AN OVERVIEW OF CRIMINAL LAW

INTRODUCTION

Criminal law is not an area that many people have experience with, outside of what they see on the news
or in television police dramas—and both of those tend to focus on homicides. In criminal cases, the case
will be brought by the state or federal government through the prosecutor’s office, on behalf of “the
people.” (In criminal procedure, you will learn the steps of the process and the rights of the accused at
each step.) The burden of proving the prima facie case of the crime with which the defendant is charged is
on the government. The defendant does not have to prove his innocence, and he does not have to testify.
The standard of proof in a criminal case is higher than in a civil case—the prosecutor must prove the case
“beyond a reasonable doubt,” which means that the evidence must be so strong that a person could not
reasonably doubt that the defendant committed the crime. This is because the stakes in criminal cases are
high. If convicted, the defendant may be imprisoned, fined, or both.

WHAT LAW APPLIES

In real life, both the federal and state governments have enacted comprehensive criminal codes. However,
the Multistate Bar Examination (“MBE”) is a little different. It directs test-takers to answer questions
according to “the generally accepted” view unless otherwise noted. This means that if there is no
“generally accepted” view, it may give you a short statutory passage to read and apply, or you may be
told to apply the common law or the Model Penal Code (“MPC”). So, for purposes of the MBE, you will
need to know both the common law and relevant areas of the MPC. If you are given a statute to apply,
you should apply the statute mechanically no matter how absurd the rules may be.

UNDERSTANDING CRIMINAL LAW

As you work through criminal law questions, the checklist you will go through is fairly short. First, you
will ask if the defendant’s conduct constitutes a crime. This will include both actual criminal acts and
certain preparatory crimes called inchoate offenses. Second, you will consider if there are any valid
defenses. Finally, in practice, you will look to see if there are any constitutional bars to conviction.

(1) Does the defendant’s conduct constitute a crime?

The Prima Facie Case

Just like in torts, each crime will have elements that constitute the prima facie case. And, just like
in torts, knowing the elements of prima facie cases will make answering questions much easier.
All crimes generally require proof of actus reus (a voluntary physical act), mens rea (the
requisite mental state), and a concurrence of the actus reus and mens rea. Some crimes may also
require proof of a result and causation. When actus reus is tested, it is often the voluntariness of
the act that is the issue. For example, a person who slips on a sidewalk and accidentally pushes
another into traffic isn’t guilty of murder. However, a person who knows that he has frequent
seizures but nonetheless drives a car may be guilty of a homicide crime. Unlike torts, omissions
do not qualify as an act unless the defendant has a legal duty to act in the instance (e.g., a parent
has a responsibility to protect her child; the same could be said of spouses).

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Where you see questions is with mens rea. Mens rea is normally required because, as a matter of
public policy, we want to be able to distinguish between inadvertent or accidental acts and ones
performed by a “guilty mind.” Mens rea breaks down into specific intent, general intent, malice,
and strict liability.

• Specific intent crimes require doing an act with a specific objective or intent, i.e., you do an
act in order to achieve a particular result. The existence of specific intent cannot be
conclusively proven by doing the act itself but rather the prosecution needs to show evidence
of the specific intent to achieve a result. However, the intent can be proven through evidence
of the manner in which the act was done. For example, A killing B doesn’t show specific
intent to kill B, but showing that A bought a gun and bullets, that he watched B go out for his
daily run for a month, and that A positioned himself on B’s route for a clear shot may
circumstantially prove specific intent. (This shows that you will have to consider all the facts
given to you.) There is a list of specific intent crimes that you should memorize for the bar
exam because some defenses, like voluntary intoxication, only apply to specific intent crimes.

• General intent crimes only require an awareness of the factors constituting the crime. The
defendant does not need to intend the consequences that result.

• When we talk about malice crimes, we are only talking about common law murder and arson.
To establish malice, the prosecution only needs to show that the defendant recklessly
disregarded an obvious or high risk that a particular harmful result would occur. Once you
have read about the crimes, you may think, why does this category exist? Why not just make
these specific intent crimes? The common law created this category for a single purpose—to
deny defendants the specific intent defenses.

