CRIMINAL LAW

I. Introduction

A. Sources of Law for the MBE majority rule

i. Common Law ii. Majority Statutory Rules iii. Model Penal Code B. Sources of Law for NEW YORK Essays i. New York Penal Law C. Overview: Criminal Law Topics i. Essential Elements of Crimes a. Act requirement (Actus Reus) b. Mental State (Mens Rea) c. Causation d. Concurrence Principle ii. Specific Crimes a. Crimes against persons b. Crimes against property iii. Liability For The Conduct of Others a. Accomplice Liability iv. Inchoate (Incomplete) Offenses a. Solicitation b. Conspiracy c. Attempt v. Defenses a. Insanity b. Voluntary intoxication c. Infancy d. Mistake e. Self-defense f. Necessity g. Duress h. Entrapment D. Preliminary Matters

i. Jurisdiction A crime may be prosecuted in any state where: a. An act that was part of the crime took place; OR b. The result took place. 1

ii. Burden of Proof

a. Elements of the crime: In a criminal case, the prosecution must

prove each element of the crime beyond a reasonable doubt.

b. Defenses in NEW YORK:

1. New York divides its defenses into two types:

a) Defenses: Prosecution must disprove beyond a

reasonable doubt.

b) Affirmative Defenses: The defendant must prove by

a preponderance of the evidence. iii. Classification Of Crimes

a. Felony: A crime that may be punished by more than 1 year in prison. b. Misdemeanor: A crime for which the maximum punishment may not
exceed one year in prison. II. The Essential Elements Of Crime

A. The Act Requirement Culpable acts can be either commission (physical

acts) or omissions (the failure to act). You need culpability with the necessary state of mind. i. Physical Acts (Commissions)

a. All bodily movements are physical acts that can be the basis for
criminal liability, provided they are voluntary.

b. Involuntary movements that are not considered criminal acts: 1. One that is not the product of the actors volition (e.g., being
pushed)

2. Sleep Walking or otherwise unconscious conduct. 3. A reflex or convulsion. ii. Omissions: A failure to act can also be the basis for criminal liability,
provided three requirements are satisfied. (Remember: You need all three)

a. *First and Foremost, you need a legal duty, which can be created in
five different ways:

1. By statute (ex: filing tax returns, professional reporting child

abuse)

2. By contract (ex: babysitter, doctor, lifeguard) 3. By a status relationship Most Important for Bar:
a) Parent to child b) Spouse to spouse

4. By the voluntary assumption of care stop others from

rescuing or helping (ex: If D starts rescuing V, D has a duty to

continue helping, especially where his conduct prevented others from rendering aid.)

5. By creation of the peril (ex: If D caused the problem initially, D

has a duty to help)

b. Second, you need knowledge of the facts giving rise to the duty, and c. Third, you need the ability to help.
B. Mental States

i. Common Law Mental States: There are four common law mental states. a. Mental State #1: Specific Intent 1. Definition: When the crime requires not just the desire to do
the act, but also the desire to achieve a specific result 2. The 11 Specific Intent Crimes:

a) Assault b) First Degree Premeditated Murder (statutory crime)

1. Both of these are crimes against the person

c) Larceny d) Embezzlement e) False Pretenses

f) Robbery

g) Forgery h) Burglary
1. These are all crimes against property i) j) Solicitation Conspiracy 1. These are all inchoate crimes

k) Attempt 3. *Defenses*: There are two defenses that are available only
for specific intent crimes. They are:

a) Voluntary Intoxication; AND b) Unreasonable Mistake of Fact. b. Mental State #2: Malice 1. Definition: When a defendant acts intentionally or with
reckless disregard of an obvious or known risk. 2. Common Law Malice Crimes

a) Murder b) Arson c. Mental State #3: General Intent 3

1. Definition: The defendant need only be generally aware of

the factors constituting the crime; he need not intend a specific result.

a) Note: The jury can usually infer the general intent

simply from the doing of the act.

b) Transferred Intent The defendant can be liable

under the doctrine of transferred intent where she intends the harm that is caused, but to a different victim or object. Defenses and mitigating circumstances may also usually be transferred. It applies to homicide, battery, and arson, not to attempt.

c) Bar Exam Tip: A person found guilty of a crime on

the basis of transferred intent is usually guilty of two crimes: the completed crime against the actual victim and attempt against the intended victim. 2. Examples of General Intent Crimes:

a) b) c) d)

Battery Forcible Rape False Imprisonment Kidnapping 1. All are crimes against the person

d. Mental State #4: Strict Liability 1. Definition: When the crime requires simply doing the act; no
mental state is needed. 2. Two Types of Strict Liability Crimes

a) Public Welfare Offenses: Regulatory or morality

offense that typically carry small penalties Examples: 1. Selling alcohol to a minor 2. Selling contaminated food 3. Corrupting the morals of a minor

b) Statutory Rape: Having sex with someone who is

under the age of consent.

ii. NEW YORK MENTAL STATES: New York no longer uses the common law
mental states; instead, New York uses the five mental states defined by the Model Penal Code (MPC):

a. Intent (MPC: Purpose): When it is the defendants conscious 4

desire to accomplish a particular result. (In other words, that is what the defendant wants to do.)

b. Knowledge: 1. When the defendant is aware of what he is doing. 2. With respect to a result, when the defendant is aware or
practically certain that his conduct will cause the result.

c. Recklessness: When the defendant is aware of a substantial and

unjustifiable risk, and consciously disregards that risk.

d. Negligence: When the defendant should have been aware of a

substantial and unjustifiable risk.

e. Strict Liability: No mental state required (similar to the common

law). Knowledge of weight of a controlled substance is not an element of the offense (e.g., defendant is strictly liable for the weight); only knowledge of the nature of the substance is required.

