Law School Resources

CRIMINAL LAW

I. Jurisdiction

A. A state acquires jurisdiction to try a crime if that state is the situs of the crime.  The situs means

1. the conduct happened in the state

2. the result occurred in the state.

B. Crimes of omission: jurisdiction is where the act should have been performed.

II. Merger

A. Generally, there is no merger of law.

B. Exception: solicitation and attempt merge into the substantive offense.  The ironic but complete defense to attempting a crime is completing it.

C. Conspiracy does NOT mercy with the substantive offense.  You can be convicted of conspiring to do something and with doing it.

III. Elements of Crime

A. Requirements

1. Act or Omission

a) Act – any bodily movement.  Watch for those that do not qualify for criminal liability:

(1) Conduct that is not the product of your own volition.  Ex: someone pushes you.

(2) A reflexive or convulsive act. Ex: epileptic seizure. –OR-

(3) An act performed while you are unconscious or asleep.  Ex: sleep walking.  Falling asleep at the wheel does not fall under this exception.

b) Omission – There is no legal duty to rescue, but there is a legal duty to act in 5 situations:

(1) By statute, e.g., filing taxes

(2) By k, e.g., nurse or lifeguard

(3) B/c of the relationship b/w the parties, e.g., parent/child, spouses

(4) *B/c of your voluntarily assuming a duty of care toward someone else, then failing to perform it.  Ex: start saving someone who is drowning.  You have a duty to finish the attempt.

(5) Legal duty to act where your conduct created the peril, e.g., you push someone in a pool.

2. Mental State [usually 10 questions]

a) Common Law: 4 mental states

(1)   Specific intent – qualifies for additional defenses not available for other kinds of crime (memorize these, below)

(2) Malice - there are only two malice crimes:

(a) Murder

(b) Arson

(3) General intent – catch-all category.  Virtually every crime in the AL Code.  E.g., rape, battery.

(4) Strict liability – the “no intent” crimes.  Any defense that negates intention cannot be a defense to a no intent crime.

b) The Specific Intent Crimes (11)

(1) The 3 incohate crimes

(a) Solicitation

(b) Conspiracy

(c) Attempt

(2) 1^st degree murder

(a) If just “murder” on the exam, they are referring to CL murder, or murder in the 2d degree.  This is a malice crime, not a specific intent crime.

(b) If you see “1^st degree murder”, it is a specific intent crime and you should use the additional specific intent defenses to reduce this specific intent crime to a malice crime of murder.

(3) Assault (see more below)

(4) All CL felonies against property

(a) Larceny

(b) Embezzlement

(c) False pretenses

(d) Robbery

(e) Burglary

(f) Forgery

c) The Malice Crimes (2)

(1) Murder

(2) Arson

d) General Intent Crimes – all other crimes not so far mentioned are general intent crimes (unless they qualify for the strict liability formula, below).

(1) *Transferred intent – X intended to shoot A, but he missed and hit B.  The intent to kill A is transferred to govern the death of B.  Guilty of murdering B. 

(a) There are 2 crimes that fit here, attempted murder and murder.  Why don’t these merge?  Never merge crimes that have different victims.

e) Strict Liability – the no intent crimes.  Any defense that negates intention cannot be a defense to the no intent crimes of strict liability.

(1) How do you know it is strict liability?  Formula: if the crime is in the administrative, regulatory, or morality area, and there are no adverbs in the statute (knowingly, willingly, intentionally) the statute is meant to be strict liability.

(2) Q16 (D&R) – this is a statute in the morality area and there is no adverb à strict liability.  Not (d) b/c negates intention; not (c) b/c it describes a mistake of fact, which negates intention; not (b) b/c consent of the victim is almost never right; so it is (a) which is the only choice that is possible.

(3) Q17 (D&R) – (d) intoxication is a poor defense b/c state of mind is irrelevant; (a) no b/c no specific intent; (b) no, this is strict liability; (c) just wrong.  [???]

IV. Accomplice Liability

A. Accomplices are liable for the crime itself and all other foreseeable crimes.  Never give anyone accomplice liability unless they are actively involved in the crime.  There must be more than mere presence of apparent consent.

