CRIMINAL LAW

EXAM: Comparing MPC to common law or state law.

Separate out transactions separately in fact pattern
W/in transaction organize by legal issue.
Use irac for each transaction to separate legal issues
**When you state rule, state POLICY that underlies the rule**

On any exam:
● every time first lay down elements of the common law crime before discussing any modern statutory modifications. Always lead
w/ elements of common law crime.
● Modern statutes merely plug up the holes in the common law crimes…

GENERAL PRINCIPLES
Jurisdiction​: State has jurisdiction to adjudicate a crime if (1) the conduct happened there, or (2) result happened there.
Crimes of omission: their jurisdiction lies where the act should have been performed.

I.​ ​Types of Crimes

A. Felony​:​ A crime punishable by death or by imprisonment for ​more than one year​.
B. Misdemeanor​:​ A crime punishable for 1 year or less or by a fine only.
C. Malum Prohibitum​:​ An act that’s wrong only because it violates a statute.
D. Malum in Se​:​ An act that’s inherently wrong or “evil”—an act that involves a general criminal intent or moral turpitude.
E. Infamous​:​ At common law, involves fraud or dishonesty. Modernly this has expanded to include most felonies.
II.​ ​Elements of Crimes
A. In General​:​ ​The prosecution must prove the following elements beyond a reasonable doubt:
(1) actus reus
(2) mens rea
(3) concurrence​ in time between the act and the requisite mental state, and
(4) occurrence​ of result for crime completion (i.e. homicide crimes require that the victim die).
B. Actus Reus—Physical Act
1.​ ​Voluntary Act​: ​Must be a volitional, conscious exercise of the will.
· Reflex actions and sleepwalking à not volitional.
· Conditioned reactions or habitual responses à volitional.
· Acts performed under duress à volitional, but duress may be a defense.
2.​ ​Omission to Act​: ​Failure to act where there’s ​(1) ​a ​legal duty to act​, ​(2) Δ had knowledge of facts giving rise to
the duty​; and​ (3) Δ can physically perform the act.
· ​Legal Duty to Act​:​ May ​arise by statute​ (i.e. failing to file a tax return); ​by K​ (i.e. failure of a lifeguard,
nurse, or guide on a hiking or river-rafting expedition to rescue); ​relationship​ between Δ and the victim
(husband/wife; parent/child); ​voluntary assumption of care​; ​creation of peril​.

Mental State
*most important topic in crim law
1. Common Law
2. MPC Mental State Approach

Common Law
Mens Rea State of Mind Subjective/Objective Test? Types of Crimes Defenses
Required

Specific Intent to achieve a Subjective FIAT ● involuntary intox

Intent particular ​result ● Requires proof that Δ 1. First Degree ● voluntary intox
other than the act intended to produce a Murder ● Reasonable
itself. specifically prohibited 2. Inchoate Mistake of fact
harm. Must ​always b​ e Crimes ● Unreasonable
proven, ​never ​inferred. (solicitation, mistake of fact in
● Specific intent exists conspiracy, good faith
where Δ attempt)
wants/hopes/wishes that 3. Assault (with
his conduct bring about a intent to
particular result or Δ is commit
substantially certain his battery)
purposeful act will have a 4. Theft Crimes
particular result.
● The mere doing of the act **NOTE: attempt is
is not enough to prove SI always SI, even when
mens rea- but is the crime attempted is
circumstantial evidence not.

General Awareness of all ● Subjective- but jury can 1. Battery ● involuntary intox
Intent factors constituting infer merely from the 2. Rape ● reasonable mistake
crime (aware of high doing of the act 3. Kidnapping of fact
likelihood that 4. False
circumstances will Imprisonment
occur) 5. involuntary
manslaughter

*most other crimes

(catch-all category)

Malice Reckless disregard ● subjective Murder (common law)

of an obvious or Arson
high risk that the
particular harmful
result will occur
 Strict No mens rea N/A ·​Regulatory/Public if when you read statute
Liability required – Act + Welfare Offenses​: on exam, crime is in the
Result = Guilt. Implicate public health administrative, regulatory
Culpability imposed or safety; usually low or morality area, and no
merely for doing the penalty and don’t adverbs, or mens rea terms
act that’s prohibited involve significant then think they mean it to
by statue. moral impropriety (i.e. be strict liability and once
traffic violations, you know it’s SL (no
administrative statutes, intent crime) you know
regulation of firearms, that any defense that
food, and drugs). negates intention is no
· ​Morality Crimes​: defense to a no intent
Statutory rape and crime of SL
bigamy.

Model Penal Code Mental States

MPC Levels of Fault​: Eliminates common law distinction between general and specific intent. Instead, it proposes 4 categories into
which the mental component of a crime can be characterized.
a. Purposely​: Conscious objective to ​engage in certain conduct ​or ​cause a certain result​. ​Subjective
b. Knowingly​: Δ knows the nature and/or result of his conduct. ​Subjective
(i) or aware of high probability that they exist and deliberately avoids learning the truth
(ii) knowing conduct when he knows that his conduct will necessarily or very likely cause a certain result
c. Recklessly​: Conscious ​disregard​ of a substantial and unjustifiable risk. Objective: unjustifiable risk. Subjective: awareness
d. Negligently​: ​Unaware​ of a substantial and unjustifiable risk, but should’ve been aware. Higher bar than tort neg (reasonable
person)- must be a very unreasonable risk. ​Objective.

Transferred Intent​:​ Preserves liability where Δ intends criminal conduct against one party but instead harms another party, so that his
actions bring about an unintended, yet still criminal, result.
· ​HArB ​Only applies to homicide, battery and arson – doesn’t apply to attempt.
· Defenses and mitigating circumstances may also be transferred.
· Δ will usually be charged w/ 2 crimes – attempt and the actual resulting crime, bc 2 dif victims.

Vicarious Liability: ​trend is to limit it to just regulatory crimes, punish with a fine.

Motive: ​the reason why the crime was perpetrated—different from intent. Motive is immaterial to crim law.

Concurrence​: Δ must have the intent necessary for the crime at the time he committed the act constituting the crime mens rea & actus
reus must exist simultaneously. In addition, the intent must have prompted the act.
1. if D drives to A’s house to kill him but runs him over accidentally on the way there- no concurrence.

Occurrence/Causation​:​ Δ’s conduct must be both the ​A/C & P/C ​of the specified criminal result.
1
1. Actual Cause : ​The result wouldn’t have occurred but for Δ’s conduct.
a. Substantial Factor​:​ When there are multiples causes or other parties responsible for the criminal result, courts will still find a Δ
responsible if the Δ’s act was a substantial factor causing the criminal result.

1
​Exam Tip​: A/C is ALWAYS required; Δ can’t be a P/C unless he’s first the A/C.
 2
2. Proximate Cause :​ The actual result is the natural and probable consequence of Δ’s conduct. If the harm was a ​foreseeable consequence
of Δ’s conduct, Δ is the proximate cause; if the harm was an ​unforeseeable result ​of Δ’s conduct, Δ is ​not​ the proximate cause.
i. Unforeseeable​:​ Grossly negligent or reckless conduct that accelerates a death set in motion by Δ.
ii. Foreseeable​:​ Unknown, special sensitivities or vulnerabilities of a victim; simple negligence
3. Direct Cause​:​ When Δ’s actions alone cause the harm, he’ll probably be held responsible.
4. Indirect/Intervening Cause​:​ Another force combines w/ Δ’s act to bring about harm. To relieve Δ of liability, the other force must be a
superseding intervening cause​ – to supersede, ​it must be unforeseeable​.
i. Dependent​:​ An intervening force that’s a result of or response to Δ’s act. Will supersede only when it’s a totally abnormal
response to the Δ’s act.
ii. Independent​:​ Would’ve occurred regardless of Δ’s act. Will normally supersede Δ’s act, except when the independent
intervening force was foreseeable. A foreseeable coincidence doesn’t relieve Δ of liability.

