CA Bar 2009: Crim Law/Crim Pro
QUESTIONS
-Types of “acts?” (3)
-Types of omissions that qualify as
“acts?” (5)
-What is an S/L crime?
-Examples?
-What are the defenses to an S/L
crime?
-Can you consent to an S/L crime?
CRIMINAL LAW
Part 1: Elements of Crime
Background
A. Vagueness: a constitutional doctrine that can invalidate a crim statute if:
1. The statute doesn’t provide fair warning
2. Results in arbitrary or discriminatory enforcement
B. No ex post facto laws
C. No bills of attainder: legislative act that declares someone guilty w/o trial
Actus Rea
A. Commission (Act)
1. Any intentional act can qualify.
a. Ex: scaring someone when you know they have a weak heart
2. Bodily movements that do not qualify for criminal liability
a. Reflexive acts or conduct not of your own volition can’t be “intentional,” ie
sleepwalking
1) This is diff from falling asleep at the wheel
b. But known pre-existing condition for seizures + seizure while driving can be
an intentional act b/c of pre-existing knowledge
3. Possession: dominion + control, held for long enough to terminate control
a. Can be constructive
b. Need not be exclusive to 1 person
c. Mens rea: awareness of the possession but not necessarily of the illegality.
But some statutes add knowledge of illegality or constructive knowledge
B. Omission
1. Generally, the failure to act isn’t actionable
2. Exceptions:
a. Statutes which require action
1) Ex: tax code says you have to file taxes by April 15
b. Contractual agreements that are relied upon by others, such as those
obligating lifeguards or air traffic controllers
c. Relationship b/t the parties
1) Parents owe a duty of care to their kids
2) Ex: Father beats boy, who dies. Boy also had cancer, which is the cause
of death (not the beating). Father is not guilty despite how detestable he
is.
d. Voluntarily assuming the duty of care for someone else and failing to
reasonably perform it. (often tested)
1) Ex: Good Samaritan failed to act reasonably
e. Defendant’s conduct created the peril, then duty of care arises
Mental States (mens rea)
A. Strict Liability
1. Def: No intent crimes; is imposed simply b/c of the actus reus and no mens rea
showing required
a. Administrative, regulatory or morality crimes
1) Ie, toxic dumping
2) Ie, statutory rape of a minor—actual age is the only thing that matters
3) Selling liquor to minors
b. Tip: prob will use adverbs such as knowingly, willfully or intentionally
2. Rule: the defenses that are said to negate intention cannot be used to defend
against crimes of S/L
3. For S/L probs:
a. Consent doesn’t matter; D’s actus reus is what counts
b. Entrapment usually is not the right answer
4. Very limited defenses to S/L:
a. Insanity
b. Involuntary intoxication
c. Possibly: duress
5. There can be con law/crim law cross over q’s.
1

-What are general intent crimes?
-How do you determine intent?
-What are the defenses to GI
crimes?
-Is unreasonable mistake of fact a
defense to a GI crime?
-What is “specific intent?”
-What are the dual layers of intent?
-Types of SI crimes? (12)
-What are the defenses to SI
crimes?
-What are the malice crimes?
-What mens rea is required?
-What are the defenses?
-What are the MPC states of
intent?
-What is mistake of fact?
-When is it applicable?
-What is unreasonable mistake of
fact?
-What is transferred intent?
-Can you merge crimes w/ diff
victims?
-If you have transferred intent,
what are the kinds of charges?
-Are there any exceptions to
transferred intent?