C. Causation (Two types You need both.)

i. Actual (or BUT FOR) Causation

a. The Rule: A defendant is an actual cause (the cause-in-fact) if the

bad result would not have happened but for the defendants conduct.

b. Exception: An accelerating cause is an actual cause

Hypo: Alex stabs Victor in the abdomen, causing a fatal wound that will kill Victor within five minutes. One minute later, Dudley walks by and shoots Victor in the head, killing him instantly. Is Dudley an actual cause of Victors death? Yes. Dudleys actions are an accelerating cause of Victors death. ii. Proximate (or Legal) Causation

a. The Rule: A defendant is a proximate cause if the bad result is a

natural and probable consequence of the defendants conduct.

b. Applications: 1. Intervening Causes: D will not be considered a proximate

cause if an unforeseeable intervening event causes the bad result.

2. Eggshell Victims: D will be considered a proximate cause

even if the victims preexisting weakness contributed to the bad result. D. Concurrence

i. The Rule: The defendant must have the required mental state at the same
time as he engages in the culpable act.

ii. Application: Concurrence issues arise most frequently with two crimes: a. Larceny; and b. Burglary.
III. Crimes Against The Person: Assault and Battery A. Common Law i. Battery

a. The unlawful application of force to another, resulting in either bodily

injury or offensive touching.

b. Mental State: General Intent

ii. Assault

a. Version #1: Assault as an attempted battery (a swing and a miss) b. Version #2: (Five Elements) 1. The intentional creation, other than by mere words, of a
reasonable fear in the mind of the victim, of imminent bodily harm (a fake punch).

c. Mental State: Specific Intent B. Assault in NEW YORK:

i. Assault Definition:

a. Intentionally (mental state), causing physical injury, to another person.

ii. Degrees Of Crimes In NEW YORK In General

a. The Simple Truth: NEW YORK has created multiple degrees for
many crimes. Attempting to memorize the definition of every degree of every crime covered will drive you crazy, and the instructor does not recommend it.

b. A Better Strategy: For each crime, memorize one degree (pick one
in the middle) and make an educated guess as to the others.

c. How To Make An Educated Guess: Know the three typical factors

that make a crime more or less serious:

1. Weapons add a gun, add a degree 2. Injury, which come in two levels of seriousness: a) Physical Injury: Substantial Pain b) Serious Physical Injury: Usually requires permanent or
life threatening injury.

3. Quantity (money, drugs).

iii. Degrees Of Assault In NEW YORK

a. First Degree Assault Do This Analysis Second 1. Second degree assault plus, a weapon. 6

b. Second Degree Assault Definitely MEMORIZE START YOUR

ANALYSIS HERE

1. Intentionally causing serious physical injury.

c. Third Degree Assault

1. Intentionally causing non-serious physical injury less harm =

lower degree

d. Note: Battery is not a separate crime in NEW YORK 1. All versions of assault in NEW YORK require injury (i.e.,
theres no offensive touching version of assault in NEW YORK, as there is with common law battery).

2. Attempted Assault in NEW YORK requires the intent to

assault. Merely creating a reasonable apprehension (without an intent to actually injure) is a different crime called Menacing in NY.

IV. **Crimes Against The Person: HOMICIDE**

A. The Year-and-a-Day Rule

i. The NEW YORK/Majority Rule: Death may occur at any time. ii. The Common Law Rule: Death must occur within a year-and-a-day of the
homicidal act. B. Common Law Homicide Crimes i. Murder (also called common law murder) a. Definition

1. Causing the death, of another person, with malice of

aforethought.

b. Mental State: The requirement of malice aforethought is satisfied

if the defendant has any of the following four mental states:

1. Intent to kills (ex: Dudley points a gun at Victor, and says, in an

icy tone, Get ready to die. Dudley then shoots and kills Victor)

2. An intent to inflict serious bodily injury (ex: Dudley shoots

Victor in the leg, intending only to maim him. Unfortunately, Victor dies from injuries related to the gunshot wound)

3. Extreme Recklessness, meaning reckless indifference to human

life of having an abandoned or malignant heart (ex: Dudley aims his pistol over Victors head and fires, intending to scare Victor. Unfortunately, the bullet hits Victors head, killing him)

4. Intentional commission of a dangerous felony (ex: Dudley robs 7

a bank. He points a gun at the teller. The gun accidentally goes off, killing the teller)

c. Intent to Kill Murder: Special Rules 1. Deadly Weapon Rule: The intentional use of a deadly
weapon creates an inference of an intent to kill.