V. Incohate Offenses

A. Three kinds

1. Solicitation – asking someone to commit a crime.  The crime ends when you ask them.  What if the person agrees?  It becomes a conspiracy. This merges with solicitation and the only crime left is conspiracy.

2. *Conspiracy –

a) In any conspiracy question, the people must be pursuing an unlawful objective.  Ex: Slick and Joe sneak into Joe’s house and take silver.  It is not a crime for Joes to sneak into his own house, so no conspiracy.

b) Elements:

(1) An agreement

(2) An intent to agree

(3) An intent to pursue the unlawful objective.

c) Conspiracy does not merge with the substantive offense.  You can be convicted of conspiring to do something and of doing it.

d) Liability – each conspirator is liable for all the crimes of all the co-conspirators if

(1) The crimes were committed in furtherance of the conspiracy and

(2) Were foreseeable.

(a) Ex: Conspirators in Birmingham can be liable for crimes of co-conspirators in Mobile if these 2 elements are met.

e) The agreement – 2 things

(1) Does not have to be expressed.

(2) Various people can be in on a conspiracy even though they don’t know each other.

f) Overt act:

(1) Majority: in order to ground liability for conspiracy, there must be an agreement plus an overt act.

(2) Minority and Common Law: ground liability for conspiracy with the agreement itself.

(a) *If you are under the majority rule, any little act will do to be an overt act in furtherance of the conspiracy.  Ex: showing up at place you agreed to rob.

(b) If the examiners want the minority rule they will say the jurisdiction grounds liability in the conspiracy agreement itself.  If not, apply majority.

g) Impossibility is no defense to conspiracy.

h) Withdrawal, even if it is adequate, can never withdraw DF from liability for the conspiracy itself.  Can only withdraw the DF’s liability for the co-conspirator’s subsequent actions in furtherance of the conspiracy, i.e., their subsequent crimes.

3. Attempt –

a) Attempt = specific intent + a substantive step, beyond mere preparation, in the direction of the commission of the crime.

b) Mere preparation for a crime cannot ground liability for attempt.  We need a substantial step (cf. conspiracy where any little act will do).           

VI. Defenses

A. Insanity [pg.22]

1. M’ Naghten test: a the time of his conduct, DF lacked the ability to know the wrongfulness of this actions or to under stand the nature and quality of his actions.

2. Irresistible Impulse test: DF lacked the capacity for self-control and free choice.

3. Durham rule: DF’s conduct was a product of a mental illness.

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

B. Intoxication [pg.25]

1. Voluntary (self-induced, includes addicts) vs. Involuntary (something was slipped in your drink)

a) Involuntary intoxication is a form of insanity.  Insanity and involuntary intoxication are defenses to all crimes, even strict liability.

b) Voluntary intoxication is only a defense to a specific intent crime.  Ex: voluntary intoxication is a defense to specific intent crime, burglary, but not to general intent crim of battery or no intent crime of speeding.

C. Infancy

1. Under 7, no criminal liability.

2. Under 14, rebuttable presumption of no criminal liability.

3. Infancy defenses are usually wrong.  This is a fuller answer.

D. Self defense

1. Deadly force v. non-deadly force

a) Any victim may use non-deadly force in self-defense any time the victim reasonably believes force is about to be used on them. 

b) Deadly force

(1) Majority – victim may use deadly force anytime that victim reasonably believes deadly force is about to be used on them.

(2) Minority – retreat jurisdictions.  Requires that victim retreat to the wall before using deadly force if retreat can be made in complete safety. 

(a) 3 exceptions – no duty to retreat:

(i) Don’t have to retreat out of your home,

(ii) No duty to retreat if you are a victim of rape or robbery

(iii) No duty to retreat if you are a police officer.

(a) You will never have to guess majority or minority; they will tell you if it is a retreat jurisdiction.  If not, use majority. 

2. Do not give back to the original aggressor the defense of self-defense unless he

a) Withdraws and then

b) Communicates his withdrawal to the original victim.

3. Q26 (pg.480) – (a) does not matter who has the right to be in the house; (c) being in bedroom is no reason to mount homicidal attack; (d) you cannot kill trespassers; (b) true – not guilty b/c attacked with deadly weapon.  Can use deadly weapon in the face of threat with deadly force.  *Anytime someone uses force that results in death, it is deadly force.

