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Criminal Law
Bar Study

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Jurisdiction and merger (Criminal law)

State acquires jx over a crime if either conduct or result happened in that state.


Generally, there are no merger crimes in American Law.

1. But, Solicitation and attempt do merge into the substantive offense. Thus, if you have completed that crime, you cannot be charged with attempting to commit.

a. Conspiracy does not merge.

2. Arizona crimes are all statutory. Apply AZ crime with its elements on the essay portion.

Essential elements of a crime

An Act, which can be any bodily movement, but must be voluntary. Not an act if

a. Not a product of own volition

b. Reflexive or Convulsive.

c. An act performed while unconcious or asleep.

Generally there is no duty to rescue but sometimes there is a duty to act if:

a. By statute (file taxes)

b. By contract (lifeguard)

c. Because of relationship between parties (parent-child)

d. Because you voluntarily assume a duty of care and then perform it.

e. Where your conduct created the peril.

Specific Intent Crimes

These qualify for additional defenses not available for other types of crime:

1. Solicitation

2. Conspiracy

3. Attempt

4. First Degree murder

5. Assault

6. Larceny

7. Embezzlement

8. False Pretenses

9. Robbery

10. Burglary

11. Forgery

Malice Crimes

Murder and Arson

General Intent Crimes

Catch-all category.  Anything but specific intent and Malice, unless they qualify for strict Liability (Rape, Battery)

Transferred Intent

No Merger when two victims involved and will be liable for 2 crimes.

1. Murder of transferred victim

2. attempted murder of person intended.

Strict Liability (No intent crimes)

The importance of strict liability is that any defense that negates intent cannot be a defense to the no intent crimes of strict liability.

1. Crime is in the administrative, regulatory, or morality area and you don't see any adverbs in the statute such as knowingly, willfully, or intentionally, then the statute is meant to be a no intent crime.

Mental States in AZ (Crime)

Do not use or refer to specific intent, malice, general intent on essay portion because AZ mental states are adopted from the Model Penal Code.

Intentionally: Concious desire

Knowingly: must have believed or been aware

Criminal Negligence: must have failed to perceive a substantial and unjustifiable risk.

Strict liability: If the statute makes no express provision for culpable mental state then none is required.

Accomplice liability

Aiding, encouraging, or promoting a crime. Liable for Crime itself and all other foreseeable crimes. 

1. Don't give someone accomplice liability just because they are present at crime, even if it seems they somehow consent to it or do not call police. Has to be more

2. Exception: Cannot be convicted of aiding and abetting in a statute that was meant to protect the type of class you are in.

2. In AZ there is no accessory before the fact, accessory after the fact, or aiding and abetting crimes. After the fact accessory is covered by obstruction of justice 

a. Having the intent to promote or facilitate the commission of offense by the other person AND performing some act in furtherance.


An Inchoate (incomplete) Offense.  Asking someone to commit a crime, the crime ends when you ask them.

a. Not necessary that person agrees to commit in order to have committed solicitation.

b. If the person agrees to do it, then it becomes conspiracy and the solicitation merges.


Conspiracy is an agreement, with an intent to agree, and an intent to pursue an unlawful objective.

a. A solicitation turns into conspiracy when the person agrees to do it.

b. Does not merge with the substantive offense.

c. All conspirators are liable for all crimes of co-conspirators  if those crimes were committed in furtherance of conspiracy and were foreseeable.

d. Agreement does not have to be expressed.

e. There must be an agreement PLUS an overt act in furtherance of the conspiracy. 

a. Minority view: agreement itself

b. Arizona: Broad, and no overt act required for felonies, 1st degree burglary, or arson of an occupied structure.

f. Impossibility is not a defense.

g. Withdrawal does not relieve the defendant from conspiracy itself, but can relieve him from liability for other conspirators' subsequent crimes.

h. Requires 2 guilty parties. The acquittal of all persons with whom a defendant is alleged to have conspired precludes conviction of the remaining defendant.

a. In AZ, guilt is based upon each person's own actions and culpability

b. No defense that others are immune or not criminally responsible

c. No defense that others did not have required intent.

d. No defense that others were legally incapable of committing offense.


Specific intent plus a substantial attempt beyond mere preparation in the direction of committing the crime.

a. Mere preparation for a crime cannot ground liability. 

b. AZ allows ANY act in furtherance, need not be substantial, and mere preparation is sufficient. Impossibility is not a defense.

c. AZ allows state to convict both attempt and commission, but person can only be convicted of one.

*Be careful regarding the intent requirement as to attempt and murder.  Attempt requires actual intent to commit the crime, while murder may not necessarily require such intent if actor acts in awareness of substantial risk to human life.

