CRIMINAL LAW

CRIMINAL LAW i.

CRIMINAL LAW
TABLE OF CONTENTS

INTRODUCTION: GENERAL APPROACH . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

I. JURISDICTION AND GENERAL MATTERS . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
A. JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1. Federal Criminal Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
a. Power over Federally Owned or Controlled Territory . . . . . . . . . . 1
b. Power over Conduct Occurring Within a State . . . . . . . . . . . . . . 1
c. Power over United States Nationals Abroad . . . . . . . . . . . . . . . 2
d. Power over Conduct on Ships or Airplanes . . . . . . . . . . . . . . . 2
2. State Criminal Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
a. Situs of the Crime . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
b. Modern Bases for Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . 2
B. SOURCES OF CRIMINAL LAW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
1. Common Law Crimes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
a. No Federal Common Law Crimes . . . . . . . . . . . . . . . . . . . . . . 3
b. Traditional Approach—Common Law Crimes Retained . . . . . . . . 3
c. Modern Trend—Common Law Crimes Abolished . . . . . . . . . . . . 3
2. Constitutional Crimes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
3. Administrative Crimes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
4. The Model Penal Code . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
C. THEORIES OF PUNISHMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
1. Incapacitation (Restraint) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
2. Special Deterrence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
3. General Deterrence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
4. Retribution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
5. Rehabilitation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
6. Education . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
D. CLASSIFICATION OF CRIMES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
1. Felonies and Misdemeanors . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
2. Malum In Se and Malum Prohibitum . . . . . . . . . . . . . . . . . . . . . . . 5
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3. Infamous Crimes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
4. Crimes Involving Moral Turpitude . . . . . . . . . . . . . . . . . . . . . . . . 5
E. PRINCIPLE OF LEGALITY—VOID-FOR-VAGUENESS DOCTRINE . . . . . . . . . 5
1. Fair Warning . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
2. Arbitrary and Discriminatory Enforcement Must Be Avoided . . . . . . 5
F. CONSTITUTIONAL LIMITATIONS ON CRIME CREATION . . . . . . . . . . . . . . 5
1. No Ex Post Facto Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
2. No Bills of Attainder . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
G. INTERPRETATIONS OF CRIMINAL STATUTES . . . . . . . . . . . . . . . . . . . . . 6
1. Plain Meaning Rule . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
2. Ambiguous Statutes Strictly Construed in Favor of Defendant . . . . . 6
3. Expressio Unius, Exclusio Alterius . . . . . . . . . . . . . . . . . . . . . . . . . 6
4. The Specific Controls the General, the More Recent Controls the
Earlier . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
5. Effect of Repeal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
a. Saving Provision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
H. MERGER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
1. Common Law Rule . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
a. Merger of Misdemeanor into Felony . . . . . . . . . . . . . . . . . . . . 7
b. No Merger Among Offenses of Same Degree . . . . . . . . . . . . . . 7
2. Modern Rule . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
a. “Merger” of Solicitation or Attempt into Completed Crime . . . . . 8
1) “Merger” of More than One Inchoate Crime . . . . . . . . . . . . 8
b. “Merger” of Lesser Included Offenses into Greater Offenses . . . . 8
3. Developing Rules Against Multiple Convictions for Parts of Same
“Transaction” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
a. No Double Jeopardy If Statute Provides Multiple Punishments
for Single Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
II. ESSENTIAL ELEMENTS OF CRIME . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
A. ELEMENTS OF A CRIME . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
B. PHYSICAL ACT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
1. Act Must Be Voluntary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
2. Omission as an “Act” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
a. Legal Duty to Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
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b. Knowledge of Facts Giving Rise to Duty . . . . . . . . . . . . . . . . . 11

c. Reasonably Possible to Perform . . . . . . . . . . . . . . . . . . . . . . 12
3. Possession as an “Act” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
a. State of Mind Requirement . . . . . . . . . . . . . . . . . . . . . . . . . 12
C. MENTAL STATE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
1. Purpose of Mens Rea Requirement . . . . . . . . . . . . . . . . . . . . . . . 12
2. Specific Intent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
a. Significance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
1) Need for Proof . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
2) Applicability of Certain Defenses . . . . . . . . . . . . . . . . . . 13
b. Enumeration of Specific Intent Crimes . . . . . . . . . . . . . . . . . . 13
3. Malice—Common Law Murder and Arson . . . . . . . . . . . . . . . . . . . 13
4. General Intent—Awareness of Factors Constituting Crime . . . . . . . . 14
a. Inference of Intent from Act . . . . . . . . . . . . . . . . . . . . . . . . 14
5. Strict Liability Offenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
a. Identification of Strict Liability Offenses . . . . . . . . . . . . . . . . 14
b. Constitutionality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
6. Model Penal Code Analysis of Fault . . . . . . . . . . . . . . . . . . . . . . . 15
a. Purposely, Knowingly, or Recklessly . . . . . . . . . . . . . . . . . . . . 15
1) Purposely . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
2) Knowingly . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
3) Recklessly . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
b. Negligence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
1) Violation of Statute or Ordinance as Evidence of
Negligence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
c. Analysis of Statutes Using Fault Standards . . . . . . . . . . . . . . . 17
1) State of Mind Applies to All Material Elements of Offense . . 17
2) General State of Mind Requirement—Recklessness . . . . . . . 17
a) Higher Degree of Fault Suffices . . . . . . . . . . . . . . . . . 17
b) Other Levels of Fault Must Be Specified . . . . . . . . . . . 17
7. Vicarious Liability Offenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
a. Limitation on Punishment . . . . . . . . . . . . . . . . . . . . . . . . . . 18
b. Implying Vicarious Liability from Underlying Strict Liability
Offense . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
8. Enterprise Liability—Liability of Corporations and Associations . . . . 18
a. Common Law—No Criminal Liability . . . . . . . . . . . . . . . . . . . . 18
b. Modern Statutes—Vicarious Criminal Liability . . . . . . . . . . . . . 19
1) Act Within Scope of Office . . . . . . . . . . . . . . . . . . . . . . . 19
2) “Superior Agent Rule” . . . . . . . . . . . . . . . . . . . . . . . . . . 19
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c. Model Penal Code . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

d. Individual Liability Independent of Enterprise Liability . . . . . . . 19
9. Transferred Intent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
10. Motive Distinguished . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
D. CONCURRENCE OF MENTAL FAULT WITH PHYSICAL ACT REQUIRED . . . . 20
E. CAUSATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
III. ACCOMPLICE LIABILITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
A. PARTIES TO A CRIME . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
1. Common Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
a. Significance of Common Law Distinctions . . . . . . . . . . . . . . . 21
2. Modern Statutes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
a. Principal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
b. Accomplice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
c. Accessory After the Fact . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
1) Penalty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
B. MENTAL STATE—DUAL INTENT REQUIRED . . . . . . . . . . . . . . . . . . . . . . 22
1. Provision of Material . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
C. SCOPE OF LIABILITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
1. Inability to Be Principal No Bar to Liability as Accomplice . . . . . . . . 23
2. Exclusions from Liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
a. Members of the Protected Class . . . . . . . . . . . . . . . . . . . . . . 23
b. Necessary Parties Not Provided For . . . . . . . . . . . . . . . . . . . . 23
c. Withdrawal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
IV. INCHOATE OFFENSES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
A. IN GENERAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
B. SOLICITATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
1. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
2. Attempt Distinguished . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
3. Defenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
a. Factual Impossibility Is No Defense . . . . . . . . . . . . . . . . . . . . 25
b. Withdrawal or Renunciation Is No Defense . . . . . . . . . . . . . . . 25
c. Exemption from Intended Crime Is a Defense . . . . . . . . . . . . . 25
C. CONSPIRACY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
1. Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
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a. Agreement Requirement . . . . . . . . . . . . . . . . . . . . . . . . . . 26
1) Object of the Agreement . . . . . . . . . . . . . . . . . . . . . . . . 26
2) Multiple Crimes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
3) Number of Conspiracies in Multiple Party Situations . . . . . . 26
a) “Chain” Relationship—One Large Conspiracy . . . . . . . . 27
b) “Hub-and-Spoke” Relationships—Multiple Conspiracies . . 27
4) Requirement of Two or More Parties . . . . . . . . . . . . . . . . 27
a) Modern Trend—“Unilateral” Approach . . . . . . . . . . . . 28
b) Traditional Rule—“Bilateral” Approach . . . . . . . . . . . . 28
(1) Husband and Wife . . . . . . . . . . . . . . . . . . . . . . 28
(2) Corporation and Agent . . . . . . . . . . . . . . . . . . . 28
c) Wharton-Type Problems . . . . . . . . . . . . . . . . . . . . . 28
(1) Wharton Rule . . . . . . . . . . . . . . . . . . . . . . . . . . 28
(2) Agreement with Person in “Protected Class” . . . . . 29
d) Effect of Acquittal of Other Conspirators . . . . . . . . . . 29
b. Mental State—Specific Intent . . . . . . . . . . . . . . . . . . . . . . . . 29
1) Intent to Agree . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
2) Intent to Achieve Objective . . . . . . . . . . . . . . . . . . . . . . 30
3) Intent to Facilitate a Conspiracy . . . . . . . . . . . . . . . . . . . 30
4) “Corrupt Motive” Not Required . . . . . . . . . . . . . . . . . . . . 30
5) Conspiracy to Commit “Strict Liability” Crimes . . . . . . . . . 30
c. Overt Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
1) Attempt Distinguished . . . . . . . . . . . . . . . . . . . . . . . . . 31
2. Termination of Conspiracy . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
a. Acts of Concealment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
b. Government Frustration of Conspiracy’s Objective . . . . . . . . . . 32
3. Liability of One Conspirator for Crimes Committed by Other
Conspirators . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
4. Defenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
a. Factual Impossibility Is No Defense . . . . . . . . . . . . . . . . . . . . 33
b. Withdrawal Is No Defense . . . . . . . . . . . . . . . . . . . . . . . . . . 33
1) Defense to Subsequent Crimes of Co-Conspirators . . . . . . 33
5. No Merger—Conviction for Conspiracy and Substantive Crime . . . . . 33
6. State Codifications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
7. Punishment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
D. ATTEMPT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
1. Intent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
a. Attempt Requires Specific Intent . . . . . . . . . . . . . . . . . . . . . 34
b. Attempt to Commit Crimes Requiring Recklessness or
Negligence Is Logically Impossible . . . . . . . . . . . . . . . . . . . . 34
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c. Attempt to Commit Strict Liability Crimes Requires Intent . . . . . 34

2. Overt Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
a. Traditional Rule—Proximity Test . . . . . . . . . . . . . . . . . . . . . . 34
b. Majority Rule—Model Penal Code Test . . . . . . . . . . . . . . . . . . 35
3. Defenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
a. Impossibility of Success . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
1) Legal Impossibility Is a Defense . . . . . . . . . . . . . . . . . . . 35
a) Effect of Statute or Case Abolishing Impossibility
Defenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
2) Factual Impossibility Is No Defense . . . . . . . . . . . . . . . . . 36
a) Includes Impossibility Due to Attendant
Circumstances . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
3) Distinguishing Between Factual and Legal Impossibility . . . . 37
b. Abandonment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
4. Prosecution for Attempt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
5. Punishment for Attempt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
V. RESPONSIBILITY AND CRIMINAL CAPACITY . . . . . . . . . . . . . . . . . . . . . . . . 37
A. INSANITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
1. Formulations of Insanity Defense . . . . . . . . . . . . . . . . . . . . . . . . 38
a. M’Naghten Rule . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
1) Elements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
2) Application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
a) Defendant with Delusions . . . . . . . . . . . . . . . . . . . . 38
b) Belief that Acts Are Morally Right . . . . . . . . . . . . . . . 38
c) Inability to Control Oneself . . . . . . . . . . . . . . . . . . . 39
3) Evidence Admissible . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
b. Irresistible Impulse Test . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
c. Durham (or New Hampshire) Test . . . . . . . . . . . . . . . . . . . . . 39
d. American Law Institute (“A.L.I.”) or Model Penal Code Test . . . . . 39
2. Exclusion of “Psychopaths” . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
3. Refusal to Participate in Psychiatric Examination . . . . . . . . . . . . . 40
4. Procedural Issues Related to Insanity Defense . . . . . . . . . . . . . . . 40
a. Burdens of Proof . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
1) Presumption of Sanity and Burden of Producing Evidence . . 40
2) Burden of Persuasion . . . . . . . . . . . . . . . . . . . . . . . . . . 40
b. When Defense May Be Raised and Who May Raise It . . . . . . . . . 40
1) Defense May Be Raised After Arraignment . . . . . . . . . . . . 40
2) Neither Prosecutor Nor Judge May Raise Defense for
Competent Defendant . . . . . . . . . . . . . . . . . . . . . . . . . 40
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c. Pretrial Psychiatric Examination . . . . . . . . . . . . . . . . . . . . . . 41

1) Right to Support Services for Defense . . . . . . . . . . . . . . . 41
2) No Privilege Against Self-Incrimination . . . . . . . . . . . . . . 41
5. Post-Acquittal Commitment to Mental Institution . . . . . . . . . . . . . 41
a. Committed Until Cured . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
b. Confinement May Exceed Maximum Period of Incarceration
Carried by Offense . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
6. Mental Condition During Criminal Proceedings . . . . . . . . . . . . . . . 41
a. Incompetency to Stand Trial . . . . . . . . . . . . . . . . . . . . . . . . 41
b. Incompetency at Time of Execution . . . . . . . . . . . . . . . . . . . 42
7. Limits on Testimony Regarding Sanity Issue . . . . . . . . . . . . . . . . . 42
8. Diminished Capacity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
9. Bifurcated Trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
B. INTOXICATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
1. Voluntary Intoxication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
a. Defense to Specific Intent Crimes . . . . . . . . . . . . . . . . . . . . . 43
b. No Defense to Strict Liability Crimes or Crimes Requiring Malice,
Recklessness, or Negligence . . . . . . . . . . . . . . . . . . . . . . . . 43
1) Crimes that Require Recklessness . . . . . . . . . . . . . . . . . . 43
c. Defense to First Degree Murder, But Not Second Degree Murder . . 43
2. Involuntary Intoxication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
3. Relationship to Insanity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
C. INFANCY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
1. Common Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
a. Under Seven—No Criminal Liability . . . . . . . . . . . . . . . . . . . . 44
b. Under Fourteen—Rebuttable Presumption of No Criminal
Liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
c. Over Fourteen—Adult . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
2. Modern Statutes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
a. Some Have Abolished Presumptions . . . . . . . . . . . . . . . . . . . 45
b. Juvenile Delinquency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
VI. PRINCIPLES OF EXCULPATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
A. JUSTIFICATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
1. Self-Defense . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
a. Nondeadly Force . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
b. Deadly Force . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
1) Without Fault . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
viii. CRIMINAL LAW

2) Unlawful Force . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
3) Threat of Imminent Death or Great Bodily Harm . . . . . . . . . 46
4) Retreat . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
c. Right of Aggressor to Use Self-Defense . . . . . . . . . . . . . . . . . 47
1) Withdrawal or Retreat . . . . . . . . . . . . . . . . . . . . . . . . . . 47
2) Sudden Escalation . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
2. Defense of Others . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
a. Relationship with Person Aided . . . . . . . . . . . . . . . . . . . . . . 47
b. Status of Person Aided . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
3. Defense of a Dwelling . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
a. Nondeadly Force . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
b. Deadly Force . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
1) Tumultuous Entry Plus Personal Danger . . . . . . . . . . . . . . 48
2) Felony . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
4. Defense of Other Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
a. Nondeadly Force . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
b. Deadly Force May Not Be Used . . . . . . . . . . . . . . . . . . . . . . . 48
5. Crime Prevention . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
a. Nondeadly Force . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
b. Deadly Force . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
6. Use of Force to Effectuate Arrest . . . . . . . . . . . . . . . . . . . . . . . . 49
a. By Police Officer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
1) By Person Acting At Direction of Police Officer . . . . . . . . . . 49
b. By Private Person . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
7. Resisting Arrest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
a. Right to Resist Person Not Known to Be Police Officer . . . . . . . . 49
b. Right to Resist Known Police Officer . . . . . . . . . . . . . . . . . . . 49
8. Necessity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
9. Public Policy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
10. Domestic Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
B. EXCUSE OF DURESS (ALSO CALLED COMPULSION OR COERCION) . . . . . . 50
1. Necessity Distinguished . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
C. OTHER DEFENSES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
1. Mistake or Ignorance of Fact . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
a. Mistake Must Negate State of Mind . . . . . . . . . . . . . . . . . . . . 51
b. Requirement that Mistake Be Reasonable . . . . . . . . . . . . . . . . 51
1) Malice and General Intent Crimes—Reasonableness
Required . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
 CRIMINAL LAW ix.

2) Specific Intent Crimes—Reasonableness Not Required . . . . 52

c. Strict Liability Crimes—Mistake No Defense . . . . . . . . . . . . . . . 52
2. Mistake or Ignorance of Law . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
a. General Rule—No Defense . . . . . . . . . . . . . . . . . . . . . . . . . . 52
b. Mistake or Ignorance of Law May Negate Intent . . . . . . . . . . . . 52
c. Exceptions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
1) Statute Not Reasonably Available . . . . . . . . . . . . . . . . . . 53
2) Reasonable Reliance on Statute or Judicial Decision . . . . . . 53
3) Reasonable Reliance on Official Interpretation or Advice . . . 53
4) Compare—Reasonable Reliance on Advice of Private
Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
3. Consent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
a. May Negate Element of Offense . . . . . . . . . . . . . . . . . . . . . . 53
b. Requirements of Consent as Defense . . . . . . . . . . . . . . . . . . 54
4. Condonation by Injured Party No Defense . . . . . . . . . . . . . . . . . . 54
5. Criminality of Victim No Defense . . . . . . . . . . . . . . . . . . . . . . . . 54
6. Entrapment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
a. Offering Opportunity to Commit Crime Distinguished . . . . . . . 55
b. Inapplicable to Private Inducements . . . . . . . . . . . . . . . . . . . 55
c. Availability If Offense Denied . . . . . . . . . . . . . . . . . . . . . . . . 55
d. Practical Difficulties of Entrapment . . . . . . . . . . . . . . . . . . . . 55
e. Minority Rule—Objective Test . . . . . . . . . . . . . . . . . . . . . . . . 55
f. Provision of Material for Crime by Government Agent Not
Entrapment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
VII. OFFENSES AGAINST THE PERSON . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
A. ASSAULT AND BATTERY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
1. Battery . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
a. State of Mind—Specific Intent Not Required . . . . . . . . . . . . . . 56
b. Indirect Application of Force Sufficient . . . . . . . . . . . . . . . . . 56
c. Aggravated Battery . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
d. Consent as a Defense . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
2. Assault . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
a. Present Ability to Succeed . . . . . . . . . . . . . . . . . . . . . . . . . . 57
b. Battery Distinguished . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
c. Aggravated Assault . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
d. Terminology . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
B. MAYHEM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
1. Common Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
x. CRIMINAL LAW

2. Modern Statutes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
C. HOMICIDE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
1. Classifications of Homicides . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
2. Common Law Criminal Homicides . . . . . . . . . . . . . . . . . . . . . . . 58
a. Murder . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
1) Malice Aforethought . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
2) Deadly Weapon Rule . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
b. Voluntary Manslaughter . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
1) Elements of Adequate Provocation . . . . . . . . . . . . . . . . . 59
2) When Provocation Is Adequate . . . . . . . . . . . . . . . . . . . . 60
3) Provocation Inadequate as a Matter of Law . . . . . . . . . . . . 60
4) Imperfect Self-Defense . . . . . . . . . . . . . . . . . . . . . . . . 60
c. Involuntary Manslaughter . . . . . . . . . . . . . . . . . . . . . . . . . . 60
1) Criminal Negligence (or Recklessness) . . . . . . . . . . . . . . . 60
a) Distinguished from “Abandoned and Malignant Heart”
Murder . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
2) “Unlawful Act” Manslaughter . . . . . . . . . . . . . . . . . . . . . 60
a) “Misdemeanor-Manslaughter” Rule . . . . . . . . . . . . . . 61
b) Felonies Not Included in Felony Murder . . . . . . . . . . . 61
3. Statutory Modification of Common Law Classification . . . . . . . . . . 61
a. Deliberate and Premeditated Killing . . . . . . . . . . . . . . . . . . . 61
b. First Degree Felony Murder . . . . . . . . . . . . . . . . . . . . . . . . . 61
1) Second Degree Felony Murder . . . . . . . . . . . . . . . . . . . . 61
2) Other State Variations . . . . . . . . . . . . . . . . . . . . . . . . . 61
c. Others . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
4. Felony Murder (and Related Matters) . . . . . . . . . . . . . . . . . . . . . 62
a. What Felonies Are Included? . . . . . . . . . . . . . . . . . . . . . . . . 62
b. Scope of the Doctrine . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
c. Limitations on Liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
1) Commission of Underlying Felony . . . . . . . . . . . . . . . . . . 62
2) Felony Must Be Independent of Killing . . . . . . . . . . . . . . . 62
3) Foreseeability of Death . . . . . . . . . . . . . . . . . . . . . . . . . 62
4) During the Commission of a Felony—Termination of
Felony . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
5) Killing of Co-Felon by Victims of Felonies or Pursuing Police
Officers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
a) Compare—Killing of Innocent Party by Victim or
Police . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
d. Related Limits on Misdemeanor Manslaughter . . . . . . . . . . . . 63
5. Causation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
 CRIMINAL LAW xi.

a. General Requirement—Must Be Cause-in-Fact and Proximate

Cause . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
1) Cause-in-Fact . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
2) Common Law Requirement—“Year and a Day” Rule . . . . . . . 64
3) “Proximate” Causation . . . . . . . . . . . . . . . . . . . . . . . . . 64
a) All “Natural and Probable” Results Are Proximately
Caused . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
b. Rules of Causation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
1) Hastening Inevitable Result . . . . . . . . . . . . . . . . . . . . . . 65
2) Simultaneous Acts . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
3) Preexisting Condition . . . . . . . . . . . . . . . . . . . . . . . . . . 65
c. Intervening Acts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
6. Born Alive Rule . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
7. Summary—Analytical Approach . . . . . . . . . . . . . . . . . . . . . . . . . 66
D. FALSE IMPRISONMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
1. Confinement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
2. “Unlawfulness” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
3. Lack of Consent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
E. KIDNAPPING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
1. General Pattern . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
2. Aggravated Kidnapping . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
a. Kidnapping for Ransom . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
b. Kidnapping for Purpose of Commission of Other Crimes . . . . . . 68
c. Kidnapping for Offensive Purpose . . . . . . . . . . . . . . . . . . . . 68
d. Child Stealing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
3. Required Movement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
4. Secrecy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
5. Consent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
6. Relationship to Other Offenses . . . . . . . . . . . . . . . . . . . . . . . . . 69
VIII. SEX OFFENSES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
A. RAPE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
1. Penetration Sufficient . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
2. Absence of Marital Relationship . . . . . . . . . . . . . . . . . . . . . . . . . 69
3. Lack of Effective Consent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
a. Intercourse Accomplished by Force . . . . . . . . . . . . . . . . . . . . 69
xii. CRIMINAL LAW

b. Intercourse Accomplished by Threats . . . . . . . . . . . . . . . . . . 69

c. Victim Incapable of Consenting . . . . . . . . . . . . . . . . . . . . . . 70
d. Consent Obtained by Fraud . . . . . . . . . . . . . . . . . . . . . . . . . 70
1) Fraud as to Whether Act Constitutes Sexual Intercourse . . . 70
2) Fraud as to Whether Defendant Is Victim’s Husband . . . . . . 70
3) Other Fraud . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
B. STATUTORY RAPE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
1. Victim Below Age of Consent . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
2. Mistake as to Age . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
C. CRIMES AGAINST NATURE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
D. ADULTERY AND FORNICATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
1. Adultery . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
2. Fornication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
E. INCEST . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
1. Degree of Relationship . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
2. Degree of Responsibility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
F. SEDUCTION OR CARNAL KNOWLEDGE . . . . . . . . . . . . . . . . . . . . . . . . 72
G. BIGAMY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
IX. PROPERTY OFFENSES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
A. LARCENY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
1. Property that May Be the Subject of Larceny . . . . . . . . . . . . . . . . 73
a. Realty and Severed Material . . . . . . . . . . . . . . . . . . . . . . . . 73
b. Services . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
c. Intangibles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
d. Documents and Instruments . . . . . . . . . . . . . . . . . . . . . . . . 73
2. Property “Of Another” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
a. Requirement that Taking Be from One with “Possession” . . . . . . 74
1) Custody vs. Possession . . . . . . . . . . . . . . . . . . . . . . . . . 74
2) Employees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
3) Bailee and “Breaking Bulk” . . . . . . . . . . . . . . . . . . . . . . . 75
b. Possession at the Time of the Taking . . . . . . . . . . . . . . . . . . . 75
c. Stolen Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
d. Joint Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
e. Lost, Mislaid, and Abandoned Property . . . . . . . . . . . . . . . . . 75
3. Taking . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
a. Destruction or Movement Is Not Sufficient . . . . . . . . . . . . . . . 75
 CRIMINAL LAW xiii.

b. Sufficient If Caused to Occur by Innocent Agent . . . . . . . . . . . 76

4. Asportation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
5. Taking Must Be “Trespassory” . . . . . . . . . . . . . . . . . . . . . . . . . . 76
a. Taking by Consent Induced by Misrepresentations—“Larceny by
Trick” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
6. State of Mind Required—Intent to Permanently Deprive . . . . . . . . . 76
a. Sufficient Intent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
1) Intent to Create Substantial Risk of Loss . . . . . . . . . . . . . . 77
2) Intent to Pledge Goods or Sell Them to Owner . . . . . . . . . . 77
b. Insufficient Intent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
1) Intent to Borrow . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
2) Intent to Obtain Repayment of Debt . . . . . . . . . . . . . . . . 77
c. Possibly Sufficient . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
1) Intent to Pay for Property . . . . . . . . . . . . . . . . . . . . . . . 77
2) Intent to Claim Reward . . . . . . . . . . . . . . . . . . . . . . . . . 77
7. Specialized Application of Larceny Doctrine . . . . . . . . . . . . . . . . . 78
a. Abandoned or Lost Property . . . . . . . . . . . . . . . . . . . . . . . . 78
b. Misdelivered Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
c. “Container” Situations . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
1) Issue Is Whether Defendant Already Has Possession . . . . . . 78
2) Larceny May Depend on Whether Parties Intended to
Transfer Container . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
d. “Continuing Trespass” Situations . . . . . . . . . . . . . . . . . . . . . 79
B. EMBEZZLEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
1. Distinguished from Larceny . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
a. Manner of Obtaining Property . . . . . . . . . . . . . . . . . . . . . . . 80
b. Manner of Misappropriation . . . . . . . . . . . . . . . . . . . . . . . . 80
2. Conversion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
3. Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
4. Requirement that Property Be that “Of Another” . . . . . . . . . . . . . 81
5. Fraudulent Intent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
a. Intent to Restore . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
b. Claim of Right . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
6. Necessity for Demand for Return . . . . . . . . . . . . . . . . . . . . . . . . 81
7. Limitation to Property Entrusted . . . . . . . . . . . . . . . . . . . . . . . . 81
C. FALSE PRETENSES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
1. “Larceny by Trick” Distinguished . . . . . . . . . . . . . . . . . . . . . . . . 82
xiv. CRIMINAL LAW

2. Misrepresentation Required . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
a. False Representation Concerning Matter of Fact . . . . . . . . . . . 82
b. Misrepresentation of Past or Existing Fact . . . . . . . . . . . . . . . 82
3. Requirement that Representation Be the “Cause” of Obtaining
Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
4. State of Mind Required . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
5. Related Crimes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
a. Bad Check Legislation . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
b. Abuse or Misuse of Credit Card . . . . . . . . . . . . . . . . . . . . . . . 83
D. ROBBERY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
1. Force or Threats Necessary . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
2. Property Must Be Taken from Person or Presence of Victim . . . . . . . 84
3. Force or Threats Must Be Used to Obtain Property or Immediately
Retain It . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
4. Aggravated Robbery . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
E. EXTORTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84
1. Common Law Definition—Collection of Unlawful Fee . . . . . . . . . . . 85
2. Modern Definition—Blackmail . . . . . . . . . . . . . . . . . . . . . . . . . . 85
a. Threats Need Not Involve Immediate or Physical Harm . . . . . . . 85
b. Property Need Not Be in Victim’s Presence . . . . . . . . . . . . . . . 85
F. RECEIPT OF STOLEN PROPERTY . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
1. Possession . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
2. “Stolen” Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
G. STATUTORY CHANGES IN PROPERTY ACQUISITION OFFENSES . . . . . . . . 86
1. Consolidation of Offenses into Theft . . . . . . . . . . . . . . . . . . . . . . 86
2. Expansion of Property Subject to Larceny (and Other Offenses) . . . . 86
3. Rejection of Asportation for Larceny . . . . . . . . . . . . . . . . . . . . . . 86
4. Rejection of Technicalities of Trespass Requirement . . . . . . . . . . . 86
H. FORGERY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
1. Forgery . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
2. Uttering a Forged Instrument . . . . . . . . . . . . . . . . . . . . . . . . . . 86
3. Writings that Are Possible Subjects of Forgery . . . . . . . . . . . . . . . 87
4. Required Falsity—Writing Itself Must “Be a Lie” . . . . . . . . . . . . . . . 87
 CRIMINAL LAW xv.

5. Required “Making” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
a. Entire Instrument or Material Alteration . . . . . . . . . . . . . . . . . 88
b. Fraudulently Obtaining Signature of Another . . . . . . . . . . . . . 88
6. Required Intent—Intent to Defraud . . . . . . . . . . . . . . . . . . . . . . . 88
I. MALICIOUS MISCHIEF . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
1. Damage Required . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
2. State of Mind Required—Malice . . . . . . . . . . . . . . . . . . . . . . . . . 88
X. OFFENSES AGAINST THE HABITATION . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
A. BURGLARY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
1. Breaking Required . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
a. Actual Breaking—Minimal Force Sufficient . . . . . . . . . . . . . . . 89
b. Constructive Breaking . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
c. Requirement of Trespass—Consent to Enter . . . . . . . . . . . . . . 89
d. Requirement that Breaking Be “Of the House” . . . . . . . . . . . . . 90
e. Breaking to Exit Insufficient . . . . . . . . . . . . . . . . . . . . . . . . . 90
2. Entry Required . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90
3. “Dwelling”—Used for Sleeping Purposes . . . . . . . . . . . . . . . . . . . 90
a. Used for Other Purposes—Still a Dwelling . . . . . . . . . . . . . . . . 90
b. Temporary Absence of Inhabitants—Still a Dwelling . . . . . . . . . 90
4. “Of Another”—Occupancy Is Determinative . . . . . . . . . . . . . . . . . 90
5. Requirement of Nighttime . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91
6. Required Intent—Intent to Commit a Felony at Time of Entry . . . . . . 91
7. Modern Statutory Changes . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91
a. Abandonment of Requirement of Breaking . . . . . . . . . . . . . . . 91
b. Remaining in a Structure . . . . . . . . . . . . . . . . . . . . . . . . . . . 91
c. Broadening Structures that Can Be Burglarized . . . . . . . . . . . . 91
d. Elimination of Nighttime Requirement . . . . . . . . . . . . . . . . . . 91
e. Intent to Commit Misdemeanor Theft . . . . . . . . . . . . . . . . . . 91
B. ARSON . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91
1. Requirement of a “Burning” . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
a. Necessity of Fire . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
b. Damage Required—“Scorching” (Insufficient) vs. “Charring”
(Sufficient) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
2. “Dwelling” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
3. “Of Another”—Ownership Immaterial . . . . . . . . . . . . . . . . . . . . . 92
xvi. CRIMINAL LAW

4. State of Mind Required—Malice . . . . . . . . . . . . . . . . . . . . . . . . . 92

5. Related Offenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
a. Houseburning . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 92
b. Arson with Intent to Defraud an Insurer . . . . . . . . . . . . . . . . . 93
6. Modern Statutory Changes . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
XI. OFFENSES INVOLVING JUDICIAL PROCEDURE . . . . . . . . . . . . . . . . . . . . . . 93
A. PERJURY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
1. Materiality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
2. Contradictory Statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
3. Civil Liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
B. SUBORNATION OF PERJURY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
C. BRIBERY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94
1. Mutual Criminal Intent Unnecessary . . . . . . . . . . . . . . . . . . . . . . 94
2. Failure to Report a Bribe . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94
D. COMPOUNDING A CRIME . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94
E. MISPRISION OF A FELONY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94
 CRIMINAL LAW 1.

CRIMINAL LAW
INTRODUCTION: GENERAL APPROACH
The Multistate Examination directs examinees to answer questions according to “the gener-
ally accepted view” unless otherwise noted. In Criminal Law, the examiners may tell you the
law to apply if there is no prevailing view. For example:

(1) The call of a question might tell you that the common law applies or that the state follows
the Model Penal Code (“M.P.C.”) approach; hence, you should be familiar with both the
common law rules and the important M.P.C. distinctions discussed in this outline.

(2) A fact pattern may also include a statute that you are to apply to the facts; the outline
discusses typical statutes on a variety of chapters that may be the subject of examination
questions.

(3) Finally, a question might reference a well-known legal doctrine (e.g., the Wharton rule or
the M’Naghten test); you should review those doctrines in the outline as well.

Note that if the examiners do not tell you whether the common law or a statutory version of
the crime applies, it likely means that specific elements of the crime are not relevant to the
question—for example, the question may concern whether voluntary intoxication is a defense
to a crime, in which case the relevant factor is what type of mental state the crime requires,
not other elements of the crime that may vary from jurisdiction to jurisdiction.

I. JURISDICTION AND GENERAL MATTERS

A. JURISDICTION
As used in this section, jurisdiction means the authority of a sovereign to create substan-
tive criminal law. The authority of a court to enforce criminal laws is also an aspect of
jurisdiction, but is more properly treated as a matter of criminal procedure.

1. Federal Criminal Jurisdiction

The power of the federal government to create crimes falls into the following broad
categories:

a. Power over Federally Owned or Controlled Territory

The federal government has extensive power to enact general criminal codes
governing conduct in the District of Columbia, the territories, and federal
enclaves (e.g., naval yards, federal courthouses, national parks, etc.).

b. Power over Conduct Occurring Within a State

In contrast, federal power to criminalize conduct within a state is limited by the
2. CRIMINAL LAW

requirement that each statute be founded upon an express or implied constitu-

tional grant of authority.

c. Power over United States Nationals Abroad

Federal criminal statutes may, by express provision, reach conduct by citizens
while on foreign soil.

d. Power over Conduct on Ships or Airplanes

Federal “maritime jurisdiction” extends to conduct by all persons aboard
American ships or aircraft when on or over the high seas or even in foreign
waters or ports.

