Criminal Law: Bar Memorization Outline Elements of A Crime Actus Rea Commission of any intentional act scaring to death

eath example Involuntary bodily movements do not qualify Epileptic seizure ex + knew of seizure warning Omission / Failure To Act Generally no requirement; 5 Exceptions Contractual Duty (caregiver) Relationship (Parent Child) but beware kid canca / make dad look bad ex Did failure to act cause harm/crime? Statutorily Created Voluntarily assumes accident drive hospital, stop creates peril Mental States Strict Liability act is committed; intent irrelevant. No defenses that negate intent Identify SI Statute: A-R-M + No adverbs (ingly), no intent req. Ex: contrib. to delinq of minor statute & FP. Crimes: Statutory Rape consent & mistake = no defense. Doing = offense. Only Defenses: those that negate ability to control ACT (insanity, invol intox, duress*) No Mistake of Fact! General Intent Just intentional commission of act (Actus rea above). Can be inferred from the act itself. This is default (its gen unless otherwise stated) Simple Battery + Rape most common on MBE. Mistake of Fact: Reasonable MoF Crimes (for manslaughter see malice crimes): Battery unlawful application of force to the person of another resulting in either bodily injury or an offensive touching. Intent is just to move/act (i.e., need not be intentional). Usually misdemeanor battery & agg battery (weapon, serious harm, child/wom/police). Assault 2 types: Attempted Battery SPECIFIC INTENT (see it in that sec) Assault as a threat creation of reasonable apprehension in the mind of victim (threat). IF TOUCHING, only BATTERY not assault. Ex: stops V at knifepoint and demands money, but was just trying to scare V playing a practical joke, faking a holdup. has committed Assault as a threat but not assault as attempted battery (he had no intent to touch/harm). Kidnapping Movement of victim OR Concealed in Secret Place. Rape unlawful carn know of a woman by a man, not her husband, without her effective consent. Slightest penetration is sufficient. 1

Criminal Law: Bar Memorization Outline Absence of marital rel + Lack of Consent Lack of Consent (any): force; threat of force/harm; incapable of consent; victim defrauded into thinking non-intercourse only. Specific Intent act + specific intent for crime Mistake of Fact: Unreasonable/Reasonable MoF Diminished Capacity = high test area usually its voluntary intoxication. Know VI is a possible defense to SI crime. Inchoate Crimes (incomplete) Solicitation ask someone to assist you in commission of crime. *Merges* w/ completed offense. Completed once someone asks! (doesnt need actual crime). Conspiracy - HIGH TEST AREA Elements: Agreement (can be implied in conduct/without meeting each other) + Slight Overt Act In Furtherance of Conspiracy + Intent to agree + Majority (default MBE) reqs slight overt act Minority/CL: Agreement alone enough Intent to pursue unlawful objective (on both sides!) Limits to know: NO undercovers! NO mistake of fact-ers! (see ex below) Example: Helping friend get back own prop (thought). No conspiracy for other party (no one to conspire with). Liability: All crimes of co-conspirators committed in furtherance of conspiracy if they were reasonably foreseeable. PRESENCE NOT REQD (drugs bay area; shot distillery). Withdrawal: Avaliable IF Inform all co-conspirators BUT: Still guilty of conspiracy & any already committed crimes in furtherance of conspiracy. Can escape liability for future crimes. NO MERGER! Attempt Elements: Attempt to commit target offense. Subst Step Test (Maj): take a substantial step toward committing offense w/ intent to commit crime. Min: How close u are to completing crime. ALL Attempts, even for GI target offenses = SI! Means SI defenses always apply to attempt! 2

Criminal Law: Bar Memorization Outline *Merges* into completed offense. 1 Degree Murder For MBE, always Malice/CL Murder unless it says Murder in 1st degree. Key is know its SI & diff available defenses! No universal definition. On MBE, 1st degree murder tested in 2 ways: Just label homicide as 1st degree murder, or Give you statutes that define what constitutes 1st degree murder for that particular question. Read them & apply them. Keep an eye out for voluntary intoxication to potentially negate a specific intent (1st degree) murder. Assault theory of attempted battery assault ONLY! = attempt to commit a battery. Property Crimes (L-E-F-R-E-F-R) Larceny (wrongful/trespassory taking) + (carrying away) + (personal property of another) + (without consent) + (with intent to permanently deprive). Carrying away slightest movement is enough. Personal property of another rightful possession not rightful owner. Ex of car / mech lien / owner steals own car back. BUT mere custody possession. Intent to perm deprive must exist @ time of taking, not decided later! MBETIP: Taking property in the belief its yours or that you have some right to is not common law larceny. BUT: Mistake of LAW is not Mistake of FACT Guy steals dog thinking dog isnt prop for larceny example = larceny. Embezzlement fraudulent conversion of personal property of another by a person in lawful possession. Conversion = dealing w/ property in a manner inconsistent with arrangement by which got possession. Fraudulent = intent Note: if TITLE obtained (not just possession) then its False Pretenses NOT larceny NOR embezzlement. False Pretenses obtaining title to personal property of another by an intentional false statement (lie) with intent to defraud. False Pretenses - *must* be as to a present or past fact (no future facts business loan discussion). Robbery = Larceny + Assault (in one ) Must meet all larceny elements + taking from the person or his presence, by force or threats of immediate or physical harm to victim or some person in victims presence. Ex: Yank necklace tug rule = larceny; expert pickpocket may not be larceny; Ex2: Hit & Run then steal wallet no
st