Defenses for Crimes based on Criminal Capacity(Insanity, Intoxication, Infancy)

A. Insanity

1. M'Nagten Rule: at the time of his conduct, D lacked ability to know wrongfulness or understand nature and quality of actions.

2. Irresistible Impulse: Defendant lacked the capacity for self control and free choice

3. Durham: Defendant's conduct was a product of mental illness

4. Model Penal Code: D lacked ability to conform his conduct to the requirements of law.

5. Arizona: At the time of the act the D was afflicted with a mental disease of defect of such severity that he did not know the act was wrong (Diminished capacity is not allowed)

B. Intoxication

1. Voluntary (self induced) intoxication is a defense only to specific intent.

a. addicts and alcoholics are always voluntarily intoxicated.

b. AZ does not allow voluntary intoxication to any criminal act or mental state.

2. Involuntary intoxication is a form of insanity and thus a defense to all crimes.

C. Infancy

a. Under 7: no criminal act

b. Under 14: Presumptively no

c. AZ: if age 15-17 and crime is one of certain high level of felonies, there is irrebuttable presumption of capacity based on age and must be tried as adult. 

Self-Defense (Crime)

A victim may use non-deadly self-defense anytime the victim reasonably believes that force is about to be used on them. A victim may use deadly force any time the victim reasonably believs that deadly force is about to be used on them.

a. Minority rule: VIctim is required to retreat if they can do so, unless:

1. In home

2. Victim of rape or robbery

3. Police officer

b. In AZ, SD is not allowed in response to verbal provocation alone or to resist arrest absent use of excessive force. Retreat is not necessary but relevant to determine whether SD was reasonable.

To get back the defense of self-defense, the original aggressor must withdrawal and communicate withdrawal.

Defense of a Dwelling (Crime)

Deadly force may never be used solely to defend property. However, situation might be different if you are at home and need to protect yourself/family.

Durress (Crime)

Is a defense to criminal act if the person acts under a threat of imminent infliction of death or great bodily harm and that belief is reasonable. IS NOT a defense to homicide.

a. In AZ, not available for crimes involving serious physical injury or if you knowingly, inentionally, recklessly place yourself in situation.

Mistake of Fact (Crime)

Mistake of fact is only a defense when mistake negates intention (not available for strict liability crimes).

a. The mistake has to be reasonable to be a defense to malice or general intent crimes.

b. ANY mistake is a defense for specific intent crimes.

Consent (Crime)

Generally is not a defense.


1. Criminal design must have been originated with law enforcement.

2. Defendant must not have been pre-disposed to commit.

3. In AZ, must prove that officers urged and induced the defendant to commit the crime.

Battery and Assault

A. Battery

1. A completed assault

2. Touching only has to be offensive

3. General intent crime.

4. no crime of battery in AZ

B. Assault

1. Knowingly touching with the intent to insult, injure, or provoke

2. Inentionally placing in reasonable apprehension of imminent physical injury.

3. Intentionally, knowingly, recklessly causing physical injury.

Aggravated Assault

Assault and

1. Serious physical injury

2. Use of deadly weapon or dangerous instrument

a. anything designed for lethal force or andying readily capable of causing death or serious injury.

3. Victim is police, fire, paramedic, healthcare practicioner acting in the scope of their duties.

First degree Murder

A. First Degree Murder

1. Premeditated killing (human and dead)

2 Defendant must have acted with intent or knowledge that his conduct would cause death.

B. Felony Murder (Type of First degree)

1. ANY foreseeable killing committed during the course of a felony (different than the killing itself).

2. If the D has a defense to underlying felony, then he has a defense to felony murder.

3. Once the D reaches a point of temporary safety, deaths caused after are not felony murders even if in grand scheme.

4. D not responsible for death of co-felon as a result of resistance by victim or police.


C. Homicide of a Police Officer

1. D must know victim was police enforcement 

2. Victim was acting in line of duty.

Second Degree Murder

A malice crime (Not specific intent). The unlawful killing with malice of forethought

1. Intent to kill

2. Intent do do serious bodily injury

3. Extreme indifference to human life (depraved heart murder)

4. Felony murder (under common law)

*Murder can be reduced to voluntary manslaughter if Killing in the heat of passion resulting from an adequate provocation by victim


In AZ, manifesting an extreme indifference to human life and engaging in conduct that creates a grave risk of death.


1. Voluntary

a. Killing in the heat of passion resulting from an adequate provocation by victim

b. Provacation must be one that would arouse sudden and intense passion in the mind of an ordinary person such to cause him to lose self-control.

c. Insufficient time between provocation and killing for passions to cool.

d. D in fact did not cool off between provocation and killing.