• Strict liability offenses do not require awareness of the elements constituting a crime. It may
be easier to remember these in action because they are considered public welfare or
regulatory offenses—they deal with public health or safety. (Regulations pertaining to
firearms or traffic regulations are common examples.) Certain defenses (e.g., mistake of fact)
do not apply to strict liability offenses.

You will see that the Model Penal Code also sets forth four different categories of mens rea.
Defendants may act purposely (defendant has the desire to engage in the conduct or cause a
certain result), knowingly (defendant is aware of the nature of the conduct or that certain
circumstances exist), recklessly (defendant is aware of a substantial and unjustifiable risk that a
certain result will occur and he consciously disregards that risk), or negligently (defendant should
have been aware of the substantial and unjustifiable risk that a certain result will occur). The
purpose of these categories is to provide less ambiguous guidelines defining mens rea.

Finally, the prosecution must show a concurrence of the actus reus and mens rea. The defendant
must have both the required intent for the crime at the time he committed the act constituting the
crime and the intent must have prompted the act. And, as noted earlier, some crimes will also
require a harmful result and causation (e.g., homicide).

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Parties to a Crime

Before we take a look at the crimes that are tested on the bar exam, we need to consider the
parties to a crime. Most modern statutes have abolished the more detailed distinctions among the
parties to a crime and instead categorize parties into actual perpetrators of a crime and people
who help the actual perpetrators. A principal is one who has the requisite mental state and
actually engages in the act or omission that causes the criminal result. An accomplice is one who
has the intent to assist the principal, has the intent that the crime be committed, and actually aids,
counsels, or encourages the principal before or during the commission of the crime. Under the
modern approach, all principals and accomplices can be found guilty of the criminal offense. An
accessory after the fact is one who receives, relieves, comforts, or assists another knowing that
the person has committed a felony, in order to help the felon escape arrest, trial, or conviction.
Accessories after the fact are usually charged with a crime called “harboring a fugitive” or
“obstructing justice.” There are of course exceptions to accomplice liability. For example, one
who renders aid to another may avoid liability if she voluntarily withdraws from the crime and
takes certain other steps before the crime is committed by the principal. (You will learn the
specifics of how that happens during the bar review course.)

Categorization of Crimes

Now that we have looked at the foundation of crimes, the prima facie case, and parties to a crime,
we can start talking about the categories of crimes as well as the individual crimes contained in
each category. For bar exam purposes, the main categories are inchoate offenses, offenses against
the person, and offenses against property (which includes crimes against both personal property
and habitation).

Inchoate offenses are perhaps the most difficult for some people to understand because they are
preparatory offenses, i.e., offenses committed prior to and in preparation for what may be a more
serious offense. The three offenses included are solicitation, attempt, and conspiracy. They can be
complete offenses (crimes in themselves) even if the act to be done (e.g., the subject of the
conspiracy) has not yet been completed.

• 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.
(If this definition seems similar to the definition of an accomplice to you, make sure you look
at who the instigator is. In solicitation, it’s the person doing the soliciting. An accomplice
merely encourages someone who already has a plan.) The crime is complete when the
solicitation occurs; the person solicited does not have to actually do anything (e.g., she does
not have to agree to commit the crime).

• Conspiracy requires an agreement between two or more people, an intent to enter into an
agreement, and an intent to achieve the objectives of that agreement. And, since we’re in the
realm of criminal law, it goes without saying that the agreement must be to achieve an
objective that is criminal. The majority of states also require that there must be some overt act
involved, but it can be mere preparation for the crime.

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• Attempt is an act that is done with intent to commit a crime but that falls short of completing
the crime. The law requires an overt act here too, but it must be something beyond the mere
preparation required for conspiracy. (To use the MPC language that is also in most criminal
codes, the act must constitute a “substantial step” in the course of conduct planned.) You will
learn later that attempt is a specific intent crime because the actor has to have the intent to
perform the act that would result in a crime (he just doesn’t have to be successful at it); this
means that the specific intent defenses would be available.