Criminal Law: Bar Memorization Outline larceny b/c no force used against unconscious man (no force used @ time of taking). Imminent harm no ill be back tomorrow (future harm extortion).

Extortion Common Law: corrupt collection of an unlawful fee by an officer under color of office. Modern Statutes: obtaining property by means of threats to do harm or expose information. Distinguish Robbery: No taking reqd Threats can be of future harm Threatened harm doesnt have 2b to person Threat does not have 2b physical harm. TIP: Can extort by threatening to do things you would otherwise have legal right to do (sell photos example). Forgery making or altering a writing with apparent legal significance (contract not a painting) so that it is false (representing that its something its not) with intent to defraud. Receiving Stolen Property receive stolen property kwon to have been obtained in a criminal manner by another person w/ intent to deprive owner of it. Habitation Crimes Arson see Arson under malice crimes Burglary (breaking + entering) + (of a dwelling) + (of another)r +( at night) + (with the intent to commit a theft or other felony inside). Intent to commit theft or felony inside required at time of breaking & entering. If decide to commit felony once inside then not a burglary. Ex1: break in to hide from storm, see painting Ex2: Naked drunk dude accid boyfriend case. Ex3: Other Felony breaking in with intent to commit rape is still burglary. Robbery is a threshold question occurs when enter a home OR a room in a dwelling (what is occurring when entering a threshold). Malice Crimes = reckless disregard of an obvious or high risk that the particular result will occur. Homicide Crimes Murder *MOSTE TESTED CRIME ON MBE* - killing w/ malice aforethought (one of 4 below): (aka 2nd degree murder) Intent to kill Intent to do serious bodily harm

Criminal Law: Bar Memorization Outline Depraved Heart (intentionally perform an act despite knowing that it has substantial/unjustifiable risk of causing death or great bodily harm. Subjective awareness of creating high degree of risk is required! Felony Murder committed while perpetrating a felony. 5 DEFENSES TO FELONY MURDER has defense to underlying felony Underlying felony must be something other than the killing (cannot convert every homicide into murder using felony murder; i.e., manslaughter can never be basis for felony murder. Deaths must be foreseeable. Most actions are foreseeable, so err on side of foreseeable. Temporary Safety fleeing is part of FMR but once s reach a place of temporary safety, any deaths caused after that are not FMR as a result of original felony. Ex: Gets back to house, then later police raid home, in course of escape kills someone. Not FRM from orig felony. Not Liable for death of co-felon as a result of resistance by victim or police. Co Felon dies by 3p surviving felon not liable FMR Anyone (including non-felon) kills an innocent liable FMR Manslaughter NOTE: Manslaughter in any form is a GENERAL INTENT crime. It ONLY OCCURS as a MITIGATED (would be but for) MURDER (hence in the malice crimes portion of OL even though they are GI crimes). Voluntary Manslaughter would be murder but for existence of provocation (so always a result of mitigating of an intent to kill or commit serious bodily injury). Provocation ALL 4 FACTORS REQD: (i) actually provoked by victim (not 3p). (Subjectively did provoke). MBE: often a fight. (ii) Provocation would provoke a reasonable person. (objectively would provoke). (iii) had not yet actually cooled from passion of provocation (subjective not cooled) at time of killing. (iv) At time of killing, a reasonable person would not yet have cooled. (Objective not cooled). 5

Criminal Law: Bar Memorization Outline Imperfect Claim of Self Defense someone kills though honestly but unreasonably believing they must do so in self defense. Only in minority of jurisdictions, but where allowed will mitigate murder to Vol manslaughter. Diminished Capacity in many jurisd can reduce murder to VM with DC. But, very very rare on MBE. MBE TIP: Almost always, unless you have provocation, dont reduce to VM! Involuntary Manslaughter 2 theories: (i) Criminal Negligence negligent but not quite bad enough for reckless murder req (careless w gun, falling asleep @ wheel, etc.) Subjective awareness of high degree of risk not needed. (ii) Misdemeanor Manslaughter during commission of an unlawful act (misdemeanor or felony not included in FMR). MBE Tip: IF a death occurs during a crime not given on a list, then the crime is said to have been involuntary manslaughter not FMR. Arson malicious burning of a dwelling of another. Burning: just charring due to fire damage (smoke or water damage is not burning). Dwelling house: can be broad, but must be where someone sleeps. BARTIP on essay discuss this as a common law requirement. On the MBE any structure will suffice for arson. Of another if own house, then houseburning, not arson. Mistake of Fact: Reasonable Transferred Intent Intent to commit a crime can be transferred to another victim than the one originally intended. Ex: Shot at one person intentionally but missed. Note: can lead to 2 separate crimes: (1) Attempt intended victim; (2) Crime actual victim. NEVER MERGE 2 VICTIMS! NOTE: cannot transfer intent between different crimes. Ex: Intent to commit burglary, in process of burglary accidentally burns down house not intent 4 arson. Accomplice Liability Liable for: Originally intended crime + all other foreseeable crimes committed by principles. Requirements: must actually do something + intent to assist OR 6