2. Involuntary

a. Criminal Negligence: Failed to perceive a substantial and unjustifiable risk

b. Misdemeanor manslaughter: Killing someone while committing a misdemeanor or an unenumerated felony


In Arizona, Manslaughter is 

1. a reckless killing

2. Killing upon sudden quarrel or heat of passion upon adequate provocation from victim

3. Intentionally aiding someone in suicide

4. Killing under coercion

Sex Offenses

1. Rape

a. The slightest penetration

b. Sexual Assault:  inentionally or knowingly engaging in sex or oral without consent.

2. Statutory Rape

a. Strict liability crime and consent or mistake of fact is no defense


Intentional and Wrongful taking and carrying away of property of another with intent to deprive permanently(asportation).

1. Intent to deprive the owner permanently must exist at time of taking.

2. Taking property with belief that it is yours is not larceny


A lawful possessor of property who intentionally and  illegally converts the property of another (i.e. Trustee)

1. Carrying away is not necessary, just lawful possession.

2. Embezzler doesn't have to get benefit (can use it to unlawfully convert property to someone else)

False Pretenses (Crimes)

The defendant persuades the owner of property to convey title by false pretense (misrepresentation)

1. Conveyance of Title

2. Misrepresentation can be present or past fact, but not promise to do something in the future.


There is no larceny, embezzlement or false pretenses in AZ. In AZ, everything is theft: the intent to permanently deprive of property is one way to deprive a person of property via theft. Also:

1. Intent to withold permanently

2. Intent to hold long enough to lose subst. value

3. Intent to withhold until reward is paid

4. Intent to transfer or dispose.

5. Does not require movement or asportation of property.


Embezzlement: Theft by conversion

False Pretenses: Theft by deception.

Larceny by trick

Taking of personal property of another from the other person's presence by force or threat with the intent to permanently deprive him of it.

a. Presence is very broadly construed (includes someont tied up in another room while robber takes items).

b. Threat must be one of imminent harm

In Arizona, Aggravated robbyery is robbery with one or more accomplices, and armed robbery is robbery using or threatening to use a real or simulated deadly weapon or instrument


General intent crime. Knowingly seeking to obtain property or services by means of a future threaten.

a. Don't have to take anything from person or his presence to be extortion.

b. The threats are future, not imminent.


Breaking and entering of a dwelling of another at night with the intent to commit a felony.

a. Breaking can be actual or constructive (threats, fraud), but not an actual breaking if no barrier has to be broken (going through open window).

b. any part of body crosses into house = entering

c. Cannot be barn or commercial structure

d. at night 

e. with intent to commit felony therein. Intent to commit must exist at time of breaking and entering or it is not common law burglary.


In AZ, does not have to be at night, and there does not need to be intent to commit theft or felony at time of entry.


The malicious burning of the dwelling of another.

a. Only applies to burning or charring, not smoking or blackening.

b. Has to be a dwelling, cannot be barn or commercial.

c. Has to be another person's place.


In Arizona, Damage can be any physical or visual impairment. Can be any structure


Specific intent crime.  With the intent to defraud, falsely makes, completes, or alters a written instrument, or

knowingly possess forged intstrument, or

offers or presents, whether accepted or not, forged instrument or one that contains false information.

Identity Theft

Kowingly and without consent

1. take, manufacture, possess, record, or use Identifying information of a real or fake person or entity with the intent to use the identity for an unlawful purpose or to cause a loss to any person or entity regardless of whether the person suffers an actual economic loss.

Aggravated Identity Theft

Commit identity theft of five or more persons or entities OR

Commit identity theft and cause more than $3,000 of economic harm.

Drug Offenses

Big issue with drug crimes is possession. Actual possession is when the substance is physically within control. Constructive possession occurs when substance is within dominion or control (in your car)

a. Defense: No knowledge that drugs were in car

b. anti-defense: knowledge can be inferred from attendant circumstances.


A person shall not knowingly possess, use, possess for sale, produce, import, sell, transfer, or offer to sell or transfer marijuana


A person shall not knowingly posssess or use, unless they obtain a valid prescription, prescription only drug.


A person shall not not knowingly blah blah blah a dangerous (acid, LSD, shrooms, meth, amph) drug or narcotic (pot, coke, opium) drug


A person shall not  not knowingly manufacture meth under any circumstances that causes physical injury to a minor who is under the age of 15.


Must know at minimum that result is very likely to occur, not that it merely might occur or has a slight chance of occuring

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