BarBRI – Criminal Law

BarBRI – Criminal Law

May 19, 2008



Criminal Law broken down into two categories:

 Crimes

 Criminal Procedure

o Criminal Procedure covered on another day



Two sources of Crimes

 Common Law

o Also called “Majority Rule”

 Most common rule in all fifty states

 Is not the case in any state anymore, as they have all codified their

criminal law

 Statutes

o Codified criminal statutes



JURISDICTION

Territorial issue

 Crime can be prosecuted where it happened

 Situs – Any state where any act that any part of the crime, or any state where the

result took place may prosecute.



FOUR ESSENTIAL ELEMENTS OF A CRIME



 Physical Act

(Typically, if there is no physical act, there is no crime)

o Act = Voluntary Bodily Movement

 Voluntary = When the brain tells ones body to move (consciously)

 Involuntary:

 1. Movement is NOT the product of the actor’s volition

 2. When the actor is sleepwalking or otherwise unconscious

 3. When movement is part of a reflex or convulsion

o Omission (Failure to act)

(Sometimes, not acting is an act)

 Only matters if there is a legal duty to act.

 Generally, the law does not recognize a general duty to act,

except:

o 1. By statute (i.e. filing taxes – There is a duty to

file taxes, the failure to do so results in a crime)

o 2. By contract (i.e. babysitter, doctor or lifeguard

are all under implied contract to act)

o 3. By status relationship (i.e. parent to child, and

spouse to spouse are the only recognized status

relationships)

o 4. By voluntary assumption of care (i.e. if you start

helping, you are then obligated to finish helping)

o 5. By creation of the peril (i.e. if you push a kid

who can’t swim into water you have a duty to

rescue the kid)

 There must be knowledge of the facts giving rise to a duty

 E.g., if I see a kid drowning, but do not know it is my kid, I

do not have a duty to act because I do not know it is my

kid.

 There must be an ability to help without endangering myself

 E.g., if I see a kid drowning but I myself do not know how

to swim, I do not have a duty to imperil myself by

attempting to save the kid



 Mental State

o Specific Intent – When the crime requires not just the desire to do the act

but also the desire to achieve a specific result.

 Assault

 First Degree Premeditated Murder

 Larceny

 Embezzlement

 False Pretenses

 Robbery

 Forgery

 Burglary

 Solicitation

 Conspiracy

 Attempt

o Malice – A crime committed intentionally or with reckless disregard of an

obvious or known risk

 Murder

 Arson

o General Intent –  need only be generally aware of the factors constituting

the crime, without intending a specific result (the Jury can typically infer

intent from the doing of the act itself)

 Battery

 Rape

 Kidnapping

 False Imprisonment

o Strict Liability – Absence of mental state (because it does not matter)

 Corrupting the morality of a minor

 Selling alcohol to a minor

 Statutory rape

 Mistake

o Mistake of Fact

 Reasonable Mistake – Defense to ANY crime except a Strict

Liability crime

 Unreasonable Mistake – Defense only to specific intent crimes

o Mistake of Law

 Never a defense!

 Exception: Can be a defense if the specific crime makes

knowledge of law an element of the crime

o i.e. selling gun to a known felon requires that you

know that the crime the buyer was convicted of was

a felony

o VERY RARE



 New York Mental States



 Intentionally

o Conscious object to accomplish a specific result

 Knowingly

o  is aware of what he is doing

 Recklessly

o  knows about a substantial and unjustifiable risk and consciously

disregards that risk

 Negligently

o  should have known about a substantial and unjustifiable risk

 Strict Liability

o Does not matter what the  knows or thinks

 i.e. Statutory Rape, and drug offenses



 Mistake

 Question: Does the mistake negate the required

mental state?

 Can negate an intentional, knowing or reckless

offense

 For negligent crimes, the mistake must be

reasonable



TIP:



If you see an unfamiliar crime:



Mental state is important! Assume it is an intentional or knowing crime unless the

question suggests otherwise!

 Causation

  is guilty if both elements are present



 Actual (a.k.a. “in fact”)

o But for the ’s conduct, would the result have happened?

o An accelerating cause is the same as the actual cause

 Proximate

o Is the result the natural and probable consequence of the ’s act?