2. State Criminal Jurisdiction

Unlike the federal government, every state has inherent authority by virtue of its
“police power” to regulate its internal affairs for the protection or promotion of the
health, safety, welfare, and morals of its citizens.

a. Situs of the Crime

At common law, and in those states that have not expanded jurisdiction by
statute, only the state in which the situs of the crime is located has jurisdiction
over the crime. “Situs” is generally defined as the place where the proscribed
act (or omission) takes place, if the crime is defined in these terms; or the place
of the harmful result, if the crime includes a result as a material element.

EXAMPLE
A libelous statement may be made a crime where it is published, not where it is
written, because the crime of libel proscribes the act of publication rather than
the act of writing the libelous statement.

b. Modern Bases for Jurisdiction

A person is subject to prosecution in a state for an offense that he commits
within or outside that state, by his own conduct or that of another for which he is
legally accountable, under the following conditions:

1) When the offense is committed wholly or partly within the state

(“partly within the state” includes occurrences within the state of either (1)
conduct that is an element of the offense, or (2) a result constituting such
an element—e.g., in homicide, the “result” is either the physical contact
causing death or the death itself); or

2) When there is conduct outside the state that constitutes an attempt or

conspiracy to commit an offense within the state plus an act inside the
state; or
 CRIMINAL LAW 3.

3) When there is conduct within the state constituting an attempt, solicita-

tion, or conspiracy to commit, in another jurisdiction, an offense under
the laws of both the state and such other jurisdiction; or

4) When an offense based on the omission of performance of a duty

imposed by the law of a state is committed within that state, regardless of
the location of the offender at the time of the omission.

B. SOURCES OF CRIMINAL LAW

1. Common Law Crimes
A common law crime is one created and enforced by the judiciary in the absence of
a statute defining the offense.

a. No Federal Common Law Crimes

Federal criminal law is governed entirely by statute. Although there are no
federal common law crimes, Congress has provided for common law crimes in
the District of Columbia.

b. Traditional Approach—Common Law Crimes Retained

From the colonial period forward, American criminal law included the English
common law of crimes, unless repealed expressly or impliedly by statute.

c. Modern Trend—Common Law Crimes Abolished

In recent years, a great many states have enacted comprehensive criminal
codes and, in doing so, most have abolished common law crimes, either explic-
itly or by implication. However, jurisdictions that have abolished common law
crimes have not necessarily abolished common law defenses to crime, such as
insanity and necessity, where their statutes do not expressly provide for these
defenses.

2. Constitutional Crimes
The Constitution defines treason as levying war against the United States, adhering
to enemies of the United States, or giving them aid and comfort. No person can be
convicted of treason unless two witnesses testify to the same overt act, or unless
the defendant confesses.

3. Administrative Crimes
A legislature may delegate to an administrative agency the power to prescribe rules,
the violation of which may be punishable as a crime. Note, however, that the legisla-
ture may not delegate the power to determine which regulations shall carry criminal
penalties; nor may it delegate the power of adjudication (i.e., the determination of
guilt or innocence). With the proliferation of administrative agencies, this source of
criminal law is becoming increasingly important.
4. CRIMINAL LAW

EXAMPLE
Violation of the antifraud rules adopted by the Securities and Exchange Commission
may result in severe criminal liability.

4. The Model Penal Code

Although not a source of law, the Model Penal Code (“M.P.C.”) was a scholarly
endeavor to compile a comprehensive and coherent body of criminal law. Since its
publication in 1962, the M.P.C. has greatly influenced the drafting of state criminal
statutes. Due to its enlightened position on many different issues, the M.P.C. may be
the single most important source of general criminal law.

C. THEORIES OF PUNISHMENT
Historically, several theories have been advanced to justify criminal punishment.

1. Incapacitation (Restraint)
While imprisoned, a criminal has fewer opportunities to commit acts causing harm to
society.

2. Special Deterrence
Punishment may deter the criminal from committing future crimes.

3. General Deterrence
Punishment may deter persons other than the criminal from committing similar
crimes for fear of incurring the same punishment.

4. Retribution
Punishment is imposed to vent society’s sense of outrage and need for revenge.

5. Rehabilitation
Imprisonment provides the opportunity to mold or reform the criminal into a person
who, upon return to society, will conform her behavior to societal norms.

6. Education
The publicity attending the trial, conviction, and punishment of some criminals
serves to educate the public to distinguish between good and bad conduct and to
develop respect for the law.

D. CLASSIFICATION OF CRIMES
At common law, all crimes were divided into three classes: treason, felonies, and misde-
meanors. Several additional means of classifying crimes are now frequently employed
either by the courts or by state statutory schemes.

1. Felonies and Misdemeanors

Most states now classify as felonies all crimes punishable by death or imprisonment
 CRIMINAL LAW 5.

exceeding one year. Under such modern schemes, misdemeanors are crimes
punishable by imprisonment for less than one year or by a fine only. At common
law, the only felonies were murder, manslaughter, rape, sodomy, mayhem, robbery,
larceny, arson, and burglary; all other crimes were considered misdemeanors.

2. Malum In Se and Malum Prohibitum

A crime malum in se (wrong in itself) is one that is inherently evil, either because
criminal intent is an element of the offense, or because the crime involves “moral
turpitude.” By contrast, a crime malum prohibitum is one that is wrong only because
it is prohibited by legislation.

EXAMPLE
Battery, larceny, and drunken driving are mala in se, whereas hunting without a li-
cense, failure to comply with the Federal Drug Labeling Act, and driving in excess of
the speed limit are mala prohibita.

3. Infamous Crimes
At common law, infamous crimes are all crimes involving fraud, dishonesty, or the
obstruction of justice. Under modern law, this concept has been expanded to include
most felonies.

4. Crimes Involving Moral Turpitude

The concept of moral turpitude—committing a base or vile act—is often equated
with the concept of malum in se. Conviction of a crime involving moral turpitude may
result in the deportation of an alien, the disbarment of an attorney, or the impeach-
ment of a trial witness.

E. PRINCIPLE OF LEGALITY—VOID-FOR-VAGUENESS DOCTRINE

The Due Process Clause of the federal Constitution, found in the Fifth and Fourteenth
Amendments, has been interpreted by the Supreme Court to require that no criminal penalty
be imposed without fair notice that the conduct is forbidden. The “void-for-vagueness”
doctrine, which has been held to require particular scrutiny of criminal statutes capable of
reaching speech protected by the First Amendment, incorporates two considerations:

1. Fair Warning
A statute must give a person of ordinary intelligence fair notice that his contemplated
conduct is forbidden by the statute.

2. Arbitrary and Discriminatory Enforcement Must Be Avoided

A statute must not encourage arbitrary and erratic arrests and convictions.

F. CONSTITUTIONAL LIMITATIONS ON CRIME CREATION

In addition to the constitutional requirement that a criminal statute be sufficiently
6. CRIMINAL LAW

specific to provide fair warning and prevent arbitrary enforcement, Article I of the
federal Constitution places two substantive limitations on both federal and state legis-
latures.

1. No Ex Post Facto Laws

The Constitution expressly prohibits ex post facto laws. The Supreme Court has
defined an ex post facto law as one that operates retroactively to:

a. Make criminal an act that when done was not criminal;

b. Aggravate a crime or increase the punishment therefor;

c. Change the rules of evidence to the detriment of criminal defendants as a

class; or

d. Alter the law of criminal procedure to deprive criminal defendants of a

substantive right.

[Calder v. Bull, 3 U.S. (3 Dall.) 386 (1798)]

2. No Bills of Attainder
Bills of attainder are also constitutionally prohibited. A bill of attainder is a legislative
act that inflicts punishment or denies a privilege without a judicial trial. Although a
bill of attainder may also be an ex post facto law, a distinction can be drawn in that
an ex post facto law does not deprive the offender of a judicial trial.

G. INTERPRETATIONS OF CRIMINAL STATUTES

1. Plain Meaning Rule
When the statutory language is plain and its meaning clear, the court must give
effect to it even if the court feels that the law is unwise or undesirable. An exception
to this rule exists if the court believes that applying the plain meaning of a statute
will lead to injustice, oppression, or an absurd consequence.

2. Ambiguous Statutes Strictly Construed in Favor of Defendant

The rule of lenity requires that an ambiguous criminal statute must be strictly
construed in favor of the defendant. Ambiguity should be distinguished from vague-
ness. An ambiguous statute is one susceptible to two or more equally reasonable
interpretations. A vague statute is one that is so unclear as to be susceptible to no
reasonable interpretation.

3. Expressio Unius, Exclusio Alterius

According to this maxim, the expression of one thing impliedly indicates an intention
to exclude another.
 CRIMINAL LAW 7.

EXAMPLE
A criminal statute defines bigamy as the act of remarriage by one who has a living
spouse. The statute expressly provides an exception for one whose spouse disap-
peared more than seven years before. Can a person remarry if the spouse has been
gone for less than seven years provided he or she believes in good faith that the
spouse is dead? Most jurisdictions answer no. The fact that the statute provides one
exception impliedly excludes all others.

4. The Specific Controls the General, the More Recent Controls the Earlier
If two statutes address the same subject matter but dictate different conclusions, the
more specific statute will be applied rather than the more general. The more recently
enacted statute will control an older statute.

EXAMPLES
1) If one statute prohibits all forms of gambling and another permits charity-spon-
sored raffles, the latter will control a church raffle.
2) A 1980 statute banning advertising of cigarettes will govern a 1975 statute provid-
ing a limit on advertising expenditure by cigarette manufacturers.

5. Effect of Repeal
At common law, in the absence of a saving provision, the repeal or invalidation of
a statute operates to bar prosecutions for earlier violations, provided the prosecu-
tion is pending or not yet under way at the time of the repeal. However, a repeal will
not operate to set free a person who has been prosecuted and convicted and as to
whom the judgment has become final.

a. Saving Provision
Many of the new comprehensive codes include a provision to the effect that
crimes committed prior to the effective date of the new code are subject to
prosecution and punishment under the law as it existed at the time the offense
was committed.

H. MERGER
1. Common Law Rule

a. Merger of Misdemeanor into Felony

At common law, if a person engaged in conduct constituting both a felony and a
misdemeanor, she could be convicted only of the felony. The misdemeanor was
regarded as merged into the felony.

b. No Merger Among Offenses of Same Degree

If the same act or a series of acts that were all part of the same transaction
8. CRIMINAL LAW

constituted several felonies (or several misdemeanors), there was no merger of

any of the offenses into any of the others.

2. Modern Rule
There is generally no merger in American law, with the following limited exceptions:

a. “Merger” of Solicitation or Attempt into Completed Crime

One who solicits another to commit a crime (where solicitation itself is a crime)
cannot be convicted of both the solicitation and the completed crime (if the
person solicited does complete it). Similarly, a person who completes a crime
after attempting it may not be convicted of both the attempt and the completed
crime. Conspiracy, however, does not merge with the completed offense (e.g.,
one can be convicted of robbery and conspiracy to commit robbery).

1) “Merger” of More than One Inchoate Crime

Under the M.P.C., a defendant may not be convicted of more than one
inchoate crime when her conduct was designed to culminate in the
commission of the same crime. For example, if a defendant conspired to
commit burglary and then actually attempted to commit burglary, she could
not be convicted of both conspiracy and attempt because her conduct was
designed to culminate in a single crime—burglary.

b. “Merger” of Lesser Included Offenses into Greater Offenses

Lesser included offenses “merge” into greater offenses, in the sense that one
placed in jeopardy for either offense may not later be retried for the other. Nor
may one be convicted of both the greater offense and a lesser included offense.
A lesser included offense is one that consists entirely of some, but not all,
elements of the greater crime. This rule is sometimes labeled a rule of merger,
but it is also clearly required by the constitutional prohibition against double
jeopardy.

EXAMPLES
1) D allegedly possessed certain narcotics. On the basis of this, she is charged
with (1) illegal possession of narcotics, (2) illegal possession of narcotics for sale,
and (3) possession of a drug not in a properly stamped container. May she be
convicted of all three offenses? Held: No. She may not be convicted of simple
possession and possession for sale. She may be convicted of possession for
sale and possession in an improper container, because neither is a lesser in-
cluded offense of the other. Each requires proof of something the other does
not, i.e., intent to sell and use of an improper container.
2) D is convicted of operating a motor vehicle without the owner’s consent. She
is then charged with stealing the vehicle based upon the same incident. Operat-
ing the vehicle without the owner’s consent is a lesser included offense of theft,
 CRIMINAL LAW 9.

because theft requires proof of everything necessary to prove operation of a

vehicle without consent of the owner plus the intent to steal. May D be prose-
cuted for theft? Held: No. Conviction for a lesser included offense bars prosecu-
tion for the greater offense. [Brown v. Ohio, 432 U.S. 161 (1977)]
3) D is convicted of felony murder based on proof that his accomplice shot
and killed a store clerk during an armed robbery. He is then charged with and
convicted of armed robbery based on the same incident. Held: Because the
armed robbery was the underlying felony for the felony murder conviction, it is a
lesser included offense of the felony murder and the subsequent prosecution is
barred. [Harris v. Oklahoma, 433 U.S. 682 (1977)]

3. Developing Rules Against Multiple Convictions for Parts of Same “Transaction”

Many jurisdictions are developing prohibitions against convicting a defendant
for more than one offense where the multiple offenses were all part of the same
“criminal transaction.” In some states, this is prohibited by statute. In others, courts
adopt a rule of merger or of double jeopardy to prohibit it.

a. No Double Jeopardy If Statute Provides Multiple Punishments for Single

Act
Imposition of cumulative punishments for two or more statutorily defined
offenses, specifically intended by the legislature to carry separate punish-
ments, arising from the same transaction, and constituting the same crime, does
not violate the Double Jeopardy Clause prohibition against multiple punish-
ments for the same offense when the punishments are imposed at a single trial.
[Missouri v. Hunter, 459 U.S. 359 (1983)]

EXAMPLE
D robs a store at gunpoint. D can be sentenced to cumulative punishments for
armed robbery and “armed criminal action” under a “use a gun, go to jail” statute.

II. ESSENTIAL ELEMENTS OF CRIME

A. ELEMENTS OF A CRIME
Culpability under Anglo-American criminal law is founded upon certain basic premises
that are more or less strictly observed by legislatures and courts when formulating the
substantive law of crimes. Consequently, the prosecution is generally required to prove
the following elements of a criminal offense:

1. Actus Reus (guilty act): A physical act (or unlawful omission) by the defendant;

2. Mens Rea (guilty mind): The state of mind or intent of the defendant at the time of
his act;
10. CRIMINAL LAW

3. Concurrence: The physical act and the mental state existed at the same time; and

4. Harmful Result and Causation: A harmful result caused (both factually and proxi-
mately) by the defendant’s act.

Virtually all crimes require a physical act and may require some sort of intent. Many
crimes also require proof of certain attendant circumstances without which the same
act and intent would not be criminal. For example, the crime of receipt of stolen property
requires that the property received has in fact been stolen. If the defendant receives
property (the act) that he believes to have been stolen (the mental element), when in fact
the property has not been stolen, the absence of this required circumstance renders the
defendant not liable for receipt of stolen property. Other crimes require result and causa-
tion. Homicide, for example, requires that the victim die and that the defendant’s act be
the cause of death.

B. PHYSICAL ACT
For there to be criminal liability, the defendant must have either performed a voluntary
physical act or failed to act under circumstances imposing a legal duty to act. For this
purpose, an act is defined as a bodily movement. A thought is not an act. Therefore, bad
thoughts alone cannot constitute a crime. Note, however, that speech, unlike thought, is
an act that can cause liability (e.g., perjury, solicitation).

1. Act Must Be Voluntary

The defendant’s act must be voluntary in the sense that it must be a conscious
exercise of the will. Rationale: An involuntary act will not be deterred by punish-
ment. The following acts are not considered “voluntary” and therefore cannot be the
basis for criminal liability:

a. Conduct that is not the product of the actor’s determination.

EXAMPLE
A shoves B into C, with the result that C falls to his death. Can B be held crimi-
nally liable for C’s death? No.

b. Reflexive or convulsive acts.

c. Acts performed while the defendant was either unconscious or asleep unless
the defendant knew that she might fall asleep or become unconscious and
engaged in dangerous behavior.

2. Omission as an “Act”
Although most crimes are committed by affirmative action rather than by nonaction,
a defendant’s failure to act will result in criminal liability provided three require-
ments are satisfied.
 CRIMINAL LAW 11.

a. Legal Duty to Act

The defendant must have a legal duty to act under the circumstances. A legal
duty to act can arise from the following sources:

1) A statute (e.g., filing an income tax return or reporting an accident).

2) A contract obligating the defendant to act, such as one entered into by a

lifeguard or a nurse.

3) The relationship between the defendant and the victim, which may be
sufficiently close to create a duty.

EXAMPLES
1) A parent has the duty to prevent physical harm to his or her children.
2) A spouse has the duty to prevent harm to his or her spouse.

4) The voluntary assumption of care by the defendant of the victim. Although

in general there is no common law duty to help someone in distress, once
aid is rendered, the Good Samaritan may be held criminally liable for not
satisfying a reasonable standard of care.

EXAMPLES
1) A, while hiking, sees B drowning in a river. Although A is a good swimmer,
he takes no steps to save B, who drowns. Was A’s failure to act an “act”
upon which liability could be based? No, because A had no duty to act.
Note that the answer would be the same even if A recognized B as a per-
son whom he disliked and took great pleasure in watching B drown.
2) If A began to swim out toward B and only after reaching B decided that
B was someone not worth saving, A would have violated his duty to act by
unreasonably abandoning a rescue effort that was voluntarily undertaken.

5) The creation of peril by the defendant.

EXAMPLE
Believing that B can swim, A pushes B into a pool. It becomes apparent that
B cannot swim, but A takes no steps to help B. B drowns. Was A’s failure to
attempt a rescue an “act” on which liability can be based? Yes.

b. Knowledge of Facts Giving Rise to Duty

As a general rule, the duty to act arises when the defendant is aware of the
facts creating the duty to act (e.g., the parent must know that his child is
12. CRIMINAL LAW

drowning before his failure to rescue the child will make him liable). However,
in some situations the law will impose a duty to learn the facts (e.g., a lifeguard
asleep at his post would still have a legal duty to aid a drowning swimmer).

c. Reasonably Possible to Perform

It must be reasonably possible for the defendant to perform the duty or to
obtain the help of others in performing it.

EXAMPLE
A parent who is unable to swim is under no duty to jump in the water to attempt
to save his drowning child.

3. Possession as an “Act”
Criminal statutes that penalize the possession of contraband generally require only
that the defendant have control of the item for a long enough period to have an
opportunity to terminate the possession. Possession need not be exclusive to one
person, and possession also may be “constructive,” meaning that actual physical
control need not be proved when the contraband is located in an area within the
defendant’s “dominion and control.”

a. State of Mind Requirement

Absent a state of mind requirement in the statute, the defendant must be aware
of his possession of the contraband, but he need not be aware of its illegality
or true nature. However, many statutes and the M.P.C. add a “knowingly” state
of mind element to possession crimes (see C.6., infra). Under such statutes, the
defendant ordinarily must know the identity or nature of the item possessed. On
the other hand, a defendant may not consciously avoid learning the true nature
of the item possessed; knowledge may be inferred from a combination of suspi-
cion and indifference to the truth.

C. MENTAL STATE
1. Purpose of Mens Rea Requirement
The reason that mens rea is normally required is to distinguish between inadvertent
or accidental acts and acts performed by one with a “guilty mind.” The latter type of
act is more blameworthy and, arguably, can be deterred. However, in some cases
(strict liability crimes), mens rea is not required.

2. Specific Intent
If the definition of a crime requires not only the doing of an act, but the doing of it
with a specific intent or objective, the crime is a “specific intent” crime.

a. Significance
It is necessary to identify specific intent for two reasons:
 CRIMINAL LAW 13.

1) Need for Proof

The existence of a specific intent cannot be conclusively imputed from the
mere doing of the act, and the prosecution must produce evidence tending
to prove the existence of the specific intent. That said, the manner in which
an act was done may provide circumstantial evidence of intent.

EXAMPLE
A shoots B. The fact that A shot B does not show that A had the intent to
shoot and kill B. However, if A bought a revolver and ammunition shortly be-
fore shooting B, carefully loaded the revolver, took careful aim at B, and fired
several times, that evidence may circumstantially prove A’s intent to kill B.

2) Applicability of Certain Defenses

Some defenses, such as voluntary intoxication and unreasonable mistake
of fact, apply only to specific intent crimes.

b. Enumeration of Specific Intent Crimes

The major specific intent crimes and the intent they require are as follows:

1) Solicitation: Intent to have the person solicited commit the crime;

2) Attempt: Intent to complete the crime;

3) Conspiracy: Intent to have the crime completed;

4) First degree premeditated murder (where so defined by statute):

Premeditated intent to kill;

5) Assault: Intent to commit a battery;

6) Larceny and robbery: Intent to permanently deprive another of his interest

in the property taken;

7) Burglary: Intent at the time of entry to commit a felony in the dwelling of

another;

8) Forgery: Intent to defraud;

9) False pretenses: Intent to defraud; and

10) Embezzlement: Intent to defraud.

3. Malice—Common Law Murder and Arson

Although the intents required for the “malice” crimes—common law murder and
14. CRIMINAL LAW

arson—sound similar to specific intent (e.g., the “intent to kill” for murder), these
crimes are not open to the specific intent defenses. The common law created this
special mental state category especially to deny to murder and arson the specific
intent defenses. To establish malice in these cases, the prosecution need only show
that the defendant recklessly disregarded an obvious or high risk that the particular
harmful result would occur.

4. General Intent—Awareness of Factors Constituting Crime

Generally, all crimes require “general intent,” which is an awareness of all factors
constituting the crime; i.e., the defendant must be aware that she is acting in the
proscribed way and that any attendant circumstances required by the crime are
present. (Note that the defendant need not be certain that these attendant circum-
stances exist; it is sufficient that she is aware of a high likelihood that they exist.)

EXAMPLE
To commit the crime of false imprisonment (see VII.D., infra), the defendant must be
aware that she is confining a person, and that the confinement has not been specifi-
cally authorized by law or validly consented to by the person confined.

a. Inference of Intent from Act

A jury can infer the required general intent merely from the doing of the act. It
is not necessary that evidence specifically proving the general intent be offered
by the prosecution.

5. Strict Liability Offenses

A strict liability offense is one that does not require awareness of all of the
factors constituting the crime. Generally, the requirement of a state of mind is not
abandoned with respect to all elements of the offense, but only with regard to one
or some of the elements. The major significance of a strict liability offense is that
defenses that would negate state of mind, such as mistake of fact, are not avail-
able.

a. Identification of Strict Liability Offenses

Strict liability offenses, also known as public welfare offenses, are generally
“regulatory” offenses (i.e., offenses that are part of a regulatory scheme) that
implicate public health or safety. They generally involve a relatively low penalty
and are not regarded by the community as involving significant moral impro-
priety. Note that the mere fact that a statute is silent on the question of mental
state does not necessarily mean that the offense is a strict liability offense. If no
mental state is expressly required by the statute, the courts may still interpret
the statute as requiring some mens rea, especially if the statute appears to be
a codification of a traditional common law offense or if the statute imposes a
severe penalty.
 CRIMINAL LAW 15.

EXAMPLE
Federal legislation prohibits the transfer of firearms not registered under federal
law. Is it a defense that the defendant was ignorant of the fact that a firearm was
not registered? Held: No, because this is a strict liability offense. Awareness
of the fact of nonregistration is not necessary, although it is necessary that the
defendant have been aware of the fact that she was possessing a firearm.
COMPARE
Federal legislation requires registration of any fully automatic machinegun. The
statute is silent on the question of mental state and provides a penalty of up to
10 years’ imprisonment. Held: Defendant may assert as a defense that he was
not aware that the weapon in his possession was automatic. The type of statute
and the harsh penalty indicate that Congress did not intend to dispense with
the mens rea requirement. [Staples v. United States, 511 U.S. 600 (1994)]

b. Constitutionality
The majority view is that strict liability offenses are constitutional. Exception: The
Supreme Court struck down as a violation of due process a Los Angeles munic-
ipal ordinance imposing strict liability for failure to register as a felon. The key
factor in the court’s decision was the absence of “circumstances which might
move one to inquire as to the necessity of registration.” Note: The scope of this
holding is limited to statutes making criminal the failure to register.

6. Model Penal Code Analysis of Fault

The M.P.C. advocates the elimination of the ambiguous common law distinction
between general and specific intent. Instead, the M.P.C. proposes four categories into
which the mental component of a criminal offense (i.e., the element of fault) can be
characterized. Because consistent use of these categories leads to analytical clarity,
they have been incorporated into several state criminal codes. They likewise provide
a convenient way of analyzing problems on the exam that incorporate statutes.

a. Purposely, Knowingly, or Recklessly

When a statute requires that the defendant act purposely (“intentionally”),
knowingly, or recklessly, a subjective standard is being used; i.e., the question is
what was actually going on in the defendant’s mind.

1) Purposely
A person acts purposely with respect to his conduct when it is his
conscious object to engage in certain conduct or cause a certain result,
e.g., burglary.

2) Knowingly
A person acts knowingly with respect to the nature of his conduct when
he is aware that his conduct is of that nature or that certain circumstances
16. CRIMINAL LAW

exist. He is deemed to be aware of these circumstances when he is aware

of a high probability that they exist and deliberately avoids learning the
truth. He acts knowingly with respect to the result of his conduct when
he knows that his conduct will necessarily or very likely cause such a
result. Conduct performed knowingly frequently satisfies the mental state
of a statute that requires willful conduct (but note: some criminal statutes
define willfulness as requiring that a defendant act knowingly and inten-
tionally).

3) Recklessly
A person acts recklessly when he consciously disregards a substantial
and unjustifiable risk that circumstances exist or that a prohibited result
will follow, and this disregard constitutes a gross deviation from the
standard of care that a reasonable person would exercise in the situation.
An act performed recklessly is also performed wantonly. Recklessness
requires that the actor take an unjustifiable risk and that he know of and
consciously disregard the risk. Mere realization of the risk is not enough. He
must know that injury might result (if he knows that it is certain to result, he
acts knowingly). Thus, recklessness involves both objective (“unjustifiable
risk”) and subjective (“awareness”) elements.

b. Negligence
A person acts negligently when he fails to be aware of a substantial and
unjustifiable risk that circumstances exist or a result will follow, and such failure
constitutes a substantial deviation from the standard of care that a reason-
able person would exercise under the circumstances. To determine whether
a person acted negligently, an objective standard is used. However, it is not
merely the reasonable person standard that is used in torts; the defendant must
have taken a very unreasonable risk in light of the usefulness of his conduct,
his knowledge of the facts, and the nature and extent of the harm that may be
caused.

EXAMPLE
D held himself out to the public as a doctor even though he was not a licensed
physician. He treated a sick woman by wrapping her in kerosene-soaked flan-
nels for three days. The woman died. Held: D is guilty of manslaughter. His
good intentions were irrelevant. By objective standards, he took an unjustifi-
able risk.

1) Violation of Statute or Ordinance as Evidence of Negligence

Violation of a state statute, municipal ordinance, or administrative regula-
tion may—as in tort law—be evidence of liability.
 CRIMINAL LAW 17.

EXAMPLE
A, driving in excess of the speed limit, hits and kills B, a pedestrian. A’s
speeding violation may be admissible as evidence of his negligence in a
prosecution for manslaughter.

c. Analysis of Statutes Using Fault Standards

1) State of Mind Applies to All Material Elements of Offense

Often a statute will establish a culpable state of mind without indicating
whether it is required for all the material elements of the offense. In that
case, the specified state of mind applies to all material elements of the
offense unless a contrary purpose appears in the statute.

EXAMPLE
Under a statute imposing criminal liability on anyone who “knowingly
makes a sale of an intoxicating beverage to a minor,” the M.P.C. would
require knowledge for each material element of the offense. Thus, if the
defendant can show that she did not know that a sale took place, that the
beverage was intoxicating, or that the purchaser was a minor, she will be
able to avoid liability.

2) General State of Mind Requirement—Recklessness

If the statute defining the offense (other than a strict liability offense) does
not include a state of mind requirement, the defendant must have acted with
at least recklessness with regard to each material element of the offense.

a) Higher Degree of Fault Suffices

Under the M.P.C.’s hierarchy of fault levels, a showing of a higher
state of mind automatically satisfies a lower mental state requirement
of a statute. Thus, a showing that the defendant acted purposely or
knowingly will satisfy the general requirement of recklessness.

b) Other Levels of Fault Must Be Specified

Because a standard of recklessness is assumed where the state of
mind is not specified, if a lower standard of negligence will satisfy
liability, or if a higher standard of knowledge or purpose is required,
those standards must be indicated in the language of the statute.

EXAMPLE
Under a statute creating criminal liability for anyone who “sells
intoxicating beverages to one whom he should know to be a minor,”
the material elements include the act of selling and the attendant
18. CRIMINAL LAW

circumstances that the beverage be intoxicating and that the

purchaser be a minor. Under the M.P.C. formula, a minimum standard
for recklessness is required as the state of mind for the first two
elements, while the third element of the statute specifies that only a
negligence level of fault is required.

7. Vicarious Liability Offenses

A vicarious liability offense is one in which a person without personal fault may
nevertheless be held vicariously liable for the criminal conduct of another (usually
an employee). The criminal law doctrine of vicarious liability is analogous to the tort
doctrine of respondeat superior. Note: Unlike strict liability, which dispenses with the
mens rea requirement but retains the requirement that the defendant have person-
ally engaged in the necessary acts or omissions, vicarious liability dispenses with
the personal actus reus requirement but retains the need for mental fault on the
part of the employee.

a. Limitation on Punishment
Because the imposition of criminal liability for faultless conduct is contrary to
the basic premise of criminal justice that crime requires fault on the part of the
accused, at least one state court has held that imprisonment in such cases
violates the due process guarantees of the state constitution. The current trend
in the legislatures is to limit vicarious liability to regulatory crimes and to limit
punishment to fines.

b. Implying Vicarious Liability from Underlying Strict Liability Offense

Despite some decisions to the contrary, the mere fact that the underlying
offense is clearly a strict liability offense should not imply a legislative intent to
impose vicarious liability.

EXAMPLE
A statute makes it a crime “for anyone to serve an alcoholic beverage to a
minor.” Although a bartender may be strictly liable under this statute regardless
of her belief that the customer was legally old enough to drink, this statute
should not be construed to impose liability on the tavern owner who neither
was present at the time the minor was served nor authorized the actions of the
bartender.

8. Enterprise Liability—Liability of Corporations and Associations

a. Common Law—No Criminal Liability

At common law, a corporation could not commit a crime because it was unable
to form the necessary criminal intent.
 CRIMINAL LAW 19.

b. Modern Statutes—Vicarious Criminal Liability

Modern statutes often provide for the liability of corporations and sometimes
even unincorporated associations (e.g., partnerships). This liability is, by neces-
sity, vicarious. Under such provisions, corporations may be held liable under the
following conditions:

1) Act Within Scope of Office

Except where the law specifically provides otherwise, the conduct giving
rise to corporate liability must be performed by an agent of the corpora-
tion acting on behalf of the corporation and within the scope of his office or
employment.

2) “Superior Agent Rule”

Some jurisdictions limit corporate criminal liability to situations in which the
conduct is performed or participated in by agents sufficiently high in the
corporate hierarchy to presume that their acts reflect corporate policy.

c. Model Penal Code

Under the M.P.C., a corporation may be guilty of a criminal offense provided the
offense:

1) Consists of the failure to discharge a specific duty imposed by law on the

corporation;

2) Is defined by a statute in which a legislative purpose to impose liability on

corporations plainly appears; or

3) Was “authorized, requested, commanded, performed, or recklessly toler-

ated by the board of directors or by a high managerial agent acting on
behalf of the corporation within the scope of his office or employment.”

d. Individual Liability Independent of Enterprise Liability

The person who, in the name of the corporation, performs (or causes to be
performed) the conduct that is an element of the offense is legally accountable
and subject to punishment to the same extent as if the conduct were performed
in his name or on his own behalf. Similarly, the fact that the corporation is liable
does not prevent the conviction of the individual who committed the offense.

9. Transferred Intent
If a defendant intended a harmful result to a particular person or object and, in trying
to carry out that intent, caused a similar harmful result to another person or object,
her intent will be transferred from the intended person or object to the one actually
harmed. Any defenses or mitigating circumstances that the defendant could have
asserted against the intended victim (e.g., self-defense, provocation) will also be
20. CRIMINAL LAW

transferred in most cases. The doctrine of transferred intent most commonly applies
to homicide, battery, and arson. It does not apply to attempt.

EXAMPLE
A shoots at B, intending to kill him. Because of bad aim, she hits C, killing him. Is A
guilty of C’s murder? Held: Yes. Her intent to kill B will be transferred to C. Note that
A may also be guilty of the attempted murder of B.
COMPARE
A shoots twice at B, thinking that B was C, whom she had wanted to kill. She wounds
not only B, but also D, a bystander. Is A guilty of the attempted murder of B and D?
Held: A is guilty of the attempted murder of B, because her mistake as to B’s identity
is a mistake of fact that does not negate her intent to kill the person in front of her
(B). There is no transferred intent issue in that scenario. However, most courts would
hold that she is not guilty of the attempted murder of D.

10. Motive Distinguished

The motive for a crime is distinct from the intent to commit it. A motive is the reason
or explanation underlying the offense. It is generally held that motive is immate-
rial to substantive criminal law. A good motive will not excuse a criminal act. On the
other hand, a lawful act done with bad motive will not be punished.

EXAMPLE
An impoverished woman steals so that her hungry children may eat. Despite her
noble motive—feeding her children—the woman could be held criminally liable for
her acts because her intent was to steal.

D. CONCURRENCE OF MENTAL FAULT WITH PHYSICAL ACT REQUIRED

The defendant must have had the intent necessary for the crime at the time he committed
the act constituting the crime. In addition, the intent must have prompted the act.

EXAMPLE
A decides to kill B. While driving to the store to purchase a gun for this purpose, A negli-
gently runs over B and kills him. Is A guilty of murder? No, because although at the time
A caused B’s death he had the intent to do so, this intent did not prompt the act resulting
in B’s death (i.e., A’s poor driving).
COMPARE
With the intent to kill B, A strangles B to the point of unconsciousness, but does not
actually kill B. Thinking B is dead, A buries B, and B dies as a result. Is A guilty of murder,
even though the death-causing act of burying B was done without the intent to murder?
Yes, in a majority of jurisdictions. Most courts would find that the two acts were part of a
single transaction with a common intent.
 CRIMINAL LAW 21.

E. CAUSATION
Some crimes (e.g., homicide) require a harmful result and causation. For a full discussion
of causation, see VII.C.5., infra.

III. ACCOMPLICE LIABILITY

A. PARTIES TO A CRIME
1. Common Law
The common law distinguished four types of parties to a felony: principals in the
first degree (persons who actually engage in the act or omission that constitutes the
criminal offense); principals in the second degree (persons who aid, command, or
encourage the principal and are present at the crime); accessories before the fact
(persons who aid, abet, or encourage the principal but are not present at the crime);
and accessories after the fact (persons who assist the principal after the crime).

a. Significance of Common Law Distinctions

At common law, the distinctions between the parties had a great deal of proce-
dural significance. For example, an accessory could not be convicted unless
the principal had already been convicted, although both could be convicted in
a joint trial if the jury determined the principal’s guilt first. Most modern jurisdic-
tions have abandoned this requirement, and an accessory can be convicted
even if the principal has evaded apprehension or has been tried and acquitted.