2. **Transferred Intent** (A Bar Exam Favorite): If a defendant

intends to harm one victim, but accidentally harms a different victim instead, the defendants intent will transfer from the intended victim to the actual victim. (This rule applies most frequently to murder but can also apply to other crimes, such as battery and arson MBE)

a) The Exception: Transferred intent does not apply to

attempts, only to crimes with completed harms.

d. Statutory Variations: Most states have modified their homicide

statutes to create two degrees of murder.

1. First Degree Murder is defined, in most states, as:

a) Any killing committed with:

1. Premeditated (D thought about it ahead of time),

and

2. Deliberation (D was cool, calm, and collected);

OR

b) Felony murder if the qualifying felonies are

enumerated.

2. FIRST DEGREE MURDER IN NEW YORK: a) An intent to kill; and b) The defendant is more than 18 years old; and
c) At least one aggravating factor:

1. The victim is a law enforcement, engaged in his

official duties at the time of the killing;

2. The defendant committed a murder for hire; 3. Felony murder, where the victim was
intentionally killed;

4. Killing for the purpose of witness intimidation; 5. There was more than one victim intentionally
killed in the same criminal transaction.

3. SECOND DEGREE MURDER IN NEW YORK: a) Intentionally killing that does not qualify for first 8

degree (Premeditation and deliberation is irrelevant in NY)

b) Highly reckless killing demonstrating a depraved

indifference to human life by engaging in conduct that creates a grave risk of death, generally involving more than one victim. Torture

c) Felony Murder, where the victim is not a co-felon and

is killed unintentionally.

e. Felony Murder: Common Law 1. Definition: Any killing caused during the commission of or
attempt to commit a felony.

2. Limitations on Felony Murder No two jurisdictions are

alike

a) D must be guilty of the underlying felony 1. NEW YORK: D need not be convicted of the
felony, as long as there is sufficient evidence that he committed it.

b) The felony must be inherently dangerous. 1. NEW YORK limits felony murder to certain
felonies, which you can remember by the words BRAKES. a. Burglary b. Robbery c. Arson d. Kidnapping e. Escape f. Sexual assault

c) The felony must be separate from the killing itself

(Therefore, for example, aggravated assault or battery cannot be the underlying crime).

d) The killing must take place during the felony or during

immediate flight from the felony. Once the felon(s) reach a place of temporary safety, the felony ends.

e) The death must be foreseeable. The victim must not be a co-felon. f) 3. Vicarious Liability: If one of the co-felons causes the death,
all of the other co-felons will be guilty of felony murder. This

applies even if the actual killing was committed by a thirdperson (e.g., a bystander, a police officer), so long as one of the felons is a proximate cause of the death.

4. The Non-Slayer Defense: NEW YORK provides a limited

affirmative defense to felony murder if the defendant can prove each of the following four things:

a) The defendant did not kill the victim. b) The defendant did not have a deadly weapon. c) The defendant had no reason to believe that his cofelons had deadly weapons, AND

d) The defendant had no reason to believe that his cofelons intended to do anything that was likely to result in death. ii. Voluntary Manslaughter

a. Common Law Definition: 1. An intentional killing, committed in the heat of passion, after
adequate provocation. To be adequate, a provocation must satisfy four requirements:

a) The provocation must be objectively adequate, which

means it would arouse a sudden intense passion in the mind of a reasonable person Common examples of objectively adequate provocation at common law: 1. Serious assault or battery 2. Presently witnesses adultery 3. Unlawful restraint

a. At common law, provocation in the form

of words alone was considered objectively inadequate provocation as a matter of law. Many states no longer follow this.

b) The defendant was actually provoked. c) The defendant did not have time to cool off. d) The defendant did not actually cool off between the
provocation and the killing. b. The NEW YORK APPROACH: EXTREME EMOTIONAL DISTURBANCE (EED)

1. Definition: An intentional killing committed under the

influence of a reasonable and extreme emotional disturbance.

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2. Affirmative Defense: EED acts as an affirmative defense to

second-degree murder, which means the defendant must prove EED by a preponderance of the evidence. iii. Common Law Involuntary Manslaughter

a. A killing committed with criminal negligence (A gross deviation form a

reasonable standard of care - A Higher Bar); OR

b. A killing that was committed during a crime that does not qualify for
felony murder (This is sometimes called misdemeanor manslaughter). iv. MANSLAUGHTER IN NEW YORK

a. First Degree Manslaughter: 1. EED manslaughter; OR 2. An intent to cause serious physical injury. b. Second Degree Manslaughter: 1. Mental State: Recklessness 2. Definition: The defendant is aware of and consciously
disregards a substantial and unjustifiable risk of death. v. CRIMINALLY NEGLIGENT HOMICIDE IN NEW YORK

a. Mental State: Criminal Negligence b. Definition: The defendant should have been aware of a substantial
and unjustifiable risk of death. vi. AGGRAVATED HOMICIDE IN NEW YORK

a. Aggravated Homicide: When the victim of the homicide is a police

officer, killed in the line of duty (e.g., Aggravated Murder, Aggravated Man-1, Aggravated Man-2, Aggravated Criminally Negligence Homicide).