Exceptions:

 1. Unforeseeable intervening event will break the chain of

causation (i.e. while  is robbing V at gunpoint, lightening

strikes V and kills him.  is not now guilty of murder, even

though  is guilty of attempted robbery)

 However, negligent medical care is considered

foreseeable (i.e.  shoots V in the leg and flees. V is

taken to the hospital, where due to medical negligence,

develops an infection and dies of the infection.  is now

guilty of murder, because but for the ’s act, V would

not have had to go to the hospital nor have been put at

risk of the deadly infection)

 2. “Eggshell Victim” – If V has an unusual condition making

injury more serious,  will still be held responsible for more

serious injury



 Concurrence

o (Must have the mental status at the time you engage in the act!)



o Usually found in questions regarding larceny and burglary!



SPECIFIC CRIMES

(New York Law highlighted in Yellow. All others Common Law).



Degrees –



Many New York crimes are categorized in different degrees. For simplification purposes,

the general rule is to memorize one degree (typically the 2nd Degree), then you can

extrapolate the other degrees from there.



General Rules:

1. Pay attention to weapons (guns or knives). Add a weapon, add a degree, and

vice-versa

2. Injuries – Add an injury, add a degree, and vice-versa

Physical – Something that hurts a lot.

Serious Physical – Something permanent or life threatening

3. Quantity (typically money or drugs)

 Crimes Against the Person

o Battery

 Unlawful application of force to another, resulting in either:

 Bodily Injury OR Offensive Touching

o Assault

 Attempt to commit a battery, OR

 Intentionally making Victim think you are about to commit a

battery

o Assault

 Intentionally injuring another person

 Assault/2nd – Intentionally causing serious physical injury

 Assault/1st – Assault/2nd plus a weapon

 Assault/3rd – Assault/2nd minus serious physical injury

 Distinctions from CL

o There must be an injury

o Attempted assault requires specific intent to assault

 A fake punch is not attempted assault, rather

menacing

o Homicide

(Year-Plus-A-Day Rule – Death must occur one year and one day after the

act for homicide to attach)

(New York does not recognize Year-Plus-A-Day Rule)

 Murder

 Causing the death of a person with malice aforethought

o Intent to kill

 Statutory crime of First Degree

Premeditated Murder

 Premeditated and deliberate killing

o Specific intent crime

 If you see a dangerous weapon, you can

infer an intent to kill

 Transferred Intent

  intends to kill one person, but

accidentally kills a different person

instead,  is considered to still have

intent towards that person.

o Intent to inflict great bodily injury

o Extreme Recklessness

o Felony Murder

 Any death caused during the commission of

or attempt to commit a felony

 Vicarious liability

o If two people are robbing a bank and one

accidentally kills someone, BOTH are guilty of

felony murder



Limitations

  must be guilty of the underlying

felony

 Felony must be inherently dangerous

 Felony must be separate from the

killing itself

o Aggravated batter cannot be

basis for felony murder

 Killing must be during felony or

immediate flight from the felony

 Death must be foreseeable

 Will NOT apply to the death of a co-

felon

 Death does not have to be at the

hands of one of the felons, it can also

be by a bystander (i.e. an off-duty

cop fires at the felons and hits

someone else)

 Voluntary Manslaughter

 Intentional killing committed after adequate provocation

o Provocation is a defense to murder (drops offense to

manslaughter

o Elements of provocation:

 1. Must be something that would arouse a

sudden and intense passion in a reasonable

person

 2.  must be actually provoked

 3.  did not have time to cool off

 4.  must not have actually cooled off

 Involuntary Manslaughter

 Killing committed with criminal negligence OR committed

during a crime that is NOT a felony

o Homicide

 Intentional killing

 Murder/2nd – Premeditation does not matter

 Murder/1st – Murder/2nd plus statutory aggravating factors

o Examples:

  intentionally killed a law enforcement

officer in the line of duty

  intentionally killed for witness

intimidation

 Murder-for-hire

  killed more than one person

  intentionally killed someone during a

serious felony

 Intent is important!!