CA Bar 2009: Crim Law/Crim Pro
B. General Intent
1. General Intent: an awareness of all the factors constituting the crime
a. Infer intent from act
b. Transferred intent
c. Motive is not intent to commit a crime
2. Most crimes are gen intent crimes. All crimes that don’t fall w/in any other
category of mental states are general intent.
a. Ex: simple Battery and Rape
3. Defense to all Gen Intent Crimes: reasonable mistake of fact
a. “Unreasonable mistake of fact” is not a defense to gen intent crimes.
b. “Reasonable mistake of fact” not a defense to S/L crimes
C. Specific Intent
1. Intent to do the act and achieve (an illegal) specific objective
2. Specific intent crimes: have double intent requirements
a. Inchoate (incomplete) offenses
1) Solicitation: intent to have the person solicited commit the crime
2) Conspiracy: intent to have the crime complete
b. 1st Degree Premeditated Murder: assume it’s a specific intent crime:
premeditation + act
c. Assault: intent to commit a battery (can be defined as a threat, which is not a
specific intent crime)
d. Felonies against property:
1) Extortion
2) Larceny + Robbery: intent to permanently deprive the other of his interest
in the property taken
3) Embezzlement: intent to defraud
4) False pretenses: intent to defraud
5) Burglary: intent to commit a felony in the dwelling
6) Forgery: intent to defraud
e. Attempted X: always requires specific intent even if the completed crime
would not
3. Defenses
a. Reasonable mistake of fact
b. Unreasonable mistake of fact
c. Diminished capacity
D. Malice Crimes
1. C/L Murder + Arson
a. Malice separates murder from manslaughter
2. Requires only a reckless disregard of an obvious or high risk that a particularly
harmful result will occur
3. Defenses to specific intent crimes do not apply to malice crimes.
E. MPC States of Intent
1. Purposely
2. Knowingly/Willfully
3. Recklessly
4. Negligence: fails to be aware of a substantial and unjustifiable risk
F. Mistake of Fact
1. Malice or GI: mistake of fact is a defense, but only so long as the mistake was
reasonable.
2. Specific Intent: any mistake, even an unreasonable one, is an available defense
3. S/L: mistake of fact is never a defense for any S/L (no intent) crimes
G. Transferred Intent
1. The intent to commit a crime may be transferred to a diff than originally intended
V of that crime.
a. Ex: D shoots at V1 but misses the intended victim and kills V2. D’s intent to
kill V1 will be transferred to V2.
2. Rule: never merge crimes that have diff victims. These will always be
prosecutable as separate crimes.
a. The murder of V2
b. The attempted murder of V1
3. Rule: it’s not possible to transfer intent b/t diff crimes.
2

-What is accomplice liability?
-What must the accomplice do to
be held liable?
-What are accomplices liable for?
-Is conspiracy merged w/ the
predicate crime?
-How can silent acquiescence
become accomplice liability?
-What are the types of inchoate
offenses?
-What is solicitation?
-Can there be merger w/
solicitation?
-What are the elements of
conspiracy? (4)
-What kind of intent is required?
-Can conspiracy be merged w/ the
predicate crime?
-What are the co-conspirators
responsible for?
-What is the majority position on
“overt acts?”
-What is the minority position on
“overt acts?”
-What are the elements of
withdrawal? (2)
-What does withdrawal absolve a D
of?
-What does withdrawal not absolve
a D of?
CA Bar 2009: Crim Law/Crim Pro
a. Ex: can’t transfer intent to commit a burglary to the crime of arson. This is
true even if while committing a burglary, there is an accidental burning down
of the house where the burglary was being committed.
b. Limited exception: felony-murder: felony + even accidental murder – law
allows P to take the mens rea of the felony and apply it to the murder.
Accomplice Liability (aiding and abetting)
A. Accomplices are liable for:
1. Originally intended crime itself, or
2. All reasonably foreseeable crimes committed by the principle
3. NB: D is convicted of the crime and then conspiracy liability
B. Just b/c someone is present at the scene of a crime and silently approves of the crim
behavior, that doesn’t mean that they will be held to accomplice liability.
