CRIMINAL LAW OUTLINE1

DAN WILSON'S OUTLINES My outlines are not intended to be definitive, comprehensive treatments of the various subjects. They are offered to show the thought processes of a successful bar study process. I ignore large swaths of material that is rarely or never tested. I focus on core concepts that are consistently tested and areas years of experience have shown are particularly challenging to students. The outlines are not intended as a substitute for commercial outlines. For example, commercial Property outlines explain in mind-numbing detail The Rule in Shelly's Case, The Doctrine of Worthier Title, and The Destructibility of Contingent Reminders. These rules are impossible for the modern mind to understand without extensive study of the Common Law. AND THEY ARE NEVER TESTED. So my Property outline addresses material which is always tested, such as present possessory interests and future interests. My outlines are not pretty. They have grown incrementally over the years. But if you master the material you will be well on your way to passing the bar. The outlines are offered free of charge. May they aid you in your endeavor! CRIMINAL LAW OUTLINE1 1. CRIMES AGAINST THE PERSON a. HOMICIDE i. If you see dead bodies say WHOOPEE!! ii. Homicide is the killing of a human--not necessarily a crime. iii. iv. Murder is the killing of a human w/ malice aforethought. Malice is shown four ways (1) Intent to kill--but not a specific intent crime. (2) Intent to Seriously injure--but not specific intent crime. 1 Copyright 2007 by Daniel Wilson. Permission is freely given to use this outline to prepare for the Colorado bar exam. This material is drawn from released Colorado essays; released multi-state essays from the National Conference of Bar Examiners; released MBE questions from the National Conference of Bar Examiners; and various commercial outlines. Grateful thanks to Professor Jeff Hartje at the University of Denver College of Law for what little I know about Criminal law. Revised 2011. 1

(3) Depraved heart Indifference. Recklessness. (a) Recklessness is knowledge of a high degree of risk of serious bodily harm and death and proceeding nonetheless. (4) Felony Murder. (a) Two approaches (i) dangerous felonies (ii) enumerated felonies--rape, kidnapping, arson, burglary, robbery (iii) assault cannot be the underlying felony (iv) manslaughter and aggravated battery cannot be underlying felony. (v) Use second approach for the bar. (b) When the D accidentally kills another during the commission of a felony. (c) Most likely if robber kills victim of crime, or robber kills innocent bystander, or police kill innocent bystander or victim. Unlikely to be applied if one robber kills another or police kill one robber. (d) MPC abolishes felony murder rule and deals with it as depraved heart indifference murder. (e) If D commits arson and someone accidentally dies felony murder is applicable. v. Manslaughter (1) Voluntary (a) Intent to kill that is mitigated by sufficient provocation--the Texas rule. Texas rule only applies to spouse, not girlfriend. Must have an event that is such a provocation that the D cannot control himself, the D actually acts under that provocation, and he has not had sufficient time to cool off. The C/L standard is objective. MPC allows some subjectivity. (b) Imperfect self-defense. Self defense is a complete defense if the actor subjectively and reasonably believed he was being attacked with deadly force. Unreasonable belief equals imperfect self-defense and mitigates 2

