1) Test Check list
  1. Check list
    1. Major issue
      1. Component checklist
  2. State issue, tell the rule -- and the public policy basis for the rule,
  3. Jurisdiction
    1. When the state is the legal cite -- conduct or example
    2. As to crimes of omission, the jurisdiction applies to where the act should have been performed
  4. Elements of a crime
    1. Act
      1. Any bodily movement
        1. Exceptions
          1. Act which is not the product of the actor's own volition
            1. Someone pushes someone into a third person
          2. Reflexive or convulsive act, like having an epileptic seizure
          3. Act performed while one is unconscious or asleep
            1. Sleep walking
      2. Omissions
        1. Statute (tax returns)
        2. Contract (lifeguard, nurse)
        3. Relationship between the parties (parents, spouses)
        4. Voluntarily assuming a duty of care towards someone else, than failing to perform
        5. Where your conduct created the peril
    2. Mental state
      1. Transferred intent -- intent gets transferred from one's attempt to their right -- makes one crime into two
        1. Murder
        2. Attempt at what failed
      2. Common law -- want to know which crimes go with which crimes under the common law
        1. Specific intent -- the state must prove the intent by independent evidence (and cannot be inferred from the conduct) Qualify for additional defenses not available for other kinds of crimes. Voluntary intoxication is a defense
          1. Inchoate crimes
            1. Solicitation: Asking someone to commit a crime
            2. Conspiracy: If one asks someone to commit a crime, and they agree (only crime is conspiracy)
            3. Attempt
          2. First Degree Murder (created by statute)
            1. If you see "murder" -- it is murder in the 2nd degree, and is not a specific intent crimes
            2. A defense would reduce the first degree crime to a malice crime of murder -- which is murder in the 2nd degree
          3. Assault (*)
          4. All common law felonies against property
          5. Larceny
          6. embezzlement
          7. robbery
          8. burglary
          9. forgery
          10. false pretences
        2. Malice (two malice crimes at common law ( Murder, and Arson))
          1. Common law murder
        3. General Intent (rape and battery and more) -- all other crimes unless they qualify for strict liability -- intent can be inferred from conduct
          1. All other crimes are general intent
        4. Strict Liability
          1. If the crime is in the administrative, regulatory, or morality area (if there are no adverbs) -- problem with assumption of strict liability according to the
          2. Mistake of fact negates intention -- so it can't be a defense to strict liability
            1. If a statute is administrative, regulatory, or morality area
          3. Any defense that negates an intention is no defense to the no intent crimes of strict liability
          4. Formula for strict liability
          5. Any defense to
      3. Model Penal Code -- know what the four intents are, and how they correspond to the common law
        1. Purposely
          1. one wants the end results to happen (no matter how unlikely)
          2. Common Law: specific intent
        2. Knowingly
          1. didn’t' need to want the result, but engaged in conduct overwhelmingly likely to produce that result
          2. Common Law: specific intent
        3. Recklessly
          1. Engage in conduct where there is a great risk of harm
          2. Knew there was a great risk of harm, and disregarded it
        4. Criminal Negligence (do note equate to
          1. Like civil negligence, only at a higher standard
  5. Accomplice Liability
    1. Accomplices are liable for the crime itself and all other foreseeable crimes
      1. Do not give anyone accomplice liability the person does not actively aiding abetting or counseling the crime
      2. Don't give people accomplice liability just because they are present, but they seem to be consenting
      3. They need to be liable for the crime itself and all other foreseeable crimes
  6. Conspiracy (see top) If one asks someone to commit a crime, and they agree (only crime is conspiracy)