II. CRIMES AGAINST THE PERSON

I. Assault:​ ​ An attempt to commit a battery or the intent to place another in fear of imminent injury.
A. Attempted Battery​ (specific intent): ​Requires intent to commit a battery. Intent to frighten, though accompanied by some fear-producing act
like point a gun, won’t suffice.
1. So long as Δ intended to commit the battery, it’s no defense that the victim was unaware of the assault or that Δ wasn’t presently able to
commit the battery.
B. Assault as a Threat​ (general intent):​ Intentional creation (by threatening conduct) of a reasonable apprehension of imminent bodily harm.
1. Reasonable Apprehension​:​ When a reasonable person would expect imminent bodily harm. Connotes “expectation” more than “fear” ​
victim doesn’t actually have to be afraid but rather simply and reasonably anticipate or expect that Δ’s acts will result in immediate bodily
harm.
2. Awareness​:​ If the Δ never intended to actually consummate the battery, the assault must be proved by the fear theory, which requires the
victim be aware of the threatened battery. Unlike attempted battery, fear or apprehension is key – no assault where victim is unaware of the
threat of harm.
3. Merger​:​ If feared battery is accomplished, assault and battery merge and Δ is found guilty only of the battery.
C. Statutory Aggravated Assault​:​ ​An assault may rise to aggravated assault under certain circumstances, including (1) where Δ commits an
assault w/ a deadly weapon; (2) where Δ acts w/ intent to seriously injure, rape, or murder the victim; or (3) the victim is specially protected by
statute.

II. Battery:​ ​ Unlawful application of force to the person of another resulting in bodily injury or offensive touching.
A. General Intent​:​ ​Established by proving that Δ unlawfully applied force intentionally/recklessly/negligently; and w/ no legal justification or
excuse.
B. Force​: ​May be direct or indirect. Where Δ puts a force in motion, the force need not be applied directly by Δ.
1. Ex:​ Causing a dog to attack or by causing the victim to take poison.
C. Aggravated Battery​: ​Common circumstances elevating batter to aggravated battery:
1. Δ causing victim serious bodily injury
2. Δ using a deadly weapon to commit the battery
3. Δ battering a special category of persons (woman, child, or law enforcement officer)
D. Defenses
1. Consent​:​ Always a defense where not coerced or obtained by fraud, not a defense to a breach of the peace.
2. Self-Defense/Defense of Others​:​ Valid defenses to a battery charge, so long as Δ uses proportional force.
3. Crime Prevention​:​ Where Δ commits an offensive touching to prevent someone from committing a crime, this will be a defense to battery
if Δ uses proportional force.

III. False Imprisonment:​ ​ Intentional, unlawful confinement of one person by another w/o consent.
A. Confinement​:​ Victim compelled to go where he doesn’t want to go or to remain where he doesn’t want to remain​. ​It’s not enough to prevent a
person from going where he desires to go, as long as alternative routes are available to him. May be accomplished by actual force, threats of
force, or by a show of force.
B. Unlawful​:​ Confinement is unlawful unless it’s specifically authorized by law or by consent. If Δ is privileged to confine, such as a police
officer or private citizen making a valid citizen’s arrest ​ ​ no crime.

IV. Homicide:​ ​ T
​ he unlawful taking of the life of another w/ criminal intent and w/o legal excuse or justification.
A. Common Law Murder​: The unlawful killing of another person w/ malice aforethought. A killing is unlawful when it’s w/o legal justification
or excuse; or when it’s committed as the result of a criminal state of mind.
1. Actus Reus​:​ May be a voluntary act, an involuntary act arising from a voluntary act, or an omission to act where there’s a legal duty to act.
a. Voluntary Act​:​ Act is sufficient even if it’s itself lawful and/or inherently non-dangerous. If immediate killing act was involuntary
due to epileptic seizure or sudden unconsciousness, look to see whether the last voluntary act by Δ was done w/ awareness of
possibility of loss of control.

2
​Exam Tip​: Proximate cause analysis is required only when an intervening event comes between D’s actual cause and the criminal result. If the facts so indicate, it is
necessary to determine whether that intervening event (being by human or some other cause) supersedes D’s responsibility. If the intervening event is foreseeable, it does
not supersede; if it is unforeseeable, it normally will supersede.
 b. Omission​:​ Death caused by Δ’s failure to do an act he had a legal duty to do as the result of ​(1) ​special statute, ​(2)​ contractual
obligation, ​(3)​ special relationship of dependency, ​(4)​ voluntary undertaking (if abandonment puts victim in worse position), or ​(5)​ Δ’s
innocent act imperils victim.
c. Vicarious Liability​:​ Δ is responsible for homicidal acts of: ​(1)​ non-responsible agents put into motion by Δ, ​(2) ​accomplices—if act
was reasonably foreseeable, and ​(3)​ co-conspirators—if act was done in furtherance of the conspiratorial goal.
2. Mens Rea: Malice Aforethought – Express or Implied
a. Intent to Kill ​[express]:​ ​Desire/purpose to kill or knowledge to a substantial certainty death will occur.
i. Deadly Weapons Doctrine​:​ Intent to kill is normally inferred from Δ’s use of an instrument designed to kill or used in a manner
likely to kill or inflict GBH.
ii. Words​ ​alone may provide proof of intent to kill.
b. Intent to Cause Serious Bodily Harm ​[express]:​ ​Unintended killing resulting from an act done w/ purpose/knowledge that it
cause serious protected injury or create a substantial risk of death.
i. Use of a deadly weapon in a way likely to cause serious injury provides evidence of intent to inflict SBI.
ii. Includes any intentional wounding w/ a gun or knife, breaking of bones, clubbing, poisoning, or an act designed to produce
unconsciousness by drugs or violence.
c. Depraved Heard Murder ​[implied]​ ​(AKA Extreme Recklessness Murder):​ ​Unintentional killing committed w/ reckless
indifference to an unjustifiably high risk to human life.
i. More than mere recklessness – act must reveal a wanton depraved indifference to human life.
ii. Δ may knowingly create a very high risk of death or SBI for a logical and socially reasonable purpose, in which case the conduct
wouldn’t be considered DHM.
d. Felony Murde​r​ ​[implied]:​ ​Unintentional killing proximately caused during the attempt or commission or of an inherently
dangerous felony. ​Malice is implied from the intent to commit the underlying felony.
i. Felonies​:​ ​Inherently dangerous felonies (i.e. burglary, arson, rape, robbery, kidnapping) & felonies defined by statute. Also
includes felonies that are committed in a dangerous manner.
ii. Collateral Felony Rule​:​ A majority of states require that the underlying felony be ​collateral​ (independent of homicide). If the
primary felonious purpose is serious physical harm – not independent.
iii. Foreseeability of Death​:​ Resulting death must be a ​foreseeable result of the felony​.
1. Most courts have been willing to find most deaths foreseeable.
2. Only deaths that are totally unrelated to the felony and occur as a mere coincidence are excluded.
iv. Timing:​ ​ Death must occur during commission or perpetration of the felony. The felony starts when Δ has done enough to
constitute attempt, and continues through the course and completion of the felony ​until Δ has reached a place of temporary safety.​
Includes fleeing from the scene.
v. Vicarious/Co-Felon Liability​:​ Depends on jurisdiction.
1. Agency Theory (Modern/Majority)​:​ Killing must be committed by a co-felon; no liability when a non-felon kills a felon or a
bystander.
2. Proximate Cause (Common Law/Minority)​:​ All felons liable for ​any death​ that occurred during the perpetration of the
felony. Broadest application.
(a) Redline Limitation:​ Dead person must not be a felon ​ ​ exempts killings at the hand of a non-felon when the killing is a
justifiable or excusable homicide (i.e. police or victim shoots felon).
(b) Nonviolent Exception​: Affirmative defense for nonviolent co-felons who were unarmed, unaware that violence would
occur, and didn’t encourage the violence.
vi. Fleeing Felon:​ ​ An officer can use deadly force against a fleeing felon if: ​(1) ​the use of deadly force is necessary to prevent
felon’s escape; ​(2)​ the fleeing felon threatened the officer w/ a weapon or officer has probable cause to believe that felon has
committed a crime involving infliction of serious physical harm; and ​(3) ​officer gives felon some warning of imminent use of
deadly force, if feasible.
3. Causation​:​ Δ’s conduct must be both the actual and proximate cause of victim’s death.
a. Actual Cause​: ​But for Δ’s act, the victim would’ve lived longer.
i. Acceleration​:​ Where victim is already dying, if Δ’s actions bring about the victim’s death more quickly than if Δ had not acted,
Δ’s actions would be an actual cause of the killing.
b. Proximate Cause​:​ Where victim’s death was a natural and probable consequence of Δ’s conduct, Δ may be guilty of murder, even
where he didn’t foresee the exact chain of events that resulted in victim’s death.
i. Year-and-a-day Rule:​ ​ At common law, the victim must die w/in a year and a day of the injury inflicted by Δ. Most states have
eliminated this rule or extended the period to 3 years.
ii. Intervening Acts​:​ Can sever the chain of causation if the intervening act was ​(1)​ ​independently sufficient​ to cause the death, ​(2)
unforeseeable​, and ​(3) ​and ​independent act of god​ or another person not directly and logically flowing from Δ’s act.
iii. Pre-Existing Conditions:​ Δ ​ takes the victim as he finds him ​ ​ unknown and unforeseeable pre-existing conditions which
contribute to the victim’s death ​do not intervene​.
c. Born Alive​:​ Common law requirement for a living person was one “born alive” (though a state may extend criminal liability to
include a fetus after the 1​st​ trimester).
d. Suicide​ ≠​ Homicide​:​ Death must be caused by someone other than the victim. Persuading or aiding another’s suicide is sufficient
basis for murder in some jurisdictions.