1. D must actually have done something w/ the intent to assist in a crim enterprise, or
2. Assisted the actual perps in some significant way, w/ knowledge that the
assistance would be used to commit a crime.
a. Ex: doing something lawful (ie selling sugar to bootleggers) or providing a
neutral service  ie, overcharging b/c you know that the buyer is using it for
illegal purposes, then you can be held criminally liable
1) Tip: usually the seller will know that the buyer is doing something illegal
Inchoate Offenses
A. Types of inchoate offenses: solicitation, conspiracy, attempt, or merger
B. Solicitation
1. If there’s an acceptance, then theoretically, there’s a merger b/t the solicitation and
the conspiracy. But the jury is usually charged w/ finding and sentencing for one
or the other.
2. The very askingto participate in a crime is a crime.
C. Conspiracy
1. Elements:
a. Agreement, and
b. Some overt act committed in furtherance of the conspiracy
c. Intent to agree and pursue the unlawful objective
1) Doesn’t require that the conspirators know the objective is illegal
2) Factual mistake as to the unlawful objective  no liability
A) Ex: helping friend to find his dog  no liability if you’re helping but
your friend is really stealing the dog
d. Meeting of the minds
1) Need actual meeting of the minds, not just superficial agreement
2. Rule: conspiracy does not merge w/ the substantive offense—you can be
convicted of conspiracy to commit robbery and the robbery itself
3. Liability:
a. All co-conspirators are liable for the all the crimes of their conspiracy if
crimes are committed in furtherance of the conspiracy and were reasonably
foreseeable
4. The agreement need not be express. No written or spoken words are necessary.
Various people can be part of a conspiracy even if they don’t know each other
personally or have never met.
5. Overt Act
a. Majority rule: agreement + overt act
1) Any slight act is good enough
2) Ex: phone calls, showing up at the place you agreed to rob
b. Minority and C/L: agreement itself, no overt act necessary
c. Tip: MBE will expressly tell you if they want you to use the minority rule.
Otherwise, assume the majority rule is in effect.
6. Withdrawal
a. Hard to do. Conspirator must inform all of his co-conspirators of his intent to
withdraw, must occur before the crime becomes unstoppable
b. Withdrawal itself doesn’t absolve the conspirator for previously committed
crimes incl. the conspiracy itself + any reasonably foreseeable crimes which
have already been committed in furtherance of the conspiracy
3

-What are “attempted crimes?”
-What must be done to constitute
“attempt?”
-Is only preparation enough to
constitute attempt?
-What is the mens rea of an attempt
crime?
-What is the mens rea of an
attempted S/L crime?
-What is merger?
-When is merger allowed?
-What is the Wharton Rule?
-What are the defenses? (7)
-What are the tests for insanity? (4)
-What is the test for voluntary
intoxication?
-What crimes is it good for?
-What is involuntary intoxication?
-What crimes is it applicable for?
CA Bar 2009: Crim Law/Crim Pro
c. Withdrawal can absolve future crimes of his former co-conspirators for which
he would’ve been liable had he stayed in the conspiracy
D. Attempt
1. Rule: there must be attempt to commit a target offense (“substantial step test”)
2. Mere preparation is insufficient to constitute an attempt.
3. You need a substantial step:
a. A specific intent to complete the target offense
b. A substantial step must be taken towards the completion of that target offense
4. All attempts, even attempts to commit gen intent or S/L crimes, are specific intent
crimes. The law treats this as: Intent 1 to begin preparation + Intent 2 to complete
the offense.
E. Merger
1. Generally, no merger of crimes under American law.
2. Rule: Attempt is a fallback position. If D is found guilty of the offense, then can’t
be found guilty for the attempted offense.
3. Rule: You can be convicted of both conspiring and actually doing it.
4. Rule: one who solicits another to commit a crime may not be convicted of both the
solicitation and the completed crime if the person solicited does complete it—use
conspiracy + the predicate crime instead.
5. If the person solicited agrees to commit the crime but no acts are taken sufficient
to be attempt, both parties can be held liable for conspiracy.
F. Wharton Rule: if 2+ people are necessary for the commission of the substantive
offense, then “conspiracy” requires more people than are necessary to commit the
substantive offense.