    1. elements of conspiracy
      1. An agreement
      2. Intent to agree
      3. Intent to pursue the unlawful objective
    2. Liability for conspiracy: each conspirator is liable for all the crimes of co-conspirators if those crimes were committed in furtherance of the conspiracy and were foreseeable
    3. Agreement necessary for conspiracy -- but the agreement does not have to be express
    4. Defenses to conspiracy
      1. Overt act
        1. Majority: Agreement and some overt act
          1. Any act will do
            1. Guy shows up at place he agrees to rob
            2. Second meeting
        2. Minority: -- and common law -- conspiracy is in agreement itself
      2. Impossibility is no defense to conspiracy
      3. Withdrawals from conspiracy
        1. Even if withdrawal is adequate, can never withdraw the defendant from liability from the conspiracy itself
          1. Can withdraw from liability from other subsequent crimes
        2. Withdraw, even if adequate can never withdraw from liability from the conspirators other subsequent crimes
  7. Attempt (see top)
    1. Attempt is specific intent, and a substantial step in the direction of the crime
      1. Mere preparation for crime cannot be enough, must be a step beyond mere preparation
    2. Impossibility is no defense to a charge of attempt
      1. Majority/MPC:
        1. If the facts could have been as the defendant believed them, and if that would be a crime, then he would be guilty of attempting the crime under the MPC and under the majority position.
  8. Defenses
      9. Please visit
    1. Insanity -- four test
      1. M'Naughton Rule (traditional): Defendant is not guilty by reason of insanity if he lacked the ability to know (and the time of his conduct) the wrongfulness of his action or to understand the nature and quality of his action
        1. I.e. one thinks that they are squeezing lemons
      2. Irresistible impulse: Defendant lacked the ability or capacity for self control and free choice.
      3. Durham rule (formerly test in DC and NH): Defendant's conduct is a product of a mental illness
      4. ALI or MPC test: Defendant lacked the ability to conform his conduct to the requirements of law
    2. Intoxication
      1. Voluntary intoxication: Addicts and alcoholics are voluntarily intoxicated
        1. Voluntary intoxication is a defense only to specific intent crimes
      2. Involuntary intoxication: When someone is slipped into one's drink or forced to drink)
        1. This is a form of insanity
        2. Just like insanity it is a defense to all crimes, even the no intent crimes of strict liability
    3. Infancy
      1. Under seven -- no criminal liability
      2. Under fourteen -- rebuttable presumption of criminal liability
    4. Self defense
      1. Non-deadly force: one may use non-deadly force any time they believe that a victim reasonably believes that force is about to be used on him
      2. Deadly force
        1. Majority: A victim may use deadly force any time that victim reasonably believes that deadly force is about to be used on him
          1. Deadly force is any force that results in death
        2. Minority: Require a victim to retreat to the wall if it safe to do so
          1. Exceptions to duty to retreat
            1. Don't have to retreat out of your home
            2. Don't have to retreat if you are a victim of a rape or robbery
            3. Police officers have no duty to retreat
      3. When does an original aggressor get the defense of self-defense unless the aggressor runs away and stops at the door, communicate that he is withdrawing.
    5. Defense of others: This turns on only the reasonableness of the belief that they need your assistance.
    6. Defense of a dwelling
      1. Deadly force may never be sued solely to defend your property
      2. Spring guns are a crime -- deadly force may never be used solely to defend your property
    7. Duress and Necessity
      1. Defenses to all crimes at common law, except homicide
        1. Necessity is the same as duress, except that it is a defense to all crimes, except homicide
    8. Mistake of fact (defense only when it negates intention) -- must be reasonable.
      1. Any mistake, no matter how preposterous is an event, if the defendant is charged with a specific intent crime

