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New York Bar Exam - Criminal Law


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What are the typical elements of a crime?
1) act or omission(actus reus);
2) mental state (mens rea); and
3) concurence of act and mental state.

**May also require proof of a result and causation.
What is the actus reus?
1) Voluntary physical act; or
2) Omission under a legal duty to act.
When can D be held liable for an omission?
1) There is a specific duty act imposed by law;
2) D has knowledge of the facts giving rise to the duty to act; and
3) It is reasonable to perform the duty.
What can give rise to a duty to act?
1) Statue (eg, file taxes)
2) Contract (eg, life gaurd)
3) Relationship with victim (eg, parents, spouses)
4) Voluntary assumption of care for the victim
5) Creation of peril for the victim (eg, pushing someone in river)
What are the 3 mental states recognized at common law?
1) Specific intent
2) Malice
3) General intent
What constitutes specific intent?
Intent to engage in crime.
What are the major specific intent crimes?

B = Burglary
R = Robbery
A = Attempt
M = Murder (1st Degrees)
A = Arson
C = Conspiracy
T = Theft (Larceny, Robbery, etc)
S = Solicitation
What mental state is required the crime when attempted is not specific?
With any charge of attempt specific intent must be proven, even though if the crime is not specific intent.
What constitutes malice?
reckless disregard of an obvious or high risk that the particular harmful result will occur.
What are the major malice crimes?
1) Murder
2) Arson
What are the major general intent crimes?
1) Battery
2) Rape
3) Kidnapping
4) False Imprisonment
5) Assault (threatened harm)
What is general intent?
Intending to do all factors constituting the crime.
How can general intent be proven?
A jury may infer the required general intent merely from the doing of the act.
When can D be held liable via transfered intent?
When he intend harm that is actually caused, but the harm occurs to different victim or object.

**Doctrine applies to homicide, battery, and arson.
**Always results in 2 crimes, the one committed and the one attempted.
What is a strict liability offense?
One that does not require intent/awareness of all of the factors constituting the crime. (ie, no intent required... just doing the act is enough)

**statutory rape, selling liquor to minors, etc.
What is a vicarious liability offense?
One in which a person with or without personal fault is held liable for criminal conduct of another (usually an employee).
What is the MPC standard on intent?
It eliminates general/specific intent distinction and adopts the following categories:
1) Purposely
2) Knowingly
3) Recklessly
4) Negligently
When does a person act purposely?
When his conscious objective is to engage in certain conduct or cause a certain result.

** purposely = to common law specific intent
When does a person act knowingly?
When a D is aware that his conduct is of a particular nature or knows it is very likely to cause a result.

** equivalent to common law malice
When does a person act recklessly?
When he knows of a substantial and unjustifiable risk and consiously disregards it.
When does a person act with negligence?
When he fails to be aware of a substantial and unjustifiable risk, where such failure is a substantial deviation from the standard of care. (objective standard)
What is the significane of concurrence of the mental fault and physical act?
D must have the necessary intent for the crime at the time he committed the act constituting the crime.
Who are the parties to the crime under most modern statutes?
1) Principle (person who committs the offense)
2) Accomplice (person who aids or encourages the principle - active involvement)
3) Accessory (person who aids another to escape, knowing he has committed a felony)
What is the scope of accomplice liability?
He is responsible for:
1) the crimes he committed or encourage the prinicipal to do; and
2) any other forseeable crimes committed by the principle in the course of committing the crime contemplated.
What is the liabilty of an accessory?
Liable for seperate, less serious crime of being an accessory after the fact.
What mental state is required to be liable as an accomplice?
Most jurisdictions require that the person acted with the intent to encourage the crime.
Is the inability to be a principal a bar to accomplice liability?
No. (eg, a woman can be an accomplice to rape)
What is necessary for withdrawal by an accomplice to be an effective defense?
1) Repudiation if party merely encouraged;
2) Attempt to neutralize assistance or notifying the police is required otherwise;
Who is excluded from accomplice liability?
1) Members of the protected class
2) Necessary parties not provided for (eg, if sale but not purchase of drugs is illegal, the purchaser can't be an accomplice)
3) Party who withdraws before the crime becomes unstoppable
What are the inchoate crimes?
1) Solicitation
2) Cospiracy
3) Attempt
What are the elements of solicitation?
1) Inciting, counseling, urging, or commanding another to committ a crime,
2) with the intent that the person actually committ it.