Crimes against people tend to be what most people associate with criminal law, thanks in part to
the popularity of “Law and Order” type shows on television. Criminal law, like torts, has battery
(unlawful application of force to another person resulting in bodily injury or an offensive
touching), assault (either the attempt to commit battery or the intentional creation of reasonable
apprehension of imminent bodily harm), and false imprisonment (unlawful confinement of a
person without his valid consent). But what makes good television, and good bar exam questions,
is the area of homicide (most basically, the taking of another person’s life).

At common law, criminal homicide breaks down into three categories: Murder and the lesser
crimes of voluntary manslaughter and involuntary manslaughter. Murder is the unlawful killing
of a human being with malice aforethought. Malice aforethought can be shown by one of the
following four states of mind. First, there is intent to kill, which is express malice. It is the
intentional killing of another. Second, there is intent to inflict great bodily injury. This covers
instances where the defendant doesn’t specifically intend to kill his victim, but he does intend to
inflict serious bodily injury upon his victim and the victim subsequently dies (e.g., defendant
stabs the victim, intending only to hurt her, but she dies of blood loss). Third is reckless
indifference to an unjustifiably high risk to human life, which is often referred to as an
“abandoned and malignant heart.” You will read a fact pattern and see that the defendant simply
does not care about who is hurt as a result of his actions (e.g., he fires a gun into a crowded
theater or church without aiming for anyone in particular). Finally, we have intent to commit a
felony, which is known as the “felony murder rule.” It’s an unintentional killing that results from
the commission or the attempted commission of a serious or inherently dangerous felony. (For the
bar exam, inherently dangerous felonies tend to be burglary, arson, rape, robbery, and
kidnapping. If someone dies during the commission of a burglary, the defendant is on the hook
for murder.) As you will note, these last three ways of showing malice aforethought are
implied—the state of mind is implied from the action.

Modern criminal statutes, however, often divide murder into degrees. (On television, you rarely
hear of murder evidenced by intent to kill, but we bet you have heard of first degree murder.)
Under many state statutes, murders are second degree murders unless the prosecution proves the
murder was deliberate and premeditated (i.e., the defendant made the decision to kill in a
dispassionate manner and actually reflected on the idea), the killing occurs as the result of a
felony listed in a first degree felony murder statute, or the killing is performed in a way that is
considered first degree murder by statute (e.g., a killing by poison may be first degree murder
under some statutes). The other types of homicides, voluntary manslaughter and involuntary
manslaughter, are homicides with mitigating circumstances or without malice aforethought.

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Voluntary manslaughter is a killing that would otherwise be murder but is distinguishable by the
existence of adequate provocation. Provocation is adequate when it would arouse sudden and
intense passion in the mind of an ordinary person such that he would lose self-control, the
defendant was in fact so provoked, there was not sufficient time for a reasonable person to cool
off, and the defendant did not actually cool off. What kind of provocation would have the above
effect on an ordinary person? Most commonly you will see the defendant being subjected to a
serious battery or threat of deadly force, or he will find his spouse in bed with another person.
You are looking for a big event that would be too much for the ordinary person to handle and
would cause that person to snap. Involuntary manslaughter, on the other hand, includes two
different categories of killings—those committed with criminal negligence (or recklessness, using
the MPC language) or during the commission of a criminal act (a misdemeanor or a felony not
included in the felony murder rule).

Crimes against people also include sex crimes (rape, statutory rape, adultery, incest, seduction,
and bigamy), kidnapping, and mayhem (in case you are wondering, that’s dismemberment), but
those are areas that are not tested often.

The next large category of crimes, offenses against property, includes both crimes against
personal property and habitation (dwellings or places people live). While personal property
offenses include a long list of offenses you will need to be familiar with, the most often tested are
larceny, embezzlement, false pretenses, and robbery. The first three are particularly difficult for
some students to differentiate because the rules sound somewhat similar. Here, we will group
things a little differently than in the outline you will read during the course, to make things a little
clearer:

• Common law larcency is the taking and carrying away (called asportation) of the tangible
personal property of another with possession, by trespass (meaning without consent), with
the intent to permanently deprive that person of his interest in the property (i.e., you have the
intent to steal). Simple, right? You are taking something that does not belong to you with the
intent to steal the item from that person. You may encounter circumstances where there is a
wrinkle in the fact pattern—the defendant lies or uses some kind of deception to get the item
in question by getting the victim to “consent.” Don’t be fooled. As we will see when
discussing defenses, consent obtained by fraud is not valid consent.