b. Aggravated Murder - New Provision: When the defendant, over

the age of 18, causes the death of a child under 14 in an especially cruel and wanton manner. V. Crimes Against The Person: Confinement Offenses and Sex Offenses A. Confinement Offenses i. Common Law False Imprisonment a. Elements

1. The unlawful, confinement of a person, without his consent. b. Mental State: General Intent Crime
ii. UNLAWFUL IMPRISONMENT IN NEW YORK

a. Second Degree: 11

1. Unlawfully, restraining someone, without his or her consent,

and with knowledge that the restriction is unlawful.

b. First Degree: Second degree, plus a risk of serious physical injury.

iii. Common Law Kidnapping

a. Elements: 1. False imprisonment, that involves either moving the victim or

concealing the victim in a secret place.

b. Mental State: General Intent Crime

iv. KIDNAPPING IN NEW YORK

a. Second Degree: Abducting someone. b. First Degree: Second degree kidnapping, plus one of the following: 1. Abduct someone for ransom, or 2. Restraint of the victim for more than 12 hours with intent to
rape, injure, or rob the victim, or

3. The death of the victim. c. REMINDER: KIDNAPPING AND HOMICIDE IN NEW YORK makes
it felony murder

1. If the victim is killed accidentally: Second degree murder

(felony murder)

2. If the victim is killed intentionally during a kidnapping of the

first degree: First degree murder B. Sex Offenses i. Forcible Rape a. Elements

1. Sexual intercourse, without the victims consent, accomplished

by force, or by threat of force, or when the victim is unconscious.

b. Mental State: General Intent ii. Statutory Rape Most Commonly Tested
a. Elements

1. Sexual intercourse, with someone under the age of consent. b. Mental State: 1. Majority Rule: Strict Liability 2. MPC/Minority Rule: A reasonable mistake of age is a
defense.

c. NEW YORK: Age of consent is 17. 1. Defendant needs to be at least 21 usually tend to see it 12

when there is a large age difference between the parties and the defendant is in a position of responsibility over the victim. VI. Crimes Against Property: Theft-Related Offenses A. Common Law Theft Crimes i. Larceny

a. Definition: 1. Mnemonic: Thieves Picked Charlies Pocket Inside The Airport

Terminal. a) TRESPASSORY b) TAKING and

c) CARRYING AWAY the

d) TANGIBLE e) PERSONAL PROPERTY f) Of ANOTHER, with the g) INTENT to h) PERMANENTLY retain the property

2. Trespassory: Wrongful or unlawful 3. Taking and Carrying Away: The property must be moved. 4. The Tangible Personal Property of Another: Key
Question: Did someone else have lawful custody at the time of the taking?

a) If D has lawful custody of the property, he cannot be

guilty of larceny for taking it (even if D doesnt own it).

b) Conversely, D can be guilty of larceny for taking his

own property, if someone else had lawful custody of the property when D took it.

5. With the Intent to Permanently Retain the Property: If

D intends to give the property back, the taking is not larceny.

b. The Erroneous Takings Rule: A taking under a claim of right is

never larceny, even if the defendant erroneously believes the property is his.

1. You need to have intent to steal at the time of the trespassory

taking.

c. Continuing Trespass: If a defendant wrongfully takes property, but

without the intent to steal, he will not be guilty of larceny. But, if the defendant later forms the intent to steal, the initial trespassory taking is considered to have continued and he will be guilty of larceny.

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ii. Embezzlement

a. Definition: Conversion of the personal property of another by a

person already in lawful possession of their property, with the intent to defraud.

b. Mental State: Specific Intent To Defraud (Note: If the defendant

intends to give the exact property back in the exact form, he will not have the intent to defraud)

c. Key Difference From Larceny: D must already have lawful

possession of the property before a taking can be considered embezzlement.

d. Possession vs. Custody: Possession involves more than mere

custody. It requires the authority to exercise some discretion over the property. iii. False Pretenses

a. Definition: Obtaining title to the personal property of another by an

intentional false statement, with the intent to defraud.

b. Key Difference From Larceny: In larceny, the defendant gets only

custody of the property; in false pretenses, the defendant gets title meaning ownership.

c. False Statement: Must be a past or present event (not a future

promise).

iv. Larceny by Trick distinguished: If the defendant obtains only custody (not
title) as a result of the intentional false statement, the crime is larceny by trick, not false pretenses. v. Robbery a. Elements

1. A larceny, from anothers person or presence, by force or threat

of immediate injury.

b. Mental State: Specific Intent to Steal c. Presence: Some location reasonably close to the victim, e.g.,
rooms in a house other than the room in which the victim is located

d. Force: Any amount of force sufficient to overcome resistance is

sufficient.