1. Exception: don’t apply the WR to agreements w/ “necessary parties not provided
for.”
a. Ex: if statute prohibits the sale of narcotics by buyers but says nothing about
sellers, both the buyer and the seller can be held guilty of conspiracy to sell
narcotics even though both parties are necessary for the commission of the
substantive offense.
Defenses
A. Insanity: is a defense to all crimes, including S/L
1. M’Naghten Test:
a. At the time of his conduct, as a result of a mental defect, the D lacked the
ability to know the wrongfulness of his actions or could not understand the
nature and quality of his acts
b. This is a cognitive test, aka the right/wrong test
c. Tip: most important for the bar
2. Irresistible impulse test
a. D, as a result of a mental defect, lacked the capacity for self-control and free
choice
b. This is a volitional test—the inability to control one’s self
3. Durham Test
a. Was D’s conduct a “product” of a mental illness?
b. Not really followed anymore as it’s easy for D’s to satisfy.
4. MPC Test
a. Did the D lack the “substantial” capacity to either appreciate the wrongfulness
of his conduct or to conform his conduct to the requirement of law as a result
of a mental disease?
b. Test combines M’Naghten and Irresistible Impulse tests.
B. Intoxication
1. Voluntary intoxication: for crimes requiring purpose or knowledge, ie specific
intent crimes b/c the intoxication can prevent formation of requisite intent (but not
available if D purposely become intoxicated to get the defense)
a. Intoxicant was knowingly and voluntarily ingested
b. Addicts and alcoholics are considered voluntarily intoxicated even though
they cannot be convicted simply of being an addict.
c. Won’t work for: malice crimes, recklessness, negligence or S/L
2. Involuntary intoxication
a. Intoxicant was ingested: w/o knowledge of its FX, under duress or pursuant to
med advice
4

-What is the infancy defense?
-What are the age breakdowns?
-What are the types of self-defense
and defense of others defenses?
-When can the V use deadly force?
-What are the majority and
minority positions on the use of
deadly force?
What is the retreat rule?
-When can the V use non-deadly
force?
-When can the initial aggressor use
force?
-What are the majority and
minority rules on the defense of
others?
-What’s the Alter Ego Rule?
-What level of force can be used to
protect a dwelling or property?
-What is duress?
-When can the duress defense be
used?
-When can’t duress be used?
-When can consent be used?
-What is entrapment?
-What are the elements?
-What is battery?
Part 2: Common Law Crimes
Battery
-What is assault?
Assault
CA Bar 2009: Crim Law/Crim Pro
b. Involuntary intoxication has the same legal effect as insanity. It is a defense
to all crimes, including the S/L crimes if it’s established that the intoxication
caused the actus reus.
C. Infancy
1. Under age of 7, no crim liability
2. Under 14, there’s a rebuttable presumption of no crim liability
3. Tip: infancy is almost always the wrong answer on the bar.
D. Self-Defense (and Defense of Others)
1. Nondeadly force by V: V (non initial aggressor who possessed the legal right of
self-defnse) may use non-deadly force in self-defense any time that V reasonably
believes that force is about to be used against him.
2. Deadly force by V
a. Majority: V is permitted to use deadly force as long as V reasonably believes
that deadly force is about to be used against him.
b. Minority: Prior to using deadly force in self-defense, the V of a deadly attack
must first “retreat” to the wall if it is safe to do so
1) V of a deadly attack need not retreat if he’s in his own home
2) V of a violent felony, such as rape or robbery, does not have to retreat
even if safety is available
3) Cops have no duty to retreat
3. Use of force by initial aggressor
a. An initial or original aggressor cannot claim a right of self-defense, unless:
1) The original or initial aggressor has withdrawn (run for the door), but
right before exiting says “I’m all done now” and then is forced to self-
defend against second aggressor.
2) A non-deadly aggressor is defending against a deadly response.
b. ID the initial aggressor!
