• Rule: A state acquires jurisdiction over a crime if either the conduct or the result happened in that state

• Generally, there is no merger of crimes in American law
• BUT - Solicitation and attempt - do merge into the substantive offense
• Thus, if you have completed a crime, you cannot be convicted of attempting to commit that crime
• Note: Conspiracy does not merge into the substantive offense
• Thus, you can be convicted of conspiring to do something and doing it

1. An Act
2. An Omission as an Act
3. Mental State
4. Concurrence of Mental Fault with Physical Act
5. Causation

• An Act can be any bodily movement - but the act must be a voluntary act
• Examples of bodily movements that do not qualify for criminal liability:

1. Conduct which is not the product of your own volition
2. A reflexive or convulsive act (seizure)
3. An act performed while you are unconscious or asleep

• Generally, there is no legal duty to rescue, but sometimes there is a legal duty to act
• A legal duty to act can arise in 5 Circumstances:

1. By Statute - Example: Requirement to file your tax returns
2. By Contract - Example: A lifeguard or nurse has a legal duty to act
3. Because of the Relationship Between the Parties - Example: A parent's duty to protect children, or a spouse's duty to protect the other spouse
4. Because you voluntarily assume the duty of care and then fail to adequately perform it
5. Where your conduct created the peril

• Four Common Law Mental States of a Crime:

1. Specific Intent Crimes
2. Malice Crimes
3. General Intent Crimes
4. Strict Liability Crimes

• The importance of specific intent crimes is that they will qualify for additional defenses not available for other types of crimes (voluntary intoxication and unreasonable mistake of fact)
• Specific Intent Crimes:

1. Solicitation (Inchoate Offense)
2. Conspiracy (Inchoate Offense)
3. Attempt (Inchoate Offense)
4. First Degree Murder
5. Assault
6. Larceny
7. Embezzlement
8. False Pretenses
9. Robbery
10. Burglary
11. Forgery

• Specific Intent Crimes Mnemonic: Students Can Always Fake A Laugh Even For Ridiculous Bar Facts

• On the Bar there are only 2 malice crimes:

1. Common Law Murder
2. Arson

• Big catch-all category
• All crimes not so far mentioned are general intent crimes unless they qualify for strict liability, but main 4 to look for are:

1. Battery
2. Rape
3. Kidnapping
4. False Imprisonment

• The No Intent Crimes
• Importance of Strict Liability on Bar is that any defense that negates intention cannot be a defense to the no intent crimes of Strict Liability
• Note: If the crime is in the administrative, regulatory, or morality areas and you don't see adverbs in the statute such as knowingly, willfully, or intentionally, then the statute is meant to be a no intent crime of strict liability
• Three Main Specific Intent Crimes:

1. Statutory Rape
2. Selling Liquor to Minors
3. Bigamy (some jurisdictions)

• Purposely: Once acts purposely when it is his conscious objective to engage in the certain conduct or cause a certain result
• Knowingly: One acts knowingly when he is aware that his conduct will very likely cause the result
• Recklessly: One acts recklessly when he consciously disregards a substantial and unjustifiable risk
• Negligently: One acts negligently when he fails to be aware of a substantial and unjustifiable risk

• Defendant must have had the intent necessary for the crime at the time he committed the act constituting the crime, and the intent must have actuated the act
• Example: If D is driving to V's house to kill him, he will lack the necessary concurrence for murder if he accidentally runs V over before reaching the house

• Some crimes (e.g., homicide) require result and causation

• An accomplice is one who aids, advises, or encourages the principal in the commission of the crime charged
• Accomplices must also have the requisite intent that the crime to be committed
• Accomplices are liable for the crime itself and all other foreseeable crimes

• If the person encouraged the crime, the person must repudiate the encouragement
• If the person aided by providing assistance to the principal (such as giving materials), he must do everything possible to neutralize this assistance (such as attempting to retrieve the materials)
• An alternative means of withdrawing is to call the cops

• Inchoate means incomplete
• There are 3 Inchoate Offenses:

1. Solicitation
2. Conspiracy
3. Attempt

• Rule: Solicitation is asking someone to commit a crime, the crime of solicitation ends when you ask them
• Note: Under c/l, it is not necessary that the person solicited agree to commit the crime
• If the person you ask to commit the crime agrees to do it, then it becomes a conspiracy and the solicitation merges
• The only crime left when the person agrees to do it is the conspiracy
• Note: Factual Impossibility is not a defense