2. Modern Statutes
Most jurisdictions have abolished the distinctions between principals in the first
degree, principals in the second degree, and accessories before the fact (acces-
sories after the fact are still treated separately). Under the modern approach, all
“parties to the crime” can be found guilty of the criminal offense. For convenience,
this section will designate the actual perpetrator of the criminal act as the principal
and the other parties to the crime as accomplices.

a. Principal
A principal is one who, with the requisite mental state, actually engages in the
act or omission that causes the criminal result. Also, anyone who acts through
an innocent, irresponsible, or unwilling agent is classified as a principal.

EXAMPLE
A gives a poisonous drink to B to give to C. B does so; C drinks it and dies. If B
did not know that the drink was poisonous, or if B was mentally ill or under du-
ress, A, not B, is the principal. Note that the principal need not be present when
the harm results.
22. CRIMINAL LAW

b. Accomplice
An accomplice is one who (1) with the intent to assist the principal and the intent
that the principal commit the crime (2) actually aids, counsels, or encourages the
principal before or during the commission of the crime.

c. Accessory After the Fact

An accessory after the fact is one who receives, relieves, comforts, or assists
another, knowing that he has committed a felony, in order to help the felon
escape arrest, trial, or conviction. The crime committed by the principal must
be a felony and it must be completed at the time the aid is rendered. Today, the
crime is usually called “harboring a fugitive,” “aiding escape,” or “obstructing
justice.”

1) Penalty
Typically the punishment for this crime bears no relationship to the principal
offense; five years is the most common maximum sentence. Exemptions are
usually provided for close relatives of the principal offender (the common
law exempted only the spouse).

B. MENTAL STATE—DUAL INTENT REQUIRED

In order to be convicted of a substantive crime as an accomplice, the accomplice must
have (1) the intent to assist the principal in the commission of a crime; and (2) the
intent that the principal commit the substantive offense. When the substantive offense
has recklessness or negligence as its mens rea, most jurisdictions would hold that the
intent element is satisfied if the accomplice (1) intended to facilitate the commission of
the crime; and (2) acted with recklessness or negligence (whichever is required by the
particular crime).

1. Provision of Material
In the absence of a statute, most courts would hold that mere knowledge that a
crime would result from the aid provided is insufficient for accomplice liability, at
least where the aid involves the sale of ordinary goods at ordinary prices. However,
procuring an illegal item or selling at a higher price because of the buyer’s purpose
may constitute a sufficient “stake in the venture” for a court to find intent to aid.

EXAMPLE
A tells B that he wants to buy a can of gasoline from B to burn a house down. B sells
A the gasoline and A burns down the house. B is not liable as an accomplice to ar-
son (unless it was illegal to sell gasoline in cans or B charged A twice his usual price
because of what A was using the gasoline for).

C. SCOPE OF LIABILITY
An accomplice is responsible for the crimes he did or counseled and for any other crimes
 CRIMINAL LAW 23.

committed in the course of committing the crime contemplated, as long as the other
crimes were probable or foreseeable.

EXAMPLE
A commands B to burn C’s house, and B does so. The fire spreads to X’s house, and it
was foreseeable that it would do so. A is an accomplice to the burning of X’s house.

1. Inability to Be Principal No Bar to Liability as Accomplice

One who may not be convicted of being a principal may be convicted of being an
accomplice.

EXAMPLE
At common law, a woman may not be convicted of rape as a principal, but she may
be convicted of that crime as an accomplice.

2. Exclusions from Liability

Under some circumstances, a person who would otherwise be liable as an accom-
plice is not subject to conviction, either because of a legislative intent to exempt him
or because he has a special defense.

a. Members of the Protected Class

If the statute is intended to protect members of a limited class from exploitation
or overbearing, members of that class are presumed to be immune from liability,
even if they participate in the crime in a manner that would otherwise make
them liable.

EXAMPLE
A is charged with transporting B, a woman, in interstate commerce for immoral
purposes; B is charged as an accomplice, on the ground that she encouraged
and assisted A. Is B guilty? Held: No. The statute was intended to protect wom-
en, and thus the woman transported cannot be convicted.

b. Necessary Parties Not Provided For

If a statute defines a crime in a way that necessarily involves more than one
participant and provides for the liability of only one participant, it is presumed
that the legislative intent was to immunize the other participant from liability
as an accomplice. The rule is most often applied to statutes making the sale of
certain items a criminal offense.

EXAMPLE
A asked B to sell her some heroin. B did so. Both were apprehended. B was
charged as a principal for the sale of narcotics; A was charged as an accom-
24. CRIMINAL LAW

plice. Is A subject to conviction? Held: No. Since the statute prohibiting sale
does not mention the liability of the buyer, the presumed legislative intent is to
exempt her.

c. Withdrawal
One who has rendered encouragement or aid to another may avoid liability as
an accomplice if he voluntarily withdraws from the crime before it is actually
committed by the principal. What is necessary for an effective withdrawal
depends upon what the person initially did.

1) If the person merely encouraged the commission of the crime, withdrawal

requires that he repudiate this encouragement.

2) If the person assisted by providing some material to the principal,

withdrawal requires at least that the person attempt to neutralize this assis-
tance, e.g., by doing everything possible to retrieve the material provided.

If it is impossible to withdraw by these methods, an alternative means of

withdrawing is to notify authorities or take some other action to prevent the
commission of the offense. In any case, the withdrawal must occur before the
chain of events leading to the commission of the crime becomes unstoppable.

EXAMPLE
B expresses a desire to kill C. A encourages him to do so, and provides him
with a gun. Later, A changes his mind. He seeks B out, and tells B that his ear-
lier position was wrong and that B should not kill C. He also gets his gun back.
Nevertheless, B obtains another gun and kills C. Is A liable as an accomplice?
Held: No, since he did all that was possible to render his encouragement and
assistance ineffective before B’s plan to kill C became unstoppable.

IV. INCHOATE OFFENSES

A. IN GENERAL
The inchoate offenses are solicitation, attempt, and conspiracy. An inchoate offense is
committed prior to and in preparation for what may be a more serious offense. It is a
complete offense in itself, even though the act to be done may not have been completed.
At common law under the doctrine of merger, inchoate offenses were regarded as
misdemeanors; if the principal offense was carried out, they were considered felonies.
The doctrine of merger has been abandoned in many jurisdictions in cases involving a
conspiracy, allowing an accused to be convicted of both conspiracy and the principal
offense. However, an accused cannot be convicted of either attempt or solicitation and
the principal offense.
 CRIMINAL LAW 25.

B. SOLICITATION
At common law it was a misdemeanor to solicit another to commit a felony or an act that
would breach the peace or obstruct justice. Modern statutes often retain the crime of
solicitation, but some restrict it to the solicitation of certain serious felonies.

1. Elements
Solicitation consists of inciting, counseling, advising, inducing, urging, or
commanding another to commit a crime with the specific intent that the person
solicited commit the crime (general approval or agreement is insufficient). The
offense is complete at the time the solicitation is made. It is not necessary that the
person solicited agree to commit the crime or do anything in response. (If the person
solicited committed the crime, the solicitor would be liable for the crime as a party;
if the person solicited proceeded far enough to be liable for attempt, the solicitor
would be a party to that attempt.)

2. Attempt Distinguished
Solicitation generally is not an attempt to commit the crime solicited. This distinction
is important in jurisdictions where there is no crime of solicitation or where the crime
of solicitation does not extend to as many offenses as does the crime of attempt.

3. Defenses

a. Factual Impossibility Is No Defense

It is not a defense that the solicitation could not have been successful, as where
the person solicited was a police undercover agent. The culpability of the solic-
itor is measured by the circumstances as she believed them to be.

b. Withdrawal or Renunciation Is No Defense

Once the solicitation has been made, it is generally no defense that the solicitor
changed her mind or countermanded her advice or urging. The M.P.C. recog-
nizes renunciation as a defense if the defendant prevents the commission of the
crime, such as by persuading the person solicited not to commit the crime.

c. Exemption from Intended Crime Is a Defense

If the solicitor could not be guilty of the intended crime because of a legislative
intent to exempt her, she would have a defense. For example, a minor female
could not be found guilty of solicitation of statutory rape by urging an adult male
to have intercourse with her, because she could not be guilty of the completed
crime.

C. CONSPIRACY
1. Elements
The elements of conspiracy at common law are as follows:
26. CRIMINAL LAW

(i) An agreement between two or more persons;

(ii) An intent to enter into an agreement; and

(iii) An intent to achieve the objective of the agreement.

Under the traditional definition of conspiracy, the agreement itself was the culpable
act (the actus reus). Today, a majority of states require an overt act in furtherance of
the conspiracy, but mere preparation will usually suffice.

a. Agreement Requirement
The parties must agree to accomplish the same objective by mutual action. The
agreement need not be express. The existence of an agreement may be shown
by a concert of action on the part of the conspirators over a period of time under
circumstances showing that they were aware of the purpose and existence of the
conspiracy and agreed to participate in the common purpose. Where multiple
crimes and multiple parties are involved, there are often problems in deciding
whether there is a single conspiracy or several smaller conspiracies.

1) Object of the Agreement

At common law, it was not necessary that there be an agreement to commit
a crime in order to find a criminal conspiracy. It was only necessary that
the object of the agreement was something “unlawful” or that the parties
intended to accomplish something lawful by “unlawful” means. “Unlawful”
in this context covered a variety of noncriminal matters that were regarded
as contrary to the public welfare. Most states, however, now provide that
the object of the conspiracy must be some crime or some felony or the
achievement of a lawful object by criminal means.

2) Multiple Crimes
Where the same parties perform a number of crimes over an extended period
of time, is each individual crime the subject of a separate conspiracy or are all
the crimes to be treated as arising out of one overriding conspiracy? If there
is an initial agreement among the parties to engage in a course of criminal
conduct constituting all the crimes, then there is only one conspiracy.

EXAMPLE
A and B agree to commit one bank robbery each month for one year. Even
though they plan to rob 12 banks, they are guilty of only one conspiracy.

3) Number of Conspiracies in Multiple Party Situations

In complex situations involving numerous parties, it is sometimes impor-
tant to determine how many conspiracies existed and who conspired with
whom. There are two general ways to characterize situations of this sort.
 CRIMINAL LAW 27.

a) “Chain” Relationship—One Large Conspiracy

If there is a series of agreements, all of which are regarded as part of
a single large scheme in which all of the parties to the subagreements
are interested, the situation will be regarded as one large conspiracy
involving all of the participants. The subagreements will be character-
ized as “links” in the overall “chain” relationship.

b) “Hub-and-Spoke” Relationships—Multiple Conspiracies

One participant may enter into a number of subagreements, each
involving different persons. All of the agreements are similar in that
they have one common member. However, if it is established that the
subagreements are reasonably independent of each other—if, for
example, the members of each agreement (other than the common
member) have little or no interest in whether the other agreements
succeed—the situation will be regarded as involving numerous
different and independent conspiracies. The common member can
be characterized as the “hub” (as of a wheel) and each subagree-
ment as a “spoke.” The common member is, of course, a member of
each conspiracy. But the members of each “spoke” conspiracy are not
members of the other “spoke” conspiracies and have not conspired
with the members of those conspiracies.

EXAMPLES
1) In a large narcotics ring, a smuggler brings heroin into the country
and sells it to a wholesaler. The wholesaler sells it to numerous retail-
ers. How many conspiracies? One, because this is a “chain” situation.
Because the smuggler-wholesaler agreement and the wholesaler-
retailers agreements were all part of a scheme in which all participants
were interested, there is only one conspiracy.
2) Brown agreed with A, B, and C to help each of them make fraudu-
lent loan applications. Each application was to be an independent
action and the applicants in one situation had no interest in whether
the other fraudulent applications were successful. How many conspira-
cies? Three: Brown with A, Brown with B, and Brown with C. Since the
subagreements were not part of an overall scheme in which A, B, and
C all were interested, this is a “hub-and-spoke” situation. A has not
conspired with B and C, but only with Brown.

4) Requirement of Two or More Parties

Since conspiracy, by definition, requires an agreement between two or
more persons, a question arises whether a person may be convicted of
conspiracy when his alleged co-conspirator is only feigning agreement
(e.g., the alleged co-conspirator is an undercover police officer).
28. CRIMINAL LAW

a) Modern Trend—“Unilateral” Approach

The modern trend follows the Model Penal Code’s “unilateral”
approach to conspiracy, which requires that only one party have
genuine criminal intent. Accordingly, under the unilateral approach,
a defendant can be convicted of conspiracy if he conspires with one
person only and that individual is a police officer working undercover.

b) Traditional Rule—“Bilateral” Approach

At common law, a conspiracy requires at least two “guilty minds,” i.e.,
persons who are actually committed to the illicit plan. Under this “bilat-
eral” approach, if one person in a two-party agreement is only feigning
agreement, the other party cannot be convicted of conspiracy. This
requirement of two guilty minds gives rise to a number of problems.

(1) Husband and Wife

At common law, a husband and wife could not conspire together
because the law viewed them as one person. They could,
however, be guilty of conspiracy with a third person. This distinc-
tion has been abandoned in virtually all states today.

(2) Corporation and Agent

Since a corporation can act only through an agent, it has been held
that there can be no conspiracy between the corporation and a
single agent acting on behalf of the corporation. There is a split of
authority as to whether the agents can be deemed co-conspirators.
Note that a corporation may be a party to a conspiracy with other
corporations or individuals who are not agents of the corporation.

c) Wharton-Type Problems

(1) Wharton Rule

Where two or more people are necessary for the commission of
the substantive offense (e.g., adultery, dueling, sale of contra-
band), the “Wharton rule” (named after its author) states that there
is no crime of conspiracy unless more parties participate in the
agreement than are necessary for the crime. Some courts hold
that, if the Wharton rule applies, there can never be a conviction
for conspiracy. Others hold that, if the rule applies, it prohibits
conviction for both conspiracy and the crime that the parties
agreed to commit.

EXAMPLE
A and B agree to meet at dawn to engage in a duel. They are ap-
prehended before daybreak, however. Dueling is a crime in the
 CRIMINAL LAW 29.

jurisdiction, and A is charged with conspiracy to commit dueling.

Does A have a defense? Yes. The Wharton rule applies and pre-
vents liability.
COMPARE
The Wharton rule does not apply to agreements with “necessary
parties not provided for” (see III.C.2.b., supra). Thus, where a state
statute prohibiting the sale of narcotics imposes criminal liability
only on the seller and not on the buyer, both the buyer and seller
may be guilty of conspiracy to sell narcotics (even though both par-
ties are necessary for commission of the substantive offense).

(2) Agreement with Person in “Protected Class”

If members of a conspiracy agree to commit an act that violates
a statute that was designed to protect persons within a given
class, a person within that class cannot be guilty of the crime
itself. (See III.C.2.a., supra.) Moreover, she cannot be guilty of a
conspiracy to commit that crime. It follows, then, that between two
people, the person not in the protected class cannot be guilty of
criminal conspiracy on the basis of an agreement with the person
in the protected class.

EXAMPLE
A, a woman, and B, a man, agreed on a scheme in which A would
be transported over state lines for purposes of prostitution. Is B
guilty of criminal conspiracy? No. The act of transporting women
over state lines for immoral purposes violates a statute (the Mann
Act) that was designed to protect women; thus, A could not be
guilty of a violation of the Act and cannot be guilty of conspiracy to
violate the Act. Therefore, B cannot be guilty of criminal conspiracy
because there were not two guilty parties to the agreement.

d) Effect of Acquittal of Other Conspirators

A conspiracy requires two guilty parties at common law. Thus, in most
courts, the acquittal of all persons with whom a defendant is alleged to
have conspired precludes conviction of the remaining defendant. This
rule does not apply where the other parties are not apprehended, are
charged with lesser offenses, or are no longer being prosecuted (nolle
prosequi).

b. Mental State—Specific Intent

Conspiracy is a specific intent crime. There are two different intents that are
necessary: intent to agree and intent to achieve the objective of the conspiracy.
30. CRIMINAL LAW

1) Intent to Agree
It is very difficult to separate the intent to agree from the act of agreement.
Hence, most courts do not even try. For bar exam purposes, the only thing
that is important to remember is that the intent to agree can be inferred
from conduct.

2) Intent to Achieve Objective

The defendant must intend to achieve the objective of the conspiracy.
This intent must be established as to each individual defendant. Under the
common law approach, a minimum of two persons must intend to achieve
the same purpose; i.e., there must be a “meeting of guilty minds.”

EXAMPLE
A, B, and C agree to steal D’s car, but only A and B intend to keep it perma-
nently; C intends to return it to D. Only A and B are guilty of conspiracy to
commit larceny, because only they had the intent to permanently deprive
D of his car. If only A so intended, and both B and C intended to return the
car, then A could not be liable for conspiracy to commit larceny.

3) Intent to Facilitate a Conspiracy

A person who acts with the intent to facilitate a conspiracy may thereby
become a member of the conspiracy. However, intent cannot be inferred
from mere knowledge. Therefore, a merchant who sells a good in the
ordinary course of business that he knows will be used to further a
conspiracy does not thereby join the conspiracy. On the other hand, a
merchant may be held to have joined the conspiracy if the good sold is a
specialty item that cannot easily be obtained elsewhere or if the merchant
otherwise has a stake in the criminal venture (e.g., by raising the price of
the good because of the buyer’s purpose).

4) “Corrupt Motive” Not Required

The majority rule is that the parties to a conspiracy need not have been
aware that their plan was an illegal one. A minority of courts have held to
the contrary, however, reasoning that a requirement of evil motive flows
implicitly from the word conspiracy. According to the “corrupt motive”
doctrine, which operates as an exception to the general rule that ignorance
of the law will not excuse criminal liability, the parties to a conspiracy must
have known that their objective was criminal. The corrupt motive doctrine is
usually limited to offenses that are malum prohibitum (see I.D.2., supra).

5) Conspiracy to Commit “Strict Liability” Crimes

Conspiracy is a specific intent crime. Therefore, in most jurisdictions,
a conspiracy to commit a “strict liability” crime (for which intent is not
required) requires intent.
 CRIMINAL LAW 31.

EXAMPLE
A and B agree on a scheme to persuade C, a 12-year-old girl, to have in-
tercourse with one of them. They believe she is 21, but this would not be a
defense to the completed crime of statutory rape. Can they be convicted
of conspiracy to commit statutory rape? No, because conspiracy to com-
mit statutory rape requires knowledge of the victim’s age even though the
completed crime does not.

c. Overt Act
At common law, the conspiracy was complete when the agreement with the requi-
site intent was reached. This is still the law in some states. Most states, however,
require that an act in furtherance of the conspiracy be performed. If an overt act
is required, any act in pursuit of the conspiracy will suffice, even an act of mere
preparation. The act may be performed by any one of the conspirators.

EXAMPLE
A, B, and C agreed to rob a bank. A, unbeknownst to B and C, rents a car to be
used in the getaway. If an overt act is required, the renting of a car is sufficient.

1) Attempt Distinguished
In attempt cases, the law requires that there be a substantial step toward
commission of the crime, whereas the overt act for conspiracy requires only
an act of mere preparation. The reason for this is that the secret activity
in conspiracy cases is potentially more dangerous to society and, since a
group is involved, it is more difficult for one person to stop the activity once
the agreement has been made.

2. Termination of Conspiracy
Since acts or declarations of co-conspirators are admissible only if made in further-
ance of the conspiracy, it becomes critically important to determine when the
conspiracy ends. This is also important for statute of limitations purposes.

a. Acts of Concealment
Since most criminals attempt to conceal the fact that they have committed a
crime, courts have generally taken the view that evidence of overt acts of
concealment is not sufficient to make the act of concealment part of the
conspiracy. In other words, there must be direct evidence that the parties
specifically agreed, prior to commission of the crime, that they would act in a
certain way to conceal the fact that they had committed the crime.

EXAMPLE
Suppose the statute of limitations for tax evasion is six years. If A and B
conspire to commit tax evasion, does their conspiracy end at the time of the
32. CRIMINAL LAW

commission of the fraud, or does it extend for the six years during which time A
and B presumably endeavor to keep their crime a secret? The answer depends
upon whether at the time of the agreement to commit tax evasion there was
also a specific subsidiary agreement to conceal the crime until the statute of
limitations had run. If there was no such specific agreement, as, for example, if A
and B were not aware of the statute of limitations, then the conspiracy does not
extend beyond the completion of the act of evasion.

b. Government Frustration of Conspiracy’s Objective

The government’s defeat of the conspiracy’s ultimate objective does not
automatically terminate the conspiracy. [United States v. Jimenez-Recio, 537
U.S. 270 (2003)]

EXAMPLE
Police stop A, who was transporting illegal drugs in his vehicle. Instead of simply
arresting A, the police instead decide to set up a “sting” operation. They drive
the vehicle to a preset location, and instruct A to contact B, a drug dealer, in
accordance with A and B’s original plan. B tells A that he will call C and D and
have them pick up the vehicle with the drugs. C and D do so. C and D can be
convicted of conspiracy to distribute illegal drugs. The fact that the government
defeated the conspiracy’s objective does not terminate the conspiracy, and im-
possibility is no defense to a charge of conspiracy (see below).

3. Liability of One Conspirator for Crimes Committed by Other Conspirators

One conspirator may, by virtue of his participation in the scheme, meet the require-
ments for “aiding and abetting” the commission of crimes by his co-conspirators and
therefore be liable for those crimes as an accomplice. Even if the conspirator did not
have the sufficient mental state for accomplice liability, a separate doctrine provides
that each conspirator may be liable for the crimes of all other conspirators if two
requirements are met:

a. The crimes were committed in furtherance of the objectives of the conspiracy;

and

b. The crimes were “a natural and probable consequence” of the conspiracy, i.e.,
foreseeable.

This doctrine applies only if the conspirator has not made a legally effec-
tive withdrawal from the conspiracy before the commission of the crime by the
co-conspirator. (See 4.b., infra.)

4. Defenses
 CRIMINAL LAW 33.

a. Factual Impossibility Is No Defense

Factual impossibility is not a defense to conspiracy. Even if it was factually
impossible to achieve the ultimate objective of the conspiracy, the defendants
can be found guilty of the conspiracy itself.

EXAMPLE
A and B agree to rape a woman whom they believe is asleep. In fact, she is
dead. A and B may be convicted of conspiracy to rape.

b. Withdrawal Is No Defense
The general rule is that withdrawal from a conspiracy is not a defense to a
charge of conspiracy, because the conspiracy is complete as soon as the agree-
ment is made and an overt act is committed. The M.P.C. recognizes voluntary
withdrawal as a defense if the defendant thwarts the success of the conspiracy
(e.g., by informing the police).

1) Defense to Subsequent Crimes of Co-Conspirators

A person may limit his liability for subsequent acts of the other members
of the conspiracy, including the target crime for which the conspiracy was
formed, if he withdraws. To withdraw, he must perform an affirmative act
that notifies all members of the conspiracy, and such notice must be given
in time for them to have the opportunity to abandon their plans. (Note that
if he has also provided material assistance so as to be liable as an accom-
plice, he must attempt to neutralize the assistance (see III.C.2.c., supra).)

5. No Merger—Conviction for Conspiracy and Substantive Crime

Under the old rule, if the conspirators committed a substantive offense, the crime
of conspiracy “merged” into the completed crime. While the members of the agree-
ment could be convicted of the substantive offense, they could not be convicted of
the conspiracy. This is no longer the law in most jurisdictions. (See the discussion of
merger in I.H., supra.) Now, if the conspirators are successful, they can be convicted
of both criminal conspiracy and the substantive offense.

6. State Codifications
While at common law a conspiracy was defined as a combination or agreement
between two or more persons to accomplish some criminal or unlawful purpose,
or to accomplish a lawful purpose by unlawful means, recent state codifications
require that the object of the conspiracy be a specifically proscribed offense. Yet
many states essentially codify the expansive common law notion by making it
a crime to conspire to commit acts injurious to the public welfare. The Supreme
Court has indicated that such statutes are unconstitutionally vague unless
construed narrowly.
34. CRIMINAL LAW

7. Punishment
Because a defendant may be convicted of both conspiracy and the completed crime,
most jurisdictions have enacted express penalty provisions for conspiracies. Some
statutes make conspiracy a misdemeanor regardless of its objective; some provide a
permissible maximum sentence regardless of the objective; and still others provide
different maximums depending upon the objective. Note that because the punish-
ment for conspiracy usually is not expressed as a fraction of the punishment for
the completed crime, the punishment for conspiracy may be more severe than the
punishment for the completed crime.

D. ATTEMPT
A criminal attempt is an act that, although done with the intention of committing a crime,
falls short of completing the crime. An attempt therefore consists of two elements: (1) a
specific intent to commit the crime, and (2) an overt act in furtherance of that intent.

1. Intent
The defendant must have the intent to perform an act and obtain a result that, if
achieved, would constitute a crime.

a. Attempt Requires Specific Intent

Regardless of the intent required for a completed offense, an attempt always
requires a specific intent. For example, attempted murder requires the specific
intent to kill another person, even though the mens rea for murder itself does
not necessarily require a specific intent to kill (see VII.C.2.a.1), infra).

b. Attempt to Commit Crimes Requiring Recklessness or Negligence Is

Logically Impossible
A crime defined as the reckless or negligent production of a result cannot be
attempted, because if there were an intent to cause such a result, the appro-
priate offense would be attempt to intentionally commit the crime rather than
attempt to recklessly or negligently cause the harm.

c. Attempt to Commit Strict Liability Crimes Requires Intent

Although a strict liability crime does not require criminal intent, to attempt a
strict liability crime the defendant must act with the intent to bring about the
proscribed result.

2. Overt Act
The defendant must have committed an act beyond mere preparation for the
offense. Several tests have been used to determine whether the act requirement for
attempt liability has been satisfied:

a. Traditional Rule—Proximity Test

Traditionally, courts used a proximity approach; i.e., they have evaluated the
 CRIMINAL LAW 35.

act based on how close the defendant came to completing the offense. Under
the typical proximity test, attempt requires an act that is dangerously close to
success.

EXAMPLE
Pointing a loaded gun at an intended victim and pulling the trigger is sufficient
under the proximity test, but going to the store to purchase bullets or even
driving to the intended victim’s house is insufficient. [See People v. Rizzo, 246
N.Y. 334 (1927)]

b. Majority Rule—Model Penal Code Test

The M.P.C. and most state criminal codes require that the act or omission
constitute a “substantial step in a course of conduct planned to culminate in the
commission of the crime.” In addition, an act will not qualify as a substantial step
unless it is strong corroboration of the actor’s criminal purpose.

3. Defenses

a. Impossibility of Success
Factual impossibility traditionally has been distinguished from legal impossibility,
and should be distinguished for exam purposes.

1) Legal Impossibility Is a Defense

If the defendant, having completed all acts that he had intended, would
have committed no crime, he cannot be guilty of an attempt to do the same
when he fails to complete all of the intended acts. True legal impossibility is
rare.

EXAMPLE
Defendant was charged with attempted subornation of perjury for solic-
iting false testimony from a third party witness in a divorce proceeding
brought by Wife on the grounds of adultery. The divorce complaint alleged
one act of adultery. The witness’s testimony, which was never offered at
trial, would have falsely accused Husband of having extramarital relations
on an occasion that was not alleged in the complaint. Because Wife’s
complaint made no mention of this event, the witness’s testimony, had it
been offered at trial, would have been immaterial to the resolution of the
complaint. The materiality of false testimony is an essential element of the
crime of perjury; therefore, if the witness had testified falsely as planned,
Defendant could not have been convicted of subornation of perjury. In
equal measure, then, she cannot be guilty of an attempt to do the same.
[People v. Teal, 196 N.Y. 372 (1909)]
36. CRIMINAL LAW

a) Effect of Statute or Case Abolishing Impossibility Defenses

Even a jurisdiction with a statute or case law purporting to do away
with impossibility defenses will recognize the above type of legal
impossibility. Such statutes ordinarily contain a provision that the
defendant must be charged with the attempt of a crime, thus implic-
itly recognizing a true legal impossibility defense. Such statutes or
cases generally have the effect of preventing factual impossibility from
becoming a good defense by its being labeled as legal impossibility.

2) Factual Impossibility Is No Defense

It is no defense that the substantive crime is incapable of completion due to
some physical or factual condition, unknown to the defendant.

EXAMPLE
In an attempt to steal A’s wallet, B sticks his hand in A’s back pocket. The
pocket, however, is empty. Can B be convicted of attempted larceny? Yes,
the “emptiness” of A’s back pocket describes its physical condition at
the time B reached his hand in. This factual impossibility is no defense to
liability.

a) Includes Impossibility Due to Attendant Circumstances

Impossibility is also no defense when the defendant engages in
conduct while mistaken about certain attendant circumstances: Had
the circumstances been as she believed they were, what she set out to
do would be a crime. However, because the circumstances were other-
wise, what she has set out to do will not be a crime. Courts traditionally
have split on whether this is legal or factual impossibility, but the better
view is that it is factual impossibility and not a defense.

EXAMPLE
An adult police officer, while pretending to be a minor, arranges for
a time and place for a sexual encounter with an adult defendant.
When the defendant shows up for the encounter, he is arrested and
charged with some form of attempted statutory rape crime, even
though the “minor” is in reality an adult. Given that there is no minor
involved, there is no way for the defendant to complete the substan-
tive crime. May the defendant be convicted? The answer is “yes,”
given that the defendant has engaged in conduct that would have
constituted some sort of statutory rape type crime had the defendant
been able to complete the crime and had the circumstances been as
he believed them to be.
 CRIMINAL LAW 37.

3) Distinguishing Between Factual and Legal Impossibility

The bright-line division between legal and factual impossibility above is
a bit of an artifice; courts are not as consistent in distinguishing the two.
However, for exam purposes, you should use the “better view” outlined
above and define legal impossibility narrowly. Ask yourself: “If the defen-
dant were able to complete all of the acts that he intended to do, and if all
of the attendant circumstances actually were as the defendant believed
them to be, would the defendant have committed a crime?” The answer
usually will be yes, in which case the impossibility is factual and not a
defense. In the unusual case where the answer is no, the defendant most
likely has a legal impossibility defense.

b. Abandonment
If a defendant has, with the required intent, gone beyond preparation, may she
escape liability by abandoning her plans? The majority rule is that abandonment
is never a defense. The M.P.C. approach, followed in a number of jurisdictions,
is that withdrawal will be a defense but only if:

1) It is fully voluntary and not made because of the difficulty of completing

the crime or because of an increased risk of apprehension; and

2) It is a complete abandonment of the plan made under circumstances

manifesting a renunciation of criminal purpose, not just a decision to
postpone committing it or to find another victim.

4. Prosecution for Attempt

A defendant charged with a completed crime may be found guilty of either the
completed crime or an attempt to commit the crime as long as the evidence
presented supports such a verdict. The reverse is not true. A defendant charged
only with attempt may not be convicted of the completed crime.

5. Punishment for Attempt

Most states punish attempt less severely than the crime attempted. The most
common statutory scheme permits a penalty up to one-half the maximum penalty
for the completed crime, with a specific maximum set for attempts to commit crimes
punishable by death or life imprisonment. Under the M.P.C. and some state statutes,
an attempt may be punished to the same extent as the completed crime, except for
capital crimes and the most serious felonies.

V. RESPONSIBILITY AND CRIMINAL CAPACITY

A. INSANITY
The insanity defense exempts certain defendants because of the existence of an
38. CRIMINAL LAW

abnormal mental condition at the time of the crime. The various formulations differ signifi-
cantly on what effects a mental illness must have had to entitle the defendant to an
acquittal. Note that insanity is a legal term rather than a psychiatric one. Furthermore,
insanity is a generic term comprising many possible mental abnormalities, all of which
have only one thing in common: they are recognized by law as dictating certain legal
consequences. Usually, the cause of a defendant’s mental illness or insanity is irrelevant
in determining the legal consequences.

1. Formulations of Insanity Defense

a. M’Naghten Rule

1) Elements
The traditional M’Naghten rule provides that a defendant is entitled to an
acquittal if the proof establishes that:

a) A disease of the mind

b) Caused a defect of reason

c) Such that the defendant lacked the ability at the time of his actions to
either:

(1) Know the wrongfulness of his actions; or

(2) Understand the nature and quality of his actions.

2) Application

a) Defendant with Delusions

If the defendant suffered from delusions (false beliefs), it is necessary
to determine whether his actions would have been criminal if the facts
had been as he believed them to be.

EXAMPLE
A, because of a mental illness, believed B wanted to kill him. A killed B.
Is A entitled to an acquittal on insanity grounds under the M’Naghten
rule? Held: No. Even if A’s delusion had been accurate, he would not
have been legally entitled to kill B simply because B wanted to kill him.

b) Belief that Acts Are Morally Right

A defendant is not entitled to an acquittal merely because he believes
his acts are morally right, unless he has lost the capacity to recognize
that they are regarded by society as wrong.
 CRIMINAL LAW 39.

c) Inability to Control Oneself

Under the traditional interpretation given to the M’Naghten rule, it is
irrelevant that the defendant may have been unable to control himself
and avoid committing the crime. Loss of control because of mental
illness is no defense.

3) Evidence Admissible
In practice, the M’Naghten rule does not unduly restrict the evidence heard
by juries. Most jurisdictions admit any evidence that reasonably tends to
show the mental condition of the defendant at the time of the crime.

b. Irresistible Impulse Test

Under the irresistible impulse test, a defendant is entitled to an acquittal if
the proof establishes that because of mental illness he was unable to control
his actions or to conform his conduct to the law. Contrary to what the name
irresistible impulse might imply, this inability need not come upon the defendant
suddenly. Some jurisdictions apply both M’Naghten and the irresistible impulse
test. Thus, a person is entitled to an acquittal if he meets either test.

c. Durham (or New Hampshire) Test

Under the Durham rule, a defendant is entitled to an acquittal if the proof estab-
lishes that his crime was the “product of mental disease or defect.” A crime
is a “product of” the disease if it would not have been committed but for the
disease. In this way, the Durham test is broader than either the M’Naghten or
irresistible impulse tests; it was intended primarily to give psychiatrists greater
liberty to testify concerning the defendant’s mental condition. Although severely
criticized for being unduly vague, the Durham rule was followed in the District
of Columbia from 1954 until 1972, at which time the court of appeals replaced it
with the A.L.I. test. (See below.) It remains the law only in New Hampshire.

d. American Law Institute (“A.L.I.”) or Model Penal Code Test

Under this test, the defendant is entitled to an acquittal if the proof shows that
he suffered from a mental disease or defect and as a result lacked substantial
capacity to either:

1) Appreciate the criminality (wrongfulness) of his conduct; or

2) Conform his conduct to the requirements of law.

This test combines the M’Naghten and the irresistible impulse tests by allowing
for the impairment of both cognitive and volitional capacity.