 Manslaughter/1st – Intentional killing committed under the

influence of a reasonable emotional disturbance

o Extreme Emotional Disturbance = affirmative

defense

  must prove an affirmative defense by a

preponderance of the evidence

 Unintentional Killing

 Depraved Indifference = Murder/2nd

o Key language – “Utter disregard for human life”

o Typically:  must expose multiple parties to risk

 1-on-1 encounter is rarely extremely

reckless, unless the case involves torture or

abandonment to a certain death

 Intent to Cause Serious Physical Damage =

Manslaughter/1st

 Basic Reckless Killing = Manslaughter/2nd

 Criminally Negligent = Criminally Negligent Homicide

 Felony Murder = Murder/2nd

o Underlying offenses for Felony Murder:

 Burglary

 Robbery

 Arson

 Kidnapping

 Forcible Rape

 Escape (from custody)

o Non-Slayer Defense – Affirmative Defense if  can

prove:

  did not participate in the homicidal act

  did not have a deadly weapon

  had no reason to believe that his co-felons

had deadly weapons AND

  had no reason to belief co-felons would

cause deaths

 Aggravated Homicide

o For any offense involving the death of a law

enforcement officer

o False Imprisonment

 Unlawful confinement of a person without that person’s consent

o Kidnapping

 False imprisonment involving moving the victim or concealing the

victim in a secret place

o Kidnapping

 Kidnapping/2nd – Abducting someone

 Kidnapping/1st – Kidnapping/2nd plus a ransom demand OR if V is

restrained with intent to injure, or if V dies.

 If killed intentionally – Murder/1st

 If killed unintentionally – Murder/2nd (felony murder)

o Rape

 Sex without V’s consent by force, threat of force, or when V is

unconscious’

o Statutory Rape

 Sex with a person who is under the age of consent

 Strict Liability crime!

 Crimes Against Property

o Non-Violent

 Larceny

 Trespassory taking and carrying away the personal property

of another with intent to steal

o Trespassory = without permission

o Possession, not title!

o Specific Intent crime!

 If you steal it and give it back, or think it is

yours, it is not larceny

o Taking under a claim or right ≠ larceny

 Concurrence

o Must have the mental state a the time of the taking

o Continuing Trespass – Because I did not have

permission at the time, if I later develop the intent

to steal, it is still larceny!

 Embezzlement

 Conversion of personal property of another by a person

already in lawful possession of the property with intent to

defraud

o Key distinction: Embezzler already has lawful

possession!

 i.e. trustee or lessee

o Corporate distinction: High- vs. Low-level

employee

 Low-level employee is not generally thought

to have lawful possession (i.e. bank teller,

vs. president of the bank)

 False Pretenses

 Obtaining title to personal property of another by

intentional falso statement with intent to defraud

o False statement must be of a past or present event,

not a future event

o Title passing makes it false pretenses

 Larceny by Trick

 If  only gets possession by not title by a false statement

 Larceny

 Any conduct that is one of the common law larcenies

 Degrees

o $0 - $999 – Petite Larceny

o $1,000 – $2,999 – Larceny/4th

o $3,000 - $49,999 – Larceny/3rd

o $50,000 - $999,999 – Larceny/2nd

o $1,000,000 or more – Larceny/1st

o Violent

 Robbery

 Larceny from another’s person or presence by force or

threat of immediate injury

o Force – Not much needed, but some is

 i.e. pickpocketing is not robbery, while

pursesnatching is

o Immediate injury requirement

 Threat of future injury = extortion

 Threat of embarrassment = blackmail

 Robbery

 Forcibly stealing property

 Degrees

o Robbery/3rd – Basic robbery

o Robbery/2nd – Robbery/3rd plus:

  aided by another actually present

 V is injured OR

 A car is stolen

o Robbery/1st – Robbery/2nd plus:

 V is seriously injured OR

  uses or displays a firearm

 However: If firearm did not work or

was unloaded, it will be simply

robbery/2nd. This is an affirmative

defense.

o Miscellaneous

 Receipt or Possession of Stolen Property

 Crime of knowledge (must know the property is stolen)