B. Voluntary Manslaughter​:​ ​An intentional killing mitigated by adequate provocation or other circumstances negating malice.
1. Heat of Passion/Adequate Provocation​:​ Murder can be reduced to voluntary manslaughter if the Δ killed in the heat of passion.
a. Requirements​:​ ​(1) ​Provocation would cause a sudden and intense passion in a reasonable person, causing him to lose self control; ​(2)
Δ was in fact provoked; ​(3)​ insufficient time for a reasonable person to cool off; and ​(4)​ Δ in fact did not cool off.
 b. Adequate​:​ Measured objectively. Most frequently recognized in cases of being subjected to serious battery or a threat of deadly force;
discovering one’s spouse in bed w/ another person; or witnessing serious physical injury of a close family member. Mere words not
enough.
c. No Cooling Off Time:​ There was insufficient time for a reasonable person to cool off between the provocation and the killing (very
subjective and fact-based). If a person does actually cool off, even where a reasonable person might not have, it’s murder and not
voluntary manslaughter.
2. Imperfect Self-Defense​:​ Murder may be reduced to manslaughter even though ​(a) ​Δ was at fault in starting the altercation, or ​(b)​ Δ
unreasonably but honestly believed in the necessity of responding w/ deadly force.
a. Such mistaken justification has been applied to self-defense, defense of others, crime prevention, coercion, and necessity.
3. Diminished Capacity​:​ A minority of states allow diminished mental capacity short of insanity to negate malice aforethought and reduce
the charge to voluntary manslaughter.

C. Involuntary Manslaughter​:​ ​An unintentional killing caused either by recklessness, criminal negligence, or during the attempt or
commission of an unlawful act.
1. Gross Negligence​:​ Wanton disregard of the risk of death or SBI.
a. Requires more than ordinary negligence; Δ doesn’t have to be consciously aware of the risk created.
b. Normally deals w/ mishandling of an ​inherently dangerous instrumentality​ ​(i.e. guns, explosives, cars)​, ​product,​ or ​situation​ ​(i.e. risk
of fire in a public place)​.
c. An unintended death which occurs as a result of a battery that is not an attempt to inflict SBI is considered involuntary manslaughter.
2. Misdemeanor Manslaughter​:​ Unintentional killing that occurs during the attempt or commission of a misdemeanor that is malum in se,
or a felony that’s not under FMR.
a. Death resulting from a malum prohibitum crime is sufficient to impose liability or involuntary manslaughter only when the killing is
either a foreseeable consequence of the unlawful conduct or amounts to criminal negligence.

D. Murder by Degrees
1. 1​st​-Degree Murder
a. Deliberate & Premeditated Killing​:​ Where Δ acted in a cool and dispassionate manner (deliberate) and had time to reflect upon the
idea of killing, even if only for a moment (premeditated).
i. Typically includes lying in wait, murder by poison, terrorism, torture, or murder of a special victim.
b. Felony Murder​: ​1st​​ degree murder if the felony is enumerated.
2. 2​nd​-Degree Murder​:​ Any murder that doesn’t rise to the level of 1​st​-degree. Examples include:
a. Where Δ’s malice is intent to inflict serious bodily injury
b. Where Δ acted w/ wanton and willful misconduct
c. FMR, where the underlying felony isn’t specifically listed under the statute.

V. Kidnapping
A. Common Law​:​ ​Forcible abduction or stealing away of a person from his own country and sending him to another.
B. Modernly​:​ Confinement of a person that involves either some ​movement​ (asportation) of the victim; OR ​concealment​ of the victim in a
“secret” place.
C. Aggravated Kidnapping​: ​Separate offense in some states. Usually includes kidnapping for ransom, for purpose of commission of other
crimes, or child stealing.
D. Asportation/Movement​:​ Majority of jurisdictions require some movement of the victim. If the victim is restrained but is not moved, it is not
kidnapping. In a minority of jurisdictions, unlawful restraint alone can prove kidnapping.

VI. Mayhem
A. Common Law​:​ Required an intent to maim or do bodily injury accompanied by either ​(1)​ dismemberment; or ​(2)​ disabled the use of a victim’s
body part that was useful for fighting.
B. Modern Rule​:​ The permanent dismemberment or disablement of a bodily part. In jurisdictions that don’t retain the crime of mayhem, this
offense will normally qualify as an aggravated battery.