intentional murder to voluntary manslaughter. (2) Involuntary. Negligent homicide. (3) You don't have to worry about degrees of murder unless the question defines the lesser degrees. b. COMMON LAW BATTERY, ASSAULT, MAYHEM i. Battery. Similar to tort battery. When the D causes bodily injury or offensive touching. Mens rea is probably intent. ii. MODEL PENAL CODE AGGREVATED BATTERY. Intent to cause serious bodily injury or battery with a deadly weapon. iii. NOTE: Criminal statutes often use Assault when they are talking about C/L battery. iv. Assault. Where one either attempts to commit a battery or intentionally places another in fear of imminent injury. v. Aggravated assault is assault with a deadly weapon or vi. with the intent to rape, maim or murder. Mayhem. When the D intentionally maims or permanently disables the victim. MPC does not recognize. b. Kidnapping. The unlawful confinement of another, and moving or secreting of victim. c. False imprisonment. Unlawful confinement of a person without consent. d. Rape. Sexual intercourse with a woman, without consent, which woman is not the D's wife. Unless the woman is underage or intoxicated, lack of consent must be shown. It will be found if a reasonable man in the man's position would realize the woman did not consent. Reasonable mistake as to consent is a defense. C/L also required that the rape be accomplished by force; i.e., the woman must resist. To the extent this requirement still exists, it is much weakened and can be satisfied by the act of penetration. i. MPC recognizes anal penetration as rape. ii. Statutory rape. Sexual intercourse with a girl below the age of consent. Reasonable mistake as to girl's age is not a defense. MPC recognizes reasonable mistake as to age as a defense. If girl is 10 or under mistake cannot be reasonable. e. Bigamy is marrying someone while having another living spouse. Strict liability. A reasonable mistaken belief that spouse is dead is 3

no defense. 2. CRIMES AGAINST PROPERTY a. Intro. Larceny was a judge made statute and required a trespassory taking from the person of another. For historical reasons that need not concern us here, the trespassory taking and the possession requirements caused some problems. Some theft crimes did not involve a trespassory taking, or from the possession of another. You do not need to worry about this requirement. What you need to do is memorize and recognize the elements of the following theft crimes. b. Larceny. Trespassory taking and asportation of the personal property of another with the specific intent to permanently deprive the owner. i. larceny only involves tangible property. Does not include realty, property attached to realty, services, intangibles or documents such as securities. ii. Relation back doctrine. If the suspect takes personal property but does not at the time intend to permanently deprive, under C/L not larceny. This doctrine says that if the suspect later decides to permanently deprive that intent relates back to the taking and asportation. iii. larceny can occur through an innocent third party. c. Larceny by trick. Obtaining possession; of the property of another; by an intentional false statement of past or existing material facts; with intent to defraud the other. d. False Pretenses. Obtaining title; to the property of another; by intentional false statement of past or existing material facts; with intend to defraud. e. Embezzlement. Fraudulent conversion of the property of another by one who is in lawful possession. f. Robbery. Taking and asportation of personal property of another from the person or presence of another by force or threat of force with intent to permanently deprive. i. Threat of force must be of immediate death or serious injury to victim, victim's family, relative, or person in victim's presence. Threat to property not sufficient except threat to destroy victim's dwelling. ii. Statutory aggravated robbery is robbery accomplished with use of deadly weapon. g. Extortion. Also called blackmail. Obtaining property by threat of a future harm. 4

h. Receiving stolen property. Receipt of stolen property with knowledge property has been stolen with the specific intent to deprive the owner. i. Property is not stolen if it has been recovered by police. i. Forgery. Creating a document with apparent legal effect with intent to defraud. i.e., a deed. i. Writings that are valuable because of their existence, painting or letter from a famous person, are not the subject of forgery. j. Larceny by delivery. D is guilty of theft if he fails to take reasonable measures to restore the property to its owner. k. Larceny by finding. D is guilty of theft if he fails to take reasonable measures to find the owner and return the lost property. 3. STRUCTURE CRIMES a. Burglary. Breaking and entering the dwelling of another at night with the specific intent to commit a felony. Opening of a closed but unlocked door is breaking. Modern rule substitutes "unlawful" for "breaking." Any entry, however slight, suffices. Modern rule does not require dwelling. Modern rule does not require night. Look for a statutory definition in the call of the question and use your sense. b. Arson. Malicious burning of the dwelling of another. Must be a fire; must be charring, which means damage to the fiber of the wood, not merely blackening by smoke. Majority rule probably includes structures other than dwellings. Malice is roughly equivalent to recklessness. 4. JUSTIFICATION, EXCUSE AND MITIGATION a. Self-defense. Privilege to respond with a proportionate amount of force. No duty to retreat. A person who initiated an assault may not use deadly force to defend himself from the victim unless he has withdrawn from the confrontation and the original victim becomes the aggressor, and attacks the original aggressor with deadly force. A person may use deadly force if he is without fault and is threatened with imminent death or serious injury. b. Defense of others. Privilege to use the amount of force the other person would be able to use. Reasonable mistake is a defense. Unreasonable mistake mitigates murder to voluntary 5

