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Criminal Law Bar Outline

Law Outlines > Criminal Law - Bar Exam Outlines

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1. Basic Considerations a. Jurisdiction -State where an act or omission constituting an element of the offense took place b. Felonies - crimes punishable by death or imprisonment for more than one year. c. Vagueness - Due process requires criminal statutes not to be vague (no arbitrary enforcement) d. Merger - Solicitation and Attempt merger with the substantive offense but Conspiracy does not. e. Compete Crime - Act, Intent, Concurrence, and Causation in some crimes

2. ACTUS REA (Act) a. Commission (act) - Voluntary, conscious and non-reflexive act by D i. Any intentional act can qualify - scaring someone to death by yelling at them when you know they have a weak heart.

1. Conduct must be the product of your own volition

2. Conduct NOT the product of your own volition is NOT an act a. i.e. reflexive or unconscious act b. Exception - When the D knew he was likely to become unconscious and committed the act anyway. b. Omission (failure to act) - generally NOT required to act to prevent harm, unless (3 elements) i. There is a specific DUTY imposed by law

1. Statute which requires action

2. Contractual agreements that are relied upon by others (Lifeguard, Air traffic control)

3. Relationship between the parties, such as parents having duty to care for children

4. Voluntarily assuming the duty of care for someone else and failing to reasonably perform. (i.e. Good Samaritan starting to help then leaving)

5. D's conduct created the peril (ie. shooting someone) ii. D has KNOWLEDGE of the duty to act iii. It is reasonably POSSIBLE to perform that duty. c. Possession - Must only have constructive possession (must be in D's dominion or control) i. Must knowingly possess the item (exception willful blindness)

2. MENTAL STATES (Intent) a. Strict liability - law imposes liability based solely on act, NO need for mens rea i. NO intent crimes - defenses that negate intent cannot be used ii. Only possible defenses - insanity, involuntary intoxication and possibly duress

1. Mistake and voluntary intoxication are NOT defenses iii. Hints that it's a strict liability statute - there are no adverbs (ly words)

1. crime is in the administrative, regulatory or morality area (statutory rape, selling alcohol to minors or Bigamy) b. General intent (Most crimes) - i.e. Battery, Kidnapping and Rape i. Rule - General Awareness that all factors constituting the crime are likely to occur. ii. Includes all crimes that do not fit within any other mental state. iii. Defenses - Reasonable mistake of fact is a defense to all general intent crimes. (unreasonable mistake is NO defense) iv. General intent may be inferred from the act. v. Distinguish motive from intent 1

c. Specific intent - Committed with specific intent or objective. (cannot be inferred from the act) i. Crimes

1. Inchoate offenses - solicitation, conspiracy, attempt

2. First degree murder - if defense applies reduce to 2nd degree

3. Assault when charged as an attempted battery

4. Felonies against property - larceny, embezzlement, false pretenses, robbery, burglary, forgery ii. Defenses - (1) Unreasonable mistake of fact, and (2) Diminished capacity d. Malice crimes - CL murder and arson - Requires only a reckless disregard of an obvious or high risk that the particular harmful result will occur. e. Transferred intent i. Intent (Mens rea) can be transfer to a different victim other than the originally intended victim of crime ii. Applies to homicide, battery and arson. (NOT Attempt crimes) iii. Never merges any crimes that have different victims

1. i.e. Always 2 separate crimes available for prosecution a. Murder of persona actually killed, and b. Attempted murder of the person originally shot at but missed iv. It is not possible to transfer intent between different crimes (except felony murder)

1. i.e. murder to attempted murder, but NOT burglary to arson

3. CONCURRENCE - The defendant must have had the intent necessary for the crime at the time he committed the act constituting the crime.

4. Accomplice liability (aiding and abetting) a. Mental State - Give aid, counsel, or encourage the principal with the intent to encourage the crime. i. Mere knowledge of crime is NOT enough - Must have actually done something with intent to assist in a crime. (i.e. give advice) ii. If service or product provided is lawful - law usually demands that alleged accomplice have had some sort of "stake in the outcome" before they will be held as an accomplice.

1. i.e. over charging because of the knowledge of criminal activity is sufficient b. Accomplices are liable for: i. The originally intended crime itself, AND ii. ALL other foreseeable crimes committed by the principals c. Withdraw - A person who effectively withdraws cannot be held guilty if: i. Withdraw must occur before the crime becomes unstoppable

1. Repudiation is sufficient withdraw for mere encouragement

2. Attempt to neutralize assistance is required if participation went beyond mere encouragement.

3. Note- Notifying police is also sufficient.

5. Inchoate Offenses (incomplete) a. SOLICITATION- Solicitation of another to commit a felony (Cop ok) i. Crime is completed when question is asked (Withdraw is not a defense)

1. No response in the affirmative needed ii. Mental State - Specific intent that the person solicited commit the crime. iii. If person solicited actually agrees to criminal proposal, conspiracy exists

1. Solicitation merges into the crime of conspiracy 2

b. CONSPIRACY i. 5 elements required

1. An agreement between two or more persons

2. Some slight overt act in furtherance (i.e. casing the bank)

3. There must be a meeting of the minds a. Undercover agent can't form a meeting of the minds

4. Specific intent to enter into the agreement

5. Specific intent to achieve the objective of the agreement ii. NO Merger - Conspiracy does NOT merge with the substantive offense (i.e. you can be charged with conspiracy and the substantive offcence) iii. Liability - each conspirator liable for ALL crimes of their co-conspirators, if crimes are committed in furtherance of the conspiracy and were reasonably foreseeable iv. Agreement - agreement doesn't have to be express (no written or spoken words are needed)

1. i.e. Various people can be part of a conspiracy even if they have never met and do not personally know each other. v. Acquittal of ALL co-conspirators - requires acquittal of the D because he couldn't have conspired with anyone vi. Overt Act

1. Majority rule - there must be an agreement + some slight overt act. a. i.e. making a phone call to recruit people, or showing up at the place you agree to rob.

2. CL and minority rule - liability for conspiracy occurs with the agreement itself and NO overt act is needed . (only apply if question asks for it) vii. Withdraw - NOT a defense to conspiracy because the conspiracy is complete as soon as the agreement is made and an act in furtherance is performed. (May be a defense to crimes committed in furtherance)

1. Successful withdraw - conspirator must (1) inform all co-conspirators of his intent to withdraw and (2) notice must be given in time for the other members to abandon their criminal plans (i.e. the night before and not 10 minutes before)

2. D who does successfully withdraws is NOT liable for any future crimes of coconspirators BUT is still liable for any reasonably foreseeable crimes which have already been committed in furtherance of conspiracy viii. Terminates - A conspiracy terminates upon the completion of the wrongful objective. ix. Impossibility - Impossibility is not a defense to conspiracy. c. ATTEMPT - Performance of an act that would be a crime if successful. i. Mental State - Specific intent to complete the target offense. ii. Overt Act - Substantial Step must be taken towards completion of target offense

1. Beyond mere preparation

2. Abandonment is NOT a defense after the completion of an overt act iii. Attempt Merges - Attempt Merges with the Target Offense.

1. i.e. if D is convicted of the completed offense then can't be convicted of attempt. iv. Defenses

1. Legal Impossibility - When the D did, or intended to do acts that would not constitute a crime if committed IS a defense.

2. Factual Impossibility - Would be factually impossible for the defendant to complete his plan is NOT a defense.


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