      Mistake of fact chart

       

      Mental State of the Crime

      Application of the Defense

      Specific Intent

      Any mistake (reasonable or unreasonable)

      Malice and General Intent

      Reasonable Mistakes only

      Strict Liability

      Never

    9. Mistake of law

        1. No excuse but see caveat
    10. Consent of the victim
    11. Entrapment
        1. Almost never available because predisposition on the part of the defendant to commit the crime negates entrapment
  9. Common law crimes -- no state actually has them. One you know the old common law crimes, one can predict the MPC versions
    1. Battery -- (General Intent) a completed assault
    2. Assault -- to tie to a mental state, it is necessary --must look at the statute
      1. Assault as an attempted battery (specific intent crime)
        1. Like all attempts, assault as an attempted battery is a specific intent crime
      2. Assault as a threat -- (general intent crime)
    3. Homicide
      1. Victim must be human
      2. Murder, by itself is common law murder (requiring malice) and won't be able to use the
        1. additional defenses for first degree murder (and for only specific intent crimes) -- lower the mental state to common law murder
          1. voluntary intoxication
          2. any mistake of fact reasonable or unreasonable
        2. MALICE at common law, one of the following intents were necessary (look like specific intent)
          1. Intent to kill
          2. Intent to do serious bodily harm
          3. Abandoned and malignant murder (highly reckless, depraved heart)
            1. Intentional performance of an act detailing a substantial likelihood of an act causing death
            2. I.e. play Russian Roulette
          4. Felony Murder: causing death while you are committing a felony
    4. Manslaughter -- Two kinds of manslaughter
      1. Voluntary manslaughter -- never use voluntary manslaughter unless there is some passion
        1. Killing from passion (provoked) -- no adequate time to cool off
        2. Fight
      2. involuntary manslaughter -- killings from criminal negligence
        1. falling asleep at the wheel of a car
      3. misdemeanor manslaughter
        1. killing while you are committing a misdemeanor
        2. or what is known as an unenunerated felony(not dangerous)
    5. felony murder
      1. if there is a defense to the underlying murder there is a defense to felony murder
      2. felony in question must be something other than the felony
      3. deaths must be foreseeable
      4. deaths caused while fleeing from a felony are felony murder
        1. once the defendant reaches a point of temporary safety, deaths caused after this are not felony murder
      5. REDLINE view: defendant is not liable for the death of a cofelon as a result of resistance by the victim or the police
        1. If the victim accidentally kills another, it is a felony murder
    6. Kidnapping
      1. Need a kid
      2. Need a napping
    7. Sex offences
      1. Rape -- slightest penetration completes the crime of rape
      2. Statutory rape (strict liability)
      3. Crimes against nature
        1. Bestiality
        2. Carnal knowledge
        3. Fornication
    8. Property offences
      1. Larceny
        1. Always requires an unlawful taking
        2. Common law larceny required a carrying away (asportation) without his consent with the intent to deprive the owner permanently of his interest in the property
      2. Continuing trespass (statutory expansions of Larceny)
        1. Not returning something accidentally taken
      3. Larceny by trick (statutory expansions of Larceny)
        1. I.e. changing price tags
        2. defendant gets possession not title
      4. Embezzlement -- embezzlement has lawful possession
        1. lawful possession followed by illegal conversion
          1. example is trustee
        2. defendant gets possession not title
      5. false pretences
        1. defendant convinces the owner of property to convey title via false pretenses
        2. must be a misrepresentation as to a present or future fact
      6. Robbery = Larceny + Assault
        1. Larceny
          1. Always requires an unlawful taking
          2. Common law larceny required a carrying away (asportation) without his consent with the intent to deprive the owner permanently of his interest in the property
        2. In order to be robbery the defendant must take from the person or his presence
          1. Take with any amount of violence
            1. Picking a pocket is larceny
          2. Putting in fear is robbery -- must be in immediate fear
            1. Can be immediate harm to someone else
      7. Extortion -- Robbery not in immediate fear
        1. Extortion is blackmail
        2. Differences between extortion and robbery
          1. One does not need to take anything from the person or his presence
          2. Threat of future harm
    9. Offences against habitation
      1. Burglary -- for common law had to be a dwelling house at night for intent to commit a felony
        1. Requires a breaking
          1. Could be constructive breaking
            1. Threats or fraud
          2. At common law any entry without breaking was not Burglary
        2. Entering
          1. Whenever any part of the defendant's body crosses into the house
      2. Intent to commit the felony must be present at the time of the burglary
    10. Arson
      1. At common law, arson had to be the dwelling house of another
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