VII.Rape
A. Common Law​:​ Carnal knowledge of a woman by a man, not her husband, by force and w/o her effective consent.
1. A man could not rape his wife or a man.
2. Force or threat of force was required for rape to occur, and a victim had to physically “resist to the utmost” in such a manner that
demonstrates lack of consent and causes perpetrator to use violence in order to overcome her will.
B. Modernly​:​ The unlawful sexual intercourse of a female w/o her consent
1. Force requirement eliminated. It’s enough that there was verbal resistance or absence of affirmative consent. Force is met by the degree of
force required to achieve penetration.
2. Lack of “effective consent” exists if: ​(a) i​ ntercourse is accomplished by force or threat of immediate SBI; ​(b)​ victim is incapable of
consenting due to lack of capacity (i.e. unconscious, intoxicated); or ​(c)​ victim fraudulently caused to believe the act is not intercourse.
C. Actus Reus​:​ Penetration. The slightest penetration is sufficient to constitute rape. Other nonconsensual sexual contact is generally covered
under a separate crime of sexual assault, sexual contact, or sexual battery.
D. Statutory Rape​:​ Where a female is under the statutorily prescribed age of consent, an act of intercourse constitutes rape despite her apparent
consent. Δ’s mistake as to age is no defense.
 III. CRIMES AGAINST PROPERTY
I. General Principles
A. Theft crimes​ involve taking of property from the victim by Δ. The key to analyzing thefts is to examine 3 criteria:
1. How the Δ obtained the property​: trespass, delivery, or trick;
2. Whether the Δ acquired ​custody, possession, or title to the property​; and
3. Whether the Δ ​formed the intent to permanently deprive​ (steal) the property at some time while still in ​unlawful possession​ of the property.
B. Intent​:​ Intent ​to permanently deprive​ (or steal) is the ​sine qua non​ of all theft offenses. If Δ never forms the intent to permanently deprive
before the property is restored to the rightful possessor, Δ can’t be guilty of any form of theft offense. ​An unlawful taking, even w/ intent to
temporarily​ deprive, is never theft​.
C. Mistake:​ ​An honest mistake negates required intent, no matter how unreasonable. Defenses: voluntary/involuntary intox.
Reasonable/unreasonable mistake.
D. Forms of Control
1. Title = legal ownership, and implies possession.
2. Possession = full dominion and control over the property, but doesn’t require title.
3. Custody = physical control of property in someone else’s possession w/o full dominion over the property–the possessor places strict limits
on permissible use of the property.

II. Larceny​:​ The ​trespassory​ taking and carrying away of personal property of another w/o consent and w/ intent to permanently deprive the owner
thereof.
A. Taking​: ​Assertion of dominion and control over the property by a Δ who doesn’t have lawful possession, generally through trespass (w/o
consent).
1. When taking is accomplished by trickery ​ ​ larceny by trick.
2. If Δ already has possession ​ ​ embezzlement.
B. Asportation​: ​The slightest movement will suffice (i.e. 6 in.). Must concur in time w/ intent to permanently deprive.
C. Personal Property​: ​Δ must take personal property at common law, but most states have special statutes for theft of services and other
intangibles (i.e. gas and electrical power and written instruments that represent property rights).
1. Abandoned/Lost/Misdelivered Property​: Abandoned property can’t be the subject of larceny. Lost or mislaid property is regarded as
constructively in the possession of the owner; thus, to be guilty of larceny, the finder must ​(a)​ intend to permanently deprive the owner of
it; and​ (b) ​either know who the owner is or have reason to believe (from earmarkings on the property or from circumstances of the finding)
that he can find out the owner’s identity.
D. Of Another​: ​Property must be taken from someone who has a possessory interest superior to that of Δ. Any bona fide claim of right is a
complete defense.
1. Employees​: Only have ​custody​ over employer’s property. They can have ​possession​ if a 3P gives property directly to an employee for the
benefit of employer, or the employee is in a high-level position.
2. Bailees​: Generally have ​possession.​ When a bailee opens closed containers and then misappropriates property under the “breaking bulk”
doctrine, constructive possession is said to exist in the bailor, and the bailee—have only custody of the property—is guilty of larceny.
E. Intent to Permanently Deprive​: ​Specific intent​ ​to permanently dispossess​ must exist at the time of taking.
1. Sufficient Intent​: ​There is larceny if Δ: ​(a)​ intends to ​pay for or replace​ the property ​at a later time​, [the original item is permanently
deprived of owner] ​(b)​ intends to return ​only if​ a reward is paid, or ​(c)​ recklessly ​exposes​ property to loss.
2. Insufficient Intent​: ​There is no larceny if: ​(a) ​Δ intends to ​return​ the property w/in a reasonable time and he has substantial ability to do
so (not conclusive); ​(b)​ Δ ​honestly believes​ he’s entitled to the property as repayment for a debt – goods can’t be worth more than amount
of debt; or ​(c)​ Δ ​pawns​ property intending to get it back.
3. Continuing Trespass​: ​When one borrows property w/ the intent to return it, but later keeps it – larceny arises ​at the moment Δ decides not
to return the property​.
a. Initial taking must be “​wrongful​” – if it was, trespass continues until the time intent to steal is formed.
4. Mistake​:​ Where Δ has a ​good-faith belief​ that he’s entitled to possession, there’s no intent to permanently deprive, ​even if that belief is
wrong and unreasonable​.

III. Embezzlement​:​ ​The fraudulent conversion or misappropriation of property of another by one who is already in lawful possession of that property.
A. Fraudulent​:​ Δ must ​intend to defraud​ for a conversion to become embezzlement.
1. Specific fraudulent intent to steal may be negated by an honest belief that ​Δ has a right to the property or intends to restore the exact
property.
B. Conversion​: ​Δ uses property in a manner inconsistent w/ the trust arrangement pursuant to which he holds it.
1. Some action toward property (i.e. selling, consuming, pledging, donating, discarding, heavily damaging, or claiming title to it), which
seriously interferes w/ the rights of the owner.
C. One in Lawful Possession​: ​Δ must have ​lawful possession​ at the time of conversion.
1. Some states require that the property by “entrusted” to Δ. Such statutes have been construed as not applicable to Δs who come into lawful
possession of property by finding it or by mistaken delivery.
2. Fraudulent conversion by ​a co-owner of property​ (i.e. partnership) is not embezzlement.

IV. False Pretenses:​ Obtaining title to another’s property using false statements of ​past or present fact,​ w/ intent to defraud.
A. False Representation​:​ There must be a misrepresentation of a present or past fact – false promise not enough; must relate to a ​material fact​,
not opinion.
 1. It’s not misrepresentation to fail to correct what is known to be a mistaken belief that victim holds, ​if Δ wasn’t responsible for creating that
belief or Δ has no fiduciary duty to aggrieved party.
B. Obtaining Title​: ​Victim’s reliance upon representation must cause him to pass title.
1. If only ​custody ​is obtained ​ ​ larceny by trick. If ​title​ ​is obtained ​ ​ false pretenses.
2. Where money is delivered to Δ in a sale or trade situation by the person defrauded, title generally passes ​ ​ false pretenses. If Δ is tricked
into giving up possession ​ ​ larceny by trick because no title has passed.
C. Intent to Defraud​:​ Δ must’ve known statement was false when he made it.