2. Exclusion of “Psychopaths”
Many formulations (including the A.L.I. test) expressly exclude the psychopathic
40. CRIMINAL LAW

criminal—the person who repeatedly commits crimes without experiencing guilt. This
is usually accomplished by defining “mental illness” so as to exclude any abnormality
evidenced only by repeated antisocial conduct. “Sociopathic” and “psychopathic”
are synonymous.

3. Refusal to Participate in Psychiatric Examination

If the defendant does not put his mental state in issue and does not plan to use an
insanity defense, he may refuse to participate in a court-ordered psychiatric exami-
nation to determine competency to stand trial. If he does not refuse, he is entitled to
the Miranda warnings prior to such an examination.

4. Procedural Issues Related to Insanity Defense

Several important procedural matters are raised by the insanity defense.

a. Burdens of Proof

1) Presumption of Sanity and Burden of Producing Evidence

All defendants are presumed sane. The insanity issue is not raised, then,
until the defendant comes forward with some evidence tending to show
that he was insane under the applicable test. Depending upon the jurisdic-
tion, this burden is carried either by a mere shred (or scintilla) of evidence,
or by evidence sufficient to raise a reasonable doubt as to sanity.

2) Burden of Persuasion
In most states, the defendant must prove his insanity, generally by a
preponderance of the evidence. In some jurisdictions and under the M.P.C.,
however, once the issue has been raised, the prosecution must prove the
defendant was sane beyond a reasonable doubt. Federal courts require the
defendant to prove insanity by clear and convincing evidence.

b. When Defense May Be Raised and Who May Raise It

1) Defense May Be Raised After Arraignment

The insanity defense may be raised at the arraignment when the plea is
taken, but the defendant need not raise it then. A simple “not guilty” at that
time does not waive the right to raise the defense at some future time. A
minority of jurisdictions, however, require that the defendant give reason-
able notice to the prosecution of an intent to raise the defense at trial.

2) Neither Prosecutor Nor Judge May Raise Defense for Competent

Defendant
Neither a prosecutor nor a judge can assert the insanity defense when a
competent defendant, who is adequately represented, has elected not to
do so.
 CRIMINAL LAW 41.

c. Pretrial Psychiatric Examination

1) Right to Support Services for Defense

Where a defendant has made a preliminary showing that it is likely he will
be able to use the insanity defense, the state must provide a psychiatrist for
the preparation of the defense. Where the state presents evidence that the
defendant is likely to be dangerous in the future, the defendant is entitled
to psychiatric examination and testimony in the sentencing proceeding.
[Ake v. Oklahoma, 470 U.S. 68 (1985)]

2) No Privilege Against Self-Incrimination

At the present time, a defendant has no right to refuse to be examined by a
psychiatrist appointed to aid the court in the resolution of his insanity plea.
However, a defendant who does not put his mental state in issue is entitled
to the Miranda warnings before he may be compelled to undergo a court-
ordered competency examination; the defendant may then refuse to be
examined.

5. Post-Acquittal Commitment to Mental Institution

a. Committed Until Cured

In most jurisdictions, acquittal by reason of insanity puts into operation a proce-
dure by which the acquitted defendant may be committed to a mental institution
until cured. In some jurisdictions, such commitment is possible only if it is proven
that the defendant is presently mentally ill and dangerous. In others, commit-
ment follows automatically.

b. Confinement May Exceed Maximum Period of Incarceration Carried by

Offense
The confinement of an insanity acquittee in a mental hospital, based solely on the
trial court’s finding of insanity by a preponderance of the evidence, may last until
he has regained his sanity or is no longer dangerous. This does not deny due
process even if the result is confinement for a period longer than the maximum
period of incarceration carried by his offense. Nor is the insanity acquittee
entitled, at the end of the statutory maximum incarceration period, to a civil
commitment hearing at which proof of his insanity would have to be established
by clear and convincing evidence. [Jones v. United States, 463 U.S. 354 (1983)]

6. Mental Condition During Criminal Proceedings

In addition to being a defense to criminal liability, the abnormal mental condition of a
defendant is relevant at two other stages of the legal proceeding.

a. Incompetency to Stand Trial

Under the Due Process Clause of the United States Constitution, a defendant
42. CRIMINAL LAW

may not be tried, convicted, or sentenced if, as a result of a mental disease or

defect, he is unable:

1) To understand the nature of the proceedings being brought against him;

or

2) To assist his lawyer in the preparation of his defense.

The Due Process Clause prevents a defendant from being declared incompe-
tent without notice and a hearing. Many jurisdictions grant a right to a jury deter-
mination of competence. A finding of incompetence will suspend the criminal
proceedings and invariably result in commitment until such time as the defen-
dant regains competence. The Constitution may demand that the defendant’s
hospitalization be limited to a reasonable period of time necessary to decide
whether there is a likelihood of recovery in the near future.

b. Incompetency at Time of Execution

A defendant may not be executed if he is incapable of understanding the nature
and purpose of the punishment. Modern statutes often permit only the warden
to raise this issue. Some expressly provide for a jury determination.

7. Limits on Testimony Regarding Sanity Issue

About half the states limit evidence on the issue of insanity to expert psychiatric
testimony. The M.P.C. rejects this approach, and would allow any type of evidence
relevant to the issue of whether the defendant had the mental state required for the
particular crime charged.

8. Diminished Capacity
Some states recognize the defense of “diminished capacity,” under which the defen-
dant may assert that as a result of a mental defect (e.g., neurosis, obsessive compul-
siveness, or dependent personality) short of insanity, he did not have the particular
mental state (purpose, knowledge, recklessness, or negligence) required for the
crime charged. Most states recognizing this defense limit it to specific intent crimes.

9. Bifurcated Trial
Some states, such as California, employ a two-stage trial process whenever the
defense of insanity is raised. The first stage determines guilt (did the defendant
actually perform the criminal act?); the second stage (which may be tried before a
new jury at the judge’s discretion) determines insanity (was the defendant legally
insane at the time he performed the act?).

B. INTOXICATION
Intoxication may be caused by any substance. Alcohol, drugs, and medicine are the most
frequent. Evidence of intoxication may be raised whenever the intoxication negates the
 CRIMINAL LAW 43.

existence of an element of a crime. The law generally distinguishes between voluntary

and involuntary intoxication.

1. Voluntary Intoxication
Intoxication is voluntary (self-induced) if it is the result of the intentional taking
without duress of a substance known to be intoxicating. The person need not have
intended to become intoxicated.

a. Defense to Specific Intent Crimes

Voluntary intoxication evidence may be offered, when the defendant is charged
with a crime that requires purpose (intent) or knowledge, to establish that the
intoxication prevented the defendant from formulating the requisite intent. Thus,
voluntary intoxication may be a good defense to specific intent crimes, but will
not be a defense to general intent crimes. The defense is not available if the
defendant purposely becomes intoxicated in order to establish the defense.

b. No Defense to Strict Liability Crimes or Crimes Requiring Malice,

Recklessness, or Negligence
Voluntary intoxication is not a defense to crimes requiring malice, recklessness,
or negligence, or crimes of strict liability. Thus, voluntary intoxication is not a
defense to common law murder, which requires a mens rea of “malice afore-
thought” (see VII.C.2.a.1), infra).

EXAMPLE
After drinking heavily, A breaks into a house, wrongly thinking it is her own.
When surprised by B, the owner, A reacts with force, beating B with her fists.
While driving home, A is cited for speeding. Will A have a defense of intoxica-
tion: (1) to burglary? (Yes, if as a result she did not know that the house belonged
to B or did not have the intent to commit a felony therein); (2) to battery? (No,
because as defined battery may be the result of recklessness); or (3) to speed-
ing? (No, because speeding is a strict liability offense).

1) Crimes that Require Recklessness

While crimes calling for recklessness require a conscious disregard of a
substantial and unjustifiable risk (see II.C.6.a.3), supra), a person who was
not consciously aware of the risk only because he was intoxicated will be
deemed to have acted recklessly with regard to the risk.

c. Defense to First Degree Murder, But Not Second Degree Murder

It is generally held that voluntary intoxication may reduce first degree (premedi-
tated) murder to second degree murder, but it will not reduce second degree
murder to manslaughter. Rationale: In a jurisdiction that divides murder into
degrees (see VII.C.3., infra), all murders are second degree murder unless
44. CRIMINAL LAW

the prosecution proves, e.g., deliberation and premeditation. Common law

“depraved heart” murders would fall into the second degree category. Although
voluntary intoxication may negate the defendant’s ability to deliberate and
premeditate (first degree murder), it cannot negate the criminal recklessness
required for depraved heart murder (second degree murder).

2. Involuntary Intoxication
Intoxication is involuntary only if it results from the taking of an intoxicating
substance (1) without knowledge of its nature, (2) under direct duress imposed by
another, or (3) pursuant to medical advice while unaware of the substance’s intoxi-
cating effect.

Involuntary intoxication may be treated as mental illness, in which case a defendant

is entitled to acquittal if, because of the intoxication, she meets whatever test the
jurisdiction has adopted for insanity.

3. Relationship to Insanity
Intoxication and insanity are two separate defenses. However, continuous, exces-
sive drinking or drug use may bring on actual insanity (e.g., delirium tremens). Thus,
a defendant may be able to claim both an intoxication defense and an insanity
defense.

C. INFANCY
1. Common Law
At common law, the defense of lack of capacity to commit a crime by reason of
infancy gave rise to three presumptions. Physical age (not mental age) at the time
of the crime (not at the time of the trial) governs.

a. Under Seven—No Criminal Liability

Under the age of seven, a child could not be held responsible for any crime
(conclusive presumption of incapability of knowing wrongfulness of acts).

b. Under Fourteen—Rebuttable Presumption of No Criminal Liability

Children between the ages of seven and 14 were presumed incapable of
knowing the wrongfulness of their acts, but this presumption was rebuttable by
clear proof that the defendant appreciated the nature and quality of his act (e.g.,
conduct undertaken to conceal the crime). Note, however, that children under 14
were conclusively presumed incapable of committing rape.

c. Over Fourteen—Adult
Children age 14 or older were treated as adults.

2. Modern Statutes
 CRIMINAL LAW 45.

a. Some Have Abolished Presumptions

A number of modern statutes have abolished the presumptions of the common
law and have provided that no child can be convicted of a crime until a stated
age is reached, usually 13 or 14. Other states, however, retain the common law
presumptions.

b. Juvenile Delinquency
All states have enacted some type of juvenile delinquency laws or have set up
special juvenile or family courts. These laws ordinarily provide that with respect
to conduct that would be deemed criminal if committed by an adult, the juvenile
court has exclusive jurisdiction over children under a certain age, and concur-
rent jurisdiction (with the criminal courts) over older children. In the “concurrent
jurisdiction” situation, the child must be “charged” with delinquency in juvenile
court unless the juvenile court waives jurisdiction and authorizes the trial of
the child as an adult in criminal court. In most jurisdictions, the common law
immunity rules for infants do not apply in juvenile court because the primary
goal is rehabilitation rather than punishment. The M.P.C. follows this approach,
providing that the juvenile court has exclusive jurisdiction over minors younger
than 16 and concurrent jurisdiction over 16- and 17-year-old minors.

VI. PRINCIPLES OF EXCULPATION

A. JUSTIFICATION
Under certain circumstances, the commission of a proscribed act is viewed by society
as justified and hence not appropriate for criminal punishment. Generally, the defendant
must raise the issue of justifiable use of force by introducing some evidence (“more than
a scintilla”) tending to show justification as an affirmative defense. Once she has done
this, the state may require the prosecution to prove that the use of force was not justified,
or it may impose on the defendant the burden of proving this affirmative defense by a
preponderance of the evidence.

1. Self-Defense

a. Nondeadly Force
As a general rule, an individual who is without fault may use such force as she
reasonably believes is necessary to protect herself from the imminent use
of unlawful force upon herself. (See discussion infra on reasonableness and
unlawful force.) There is no duty to retreat before using nondeadly force, even
if retreat would result in no further harm to either party.

b. Deadly Force
A person may use deadly force in self-defense if she (1) is without fault, (2) is
confronted with unlawful force, and (3) reasonably believes that she is threat-
ened with imminent death or great bodily harm.
46. CRIMINAL LAW

1) Without Fault
A person who has initiated an assault or provoked the other party will be
considered the aggressor. (See discussion infra.)

2) Unlawful Force
The attacker must be using unlawful force (i.e., force that constitutes a
crime or a tort).

3) Threat of Imminent Death or Great Bodily Harm

The defendant must reasonably believe that she is faced with imminent
death or great bodily harm if she does not respond with deadly force. The
danger of harm must be a present one. There is no right to use deadly
force if harm is merely threatened at a future time or the “attacker” has no
present ability to carry out the threat.

EXAMPLE
A, who has his arms tied behind his back, says to D, “I am going to kill you.”
D pulls out a gun and shoots A. No self-defense.

4) Retreat
Must a person retreat as far as possible before using deadly force, if such
retreat is possible without the person endangering himself? For purposes
of the examination, the majority rule is that there is no duty to retreat.
A person (other than the initial aggressor) may use deadly force in self-
defense even if this could be avoided by retreating. Even in the minority of
courts that follow a common law rule and impose a duty to retreat, retreat
is only sometimes necessary. First, no retreat is necessary unless it can be
made in complete safety. Second, no retreat is necessary in several special
situations: (1) where the attack occurs in one’s own home; (2) where the
attack occurs while the victim is making a lawful arrest; or (3) where the
assailant is in the process of robbing the victim.

EXAMPLE
A is standing in a public park feeding the birds. B walks up to A, pulls a
knife from his pocket, and—as he comes closer to A—says, “I am going to
kill you.” A pulls a gun from her pocket and shoots B, killing him. Does A
have a defense of self-defense? Under the majority rule the answer would
be yes, because A had no duty to retreat before using deadly force, as long
as the force was necessary to defend herself against imminent attack. Even
under the minority approach the answer might be yes, because even if A
was under a general duty to retreat before using deadly force, here it did
not appear that such retreat could have been done in complete safety.
 CRIMINAL LAW 47.

c. Right of Aggressor to Use Self-Defense

Generally, one who is at fault for starting a confrontation has no right to use
force in her own defense during that confrontation. But an aggressor can
“regain” her right to use force in self-defense in two ways:

1) Withdrawal or Retreat
An aggressor who, in good faith, attempts to remove herself from the
fight, and communicates to the other person her desire to remove herself,
regains her right to use force in self-defense.

2) Sudden Escalation
If the victim of the initial aggression suddenly escalates a “minor” fight into
one involving deadly force and does so without giving the aggressor the
chance to withdraw or retreat, the aggressor may use deadly force in her
own defense.

2. Defense of Others
There are two issues in determining whether a person who has used force to defend
another person is criminally liable for her acts.

a. Relationship with Person Aided

Must there be some special relationship between the defendant and the person
in whose defense she acted? The majority rule is no. One may use force in
defense of any other person if the other requirements of the defense are met. A
few jurisdictions require that the person whom the defendant aided must either
have been a member of the defendant’s family or the defendant’s employee or
employer.

b. Status of Person Aided

A defendant has the defense of defense of others only if she reasonably
believed that the person she assisted had the legal right to use force in his own
defense. If in fact that person had no such legal right, does the defendant still
have a defense? The better view is yes, because all that is necessary for the
defense is the reasonable appearance of the right to use force. In a minority of
jurisdictions, however, the answer is no, because the defendant “steps into the
shoes of the person she defends” and therefore has no defense if that person
had no legal right to use force in self-defense.

3. Defense of a Dwelling

a. Nondeadly Force
A person is justified in the use of nondeadly force in defense of her dwelling
when, and to the extent that, she reasonably believes that such conduct is
necessary to prevent or terminate another’s unlawful entry into or attack upon
her dwelling.
48. CRIMINAL LAW

b. Deadly Force
One is generally justified in the use of deadly force in two situations:

1) Tumultuous Entry Plus Personal Danger

Use of deadly force is justifiable where the entry was made or attempted
in a riotous, violent, or tumultuous manner and the person reasonably
believes that the use of force is necessary to prevent a personal attack
upon herself or another in the dwelling.

2) Felony
Use of deadly force is also justifiable where the person reasonably believes
that such force is necessary to prevent the entry into the dwelling by a
person who intends to commit a felony in the dwelling.

4. Defense of Other Property

a. Nondeadly Force
Nondeadly force may be used to defend property in one’s possession from
unlawful interference. In the case of real property, this means entry or trespass;
in the case of personal property, this means removal or damage. The person
must reasonably believe that force is needed, and the need to use force must
reasonably appear imminent. Thus, force may not be used if a request to
desist or refrain from the activity would suffice. In addition, the right is limited
to property in one’s possession. Force cannot be used to regain possession of
property that he reasonably believes was wrongfully taken, unless the person
using it is in “immediate pursuit” of the taker.

b. Deadly Force May Not Be Used

Defense of property alone can never justify the use of deadly force. A person
may use deadly force in the defense of property generally only in conjunction
with another privileged use of force, e.g., self-defense, defense of others, or to
effectuate an arrest.

5. Crime Prevention

a. Nondeadly Force
Generally, one is privileged to use force to the extent that he reasonably
believes is necessary to prevent a felony, riot, or other serious breach of the
peace, although some states (e.g., California) have extended this to the preven-
tion of any crime.

b. Deadly Force
The traditional rule was that deadly force could be used to prevent the commis-
sion of any felony, but the modern view is that deadly force may be used only if
 CRIMINAL LAW 49.

it appears reasonably necessary to prevent a “dangerous felony” involving risk

to human life. This would include robbery, arson, burglary of a dwelling, etc.

6. Use of Force to Effectuate Arrest

a. By Police Officer
The use of deadly force to apprehend a fleeing felon constitutes a seizure. The
force used to effect a seizure must be reasonable. Deadly force is reasonable
only when the felon threatens death or serious bodily harm and deadly force
is necessary to prevent his escape. [Tennessee v. Garner, 471 U.S. 1 (1985)] For
purposes of state criminal law, under this rule a police officer cannot use deadly
force to apprehend an unarmed, nondangerous felon; but an officer may use
deadly force to prevent a felon from escaping if the police officer has probable
cause to believe that the felon poses a threat of serious bodily harm to the
officer or others.

1) By Person Acting At Direction of Police Officer

A police officer may summon a bystander to assist him in making a lawful
arrest. The bystander has the same authority as the officer to use force in
making the arrest, and the bystander’s good faith assistance is justified
even if it later turns out that the officer was exceeding his authority.

b. By Private Person
A private person has the same right to use force to make an arrest as a police
officer or one acting at the direction of a police officer, except that the private
person has a defense to the use of deadly force only if the person harmed was
actually guilty of the offense (i.e., felony) for which the arrest was made. It is not
enough that it reasonably appeared that the person was guilty. A private person
has a privilege to use nondeadly force to make an arrest if a crime was in fact
committed and the private person has reasonable grounds to believe the
person arrested has in fact committed the crime.

7. Resisting Arrest

a. Right to Resist Person Not Known to Be Police Officer

An individual may lawfully repel, with deadly force if necessary, an attack made
by a police officer trying to arrest her if the individual does not know that the
person is a police officer.

b. Right to Resist Known Police Officer

May a person resist arrest if the person attempting to make the arrest is known
to be a police officer? The majority rule is that nondeadly force may be used to
resist an improper arrest even if a known officer is making that arrest. A minority
of courts and the M.P.C. take the position that force may not be used to resist
one known to be a police officer.
50. CRIMINAL LAW

8. Necessity
Conduct otherwise criminal is justifiable if the defendant reasonably believed that
the conduct was necessary to avoid some harm to society that would exceed the
harm caused by the conduct. The test is objective; a good faith belief in the neces-
sity of one’s conduct is insufficient. However, causing the death of another person to
protect property is never justified.

EXAMPLE
Throwing cargo overboard during a violent storm, if necessary to save the lives of
the crew and other people on board a ship, would not constitute criminal damage to
property. On the other hand, throwing some members of the crew overboard to save
the cargo would never be justifiable.

The defense of necessity is not available if the defendant is at fault in creating a

situation requiring her to choose between two evils. Finally, under the traditional
common law view, the pressure producing the choice of evils had to come from
natural forces; however, modern cases do not require that the necessity arise from
natural forces.

9. Public Policy
A police officer (or one assisting her) is justified in using reasonable force against
another, or taking property, provided the officer acts pursuant to a law, court order,
or process requiring or authorizing her to so act.

EXAMPLE
The public executioner is not guilty of murder when she carries out a lawfully im-
posed sentence of execution. If the sentence was not lawful, the executioner is still
immunized from criminal liability by a reasonable belief that her conduct was re-
quired by law.

10. Domestic Authority

The parents of a minor child, or any person “in loco parentis” with respect to that
child, may lawfully use reasonable force upon the child for the purpose of promoting
the child’s welfare. Whether or not the force is “reasonable” is judged by the totality
of the circumstances, including the age, sex, and health of the child.

B. EXCUSE OF DURESS (ALSO CALLED COMPULSION OR COERCION)

A person is not guilty of an offense, other than intentional homicide, if he performs an
otherwise criminal act under the threat of imminent infliction of death or great bodily
harm, provided that he reasonably believes death or great bodily harm will be inflicted
on himself or on a member of his immediate family if he does not perform such conduct.
Threats to harm any third person may also suffice to establish the defense of duress.
 CRIMINAL LAW 51.

Traditionally, threats to property were not sufficient; however, a number of states, consis-
tent with the M.P.C., do allow for threats to property to give rise to a duress defense,
assuming that the value of the property outweighs the harm done to society by commis-
sion of the crime. Note that an act committed under duress is termed excusable rather
than justifiable. The subtle distinction stems from the fact that criminal acts performed
under duress are condoned by society rather than encouraged.

1. Necessity Distinguished
Unlike necessity, duress always involves a human threat.

EXAMPLE
A points a gun at B and threatens to kill B if she does not break into C’s house and
steal food. B does as she is told. B may raise the defense of duress. If, however, B is
a starving victim of a plane crash in a desolate area and commits the same act, she
has the defense of necessity.

C. OTHER DEFENSES
1. Mistake or Ignorance of Fact

a. Mistake Must Negate State of Mind

Ignorance or mistake as to a matter of fact will affect criminal guilt only if it
shows that the defendant did not have the state of mind required for the crime.

EXAMPLE
A, hunting in the woods, shoots at what he reasonably believes to be a deer. In
fact, it is B, who is killed. A’s mistake of fact establishes that he did not have the
state of mind required for murder.
COMPARE
A, hunting in the woods, shoots through the trees at a figure he believes to be
his enemy B, intending to kill him. In fact, the figure is C, who is killed. A is guilty
of murdering C despite his mistake of fact as to C’s identity, because A’s mistake
does not negate his intent to kill a person.

b. Requirement that Mistake Be Reasonable

1) Malice and General Intent Crimes—Reasonableness Required

If the mistake or ignorance is offered to negate the existence of general
intent or malice, it must be a reasonable mistake or ignorance, i.e., the type
of mistake or ignorance that a reasonable person would have made under
the circumstances.
52. CRIMINAL LAW

2) Specific Intent Crimes—Reasonableness Not Required

Any mistake of fact, reasonable or unreasonable, is a defense to a specific
intent crime.

EXAMPLE
A, leaving a restaurant, takes an umbrella, believing that it was the one she
had left there a week ago. In fact, it belongs to B. Is A guilty of larceny?
Held: No; since A believed the umbrella was hers, she could not have
intended to deprive B of his right to it. Therefore, she lacked the state of
mind necessary for larceny. Since her mistake negates a specific intent, it is
not material whether it was a reasonable mistake or not.

c. Strict Liability Crimes—Mistake No Defense

Since strict liability crimes require no state of mind, mistake or ignorance of fact
is no defense to them.

2. Mistake or Ignorance of Law

a. General Rule—No Defense

It is not a defense to a crime that the defendant was unaware that her acts were
prohibited by the criminal law or that she mistakenly believed that her acts were
not prohibited. This is true even if her ignorance or mistake was reasonable.

b. Mistake or Ignorance of Law May Negate Intent

If the mental state for a crime requires a certain belief concerning a collateral
aspect of the law, ignorance or mistake as to that aspect of the law will negate
the requisite state of mind. This situation involves ignorance of some aspect of
the elements of a crime rather than the existence of the statute making the act
criminal.

EXAMPLES
1) A is charged with violating a statute prohibiting the sale of a pistol to one
known to be a convicted felon. A was unaware of the statute prohibiting this,
but was aware that the person to whom the pistol was sold had been convicted
of assault. A mistakenly believed, however, that assault was a misdemeanor; in
fact, it was a felony. Is A guilty? Held: No. A’s ignorance of the statute prohibiting
the sale does not affect her liability, but the statute requires awareness that the
buyer was a convicted felon. Since A believed the buyer to be only a convicted
misdemeanant, she lacked the state of mind required for the crime.
2) B, who has had her car repossessed by a loan company, honestly believes she
is still the lawful owner of the vehicle and is lawfully entitled to possession of it.
She sees it sitting in a parking space in front of the loan company office and takes
 CRIMINAL LAW 53.

it. Even if B is wrong about her right to take the automobile, she is not guilty of
larceny because she lacks the requisite intent to deprive another of his property.

c. Exceptions

1) Statute Not Reasonably Available

The defendant has a defense if the statute proscribing her conduct was not
published or made reasonably available prior to the conduct.

2) Reasonable Reliance on Statute or Judicial Decision

The defendant has a defense if she acted in reasonable reliance on a
statute or judicial decision, even though the statute is later declared uncon-
stitutional or the decision is overruled. The defense is strongest when the
decision relied on was rendered by the highest court in the jurisdiction.

3) Reasonable Reliance on Official Interpretation or Advice

At common law, it was no defense that the defendant relied on an
erroneous official statement of the law contained in an administrative order
or grant, or in an official interpretation by the public officer or body respon-
sible for the interpretation, administration, or enforcement of the law. The
emerging rule, advocated by the M.P.C., provides a defense when the state-
ment is obtained from one “charged by law with responsibility for the inter-
pretation, administration, or enforcement of the law.”

4) Compare—Reasonable Reliance on Advice of Private Counsel

Unlike reasonable reliance on an official interpretation of the law (e.g., an
opinion of the Attorney General), relying on the advice of one’s own counsel
is normally not allowed as a true affirmative defense to a crime. If, however,
the reliance on the attorney negates an otherwise necessary mental state
element (e.g., knowingly violating the law), such reliance can demonstrate
that the government has not proved its case beyond a reasonable doubt.

3. Consent

a. May Negate Element of Offense

Consent of the victim is generally no defense. However, if it negates an element
of the offense, consent is a complete defense.

EXAMPLES
1) Showing that the victim consented to intercourse is a defense to a charge of
forcible rape.
2) Showing that an adult person consented to traveling with the defendant is a
defense to kidnapping.
54. CRIMINAL LAW

For some crimes, the consent of the victim is of no relevance (e.g., consent of a
victim of statutory rape has no legal significance). For other offenses, consent
may be of limited effect (e.g., within limits, victim may consent to infliction of
physical violence, and one inflicting it will therefore not be guilty of assault or
battery).

b. Requirements of Consent as Defense

Whenever consent may be a defense, it must be established that:

1) The consent was voluntarily and freely given (without compulsion or

duress);

2) The party was legally capable of consenting; and

3) No fraud was involved in obtaining the consent.

4. Condonation by Injured Party No Defense

Forgiveness by the injured party after the crime has been committed ordinarily does
not operate as a defense to the commission of a crime, unless a statute establishes
such a defense.

EXAMPLE
Forgiveness by an assault victim would not bar a criminal prosecution of the perpe-
trator.
COMPARE
Some statutes provide that marriage of the parties will bar a prosecution for seduc-
tion.

5. Criminality of Victim No Defense

The nearly universal rule is that illegal conduct by the victim of a crime is no defense.

EXAMPLE
A, knowing that B has amassed a fortune through illegal gambling, defrauds B in
a real estate deal. Does B’s unlawful gambling activity provide A with a defense to
fraud? No.

6. Entrapment
Entrapment occurs if the intent to commit the crime originated not with the defen-
dant, but rather with the creative activities of law enforcement officers. If this is the
case, it is presumed that the legislature did not intend to cover the conduct and so it
is not criminal. The defense of entrapment consists of two elements:

(i) The criminal design must have originated with law enforcement officers; and
 CRIMINAL LAW 55.

(ii) The defendant must not have been predisposed to commit the crime prior to
the initial contact by the government.

If the defendant offers credible evidence on these two elements, in most jurisdic-
tions the government must then show predisposition beyond a reasonable doubt.

a. Offering Opportunity to Commit Crime Distinguished

It is not entrapment if the police officer merely provides the opportunity for the
commission of a crime by one otherwise ready and willing to commit it.

EXAMPLE
A, an undercover police agent, poses as a narcotics addict in need of a fix. B
sells narcotics to A. Does B have the defense of entrapment? No. By posing
as an addict, A merely provided an opportunity for B to commit the criminal
sale.

b. Inapplicable to Private Inducements

A person cannot be entrapped by a private citizen. Inducement constitutes
entrapment only if performed by an officer of the government or one working
for him or under his control or direction.

c. Availability If Offense Denied

If a defendant denies her participation in the offense, she has elected not to
pursue entrapment and is not entitled to raise the issue, even if the facts would
otherwise permit her to do so. Under the modern trend, however, a defen-
dant may raise the defense of entrapment even while denying participation
in the offense. The Supreme Court has adopted this rule for federal offenses.
[Mathews v. United States, 485 U.S. 58 (1988)]

d. Practical Difficulties of Entrapment

In cases where there is extended inducement by the government, the issue
becomes whether the defendant was predisposed to commit the offense or
whether the intent to commit it was instilled by the officers. Predisposition must
exist prior to the government’s initial contact with the defendant. A mere “incli-
nation” to engage in the illegal activity is not adequate proof of predisposition.
[Jacobson v. United States, 503 U.S. 540 (1992)] However, even if predisposi-
tion is not proved, the introduction by the prosecution of potentially damaging
evidence on the issue of the defendant’s predisposition may cause a jury to
convict on the basis of the extensive evidence of the defendant’s culpable state
of mind.

e. Minority Rule—Objective Test

The minority rule would replace the entrapment elements set out above with a
56. CRIMINAL LAW

test based entirely on the nature of the police activity. Under this test, a defen-
dant would be entitled to acquittal if the police activity was reasonably likely to
cause an innocent (i.e., unpredisposed) person to commit the crime. The defen-
dant’s innocence or predisposition is irrelevant. Under this approach, the issue
is decided by the judge rather than the jury.

f. Provision of Material for Crime by Government Agent Not Entrapment

The Supreme Court has held that under federal law an entrapment defense
cannot be based solely upon the fact that a government agent provided
material for commission of the crime, even if the material provided was contra-
band. [United States v. Russell, 411 U.S. 423 (1973); Hampton v. United States,
425 U.S. 484 (1976)] A few states, however, make the provision of essential
material—such as ingredients for drugs or the drugs themselves—entrapment.

VII. OFFENSES AGAINST THE PERSON

A. ASSAULT AND BATTERY

1. Battery
Battery is an unlawful application of force to the person of another resulting in either
bodily injury or an offensive touching. Simple battery is a misdemeanor.

a. State of Mind—Specific Intent Not Required

A battery can be, but need not be, intentional. It is sufficient that the defendant
caused the application of force with general intent, interpreted in most jurisdic-
tions today as requiring no more than criminal negligence.

b. Indirect Application of Force Sufficient

The force need not be applied directly. Thus, it is sufficient if the force is applied
by a force or substance put in motion by the defendant. For example, battery
may be committed by causing a dog to attack the victim or by causing the victim
to take a poisonous substance.

c. Aggravated Battery
Most statutes define certain acts as aggravated batteries and punish them as
felonies. Among the most common are batteries in which:

1) A deadly weapon is used (any ordinary object may become a deadly

weapon depending upon how it is used);

2) Serious bodily injury is caused; or

3) The victim is a child, woman, or police officer.

 CRIMINAL LAW 57.

d. Consent as a Defense
Contrary to the general rule that consent of the victim is not a valid defense,
some jurisdictions recognize consent as a defense to simple battery and/or
certain specified batteries, e.g., a medical operation, or reasonable injuries
incurred in consensual athletic contests.

2. Assault
In a majority of jurisdictions, an assault is either:

(i) An attempt to commit a battery; or

(ii) The intentional creation—other than by mere words—of a reasonable appre-

hension in the mind of the victim of imminent bodily harm.

A minority of jurisdictions limit assault to an attempt to commit a battery. Simple

assault is a misdemeanor.

a. Present Ability to Succeed

Some statutes define assault as an unlawful attempt to commit a battery
coupled with a present ability to succeed. Lack of an ability to succeed
precludes liability under such statutes.

EXAMPLE
A points an unloaded gun at B. A pulls the trigger, thereby frightening B. Is A
guilty of assault under a statute defining assault as “an attempt to commit a
battery, coupled with the present ability to succeed”? No. Because the gun was
unloaded, A could not have succeeded in committing a battery.

b. Battery Distinguished
If there has been an actual touching of the victim, a battery has been
committed. If there has been no such touching, the act may or may not consti-
tute an assault, depending on the circumstances.

c. Aggravated Assault
All jurisdictions treat certain “aggravated assaults” more severely than simple
assault. Such aggravated assaults include, but are not limited to, assaults:

1) With a dangerous (or deadly) weapon;

2) With intent to rape, maim, or murder.

d. Terminology
Some modern statutes eliminate the term “battery” and define assault to include
58. CRIMINAL LAW

a battery. Thus, in some states, the term “assault” may encompass a battery, an
attempted battery, and the intentional creation of a reasonable apprehension of
imminent bodily harm.

B. MAYHEM
1. Common Law
At common law, the felony of mayhem required either dismemberment (the removal
of some bodily part) or disablement of a bodily part. The crime was enforced to
preserve the King’s right to his subjects’ military service.

2. Modern Statutes
Most states retain the crime of mayhem in some form, although the recent trend is to
abolish mayhem as a separate offense and to treat it instead as a form of aggravated
battery. Modern statutes have expanded the scope of mayhem to include permanent
disfigurement. A few states require a specific intent to maim or disfigure.

C. HOMICIDE
1. Classifications of Homicides
At common law, homicides were divided into three classifications:

a. Justifiable homicides (those commanded or authorized by law);

b. Excusable homicides (those for which there was a defense to criminal liability);
and

c. Criminal homicides.

2. Common Law Criminal Homicides

At common law, criminal homicides were subdivided into three different offenses.

a. Murder
Murder is the unlawful killing of another human being with malice afore-
thought. Malice aforethought may be express or implied.

1) Malice Aforethought
In the absence of facts excusing the homicide or reducing it to voluntary
manslaughter, malice aforethought exists if the defendant has any of the
following states of mind:

a) Intent to kill (express malice);

b) Intent to inflict great bodily injury;

 CRIMINAL LAW 59.

c) Reckless indifference to an unjustifiably high risk to human life

(“abandoned and malignant heart”); or

d) Intent to commit a felony (felony murder; see infra).

In the case of b), c), or d), the malice is “implied.”

2) Deadly Weapon Rule

Intentional use of a deadly weapon authorizes a permissive inference of
intent to kill. A deadly weapon is any instrument—or in some limited circum-
stances, any part of the body—used in a manner calculated or likely to
produce death or serious bodily injury.