• Robbery is similar to larceny, but it involves force. Robbery is the taking of the personal
property of another, from the other’s person or presence, by force or threat of immediate
death/physical injury to the victim (or a member of his family or someone in the victim’s
presence), with the intent to permanently deprive that person of his interest in the property.
For the defendant to be guilty of robbery, the property must be taken or immediately retained
by force or threat of force. For example, if A walks up to B at the train stop and takes B’s
briefcase, which is on the ground next to B, it’s larceny. If they fight over the briefcase, it’s
robbery.

• False pretenses is obtaining title to the personal property of another by an intentional false
statement of a past or existing fact with the intent to defraud another. This sounds a bit like

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another crime, larceny by trick, but there is one critical difference. If the victim is tricked into
giving up possession of the item, you have larceny by trick, but if the victim is tricked into
giving up title, you have false pretenses. (Once you start working on questions, you will see
that money changing hands will lead you to the false pretenses answer.)

• Embezzlement is a little bit different. It involves the fraudulent conversion of personal

property of another by a person in lawful possession of that property. In larceny, the
defendant has no possessory interest in the personal property—he is taking it from someone
else. In embezzlement, the defendant is in rightful possession of the personal property in
question. Normally this happens when you have a bailment situation, i.e., one person delivers
the property to another person for some purpose in exchange for payment, with the
understanding that the property will be returned. For example, if A delivers a diamond ring to
B, a jeweler, to have it fixed, there is a bailment; if B takes the ring, it is embezzlement
because he is in lawful possession as the bailee.

The other category of property offenses is crimes against dwellings. First, you may encounter
burglary, which is a breaking and entering of a dwelling place of another at nighttime with the
intent to commit a felony in the structure. (Modern statutes have eliminated many of these
requirements.) As to common law burglary, two things to keep in mind are that “breaking and
entering” means just what it says. Entering a home through an open door or as a guest is not
breaking and entering; the defendant must create an entry by force, fraud, or intimidation and
must either put a part of his body through that opening or put the instruments of the crime through
the opening. Second, the intent to commit a felony must exist at the time of the breaking and
entering. Forming the intent after breaking and entering is not sufficient. Arson is the malicious
(intentional or with reckless disregard) burning of the dwelling of another. The only trick you
have to look for here is to make sure there is actual damage to the structure. It does not have to be
outright destruction of the home, but it has to be more than smoke or heat damage—common law
looks for charring (burning/blackening or crispy bits, if you will).

(2) Are there any valid defenses?

After you have shown that all the elements of the prima facie case have been met, you must look
at potential defenses. There is a long list that you will need to commit to memory for the bar
exam, but some bear mentioning here.

Some defenses negate criminal capacity. One such defense is insanity, which is a legal standard
and not a medical standard. There are four tests that you may be called upon to use on the bar
exam, but they are all designed to test whether at the time of the crime, the defendant was so
mentally ill as to be entitled to acquittal. On the bar exam, the tests may be referred to by name,
so it will be important to know each one:

• Under the M’Naghten Rule, the defendant is entitled to acquittal if a disease of the mind
caused a defect of reason such that the defendant lacked the ability to either know the
wrongfulness of his actions or understand the nature and quality of his actions at the time he
performed them.

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• Under the Irresistible Impulse Test, the defendant is entitled to acquittal if, because of mental
illness, he was unable to control his actions or conform his conduct to the law. (Basically, the
defendant has an impulse he cannot resist.)

• Under the Durham Test, the defendant is entitled to acquittal if the crime was a product of
the mental illness. (Perhaps it may be easier to think of this as a “but for” test; but for the
mental illness, the defendant would not have done the act.)

• The modern trend is the American Law Institute/Model Penal Code Test, which is a mix of
the M’Naghten and Irresistible Impulse tests. The defendant is entitled to acquittal if he had a
mental defect and because of that mental defect he lacked substantial capacity to appreciate
the criminality of his conduct or conform his conduct to the law.