 Forgery

 Making a false writing or altering existing writing with

intent to defraud

 Uttering

 Offering a genuine instrument that is false with intent to

defraud

 Crimes Against Habitation

o Burglary

 Breaking and Entering the dwelling of another at night with intent

to commit a felony inside at the time of the entry

 Breaking – Creating or enlarging an opening by at least

minimal force

 Dwelling – Place where another regularly sleeps

 Intent – Must intend to commit a felony

 Concurrence – Must have intent to commit a felony at the time of

the breaking and entering.

o Burglary

 Entering or remaining unlawfully in a building with intent to

commit a crime inside

 Distinctions: Any crime, not just a felony

 Concurrence gone, since “remaining” inside is included in

the definition

 Degrees

 Burglary/3rd – Basic

 Burglary/2nd – Burglary/3rd plus:

o Building is a dwelling

o Non-participant is injured OR

o  carries a weapon

 Burglary/1st – Burglary/2nd plus:

o  must know the building is a dwelling AND either:

 a non-participant is injured OR

  carries a weapon

o Arson

 Malicious burning of another’s building

 Malice crime!

 Burning – Material wasting of the structure

o Some part of the building must be destroyed by fire

o Arson

 Building does not have to be another’s building (can be your own)

 Degrees

 Arson/4th – Reckless burning

 Arson/3rd – Intentional Burning

 Arson/2nd – Intentional burning when  knew or should

have known that someone was inside

 Arson/1st – Arson/2nd plus the use of an explosive devise

(bomb or Molotov cocktail, e.g.)



ACCOMPLICE LIABILITY



 Person that does not actually commit the underlying offense can be liable for the

crime if he aides or encourages the crime with intent to encourage the crime

 Exceptions:

o Mere presence does not make on an accomplice

o Mere knowledge does not make one an accomplice

 Including selling ordinary goods at ordinary prices (i.e. selling

someone the gas he then uses to torch a house)

 Accomplice can be guilty of criminal facilitation if he knowingly

aids the commission of a crime, or know that it is probable that he

is aiding in the commission of a crime.

o Members of a protected class

 i.e. underaged person cannot be accomplice to statutory rape

 Accomplice is guilty of underlying crime. Liability does not depend on principal’s

liability

o Just because the principal is not caught, or not convicted does NOT

preclude an accomplice’s liability!

 Withdrawal

o Two ways to withdraw

 If only encouraged

 Must discourage

 If actually helped

 Must make substantial effort to prevent the crime from

happening

o Can be trying to stop the crime, or calling the police

o Only way to withdraw is to make substantial effort to prevent crime

o Accomplice-Witness Rule

  cannot be convicted solely on the uncorroborated testimony of

an accomplice.



INCHOATE OFFENSES

(Incomplete Offenses)



 Solicitation

o Asking someone to commit a crime with the intent that they actually do it

 The crime is the asking. It does not matter what happens next

 Conspiracy

o Agreement between two or more people to commit a crime plus an overt

act in preparation of the crime

 A formal agreement is rarely formal

 Overt act = minimal requirement

 Any overt act will do

o General rules

 If all other co-conspirators are acquitted, the last one cannot be

convicted

 All parties must be of guilty minds

 i.e. cannot conspire with an undercover cop (if that is the

only other party)

 New York does not subscribe to either of these general rules!

o Vicarious Liability

 Co-conspirators are guilty of conspiracy AND the other underlying

crimes committed in furtherance of the conspiracy

 New York does not recognize vicarious liability. Co-conspirators

are only guilty of the crimes in which they participate.

 Attempt

o Act – Conduct that gets dangerously close to the commission of the crime

o Mental state – Specific intent!

 Specific intent to commit the crime

o Model Penal Code requires a “Substantial Step”

 If you see this in the answer it is probably wrong!! MPC is not

tested!!

o General notes

 Cannot attempt a reckless or negligent crime

 Logically impossible

 If attempting malice, general intent or strict liability crime, you

must specifically intend to commit the crime

o Impossibility defense

 Factual Impossibility – NEVER A DEFENSE

 Could not commit the crime because of circumstances

beyond the ’s control

o (i.e. I could not have attempted to pick that person’s

pocket, because there was no wallet in that pocket,

and thus I never could have succeeded)

 Legal Impossibility – Sometimes a defense

 What  was trying to do is not illegal

 Withdrawal and Inchoate Offenses

o No withdrawal. Can’t back out of an inchoate crime.