EXAMPLE
The following persons may be held guilty of murder under the deadly
weapon rule: (1) one who intentionally pilots a speedboat through a group
of bathers; (2) one who fires a bullet into a crowded room; and (3) a profes-
sional boxer who beats up and kills a belligerent tavern owner.

b. Voluntary Manslaughter
Voluntary manslaughter is a killing that would otherwise be murder but is distin-
guishable from murder by the existence of adequate provocation—i.e., a killing
in the heat of passion.

1) Elements of Adequate Provocation

At common law, provocation would reduce a killing to voluntary
manslaughter only if it met four tests:

a) The provocation must have been one that would arouse sudden and
intense passion in the mind of an ordinary person such as to cause
him to lose his self-control;

b) The defendant must have in fact been provoked;

c) There must not have been a sufficient time between the provocation
and the killing for the passions of a reasonable person to cool. (This
is a factual question that depends upon the nature of the provocation
and the attendant circumstances, including any earlier altercations
between the defendant and the victim); and

d) The defendant in fact did not cool off between the provocation and
the killing.
60. CRIMINAL LAW

2) When Provocation Is Adequate

Adequate provocation is most frequently recognized in cases of:

a) Being subjected to a serious battery or a threat of deadly force; and

b) Discovering one’s spouse in bed with another person.

3) Provocation Inadequate as a Matter of Law

At common law, some provocations were defined as inadequate as a
matter of law. The most significant was “mere words.” Modern courts tend
to be more reluctant to take such cases from juries and are more likely to
submit to the jury the question of whether “mere words” or similar matters
constitute adequate provocation.

4) Imperfect Self-Defense
Some states recognize an “imperfect self-defense” doctrine under which a
murder may be reduced to manslaughter even though:

a) The defendant was at fault in starting the altercation; or

b) The defendant unreasonably but honestly believed in the necessity of

responding with deadly force.

c. Involuntary Manslaughter
Involuntary manslaughter is of two types.

1) Criminal Negligence (or Recklessness)

If death is caused by criminal negligence (or by “recklessness” under the
M.P.C.), the killing is involuntary manslaughter. Criminal negligence requires
a greater deviation from the “reasonable person” standard than is required
for civil liability. (States that use a recklessness standard also require that
the defendant have had a subjective awareness of the risk.)

a) Distinguished from “Abandoned and Malignant Heart” Murder

Abandoned and malignant heart murder at common law involves a
greater risk of death than involuntary manslaughter based on reckless-
ness. For abandoned and malignant heart murder, the defendant must
have a reckless indifference to an unjustifiably high risk to human life.
(See VII.C.2.a.1), supra.) Recklessness under the M.P.C. requires only a
substantial and unjustifiable risk. (See II.C.6.a.3), supra.)

2) “Unlawful Act” Manslaughter

A killing caused by an unlawful act is involuntary manslaughter. There are
two subcategories of such acts:
 CRIMINAL LAW 61.

a) “Misdemeanor-Manslaughter” Rule
A killing in the course of the commission of a misdemeanor is
manslaughter, although most courts would require either that the
misdemeanor be malum in se (i.e., an inherently wrongful act), or if
malum prohibitum, that the death be the foreseeable or natural conse-
quence of the unlawful conduct.

b) Felonies Not Included in Felony Murder

If a killing was caused during the commission of a felony but does not
qualify as a felony murder case, the killing will be at least involuntary
manslaughter. The death also must be a foreseeable consequence of
the felony. (See 4.c.3), infra.)

3. Statutory Modification of Common Law Classification

Modern statutes often divide murder into degrees, and the bar examination often
contains questions based on statutes similar to them. Under such schemes, all
murders are second degree murders (similar to common law murder) unless the
prosecution proves any of the following, which would make the murder first degree
murder:

a. Deliberate and Premeditated Killing

“Deliberate” means that the defendant made the decision to kill in a cool and
dispassionate manner. “Premeditated” means that the defendant actually
reflected on the idea of killing, if only for a very brief period.

b. First Degree Felony Murder

Many state statutes list specific felonies that may serve as the basis for felony
murder. If a killing is committed during the commission of one of these enumer-
ated felonies, the killing is usually first degree murder without the prosecution
needing to show that the killing was either deliberate or premeditated. The
felonies most commonly listed are burglary, arson, rape, robbery, and kidnap-
ping, but other felonies that are inherently dangerous to human life are often
specifically added.

1) Second Degree Felony Murder

Even if the state lists the felonies to be included under the doctrine, a
separate statute (or case) may provide for criminal liability for a killing
committed during the course of a felony that is not listed. Such killings
typically will be classified as second degree murder.

2) Other State Variations

Some states may not list the felonies to be included under the felony
murder doctrine at all. Other states that permit felony murder liability based
on a felony that is not listed sometimes include the additional requirement
62. CRIMINAL LAW

that the felony be inherently dangerous to human life or that the felony be
dangerous to human life as committed.

c. Others
Some statutes make killings performed in certain ways first degree murder.
Thus, killing by lying in wait, poison, or torture may be first degree murder.

4. Felony Murder (and Related Matters)

As the definition of malice aforethought above makes clear, a killing—even an
accidental one—committed during the course of a felony is murder. Malice is implied
from the intent to commit the underlying felony.

a. What Felonies Are Included?

Under the common law, there were only a handful of felonies (see I.D.1., supra).
Today, the criminal codes of states have created many more.

b. Scope of the Doctrine

When the felony murder doctrine is combined with conspiracy law, the scope
of liability becomes very broad. If, in the course of a conspiracy to commit a
felony, a death is caused, all members of the conspiracy are liable for murder if
the death was caused in furtherance of the conspiracy and was a foreseeable
consequence of the conspiracy.

c. Limitations on Liability
There are some limitations on liability under the broad felony murder doctrine.

1) Commission of Underlying Felony

To convict a defendant of felony murder, the prosecution must prove that
he committed or attempted to commit the underlying felony. Thus, if the
defendant has a substantive defense that negates an element of the
underlying felony, he has a defense to felony murder. However, procedural
defenses (such as a statute of limitations defense to the underlying felony)
will not be a defense to felony murder in most states.

2) Felony Must Be Independent of Killing

The felony murder rule can be applied only where the underlying felony is
independent of the killing. Thus, a felony such as manslaughter or aggra-
vated battery will not qualify as the underlying felony for purposes of felony
murder liability.

3) Foreseeability of Death
The majority rule is that death must have been a foreseeable result of the
commission of the felony. However, it is important to note that courts have
been willing to find most deaths foreseeable. A minority of courts do not
 CRIMINAL LAW 63.

apply a foreseeability requirement, requiring only that the felony be malum

in se.

EXAMPLE
A intentionally sets fire to a dwelling. B, a firefighter, dies in an effort to
extinguish the blaze. C, the owner of the dwelling, dies of a heart attack
while watching his largest possession being destroyed. Is A guilty of felony
murder? Of B, yes. The death of a firefighter is a foreseeable consequence
of setting a fire. Of C, no. The heart attack was unforeseeable.

4) During the Commission of a Felony—Termination of Felony

The death must have been “caused during” the commission or attempted
commission of the felony, but the fact that the felony was technically
completed before death was caused does not prevent the killing from
being felony murder. Deaths caused while fleeing from the crime are felony
murder. But once the felon has reached a place of “temporary safety,” the
impact of the felony murder rule ceases and deaths subsequently caused
are not felony murder.

5) Killing of Co-Felon by Victims of Felonies or Pursuing Police Officers

Is the defendant liable for a co-felon’s death caused by resistance of the
victim or police? The majority view is no. The so-called Redline view (the
majority position) is that liability for murder cannot be based upon the
death of a co-felon from resistance by the victim or police pursuit.

a) Compare—Killing of Innocent Party by Victim or Police

The “agency” theory of felony murder provides that for a felon to be
held liable for felony murder, the killing must have been committed
by the felon or his “agent” (i.e., an accomplice). Thus, if a bystander is
accidentally killed by a police officer during a shootout at the crime
scene, there would be no felony murder liability because a police
officer caused the bystander’s death. (There are limited exceptions in
cases in which the victim was used as a shield or otherwise forced by
the felon to occupy a dangerous place.) Under the “proximate cause”
theory, felons are liable for the deaths of innocent victims caused by
someone other than a co-felon, since they put into operation a series
of events that caused the death of the innocent party.

d. Related Limits on Misdemeanor Manslaughter

Limits similar to those placed on felony murder are placed on involuntary misde-
meanor manslaughter. If the misdemeanor involved is not malum in se, i.e.,
one that involves conduct that is inherently wrong, a death caused during the
commission of a misdemeanor is manslaughter only if death was a foreseeable
64. CRIMINAL LAW

result of the commission of the misdemeanor. A minority of courts limit the

doctrine to malum in se misdemeanors.

EXAMPLE
K is driving on a good road in excellent weather, but is slightly exceeding the
posted speed limit. V dashes from behind a bush into the street and is struck by
K’s car. V dies. Is K guilty of involuntary manslaughter, assuming that speeding
is a misdemeanor? The best answer is no, because the misdemeanor was not
malum in se and death was not a foreseeable result of its commission.

5. Causation

a. General Requirement—Must Be Cause-in-Fact and Proximate Cause

When a crime is defined to require not merely conduct but also a specified
result of that conduct, the defendant’s conduct must be both the cause-in-fact
and the proximate cause of the specified result.

1) Cause-in-Fact
The defendant’s conduct must be the cause-in-fact of the result; i.e., the
result would not have occurred “but for” the defendant’s conduct.

2) Common Law Requirement—“Year and a Day” Rule

The death of the victim must occur within one year and one day from the
infliction of the injury or wound. If it does not occur within this period of
time, there can be no prosecution for homicide, even if it can be shown
that “but for” the defendant’s actions, the victim would not have died as
and when he did. The rule has been sharply criticized by the United States
Supreme Court as “an outdated relic of the common law,” and most of the
states that have reviewed the rule have abolished it.

3) “Proximate” Causation
Problems of proximate causation arise only when the victim’s death occurs
because of the defendant’s acts, but in a manner not intended or antici-
pated by the defendant. The question in such cases is whether the differ-
ence in the way death was intended or anticipated and the way in which it
actually occurred breaks the chain of “proximate cause” causation.

a) All “Natural and Probable” Results Are Proximately Caused

The general rule is that a defendant is responsible for all results that
occur as a “natural and probable” consequence of his conduct, even
if he did not anticipate the precise manner in which they would occur.
All such results are “proximately caused” by the defendant’s act. This
chain of proximate causation is broken only by the intervention of a
“superseding factor.”
 CRIMINAL LAW 65.

b. Rules of Causation

1) Hastening Inevitable Result

An act that hastens an inevitable result is nevertheless a legal cause of that
result.

EXAMPLE
A terminates the life support system of B, resulting in B’s death. B had only
24 hours to live. Can A be held liable for B’s death? Yes. Note that society
may not wish to condemn such an “act of mercy.” Nevertheless, for purpos-
es of causation analysis, A’s act caused B’s death.

2) Simultaneous Acts
Simultaneous acts by two or more persons may be considered indepen-
dently sufficient causes of a single result.

3) Preexisting Condition
A victim’s preexisting condition that makes him more susceptible to death
does not break the chain of causation; i.e., the defendant “takes the victim
as he finds him.”

EXAMPLE
A, with malice aforethought, shoots B in the leg. B bleeds to death before
he can receive medical attention because he is a hemophiliac. A is liable
for murder despite the fact that a person without hemophilia would not
have died from the shooting.

c. Intervening Acts
As a general rule, an intervening act will shield the defendant from liability if the
act is a mere coincidence or is outside the foreseeable sphere of risk created by
the defendant’s act.

EXAMPLES
1) Act of Nature: A is driving negligently. To avoid A’s swerving car, B takes an
unaccustomed route home. B’s car is struck by lightning, and B dies. Can A be
charged with manslaughter? No. The fact that lightning struck B was a mere
coincidence.
2) Act by Third Party: A, intending to kill B, merely wounds him. B receives neg-
ligent medical treatment at a nearby hospital. B dies. Can A be held liable for
B’s death? Yes. Despite improvements in medical care, negligent care remains
a foreseeable risk. A contrary result would follow if B died due to gross negli-
gence or intentional mistreatment.
66. CRIMINAL LAW

3) Acts by the Victim: A, intending to kill B, merely wounds him. B refuses

medical treatment for religious reasons and dies. If modern medical knowledge
could have saved B, can A be held liable for B’s death? Most jurisdictions have
held yes, because A’s act directly created the risk of death and because the re-
fusal of medical care may be found to be foreseeable. This rule may apply even
if the victim acts affirmatively to harm himself. Suppose B, in unbearable pain,
commits suicide. The suicide may be found to be a foreseeable consequence of
A’s actions. Thus, A would be liable for B’s death.

6. Born Alive Rule

Traditionally, an infant had to be “born alive” to be a victim of a homicide crime,
meaning that the infant must be completely expelled from his mother and show
independent signs of vitality. A number of states have abrogated this rule by statute
by extending protection to unborn children as potential victims of homicide crimes.

7. Summary—Analytical Approach
In analyzing any homicide situation, the following questions must be asked and
answered:

a. Did the defendant have any of the states of mind sufficient to constitute malice
aforethought?

b. If the answer to a. is yes, is there proof of anything that will, under any appli-
cable statute, raise the homicide to first degree murder?

c. If the answer to a. is yes, is there evidence to reduce the killing to voluntary

manslaughter, i.e., adequate provocation?

d. If the answer to a. is no, is there a sufficient basis for holding the crime to
be involuntary manslaughter, i.e., criminal negligence or misdemeanor
manslaughter?

e. Is there adequate causation between the defendant’s acts and the victim’s
death? Was the defendant’s act the factual cause of death? Is there anything to
break the chain of proximate causation between the defendant’s act and the
victim’s death?

EXAMPLE
A came upon B, who was letting the air out of a tire on A’s car. When A shouted
at B, B picked up a rock and threw it at A, shouting obscenities. B ran off, but
A went to his car, pulled a gun out, and shot at B, hitting him in the leg. B was
taken to a hospital where he underwent surgery; the wrong gas was used as an
anesthetic, and B died. Generally, wounds of this sort are not deadly. A testifies
under oath that he merely intended to wound B as revenge for causing A the
inconvenience of the flat tire. What is A’s liability?
 CRIMINAL LAW 67.

i. Even if A intended only to wound B with a bullet, this is intent to inflict great
bodily injury and is sufficient for malice aforethought.

ii. If the statute makes premeditated killings first degree murder, A almost certainly
did not premeditate.

iii. While B’s shouted obscenities might not be adequate provocation, a jury could
certainly find that throwing the rock was such provocation.

iv. If the answer to inquiry a. had been no, A’s actions would have constituted
criminal negligence.

v. There is causation. But for A’s shot, B would not have died. Negligent medical
care is not a superseding intervening factor that will break the chain of proxi-
mate causation, unless it is “gross” negligence or intentional malpractice.

D. FALSE IMPRISONMENT
The common law misdemeanor of false imprisonment consisted of:

(i) Unlawful

(ii) Confinement of a person

(iii) Without his valid consent.

1. Confinement
Confinement requires that the victim be compelled either to go where he does not
wish to go or to remain where he does not wish to remain. It is not confinement to
simply prevent a person from going where he desires to go, as long as alternative
routes are available to him. The confinement may be accomplished by actual force,
by threats, or by a show of force. The M.P.C. takes a similar approach in that the
confinement must “interfere substantially” with the victim’s liberty.

2. “Unlawfulness”
Confinement is unlawful unless it is specifically authorized by law or by the consent
of the person.

3. Lack of Consent
Consent to the confinement precludes it from constituting false imprisonment, but
the consent must be freely given by one with capacity to give such consent. Thus,
consent is invalidated by coercion, threats, deception, or incapacity due to mental
illness, substantial cognitive impairment, or youth.

E. KIDNAPPING
At common law, the misdemeanor of kidnapping was the forcible abduction or stealing
68. CRIMINAL LAW

away of a person from his own country and sending him into another. Modern statutes
and the M.P.C. generally expand the definition of kidnapping far beyond the common law
definition, although it usually remains a form of aggravated false imprisonment.

1. General Pattern
Kidnapping is often defined as confinement of a person that involves either:

a. Some movement (i.e., “asportation”) of the victim; or

b. Concealment of the victim in a “secret” place.

2. Aggravated Kidnapping
Modern statutes often contain as a separate offense an aggravated kidnapping
crime. Among the more common forms of this offense are:

a. Kidnapping for Ransom

The abduction or secretion of a person for the purpose of obtaining anything of
value for the return of the person is often defined as aggravated kidnapping.

b. Kidnapping for Purpose of Commission of Other Crimes

Abduction or secretion for the purpose of committing other offenses, such as
robbery, is sometimes defined as aggravated kidnapping.

c. Kidnapping for Offensive Purpose

Abduction or secretion with the intent of harming the person or of committing
some sexual crime with him is sometimes defined as aggravated kidnapping.

d. Child Stealing
Leading, taking, enticing, or detaining a child with the intent to keep or conceal
the child from a guardian or parent is often defined as aggravated kidnap-
ping. Use of “enticement” covers the situation in which a child is persuaded by
promises or rewards to come with the defendant or remain. The consent of a
child to his detention or movement is not of importance, because the child is
incapacitated by age from giving valid consent.

3. Required Movement
Although at common law extreme movement was required, most modern statutes
require only some movement of the person; if such movement occurs, the extent of
the movement is not material. Other statutes require no movement, making confine-
ment (as used in false imprisonment) sufficient.

4. Secrecy
Generally, it is not necessary that kidnapping involve secrecy. Some statutes,
however, require secrecy when the kidnapping is based on confinement rather than
movement of the victim.
 CRIMINAL LAW 69.

5. Consent
As with false imprisonment, free consent given by a person competent to give it
precludes the confinement or movement of a person from being kidnapping. But a
person may be incompetent to give such consent by reason of age (see above) or
mental condition.

6. Relationship to Other Offenses

Statutes that define kidnapping as detention involving movement of the victim mean
that it is arguable that kidnapping often occurs incident to the commission of other
crimes, such as robbery or rape. Some courts—but not all—have held that in such
situations kidnapping (in addition to the robbery or rape) is committed only if the
movement of the victim substantially increases the risk to the victim over and above
that necessarily involved in the other crime. If no such increased risk is involved, the
defendant will be held to have committed only the robbery or rape.

VIII. SEX OFFENSES

A. RAPE
Traditionally, rape (a felony) was the unlawful carnal knowledge of a woman by a man,
not her husband, without her effective consent. Today, a number of states have renamed
“rape” as “sexual assault” and have made such statutes gender neutral.

1. Penetration Sufficient
Rape requires only the penetration of the female sex organ by the male sex organ.
Emission is not necessary to complete the crime.

2. Absence of Marital Relationship

At common law and under the M.P.C., the woman must not have been married to the
man who committed the act. Today, however, most states have either dropped this
requirement where the parties are estranged or separated, or abolished it entirely.

3. Lack of Effective Consent

The intercourse must be without the victim’s effective consent. Consent, even if
given, may be ineffective in several situations.

a. Intercourse Accomplished by Force

If the intercourse is accomplished by actual force, no question concerning
consent is raised.

b. Intercourse Accomplished by Threats

If intercourse is accomplished by placing the victim in fear of great and
immediate bodily harm, it constitutes rape. Any consent obtained by such threats
is ineffective. The failure of the victim to “resist to the utmost” does not prevent
the intercourse from being rape if resistance is prevented by such threats.
70. CRIMINAL LAW

c. Victim Incapable of Consenting

If the victim is incapable of consenting, the intercourse is rape. Inability to
consent may be caused by unconsciousness, by the effect of drugs or intoxi-
cating substances, or by the victim’s mental condition. If the victim is so insane
or cognitively impaired as to be incapable of giving consent, intercourse with
her constitutes rape.

d. Consent Obtained by Fraud

Only in limited circumstances will intercourse with consent obtained by fraud
constitute rape.

1) Fraud as to Whether Act Constitutes Sexual Intercourse

If the victim is fraudulently caused to believe that the act is not sexual inter-
course, the act of intercourse constitutes rape.

EXAMPLE
D persuaded V that what was actually an act of intercourse was medical
treatment accomplished by surgical instruments. Was D guilty of rape? Yes.

2) Fraud as to Whether Defendant Is Victim’s Husband

If the defendant fraudulently persuades the victim that he is her husband, is
the intercourse rape? The best answer is no.

EXAMPLE
D arranges for X to pretend to marry D and V. In fact, X has no authority to
marry persons and there is no marriage. After the sham marriage, D has
intercourse with V. Is D guilty of rape? The best answer is no because there
was consent.

3) Other Fraud
Other kinds of fraud will not make the intercourse rape.

EXAMPLE
D promises to marry V at a later time and thereby induces V to consent to
intercourse. D never intended to marry V. Is D guilty of rape? No. (But D
may be guilty of seduction (see F., infra).)

B. STATUTORY RAPE
1. Victim Below Age of Consent
Statutory rape is the crime of carnal knowledge of a person under the age of
consent. Even if the victim willingly participated, the offense is nevertheless
 CRIMINAL LAW 71.

committed because consent is irrelevant. The age of consent varies from state to
state, generally from 16 to 18.

2. Mistake as to Age
Will a defendant’s reasonable mistake as to the victim’s age prevent liability for statu-
tory rape? For purposes of the examination, the best answer is no, since statutory
rape is a strict liability crime. A second best answer, to be used only if no alterna-
tive making use of the best position is presented, is that a reasonable mistake as to
age will prevent conviction if the defendant reasonably believed the victim was old
enough to give an effective consent.

C. CRIMES AGAINST NATURE

An early (1533) English statute made sodomy—a generic term encompassing many
different acts—a felony, so that it became part of the American common law of crime.
However, because of recent court decisions, it is unlikely that a defendant could be
successfully prosecuted for most of these crimes if the act was consensual. Bestiality,
which is the carnal copulation with an animal by a human being (male or female), is
probably the only crime that survives.

D. ADULTERY AND FORNICATION

Adultery and fornication were not common law crimes in England, but were punished by
the church as ecclesiastical offenses. They are made misdemeanor offenses by statute in
some states.

1. Adultery
Under modern statutes, any person who cohabits or has sexual intercourse with
another not his spouse commits the misdemeanor offense of adultery if:

a. The behavior is open and notorious; and

b. The person is married and the other person involved in such intercourse is not
his spouse; or

c. The person is not married and knows the other person in such intercourse is
married.

2. Fornication
Fornication is sexual intercourse between or open and notorious cohabitation by
unmarried persons.

E. INCEST
Incest is a statutory offense, usually a felony, that consists of either marriage or a sexual
act (intercourse or deviate sexual conduct) between persons who are too closely related.
72. CRIMINAL LAW

1. Degree of Relationship
No uniformity exists among the states. A majority restricts the crime to blood
relations, although a significant number of states include some nonblood relatives.

2. Degree of Responsibility
Some states make a distinction in penalties depending on the parties involved.

F. SEDUCTION OR CARNAL KNOWLEDGE

A statutory felony in many states, the crime of seduction is committed when a male
person induces an unmarried female of previously chaste character to engage in an act
of intercourse on promise of marriage. The M.P.C. includes a section on seduction; it
requires only that there be a false promise of marriage and does not require chastity or
that the female be unmarried.

In many states, subsequent marriage of the parties is a defense, but there is no unifor-
mity as to whether the marriage must be entered into before indictment, after sentence,
or anywhere in between.

G. BIGAMY
Bigamy is a traditional strict liability offense that consists of marrying someone while
having another living spouse. At common law, a defendant is guilty of bigamy even if she
reasonably believes that a purported divorce is valid or that her spouse is dead.

IX. PROPERTY OFFENSES

This section deals with a number of property offenses. Many of these offenses have been
consolidated into state theft statutes. But for purposes of the examination, the greatest
challenge is in distinguishing among three property crimes: larceny, embezzlement, and
false pretenses. There is no difference among the intents required for the three crimes.
The major differences among these crimes are in the kind of misappropriation of the
property.

A. LARCENY
Larceny was the basic common law property offense. It has been significantly modified
by statute in many American jurisdictions. Larceny consists of:

(i) A taking (caption);

(ii) And carrying away (asportation);

(iii) Of tangible personal property;

(iv) Of another;
 CRIMINAL LAW 73.

(v) By trespass;

(vi) With intent to permanently (or for an unreasonable time) deprive the person of his
interest in the property.

1. Property that May Be the Subject of Larceny

Larceny can be committed only by the acquisition of personal property capable of
being possessed and of some value.

a. Realty and Severed Material

Realty and its fixtures are not subjects of larceny. If something is severed
from the realty and taken before it comes into possession of the landowner as
personal property, larceny is not committed. If, however, the landowner gains
possession of the severed material as personalty, a subsequent taking of it is
larceny.

EXAMPLE
A went onto land owned by B and cut down 15 trees. She loaded 10 into her
truck and drove off. B came onto the land, found the remaining five trees, and
placed them in his shed. A returned and took them. Is A guilty of larceny of 15,
10, five, or no trees? Held: A is guilty of larceny of the five trees that came into
B’s possession after their severance from the realty.

b. Services
Traditionally, obtaining services wrongfully cannot give rise to larceny.

c. Intangibles
Intangibles cannot give rise to larceny.

EXAMPLE
A wrongfully obtains entrance to B’s theater and observes a performance of a
play. Has A committed larceny of that performance? Held: No. The right or ability
to observe a play is intangible.

Note that gas and electricity are considered to be personal property that may
be stolen.

d. Documents and Instruments

Documents and instruments were, at common law, regarded as merged with the
matter they represented. Thus, unless they had monetary value in themselves,
they could not be the subject of larceny.
74. CRIMINAL LAW

EXAMPLE
A takes a deed to certain realty and a contract for the sale of cattle from B’s
desk. Is A guilty of larceny? Held: No. The deed “merged” with the realty and
the contract merged with the intangible contract right; thus, there was no lar-
ceny.

Modern statutes have expanded larceny to include written instruments

embodying intangible rights.

2. Property “Of Another”

Larceny is a crime against property. All that is necessary is that the property be taken
from someone who has a possessory interest superior to that of the defendant.

a. Requirement that Taking Be from One with “Possession”

For larceny, the property must be taken out of the victim’s possession, which
means that the property was not already in the defendant’s possession. If the
defendant had possession at the time of the taking (e.g., defendant is a bailee of
the property), the resulting offense is not larceny, although it may be embezzle-
ment. However, if the defendant has “custody” rather than “possession,” her
misappropriation of the property is larceny.

1) Custody vs. Possession

Possession involves much greater scope of authority to deal with the
property than does custody. Generally, the defendant has possession if
she was given discretionary authority over the property and has custody if
she was given only limited authority over the property. If the defendant has
only custody of the property, then another person inevitably has a greater
possessory interest over that property than the defendant.

EXAMPLE
A, while in a store, asks B, the clerk, if she may take a certain suit of cloth-
ing home on approval. B consents. A then asks to see a watch to examine
it; B gives it to her. A then absconds with both items. Have either of them
been taken from B’s possession? Held: The watch was taken from B’s
possession, because A had only the authority to look at it. The suit, on the
other hand, was in A’s possession at the time it was misappropriated, be-
cause of the extent of control B had given A over it.

2) Employees
Low level employees generally have only custody of their employers’
property. They have possession, however, if the employer gives them
especially broad powers over it or if the property is given directly to them
by a third person, without the employer having intermediate possession.
 CRIMINAL LAW 75.

3) Bailee and “Breaking Bulk”

Generally, a bailee has possession. If, however, she opens closed
containers in which the property has been placed by the bailor (i.e., she
“breaks bulk”), the possession is regarded by use of a fiction as returning
to the bailor. If a bailee misappropriates property after breaking bulk, she
takes it from the possession of the bailor and is guilty of larceny if she has
the intent to steal.

b. Possession at the Time of the Taking

In determining whether someone has committed larceny, it is important to deter-
mine who had lawful possession of the property in question at the time of the
taking. If a person has lawful possession when she takes the property, she is not
guilty of larceny, even if she does not own the property. (But she may be guilty of
embezzlement.) By contrast, a person can be guilty of larceny for taking her own
property, if someone else had lawful possession at the time the owner takes it.

EXAMPLE
A owns two cars but only uses one of them. She decides, therefore, to lease
the unused car to B for one year. Six months into the one year lease, A decides
she wants the car back. When B refuses to rescind the lease, A sneaks into B’s
driveway and drives the car away, using her extra key. A is guilty of larceny even
though she is the owner of the car, since B had lawful possession of the vehicle
when A took it.

c. Stolen Property
Stolen property can be the subject of larceny (i.e., a second thief is guilty of
larceny when he takes property from a first thief).

d. Joint Property
At common law, larceny could not be committed by the taking of jointly held
property by one of the joint owners.

e. Lost, Mislaid, and Abandoned Property

Lost or mislaid property is regarded as constructively in the possession of the
owner, and thus if it is found and taken, it is taken from his possession and
larceny might be committed. Abandoned property, however, has no owner and
larceny cannot be committed by appropriating it.

3. Taking
It is essential that the defendant actually obtain control of the property.

a. Destruction or Movement Is Not Sufficient

Mere destruction or movement of the property is not sufficient to constitute a
taking.
76. CRIMINAL LAW

EXAMPLE
D knocked a glass from X’s hand. It fell and broke. Is D guilty of larceny? No.
Although X may have lost possession, D never obtained control. The damage to
the item is irrelevant.

b. Sufficient If Caused to Occur by Innocent Agent

Even if a defendant obtains control of the property through the act of an
innocent agent, it is a taking.

EXAMPLE
D, pointing out a cow in a nearby field, offers to sell it to X for $10. X gives D
the money and then takes the cow. In fact, the cow belonged to Y. Is D guilty of
larceny of the cow? Yes. She obtained control of it by virtue of X, an innocent
agent of hers.

4. Asportation
Larceny requires asportation, i.e., that all parts or portions of the property be moved
and that this movement—which need only be slight—be part of the carrying away
process.

EXAMPLE
A came upon two upside-down wheelbarrows in B’s yard. She turned them both
right side up, and moved one six inches toward the gate. Was she guilty of larceny
of one, two, or no wheelbarrows? Held: Guilty of larceny of one. Merely turning the
wheelbarrows over is not part of the carrying away movement; thus, it is not asporta-
tion. But merely moving the other wheelbarrow a short distance is enough, because
that movement is part of carrying it away.

5. Taking Must Be “Trespassory”

The defendant must take the property from the custody or possession of another in
a trespassory manner, i.e., without the consent of the person in custody or posses-
sion of the property.

a. Taking by Consent Induced by Misrepresentations—“Larceny by Trick”

If the victim consents to the defendant’s taking custody or possession of
the property, but this consent has been induced by a misrepresentation, the
consent is not valid. The resulting larceny is often called “larceny by trick.” A
major difficulty is in distinguishing larceny by trick from false pretenses. (See
C.1., infra.)

6. State of Mind Required—Intent to Permanently Deprive

Generally, larceny requires that at the time of the taking the defendant must have
 CRIMINAL LAW 77.

the intent to permanently deprive the person from whom the property is taken of
his interest in the property. The intent has to exist at the moment of the taking of the
property.

a. Sufficient Intent

1) Intent to Create Substantial Risk of Loss

If the defendant intends to deal with the property in a manner that involves
a substantial risk of loss, this is sufficient for larceny.

2) Intent to Pledge Goods or Sell Them to Owner

It is larceny to take goods with the intent to sell them back to the owner or
to pledge them, because this involves the substantial equivalent of perma-
nent loss or the high risk of permanent loss.

b. Insufficient Intent

1) Intent to Borrow
If the defendant intends to return the property within a reasonable time
and at the time of the taking has a substantial ability to do so, the unauthor-
ized borrowing does not constitute larceny. Note that many states make it
a crime to borrow a motor vehicle, even when the borrower fully intends to
return it (“joyriding”).

2) Intent to Obtain Repayment of Debt

It is not larceny to take money or goods of another if the defendant
honestly believes that she is entitled to them as repayment for a debt of the
other (although the goods must not be worth more than the amount of the
debt). In these situations, the defendant believes the property is “hers” and
therefore lacks an intent to deprive someone else of “his” property.

c. Possibly Sufficient

1) Intent to Pay for Property

If the property taken is not for sale, the fact that the defendant intends to
pay the other for it does not negate the larceny. If the property is for sale
and the defendant has a specific and realistic intent to repay the person,
the taking is not larceny.

2) Intent to Claim Reward

If the defendant takes goods, intending to return them and hoping for a
reward, this is not larceny. However, if she takes them not intending to
return them unless she is assured of a reward, this is larceny because it
creates a substantial risk of loss.
78. CRIMINAL LAW

7. Specialized Application of Larceny Doctrine

There are several situations in which the application of the requirements for larceny
is highly technical.

a. Abandoned or Lost Property

Property abandoned by its owner, i.e., discarded with the intent of giving up all
rights in it, cannot be the subject of larceny. One who finds property that has
merely been lost by its owner can, however, commit larceny of it. Two require-
ments exist:

1) The finder must know or have reason to believe she can find out the
identity of the owner; and

2) The finder must, at the moment she takes possession of the lost property,
have the intent necessary for larceny.

If the finder takes custody of the lost property without the intent to steal,
but later formulates this intent, she has not committed larceny. Nor has she
committed embezzlement, since no trust relationship between the finder and
the owner has been created. (See below.)

b. Misdelivered Property
One to whom property is delivered by mistake may, by accepting the property,
commit larceny of it. Two requirements must be met:

1) The recipient must, at the time of the misdelivery, realize the mistake that
is being made; and

2) The recipient must, at the time she accepts the delivery, have the intent
required for larceny.

c. “Container” Situations

1) Issue Is Whether Defendant Already Has Possession

One subcategory of “misdelivery” cases presents special problems: The
“container” cases, in which the defendant is charged with larceny of an
item that she discovers within another item after she has legitimately taken
possession of the larger item—or the container—from the victim. The
difficult question is whether, at the time she appropriates the item, does
she already have possession? If so, larceny is not committed because the
property is not taken from the possession of another.

2) Larceny May Depend on Whether Parties Intended to Transfer

Container
One solution to this problem is to distinguish among cases according to
 CRIMINAL LAW 79.

whether or not the parties intended the original transfer to be the transfer
of a container, i.e., an item containing other items. If the parties intended
to transfer a container, the recipient is regarded as taking immediate
possession of both the container and its contents. Her later misappropria-
tion of the contents is not larceny, because it occurs at a time when she
already has possession. If, however, both parties did not intend to transfer a
container but rather regarded the items transferred as empty (or otherwise
not involving a transfer of contained items), the recipient does not obtain
possession of the contents until she discovers them. If at the time she
discovers and appropriates them she has the intent to steal, she is guilty of
larceny.

d. “Continuing Trespass” Situations

A trespassory taking of property without the intent required for larceny is not,
of course, larceny. However, if a defendant takes property with a wrongful state
of mind but without the intent to steal, and later, while still in possession of it,
forms the intent to steal it, the trespass involved in the initial wrongful taking is
regarded as “continuing” and the defendant is guilty of larceny. This doctrine
has no application if the defendant’s initial taking of the property, although
trespassory, was not motivated by a wrongful state of mind.