1. Snatching a chain off the victims neck? Yes, enough force 2. Snatching a handbag off a womans extended arm? Yes,
enough force

3. Picking a mans pocket? No, thats where the line is drawn 14

Larceny Picking a pocket is stealthy

e. Threats: Need immediate injury (Your money or your life) f. Under modern statutory law, an individual who obtains the property of
another through oral or written threats of future harm does not commit robbery; he commits the crime of extortion, which is also called blackmail. 1. Ex: Give me your money, or Ill break your legs tomorrow! Give me your money, or Ill post those pictures of you on the web! vi. Forgery

a. Making or altering a writing, so that it is false, with the intent to

defraud (Mental State) B. NEW YORK THEFT CRIMES i. Larceny

a. Definition: Any crime that would be larceny, embezzlement, false

pretenses, or larceny by trick at common law is considered larceny in NY.

b. Degrees of Larceny: determined by the value of the property

taken

1. First Degree: More than $1,000,000 2. Second Degree: More than $50,000 3. Third Degree: More than $3,000 (MEMORIZE THIS AND START
HERE)

4. Fourth Degree: More than $1,000 5. Petit Larceny: Lesser amounts.

ii. Robbery

a. Third Degree: Forcible Stealing b. Second Degree: Forcible stealing, plus one of the following: 1. The defendant is aided by someone actually present 2. The victim is injured, or 3. A car is stolen (carjacking). c. First Degree: Forcible stealing, plus one of the following: 1. The victim is seriously injured, or 2. The defendant uses or displays a firearm (Affirmative
Defense: If the defendant can prove that the gun was unloaded or inoperable, the crime is reduced to second degree robbery.)

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d. ROBBERY AND HOMICIDE IN NEW YORK

1. If the victim is killed accidentally: 2nd Degree Murder 2. If the victim is killed intentionally: 1st Degree Murder
C. Possession Offenses i. The Act

a. Requirements: When a statute criminalizes the possession of

contraband (e.g., drugs, stolen property, child pornography), possession means

1. Control for a period of time long enough to have an,

opportunity to terminate possession.

b. Constructive Possession: The contraband need not be in the

defendants actual possession, so long as it is close enough for him to exercise, dominion and control over it (D doesnt need to touch the item).

ii. Mental State: Knowledge (of the possession and of the character the item
possessed). iii. EXAMPLES OF NEW YORK POSSESSION OFFENSES

a. Drugs: Criminal Possession of a controlled substance b. Firearms: Criminal Possession of a weapon 1. Note: The gun must be loaded and operable 2. Statutory Presumption: The presence of a gun in a vehicle
creates a presumption that all occupants of the vehicle possessed the gun.

c. Stolen Property: Criminal Possession of stolen property 1. Note: The property must really be stolen. Property that is
abandoned or that is used with permission (e.g., by the police in an undercover sting) is not considered stolen. VII. Crimes Against Property: Habitation Offenses A. Burglary

i. COMMON LAW BURGLARY: Breaking and entering the dwelling of another

at night with the intent to commit a felony inside.

a. Breaking: Creating or enlarging an opening by at least minimal

force.

1. Includes: breaking a window, opening a window, or opening a

door.

2. Does Not Include: climbing through an already open window,

entering with permission.

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3. Constructive Breaking: Breaking can be constructive,

meaning entry is gained through by fraud, threats, or intimidation.

a) Ex: Woman obtains a key to an apartment by telling

the owner she will clean it for him while he is on vacation. She actually intends to steal his computer, which she does. Because she gained entry to the apartment by fraud, this is a constructive breaking.

b. Entry: Some part of the defendants body must enter the building.
Not the entire corpus.

c. d. e. f.

Dwelling: A structure where someone regularly sleeps Of Another: You cant burglarize your own house. At Night: Self-explanatory. Intent To Commit A Felony Inside: Specific Intent Crime (intent to steal, rob, rape, assault, kill, etc.)

ii. Modern Statutory Changes: Many states have eliminated the technical
requirements of common law burglary (especially the breaking, at night, and dwelling elements).

iii. BURGLARY IN NEW YORK: a. Third Degree: 1. Entering or remaining, unlawfully, in a building, with the intent
to commit a crime inside.

b. Second Degree: Third degree burglary, plus one of the following: 1. The building is a dwelling, or 2. A non-participant is injured, or 3. The defendant carries a weapon. c. First Degree: The defendant knows that he is burglarizing a dwelling,
plus one of the following:

1. A non-participant is injured, or 2. The defendant carries a weapon.

a) This crime adds a knowledge requirement B. Arson i. Common Law Arson

a. Definition: The malicious burning of a building. b. State of Mind: Malice c. Burning: 1. Requires material wasting; and it must be the building itself 17

that burns (not the carpet for example) ii. ARSON IN NEW YORK a. Degrees of Arson

1. Fourth Degree: Reckless burning of a building 2. Third Degree: Intentional burning of a building 3. Second Degree: Third degree arson, when the defendant
knows or should have known that someone was inside the building.