E. Defense of a Dwelling

1. Deadly force may never be used solely to defend your property.

a) D rigs her house with spring guns while she is gone for the summer.  NO!  Cannot use a deadly force to defend your home.

b) Note: in this example, you are solely defending property.  Cf. burglary where you are defending yourself and your family as well.

F. Duress

1. Defined: someone holds a gun to your head and says rob the store or I will kill you.

2. This is a defense to all offenses on the bar except homicide.

G. Mistake of Fact

1. Defense varies depending on intent required by crime with which DF is charged.

2. Mistake of fact is a defense only when it negates intent.  If charged with malice or general intent, the mistake must be reasonable.  Any mistake is a defense to specific intent.  Mistake is never a defense to strict liability. 

3. Unreasonable mistake is only a defense for specific intent crime.  Must be reasonable if crime is malice or general intent, e.g., battery.  

H. Consent of the Victim – almost never a defense to a crime.  Do not indulge this answer. (Only a defense if it negates an element of the offense, such as rape or kidnapping.  Then it is a complete defense).

I. Entrapment – very narrow and rarely available.  Why?  Because predisposition on the part of the DF to commit crime negates entrapment.

VII. The Common Law Crimes

A. Battery – a completed assault.  Battery is a general intent crime, not strict liability.

B. Assault – 2 theories of assault at CL

1. Assault as an attempted battery. (I swing at you, you duck and I miss) Like all attempts, this is a specific intent crime.

2. Assault as a threat.  This is a general intent crime. (I’m going to hit you)

a) Q31 (D&R) – if he hit M, it would be a batter; cannot be an attempt.  (b) assault as attempted battery is not specific intent.  (c) YES – defense is that you did not intend to do it.

b) Q32 – this is a self defense question.  If she reasonably believed force would be used, not guilty.  Battery is a general intent crime; not strict liability.

C. Homicide

1. In any homicide question, the victim must be human (and dead).

2. “Murder” means CL murder, i.e., murder in 2d degree.  This is a malice crime, not specific intent crime so you cannot use the additional intent defenses.  The additional defenses available only for specific intent crimes are

a) voluntary intoxication, or

b) any mistake of fact (even if unreasonable).

(1) These will reduce 1^st degree murder back to the malice crime of CL or 2d degree murder. 

3. 4 kinds of intent that make homicide CL murder:

a) Intent to kill

b) Intent to do serious bodily harm

c) Highly reckless or depraved heart murder – an intentional act, the engagement of which causes a high likelihood of harm.

d) Felony murder – if you kill someone while committing a felony, that is enough for murder.

4. Manslaughter

a) Voluntary MS – never attach voluntary to MS unless there is some passion.  This is provoked killing.  There is usually a fight, there is no time to cool off, involves passion.

b) Involuntary MS –

(1) Killing form criminal negligence, e.g., falling asleep at wheel and killing someone.

(2) Misdemeanor MS – killing someone while committing a misdemeanor or an unenumerated felony.  What unenumerated felonies? All states have statutes that list felonies that lead to a felony murder charge.  Those that are not enumerated fall in here.

5. 1^st Degree Murder –

a) How is it dealt with on the exam?

(1) Examiners will label it “1^st degree murder.”

(2) Examiners will give you statute defining 1^st degree murder in your jurisdiction.  Read and apply.

b) Murder becomes 1^st degree murder if

(1) It involves deliberate and premeditated killing

(2) It is a felony murder

(3) It is otherwise provided by statute.

c) Felony murder

(1) If DF has defense to underlying felony, he has a defense to felony murder.  Ex: voluntary intoxication would be a defense to specific intent crime of robbery.

(2) Felony they are committing must be something other than the killing. 

(3) Killings must be foreseeable.

(4) Deaths caused by fleeing from the felony are felony murders.  Once a DF reaches a point of temporary safety (e.g., spending the night at his mother’s), the deaths caused thereafter are not felony murders.

(5) Redline view: DF is not liable for death of co-felon as a result of resistance by the victim or the police.  However, in many states, the DF can be liable for felony murder when resistance by the victim or police results in the death of a 3d party bystander who is not a co-felon.  Ex: S and J hold up store.  Owner misses J and hits a customer.  They are liable for that death.

d) Ex:

(1) Q10 (D&R) – gives 2 statutes and a vignette.  (a) consent is no defense; (b) negligence of father is no defense; (c) YES - this is a depraved heart murder

(2) Q11 – (a) cruel and unusual is always a wrong answer; (b) NO!; (c) No; (d) is the only remaining answer.