V. Larceny By Trick:​ ​ ​Obtaining possession of another’s personal property through fraudulent misrepresentation.
A. Convey Possession​:​ Δ’s fraud is used to cause the victim to ​convey possession, not title​ (as in false pretenses).
1. In some states, there must be an intent to steal at the time of the induced delivery; a Δ who has some lesser (but still wrongful) intent and
then subsequently converts the property to his own use may be guilty of embezzlement.
2. In other states, the fraud will be construed as a trespass, which continues until the time of the “taking” and, therefore, a later
misappropriation would still be considered larceny by trick.
B. Fraud​:​ Factual ​misrepresentations​ and ​false promises​ are typically sufficient.
3
VI. Robbery : ​Larceny​ accomplished by force or threat of force.
A. Taking from Person or Presence of Victim​:​ Property must be taken from some location ​reasonably close​ to the victim, but it needn’t be taken
from her person.
1. Property is in victim’s presence if it’s in her ​vicinity​.
2. Property in ​other rooms of the house​ in which the victim is located is in her presence.
B. Force/Threats of Force​: ​Must ​precede or accompany​ the taking. Victim must give up property ​because she feels​ ​threatened or harmed​.
1. Slight force may be enough, but must be something more than what’s required to just move the property.
2. Force can be sedatives.
3. The use of force or intimidation to retain possession of property ​already​ ​stolen​ is not robbery.
4. The threat to use force in the future is the threat necessary for ​extortion​, not robbery.

VII. Extortion:​ ​ Obtaining property of another by use of threats of ​future harm​ or exposing information to deprive an owner of his property – also
known as ​blackmail​.
A. Threats​:​ Essence of extortion, and includes threats to expose a person or his family to disgrace and threats to accuse the victim of a crime.
1. Some statutes consider the crime complete upon the making of the threats w/ the specific intent to obtain money or property, while other
statutes require the threats to actually cause the victim to part w/ his property.
B. Robbery vs. Extortion
1. Extortion ​ ​ threats of ​future harm​. Robbery ​ ​ threat of ​immediate harm​.
2. Extortion ​ ​ property need not be obtained from victim’s person or presence. Robbery ​ ​ property must be in victim’s presence or vicinity.
C. Claim of right is NO defense to blackmail.

VIII. Bad Checks:​ ​ All jurisdictions have enacted bad check legislation to deal w/ no-account or insufficient-funds checks given w/ intent to defraud.
The giving of the check is an implied representation of sufficient funds, absent postdating or some other means of notification of inadequate credit
by the drawer. The requisite ​mental​ ​state​ of the drawer is often required to be that of (1) ​knowledge of the insufficient funds​ and (2) ​intent to
defraud​.
1. If the drawee presents post-dated check, NO crime because checks are a promise to pay in the future.

IX. Receiving Stolen Property​:​ ​Receiving possession and control of stolen property known to be stolen w/ intent to permanently deprive the owner.
A. Possession​:​ Receiving physical possession, while the most common situation, isn’t required as long as Δ ​exercises control​ over the goods.
B. Stolen Property​:​ Property must have “stolen” status at the time it’s received. If stolen goods have been recovered by the police and are used in
an undercover operation w/ the owner’s permission, the goods aren’t stolen and Δ can’t be guilty of receipt of stolen property (though he can be
guilty of ​attempt​ to receive stolen goods).
C. Known to be Stolen​:​ Δ must either ​know or actually believe​ that the property is stolen. An honest but unreasonable belief that property is not
stolen would likely prevent a conviction.
D. Intent to Permanently Deprive​:​ At the time Δ receives stolen property, he must have the specific intent to permanently deprive the owner of
that property. Conditionally offering to return the property—such as upon payment of a reward—may evidence an intent to permanently
deprive.

X. Forgery:​ ​ Fraudulent making/altering a written document w/ purported legal significance to be false, w/ intent to defraud.
A. Fraudulent Making​: ​Satisfied by creation of a new document, altering an existing document (including improperly filling in a form), or by
inducing someone to sign a document knowing that the person is unaware of its significance.
1. Completion of the “​making​” element completes the crime; Δ ​doesn’t have to actually use​ the forged document to be found guilty of
forgery.
2. An alteration ​must be material​ (change the legal meaning or effect of the document) to qualify the action as an element of forgery, such
as signing a false signature to a will.
B. False Writing​: ​Any writing that has an apparent legal significance is a potential subject of forgery.

​
3 Larceny, assault, and battery are lesser-included offenses of robbery.
 1. To have apparent legal significance, the writing must have some purpose or value beyond the document’s own existence, such as a K, will,
negotiable instrument, deed, or mortgage.
C. Intent to Defraud​:​ Δ must have ​specific intent​ to defraud
D. Uttering:​ ​Offering a known forgery w/ intent to defraud. If successful, D would be liable for false pretenses.

XI. Crimes Against the Habitation

A. Burglary​: Breaking and entering of the dwelling of another at night w/ intent to commit a felony therein.
1. Breaking​: ​Can be actual or constructive.
a. Actual​:​ Requires some use of force to gain entry; minimal force is sufficient (i.e. slight enlargement of an existing opening).
Traditionally, pushing a door or window that was ​already left open​ ≠ breaking.
b. Constructive​:​ Satisfied where Δ gains entry by fraud, deception, or threat of force.
2. Entering​: Achieved by placing any portion of the body inside the structure, even momentarily.
a. At common law, a tool was not enough. Today, any tool invading the property is sufficient if it’s used to achieve the criminal purpose
(as opposed to using it to gain entry).
b. Breaking to exit rather than to enter is not burglary – ​breaking must be to gain entry.​
c. Entry through an open door where Δ later opens an inside closet door is sufficient.
3. Dwelling​: ​Must be a place where one normally sleeps; modern statutes extend to ​all enclosed structures, even vehicles​.
a. Includes ​curtilage​ – structures immediately surrounding the dwelling and physically connecting buildings.
4. Night​:​ At common law, burglary had to be done at night. Modern statutes eliminated requirement.
5. Intent to Commit Felony​: Breaking and entering must be accompanied by a simultaneous felonious intent. It’s not necessary that the
felony be carried out.
a. Under some modern statutes, an intent to commit a misdemeanor will suffice.
b. An intent formed after entry is insufficient​, absent an additional entry once inside.

B. Arson​: The malicious burning of the dwelling (modernly-any structure) possessed by another.
1. Malice​: Either the intent to burn the structure or reckless disregard of a high risk that the structure will burn. It’s not sufficient if the
burning was accidental, even if Δ was negligent.
2. Burning​: Dwelling doesn’t have to be substantially or totally damaged; must be at least ​charring​ (slight burning). Blackening or
scorching​ ​not enough; nor is burning the ​contents​ of a house w/o damaging the structure.
3. Dwelling​: Expanded to include any structure.

ACCOMPLICE LIABILITY
A. CATEGORIES
A.​ ​Common Law​:​ Traditionally distinguished between accessories before and after the fact and principals in the 1​st​ and 2​nd​ degree; i.e.
an accessory couldn’t 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. ​All​ ​were guilty ​as if they had actually committed the crime​.
1.​ ​Principal in the 1​st​ Degree​:​ Primary perpetrator who performs the criminal act w/ the requisite mental state.
2.​ ​Principal in the 2​nd​ Degree​:​ Present at the scene and aids, abets, or otherwise encourages commission of the crime w/ the requisite
intent. Mere presence or knowledge w/o assistance or assistance w/o intent are insufficient.
3.​ ​Accessory Before the Fact​:​ One who aids, abets, or otherwise encourages but is not present at the scene.
4.​ ​Accessory After the Fact​:​ One who aids/abets a principal after commission of the crime; requires proof of: ​(a) ​completed felony
committed; ​(b) ​accessory must’ve known of the commission of the felony; and ​(c)​ accessory must’ve personally given aid to the felon to
hinder the felon’s apprehension, conviction, or punishment.

B.​ ​Modern Approach​:​ Distinguishes only between ​accomplices ​and ​accessories after the fact​.
Modern Standards
Defendant Conduct Liability

Principal Person who commits the illegal act or who Liable for principal crime
causes an innocent agent to do so

Accomplice (includes common law Person who ​(1)​ aids or encourages Liable for principal’s crime
 accessory before the fact) principal to commit the illegal conduct ​(2)
with the purpose of bringing about
commission of the crime.