EXAMPLE
A took X’s umbrella from X’s possession without X’s permission, intending to
use the umbrella and return it the next day. The next morning when A awoke,
she examined the umbrella carefully and decided to keep it. Is A guilty of lar-
ceny of the umbrella? Yes. The larceny took place when A formed the intent to
steal it. Since her initial possession was wrongful, the trespass continued until
she formed the intent to steal. On the other hand, if A had taken X’s umbrella by
mistake, and later decided to keep it after discovering her mistake, the doctrine
would not apply because her initial taking was done with an innocent state of
mind.

B. EMBEZZLEMENT
Embezzlement was not originally a common law crime. Intended to plug the gaps in the
law of larceny, it was made a misdemeanor by statute in 1799 and is regarded as part of
American common law. Modern statutes often distinguish between grand embezzlement
(a felony) and petit embezzlement (a misdemeanor) based upon the value of the property
embezzled. Although variously defined in different jurisdictions, embezzlement generally
requires:

(i) The fraudulent;

(ii) Conversion;
80. CRIMINAL LAW

(iii) Of property;

(iv) Of another;

(v) By a person in lawful possession of that property.

1. Distinguished from Larceny

a. Manner of Obtaining Property

In embezzlement, the misappropriation of the property occurs while the defen-
dant has lawful possession of it. In larceny, it generally occurs at the time the
defendant obtains the property by a trespassory taking from someone who had
a right of possession that was superior to the defendant’s.

EXAMPLE
A was foreman of a construction crew. One day, he took a tool used by the crew
to his home. The next day, he was fired. On his way out, he took another tool.
Was he guilty of embezzlement of one, two, or no tools? Held: Only of the first
tool, which he converted while it was in his lawful possession by virtue of his
employment. He had no right to possession of the tools at the time he took the
second.

b. Manner of Misappropriation
Larceny requires caption and asportation with the intent to permanently deprive.
Embezzlement requires intentional conversion. (See below.)

2. Conversion
The conversion required by embezzlement requires only that the defendant deal
with the property in a manner inconsistent with the trust arrangement pursuant to
which he holds it. No movement or carrying away of the property is required. The
conversion need not result in direct personal gain to the defendant.

EXAMPLE
A trustee who siphons off trust fund money in order to donate to a favorite charity is
as guilty of embezzlement as the trustee who uses the converted funds to pay his
overdue gambling debts.

3. Property
Embezzlement statutes are often worded in terms of “property that may be subject
to larceny”; i.e., real property and services may not be embezzled. Some relatively
expansive statutes, however, make embezzlement of real property a crime.
 CRIMINAL LAW 81.

EXAMPLE
A, an agent with apparent authority to sell B’s real estate, fraudulently transfers the
title to a bona fide purchaser. Is A guilty of embezzlement? No, under the traditional
embezzlement statute. Yes, under the more expansive statute.

4. Requirement that Property Be that “Of Another”

Embezzlement requires that the property converted be that of someone other than
the converter. Therefore, a person who borrows money, converts the sum to his own
use, and subsequently fails to repay it is not guilty of embezzlement.

5. Fraudulent Intent
A defendant must intend to defraud for a conversion to become embezzlement. This
appears to be the functional equivalent of larceny’s specific intent to permanently
deprive.

a. Intent to Restore
If the defendant intended to restore the exact property taken, it is not embez-
zlement. But if he intended to restore similar or substantially identical
property, it is embezzlement, even if it was money that was initially taken and
other money—of identical value—that he intended to return.

b. Claim of Right
As in larceny, embezzlement is not committed if the conversion is pursuant to
a claim of right to the property, as where it is retained for payment of a debt
honestly believed to be owed. The fact that the defendant retained the property
openly tends to establish a claim of right.

6. Necessity for Demand for Return

If it is clear that there has been a conversion of the property, the victim need not
make a demand that it be returned. If, however, there is doubt as to the existence of
a conversion, a demand by the owner for return and a refusal to return by the defen-
dant may be necessary.

7. Limitation to Property Entrusted

Some states limit embezzlement to the fraudulent conversion of property “entrusted”
or “delivered” to the embezzler. These states would not punish one who finds lost
property and, while in lawful possession of it, fraudulently converts it.

C. FALSE PRETENSES
The offense of false pretenses was created by English statute in 1757, and consequently
is part of the common law in those American states that use 1776 as the determining
date. Like larceny and embezzlement, most jurisdictions distinguish grand false pretenses
(a felony) from petit false pretenses (a misdemeanor). The offense of false pretenses
generally consists of:
82. CRIMINAL LAW

(i) Obtaining title;

(ii) To the property of another;

(iii) By a knowing (or, in some states, an intentional) false statement of past or existing
fact;

(iv) With intent to defraud the other.

1. “Larceny by Trick” Distinguished

False pretenses differs from larceny by trick in what is obtained. If only custody of
the property is obtained by the defendant, the offense is larceny by trick. If title is
obtained, the offense is false pretenses. What is obtained depends upon what the
victim intended to convey to the defendant.

EXAMPLE
D asked X if X would sell a car and offered as payment what was purported to be
a demand note signed by Y. D falsely represented that the note was one executed
by Y; in fact, D himself had forged it. X agreed to sell the car but told D that the sale
would not be final until she had collected the amount of the note from Y. X then per-
mitted D to use the car until Y could be located. D drove off in the car. Has he com-
mitted larceny or false pretenses? Larceny, because X did not intend to transfer title
to D. X intended only to transfer possession pending collection on the note.
COMPARE
Same facts as above, except the note purportedly signed by Y is due in 30 days
rather than on demand. Based on Y’s good credit, X agreed to convey full title to the
car in exchange for the note. D drove off in the car. D has committed false pretenses
rather than larceny.

2. Misrepresentation Required
There are several limits upon the misrepresentations required for false pretenses.
(These also apply to larceny by trick.)

a. False Representation Concerning Matter of Fact

The defendant must have created a false impression as to the matter of fact. If
his statements reasonably construed constitute only an opinion or a “puffing,”
they are not representations. It is not misrepresentation to fail to correct what
is known to be a mistaken belief that the victim holds, if the defendant was not
responsible for creating that belief, or the defendant has no fiduciary duty to the
aggrieved party.

b. Misrepresentation of Past or Existing Fact

Traditionally, the defendant’s misrepresentation must have related to a past or
 CRIMINAL LAW 83.

present fact, and false promises to do something in the future, even without the
present intent to perform, were not sufficient. However, under the M.P.C. and the
modern prevailing view, any false representation suffices for the crime of false
pretenses, including a false promise to perform in the future.

3. Requirement that Representation Be the “Cause” of Obtaining Property

The victim must actually be deceived by, or act in reliance on, the misrepresentation,
and this must be a major factor (or the sole cause) of the victim passing title to the
defendant.

4. State of Mind Required

The defendant must have known the statement to be false when he made it; however,
most states will find that the defendant “knew” of the falsity of any statements when,
after being put on notice of the high probability of the statement’s falsity, he deliber-
ately avoided learning the truth. On the other hand, if he believes the statement to
be true, he has not committed false pretenses (even if his belief was unreasonable).
The defendant also must have intended that the victim rely on the misrepresentation.
Subjecting the victim to a risk of loss will suffice for the intent to defraud.

EXAMPLE
A obtained money from B by representing that he was securing it by a first mortgage
on certain property. He intended to pay back the loan. The mortgage actually given
was, as A knew, only a second mortgage. Is A guilty of false pretenses? Held: Yes.
He knowingly subjected B to a substantially greater risk of loss of the money than B
was aware of. This was a sufficient intent to defraud.

5. Related Crimes
Many states have enacted specific legislation covering certain conduct that resem-
bles the crime of false pretenses but is sufficiently different to warrant separate
consideration.

a. Bad Check Legislation

Almost all jurisdictions have created a new and separate statutory crime prohib-
iting the giving of a no-account or insufficient funds check with the intent to
defraud.

b. Abuse or Misuse of Credit Card

Most jurisdictions have enacted legislation making it a misdemeanor to
knowingly obtain property by means of a stolen, forged, canceled, revoked, or
otherwise unauthorized credit card.

D. ROBBERY
Robbery, a felony in all jurisdictions, consists of the following:
84. CRIMINAL LAW

(i) A taking;

(ii) Of personal property of another;

(iii) From the other’s person or presence;

(iv) By force or intimidation;

(v) With the intent to permanently deprive him of it.

Thus, robbery is basically an aggravated form of larceny in which the taking is accom-
plished by force or threats of force.

1. Force or Threats Necessary

If force is used, it obviously must be sufficient to overcome the victim’s resistance. If
threats are used, they must be threats of immediate death or serious physical injury
to the victim, a member of her family, a relative, or a person in her presence at the
time. A threat to do damage to property will not suffice, with the exception of a threat
to destroy the victim’s dwelling house.

2. Property Must Be Taken from Person or Presence of Victim

The property must be taken from some location reasonably close to the victim, but it
need not be taken from her person. Property is in the victim’s presence if it is in her
vicinity. Property in other rooms of the house in which the victim is located is in her
presence.

3. Force or Threats Must Be Used to Obtain Property or Immediately Retain It

The force or threats must be used either to gain possession of the property or to
retain possession immediately after such possession has been accomplished.

EXAMPLE
A reached into B’s pocket without B’s knowledge and removed B’s wallet. B felt the
wallet slip out, turned around, and grabbed A as he moved away. A struck B, render-
ing her unconscious, and ran. Is A guilty of robbery? Held: Yes. The force was used
to prevent the victim from immediately apprehending A and regaining the property.
Thus, it is sufficiently related to the taking.

4. Aggravated Robbery
Statutes often create a form of aggravated robbery, usually defined as robbery
accomplished with a deadly weapon.

E. EXTORTION
Extortion is an offense that generally has been expanded by modern statutes far beyond
its initial common law definition.
 CRIMINAL LAW 85.

1. Common Law Definition—Collection of Unlawful Fee

The common law misdemeanor of extortion consisted of the corrupt collection of an
unlawful fee by an officer under color of his office.

2. Modern Definition—Blackmail
In many modern statutes, extortion (or blackmail) is defined as obtaining property
from another by means of certain oral or written threats. The prohibited threats often
include threats to do physical harm to the victim or others, or threats to damage the
victim’s property. Under some statutes, the crime is completed when the threats
are made with the intent to obtain money or something of value; the threat is the
essence of the offense. Under other statutes, the money or property must actually
be obtained by means of the threats.

a. Threats Need Not Involve Immediate or Physical Harm

Extortion may be committed by threats that are not sufficient for robbery. To
constitute extortion, the threats do not need to involve immediate or physical
harm.

b. Property Need Not Be in Victim’s Presence

To constitute extortion, it is generally not necessary that the property be
obtained from the victim’s person or presence (as is necessary for robbery).

F. RECEIPT OF STOLEN PROPERTY

The common law misdemeanor of receipt of stolen property is substantially identical to
the modern offense. The elements of the crime are:

(i) Receiving possession and control;

(ii) Of “stolen” personal property;

(iii) Known to have been obtained in a manner constituting a criminal offense;

(iv) By another person;

(v) With the intent to permanently deprive the owner of his interest in the property.

1. Possession
Manual possession of the property, while sufficient for “receiving,” is not neces-
sary. It is also receiving if: (1) the thief places the stolen property in a place that the
defendant has designated; or (2) for profit, the defendant arranges for a sale of the
property by the thief to a third person.

2. “Stolen” Property
Most jurisdictions define “stolen” property broadly to include property obtained
by commission of any of the property offenses. However, the property must have
86. CRIMINAL LAW

“stolen” status at the time it is received by the defendant. Thus, if stolen goods have
been recovered by the police and are used in an undercover operation with the
owner’s permission, the goods are not stolen and the defendant cannot be guilty
of receipt of stolen property; however, the defendant may be guilty of attempt to
receive stolen goods (see IV.D.3.a.2)a), supra).

G. STATUTORY CHANGES IN PROPERTY ACQUISITION OFFENSES

Modern criminal codes and the M.P.C. have substantially altered the common law. Among
the major changes are the following:

1. Consolidation of Offenses into Theft

There is a growing tendency to consolidate larceny, embezzlement, false pretenses,
and receipt of stolen goods under the single heading: Theft. It is important to note
that theft is a modern statutory crime, not a traditional common law offense.

2. Expansion of Property Subject to Larceny (and Other Offenses)

The things subject to the offenses have often been expanded to cover services,
documents, and intangibles, as well as joint property.

3. Rejection of Asportation for Larceny

Some jurisdictions have rejected the requirement of asportation and require only
that “control” of property be obtained.

4. Rejection of Technicalities of Trespass Requirement

A number of jurisdictions have replaced the detailed technicalities of the trespass
requirement by a simplified requirement that the defendant have obtained unauthor-
ized “control” over the property.

H. FORGERY
At common law, forgery and uttering a forged instrument are separate offenses.

1. Forgery
Forgery consists of the following:

a. Making or altering;

b. Of a false writing;

c. With intent to defraud.

2. Uttering a Forged Instrument

Uttering consists of:

a. Offering as genuine;
 CRIMINAL LAW 87.

b. An instrument that may be the subject of forgery and is false;

c. With intent to defraud.

3. Writings that Are Possible Subjects of Forgery

Any writing that has apparent legal significance is a potential subject of forgery.
Writing includes typewritten, printed, engraved, and similar material.

EXAMPLE
A drafts and signs what purports to be a letter of introduction from a local physician
and a letter of recommendation from a firm represented as a former employer. Both
are false. Has A committed one, two, or no forgeries? Held: One forgery. The recom-
mendation has apparent legal significance, because one who recommends another
may incur legal liability if his recommendation is false. Thus, it can be the subject of
forgery. But the letter of introduction has only social significance, and cannot be the
subject of forgery.

Writings that derive their value from the mere fact of their existence—historical or
artistic value—cannot be the subject of forgery.

EXAMPLE
A painted a picture and signed it “Rembrandt.” She then sold it to X, representing it
as an original “Rembrandt.” Is A guilty of forgery? No, because the picture and sig-
nature derive their value from the fact of their existence. (Note: A did commit false
pretenses by the sale.)

4. Required Falsity—Writing Itself Must “Be a Lie”

It is not sufficient that the writing contains a false statement. The writing must repre-
sent itself to be something that it is not.

EXAMPLES
1) A, in charge of a warehouse, issues a warehouse receipt that represents that
the warehouse has received certain grain. It has not. Is this forgery? Held: No. The
warehouse receipt contains a misrepresentation. But it is what it purports to be, i.e.,
a warehouse receipt issued by one with authority to issue it.
2) B obtains blank receipts from A’s warehouse, fills them in so they represent that
certain grain has been received, and signs A’s name. Is this forgery? Held: Yes. The
instruments purport to be what they are not, i.e., warehouse receipts issued by one
with authority to do so.
88. CRIMINAL LAW

5. Required “Making”

a. Entire Instrument or Material Alteration

Forgery can be committed by the “making” of an entire instrument. It can also,
however, be committed by altering an existing instrument, if the alteration
is “material,” that is, if it affects a legal right. Alteration may be in the form of
changing some of the writing, adding to the existing writing, removing some of
the existing writing, or improperly filling in blanks left by the signer.

b. Fraudulently Obtaining Signature of Another

If the defendant fraudulently causes a third person to sign a document that the
third person does not realize he is signing, forgery has been committed. But
if the third person realizes he is signing the document, forgery has not been
committed even if the third person was induced by fraud to sign it.

6. Required Intent—Intent to Defraud

The defendant must have had the intent to defraud, although no one need actually
have been defrauded. It is not necessary that she intended to do pecuniary harm; it
is sufficient if she intended to harm another in any way.

I. MALICIOUS MISCHIEF
The common law misdemeanor of malicious mischief consists of:

(i) Malicious;

(ii) Destruction of, or damage to;

(iii) Property of another.

1. Damage Required
Destruction of the property is not required for malicious mischief. All that is neces-
sary is that some physical damage be done that impairs the utility of the property or
materially diminishes its value.

2. State of Mind Required—Malice

Malice requires no ill will or hatred. It does, however, require that the damage or
destruction have been intended or contemplated by the defendant.

X. OFFENSES AGAINST THE HABITATION

A. BURGLARY
At common law, the elements of burglary are:

(i) A breaking;
 CRIMINAL LAW 89.

(ii) And entry;

(iii) Of the dwelling;

(iv) Of another;

(v) At nighttime;

(vi) With the intent of committing a felony therein.

1. Breaking Required

a. Actual Breaking—Minimal Force Sufficient

Actual breaking requires some use of force to gain entry, but minimal force is
sufficient; opening a closed but unlocked door constitutes a breaking. If force
is used to enlarge an opening so that entry can be made, the traditional rule
was that this did not constitute a breaking. Under the better view, however, a
breaking has occurred because force was used to gain entry.

EXAMPLE
D, intending to steal a valuable painting inside V’s house, approaches V’s door.
The door is open about six inches. D pushes it fully open and enters. Is D guilty
of burglary? The best answer is yes, since force—although only minor force—
was used to gain entry.

b. Constructive Breaking
Constructive breaking consists of gaining entry by means of fraud, threat, or
intimidation, or by use of the chimney.

EXAMPLE
P wants to get into V’s apartment to commit a felonious assault on V, but V’s
door is securely locked. P knocks and when V asks who it is, P responds, “I am
a friend of your brother and he asked me to deliver this message to you.” V
then unlocks the door and invites P in. P enters. P has never met V’s brother. Is
P guilty of burglary? Yes. Since entry was obtained by fraud, this is constructive
breaking.

c. Requirement of Trespass—Consent to Enter

A breaking requires a trespass, so that if the defendant had the consent of the
resident to enter, his use of force to gain entry is not a breaking. The existence
of consent to enter during limited periods, however, will not prevent entry
by force at other times from being a breaking. Moreover, if the consent was
procured by fraud or threats, this is a constructive breaking.
90. CRIMINAL LAW

d. Requirement that Breaking Be “Of the House”

The breaking must be to effect entry into the structure or some separately
secured subportion of it. Thus, it is sufficient that the defendant broke to enter
a closed closet or wall safe within a dwelling, but it is not enough if he merely
breaks open a box or trunk within the dwelling.

e. Breaking to Exit Insufficient

The breaking must be to gain entry. It is not burglary to hide in a dwelling, with
the intent to commit a felony, and then break to get out of the dwelling.

2. Entry Required
Entry is made by placing any portion of the body inside the structure, even momen-
tarily. Insertion of a tool or inanimate object into the structure is entry if it is inserted
for the purpose of accomplishing the felony. It is not sufficient if it is inserted for
purposes of gaining entry.

EXAMPLES
1) A approached B’s dwelling and shot a bullet through his window, intending to kill
B. Has A committed burglary? Held: Yes. He has inserted an inanimate object into
the dwelling by breaking for the purpose of committing the felony.
2) Z intends to go into V’s house and steal valuable jewels from a safe. He care-
fully cuts out a small portion of glass from a window and reaches in with his hand to
unlock the window. At that point he is apprehended. Is Z guilty of burglary? Yes. His
hand had “entered” the dwelling.

3. “Dwelling”—Used for Sleeping Purposes

A structure is a dwelling if it is used with regularity for sleeping purposes.

a. Used for Other Purposes—Still a Dwelling

A structure remains a dwelling even if it is also used for other purposes, such as
conducting a business.

b. Temporary Absence of Inhabitants—Still a Dwelling

Temporary absence of those dwelling in a structure will not deprive it of its
character as a dwelling. It is not a dwelling, however, before anyone has moved
in, even if it was built for use as a dwelling, nor does it remain a dwelling after
the last dweller has moved out with no intent to return.

4. “Of Another”—Occupancy Is Determinative

The requirement is that the structure be used as a dwelling by someone other than
the defendant. Occupancy rather than ownership is material. An owner can commit
burglary of his own structure if it is rented and used as a dwelling by others.
 CRIMINAL LAW 91.

5. Requirement of Nighttime
Burglary could be committed only during the nighttime, defined as that period during
which the countenance of a person could not be discerned by natural light.

6. Required Intent—Intent to Commit a Felony at Time of Entry

The defendant must have intended to commit a felony. It is not necessary that this
be carried out. It is, however, essential that the intent exist at the time of entry; if the
intent is formed after entry is completed, burglary is not committed.

7. Modern Statutory Changes

Modern statutes have modified the common law definition of burglary in a variety of
ways that differ among jurisdictions. Some of the most common are as follows:

a. Abandonment of Requirement of Breaking

In many jurisdictions, it is sufficient that the defendant entered the structure,
even if he did not break to gain entry.

b. Remaining in a Structure
It is often a burglary to remain concealed in a structure with the intent to commit
an offense.

c. Broadening Structures that Can Be Burglarized

The description of structures that can be burglarized is often expanded beyond
dwellings and sometimes beyond structures to include yards and cars.

d. Elimination of Nighttime Requirement

The requirement that entry be at nighttime is often abandoned, although
burglary at nighttime is often assigned a more severe penalty than other
burglaries. Nighttime is often defined by statute in terms of sunset and sunrise.

e. Intent to Commit Misdemeanor Theft

The intent necessary is often expanded to make it sufficient that the defendant
intended to commit any theft, even if it was misdemeanor theft.

B. ARSON
At common law, arson consists of:

(i) The malicious;

(ii) Burning;

(iii) Of the dwelling;

(iv) Of another.
92. CRIMINAL LAW

1. Requirement of a “Burning”

a. Necessity of Fire
At common law, the required damage (see below) must be caused by fire;
damage caused by an explosion does not constitute arson.

b. Damage Required—“Scorching” (Insufficient) vs. “Charring” (Sufficient)

Traditionally, destruction of the structure or even significant damage to it is
not required to complete the crime of arson. But mere blackening by smoke or
discoloration by heat (scorching) is not sufficient. There must be some damage
to the fiber of the wood or other combustible material; this is generally stated as
the rule that “mere charring is sufficient.”

2. “Dwelling”
At common law, dwelling was defined for arson as it was for burglary. (See above.)
Most states by statute extend arson to structures other than dwellings. (Note:
Questions on the Multistate Exam that are testing on other arson issues (e.g., malice)
will often assume without saying that the jurisdiction’s arson law applies to structures
other than dwellings.)

3. “Of Another”—Ownership Immaterial

Arson, like burglary, is a crime against the habitation. Thus, the structure had to be
used as a dwelling by another; ownership was not material, even if the defendant
himself was the owner. (Note: At common law, the burning of one’s house was the
misdemeanor of “house-burning” if other dwellings were nearby.)

4. State of Mind Required—Malice

The burning does not have to be with ill will or for any particular motive. No specific
intent is required. On the other hand, it is not sufficient that the burning was
accidental, even if the defendant was negligent. All that malice requires is that the
defendant have acted with the intent or knowledge that the structure would burn, or
with reckless disregard of an obvious risk that the structure would burn.

5. Related Offenses

a. Houseburning
The common law misdemeanor of houseburning consists of:

1) Malicious (as defined in arson);

2) Burning;

3) Of one’s own dwelling;

4) If the structure is situated either:

 CRIMINAL LAW 93.

a) In a city or town; or

b) So near to other houses as to create a danger to them.

b. Arson with Intent to Defraud an Insurer

At common law, it was not arson to burn one’s own dwelling for purposes of
fraudulently collecting the insurance on it. But this is often made an offense by
modern statutes.

6. Modern Statutory Changes

Like statutory changes for burglary, modern arson statutes (including the M.P.C.)
have modified the common law rules, usually to expand potential criminal liability.
Most states have expanded the definition of arson to include damage caused by
explosion, and expanded the types of property that may be destroyed to include
commercial structures, cars, trains, etc.

XI. OFFENSES INVOLVING JUDICIAL PROCEDURE

A. PERJURY
A misdemeanor at common law, perjury consisted of the willful and corrupt taking of a
false oath in regard to a material matter in a judicial proceeding.

1. Materiality
Materiality is an element of this offense, which must be alleged in the indictment and
proved by the prosecution. The statement is material if it might affect some phase or
detail of the trial, hearing, declaration, etc.

2. Contradictory Statements
If a witness has made two contradictory statements at the same proceeding and
admits, before the end of the proceeding, that one of the statements is false, he
cannot be prosecuted for having made the false statement. This is to encourage
witnesses to correct any false statements they may have made before substantial
damage is caused.

3. Civil Liability
In litigation brought under 42 U.S.C. section 1983 (Civil Rights Act), all witnesses—
including police officers—are absolutely immune from civil liability based on their
testimony (i.e., alleged perjury) in judicial proceedings. [Briscoe v. LaHue, 460 U.S.
325 (1983)]

B. SUBORNATION OF PERJURY
A separate offense at common law, subornation of perjury consists of procuring or
inducing another to commit perjury. In some states, this is not part of the perjury statute.
94. CRIMINAL LAW

C. BRIBERY
The common law misdemeanor of bribery consisted of the corrupt payment or receipt of
anything of value in return for official action. Under modern statutes, it can be a felony,
and it may be extended to classes of persons who are not public officials (e.g., athletes).
Either the offering of a bribe or the taking of a bribe may constitute the crime.

1. Mutual Criminal Intent Unnecessary

It is not necessary that there be mutual criminal intent on the part of both the person
tendering the bribe and the recipient.

2. Failure to Report a Bribe

Some statutes also make it a misdemeanor offense to fail to report a bribe.

D. COMPOUNDING A CRIME
At common law, the misdemeanor of compounding a crime consisted of entering into an
agreement for valuable consideration to not prosecute another for a felony or to conceal
the commission of a felony or whereabouts of a felon. Under modern statutes, the defini-
tion remains essentially the same, except that it refers to any crime (not only felonies). A
few states make it a felony offense.

E. MISPRISION OF A FELONY
At common law, the misdemeanor of misprision of a felony consisted of the failure—by
someone other than a principal or accessory before the fact—to disclose or report knowl-
edge of the commission of a felony. Misprision was distinguished from compounding a
crime in that no passage of consideration was required for the former. Today, most juris-
dictions do not recognize the crime of misprision of a felony. In these jurisdictions, there-
fore, a person is under no obligation to report a crime.
 CRIMINAL LAW CHARTS 1.

CLASSIFICATION OF CRIMES

Was the crime committed Yes

prior to or in preparation
for a more serious offense?
Solicitation Attempt Conspiracy
(see inchoate crimes chart)
No

Was the crime committed Property Was the crime against the habitation
against property or against or against personal property?
a person?

Habitation Personal Property

Person

Burglary Larceny
Did a death result?
Arson Embezzlement
Yes No
False Pretenses
Murder Battery
Robbery
Manslaughter Assault

Felony False (see property crimes chart)

Murder Imprisonment

Kidnapping

Rape

(see homicide crimes chart)

CMR Chart
2. CRIMINAL LAW CHARTS

DEFENSES NEGATING CRIMINAL CAPACITY

Defense Elements Applicable Crimes

Insanity Meet applicable insanity test Defense to all crimes
(M’Naghten, irresistible
impulse, Durham, or M.P.C.)

Intoxication
Voluntary Voluntary, intentional taking Defense to specific intent
of a substance known to crime if intoxication prevents
be intoxicating formation of required intent

Involuntary Taking intoxicating substance Treated as mental illness (i.e.,

without knowledge of its apply appropriate insanity
nature, under duress, or test); may be a defense to
pursuant to medical advice all crimes

Infancy Defendant under age 14 Common law: Under age

at common law; under seven, absolute defense to all
modern statutes, defendant crimes; under 14, rebuttable
under age 13 or 14 presumption of defense.
Modern statutes: Defense to
adult crimes but may still be
delinquent

Diminished Capacity As a result of mental defect Most states with this

(some states) short of insanity, defendant defense limit it to specific
did not have the required intent crimes
mental state to commit
the crime

CMR Chart
 CRIMINAL LAW CHARTS 3.

JUSTIFICATION DEFENSES

Defense Amount of Force Allowed

Nondeadly Force Deadly Force

Self-Defense If person reasonably believes Only if person reasonably
force is necessary to believes that he is threatened
protect self with death or great bodily harm

Defense of Others If person reasonably believes Only if person reasonably

force is necessary to protect believes that other is threatened
other person with death or great bodily harm

Defense of Dwelling If person reasonably believes Only if person inside reasonably

force is necessary to prevent or believes he is threatened or to
end unlawful entry prevent felony inside

Defense of Other If person reasonably believes Never

Property force is necessary to defend
property in his possession (but if
request to desist would suffice,
force not allowed)

Crime Prevention If person reasonably believes Only to extent person reasonably

force is necessary to prevent believes deadly force is
felony or serious breach of peace necessary to prevent
or end felony risking human life

Effectuate Arrest
Police If officer reasonably believes Only to prevent escape of felon,
force is necessary to arrest and police officer reasonably
believes that the suspect
threatens death or great
bodily harm

Private Person If crime in fact committed and Only to prevent escape of person
reasonable belief that this person who actually committed felony,
committed it and person reasonably believes
that the suspect threatens death
or great bodily harm

Resisting Arrest If improper arrest Only if improper arrest and

defendant does not know
arrester is a police officer

Necessity If reasonably necessary to avoid Never

greater harm

CMR Chart
4. CRIMINAL LAW CHARTS

HOMICIDE CRIMES

Did defendant’s Did the killing Was the crime Yes

Yes Yes Apply felony
acts cause the occur during a dangerous
the commission murder rules
victim’s death? felony?
of a crime?
No No
No

No homicide Did defendant Apply

liability have the misdemeanor
intent to kill or manslaughter
inflict great rules
bodily harm, or
recklessly
disregard
great risk to
human life?
No
Yes

Did defendant Did defendant

act with Yes Involuntary
act in response manslaughter
to adequate criminal
provocation? negligence?
No
No
Yes

No homicide
Voluntary Murder liability
manslaughter

Note: This chart will lead you to the prima facie homicide that defendant committed. You must
then decide whether any defenses apply.

CMR Chart
 CRIMINAL LAW CHARTS 5.

PROPERTY CRIMES

Crime Activity Method Intent Title

Larceny Taking and Without With intent Title does
asportation of consent or to steal not pass
property from with consent
possession of obtained
another by fraud
person

Embezzlement Conversion of Use of With intent to Title does

property held property in defraud not pass
pursuant to a way
a trust inconsistent
agreement with terms
of trust

False Obtaining title By consent With intent to Title passes

Pretenses to property induced by defraud
fraudulent
misrepresenta-
tion

Robbery Taking of By force or With intent to Title does

property from threat of force steal not pass
another’s
presence

CMR Chart
 CRIMINAL LAW MULTIPLE CHOICE QUESTIONS 1.

CRIMINAL LAW MULTIPLE CHOICE QUESTIONS

INTRODUCTORY NOTE
You can use the sample multiple choice questions below to review the law and practice your under-
standing of important concepts that you will likely see on your law school exam. More questions are
available through the 1L and 2L/3L Mastery programs on the BARBRI website.

Question 1 Question 2

The defendant pointed a loaded gun and shot After drinking heavily at his bachelor party
at the victim. The bullet, however, missed the at a beachfront resort, the groom was helped into
intended victim, but struck a bystander in the a speedboat by a few of his friends and trans-
stomach. The bystander fully recovered. In a ported to a small island off the coast as a joke.
subsequent prosecution for attempted murder of They left him on the island, which had a small
both the victim and the bystander, the defendant shelter but no communication facilities, without
testified that he had wanted only to scare the telling anyone else. As a result, the groom
victim. missed his wedding the next day. One of the
participants was charged with kidnapping, which
Assuming that the jury believes this testi- is defined in the jurisdiction as the unlawful
mony, the defendant may be convicted of movement or concealment of a person without
attempted murder as to whom? his consent. In his defense, the participant claims
that he was so intoxicated that he did not realize
(A) The victim. what he was doing, and that the groom had
consented to being left on the island.
(B) The bystander.
Which of the following would NOT be
(C) Both the victim and the bystander. helpful to his defense?
(D) Neither the victim nor the bystander. (A) The groom was not legally intoxicated that
evening.

(B) Kidnapping is a general intent crime in the

jurisdiction.

(C) Kidnapping is a specific intent crime in the

jurisdiction.

(D) The participant had overheard the groom

say that he was not sure about going
through with the wedding.
2. CRIMINAL LAW MULTIPLE CHOICE QUESTIONS

Question 3 Question 4

The defendant and the victim got into a minor An obsessive fan was heartbroken when her
verbal altercation, concluding with the defendant favorite actor announced his engagement to
lightly shoving the victim. The victim lost his a well-known actress. The fan waited for the
balance and struck his head on the pavement, couple outside of a nightclub. When they arrived,
causing serious bodily injury. The defendant was the fan raised a gun and fired it at the actress,
charged with battery, which is defined in the but as she fired, the actor’s bodyguard spotted
jurisdiction as “purposely or knowingly causing the gun and knocked it to one side. The bullet
serious bodily injury to another.” grazed the bodyguard’s hand, causing minor
injuries, and lodged in the actor’s chest. Through
Should the defendant be convicted of battery? prompt emergency medical treatment, the actor
survived the shooting.
(A) No, because the defendant did not know
that the victim would be seriously injured. Of whom may the fan be charged with
attempted murder?
(B) No, because the defendant did not strike a
serious blow to the victim. (A) The actress.

(C) Yes, because the defendant purposely (B) The actor.

shoved the victim.
(C) The actress and the actor.
(D) Yes, because the victim suffered serious
bodily injury. (D) The actress, the actor, and the bodyguard.
 CRIMINAL LAW MULTIPLE CHOICE QUESTIONS 3.

Question 5 Question 6

A husband who believed that his wife was A career burglar and his friend planned to
having an affair with his brother hired an steal money from a retail store’s safe by renting
arsonist to burn down the brother’s house. They an apartment above the store and drilling
planned for the husband to take his brother to through the floor to gain access to the store.
a ballgame so that the arsonist would be able They progressed with their drilling to the point
to set the house on fire without detection. After that the only thing left to do was kick the floor
the husband and brother left for the ballgame, to open the hole. However, on the evening that
however, the arsonist decided to abandon the they were going to break into the store, the
plan and immediately left town without doing friend got cold feet. He told the burglar that he
anything further. When the husband returned was not going through with the plan and left the
from the ballgame with the brother, he saw the apartment. The burglar decided to go through
house still standing and blurted out what was with the plan anyway, but he was caught by store
supposed to have happened. The husband and security while he was trying to break open the
the arsonist were arrested and charged with safe. The jurisdiction follows the modern rules
conspiracy to commit arson. At the arsonist’s for attempt liability.
trial, his attorney argued that he was innocent
of the conspiracy because he decided not to go If the burglar and the friend are charged with
ahead with the plan, and nothing criminal had in conspiracy and attempted larceny, what will be
fact occurred. the likely result?