 Vicarious liability

 If withdrawn, will be guilty of the underlying inchoate

offense, but not of any further crimes

o Renunciation

  can withdraw if he voluntarily and completely renounces the

crime AND prevents the crime from happening

 Must be motivated by a change of heart and NOT by fear of

being caught or failure

 Affirmative Defense.



MERGER



 Lesser included offenses

o If  is convicted of greater offense, cannot ALSO be convicted of

lesser included offense

 If every element of the lesser crime is also an element of the

greater crime

 Inchoate offenses

o Common Law

 Solicitation and attempt merge with completed crime and each

other.

 Conspiracy does not.

o New York

 Attempt merges

 Conspiracy and Solicitation do not.



DEFENSES



 Capacity Defenses

o Insanity

 Tests

 M’Naughtin test - , because of mental disease or defect,

either did not known his act was wrong or did not

understand the nature and quality of his act

 Irresistible Impulse test -  was unable to control his

actions

o Unable to conform his conduct to the requirements

of the law

 Durham test (a.k.a. product test) -  act was caused by his

mental illness

o Not used anywhere anymore

 MPC test – Combines M’Naughtin and Irresistible Impulse

test

o  lacked substantial capacity to either appreciate the

criminality of his conduct or conform his conduct to

the requirement of law

 New York:  lacked substantial capacity to appreciate

either the nature and consequence of his conduct or that his

conduct was wrong.

 Affirmative defense

 DO NOT CONFUSE WITH COMPETENCY (Criminal

Procedure)

o Intoxication

 Involuntary

 Defense to any crime, treated like insanity

 Someone forced you to be intoxicated

o i.e. someone slipped something into your drink

 Voluntary

 Defense to specific intent crimes if intoxication prevents 

from forming the requisite intent

 Cannot be a defense to malice, general intent or strict

liability crimes

 Can be a defense to intent or knowledge crimes if it

prevents the formation of intent, but NOT to other crimes

(reckless, negligent, or strict liability)

o Infancy

 Common Law

 Child under the age of 7 cannot be prosecuted

 Child between ages 7-14 has a rebuttable assumption

against prosecution

 Child age 14+ has no defense

 New York

 Child under 13 cannot be prosecuted as an adult

 Child at age 13 can be prosecuted as an adult, but only for

Murder/2nd

 Child from 14-15 can also be prosecuted for serious crimes

against property or persons

 Child from 16+ can be prosecuted as an adult for anything

 Self-Defense/Justification

o Deadly Force vs. Non-Deadly Force

 Non-Deadly Force

  may use in self-defense if it is reasonably necessary to

protect against immediate use of unlawful force against

himself

 Deadly Force:

 1. Threat must be of death or serious injury

 2.  must be without fault

o Unless  withdraws from the encounter AND

communicates such to other party

 3. Retreat (?)

o Common Law -  need not retreat

o New York -  must retreat BEFORE resorting to

deadly force unless:

 If  cannot retreat in complete safety OR

  is in his own dwelling and is not the initial

aggressor OR

  is defending against a rape, robbery,

burglary, kidnapping or arson

 Mistake

 If mistaken about the necessity to use force, the mistake

must be reasonable

 Minority Rule:

o Imperfect self-defense -  kills from unreasonably

mistaken belief, will be guilty of manslaughter, but

not murder

o Crime Prevention

 Non-Deadly force can be used to stop any crime. Deadly Force

may be used only to prevent crimes dangerous to human life.

 Deadly force can be used to prevent a rape, robbery,

kidnapping or burglary

o Miscellaneous

 Defense of others is treated the same as defense of self

 Defense of property

 Deadly force cannot be used to protect property!

 Burden of Proof

 Self-defense is a regular defense, NOT an affirmative

defense

o Burden is on the prosecution to disprove it beyond a

reasonable doubt

 Duress

o  was forced to commit a crime under threat of imminent death or serious

bodily injury

 New York: Affirmative Defense, and available defense for

homicide

 Entrapment

o Unfair temptation

 Criminal design originated with police

  was not predisposed to commit the crime

 Affirmative Defense



Tip:



Entrapment is usually wrong, or it usually indicates an evidence question!