Accessory After the Fact Person who aids another to escape knowing Liable for separate, less serious crime of
that he has committed a felony. being an accessory after the fact.

B. ​ELEMENTS
I.​ ​ ctus Reus—Assistance:​ ​ Slight encouragement is sufficient, but Δ must actually assist or encourage.
A
A.​ ​Assistance need not be the actual cause of the commission of the crime.
B.​ ​Mere presence doesn’t make one an accomplice.
C.​ ​Words alone may be sufficient if they assisted or encouraged.
D.​ ​MPC recognizes liability for one who attempts to aid or encourage ​but actually doesn’t.

II.​ ​Mens Rea—Dual Intent​:​ ​(1)​ Intent to assist the principal and ​(2) ​intent that the principal commit the offense.
● Rule​:​ An accomplice is responsible for the crimes he purposefully facilitated and for all other crimes committed by the principal that
are ​reasonably foreseeable outgrowths​ of the primary crime.
○ Foreseeability​:​ Objective test – it’s no defense that the accomplice didn’t expect the principal to commit the secondary
offense.
○ MPC​:​ Limits accomplice liability to only the crime assisted or encouraged.
● Provision of Material: ​mere knowledge​ that a crime will result is not enough, at least in cases of sales of ​ordinary​ ​goods​ at ​ordinary
prices​ (i.e. gas station attendant not liable for arson for knowingly selling gas to arsonist)

III.​ ​Defenses
A.​ ​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’s actually committed.
1.​ ​If the person ​encouraged​ – withdrawal requires that he ​repudiate encouragement.
2.​ ​If the person ​assisted​ ​by providing some material​ – withdrawal requires ​some attempt to neutralize​ this assistance, but he ​doesn’t have
to try to thwart​ commission of the crime.
B.​ ​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.
C.​ ​Necessary Parties Not Provided For​:​ A party necessary to the commission of a crime, by statutory definition, who is not provided for in the
statute, is excluded from accomplice liability (but may be liable for conspiracy). Ex: If a statute makes the sale of heroin illegal but does not provide for
punishment of the purchaser- the purchaser cannot be held liable as an accomplice to the seller.

INCHOATE OFFENSES: ATTEMPT, SOLICITATION, AND CONSPIRACY

Solicitation (Attempted Conspiracy)​:​ ​Inciting, counseling, advising, inducing, urging or commanding another to commit a crime w/ the ​specific intent
that the person solicited commit the crime.
A.​ ​Actus Reus​:​ Inviting, requesting, commanding, hiring, encouraging, etc. (any synonyms).
1.​ ​Once communicated, solicitation is complete. ​Completion of the offense solicited is unnecessary​.
2.​ ​Agreement​ by the solicited party is ​not required​. A person solicited to do a crime may not even respond, but the solicitor will still be
guilty of solicitation. If the solicitee ​does agree​, it gives rise to conspiracy.
B.​ ​Mens Rea​:​ ​Specific intent ​that the solicitee perform criminal acts.
C.​ ​Merger​:
● A solicits B.
○ If B agrees→ solicitation drops out, both now guilty of conspiracy.
○ If B attempts but does not complete crime→ both A and B guilty of attempt and conspiracy, solicitation drops out
for A.
○ If B completes the crime→ A and B both guilty of the crime, and conspiracy to commit it. Solicitation drops out for
A.
D.​ ​Defenses​:
1.​ ​Factual Impossibility​:​ No defense. The culpability of the solicitor is measured by the circumstances as she believed them to be, not what
they actually are.
a.​ ​Ex:​ A person can be guilty of soliciting an undercover agent.
2.​ ​Withdrawal​:​ Once solicitation is complete, it’s no defense that the solicitor changed her mind. Where the solicitor changes her mind, the
change of heart may be a defense to the underlying crime, but not to the solicitation.
a.​ ​MPC recognizes ​renunciation​ ​as a defense if Δ prevents the commission of the crime, such as by persuading the person solicited
not to commit the crime.
3. ​Protected Class:​A solicitor may not be guilty of the offense if he could not be convicted of the underlying crime—i.e. where the solicitor
is a member of a class of persons the law seeks to protect (minor).

Conspiracy:​ ​ ​(1) ​An implied or express ​agreement​ ​(2)​ between ​2 or more persons​ ​(3) ​who have the ​specific intent ​to either commit the crime or
pursue an unlawful objective and ​(4)​ (​Majority​, ​not ​CL) make an ​overt act​ in furtherance of the target crime.
A.​ ​Actus Reus—Agreement​: ​At common law, the agreement itself is the only act required to complete the crime; Today, states require some
additional overt act in furtherance of the conspiracy.
1.​ ​Agreement​:​ Actual agreement is required. There doesn’t need to be a meeting of the minds, but merely a shared intent to pursue a
mutual goal.
a.​ ​False Agreement​:​ Secret police agent or other false agreement situations are not conspiracies – there must be true actual
intent to carry out unlawful objective by at least 2 parties. (MPC is contra; party w/ true intent is still liable).
b.​ ​Proof​:​ May be proved circumstantially or inferred from concert of action – look for mutual adoption of a common
purpose.
c.​ ​Single or Multiple Conspiracy​:​ The agreement is the essence of conspiracy; thus, there’s only ​one conspiracy​ even if
agreement encompasses ​several diverse criminal acts​ and even if agreement entails a ​continuous course of criminal conduct​.
d.​ ​Chain Relationship​:​ Where several crimes are committed under one large scheme in which each member explicitly or
implicitly knows of each other parties’ participation and a community of interest exists, ​one single conspiracy results​ and all
the “links in the chain” are liable for each others’ crimes.
e.​ ​Hub-and-Spoke Relationship​:​ Where one common member enters into agreements to commit a series of independent
crimes w/ different individuals, ​multiple conspiracies exist​. The common member is the “hub” of the wheel, and each
sub-agreement is a “spoke” and a separate conspiracy.
2.​ ​Overt Act​:​ Majority rule is that an ​overt act in furtherance of the conspiracy​ is also required.
a.​ ​Different from common law, where the agreement itself constituted the crime.* any little act will do to be an overt act in furtherance of a
conspiracy.
Example: attend a second meeting to talk about conspiracy, or you show up where the robbery or whatever will take place for
whatever reason.
B.​ ​Two or More Persons
1.​ ​Common Law ​(Bilateral):​ Conspiracy required 2 guilty minds; there could be no unilateral conspiracy. If one person is feigning
agreement, the other party couldn’t be convicted of conspiracy.
2.​ ​Modernly ​(Unilateral):​ Follows MPC approach, which requires that only ​one​ party have genuine criminal intent.
3.​ ​Wharton Rule​:​ Where 2+ people are necessary for the commission of the crime, there is ​no conspiracy unless more parties participate in
the agreement than are necessary for the crime.​
a.​ ​Ex:​ If A and B engage in a duel, they’re guilty of the crime of dueling, but not of conspiracy to duel.
b.​ ​Crimes​:​ Dueling, gambling, bigamy, adultery, incest, giving and receiving of bribes.
c.​ ​Compare​:​ Wharton doesn’t apply to agreements w/ “necessary parties not provided for.” Thus, where a statute prohibiting the
sale of narcotics imposes criminal liability only on the seller and not on the buyer, both buyer and seller may be guilty of conspiracy to
sell narcotics (even though both parties are necessary for commission of the substantive offense).
4.​ ​Acquittal on Merits​:​ An acquittal of one co-conspirator traditionally results in the acquittal of a single remaining co-conspirator because
at least 2 guilty parties are required for a conspiracy conviction. However, it’s not necessary to try more than one conspirator. A single
conspirator could be tried and convicted of conspiracy if his co-conspirators were missing or dead.
5.​ ​Members of a Protected Class​:​ If members of a conspiracy agree to commit an act that violates a statute that was designed to protect
persons w/in a given class, a person w/in that class ​CANNOT​ be guilty of the crime itself (i.e. a minor female can’t conspire w/ a male to
commit statutory rape).
C.​ ​Mens Rea—Dual Intent​:​ ​Specific intent to combine w/ others​ & ​specific intent to achieve the objective​ of the agreement. Mere knowledge is
insufficient to establish the intent necessary to commit the unlawful act.
1.​ ​Intent to Facilitate Conspiracy​: ​One who acts w/ intent to facility can become a member of the conspiracy. But ​intent can’t be inferred
from mere knowledge.​ For example,​ ​a merchant who sells a good he knows will be used to further a conspiracy doesn’t 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 can’t be easily
obtained elsewhere or if the merchant otherwise has a stake in the criminal venture.
 2.​ ​Corrupt Motive​: ​Some states require an evil motive flow implicitly from the conspiracy. Operates as an exception to the general rule that
ignorance of the law is not an excuse – parties to a conspiracy must’ve known that their objective was criminal.
D.​ ​Co-Conspirator Liability (Pinkerton)​:​ each conspirator may be liable for the crimes of co-conspirators if the crimes were ​(1)​ ​committed in
furtherance of the objective​, and ​(2) were reasonably foreseeable​.
E.​ ​Defenses
1.​ ​Withdrawal​:​ **As soon as the agreement made and overt act committed→ conspiracy liability attaches. Cannot absolve of it except
through renunciation, but may stop the liability from the future criminal acts.
a.​ ​Voluntary Withdrawal​:​ At common law and MPC, a ​complete and voluntary withdrawal​ from the conspiracy ​severs Δ from
liability for​ ​future crimes​ of former co-conspirators, but is NOT a defense to the conspiracy itself. Requires timely notice to all
co-conspirators.
-If she provided assistance, must ​try to neutralize​ the assistance.
b.​ ​MPC—Renunciation​:​ If the co-conspirator withdraws and performs an affirmative act to​ thwart the success of the conspiracy​,
he can use this renunciation as an ​affirmative defense to the conspiracy itself​.
2.​ ​Impossibility​:​ Neither factual nor legal impossibility is a defense.
F. Merger ​→ conspiracy DOES NOT merge.