At common law, how should a jury find the (A) The burglar will be convicted of both
arsonist? conspiracy and attempted larceny, and the
friend will be convicted of conspiracy only.
(A) Not guilty of conspiracy, because going to
a ballgame is not a criminal overt act. (B) The burglar and the friend will be
convicted of both conspiracy and attempted
(B) Not guilty of conspiracy, because the larceny.
husband, not the arsonist, committed the
overt act. (C) The burglar and the friend will be
convicted of attempted larceny only.
(C) Guilty, because the husband executed his
part of the plan. (D) The burglar and the friend will be
convicted of conspiracy only.
(D) Guilty, because the arsonist agreed to set
the brother’s house on fire.
4. CRIMINAL LAW MULTIPLE CHOICE QUESTIONS

Question 7 Question 8

A father was terminally ill with a particularly A robber attempted an armed robbery of a
painful form of cancer. His daughter visited him liquor store with an accomplice. A police officer
every evening in the hospital and for several arrived at the scene and shot and killed the
months listened to his pleas to put him out of his robber’s accomplice, who had been guarding the
misery. On her final visit, she gave her father a door with a gun and had not obeyed the officer’s
hug and then pulled a small revolver from her command to drop the weapon. Meanwhile, the
purse. She fired a shot at her father, killing him store owner pulled out a gun and shot at the
instantly. The daughter immediately broke into robber but missed. The robber then killed the
tears and surrendered to the police. The daughter store owner in self-defense before he could fire a
was charged with her father’s death. second shot.

What is the most serious offense of which the In most jurisdictions, for whose death can the
daughter can be convicted? robber be found guilty under the felony murder
doctrine?
(A) First degree murder, defined by the juris-
diction as premeditated and deliberate kill- (A) The store owner and the accomplice.
ing of another human being.
(B) The store owner only.
(B) Second degree murder, defined as any
murder not classified as first degree murder. (C) The accomplice only.

(C) Voluntary manslaughter. (D) Neither the store owner nor the accomplice.

(D) No crime.
 CRIMINAL LAW MULTIPLE CHOICE QUESTIONS 5.

Question 9 Question 10

A thief looking for targets in a hotel lobby The defendant wanted to borrow his neigh-
one evening spotted the victim wearing what bor’s car to go shopping for lawnmowers.
appeared to be expensive jewelry as she checked Knowing that the neighbor was out of town for
into the hotel. After finding out the victim’s the weekend, the defendant opened the neigh-
room number, the thief broke into a supply bor’s garage door and took a car key that the
room and put on a bellhop’s uniform. She then neighbor hid in an old coffee can for emergen-
grabbed some flowers from a vase in the hall cies. Once inside, the defendant, mistakenly
and knocked on the door to the victim’s room, believing that larceny applied only to the taking
announcing the delivery of a bouquet of flowers. of items valued at over $100, decided to take the
After the victim let her in, the thief scanned the neighbor’s lawnmower (worth $75) in order to
room for the jewelry while putting the flowers trade it in on a new mower. However, on the way
in a vase. When she did not see the jewelry, she to the store with the mower, he was involved in
pulled out a knife and forced the victim to reveal an automobile accident, totaling the car.
the whereabouts of the jewelry, which turned out
to be the hotel’s safe. The thief made the victim In a common law jurisdiction, of what
call the front desk and ask that someone bring property is the defendant guilty of larceny?
the jewelry to the room. The thief then locked
the victim in the bathroom, changed out of the (A) Both the car and the mower.
bellhop’s uniform, and accepted the jewelry
when it was brought to the room. She was appre- (B) Neither the car nor the mower.
hended a few days later trying to sell the jewelry.
(C) The car, but not the mower.
Under these facts, what are the most serious
crimes the thief can be convicted of? (D) The mower, but not the car.

(A) Burglary and larceny.

(B) Burglary and robbery.

(C) Larceny only.

(D) Robbery only.

6. CRIMINAL LAW MULTIPLE CHOICE QUESTIONS

Question 11 Question 12

A cashier at a bookstore who accepted a A homeowner decided to destroy his home by

$50 bill as payment from a customer placed fire to collect the insurance money. To work up
the bill underneath all of the $20 bills in the his courage, he had several drinks at a local bar.
cash register and took it home with her at When he returned to his block that night, he was
closing time. At the cashier’s second job as a so intoxicated that he mistakenly believed that
truck driver, she drove her tractor to a trucking his neighbor’s house, which was 20 feet to the
terminal and attached a trailer filled with wine. right of his house and looked very similar, was
At the first truck stop, the cashier entered the his own house. He started a fire under the back
trailer, took a bottle of wine from a case, and porch and went off a short distance to watch
drank it. it burn. Suddenly he realized that he had the
wrong house. He ran back and grabbed a garden
In a common law jurisdiction, of which of the hose and was able to put out the fire with just
following crimes is the cashier guilty? some slight charring of the porch.

(A) Larceny for the money and embezzlement If the homeowner is charged with arson in
for the wine. a jurisdiction retaining the common law rules,
what is the likely verdict?
(B) Embezzlement for the money and larceny
for the wine. (A) Not guilty, because he did not have the
requisite intent to burn the dwelling of
(C) Larceny for both the money and the wine. another.
(D) Embezzlement for both the money and the (B) Not guilty, because he realized his mistake
wine. before any burning of the dwelling
occurred.

(C) Guilty, because he acted with malice.

(D) Guilty, because his intent to commit arson

of his own house is transferred to his neigh-
bor’s house.
 ANSWERS TO MULTIPLE CHOICE QUESTIONS 7.

ANSWERS TO MULTIPLE CHOICE QUESTIONS

Answer to Question 1
(D) The defendant may not be convicted of attempted murder of the victim or bystander because he
lacked the necessary intent. A criminal attempt consists of: (i) conduct that brings the defendant
in close proximity to the completed offense; and (ii) the intent to commit the completed crime. In
other words, the defendant must have the intent to perform an act and obtain a result that would
constitute the crime charged if achieved. Regardless of the intent required for the completed
offense, an attempt always required specific intent. Thus, attempted murder required the specific
intent to kill another person, even though the mens rea for murder itself does not require specific
intent—had the bystander died, the defendant could have been convicted of murder, given that
malice could have been established by the defendant being aware of an unjustifiably high risk to
human life (i.e., an “abandoned and malignant” heart) by pointing a loaded gun and shooting at
an individual. However, the defendant did not have the intent to kill either victim, so he lacked
the intent necessary for attempt. (D) is therefore correct, and (A), (B), and (C) are incorrect. In
answering questions such as this one, remember to be objective and answer the question asked.
Although the defendant here is surely guilty of some crimes—e.g., assault and battery—he is not
guilty of the charged crime.
Answer to Question 2
(B) It would be least helpful to a kidnapping participant’s defense if kidnapping were a general intent
crime in the jurisdiction. Although courts have not always clearly defined “general intent,” the
mental state required for the material elements of the offense are analogous to “recklessness”
under the Model Penal Code: conscious disregard of a substantial or unjustifiable risk that the
material element exists or will result from his conduct. Thus, the defendant need not be certain
that his conduct will cause the result or that the attendant circumstances required by the crime
exist; it is enough if he is aware of a high likelihood of that result or circumstance. In contrast, a
specific intent crime requires the doing of an act with a conscious intent or objective. Most impor-
tantly for the participant’s purposes, defenses such as voluntary intoxication and unreasonable
mistake of fact are not recognized as defenses to general intent crimes, but are for specific intent
crimes. If the jurisdiction treats kidnapping as a specific intent crime, the participant’s intoxica-
tion could be used to show that he was incapable of forming the requisite intent or that he mistak-
enly believed that the groom had consented to being left on the island. For specific intent crimes,
any mistake of fact, even if unreasonable, is a defense. In contrast, voluntary intoxication is not a
defense to a general intent crime, and any mistake of fact offered to negate a general intent must
be reasonable to be valid. Hence, it would be helpful to the participant’s defense if the jurisdic-
tion treated the offense as a specific intent crime, but not if it were treated as a general intent
crime. Thus, (B) is correct because it is not helpful, and (C) is incorrect because it is helpful. (D)
is incorrect because that fact may be helpful to the participant’s defense. If he believed that the
groom wanted to be left on the island, he may not have had the intent required for the offense.
(A) is incorrect because it is helpful to the participant’s defense. The offense is defined as the
unlawful movement or concealment of a person without his consent. If the participant was not
legally intoxicated, his consent would be a valid defense; if he was legally intoxicated, it could be
argued that he was incapable of consenting, thus negating the participant’s defense.
Answer to Question 3
(A) The defendant should not be convicted of battery. Under the statute’s fault standards, a defen-
dant must have acted purposely (i.e., with conscious intent to cause the result) or knowingly
8. ANSWERS TO MULTIPLE CHOICE QUESTIONS

(i.e., with knowledge that his conduct will necessarily or very likely cause the result) as to the
harmful result. The apparent inference to be drawn from the facts is that the defendant did not
consciously desire, nor contemplate to a practical certainty, the serious injury to the victim that
actually occurred. Had the defendant intended to cause such severe harm, he no doubt would
have dealt the victim a strong blow rather than simply giving the victim a light shove. Therefore,
as to the nature of the result, the defendant did not act with “purpose” or “knowledge” as those
terms are defined in the Model Penal Code and modern criminal codes. (B), while close, is not
as good an answer as (A) because it does not address the state of mind issue in the problem. A
light shove might be sufficient for a battery as defined under a different set of facts (e.g., if the
defendant believes that the victim would fall down stairs with a light shove). (C) is incorrect
because it addresses the act but not the result. As defined in this question, battery must not only
be committed by a purposeful act, but also be done with a “purposeful” or “knowing” state of
mind as to the result. (D) is incorrect for much of the same reason—the state of mind requirement
also applies to the result, as discussed above. The injury must have been purposely or knowingly
caused, and that concept is not contained within choice (D).

Answer to Question 4

(A) The fan should be charged with the attempted murder of her original target, the actress. A
criminal attempt is an act that, although done with the intention of committing a crime, falls
short of completing the crime. The fan fired a gun at the actress; her intentional use of a deadly
weapon permits an inference that she had the intent to kill the actress. If her plan had succeeded,
she would have been guilty of murder. (B), (C), and (D) are incorrect because the fan did not have
the intent to kill the actor. Had the fan actually killed the actor, her intent to kill the actress could
have been transferred to make her guilty of murdering the actor, but the doctrine of transferred
intent does not apply to an attempt. (D) is also incorrect because the fan did not have intent to kill
the bodyguard.

Answer to Question 5

(D) The arsonist should be found guilty. A conspiracy is a combination or agreement between two or
more persons to accomplish some criminal or unlawful purpose, or to accomplish a lawful act by
unlawful means. The mens rea required for conspiracy is specific intent, in that both parties must
intend to agree to accomplish some criminal or unlawful purpose. Thus, once the arsonist was
hired by the husband and they came up with a plan to burn down the brother’s house, the crime of
conspiracy was completed. (C) is incorrect because it implies that carrying out the plan by at least
one party is required; the conspiracy was complete even before the husband fulfilled his duties
under the plan. Note that, while most states now require an overt act for conspiracy, the common
law version does not. (A) is incorrect. Even if an overt act were required, it need not be in and of
itself criminal. (B) is also incorrect. If an overt act were required, it need only be performed by
one of the co-conspirators, not necessarily the conspirator on trial.

Answer to Question 6

(A) The burglar and the friend are guilty of conspiracy. At common law, conspiracy was an agreement
between two or more persons to commit an unlawful act or to commit a lawful act in an unlawful
manner. Most states also require some overt act in furtherance of the conspiracy. Additionally,
some jurisdictions recognize withdrawal as a defense to a conspiracy charge, but even those
jurisdictions require that the co-conspirator somehow act to thwart the conspiracy. Withdrawal,
however, does act as a defense to the subsequent crimes committed by the co-conspirators in
 ANSWERS TO MULTIPLE CHOICE QUESTIONS 9.

furtherance of the conspiracy. When the burglar and the friend agreed to burglarize the store and
began to carry out their plan, they committed common law conspiracy. Hence, (C) is incorrect.
Given that the friend did nothing to thwart the conspiracy, his withdrawal provides no defense to
the conspiracy charge, but it does immunize him from the subsequent crimes of the burglar. The
burglar also committed an attempted larceny, but the friend did not. An attempt has two elements:
(i) a specific intent to commit the target crime; and (ii) an overt act in furtherance of the crime.
Under the modern M.P.C. approach, a complete and fully voluntary abandonment of the crime
is a defense to an attempt charge. The abandonment must not be a temporary abandonment of the
criminal purpose, nor may it be to find a different victim. In the instant case, both the burglar and
the friend had the specific intent to commit the crime and performed overt acts in furtherance of
the crime (e.g., drilling into the floor). Had they been caught at that time, both could be convicted
of attempt. However, the friend voluntarily and fully abandoned the crime before completion.
Thus, abandonment provides him with a defense to the attempt charge. Thus, (A) is correct and
(B) is incorrect. (D) is incorrect because the burglar can be convicted of attempted larceny, as
described above.

Answer to Question 7

(A) The daughter can be convicted of first degree murder for her father’s death. Therefore, (D) is
incorrect. Murder is the unlawful killing of a human being with malice aforethought. In the
absence of facts excusing the homicide or reducing it to voluntary manslaughter, malice afore-
thought exists if the defendant has (i) intent to kill, (ii) intent to inflict great bodily injury, (iii)
awareness of an unjustifiably high risk to human life, or (iv) intent to commit a felony (felony
murder doctrine). In this case, the daughter clearly had the intent to kill her father; her motive
for doing so is irrelevant for establishing malice aforethought. It is also quite possible under the
facts that the daughter acted with premeditation and deliberation, making her potentially liable
for first degree murder. “Deliberate” means that the defendant reflected on the crime in a cool and
dispassionate manner. “Premeditated” means that such reflection actually was undertaken, but it
need only be for a very brief period. Here, the daughter could have reflected on the crime before
she visited the hospital; the fact that she had a gun in her purse is circumstantial evidence of such
reflection. Even if she did not make the decision to kill until moments before she pulled out the
gun, she would still have been capable of premeditation and deliberation. (B) is therefore incorrect
because it is not the most serious crime of which the daughter can be convicted. (C) is incorrect
because of the absence of facts establishing adequate provocation that would reduce an intentional
killing from murder to voluntary manslaughter. Adequate provocation is most frequently recog-
nized in cases of (i) being subjected to a serious battery or threat of deadly force, and (ii) discov-
ering one’s spouse in bed with another person. While modern courts have broadened somewhat
the scope of what constitutes provocation, the law does not presently recognize feelings of mercy
toward the victim as an adequate provocation. Thus, the daughter can be convicted of murder for
her father’s death. (This question is a good illustration of why you must always treat the defendant
objectively in your analysis of Criminal Law questions.)

Answer to Question 8

(B) The robber can be found guilty of felony murder of the store owner only. This choice represents
an exception to the general rule that almost any death occurring in the course of a felony is felony
murder. In the majority of jurisdictions, the robber would not be held guilty of felony murder
for a justifiable killing of a co-felon by a police officer. The Redline view (the majority position)
holds that the killing of a felon by a police officer or resisting victim cannot be the basis for felony
murder. Thus, (A) and (C) are incorrect. (C) and (D) are incorrect because a person has no right
10. ANSWERS TO MULTIPLE CHOICE QUESTIONS

of self-defense when he is the aggressor, and especially if he is engaged in a felony. The store
owner, who was the victim of this felony, had the right to use at least the threat of force against
the robber. Because the death occurred in the course of the felony, and the robber had no right of
self-defense, he is guilty of felony murder, as well as deliberate premeditated murder.

Answer to Question 9

(B) The thief can be convicted of burglary and robbery. At common law, the elements of burglary are:
(i) a breaking (ii) and entry (iii) of the dwelling (iv) of another (v) at nighttime, (vi) with the intent
to commit a felony therein. Here, the thief has committed a constructive breaking because she
gained entry by means of a fraud. The hotel room constitutes a dwelling for purposes of burglary,
and the thief apparently had the intent to commit larceny when she entered the room. The thief
has also committed robbery, which is defined as (i) a taking (ii) of personal property of another
(iii) from the other’s person or presence (iv) by force or intimidation, (v) with the intent to perma-
nently deprive the other of the property. The “presence” element is satisfied if the victim is in the
vicinity when the property is taken. The thief used the threat of force against the victim to obtain
the property, and obtained it while the victim was locked in the bathroom of the hotel room, and
therefore in the vicinity. Thus, she can be convicted of both burglary and robbery, making (C) and
(D) incorrect. (A) and (C) are incorrect because the elements of larceny are contained within the
more serious offense of robbery, which is basically an aggravated form of larceny.

Answer to Question 10

(D) The defendant is guilty of larceny of the mower, but not the car. Larceny is the taking and
carrying away of the personal property of another by trespass with the intent to permanently (or
for an unreasonable time) deprive the other of his interest in the property. The intent to perma-
nently deprive may be found when the defendant intends to use the property in such a manner
as to create a substantial risk of loss. As to the mower, the defendant took and carried away the
mower with the intent to permanently deprive his neighbor of it. The defendant’s mistake as to the
coverage of the criminal law does not negate his intent to commit the crime, and thus provides
no mistake of law defense. Thus, (B) and (C) are incorrect. However, the defendant is not guilty
of larceny of his neighbor’s car because he did not have the intent to permanently deprive the
neighbor of the car; rather, his intent was to borrow the car. Furthermore, merely driving a car
does not constitute a use that creates a substantial risk of loss sufficient to find the intent to perma-
nently deprive the neighbor of the car. As a result, (A) and (B) are incorrect.

Answer to Question 11

(C) The cashier is guilty of larceny in both cases. Larceny is the taking and carrying away of tangible
personal property of another by trespass, with the intent to permanently deprive the other of his
interest in the property. The cashier is guilty of larceny in the case of the money, even though she
originally had possession of the fifty dollar bill when she first received it from the customer. If
she had converted it at that time, she would have been guilty of embezzlement because the money
never reached the possession of her employer. However, when she placed the bill in the cash
register, the employer then obtained possession of the bill, and the cashier’s rights over the money
were reduced to custody. When she took the bill from the cash register at the end of the day, she
committed a trespassory taking from her employer’s possession and therefore committed larceny.
(B) and (D) are therefore incorrect. The cashier is also guilty of larceny in the case of the wine.
Here, as a bailee she clearly was in possession of the entire trailer. However, when she entered
the trailer and took one wine bottle, she broke bulk, and possession of the wine bottle is deemed
 ANSWERS TO MULTIPLE CHOICE QUESTIONS 11.

to revert back to the owner of the wine. Thus, when she removed that bottle from its place in the
trailer with the intention of depriving its owner of the wine permanently, she committed larceny;
hence, (A) and (D) are incorrect.

Answer to Question 12

(C) The homeowner should be found guilty. Common law arson consists of the malicious burning
of the dwelling of another. At common law, the state of mind required—malice—is satisfied not
only by intentionally burning the dwelling of another but also by acting with reckless disregard
of an obvious risk that the structure would burn. While many courts ordinarily require that the
defendant be subjectively aware of the risk, they will find malice when the failure to be aware
of the risk is due to voluntary intoxication. Even had the homeowner done what he intended,
he would have put his neighbor’s house in jeopardy of burning. The fact that his intoxication
caused him to fail to recognize the risk would not be a defense. Nor could he raise a mistake of
fact defense because mistake of fact must be reasonable to negate the existence of malice, and
here the facts state that his mistake was caused by his intoxication. (A) is incorrect because the
malice required for common law arson may be satisfied by something less than the intent to burn
down the dwelling of another, and here malice is established. (B) is incorrect because he caused
a burning of the back porch, which is part of the dwelling, with the requisite malice; his conduct
once he realized his mistake is irrelevant to his guilt. (D) is incorrect because his intent to burn
down his own house does not constitute an intent to commit arson, which at common law is the
burning of the house of another. His intent to burn down his own house also constituted malice
for purposes of the burning of his neighbor’s house, but not because of the doctrine of transferred
intent.
 APPROACH TO CRIMINAL LAW 1.

APPROACH TO EXAMS
CRIMINAL LAW
IN A NUTSHELL: A person who actually commits a physical act that has been made illegal
by law with the accompanying state of mind may be charged with and convicted of a crime.
(If either the act or intent is lacking, the defendant is not guilty of that crime.) Additionally, any
person who is an accomplice to that person also may be charged with and convicted of the
crime. The law will list the physical acts and mental state(s) required for a crime; these are
called elements of the crime. Crimes include not only actual criminal acts, but also certain
preparatory crimes (“inchoate offenses”). The study of crimes requires the study of the
elements of the offense and the elements of a defense that the accused may raise.

I. ESSENTIAL ELEMENTS OF A CRIME

A. Physical Act
1. Must be voluntary act

B. Mental State
1. Specific intent
a. Requires doing an act with a specific intent or objective
b. Cannot infer specific intent from doing the act
c. Major specific intent crimes are solicitation, attempt, conspiracy, assault, larceny,
robbery, burglary, forgery, false pretenses, embezzlement, and first degree
premeditated murder
2. Malice
a. Applies to common law murder and arson
b. Generally shown with (at least) reckless disregard of an obvious or high risk that
a particular harmful result would occur
3. General intent
a. Defendant must be aware that she is acting in the proscribed manner and that
any attendant circumstances required by the crime are present
b. Can infer general intent from doing the act
4. Model Penal Code
a. Purposely—conscious object to engage in act or cause a certain result
b. Knowingly—as to nature of conduct: aware of the nature of conduct or that
certain circumstances exist; as to result: knows that conduct will necessarily or
very likely cause result
c. Recklessly—conscious disregard of a substantial and unjustifiable risk that
circumstances exist or a prohibited result will follow, and this disregard is a
gross deviation from a “reasonable person” standard of care
d. Negligently—failure to be aware of a substantial and unjustifiable risk that
2. APPROACH TO CRIMINAL LAW

circumstances exist or a prohibited result will follow, and this disregard is a

substantial deviation from a “reasonable person” standard of care

II. ACCOMPLICE LIABILITY

A. Elements of Accomplice Liability

1. Must be intentionally aiding, counseling, or encouraging the crime—active aiding,
etc., required. Mere presence not enough even if by presence defendant seems to
be consenting to the crime or even if defendant fails to notify the police
2. If crime is one of recklessness or negligence, accomplice must intend to facilitate
commission and act with recklessness or negligence
3. Liability is for the crime itself and all other foreseeable crimes
4. Accessory after the fact (is not an accomplice)
a. Helping someone escape
1) Not liable for the crime itself
2) A separate lesser charge

B. Defenses
1. Withdrawal is an affirmative defense if prior to the crime’s commission
a. If encouraged crime, must repudiate encouragement
b. If provided material, must neutralize the assistance
c. Or may notify police or otherwise act to prevent crime

III. INCHOATE OFFENSES—SOLICITATION, CONSPIRACY, AND ATTEMPT

A. Solicitation
1. Elements:
a. Asking someone to commit a crime
b. With the intent that the crime be committed
2. Defenses:
a. The refusal or the legal incapacity of the solicitee is no defense
b. If legislative intent is to exempt solicitor, that is a defense

B. Conspiracy
1. Elements:
a. An agreement;
b. An intent to agree;
c. An intent to achieve the objective of the agreement; and
d. An overt act (most jurisdictions)
2. Liability—each conspirator is liable for all crimes of other conspirators if foreseeable
and in furtherance of the conspiracy
3. Defenses:
 APPROACH TO CRIMINAL LAW 3.

a. Withdrawal
1) General rule—can only withdraw from liability for future crimes; no
withdrawal from conspiracy possible because agreement coupled with act
completes crime of conspiracy
2) M.P.C. recognizes voluntary withdrawal as defense if the defendant thwarts
conspiracy (e.g., informs police)
b. Factual impossibility is no defense
4. Merger
a. No merger—can be convicted of both conspiracy and substantive offense

C. Attempt
1. Elements:
a. Specific intent; and
b. Overt act—a substantial step in the direction of the commission of the crime
(mere preparation not enough)
2. Defenses:
a. Factual impossibility is no defense
1) Factual impossibility arises when defendant sets out to do an illegal act, but
cannot complete the act due to some unknown reason
b. True legal impossibility is always a defense
1) Legal impossibility arises when defendant sets out to do a legal act that he
believes is illegal
c. Abandonment generally no defense after the substantial steps have begun
1) M.P.C. recognizes abandonment as defense if (i) fully voluntary and (ii)
complete (i.e., not a postponement due to unfavorable circumstances)

IV. DEFENSES/JUSTIFICATION

A. Insanity
1. M’Naghten test—disease of the mind caused a defect of reason so defendant lacked
the ability at time of his actions to know wrongfulness or understand nature and
quality of actions
2. Irresistible impulse test—unable to control actions or conform conduct to law
3. Durham test—crime was product of mental disease or defect
4. M.P.C. test—combination of M’Naghten and irresistible impulse tests

B. Intoxication
1. Voluntary intoxication is a defense if it negates “specific intent”

C. Self-Defense
1. Nondeadly force (“NDF”)—a person may use NDF in self-defense if she reasonably
believes force is about to be used on her; no duty to retreat
2. Deadly force (“DF”)
4. APPROACH TO CRIMINAL LAW

a. A person may use DF if she is:

1) Without fault;
2) Confronted by unlawful force; and
3) Reasonably believes that she is threatened with imminent death or great
bodily harm
b. Duty to retreat before using DF
1) Majority rule—no duty to retreat
2) Minority rule—duty to retreat, except:
a) When it cannot be done safely, and
b) In one’s home
c. DF in self-defense may be used by original aggressor only if he tries to withdraw
(e.g., run for door) and communicates that withdrawal to the original victim, or if
sudden escalation of violence by original victim
d. Use of DF to arrest—officer must reasonably believe suspect armed or presents
a danger to the public
e. If fact-finder determines absence of right to self-defense, defendant may be
guilty of voluntary manslaughter under “imperfect self-defense” theory
3. Defense of others or dwelling
a. NDF—person reasonably believes that NDF is necessary to protect other or
dwelling (or to end unlawful entry)
b. DF—only if a person reasonably believes that she is threatened with death or
great bodily harm

D. Necessity
1. Choice of evils—harm to society would exceed harm of criminal act
a. Objective test
b. Not available if defendant is at fault for creating situation requiring choice
c. Traditionally, choice had to arise from natural forces; modern cases do not have
this requirement

E. Duress
1. Defendant performs a criminal act under a threat of death or serious bodily harm to
him or another
a. Threat must be made by another human
b. Traditionally, threat to property was not sufficient; MPC now recognizes threat to
property as sufficient if harm threatened outweighs harm of criminal act

F. Mistake
1. Mistake of fact
a. Must negate state of mind
b. Malice and general intent crimes—mistake must be reasonable
c. Specific intent crimes—mistake can be reasonable or unreasonable
d. Strict liability—mistake is not a defense
 APPROACH TO CRIMINAL LAW 5.

2. Mistake of law
a. Generally not a defense

G. Entrapment
1. Elements:
a. Criminal design originated with authorities; and
b. Defendant was not predisposed to commit crime

V. HOMICIDE
A. Murder
1. Elements of common law murder:
a. Unlawful;
b. Killing of another human being; and
c. With malice aforethought
1) Malice means
a) Intent to kill;
b) Intent to do serious bodily harm;
c) Reckless indifference to unjustifiably high risk to human life (depraved
heart murder); or
d) Felony murder
d. One of these four intents plus a lack of justification and no provocation and the
defendant kills—what is the crime? Common law murder
2. Defenses:
a. Justification (self-defense); and
b. Provocation (reduces the crime to voluntary manslaughter)
3. Felony murder:
a. If defendant has a substantive defense to the underlying felony, he usually has
a defense to felony murder; “procedural” defenses (e.g., statute of limitations)
generally no defense
b. The killing must be foreseeable
c. Deaths caused while fleeing from a felony are felony murder, but deaths that
arise after defendant has found some point of temporary safety are not
d. Majority rule—defendant is not liable for felony murder for the death of a
co-felon as a result of resistance by the victim or the police

B. Manslaughter
1. Two kinds—voluntary and involuntary
2. Voluntary manslaughter
a. Elements:
1) Adequate provocation;
2) Gave rise to heat of passion;
3) No adequate cooling-off period; and
4) Defendant did not cool off
6. APPROACH TO CRIMINAL LAW

b. Failed self-defense claim is voluntary manslaughter

3. Involuntary manslaughter
a. Types:
1) Killing resulting from criminal negligence; or
2) Misdemeanor manslaughter

C. Causation
1. General rule—defendant is liable for all natural and probable consequences of his
conduct unless the chain of causation is broken by the intervention of some super-
seding factor
a. Superseding factors:
1) Acts of nature;
2) Coincidence; or
3) Negligent medical care not a superseding factor unless gross negligence
or intentional malpractice
b. Two commonly encountered rules:
1) Hastening an inevitable result; and
2) Simultaneous acts by two or more parties
c. Add a causation analysis to any homicide question that presents the issue

VI. ALL OTHER CRIMES

A. Look for Elements of Offense

1. If no statute defining crime, look for elements of common law crime. Discuss modern
expansion of liability (e.g., burglary no longer requires a breaking, can be any struc-
ture, can be any time of day)
2. If statute defines crime, look for those statutory elements
3. Elements of other commonly tested crimes (common law)
a. Battery
1) Unlawful application of force to another;
2) Resulting in bodily injury or offensive touching
b. Assault
1) Intent to commit battery (see a., supra); or
2) Intentional creation (other than by mere words) of a reasonable apprehen-
sion in the mind of the victim of imminent bodily harm
c. False imprisonment
1) Unlawful;
2) Confinement of a person;
3) Without his valid consent
d. Kidnapping
1) Some movement or concealment of a victim in a “secret” place
2) Some courts hold that “kidnapping” is committed when the victim is moved
during the commission of another crime to a location that places her in
 APPROACH TO CRIMINAL LAW 7.

more danger than that necessarily involved in the commission of the other
crime
e. Rape
1) Any penetration of the female sex organ by the male sex organ (many
states have made gender neutral);
2) Without the victim’s effective consent;
a) Intercourse accomplished by actual force;
b) Intercourse accomplished by threats of great and immediate bodily
harm;
c) Intercourse where the victim is incapable of consenting due to uncon-
sciousness, intoxication, or mental condition; or
d) Intercourse where the victim is fraudulently caused to believe that the
act is not intercourse
3) In the absence of a marital relationship between the woman and the man
(most states have abolished or modified this element)
f. Larceny
1) Taking;
2) And carrying away;
3) Of tangible personal property;
4) Of another with possession;
5) By trespass;
6) With intent to permanently deprive that person of her interest in the
property
g. Embezzlement
1) The fraudulent;
2) Conversion;
3) Of personal property;
4) Of another;
5) By a person in lawful possession of that property
h. False pretenses
1) Obtaining title;
a) If title is not obtained, the crime is larceny by trick
2) To personal property of another;
3) By an intentional false statement of a past or existing fact;
4) With intent to defraud the other
i. Robbery
1) A taking;
2) Of personal property of another;
3) From the other’s person or presence;
4) By force or threats of immediate death or physical injury to the victim, a
member of his family, or some person in the victim’s presence;
5) With the intent to permanently deprive him of it
j. Receipt of stolen property
8. APPROACH TO CRIMINAL LAW

1) Receiving possession and control;

2) Of “stolen” personal property;
3) Known to have been obtained in a manner constituting a criminal offense;
4) By another person;
5) With the intent to permanently deprive the owner of his interest in it
k. Theft—not a traditional common law offense, but many modern statutes and the
M.P.C. consolidate larceny, embezzlement, false pretenses, and receipt of stolen
goods under the single heading of “theft”
l. Burglary
1) A breaking;
2) And entry;
3) Of a dwelling;
4) Of another;
5) At nighttime;
6) With the intent to commit a felony in the structure
m. Arson
1) The malicious;
2) Burning;
3) Of the dwelling;
4) Of another

B. Look for Applicable Defenses

1. Based on elements—required element has not been met
2. Lack of required mental state
3. Traditional defenses:
a. Insanity;
b. Intoxication;
c. Infancy;
d. Self-defense;
e. Duress or necessity;
f. Mistake of fact;
g. Consent (rare); and
h. Entrapment (rare)
 CRIMINAL LAW EXAM QUESTIONS 1.

ESSAY EXAM QUESTIONS

INTRODUCTORY NOTE

The essay questions that follow have been selected to provide you with an opportunity to experience
how the substantive law you have been reviewing may be tested in the hypothetical essay examination
question context. These sample essay questions are a valuable self-diagnostic tool designed to enable
you to enhance your issue-spotting ability and practice your exam writing skills.
It is suggested that you approach each question as though under actual examination conditions.
The time allowed for each question is 60 minutes. You should spend 15 to 20 minutes spotting issues,
underlining key facts and phrases, jotting notes in the margins, and outlining your answer. If you
organize your thoughts well, 40 minutes will be more than adequate for writing them down. Should
you prefer to forgo the actual writing involved on these questions, be sure to give yourself no more
time for issue spotting than you would on the actual examination.
The BARBRI technique for writing a well-organized essay answer is to (i) spot the issues in a
question and then (ii) analyze and discuss each issue using the “CIRAC” method:
C — State your conclusion first. (In other words, you must think through your answer before you
start writing.)
I — State the issue involved.
R — Give the rule(s) of law involved.
A — Apply the rule(s) of law to the facts.
C — Finally, restate your conclusion.
After completing (or outlining) your own analysis of each question, compare it with the BARBRI
model answer provided herein. A passing answer does not have to match the model one, but it should
cover most of the issues presented and the law discussed and should apply the law to the facts of the
question. Use of the CIRAC method results in the best answer you can write.
2. CRIMINAL LAW EXAM QUESTIONS

EXAM QUESTION NO. 1

Bob, age 13, and Hal, age 16, bored by the prospect of another long summer afternoon, set out on
their favorite pastime—rummaging through the garages and toolsheds of neighbors. In the past they
had sometimes merely used, but had sometimes also taken, tools kept there. Hal’s younger brother Jim,
age six, tagged along for the first time.
The boys entered Smith’s garage, which was attached to the rear of his home, through the closed
but unlocked garage door. Bob and Hal rummaged through the toolboxes and practiced cutting wood
on the table saw. Jim, alone near a corner shelf in the garage, saw a gold watch that had been left there
inadvertently by Smith. Jim picked up the watch, put it in his pocket, and without a word left for home.
After about an hour in the garage Bob and Hal also left and continued to Jones’s toolshed for the
stated purpose of taking a large screwdriver that had, on a prior occasion, caught Bob’s fancy. Jones’s
shed was detached and about 50 yards from her house. Although the door was always locked, the boys
had never had difficulty in prying open the door, and on this occasion they again broke the lock. As
Hal pushed the door open and stepped into the shed, he was shot in the head, suffering a fatal wound.
On the prior evening Jones had mounted a loaded pistol in the shed, aimed at the door and
connected so that the pistol would discharge if the door were pushed open. Jones told the police she
mounted the gun to protect her property from thieves, that she intended to scare them away and did not
intend to kill anyone. No statute prohibited the use of spring guns.
(1) Bob and Jim are charged with burglary of Smith’s garage and larceny of Smith’s watch.
(2) Bob is charged with burglary of Jones’s toolshed.
(3) Jones is charged with the murder of Hal.
What result as to each charge? Discuss.
 CRIMINAL LAW EXAM QUESTIONS 3.