4. First Degree: Second degree arson, plus an explosive or an

incendiary device. iii. Statutory Developments:

a. Dwelling: Traditionally, arson was limited to dwellings, but most

states now extend arson to all buildings.

b. Of Another: Traditionally, a defendant could not commit arson on

his own property; most states have eliminated that restriction. VIII. Liability For The Conduct Of Others: Accomplice Liability A. Definition

i. THE PERSON WHO COMMITS THE CRIME is called the principal. ii. THE PERSON WHO HELPS is called the accomplice who a. Act: Aides or encourages the principal, b. Mental State: With the intent that the crime be committed. 1. NEW YORK WRINKLE: In New York, the accomplice need not
specifically intend that the crime be committed. It is enough if the accomplice specifically intends to aid the principals conduct, and otherwise has the mental state required for the principals crime. This means it is possible is New York to be an accomplice to a negligence or recklessness crime. B. Scope Of Accomplice Liability

i. The Rule: The accomplice is guilty of: a. All crimes that he aided or encouraged (just as if he did it), and all
other foreseeable crimes committed along with the aided crime.

ii. When a Person is Not an Accomplice Three Important Principles: a. Mere presence at the scene of the crime does not make someone an
accomplice; he or she must actively aid or encourage the principal.

b. Mere knowledge of the crime does not make someone an accomplice;

he must intend to aid or encourage the principal.

1. NEW YORK DISTINCTION: Like the common law, New York 18

also requires intent for accomplice liability. However, mere knowledge can make someone guilty of the (lesser) crime of criminal facilitation.

c. Victims of crime cannot be accomplices, since they are considered

members of a protected class. Example: Minors cannot be convicted of selling alcohol to a minor

iii. Withdrawal: What happens when an accomplice changes his mind? It

depends upon what the accomplice did

a. Encourager: An accomplice who only encouraged the principal

may withdraw simply by discouraging the crime (before it is committed).

b. Aider: An accomplice who actually helped the principal must either

neutralize the assistance or prevent the crime from happening (including notifying the authorities).

c. WITHDRAWAL IN NEW YORK: Renunciation 1. The accomplice must make a substantial effort to prevent the
commission of the crime.

2. Renunciation is an affirmative defense (burden on D). C. Accessory After The Fact a third party i. The Common Law Approach: To commit the separate common law offense
of being an accessory after the fact, a defendant must:

a. Help a principal who has committed a felony, with knowledge that the
crime has been committed, and with the intent to help the principal avoid arrest or conviction.

1. The person comes in after the fact. This person is generally not
involved in the crime, but they usually help hide criminals, or hide the goods of the crime.

ii. Modern Statutory Approaches: Typically called obstruction of justice,

harboring a fugitive, or (as in NEW YORK hindering prosecution). IX. Inchoate Offenses A. The Three Inchoate Offenses i. Solicitation

a. The Definition: Asking someone to commit a crime, with the intent

that the crime be committed.

b. Mental State: Specific Intent c. Completion Unnecessary: The crime is in the asking. (Note: It
doesnt matter whether the other person agrees or whether the crime

19

is actually committed.) ii. **Conspiracy** (MBE)

a. Definition: An agreement between two or more people to commit a

crime, plus an overt act in furtherance of the crime.

b. Overt Act: Any act, even if merely preparatory. (Traditionally, the

common law did not require an overt act, but the majority of states now do.)

c. Mental State: Specific Intent to accomplish the conspiracys

objective.

d. Completion Unnecessary: The essence of the crime of conspiracy

is the agreement; completion of the conspiratorial objective is unnecessary for conviction.

e. Can You Have a One-Person Conspiracy? 1. Common Law: NO. There must be at least two guilty minds,
both of whom actually agree to accomplish the conspiracys objectives.

a)

Related Common Law Rule: If all other parties to the agreement are acquitted, the last remaining defendant cannot be convicted.

2. NEW YORK: YES. Under the unilateral approach of NEW

YORK and the Model Penal Code, a defendant may be guilty of conspiracy even if the other parties are acquitted or were just pretending to agree.

f. Wharton Rule: When two or more people are necessary for the
commission of the substantive offense, there is no conspiracy unless more parties participate in the agreement than are necessary for the crime. NEW YORK: Follows the Wharton Rule

g. Vicarious (Pinkerton) Liability: 1. Common Law Rule: In addition to conspiracy, a defendant

will be liable for other crimes committed by his co-conspirators, so long as those crimes:

a) Were in furtherance of the conspiracys objective, and

were foreseeable

2. NEW YORK RULE: No vicarious liability for one who merely

conspires and does not participate in a crime committed by a co-conspirator.

h. Impossibility: Impossibility is never a defense to a charge of 20

conspiracy. (If two people agree to kill someone and they show up and that person is dead, they can still be convicted of conspiracy)

iii. Attempt
a. The Act

1. General Requirement: Unlike conspiracy, attempt requires

an overt act must be beyond mere preparation.