**act is completed upon asking.
Is it a defense that the person solicited is not convicted or the offense could not have been successful?
Is withdrawal a defense to solicitation?
Does the crime of solicitation merge?
Yes, the solicitor cannot be punished for both solicition and attempt, conspiracy, or the crime comitted.
What are the elements of conspiracy?
1) An agreement between 2 or more persons;
2) An intent to enter into the agreement; and
3) An intent by at least 2 person to achieve the objective of the agreement
4) An overt act in furtherance (majority and NY rule)
What is necessary for an agreement in a conspiracy?
The parties must agree to accomplish the same objective by mutual action.

**can be infered from joint activity
What is the Wharton Rule?
Where 2 or more people are necessary for commission of the offense (eg, adultery) there is no crime unless more parties agree to the crime than necessary.
What is the conspiracy rule regarding protected classes?
The nonprotected person cannot be guilty if the agreement was only with the protected person.
What is the effect of acquital of some conspirators?
If D is charged and all others have been acquitted, D cannot be convicted.
Can a person conspire with an undercover police officer?
Generally No, because only D intended that the object crime be completed.
What is the MPC approach to conspiracy?
D can be convicted of conspiracy regardless of whether the other parties have all been acquited or were feigning agreement.
What intent is required for conspiracy?
Specific intent to:
1) agree
2) achieve the object of the conspiracy.
What is the scope of a conspirator's liability?
May be liable for crimes of other conspirators if:
1) They were committed in furtherance of the objective of the conspiracy; and
2) They were foreseeable.
When does the conspiracy terminate?
Upon completion of the wrongful objective.
Is withdrawal a defense to conspiracy?
No, but may be a defense to crimes in furtherance of the conspiracy and the target crime.
Does the merger doctrine apply to conspiracy?
No, there's no merger.
What are the elements of attempt?
1) An overt act
2) Done with intent to commit a crime
3) That falls short of completing the crime
What is the mental state required for attempt?
An attempt always requires a specific intent.

**Regardless of the intent necessary for the completed offense
What will constitute an overt act for attempt?
D must committ an act beyond mere preparation, as easured by the proximity test or the substanial step test.
What is the proximity test for attempt?
The act must be dangerously close to completion of the crime. (traditional view)
What is the substanial step test?
For attempt, the act must be a substantial step in a course of conduct planned to culminate in the commission of the crime that strongly corroborates criminal purpose (modern view).
Is impossibilty of success a defense to attempt?
Factual impossibility is not. (eg, couldn't rob someone because they had no money)

Legal impossibility is a defense. (eg, it isn't a crime to do what D intended).
Is abandonment a defense to attempt?
Abandonment is not a defense if D had the intent and did the overt act.
Does the merger doctrine apply for attempt?
Yes, attempt merges with the completed crime.
What are the defenses negating criminal capacity?
1) Insanity
2) Intoxication
3) Infancy
What are the tests used to determine whether D was so mentally ill as to be acquitted?
1) M'Naghten Rule
2) Irresistible impulse test
3) Durham test
4) MPC Test (aka ALI)
What is the M'Naghten rule for insanity?
D does not know right from wrong
What is the irresistible impulse test?
D is unable to control his actions/impulses
What is the Durham test for insanity?
But for the mental illness, D would not have done the act.

** broader than irresistible impulse or M'naghten rule.
What is the MPC test for insanity?
1) D didn't know right from wrong, or
2) D couldnt control his actions

**really just a combo of irresistible impulse and m'naghten.
Who bears the burden of proof on sanity?
D must raise the issue, but jurisdictions are split on who has the burden of proof on the issue.
What does due process require regarding insanity?
D may not be tried or convicted, if due to mental defect he can not:
1) Understand the nature of the proceedings against him; or
2) Assist in his defense.
What is the diminished capacity defense?
D need only show that his mental defect prevented him from having the requisite mental state for the crime.

**Only some states recognize this defense
What is the defense of intoxication?
D may raise it if intoxication negates one of the elements of the crime.

** important to distinquish between voluntary and involuntary intoxication
What is the effect of voluntary intoxication?
It acts only as a defense to specific intent crimes.
What is the effect of involuntary intoxication?
It is treated as a mental illness, and defendant is acquited if she meets the jurisdiction's insanity test.
What is the modern rule regarding the defense of infancy?
Under most mondern statutes, no child can be convicted of an adult crime until age 13 or 14.
What are the exculpatory defenses?
1) Justification
2) Duress
3) Mistake of fact
4) Mistake of law
5) Consent
6) Entrapment
What is the defense of justification?
Although D committed a proscibed act he should not be pusished because the circumstances justify the crime.
What are the sub-defenses of justification?
1) Self defense
2) Defense of others
3) Defense of a dwelling
4) Defense of other property
5) Crime prevention
6) Use of Force to Effectuate Arrest
7) Resisting improper arrest
8) Necessity
9) Public policy
10) Domestic Authority
When may a person use non-deadly force in self defense?
A person without fault may use force reasonably necessary to protect himself from imminent unlawful force.