Insanity is an affirmative defense and the defendant is presumed sane until the defense proves
otherwise.

Another defense negating criminal capacity is intoxication. Intoxication may be caused by any
substance (e.g., drugs, alcohol, prescription medication) and it may be voluntary or involuntary.
Voluntary intoxication is the intentional taking, without duress, of a substance that is known to
be intoxicating. It is only a defense to specific intent crimes if the intoxication prevents formation
of the required intent. (Needless to say, if the defendant intentionally gets intoxicated in order to
establish a defense, the defense is not available.) Involuntary intoxication can result from taking
an intoxicating substance without knowledge of its nature (e.g., A gives B a fruity drink that
doesn’t taste like alcohol but has an alcohol level so high that one drink takes the average person
over the legal state limit), pursuant to medical advice while unaware of the substance’s
intoxicating effect (e.g., A prescribes B pain medication and it gives B violent hallucinations), or
if the intoxicating substance is ingested under direct duress of another (e.g., “drink this or I will
hurt you”). Interestingly, the law treats involuntary intoxication like a mental illness and the
defendant is entitled to acquittal if she meets the jurisdiction’s insanity test.

Other defenses arise because we, as a society, have decided that even though the defendant
committed a crime, she should not be punished because circumstances justify the action. Some
common justification defenses are self-defense, defense of others, and defense of property. The
right to these defenses depends on the immediacy of the threat. If a person is being threatened
with imminent harm, the defense will work, but a threat of future harm (e.g., “I’m going to beat
you when I see you tomorrow”) will not. Much like in torts, you will be taking a look at what is
being protected and the amount of force used. As a rule of thumb, nondeadly force is justified
when a person reasonably believes it is necessary to avoid imminent injury or to retain property.
Deadly force is justified only to prevent death or serious bodily injury. Note that there are also
specific rules pertaining to crime prevention and police officers.

Duress is sometimes tested on the bar exam as a way of trying to trick students into answering a
question with their hearts rather than their heads. Duress is a defense to a crime other than
intentional homicide when the defendant reasonably believed that another person would

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imminently inflict death or great bodily harm upon him or a member of his family if he did not
commit the crime. For example, if A tells B “go in the store and steal food for me or I will shoot
your daughter” while waving a gun at the daughter and B steals the food, B has the excuse of
duress. However, if A tells B “go in the store and shoot the owner because he refused to serve me
or I will shoot your daughter,” and B actually shoots and kills the owner, which is a homicide,
duress is not an available defense. On the bar exam, apply the rule mechanically, even if that
means the person shooting someone to save his own life or the life of his child is guilty of
homicide.

Finally, another area that pops up on the bar exam is mistake, which includes mistake of fact and
mistake of law. Mistake or ignorance regarding a fact will affect criminal guilt only if it shows
that the defendant lacked the required state of mind for the crime. If you are dealing with a
specific intent crime, any mistake of fact, whether reasonable or unreasonable, is enough.
However, if you are dealing with a general intent or malice crime, the mistake must be
reasonable. (Because strict liability offenses don’t have a state of mind requirement, mistake of
fact is never a defense.) Contrast that with mistake of law. Generally, it is not a defense to a crime
that the defendant was unaware that his acts were prohibited by criminal law or that he
mistakenly believed that his actions were not prohibited by law. There are exceptions, such as
cases where the criminal statute was not published (makes sense, defendant didn’t know because
she could not know).

(3) Are there any constitutional bars to conviction?

This is not likely something you will have to worry about on the bar exam, but they are
considerations that you would want to keep in mind for “real life.” These constitutional
considerations include whether:

• The statute defining the crime is unconstitutionally vague, such that ordinary people would
not understand what behavior is prohibited. (This is a 5th and 14th Amendment Due Process
issue.)

• The penalty or sentence is so disproportionate to the crime that it constitutes cruel and
unusual punishment. (This is an 8th Amendment issue.)

• The prosecution and conviction involves the same or related crimes based on the same
conduct. (This may be a 5th Amendment issue dealing with double jeopardy.)

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