manslaughter. c. Defense of dwelling. Cannot use deadly force unless: entry was made in a tumultuous manner and actor reasonably believes use of force necessary to protect himself or some other person present in the house, or actor reasonably believes person intends to commit a felony. Thus a homeowner may use deadly force against a burglar but not a trespasser. Cannot use deadly force to protect other property. d. Mistake. Best analyzed as a mens rea issue. The D's mistake prevents him from forming the requisite mental state to commit the crime. Example: Rape requires that the victim did not consent. If the D mistakenly believes that the victim has consented he lacks the requisite mental state. Example: selfdefense or defense of others. Mistake must be reasonable. Mistake of law. Traditional rule is mistake or ignorance of the law is never a defense. MPC would allow as a defense if mistake negates the required mental state. Example: Bigamy. D believes he has a valid divorce and remarries. D's mistake would not be a defense under C/L but might be under MPC. Example: Statutory rape, a strict liability crime. But a reasonable mistake as to girl's age might be a defense. MPC allows defense if girl is over ten. Test is objective. Unreasonable mistake is a defense to specific intent crimes. e. Insanity. See discussion below. f. Infancy. C/L treated children over 14 as adults. Statutes generally allow children 16 and over to be treated as adults. g. Intoxication. Intoxication may negative the requisite mental state. More likely to be successful if involuntary. Traditionally voluntary intoxication is a defense only to specific intent crimes. Distinction between specific and general intent dissolving. MPC voluntary intoxication is a defense if it negatives an element of the offense. Intoxication is not a defense to reckless, negligent, or strict liability crimes crimes. h. Provocation. See heat of passion voluntary manslaughter. i. Duress. Requires a threat by a third person which produces a reasonable fear of imminent death or serious injury. C/L required that a greater harm is avoided. Not available for homicide. j. Necessity. Choice of lesser of two evils. Not available for 6

homicide. Necessity must be caused by natural or physical forces. 5. MENS REA a. General intent--d desired to commit the act b. Specific Intent i. Larceny and other theft crimes. Intent to permanently deprive. ii. Robbery. Intent to permanently deprive. iii. Burglary. Intent to commit a felony. iv. Assault. Intent to commit a battery. v. First degree premeditated murder. But note that lack of specific intent would only mitigate 1st degree murder to C/L murder. vi. Felony murder if underlying felony is SI crime vii. Conspiracy. Intent crime be committed. viii. Solicitation. Intent crime should be committed. ix. Attempt. Intent crime be completed. x. Forgery. Intent to defraud. xi. xii. Embezzlement. Intent to defraud. Significance (1) Intoxication or mistake, even unreasonable, may negate specific intent c. Malice Crimes. Malice means the defendant recklessly disregarded a high risk of danger. i. Arson ii. Intent to seriously injure murder iii. Intent to kill murder. iv. Depraved heart Indifference Murder d. Strict Liability i. Usually so-called regulatory offenses, that carry no risk of imprisonment and little social disfavor. e. Negligence. Greater negligence than the torts standard. D must take a very unreasonable risk considering utility of conduct, knowledge of facts and nature and extent of harm that may be caused. f. If statute is silent as to mens rea it is usually assumed to be intent, particularly if statute codifies a C/L crime or risks severe punishment. g. Recklessness is consciousness disregard of substantial or 7