• Rule: Conspiracy is an agreement, with an intent to agree, and an intent to pursue an unlawful objective

1. Conspiracy does not merge with the substantive offense

• On the Bar, you can be convicted of conspiring to do something and doing it
• Example: Robbery and Conspiracy to commit Robbery

2. Liability for co-conspirators' crimes:

• Each conspirator is liable for all the crimes of co-conspirators if those crimes were committed in furtherance of the conspiracy and were foreseeable

3. Agreement requirement for conspiracies:

• The agreement need not be expressed
• Intent can be inferred from conduct
• Bilateral Approach: The traditional (c/l) rule required two guilty parties. Thus, under this approach, if one person (in a two-party conspiracy) is merely feigning agreement, the other person cannot be guilty of conspiracy. Furthermore, the acquittal of all persons with whom a defendant is alleged to have conspired precludes conviction of the remaining defendant under this approach. (Always use this approach on MBE unless question says MPC jurisdiction)
• Unilateral Approach: The Modern Trend (and MPC approach) requires only that only one have a genuine criminal intent

4. Overt Act Requirement:

• Majority Rule: In order to ground liability for conspiracy there must be an agreement plus some overt act in furtherance of the conspiracy
• Minority Rule (and C/L Rule): Grounded liability for conspiracy with the agreement itself
• If you are operating under the majority rule that requires an agreement plus an overt act, any little act will do to be an overt act in furtherance of the conspiracy, even an act of mere preparation
• Note: On the MBE regarding majority and minority rules, always apply the majority rule unless specifically told otherwise

5. Factual Impossibility is no defense to conspiracy

6. Withdrawal, even if it is adequate, can never relieve the defendant from liability for the conspiracy itself. The defendant can withdraw from liability for the other conspirators' subsequent crimes, but he cannot withdraw from this conspiracy

• Rule: (1) Specific Intent plus (2) an overt act in furtherance of the crime
• For purposes of attempt, the overt act must be a substantial step in furtherance of the commission of the crime; thus, mere preparation cannot ground liability for attempt
• Defense of Abandonment: The majority rule is that once D has taken a substantial step toward committing the crime, abandonment is never a defense. The MPC allows for this defense only if it is fully voluntary and a complete renunciation of criminal purpose
• Impossibility: Legal impossibility is a defense to attempt; but factual impossibility is not a defense

1. Insanity
2. Intoxication
3. Infancy

• What you need to know for Bar - the 4 trigger phrases that are tied to the 4 Tests for the insanity defenses
• 4 Tests for Insanity:

1. M'Naghten Rule: At the time of his conduct, defendant lacked the ability to know the wrongfulness of his actions or understand the nature and quality of his actions
2. Irresistible Impulse: Defendant lacked the capacity for self-control - and free choice
3. Durham Rule: Defendant's conduct was a product of mental illness
4. MPC: Defendant lacked the ability to either appreciate the criminality of his conduct; or conform his conduct to the requirements of the law

1. Voluntary Intoxication: self-induced intoxication

• Voluntary Intoxication is a defense on the Bar only to specific intent crimes (and no other kind of crime)
• Note: For purposes of the Bar, addicts and alcoholics are always voluntarily intoxicated

2. Involuntary Intoxication: (1) Unknowingly being intoxicated, or (2) becoming intoxicated under duress

• Examples of Involuntary Intoxication:

1. You have something slipped into your drink (and you didn't know what it was or what its effects are); or
2. You are forced to drink

• Note: Involuntary Intoxication is a form of insanity, thus it is a defense to ALL CRIMES

• Remember these Two Rules:

1. Under age 7 - No criminal liability
2. Under age 14 - A rebuttable presumption of no criminal liability

1. Self Defense
2. Defense of Dwelling
3. Duress
4. Necessity
5. Mistake of Fact
6. Consent
7. Entrapment

1. Non-Deadly Force: A victim may use non-deadly self-defense anytime the victim reasonably believes that force is about to be used on him

2. Use of Deadly Force in Self-Defense:

• Majority Rule: A victim may use deadly force in self-defense anytime the victim reasonably believes that deadly force is about to be used on him
• Minority Rule: A victim is required to retreat if it is safe to do so if - but only if - the examiners tell you that you are in a "retreat" jurisdiction
• 3 Exceptions to Duty to Retreat:

1. No duty to retreat from your home
2. No duty to retreat if you are the victim of a rape or a robbery; and
3. Police officers have no duty to retreat

3. Original Aggressor and Self Defense:

• To get back the defense of self-defense, the original aggressor must:

1. Withdraw, and
2. Communicate that withdrawal

• Note: If the victim of the initial aggression suddenly escalates a minor fight into one involving deadly force and does so without giving the aggressor the opportunity to withdraw, the original aggressor may use force in his own defense (including deadly force, if reasonable)

4. Defense of Others:

• Rule: A defendant can raise a "defense of others" defense if he reasonably believes that the person assisted would have had the right to use force in his own defense
• Majority Rule: There need not be a special relationship between the defendant and the person in whose defense he acted

• Rule: Deadly force may never be used solely to defend property

• Rule: Duress is a defense to a criminal act if:

1. The person acts under the threat of imminent infliction of death of serious bodily harm, and
2. That belief is reasonable

• Threats to harm a third person may also suffice to establish the defense of duress
• Note: Duress is a defense to all crimes except homicide

• Rule: Conduct that would otherwise be criminal is justifiable if, as a result of pressure from natural forces, the defendant reasonably believes that his conduct was necessary to avoid a greater societal harm
• Note: The necessity defense differs from duress because duress involves a human threat, and necessity involves pressure from natural forces

• Rule: Mistake of fact is a defense only when the mistake negates intention
• The mistake has to be reasonable to be a defense to malice or a general intent crime
• BUT - on the Bar - any mistake, no matter how ridiculous, is a defense if the defendant is charged with a specific intent crime
• Mistake of fact is never a defense to strict liability crimes
• *See Review on pg. 19 of Handout*

• Consent of the victim is generally no defense

• Entrapment is a valid defense only if:

1. Criminal design originated with law enforcement officers, and
2. Defendant must not have been predisposed to commit the crime

• Look for an undercover cop
• Almost always fails as a defense on Bar

1. Battery
2. Assault
3. Aggravated Assault
4. Homicide
5. False Imprisonment
6. Kidnapping

• Rule: Unlawful application of force to the person resulting in either bodily injury or offensive touching
• A battery need not be intentional
• The force need not be applied directly (watch for poisoning hypo)
• Battery is a general intent crime
• Trigger phrase: "touched"

• An attempt to commit battery; or
• The intentional creation - other than by mere words - of a reasonable apprehension of imminence of the harm
• The Assault/Battery Distinction: If there has been an actual touching, the crime is battery
• Trigger word: "fearful"

• Aggravated Assault is an Assault plus one of the following:

1. The use of a deadly or dangerous weapon; or
2. With the intent to rape, maim, or murder

• Murder (generally): The unlawful killing of another human being with malice aforethought
• Such a state of mind exists if there is:

1. Intent to kill (1st Degree); or
2. Intent to inflict serious bodily harm (2nd Degree); or
3. Intent to commit a Felony (1st Degree); or
4. Reckless indifference to an unjustifiably high risk to human life (2nd Degree or C/L murder)

• Cause-in-Fact: The Defendant's conduct must be the cause-in-fact of the victims death. In other words, the death would not have occurred but for D's conduct
• Proximate Cause: The general rule is that a Defendant is responsible for all results that occur as a natural and probable consequence of his conduct, even if he did not anticipate the exact manner in which they would occur

1. Premeditated Killing:

• Victim must be a human being
• Defendant must have acted with intent or knowledge that his conduct would cause death

2. Felony Murder:

• Any killing - even an accidental killing - committed during the course of a felony (inherently dangerous felonies)
• Defenses to Felony Murder:

1. If the defendant has a defense to the underlying felony, then he has a defense to felony murder
2. The felony they are committing must be a felony other than the killing
3. The deaths must be foreseeable
4. Deaths cause while fleeing from a felony are felony murders, BUT once the defendant reaches a point of temporary safety, deaths caused thereafter are NOT felony murder
5. On the MBE, Defendant is NOT liable for the death of a co-felon as a result of resistance by the victim or police

3. Homicide of a Police Officer:

• The defendant must know the victim is a cop, and
• The victim must be acting in the line of duty (can still be acting in line of duty when off duty)

• In many states, second-degree murder is classified as a depraved heart killing - a killing done with reckless indifference to an unjustifiably high risk to human life; or
• Murders that are not classified as first-degree murders (e.g., premeditated killings or first-degree felony murders)

1. Voluntary Manslaughter:

• Killing in the heat of passion resulting from an adequate provocation by the victim;
• The provocation 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;
• There must not have been a sufficient time between the provocation and the killing for the passions of a reasonable person to cool; and
• The defendant in fact did not cool off between the provocation and the killing