2. The Common Law/NEW YORK Test (strict): Conduct that

gets very close to the commission of the crime (sometimes called the dangerous proximity test).

3. The MPC/Majority Test (generous): Conduct that

constitutes a substantial step towards the commission of the crime provided that conduct strongly corroborates the actors criminal purpose.

b. Mental State: Specific Intent 1. The Rule: Attempt requires the specific intent to commit the
underlying crime.

2. Unintentional Crimes: You cannot attempt unintentional

crimes, since you cannot intend to do something unintentional. Practically speaking, this means that there are no attempt versions of:

a) Recklessness crimes, or b) Negligence crimes, or c) Felony murder. c. Impossibility Defense

1. Factual Impossibility

a) Definition: It is impossible to complete the crime

because of some physical or factual condition unknown to the defendant.

b) The Rule: Factual impossibility is never a defense to

attempt. 2. Legal Impossibility

a) Definition: It is impossible to complete the crime

because of some legal circumstance or status that prevents the underlying crime from taking place.

b) The Rule: Legal impossibility is a defense to

attempt.

c)

NEW YORK: Legal impossibility is not a defense to

21

attempt. B. Inchoate Offense Doctrines

i. Withdrawal/Renunciation/Abandonment: What happens when a solicitor,

co-conspirator, or attempter changes his mind?

a. Common Law Rule: Withdrawal is not a defense. 1. *Exception*: Once D withdraws from a conspiracy he will not
longer be vicariously liable for crimes committed by his coconspirators after he left the conspiracy.

2. *However,* D is still guilty of conspiracy and of all foreseeable

crimes committed by co-conspirators prior to his withdrawal.

b. NEW YORK/MPC: Withdrawal can be a defense, but only if 1. The D completely and voluntarily renounces the solicitation,
conspiracy, or attempt, and the renunciation is based on a change of heart, not a fear of failing or being caught. ii. Merger Rules For Inchoate Offenses:

a. Solicitation and attempt merge with the complete crime; 1. NEW YORK DISTINCTION: Solicitation does not merge. b. *Conspiracy does not merge period (ever) (A Bar Favorite).
X. Defenses A. Capacity Defenses i. Insanity

a. The First Requirement for the insanity defense is that the defendant
must have a mental disease or defect.

b. There are Three Most Common Tests used to gauge whether the
mental disease or defects renders the defendant legally insane:

1. The MNaghten Test (majority test purely cognitive): If

the defendant either:

a) Did not know that his act was wrong, or b) Did not understand the nature of his act. 2. The Irresistible Impulse Test (volitional test, sometimes
combined with MNaghten): If the defendant either:

a) Was unable to control his actions, or b) Was unable to conform his conduct to the law. 3. The MPC Test (used in roughly 25% of the states
cognitive and volitional): If the defendant lacked the substantial capacity to either

a) Appreciate the criminality of his conduct, or 22

b) Conform his conduct to the requirements of law. c. INSANITY IN NEW YORK: 1. Defendant must prove he or she lacked the substantial
capacity to either

a) Understand the nature of his act, or b) Appreciate the wrongfulness of his conduct.
d. Distinguished From Incompetence 1. Insanity

a)
2. Incompetency

The issue is whether D was insane at the time

of the crime. If yes, then D is not guilty.

a) The issue is whether D is insane at the time of trial. If

yes, then the trial is postponed until D is competent.

ii. Voluntary Intoxication (commonly tested on MBE)

a. Common Law Approach

1. **Can be a defense to specific intent crimes only.** 2. Cannot, therefore, be a defense to malice, general intent, or
strict liability crimes. 3. The defense of intoxication requires such severe prostration of the faculties that the defendant cannot form the requisite specific intent.

b. NEW YORK: 1. Can be a defense to intent crimes and knowledge crimes, if the
intoxication prevents the defendant from forming the required state of mind.

2. Cannot be a defense to crimes of recklessness, negligence, or

strict liability.

iii. Infancy (usually the wrong choice)

a. Common Law (Rule of Sevens)

1. If, at the time of crime, the age is under 7 (6 or younger):

Prosecution not allowed.

2. If, at the time of crime, the age is under 14 (13 or younger):

Rebuttable presumption against prosecution.

3. If, at the time of crime, the age is 14 or older: Prosecution

allowed. b. NEW YORK

1. If the age is under 13: Criminal prosecution as an adult not 23

allowed; only juvenile delinquency proceedings in Family Court.

2. If the age is 13: Criminal prosecution as an adult allowed for

second degree murder.

3. If the age is 14 or 15: Criminal prosecution as an adult allowed

for serious crimes against persons or property.

4. If the age is 16 or older: Criminal prosecution as an adult

allowed for any crime. B. Other Defenses

i. Mistake (Look at the elements and intent of the crime)

a. Mistake of Fact

1. Common Law Rule: Whether a defendants mistake of fact

will be a defense depends upon the mental state for the crime and whether the mistake is reasonable or unreasonable. So, if the mental state is

a) Specific Intent, then any mistake (even an

unreasonable one) will be a defense.

b) Malice of General Intent, then only a reasonable

mistake will be a defense.

c)

Strict Liability, then mistake will never be a defense.