unjustifiable risk. h. Vicarious liability. Similar to tort vicarious liability. Limited to regulatory crimes punished by fine. 6. INCHOATE CRIMES a. Attempt. Requires an overt act. MPC requires a substantial step towards completing the crime. Merges with completed crime. C/L abandonment is not a defense. MPC withdrawal is a defense if it is fully voluntary and is a complete abandonment, not a postponement. Impossibility is not a defense unless it is true legal impossibility. i. Cannot attempt to commit a negligence or recklessness crime. ii. Attempt to commit strict liability crime requires intent. b. Conspiracy. An agreement between or more people to commit a crime. Two intents. General intent to form an agreement, specific intent that crime be committed. Does not merge with completed crime. Majority rule requires an overt act. Preparation will suffice. Conspirators have accomplice liability for crimes committed by all other conspirators if in furtherance of the conspiracy and foreseeable. Withdrawal is not a defense in C/L because crime is complete. MPC would allow the defense if D thwarts the success of the conspiracy. Defense to subsequent crimes if D withdraws by notifying other conspirators. i. Plurality issues. Wharton rule. If crime necessarily requires two persons, cannot also be charged with conspiracy. Adultery, dueling. Agreement with person in protected class. Statutory rape. MPC allows unilateral conspiracy, which means conspiracy with a police officer. ii. Majority rule requires some overt act in furtherance of the conspiracy. iii. Conspiracy to commit strict liability crime requires intent. iv. Impossibility is not a defense. c. Solicitation. Urging etc. another to commit a felony with the specific intent the crime be committed. Withdrawal or renunciation not a defense. Merger. Outlines say solicitation "merges" with completed crime if person solicited commits the crime. This is not logical. I suspect it means defendant cannot be charged with solicitation and something like conspiracy or 8

accomplice liability. Impossibility is not a defense. 7. INSANITY a. M'Naughton. A disease of the mind caused a defect of reason such that the person did not know his actions were wrongful or understand the nature and quality of his acts. b. Irresistible Impulse. D is unable to conform his conduct to the law. c. MPC. Combines both tests. d. Burden. An affirmative defense so must be raised by defense. Then two approaches. 1) Once defense has put on evidence of insanity the prosecution must prove beyond a reasonable doubt that D is sane. 2) Once defense is raised defendant has burden of proving insanity by a preponderance of the evidence. 8. IMPOSSIBILITY a. Legal Impossibility. Even though the D thinks what he is doing is a crime, it is not. Complete defense. b. Factual. Crime is impossible because of facts. Examples: shooting a dead body with intent to murder; raping a dead woman; pickpocket puts hand in empty pocket; fence buys recovered stolen goods. Result is attempt. c. Inherent Impossibility. Voodoo. 9. ACCOMPLICE LIABILITY a. Accomplice. Aiding and abetting the commission of a crime. Accomplices guilty of crime. Mere presence at crime is not sufficient. Failure to intervene not sufficient. Accomplice liable for additional crimes by principal if they are natural and probable result. Principal must be guilty of the crime but not necessarily convicted. If principal and accomplice are tried together and principal acquitted accomplice must be acquitted. Withdrawal is a defense if aid is undone. Girl cannot be an accomplice to statutory rape. If crime requires two persons no accomplice liability. Abortion, prostitution, drugs. b. Accessory after the fact. One who receives, comforts, comforts, or assists another, knowing the other has committed a felony, in order to help the felon escape arrest, trial or conviction. 9

c. Mere knowledge that a crime will result from aid provided, particularly sale of ordinary goods at ordinary prices, will not result in accomplice liability. Charging a higher price for aid with knowledge of the illegal purpose incurs accomplice liability. 10. STRICT LIABILITY. Mostly regulatory crimes. 11. MISCELLANOUS a. A Bill of Attainder is a legislative act that inflicts punishment without a judicial act. That usually means an act that punishes a specific person. b. An ex post facto law is one that makes an act criminal retroactively, increases punishment retroactively, changes rules of evidence retroactively, or alters rules of criminal procedure to deprive defendants of a substantive right retroactively. c. A law is void for vagueness if it is not clear what act is prohibited. d. A legislature may delegate rule making authority to an administrative agency, but agency cannot decide which regulations carry criminal penalties, nor may an agency determine guilt or innocence. e. Elements of a crime i. actus reas ii. mens rea iii. concurrence iv. a harmful act actually and proximately caused by act 10