** No duty to retrat
When may a person use deadly force in self defense?
1) He is without fault
2) He is confronted with unlawful force; and
3) He is threatend with imminent death or great bodily harm

**Majority holds no duty to retreat
When may an agressor use self defense?
Only if:
1) He effectively withdraws from the altercation and communicates desire to do so; or
2) V suddenly escalate a minor fight into a deadly altercation and he has no chance to withdraw
When may a person use defense of others?
May defend others if he reasonably believes that the person has legal right to use force.
When may defense of dwelling be used?
1) Nondeadly force may be used to prevent or terminate what is reasonably regarded as unlawful entry int D's dwelling
2) Deadly force may only be used to protect the saftey of the inhabitant rather that the dwelling itself.
When can defense of property be used?
Nondeadly force may be used to defend property in one's possession from unlawful interference.

**Unless a request to desist would suffice.
When can crime prevention be used as a defense?
1) Nondeadly force may be used to the extent it reasonably appears necessary to preve a felony or serious breach of peace.
2) Deadly force can only be used to terminate or prevent a dangerous felony involving risk to human life
When can police use force effectuate an arrest?
1) Nondeadly force if it reasonably appears necessary, or
2) Deadly force if it is necessary to prevent a felon's escape.
When can a private person use force effectuate an arrest?
1) Nondeadly force if a crime was in fact committed and he has reasonable grounds to believe the person arrested did it
2) Deadly force only if the person harmed was actually guilty
When can person use force to resist arrest?
1) Nondeadly force to resist an improper arrest even if he knows its an officer
2) Deadly force to only if a person does not know its an officer arresting
What is the defense of necessity?
It is a defense that the person reasonably believed the crime was necessary to prevent imminent and greater injury.

**no right to cause death of others, no right if D created the situation.
What is the defense of duress?
It is a defense to a crime other than a homicide that the defendant reasonably believed that another person would imminently inflict death or great bodily harm upon him or a member of his family.
When is mistake or ingonrance of fact a defense?
Relevant to criminal liability only if it shows that D lacked the state of mind required for the crime.

**mistake need only be a reasonable one for non-specif intent crimes
When mistake of law of law a defense?
Generally never.
What are the exceptions to mistake of law rule?
1) Reliance on an atty may negate mental element
2) The statute proscribing conduct was not published
3) Reasonable reliance on a judical decision
4) Reliance on offical interpetation of advice
What is the defense of entrapment?
Exists only if
1) the criminal design originated w/ officers; and
2) D was not predisposed to commit the crime

**very difficult defense to established b/c D will be found predisposed
What are the offenses against the person?
1) Battery
2) Assualt
3) Mayhem
4) Homicide
5) False Imprisonment
6) Kidknapping
What is battery?
1) Unlawful application of force to the person of another,
2) resulting in either bodily injury or an offensive touching.

** Need not be intentional and need not be directly applied.
What is aggrivated battery?
Most jurisdiction treat the following as felonies:
1) Battery with a deadly weapon
2) Battery resulting in serious bodily harm
3) Battery of child, female, or officer.
What is assualt?
1) an attempt to commit a battery, or
2) the intentional creation of a reasonable apprehension in the mind of the victim of
What is mayhem?
Old common law crime of disablement of a body part, now treat as a form of aggrivated battery.
What are the 3 common law categories of homicide?
1) Murder
2) Voluntary manslaughter
3) Involuntary maslaughter
What is murder?
The unlawful killing with malice aforethought.
What constitutes malice aforethought?
1) Intent to kill;
2) Intent to inflict great bodily injury;
3) Reckless indifference to an unjustifiably high risk to human life; or
4) Intent to commit a felony.
What is voluntary manslaughter?
A killing that would be murder but for the existence of adequate provocation.
What is adequate provocation?
1) Provacation that would arouse sudden and intense passion in a ordinary person;
2) D was in fact provoked;
3) No sufficient time for a reasonable person to cool off; and
4) D did not actually cool off.
What are the statutory degrees of murder?
1) First degree: Decision made in a cool and dispasionate manner.
2) Second degree: Anything that's not first degree.
What is felony murder?
Murder commited during certian felonies, which will constitute first degree murder.