Criminal Law: Bar Memorization Outline Assisted actual perpetrators in some significant way w/ knowledge that assistance would be used to commit a crime. IF service or product was lawful (supplying sugar, med) then need stake in outcome (can be just charging higher than normal). Usually on MBE any knowledge + assistance any kind = accomplice.

Presence Accomplice; But enough cheering could be accomplice. Merger Rules No general merger rule! Exceptions for MBE: Solicitation + Attempt; Remember Attempt different victim no merger. Trickery: CONSPIRACY DOES NOT MERGE Defenses All Crimes: Insanity 4 Tests (i) MNaghten (default) at time of conduct + b/c of mental defect + lacked ability to know wrongfulness or quality of his actions (right from wrong). (ii) Irresistible Impulse result of mental defect + lacked capacity for self control (couldnt control his actions). (iii) Durham Rule: Was s conduct a product of mental illness? No longer followed, contributed to ALI. (iv) ALI (mpc): Did lack susbstantial capacity to appreciate wrongfulness OR to conform his conduct to requirements of law b/c of mental disease or defect? (Combination right/wrong + (or) unable to control) ALSO: substantial capacity doesnt mean completelty unable to understand/control (easier burden than either test on own). Involuntary Intoxication Intoxicant was not knowingly + voluntarily ingested (forced or unaware). Same legal effect as insanity. Infancy - *Careful* has never been a correct answer on MBE! CL: <7 = no liab; <14 rebuttable presumption of no liab; Self Defense & Defense of Others Non-Deadly Force - Victim (non-initial aggressor who possesses legal right of self defense) can use NDF any time he reasonably believes that force is about to be used against him. Deadly Force by victim (see def above) Maj (default unless says otherwise): reasonably believes deadly force is about to be used against him. NO retreat duty. Min: same but victim must first retreat to the wall if any safe avenue to do so. Ex: Kobe, gun fan far away (time), car (able to escape) hypo. Exceptions to duty to retreat: 7

Criminal Law: Bar Memorization Outline (i) Victims Home (ii) Victim of violent felony (rape, robbery, etc.) (iii) Police officers have 0 duty to retreat. Initial Aggressor only 2 scenarios for MBE where IA can claim self defense: (i) Withdrawal - IA has withdrawn (i.e., run for the door) and at some point prior to exiting, stops turns to victim and says something like Im all done now. (ii) Deadly response A non-deadly IA is defending against a deadly response. Retreat Duty Regardless of jursid, IA always has retreat duty (retreat if safe) even if NDF met with DF or otherwise non-retreat duty scenario (i.e., home). RETREAT DUTY ONLY FOR DF! (i.e., can respond to NDF w/ NDF w/o Retreat duty). MBE Tips: IA is ONLY FOR PHYSICAL VIOLENCE (or threats/imminent physical viol) not for insults/provocation. Also, NDF can kill and will be treated as NDF usually (i.e., ONE punch). Defense of Others Same rules as self defense. No specific relationship required (can be stranger) Maj: Reasonable mistake of fact is a defense. Min: Alter Ego Rule when you come to the aid of anyone else, you have no legal rights greater than those of the person to whose aid you have come (i.e., they must actually have a self defense right). Defense of Dwelling Deadly force can never be used for defense of property. MBE Tip: Spring Gun property defense never OK. Distinguish: Actual burglary where occupant may reasonably believe force is needed to protect himself/family. Duress NEVER a defense to homicide (certainty rat)! Someone actually forced you (i.e., holding gun to head) Consent not really a defense; sometimes an element of a crime. ALMOST ALWAYS WRONG on MBE. Entrapment - s predisposition to defense can negate. ALMOST ALWAYS WRONG on MBE b/c predisposition of part of to commit crime is usually obvious in fact pattern.

General Intent Reasonable Mistake of Fact Specific Intent all defenses + unique SI defenses.

Criminal Law: Bar Memorization Outline Defenses: All gen intent defenses + Unreasonable mistake of fact & Diminished Capacity Diminished Capacity = high test area usually its voluntary intoxication. Know VI is a possible defense to SI crime. Unreasonable Mistake of Fact/Reasonable Mistake of Fact Voluntary Intoxication: Knowingly + voluntarily ingested.