I.​ ​Attempt:​ ​ ​(1) ​A ​specific intent​ to bring about a criminal result and ​(2) ​a significant ​overt act​ in furtherance of that intent, beyond mere preparation.
A.​ ​Mens Rea​:​ ​Specific intent​ always required, even if the target offense is a general intent offense.
1.​ ​Attempt to commit strict liability crimes also requires specific intent.
B.​ ​Actus Reus—Overt Act​:​ Must be an act beyond an act of mere preparation.
1.​ ​Common Law​:​ Δ was required to have performed the ​“​last act​” necessary​ to achieve the intended result.
2.​ ​Proximity Test​:​ Requires an act that is ​dangerously close to success​. Focuses on how close in time and physical distance Δ was to the
time and place the target crime was to be committed.
3.​ ​Equivocality Test​:​ Requires that Δ’s conduct ​unequivocally manifests criminal intent​ – he has no other purpose than the commission of
the crime attempted.
4.​ ​MPC​:​ Requires that an act that constitutes a ​substantial step​ toward the commission of the offense that corroborates the criminal intent
required, such as scouting out the scene of the intended crime.
C.​ ​Defenses
1.​ ​Abandonment​: ​Not a defense at common law. Modernly/MPC permits abandonment if Δ ​(a) voluntarily abandons​ the criminal act ​(b)
prior to completion​ of the crime ​(c)​ under circumstances manifesting a ​complete renunciation​ of criminal intent.
a.​ ​Voluntary = true change of heart, not simply giving up in the face of difficulties or an increased likelihood of being caught.
b.​ ​Complete = Δ is not merely postponing commission of the crime.
2.​ ​Legal Impossibility​:​ Valid defense – Δ can’t be guilty of attempting to do something that is not a crime.
3.​ ​Factual Impossibility​: ​It’s no defense that the substantive crime is incapable of completion due to some physical or factual condition,
unknown to Δ.
a.​ ​Ex​: Δ mistakes sugar for poison; Δ attempts to pick an empty pocket, or kill a person already dead.
MPC: If the facts could have been as the defendant believed them, he is guilty of attempt, with no further need to decide btwn
legal and factual impossibility.

​DEFENSES

DEFENSES TO CRIME
I. Insanity​: Tests—know what they focus on, trigger words. All refer to mental illness.
1. ​M’Naghten Rule​:​ ​D’s Reasoning: D doesn’t know right from wrong or doesn’t understand his actions.
a. Def: if at the time of the crime, the ​D had a disease of the mind which caused a defect of reason ​such that D
lacked the ​ability to know the wrongfulness​ of his actions or​ understand the nature and quality of his acts​, he
qualifies for the insanity defense.
2. Irresistible Impulse​: ​Impulse that D can’t resist
a. bc of mental illness→ D lacked capacity for self-control and free choice.
3. Durham (New Hampshire) Rule​: ​But-for the disease, he would not have committed the crime.
a. D’s conduct ​was a product of​ a mental illness
4. American Law Institute/MPC (modern trend): ​Combo of M’naghten and irresistible impulse
 ​ a.​ ​D had a mental disease/defect such that he lacked the capacity to either a ppreciate the criminality or conform his
conduct
Procedural Issues
● A Δ is presumed sane until such time as he goes forward by raising evidence as to his sanity.
● Insanity is an affirmative defense, but once Δ introduces evidence of insanity, the burden of proof shifts to the prosecutor to show Δ is
not insane.
● BoP→ CL: D must prove by preponderance. MPC: Pros must show D was sane beyond reasonable doubt.
● A not guilty plea at arraignment doesn’t waive the right to raise the insanity defense at a later time.

A.​ ​Competency—Mental Condition During Criminal Proceedings

1.​ ​Rule​:​ DPC states that a Δ may not be tried, convicted or punished if, as a result of mental disease/defect, Δ is unable to: ​(a)​ understand the
nature of the proceedings being brought against him; or ​(b)​ assist his lawyer in preparing his defense.
2.​ ​Procedure:​ ​There’s usually a jury determination of competence. If Δ is found incompetent, he can later be tried and punished if
competency is restored.
3.​ ​Insanity vs. Competence​:​ Insanity concerns the Δ’s mental state at the time the offense is committed; competency is assessed at any time
during the pendency of the criminal case in court.
B.​ ​Diminished Capacity​:​ Some jurisdictions allow this defense, which is short of insanity, to prove that as a result of a mental defect, Δ didn’t have a
state of mind that is an element of the offense. When pleading diminished capacity, the defense is used to negate a specific mental state required for the
particular crime.
C.​ ​Intoxication
1.​ ​Voluntary Intoxication​:​ Δ chose to consume an intoxicant. Defense to ​specific intent crimes​ if it negates the requisite mental state, and
may negate a purposeful or knowing mental state (i.e. 1​st​-degree murder, assault, incomplete crimes, property crimes)..
a.​ ​Not a defense​ to strict liability crimes or crimes requiring malice, recklessness, or negligence.
2.​ ​Involuntary Intoxication​:​ Treated as mental illness and may be a ​defense to all crimes​. Arises when Δ was given an intoxicant w/o
knowledge or forced to consume an intoxicant.
D.​ ​Infancy​:
Common Law:
● Under 7→ complete defense
● Children 7-14 → rebuttably presumed to lack criminal capacity
● children 14+ → were held responsible as adults.
Modern
● Statutes state a given age. Can still be held delinquent in special juvenile/family cts