**Felony must be distinct from the killing and death must be a foreseeable result.
What felony will be sufficient for felony murder?
Most common list includes:
1) Arson,
2) Robbery,
3) Burglary,
4) Rape,
5) Kidknapping
What is false imprisonment?
1) unlawful confinement of a person
2) without his valid consent.

**It is not confinement to simply prevent a person from going where she desires to go, as long as alternative routes are available to her.
What is kidnapping?
Unlawful confinement of a person that involves either:
1) some movement of the victim, or
2) concealment of the victim in a “secret” place.
What is aggravated kidnapping?
1) kidnapping for ransom;
2) kidnapping for the purpose of comiitting other crimes;
3) kidnapping for offensive purposes; or
4) child stealing.
What are the offenses against property?
1) Larceny
2) Embezzlement
3) False pretenses
4) Robbery
5) Receipt of stolen property
6) Theft
7) Forgery
8) Malicious mischief
What is Larceny?
1) A taking (obtaining control);
2) And carrying away (asportation);
3) Of tangible personal property;
4) Of another with possession;
5) By trespass (without consent or by consent induced by fraud);
6) With intent to permanently deprive that person of her interest in the property.
What is embezzlement?
1) The fraudulent;
2) Conversion (i.e., dealing with the property in a manner inconsistent with the arrangement by which defendant has possession);
3) Of personal property;
4) Of another;
5) By a person in lawful possesion of that property.

**Different from larceny because D is in rightful possession when he misappropriates, while D is not in possession in larceny.
What is false pretenses?
1) Obtaining title;
2) To personal property of another;
3) By an intentional false statement of past or existing fact;
4) With intent to defraud the other.
What is the difference between larceny and false pretenses?
If the victim is tricked into giving up possession it's larceny. If tricked into giving up title, its false pretenses.
What is robbery?
1) A taking;
2) Of personal property of another;
3) From the other’s person or presence (including anywhere in his vicinity);
4) By force or threats of immediate death or physical injury to the victim, a member of his family, or some person in the victim’s presence;
What is extortion?
Often consists of obtaining property by means of threats to do harm or to expose information.

**some statues do not actually require obtaining the property. Different from robbery b/c it can be future threats and need not be in V's presence.
What is receipt of stolen property?
1) Receiving possession and control;
2) Of "stolen" personal property;
3) Known to have been obtained in a manner constituting a criminal offense;
4) By another person;
5) With the intent to permanently deprive the owner of his interest in it.

**Note, intent and act must be concurrent (eg, you must know it's stolen when you take it.)
What is theft?
Under many modern statutes, some or all of the above property offenses are combined and defined as the crime of “theft.”
What is forgery?
1) Making or altering (by drafting, adding, deleting);
2) A writing with apparent legal significance;
3) So that it is false; (i.e., representing that it is something that it is not)
4) With intent to defraud.

**No one need actually be defrauded. If 3rd person is caused to sign but doesn't realize he's signging it's forgery. If he realizes he's signing it, it's not forgery.
What is malicious mischief?
1) The malicious;
2) Destruction of or damage to;
3) Property of another.
What are the offenses against habitation?
1) Burglary
2) Arson
What is burglary
1) A breaking (creating or enlarging an opening by at least minimal force, fraud, or intimidation);
2) And entry (placing any portion of the body or any instrument used to commit the crime into the structure);
3) Of a dwelling (a structure used with regularity for sleeping purposes, even if used for other purposes such as conducting a business);
4) Of another (ownership is irrelevant; occupancy by someone other than defendant is all that is required);
5) At nighttime;
6) With the intent to commit a felony in the structure (felony need not be carried out to constitute burglary).
When must the intent to commit a felony be present for burglary?
At the time of entry.
What is arson?
1) The malicious (i.e., intentional or with reckless disregard of an obvious risk);
2) Burning (requiring some damage to the structure caused by fire);
3) Of the dwelling;
4) Of another.

**MBE Q's often assume that arson extends to structures other than dwellings.
Will an explosion constitute arson?
No, the damage must be caused by fire.
When does an accomplice have an affirmative defense to felony murder?
(1) he did not commit or aid in the commission of the homicidal act;
(2) he was not armed with a deadly weapon or substance;
(3) he had no reasonable grounds to believe others were armed with deadly weapons or substances; and
(4) he had no reason to believe any participant intended to engage in conduct likely to result in death.

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