lose self-control (obj)
The D was in fact provoked (subj)
There was not sufficient time between provocation and killing for passions of a reasonable person to cool (obj); AND
The D in fact did not cool off between the provocation and the killing (subj).
Imperfect self defense punished as voluntary manslaughter in some states
Involuntary Manslaughter: a killing that was committed:
With criminal negligence (great deviation of std of care or awareness) OR
During the commission of a misdemeanor or an un-enumerated felony
Felony Murder: any death caused in the commission of, or in an attempt to commit, a felony is murder.
CL 1st Degree Felony Murder: enumerated felonies include: burglary, arson, rape, robbery, kidnapping. (BARRK - inherently dangerous)
The D must be found guilty of the underlying felony (committing or attempting). If D has a defense to the underlying felony, he has a defense against felony murder (eg: sp intent defenses like vol intox in robbery).
The felony must be independent from the murder (commission of aggravated battery that causes a V’s death does not qualify as an underlying felony)
Death must be foreseeable result of felony (< requires malum in se)
Where D reaches a point of temporary safety, any subsequent deaths ≠ felony murder. But deaths occurring during D’s immediate flight = felony murder
D is NOT liable for the death of a co-felon that results from resistance of a victim or the police. Proximate cause: felon liable for deaths of Vs caused by someone ≠ cofelon. Agency: D only liable for crimes committed by his agent.
Other 1st degree murders: premeditated killing and killing of police officer
Rape: unlawful intercourse of a woman by a man, not her husband, without her effective consent. Note: slightest penetration completes the crime of rape. Lack of effective consent:
Intercourse is accomplished by actual force
Intercourse is accomplished by threats of great and immediate bodily harm
The V is incapable of consenting due to unconsciousness, intoxication, or mental cond.
Statutory rape: intercourse with a female under the age of consent; it is not necessary to show lack of consent. Reasonable mistake as to age is irrelevant. This is a strict liability crime.
Larceny – stealing. Requires
A wrongful taking
A carrying away (any movement)
Of the personal property
By trespass (w/o consent) (intent to borrow, pay debt or recapture not punishable)
With intent to deprive permanently (intent must exist at the time of the taking unless continuing trespass after wrongful taking)
Note: taking property in the belief that is yours, or that you have some right to it ≠ larceny. No larceny over abandoned property; taking lost property is larceny.
Larceny by trick: V passes custody because of misrepresentation of D (look at V’s intent)
Continuous trespass wrongful taking of possession w/o intent to deprive at time of taking becomes larceny if during wrongfully acquired possession decides to deprive.
Conversion (i.e. dealing w/ the property in a manner inconsistent w/ the arrangement by which D has possession)
Of personal property
By a person in lawful possession of that property
With intent to defraud (intent to restore exact property may negate)
D must be person or trust or high level employee, not required to benefit. If bailee breaks bulk, possession deemed to revert to owner, so most likely larceny.
Obtaining title; (if V tricked to give possession only, larceny by trick)
To personal property of another;
By intentional false statement of past or existing fact (MPC: future too)
With intent to defraud by the other.
Robbery (larceny + assault) requires:
Of personal property of another
From the other’s person or presence
By force or threat of immediate physical harm (or harm to dwelling)
With the intent to permanently deprive him of it
* Non immediate threat to obtain property= extortion
Receipt of stolen property
Receiving possession and control
Of stolen personal property (at time D receives it, not stolen after police recovery)
Known to have been obtained criminally
By another person
With the intent to permanently deprive owner of its interest on it
Making or altering
A writing with apparent legal significance
So that it’s false (represents what it’s not, not misrepresentation or inaccuracy)
With the intent to defraud
Fraud in obtaining signature of another is forgery only if person doesn’t realize he signed.
Uttering forged instrument: offering as genuine and instrument known to be forged with intent to defraud.
Offenses Against Habitation
A breaking (creating or enlarging an opening by at least minimal force, fraud, or intimidation, must be on the way in)
And entry (placing any portion of the body or instrument inside)
Of a dwelling (place where sleeps, hotel room)
Of another (question of occupancy not ownership)
With the intent to commit a felony or larceny inside (intent must exist at time of entry).
Underlying felony need not be committed, and if, doesn’t merge (both punished)
Modern statutes reduce requirements on breaking, nighttime and dwelling, and intent can be to commit a misdemeanor too.
The malicious (intentional or w/ reckless disregard of an obvious risk)
Burning (not water damage, smoke or explosion; must char, not scorch)
Of the dwelling
Of another (houseburning punishes burning of own house if in vicinity of others)
- Modern statutes eliminate dwelling requirement and include explosions
Unlawful confinement of a person
Without his consent (or obtained through threats, coercion, deception)
MPC: substantial interference with liberty
Unlawful confinement of a person that involves either:
Movement of the victim
Hot Topics in Criminal Law
Mental states for crime – general and specific
Accomplice liability – liable for the crime itself and all other foreseeable crimes
Mistake of facts*
Homicide + 5 defenses to felony murder
Distinguish the 3 common law property crimes (larceny, embezzlement, false pretenses)
criminal law 7/17/16 7:08:00 PM PG 6 of 6
With intent to deprive pe