II. Justification Defenses​:​ A justification establishes that what is normally unlawful was not unlawful under the particular facts of the case, and
thereby nullifies the “​reus​” of crime. Justifications include self-defense, defense of others, defense of property, and necessity.
A. Self-Defense​:​ If Δ has a reasonable belief that he’s in imminent danger of unlawful bodily harm, he may use that amount of force in
self-defense that is reasonably necessary to prevent such harm, unless he is the initial aggressor.
1. Non-Deadly Force​:​ (Only threatens bodily harm) May be used if Δ is not the initial aggressor and if Δ reasonably believes it necessary to
protect himself from imminent unlawful force.
a. Necessary Force​:​ Short of deadly force, Δ may use that amount of force that is reasonably necessary to prevent the threatened harm.
If Δ uses excessive force, he becomes an aggressor and he loses the right of self-defense. Force must be ​proportional to the initial
attack​.
2. Deadly Force​:​ Threatens death or serious bodily harm. May only be used ​in response to deadly​ ​force​ or to counter a threat of SBI.
a. Duty to Retreat ​(minority):​ Δ may not use deadly force if he actually knew he could’ve prevented the harm by retreating. Retreat
required if feasible and can be done in safety before using deadly force. Retreat not required where the attack occurs at home.
b. If non-deadly force would stop a deadly attack, responding w/ deadly force is not reasonable.
c. Never self-defense to kill in order to retaliate or seek revenge for a wrongful attack one the attack is over.
3. Aggressors​:​ Can regain the right of self-defense if ​(a)​ he abandons aggression completely and victim perceives the abandonment, or ​(b)
victim uses excessive force/sudden escalation of force by the victim.
B. Defense of Others​:​ Δ is justified in using only the amount of force which the 3P could use in his own defense.
1. Majority​:​ Focuses on the reasonableness of Δ’s belief that the 3P was being unlawfully attacked. If the 3P is also the aggressor or a felon
resisting lawful arrest, and Δ reasonably but mistakenly uses lethal force against the victim to protect that 3P, Δ may still claim this
defense.
2. Minority​:​ One may only defend another if the person being defended was justified in using self-defense. Δ has no more right to use deadly
force that 3P ostensibly being protected. (Δ “steps into the shoes” of the 3P).
C. Defense of Property​: ​Reasonable, non-deadly force is justified in defending one’s property from theft, destruction, or trespass where Δ has a
reasonable belief that the property is immediate danger and no greater force than necessary is used.
1. Non-Deadly Force​:​ May be used to prevent unlawful interference w/ possession or trespass. Non-deadly force is improper where a request
to desist would suffice.
2. Deadly Force​:​ May never be used​ to defend property ​UNLESS​ the defender reasonably believes an entry will be made or attempted in his
dwelling by one intending to commit a felony therein.
 D. Necessity​:​ General defense that justifies the commission of conduct that is otherwise criminal when: ​(1) ​it’s necessary to avoid an immediate
threat of greater harm to persons or property; ​(2) ​there’s no reasonable alternative to breaking the law and avoiding greater harm; and ​(3) ​Δ
isn’t responsible for causing the harm.
1. Objective test – commission of the crime must be reasonably necessary; good faith alone is insufficient.
2. Exceptions – necessity not available if the crime committed results in the death of another or where Δ originally caused the circumstances
giving rise to the necessity.
4
E. Duress : ​A person is not guilty of an offense (other than homicide) if he performs an otherwise criminal act under the threat of imminent
infliction of death or serious bodily harm.
1. Δ must reasonably believe that death or serious bodily harm will be inflicted on himself or a member of his family if he doesn’t perform
such conduct.
2. Threats to property not sufficient; MPC allows defense where threat to property outweighs the harm to society by commission of the crim.
F. Law Enforcement Defenses
1. Police​: ​An officer may use that amount of ​non-deadly force​ that he reasonably believes necessary to effect a lawful arrest or prevent the
escape of the arrestee. An officer may use ​deadly force​ only to prevent the commission of a dangerous felony or to effectuate an arrest of a
person reasonably believed to have committed a felony where it reasonably appears necessary to the officer.
a. Officers who mistakenly use deadly force in fleeing felon situations may be justified.
2. Private Citizens​: ​Privileged to use amount of ​non-deadly force​ that reasonably appears necessary to prevent the commission of a felony
or a breach of the peace misdemeanor.
a. May use the same amount of deadly force as a police officer only if a ​dangerous felony​ is involved and the person harmed was
actually guilty​ of the crime.
b. A private-citizen Δ who mistakenly used deadly force to prevent escape of a fleeing felon is not justified.
3. Resisting Unlawful Arrest
a. An individual may lawfully repel, w/ deadly force if necessary, an attack made y a police officer trying to arrest Δ if Δ doesn’t know
that the person is a police officer.
b. Non-deadly force may be used to resist an improper arrest even if a known officer is making that arrest.
c. A minority don’t permit even non-deadly force in order to resist an unlawful arrest.

III. Entrapment:​ ​ ​An available defense to criminal liability if a law enforcement agent has induced Δ to commit a crime.
G. Elements​:​ ​(1) ​The criminal design must have originated w/ law enforcement officers; and ​(2) ​Δ wasn’t been predisposed to commit the crime
prior to the initial contact by the government.
1. Criminal design = idea or plan for the crime.
2. Δ must have no criminal disposition.
3. Law enforcement providing an opportunity for a person to commit a crime is not, by itself, entrapment.
H. Private Inducement​:​ A person can’t 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.
IV. Mistake
I. Mistake of Fact​:​ A defense where it negates the existence of a mental state required to establish a material element of the crime. There would
be no crime if the facts were such as Δ thought them to be.
1. Specific Intent Crimes​:​ ​Any mistake​, reasonable or unreasonable, is a defense as long as it was honest.
2. General Intent Crimes & Malice​:​ Mistake of fact must be ​reasonable​.
3. Strict Liability Crimes​:​ ​Not a defense​ because it requires no mental state.
J. Mistake of Law​:​ Δ is unaware that his acts are criminally proscribed, such ignorance of law is not a defense.
1. Exceptions​:
a. Statute proscribing Δ’s conduct hasn’t been reasonably made available;
b. Δ reasonably relied on a statute or judicial decision that’s later overruled or declared unconstitutional;
c. Δ relies in good faith upon an erroneous official statement of law contained in an administrative order or in an official interpretation
by a public officer or department;
d. Where some element of a crime involves knowledge or awareness of the law by Δ.
V.Consent:​ ​ ​Consent of the victim is not a defense to a crime except when it negates a specific element of the offense, such as in rape or kidnapping.
Whenever consent may be a defense, it must be ​(1)​ voluntarily and freely given; ​(2) ​by a party who was legally capable of consenting; and ​(3)​ no fraud
was involved in obtaining consent.
VI. Condonation:​ ​ ​Subsequent forgiveness by the victim is generally not a defense, unless a statute establishes such a defense.

4
​Unlike necessity, duress always involves a human threat.