EXAM QUESTION NO. 2

John, Max, Rip, and Dopey, all engaged in the illegal numbers racket, planned to burn down the
home of another numbers bookie. Pursuant to the plan, Dopey was given $2 and sent to a nearby gas
station to buy a can of gasoline to start the fire.
On the way, Dopey stopped in a tavern and spent the money on whiskey. Afraid to return without
the gasoline, Dopey went to the station and attempted to fill the can from the pump while the operator
wasn’t looking. When he was spotted, Dopey ran across the highway carrying the full can with the
operator chasing him. The operator, intent on catching Dopey, ran into the path of an oncoming
automobile and was killed instantly. John, Max, Rip, and Dopey were arrested before the planned
burning took place.
What crimes were committed by John, Max, Rip, and Dopey? Discuss.
4. CRIMINAL LAW EXAM QUESTIONS

EXAM QUESTION NO. 3

Adams suspected that his girlfriend, Kitty, was unfaithful to him. He told Barlow that he needed
his help to test Kitty. Adams’s plan was that he would bring a box of chocolates laced with a fatal dose
of LSD to Barlow at the pool hall they frequented; Barlow was then to offer the chocolates to Kitty. If
Kitty accepted the chocolates from Barlow, who was a stranger to her, this would satisfy Adams that
she was unfaithful to him and deserved to die.
Barlow entertained excessive and irrational suspicions and distrust of others. For this reason and
because he feared what Adams would do to him if he refused, he was afraid to refuse to join in the
plan.
Adams brought the chocolates to the pool hall, laid the box beside his coat on a bench, and went off
to shoot pool while waiting for Barlow to show up. Cox, the proprietor, opened the box and sampled
the candy. He soon became unconscious. Adams discovered Cox and thought he was dead, although in
fact the dose of LSD taken by Cox was not sufficient to kill him. Adams dragged the unconscious Cox
out of the pool hall, put him in a car, and drove to a secluded spot and left him there. Shortly thereafter,
Cox died from exposure without regaining consciousness.
Adams is charged with the attempted murder of Kitty. Is he guilty? Is he guilty of any other crime or
crimes? Is Barlow? Discuss.
 CRIMINAL LAW EXAM QUESTIONS 5.

EXAM QUESTION NO. 4

Don, in need of funds, approached Oscar, a friend who sold stereo equipment. Oscar told Don that
he had no ready cash to give him, but that he owned thousands of dollars worth of readily saleable and
fully insured stereo equipment stored in a nearby warehouse that he also owned. Don replied that if
this were the case Oscar would not lose any money if some of the equipment “disappeared” and Don
sold it. Oscar then said he would give Don a duplicate key to the warehouse so that Don, with Don’s
brother Allen, could remove the equipment, on condition that Don reimburse him for any loss for
which he could not recover from his insurance company. Don said, “That’s great,” and left with the
key.
Don told Allen about the plan, and Allen agreed to help him. Don and Allen entered the warehouse
with the key, and the two men loaded Don’s truck with $50,000 worth of equipment. After the items
were removed and the warehouse locked, it was agreed that Allen would immediately drive the truck
and equipment to Mexico, to be joined later by Don. It was also agreed that Don should go home
by means of an automobile that the two had observed in an enclosed parking area to the rear of the
warehouse.
Allen drove away and Don reentered the warehouse to reach the parking area. He took the automo-
bile and with it rammed through the locked gate of the fence that enclosed the parking area and
proceeded to his apartment.
Allen was driving in excess of the speed limit when a highway patrol officer attempted to stop him.
Allen, believing the theft had been discovered, attempted to escape by driving at over 100 miles per
hour. In the ensuing chase the highway patrol officer lost control of his patrol car and was killed when
it overturned.
(A) Has Don committed burglary (i) in the removal of the stereo equipment, or (ii) in the theft of
the vehicle? Discuss.
(B) Is Don guilty of either murder or manslaughter in the death of the highway patrol officer?
Discuss.
(C) Is Oscar criminally liable for any crime or crimes committed by Don? Discuss.
 CRIMINAL LAW EXAM ANSWERS 1.

ANSWERS TO ESSAY EXAM QUESTIONS

ANSWER TO EXAM QUESTION NO. 1

(1) Are Bob and Jim Guilty of Burglary of Smith’s Garage?

Jim is certainly not guilty of burglary of Smith’s garage, and Bob too may not be guilty. At issue is
whether a juvenile is able to form the mens rea necessary for criminal liability.
At common law, burglary is defined as the breaking and entering by trespass of the dwelling house
of another, at night, with the intention of committing a felony therein. The facts stipulate that Bob and
Jim “entered”; and, since their entry was unauthorized, it was “trespassory.” The “breaking” element
does not require damage to the structure, but simply the putting aside of some barrier to entry, no
matter how flimsy. Hence, the boys’ act in opening the garage door is a sufficient “breaking”; it makes
no difference that the door was unlocked.
At common law, burglary was a nocturnal offense. Since the boys’ activity occurred during the
afternoon, they would not be guilty of burglary under the common law. However, most jurisdictions
have eliminated the “nighttime” requirement, and for purposes of this answer, it will be assumed that
such a change has been made.
The “dwelling house” element, even at common law, embraced outbuildings, such as a stable, within
the curtilage or fenced area around the main house. A garage would be the modern equivalent of a
stable. In any event, the scope of burglary has been expanded almost everywhere to include most types
of enclosed structures, no matter where they are located.
The difficult issue is whether the boys had an intention to commit a felony when they entered the
garage. Arguably, they had only a contingent intent to steal—the contingency being to take anything
that might strike their fancy. However, there is no reason to treat this sort of intent any less seriously
than a clear determination to steal.
As to Bob (age 13), there was at common law a rebuttable presumption that one between seven
and 14 is too immature to form the mens rea for a crime. However, that presumption weakens as one
nears 14, and would be overcome by a showing that Bob did in fact know that what he was doing was
morally wrong.
As to Jim, at common law one under the age of seven was “conclusively presumed” too immature to
form any mens rea. Therefore, Jim did not commit burglary.

Are Bob and Jim Guilty of Larceny?

Jim is not guilty of larceny because of his age. Again, at issue is whether a six-year-old can form
criminal intent. Even though he may have trespassorily taken and carried away Smith’s watch, Jim is
under age seven, and therefore conclusively presumed incapable of formulating the requisite criminal
intent for larceny. His otherwise criminal act is therefore excused.
Bob is not guilty of larceny either, because it appears that Jim was acting solely on his own when
he took Smith’s watch. At issue is whether derivative liability exists for the criminal acts of a potential
co-conspirator/accomplice.
At common law, conspiracy requires (i) an agreement between two or more persons; (ii) an intent to
enter into an agreement; and (iii) an intent to achieve the objective of the conspiracy. If a conspiracy is
found, a conspirator becomes criminally liable for crimes committed in furtherance of the conspiracy
so long as those crimes were foreseeable.
Here, however, there probably was no criminal conspiracy between Hal, Bob, and Jim. First, the
facts state that Jim “tagged along,” strongly implying that there was no agreement that Jim come
along and commit any crimes. Second, Jim is six years old, and thus was legally incapable of forming
the intent necessary to enter into a conspiracy. Thus, because Jim is not a member of the conspiracy
(if one even existed between Hal and Bob), there can be no criminal liability based on a conspiracy
theory.
2. CRIMINAL LAW EXAM ANSWERS

That said, a similar question arises as to whether Bob can be an accomplice to Jim’s “crimes.”
An accomplice is one who (i) with the intent to assist the principal and the intent that the crime be
committed; (ii) actually aids, counsels, or encourages the principal before or during the crime. If one
is an accomplice, he is criminally liable for the crimes he did or counseled and for any other crimes
committed in the course of committing the crime contemplated, as long as the other crimes were
probable or foreseeable.
Here, like the conspiracy discussed above, the problem of whether there was intent to encourage Jim
in his crime arises. Again, the facts state that Jim merely “tagged along” with Bob and Hal, and that
neither Bob nor Hal even knew that Jim took the watch. Thus, the intent to assist is lacking, and Bob
cannot be guilty as an accomplice to Jim’s wrongful act.
As a result, Bob is not guilty of larceny of the watch.

(2) Is Bob Guilty of the Burglary of Jones’s Toolshed?

Bob may be guilty of burglary of Jones’s toolshed (assuming that the jurisdiction has abolished some
of the more arcane common law requirements). At issue (again) is Bob’s capacity to form the mens rea
necessary for criminal liability, along with whether the breaking element to burglary has been satisfied.
The requirements for burglary are discussed in (1), above.
The activities directed at the toolshed were clearly without the consent of the owner, and hence
trespassory. As noted above, the opening of an unlocked door is a sufficient “breaking,” and the
opening of a locked door is all the more so. Since Hal “stepped into the shed” before he was shot, the
requisite “entering” had occurred, thus taking Hal’s acts beyond the category of attempted burglary.
The specific intent requirement was satisfied by the boys’ intent to take Jones’s screwdriver; the intent
to commit any larceny (grand or petit) is sufficient. The burglary was complete upon the entry. It is
immaterial whether the target felony or larceny was accomplished.
As noted above, the boys’ activities would not constitute burglary at common law because they
occurred during the day. Furthermore, the toolshed was probably too far away from the main house
(50 yards) to be considered “within the curtilage.” However, modern burglary statutes generally cover
entries of any structure at any time; and under such statutes, Hal’s acts would be burglary. Although
Bob himself did not enter, he was an accomplice of Hal (indeed, he was a co-principal in the first
degree), and thus is chargeable with Hal’s actions. Again, Bob might be able to avoid this accomplice
liability because of his age (13), unless it is shown that he was mature enough to know that his acts
were wrong.

(3) Is Jones Guilty of the Murder of Hal?

Jones clearly has committed a homicide. At issue is whether Jones committed a criminal act and
whether Jones was justified in her actions. The spring gun she set was an actual cause of Hal’s death—
i.e., but for Jones’s setting the trap, Hal would not have died when, where, and as he did. True, Jones’s
trap was not the direct cause of Hal’s death because the gun would not have gone off except for
Hal’s independent, intervening act of opening the door. However, an independent, intervening force
“breaks the chain of causation” only if it was not foreseen or foreseeable. Here, Jones clearly foresaw
that someone might try to open the door; indeed, that is why she set the gun. Her act, therefore, is the
proximate (legally recognized) cause of Hal’s death.
If this homicide was committed with “malice,” it will be murder at common law. Whether Jones
had “malice” depends on her state of mind when she set the trap. Even if the jury believes Jones’s
claim that she intended only to scare away intruders and not to kill anyone, she must have been aware
that her setting of the gun, aimed as it was at the door, created an unjustifiably high risk of killing or
seriously injuring humans. This conduct indicates that she had a reckless indifference to an unjustiably
high risk to human life, which is one form of “malice.”
Moreover, since Jones intentionally pointed a deadly weapon so that it would hit a vital part of the
human body should the door be opened, a jury could infer that she actually did intend to kill or to
 CRIMINAL LAW EXAM ANSWERS 3.

inflict serious bodily harm upon anyone who opened the door—regardless of her protestations to the
contrary.
In the absence of any factor of justification, excuse, or mitigation, either of the above mental states is
sufficient “malice” for murder.
Arguably, Jones’s use of deadly force may be justified as prevention of a felony. Jones’s purpose
in setting the spring gun was to prevent criminal acts directed against her toolshed and its contents.
Here, Hal (who has no “youthfulness” defense since he is over 14 years of age) was committing statu-
tory burglary. The common law permitted the use of deadly force only to prevent “dangerous” or
“atrocious” felonies, of which burglary was one. In many jurisdictions today, statutory burglary is
similarly treated. In such jurisdictions, Jones’s homicide of Hal would be deemed justified, and hence
the killing was without the requisite malice.
However, other jurisdictions hold (and this is deemed the better view) that using deadly force for
the prevention of burglary is justified only when there is actually a human being within, or in the
general vicinity of, the structure burglarized. Otherwise, the particular burglary is not “dangerous”
or “atrocious.” In these jurisdictions, Jones would be guilty of common law murder—unless the court
accepted “imperfect crime prevention” as a form of mitigation, which would reduce the homicide from
murder to voluntary manslaughter. If the court rejects such an argument, Jones is guilty of common
law murder because the killing is not otherwise justified, excused, or mitigated.
By statute, most jurisdictions today divide murder into two degrees. One form of first degree murder
is an intentional murder with “premeditation and deliberation.” Another form is a murder committed
by means of poison, torture, bomb, or ambush. If Jones is found to have intended to kill, she would
be guilty of first degree murder, because she clearly premeditated and deliberated with respect to this
intention. This inference is compelling in a spring gun situation, which by its very nature shows that
the idea of killing was considered for an appreciable time, and then calmly acted upon.

ANSWER TO EXAM QUESTION NO. 2

Conspiracy
All four are guilty of conspiracy to commit arson. At issue is whether a sufficient overt act was
committed to hold the defendants criminally liable for conspiracy. Conspiracy consists of an intentional
agreement between two or more persons to commit an offense and (in most jurisdictions) an overt
act by any member of the conspiracy in furtherance of the agreement. The four clearly intended and
agreed to commit arson. The overt act requirement was satisfied when they sent Dopey to buy gas to
start the fire. An act of preparation, even one innocent in itself, is sufficient. Thus, all four are guilty of
a conspiracy to commit arson.

Attempted Arson
The four are not guilty of attempted arson. At issue is whether the defendants progressed far enough
in their plan to be held liable for a criminal attempt. The mens rea of attempt is specific intent to
commit the crime, and the four clearly intended to perpetrate an act that would be arson. But the actus
reus of attempt requires an act beyond mere preparation: an act that comes very “close” to completing
the crime and/or that is a “substantial step” toward the completion of the crime that strongly corrobo-
rates the defendant’s intent. The four were a long way from actually burning their competitor’s home.
They still had to go there, spread the gas around, and set it on fire. Nor did the acts already accom-
plished unequivocally demonstrate an intent to commit arson. Obtaining a can of gas is a common act
not ordinarily limited to arsonists. Although arson is a very heinous crime, so that one will be deemed
to enter its zone of perpetration sooner than would be true as to some other crimes, this act was “prepa-
ratory” in the fullest meaning of the term. Thus, all four are not guilty of attempted arson.
4. CRIMINAL LAW EXAM ANSWERS

Theft of $2
Dopey is guilty of either petty larceny or petty embezzlement of the $2. At issue is whether Dopey
formed the intent to spend the money on whiskey before or after he received it. The others gave Dopey
possession of the $2 for the sole purpose of buying gas. If a bailee receives property, intending at
that time to spend it on himself, and he does so, he is guilty of larceny. On the other hand, if a bailee
receives property, and only later forms the intent to misappropriate it, when he does so, he is guilty
of embezzlement. (In many jurisdictions both crimes would now be denominated simply as “theft,”
so that the timing of Dopey’s intention to steal would not be important.) Theft of property worth less
than $200 (or in some jurisdictions as little as $50) is petty theft. The $2 Dopey stole is clearly in the
petty category. It would be no defense to Dopey that the victims of his theft were themselves criminals.
Thus, Dopey is guilty of either petty theft or petty embezzlement.

Theft of Gasoline
Dopey is also guilty of petty larceny of the gasoline. At issue is whether Dopey satisfied the asporta-
tion element of larceny. Larceny includes taking and carrying away the personal property of another
without her consent (i.e., trespassorily) and with intent to deprive her of it permanently. All of these
conditions were met here. The gas Dopey stole could not have been worth more than a few dollars and
is clearly in the petty category. To move Dopey’s actions from attempted larceny to larceny itself, it is
necessary only that he “carry away,” not that he “get away.” Thus, Dopey is guilty of petty theft of the
gasoline.

Involuntary Manslaughter
Criminal Negligence Theory: Dopey may also be guilty of involuntary manslaughter, which
consists of causing the death of another person through criminal negligence. At issue is whether
Dopey’s actions rise to the level of criminal negligence and whether Dopey was the actual and proxi-
mate cause of the operator’s death. To establish “criminal negligence,” it must be shown that the
accused’s conduct created a serious risk of harm to another of which a reasonable person would have
been aware (a higher probability of such harm than in “ordinary” or civil negligence).
Here, a reasonable person may well have realized that in attempting to escape across a busy highway,
it was foreseeable that the gas station operator would give chase and thereby be placed in danger from
cars on the highway.
As for the causation requirement, Dopey’s acts must be shown to be both an actual and proxi-
mate cause of the operator’s death. They clearly were an actual cause, because “but for” the theft and
attempted escape the operator would not have been killed. They were a proximate cause as well. It is
true that two other events intervened to cause the death, but neither operates to “break the chain” of
causation leading back to Dopey’s act. The act of the station operator in heedlessly pursuing Dopey out
into the highway was a dependent or responsive cause, one generated by what Dopey did, and it cannot
be said to be a totally abnormal response, especially from the vantage point of hindsight. The act of the
driver in running down the station operator was an independent or coincidental intervening force, but it
should have been foreseen by Dopey. Neither a normal dependent intervening force nor a foreseeable
independent intervening force will “break the chain” of proximate causation between Dopey’s act and
the operator’s death.
Thus, Dopey is guilty of involuntary manslaughter under a criminal negligence theory.
Misdemeanor Manslaughter Theory: Dopey could also be convicted of involuntary manslaughter
under a misdemeanor manslaughter theory. At issue is whether the misdemeanor was complete when
the operator was killed. Manslaughter (involuntary) can also be committed by killing another person in
the course of committing a misdemeanor. As discussed above, Dopey perpetrated the misdemeanor of
petty larceny against the operator, and this crime was a cause of the operator’s death. Even though the
operator was killed after the larceny itself was consummated, in most jurisdictions flight following a
crime (especially where there is immediate pursuit) is considered part of the crime for purposes of the
 CRIMINAL LAW EXAM ANSWERS 5.

misdemeanor manslaughter rule. An additional requirement is that the misdemeanor be malum in se,
which means inherently wrong by common moral standards. Larceny falls within this category. Thus,
Dopey is guilty of involuntary manslaughter under a misdemeanor manslaughter theory.

Vicarious Liability
John, Max, and Rip are not liable for Dopey’s substantive crimes. At issue is whether Dopey’s
theft and killing were a foreseeable result of the conspiracy. Conspirators are liable for acts of their
co-conspirator that take place within the foreseeable scope of the conspiracy. However, Dopey’s theft
of the gasoline and his subsequent acts in escaping therefrom were not foreseeable to the other three;
indeed, they had given him money to buy the gasoline. Therefore, his subsequent loss of the money
and decision to steal the gasoline cannot be regarded as within the foreseeable scope of the criminal
conspiracy. It was really a side excursion of his own to cover up the misappropriation of the money.
Accordingly, John, Max, and Rip are not liable for the larceny of the gas or the death of the gas station
operator. Since they neither advised nor aided the larceny of the gas, they were not accomplices to
Dopey’s theft. Thus, John, Max, and Rip are not liable for any of Dopey’s substantive crimes.

ANSWER TO EXAM QUESTION NO. 3

Is Adams Guilty of the Attempted Murder of Kitty?

Adams is guilty of the attempted murder of Kitty. At issue is whether Adams had the intent required
for an attempt and whether Adams proceeded far enough to be convicted of an attempt.
A criminal attempt consists of two elements: (i) a specific intent to cause a result that would be a
crime; and (ii) an act beyond mere preparation for the offense.
Intent: That Adams had the requisite intent for attempted murder seems clear enough. (Remember
that even if the jurisdiction requires malice for murder, an attempt will always require the specific
intent to commit the target crime.) He intended to kill Kitty if she failed his “test” for faithfulness; and
no legally recognized justification, excuse, or mitigation appears.
Act: Whether Adams’s acts were beyond mere preparation depends on the test adopted by the juris-
diction for making such determinations. Under the proximity test, the act must be dangerously close to
success. Adams’s acts were insufficient—all he did was purchase chocolates, poison them, and go to
the place where he was to pass them to his accomplice. Such acts are far from the last acts necessary
for commission of the crime (he had yet to meet with Barlow to give him the chocolates).
However, Adams’s act was probably sufficient under the Model Penal Code test, which requires
that the act constitute a substantial step toward commission of the crime that strongly corroborates
the defendant’s intent to commit the crime. Buying poisoned chocolates and taking them to pass them
on to an accomplice are certainly substantial steps toward commission of the murder plan here, and
they strongly show Adams’s intent to commit the crime; so Adams could be found guilty under this
test.
If the court concludes that Adams’s acts were sufficient for an indictable attempt, it is not a defense
that Adams was mistaken as to the lethality of the candy. An accused need be shown only to have had
the apparent ability to carry out his plan; therefore, as long as a reasonable person in Adams’s shoes
would have thought the candy contained enough LSD to kill Kitty, the crime would be complete even
though the candy was, in fact, not lethal.
As a result, Adams is guilty of an attempted murder of Kitty.

Is Adams Guilty of Solicitation?

Adams is also guilty of a criminal solicitation. At issue is whether Adams asked Barlow to commit a
crime.
6. CRIMINAL LAW EXAM ANSWERS

Solicitation consists of counseling, inciting, and inducing another person to commit a crime, with
the intention of procuring its commission. Adams’s statements to Barlow fit within this definition, as he
was in substance proposing that Barlow aid him in poisoning Kitty if she accepted the chocolates.
The crime of solicitation was complete when the plan was proposed by Adams. It is immate-
rial whether Barlow agreed thereto, or intended to carry it out. Thus, Adams is guilty of a criminal
conspiracy. (However, if Barlow did in fact agree thereto, and such agreement constituted a criminal
conspiracy, see below, most courts hold that the solicitation is merged with the conspiracy.)

Are Adams and Barlow Guilty of Conspiracy?

Adams and Barlow also committed a conspiracy to commit a criminal act. At issue is whether an
overt act was committed and whether Barlow had the mental capacity to enter into the conspiracy.
A conspiracy is the combination or agreement of two or more persons for the purpose of committing
an unlawful act; and, in most jurisdictions, an overt act committed in furtherance of the agreement.
Overt Act: Insofar as an “overt act” is required, Adams’s procuring the LSD-laced chocolates
would clearly suffice, since a mere act of preparation satisfies this requirement (even though such an
act may not be enough for a criminal attempt; see above).
Barlow’s Intent: There is no conspiracy at common law unless at least two persons have the requi-
site criminal intent. Barlow’s assent to Adams’s plan is inferred (we are told that he was afraid to
refuse), but it is not clear whether Barlow really intended to carry out the plan or was merely feigning
agreement. The fact that he entertained “excessive and irrational suspicions and distrust of others”
and was afraid of Adams, and that he apparently did not show up at the pool hall, suggests that he was
merely pretending to go along with Adams. If so, Barlow lacked the requisite criminal intent, so that
neither he nor Adams could be prosecuted for conspiracy. (Adams could still be prosecuted for solicita-
tion, however; see above.)
If, on the other hand, Barlow really intended to offer the chocolates to Kitty as per Adams’s plan,
there would be an indictable conspiracy.
Insanity: Barlow’s “excessive and irrational” fears would not constitute insanity so as to excuse
criminal liability. Even though “irrational” fears may indicate some mental disorder, there apparently
was no impairment of his ability to realize that killing Kitty was wrongful. Hence, Barlow cannot be
considered legally insane.
Coercion: The only other possible theory of exculpation would be coercion or duress. However,
this too would fail because (i) coercion does not excuse a criminal homicide, and the same result
should follow where a conspiracy to commit a criminal homicide is involved; and (ii) in any event,
the coercion defense operates only where one person is making a threat to immediately kill or inflict
serious injury upon another, and no such threat was made or is reasonably inferable from Adams’s
conduct.
Given that an overt act was committed and that Barlow had to enter into a conspiracy, both are
guilty of the conspiracy to kill Kitty.

Is Adams Guilty of the Criminal Homicide of Cox?

Adams is guilty of the criminal homicide of Cox. At issue is whether Adams’s conduct constitutes
malice murder or manslaughter.
Adams’s acts were both the actual and proximate cause of Cox’s death. Cox would not have died
but for Adams’s having dumped him in the woods. Moreover, Adams’s abandoning Cox in a helpless
condition, exposed to the elements, was the direct cause of Cox’s death (no intervening forces); every
direct cause that takes effect within one year is recognized by the common law as a proximate cause
for homicide purposes. Therefore, Cox’s death is a homicide attributable to Adams.
Murder: Cox’s death would be murder only if Adams acted with “malice aforethought.” Since
Adams did not intend to kill or injure Cox at all, “malice aforethought” can be established only if
Adams’s acts fall within the “abandoned and malignant heart” category. This would require a showing
 CRIMINAL LAW EXAM ANSWERS 7.

that Adams intentionally performed acts that created an unjustifiably high risk that another would die
and that he was recklessly indifferent to that risk. Nothing in the facts lends support to this theory.
First, Adams was apparently unaware that anyone would open and sample the box of poisoned candy
that he had laid on the bench. Second, when Adams later dumped Cox in the woods, he clearly had no
awareness of the risk to human life involved, because he thought the body was already lifeless. Conse-
quently, Adams lacked the requisite mens rea for murder.
Manslaughter: Adams is apparently guilty of involuntary manslaughter, which is a criminal
homicide committed without malice aforethought, as a result of criminal negligence, or in the
commission of an unlawful, malum in se act.
The “unlawful act” category is clearly involved in this case. In dumping what he thought to be a
lifeless body in the woods, Adams was apparently attempting to conceal evidence of what he thought
was a crime. This attempt to conceal evidence is probably itself a crime; but even if it is not, it is
clearly an attempt to interfere with the processes of justice and hence an inherently evil (“malum
in se”) act. Consequently, any death resulting from the commission of such an act, even though
accidental, is involuntary manslaughter.
It is also possible to argue that Adams is guilty of manslaughter on a “criminal negligence” theory—
i.e., that he was grossly negligent in determining whether Cox was still alive, and it was this negli-
gence that led to his dumping the body in the woods and Cox’s subsequent death. There was certainly
no social utility whatsoever in Adams’s conduct, and he apparently made no effort whatsoever to seek
medical aid or diagnosis, so that his acts would move quickly from the “ordinary” to the “criminal”
negligence category. (Comment: It is tempting to discuss “criminal negligence” on the theory that
Adams was negligent in leaving a box of LSD-laced chocolates lying around where others could eat
them. However, this would be an erroneous analysis because leaving the box of chocolates was not the
cause of Cox’s death. Cox died from exposure to the elements, not from consuming the chocolates.)
Thus, although Adams is not guilty of Cox’s murder, he is guilty of Cox’s manslaughter, and as a
result is guilty of a criminal homicide of Cox.

Is Barlow Guilty of the Criminal Homicide of Cox?

Barlow is probably not guilty for the homicide of Cox. At issue is whether the homicide of Cox was
in furtherance of the conspiracy between Adams and Cox.
The only conceivable theory on which Barlow might be held criminally liable for Cox’s death is to
impute to him Adams’s acts on the theory that they were co-conspirators (see above).
A conspirator is criminally liable (as a principal in the second degree at common law) for acts of his
co-conspirator committed in furtherance of the conspiracy. Basically, this includes all acts undertaken
to promote the common goal, and which are a natural and probable consequence of the illegal combi-
nation or agreement.
However, it is highly unlikely that Adams’s acts and the results thereof would be held within the
foreseeable scope of the Adams-Barlow conspiracy. The crime planned was to poison Kitty (murder),
while the crime that resulted was the accidental killing of a third person through other means—being
abandoned and exposed to the elements.
Under such circumstances, even assuming there was a conspiracy, Adams’s abandoning Cox in the
woods was not in furtherance of the conspiracy, and hence Barlow is not vicariously liable for Cox’s
death.

ANSWER TO EXAM QUESTION NO. 4

(A) Burglary
The Stereo Equipment: Don has not committed burglary in taking the stereo equipment. At issue
is whether the trespass element has been satisfied.
8. CRIMINAL LAW EXAM ANSWERS

Under the common law, the felony of burglary involved the trespassory breaking and entering of
the dwelling house of another at night for the purpose of committing a felony therein. We are told that
Don “entered” the warehouse. Furthermore, his use of a key to do so means that he opened a closed
door—a sufficient physical act to constitute the element of “breaking.” Although at common law a
commercial building, such as a warehouse, was not considered a “dwelling house” within the definition
of burglary, this element has been universally expanded by statute; hence, in modern times many sorts
of structures, including a warehouse, can be burglarized.
We are not told whether Don’s activity at the warehouse took place at night, as is required at
common law; nor are we told whether, if it took place in the daytime, the jurisdiction involved is one
that has abandoned the nighttime requirement for burglary, as many states have done. But in any event,
Don’s activity does not constitute burglary because Oscar’s consent to the entry of the warehouse and
the taking of the stereo equipment operates to eliminate the “trespass” element of this crime. Since
Oscar authorized Don to do precisely what he did do, his entering of the structure was not trespas-
sory, and his taking of the stereo equipment was not larcenous. Thus, he is not guilty of burglary with
respect to the stereo equipment.
The Vehicle in the Parking Lot: It is unclear whether Don committed burglary in taking the
vehicle. At issue again is whether there was a trespass, and whether there was a breaking.
This fact pattern raises a number of problems regarding the elements of the crime of burglary. First,
there are the same “dwelling house” and “nighttime” issues discussed above. Second, burglary usually
occurs when one enters a building in order to commit a felony “therein.” Where, as here, it is neces-
sary to go through a closed building in order to commit a felony in an open area, it is possible that
the entering of that building will be a burglary. Nevertheless, the problem remains that although we
are told Don “reentered the warehouse,” we are left to infer whether he reopened a door to do so, or
whether he opened any door in order to exit.
The question of consent also arises. Since the warehouse and the parking lot were owned and
possessed by Oscar, presumably he would have authorized Don, his cohort in crime, to act as he did in
the warehouse and in the parking lot area. If this were the case, there was no “trespass” by Don.
Finally, there is a problem as to whether Don’s actions in taking the automobile constituted larceny,
since we are not told whether he intended to keep the automobile permanently or to use it temporarily
and then abandon it. If his intent was to abandon the car, under the circumstances here the intent to
steal for larceny would be missing, although it could be argued that Don’s action created a risk of loss
of the automobile that would suffice for larceny. Thus, if his plan for the auto was not larcenous, then
he lacked the “felonious intent” required for burglary at the time of his reentry, and he would not be
guilty.

(B) Criminal Homicide of Police Officer

Don is guilty of the homicide of the police officer. At issue is whether Don has any derivative
criminal liability for Allen’s actions.
Before Don’s liability can be determined, it is necessary to assess the liability of his accomplice,
Allen, who was driving the speeding truck the officer was chasing at the time of his death. The first
issue is whether Allen was a proximate cause of the officer’s death. There is no question that Allen
was an actual cause of the death, because had he not done what he did, the officer would not have died
when, where, and as he did. The difficulty is that Allen was not the direct cause of the officer’s death,
because another causative factor—namely, the decision of the patrol officer to pursue Allen—inter-
vened between Allen’s driving at over 100 m.p.h. and the actual death of the officer.
Nonetheless, this intervening force was a dependent or responsive one—that is, it was generated by
Allen’s speeding in the first place. Therefore, since the officer’s action was not abnormal or extraordi-
nary, its presence as an intervening force does not “break the chain of causation” so as to prevent Allen
from being a “proximate” cause of the officer’s death.
 CRIMINAL LAW EXAM ANSWERS 9.

Intent is a problem to finding Don guilty of murder in that Allen did not intend to kill or to inflict
serious bodily injury upon the police officer. Moreover, since Don’s activities with respect to the stereo
equipment and the warehouse were not larcenous because of Oscar’s consent (discussed above), the
felony murder rule probably would not be operative (even if one assumes that at this time and place
the felony was still being “perpetrated” as required by that rule) unless the jurisdiction treated the
attempt to defraud the insurance company as a felony, but this is not indicated by the facts. However,
it is possible to be guilty of murder even without committing a felony, and without intending harm. A
person has malice aforethought if he is recklessly indifferent to an unjustifiably high risk to human life.
(This type of malice is sometimes called “depraved heart” or “abandoned and malignant heart.”) The
killing of another human being while recklessly indifferent to an unjustifiably high risk to human life
is common law murder. Under modern statutes, such murder is second degree murder. Furthermore,
even if a jury did not consider Allen’s conduct to be recklessly indifferent, driving an automobile at that
rate of speed would at least be considered criminally negligent, in which event the homicide would be
involuntary manslaughter.
Returning to Don’s liability as an accomplice and a co-conspirator of Allen, Don is chargeable with
any crimes that Allen foreseeably committed for the purpose of accomplishing the underlying criminal
goals. Since it could be anticipated that Allen, hurrying with the truck toward Mexico, would drive in
excess of the speed limit, and that if a police car tried to stop him, Allen would think that the “theft”
had been discovered and try to escape the officer, the murder or manslaughter committed by Allen
would be imputable to Don, his accomplice. As a result, Don may be criminally liable for the officer’s
death.

(C) Oscar’s Liability

Oscar is certainly criminally liable for a criminal conspiracy committed with Don, for any burglary
that Don committed, and for the police officer’s death. Additionally, it is very likely that Oscar would
be criminally liable for the attempt to defraud the insurance company. At issue is the criminal liability
for the criminal acts committed by a co-conspirator in furtherance of the conspiracy.
The agreement between Don and Oscar to cause a phony “disappearance” of Oscar’s insured stereo
equipment, and thereby defraud Oscar’s insurance carrier, amounts to the crime of conspiracy. This
conspiracy expanded when Allen agreed to join it. An “overt act” occurred when Oscar handed Don
the duplicate key.
In addition to being liable for the conspiracy itself, one who participates in a conspiracy is vicari-
ously liable for a crime committed by the co-conspirators, either if the crime was the goal of the
conspiracy, or if its commission could reasonably have been foreseen in the furtherance of that goal.
Therefore, any liability that Don or Allen incurred would be imputable to Oscar. Overlapping the rule
of vicarious liability in conspiracy situations is the concept of accomplice liability, which, again, would
make Oscar liable for the activities of Don. Thus, Oscar would face criminal liability for the burglary
and the death of the police officer.
It is unclear whether Oscar will face criminal liability for an attempt to defraud the insurance
company. At issue is whether his plan to defraud the insurance company has progressed far enough to
constitute an attempt.
There are two “tests” that are commonly used to determine if an attempt has occurred. Under
the proximity test, if the acts committed by the defendant come dangerously close to completing the
substantive crime, the defendant is criminally liable for an attempt of the substantive crime. Under the
Model Penal Code test, if the defendant’s acts amount to a “substantial step” toward the completion of
the crime and are strongly corroborative of the defendant’s intent to commit the substantive crime, the
defendant is criminally liable for an attempt of the substantive crime.
Here, the facts tell us that Don and Allen have already broken into the garage and have absconded
with the stereo equipment. The only thing left to do was report the property missing to the insur-
ance company. Under the substantial step test, there have been sufficient, concrete acts committed to
10. CRIMINAL LAW EXAM ANSWERS

corroborate the intent to defraud the insurance company. Under the proximity test, however, reporting
the false theft to the insurance company may be required as the last act to come “dangerously close”
to completing the crime, although it is certainly arguable that the plan has progressed far enough to
satisfy even the proximity test. Oscar’s liability may come down to which test the jurisdiction uses.
As a result, it is unclear whether Oscar will face criminal liability for an attempt to defraud the
insurance company.