2. Common Law Redux: Therefore: a) A reasonable mistake will be a defense to any crime,
except a crime of strict liability.

b) *An unreasonable mistake will be a defense only to

specific intent crimes.

3. NEW YORK RULE: In NEW YORK, a mistake of fact will be a

defense if the mistake negates the required mental state. This means that

a) For crimes of purpose, knowledge, or recklessness,

any mistake of fact (even an unreasonable one) is usually a defense.

b) For crimes of negligence, only a reasonable mistake

will be a defense.

c) For strict liability crimes, a mistake of fact will never

be a defense, no matter how reasonable it is.

b. Mistake of Law: Common Law and NEW YORK 1. The Rule: Mistake of law is generally not a defense. 24

a) Exception: If the statute specifically makes

knowledge of the law an element of the crime (e.g., selling phony Rolex watches knowing it is unlawful to do so). ii. Self-Defense (Justification) a. Deadly vs. Nondeadly Force

1. Common examples of Nondeadly force: shoves and punches 2. Common examples of Deadly force: guns and knives. b. The Rule for Use of Nondeadly Force: A defendant may use
nondeadly force in self-defense if it is

1. Reasonably necessary, to protect against an immediate use, of

unlawful force against himself.

c. The Rule for Use of Deadly Force: A defendant may use deadly
force in self-defense, if he is facing an imminent threat of death or serious bodily injury. There are two complications only for the use of deadly force:

1. The Initial Aggressor Rule: A defendant may not use deadly

force if he is the initial aggressor (i.e., the person who started the fight). But, the initial aggressor can regain his right to use deadly force in self-defense in: One of two ways:

a) He withdraws form the fight and communicates that

withdrawal to the other person; OR

b) The victim suddenly escalates the nondeadly fight

into a deadly one.

1. NEW YORK DISTINCTION: In NEW YORK, the

initial aggressor must withdraw before resorting to deadly self-defense, even if the other party suddenly escalates a nondeadly fight into a deadly fight.

2. The Retreat Rule: In some states, a defendant is required to

retreat before using deadly force in self-defense.

a) Majority Rule: Retreat is not required. b) NEW YORK/Minority Rule: Retreat is required,
unless:

1. D cannot retreat in complete safety, or 2. D is in his home (the castle exception). d. Reasonableness and Mistake: What happens if D is mistaken about 25

the need to use self-defense?

1. Reasonable mistake: Complete defense

2. Unreasonable mistake:

a) Common Law/NEW YORK Rule: No defense at all. b) Minority/MPC Rule: Mitigate liability 1. Imperfect Self-Defense: An unreasonable
belief in the need to use deadly force in selfdefense will mitigate murder to (voluntary) manslaughter. e. Use of Force to Prevent a Crime

1. Nondeadly force may be used if necessary to prevent any

crime.

2. Deadly force may only be used to prevent a felony risking

human life.

f. Defense of Others: A defendant may use force and deadly force to

protect others just the same as he could use it to defend himself.

g. Defense of Property: 1. General Rule: Deadly force may not be used to defend
property.

2. Burglary Rule: Deadly force may be used to prevent a

burglary, if the defendant is inside the victims home.

h. Resisting Arrest: If the defendant knows or reasonably should know

that the person performing the arrest is a police officer

1. Majority Rule: If the arrest is unlawful then the defendant

may use nondeadly force to resist the arresting officer.

2. NEW YORK RULE: Force may not be used to resist an arrest,

even an unlawful one, unless the arresting officer uses excessive force.

i. Use of Deadly Force by Law Enforcement: An officer may use

deadly force only when doing so is reasonable under the circumstances. Compare: Because the suspects conduct posed an immediate threat to his own life and that of innocent bystanders, it was reasonable for an officer to end a high-speed chase by bumping the rear of the suspects vehicle and thereby causing the suspects car to crash. : It

26

was unreasonable to shoot a fleeing burglar who had disobeyed an order to halt since the officer lacked probable cause to believe that the suspect was armed or otherwise posed an immediate physical threat to the officer or others. iii. Necessity (or Choice of Evils):

a. The Rule: It is a defense to criminal conduct if the defendant

reasonably believed that his conduct was necessary to prevent a greater harm.

1. The Exception: Necessity cannot be a defense to homicide 2. NECESSITY IN NEW YORK: a) The harm avoided must be greater than the harm
caused.

b) Necessity can be a defense to homicide.

iv. Duress

a. The Rule: It is a defense if the defendant was forced to commit a

crime because of a threat, from another person, of imminent death or serious bodily injury to himself or to a close family member. It always involves a human.

b. The Exception: Duress cannot be a defense to homicide. c. NEW YORK: Duress can be a defense to homicide. v. Entrapment: If the government unfairly tempted the defendant to commit
the crime, he may claim entrapment. This very narrow defense works only if

a. The criminal design originated with the government, and *the

defendant was not predisposed to commit the crime.

27