2. Imperfect Self-Defense:

• If Defendant has an honest but unreasonable belief that his life was in imminent danger, this defense will reduce a murder to manslaughter
• Note: Only some states recognize this doctrine

3. Involuntary Manslaughter:

• A killing of criminal negligence, or
• Misdemeanor Manslaughter: Killing someone while committing a misdemeanor or an unenumerated felony (felony not listed in felony murder statute)

• Rule: Unlawful confinement of a person without his valid consent
• Note: If a known alternative route is available, the confinement element will not be met for purposes of false imprisonment
• Note: One's consent to the confinement precludes it from constituting false imprisonment
• Trigger word: "trapped/confined"

• Rule: Confinement of a person with either:

1. Some movement (taking), or
2. Concealment in a secret place

1. Rape:

• Only one thing you need to know about rape for the MBE - the slightest penetration completes the crime of rape

2. Statutory Rape:

• Statutory Rape is a strict liability crime, meaning consent of the victim is no defense and a mistake of fact is no defense

3. Crimes Against Nature and Other Sex Crimes

1. Larceny
2. Embezzlement
3. False Pretenses
4. Robbery
5. Extortion
6. Forgery

• Rule: C/L Larceny requires a wrongful taking, a carrying away (asportation) of property of another by trespass with the intent to permanently deprive
• Notes on the C/L Rule:

1. The slightest movement of the property is enough for purposes of the Bar
2. The intent to deprive the owner permanently must exist at the time of the taking or it is not C/L Larceny
3. BUT if a person takes property not intending to steal it, but then later decides to keep the property, she can be guilty of larceny under the theory of continuing trespass
4. Taking property in the belief that it is yours (or that you have some right to it) is NOT C/L Larceny

• Rule: The fraudulent conversion of property of another
• Notes for MBE:

1. The embezzler always has lawful possession followed by an illegal conversion
2. A trustee is often the MBE embezzler
3. You don't have to carry away to be an embezzler - just the lawful possession
4. The embezzler doesn't have to get the benefit

• Rule: The Defendant persuades the owner of property to convey title by false pretenses (false representation)
• Notes for MBE:

1. It is a conveyance of title that is the center of false pretenses
2. This false representation could be as to a present or past fact
3. A false promise to do something in the future cannot ground liability for false pretenses

• "Larceny by Trick" Distinguished: If only possession of the property is obtained, the offense is larceny by trick; if title is obtained, the offense is false pretenses

• Rule: The 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
• Notes for MBE:

1. The presence requirement is very broadly drawn - and would even cover a farmer tied up in his barn and taking things from his house
2. As for taking either by force or threat, things such as ripping a necklace from a person's neck is sufficient
3. The threat must be a threat of imminent harm

• Rule: Knowingly seeking to obtain property or services by means of a future threat
• Differences Between Extortion and Robbery:

1. You don't have to take anything from the person or his presence to be extortion
2. The threats are of future harm - not imminent harm

• Rule: The making or altering of a false writing with intent to defraud
• Note: Any writing that has apparent legal significance is subject to the crime of forgery

1. Burglary
2. Arson

• Rule: Breaking and Entering of a dwelling of another at night with the intent to commit a felony therein
• Notes for MBE:
• Breaking can be actual (involving some force, however slight) or constructive

1. Actual Breakings: It is not an actual breaking for someone to come uninvited through a wide open door or window; if wide open there is no breaking; BUT if someone pushes open an interior door to the bedroom or living room then a breaking exists
2. Constructive Breakings: A breaking by fraud or threat

• Entering occurs when any part of the body crosses into the house
• Dwelling house of another - cannot be a barn or commercial building
• At night - C/L had to be at night
• With the intent to commit a felony therein - the intent to commit the felony must exist at the time of the breaking and entering or it is NOT C/L burglary

• Rule: The malicious burning down of the dwelling of another
• As for the "malice" requirement, no specific intent is required
• Acting with a reckless indifference of an obvious risk that the structure would burn will suffice for arson culpability
• Notes for MBE:

1. Only applies to burning - not to smoke damage; Scorching is insufficient, but charring is sufficient
2. At C/L, the building burned had to be a dwelling; it could not be a barn or a commercial building
3. But Note: Questions on the Bar that are testing on other arson issues (e.g., "malice") will often assume without saying that the jurisdiction's arson law applies to structures other than dwellings
4. At C/L, the burning had to be a house of another; one could not be guilty of burning his own house at C/L