(3) Q12 – there is a trick; this is a jurisdiction without degrees of murder. No passion so not voluntary MS.  It must be (b) murder & involuntary MS. 

(4) Q13 – (a) this is a depraved heart murder.                

(5) Q14 – Another reading trick.  Take out the consent defense.  He is trying to negate felony murder in another choice. (?)  The responses in (a) and (_) are contained in 9d) which is the right answer.

(6) Q15 – Max the father can be charged with is contributing to the delinquency of a minor.

D. Rape

1. The slightest penetration completes the crime of rape.

2. Statutory rape: strict liability.  Neither consent nor mistake of fact is a defense.

E. Crimes Against Nature

F. **3 Common Law Property Crimes (must distinguish)

1. Larceny – requires

a) The wrongful taking, i.e., stealing, of property (by trespass or trick) and

b) Carrying away of property

c) Without consent (No consent if given b/c of fear or fraud)  

d) With the intent to deprive the owner permanently of his property at the time of the taking.

(1) Taking property in the belief that it is yours or that you have some right to it is not larceny.

(2) Q34: (d) larceny is specific intent, so any mistake is a defense; (a) must have intent to deprive permanently at the time of the taking; (_) “in the belief that” – if you think you have a right, it is not larceny.  The answer is (c).

2. Embezzlement

a) Embezzler always has lawful possession followed by the engagement in an illegal conversion.  E.g.: trustee of trust fund. 

b) Embezzler does not have to benefit herself. 

c) Embezzler also does not have to carry the property away. 

d) An embezzler, like a larcenist, gets possession only, not title.

3. False pretenses

a) Conveyance of title through fraudulent representation. 

b) Must be a present or past fact as the basis; a false promise to do something in the future cannot be the basis of false pretenses.

G. Robbery

1. Robbery = larceny + assault.  Need all the elements of larceny, then one of these assaultive elements:

a) Must take from a person or his presence.  Presence is very broad, e.g., includes tying up farmer and taking all his cattle in front of him.  The taking must be against the person’s will and involving some act of violence.  Picking a pocket is larceny; yanking a necklace is robbery.  Any act of violence is enough.

b) Must put victim in fear; must be threat of imminent harm and not future harm.  (“Your money or your life/her life.”) (“Your money or I will…” is extortion).

H. Extortion [pg. 50]

1. Blackmail (cf. robbery)

a) Do not have to take anything from person or presence

b) Threats are of future harm.

I. Offenses Against the Habitation [pg. 52]

1. Burglary – elements

a) CL burglary involves a breaking which may be

(1) Actual – not breaking if door or window is wide open.  If enter through open door or window and then push open an interior door, that is breaking.

(2) Constructive – a threat or unauthorized entry, e.g., by housekeeper when not at work.

b) And entering – when any body part enters the house

c) A dwelling of another

d) At night (at CL)

e) **With the intent to commit a felony inside (intent must exist at the time of the breaking and entering) Ex: burglar breaks in.  While inside he decides to rob victim.  This is not CL burglary b/c there is no intent at the time of the breaking and entering.

2. Arson – CL arson is the malicious burning of the dwelling house of another

a) Only applies to burnings, not explosions or smoke damage [pg. 55].  There must be  a material wasting of the fibre of the building (not just the carpet).

b) Must be a dwelling house – not a commercial building.

c) Of another – must belong to someone else (At CL, if it was yours, not arson)

Hot Topics in Criminal Law

1.        Mental states for crime in general and specific intent crimes with additional defenses (voluntary intoxication and any mistake of fact)

2.        Transfer of intent

3.        Accomplice liability – liable for crime itself and any other foreseeable crime.  Must be actively involved in the crime.

4.        Incohate offenses – solicitation, conspiracy, attempt.

5.        Hot defenses – intoxication, infancy, self defense, *mistake of fact.

6.        Law of crimes – homicide in general, 5 defenses to felony murder (pg 36-37 MS outline), distinguish 3 CL property crimes.

7.        Robbery, burglary, and arson.

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