1) NB: even under the majority rule, the initial aggressor must retreat if safe
avenue is available, before the right of self-defense arises
2) NB: initial aggressor must use physical force or descriptive words. But
mere words or insults cannot be considered aggression or provocation.
4. Defense of Others
a. Majority rule: doesn’t require pre-existing relationship w/ the person aided.
b. Majority: a reasonable mistake of fact is a defense
c. Minority Alter-Ego rule: if you come to the aid of someone, and even if you
make a reasonable mistake, you have no rights greater than those of the
person that you aided. Thus if they had a right to self defense, you have a
right to the defense of others when coming to their aid.
1) Tip: is a large minority—mention it on the essays
5. Defense of a dwelling
a. Rule: deadly force can’t be used to defend your property
b. Ex: the spring gun scenario is diff from the occupant who uses deadly force
under the reasonable belief to protect himself in a burglary of his home
E. Duress
1. Is a defense to all crimes except homicide. This is true even if the eventual D is
threatened w/ their own or a loved one’s death if they fail to commit the homicide.
You can’t legally defend by saying you killed 1 to save 10.
F. Consent
1. Tip: almost always wrong on the bar.
G. Entrapment
1. Def: govt induces someone to commit a crime
2. Very narrow defense b/c of the D’s predisposition to commit the crime negates the
defense
3. Tip: almost never a correct answer. You can only claim the entrapment defense if
you were not predisposed to commit the crime.
A. A battery is a completed assault.
B. Battery is commonly tested as a C/L crime.
5

-What is homicide?
-When does homicide become
criminal?
-What is necessary for homicide to
become murder?
-What is felony-murder?
-What is the mens rea of F-M?
-Do the deaths need to be
foreseeable?
-What can defendants of an F-M be
held liable for?
-What is manslaughter?
-How is it diff from murder?
-What is voluntary manslaughter?
-What is the mens rea?
-What are the elements of VM?
-What are the defenses to VM?
CA Bar 2009: Crim Law/Crim Pro
A. Two defs:
1. An attempted battery—specific intent crime b/c all attempted crimes are specific
intent crimes
2. As a threat—general intent crime
B. Tip: bar will be explicit on which one to use.
Homicide
A. Def: the killing of a human; only becomes criminal b/c of various actus reus and mens
rea requirements
1. If someone is about to die by bullet, and someone else accelerates the process w/ a
stabbing, that’s still considered murder.
B. Tip: if bar says the charge is murder, then treat is as C/L murder—which today is 2nd
degree murder, a malice crime and is not a specific intent crime
1. 1st Degree Murder: malice crime + specific intent crime
C. Homicide could be murder if, one of the following is present:
1. Intent to kill
2. Intent to do serious bodily harm
3. Depraved heart: intentional performance of an act, despite the fact that it is known
by the actor to entail a substantial likelihood of causing death or great bodily
injury (gross recklessness)
4. Felony-murder: a homicide committed while perpetuating a felony. The intent to
commit the felony creates the malice needed to make the homicide a murder.
Defenses to F-M:
a. If D has a defense to the underlying felony, then he has a defense to the
charge F-M
b. Underlying felony must be something other than the killing—you cannot
convert every homicide into an F-M just b/c the homicide may itself be a
felony. F-M requires a felony other than murder.
c. Deaths must be foreseeable.
1) Ie, if the V is struck and killed by lightening – not foreseeable
2) Ie, if V has a heart attack during the felony and dies – foreseeable
d. While deaths caused while the fleeing from a felony are felony murders, once
the D reaches some point of temporary safety, any deaths he may cause
thereafter cannot be considered part of the F-M chain that began before
reaching safety. (The original felony ended before the deaths had occurred.)
e. Tip: on the bar,
1) D is not liable for the death of a co-felon as a result of resistance by the V
or cop
2) But if the store owner or a cop kills an innocent while trying to resist a
robbery, that is still F-M on the bar.
5. What is a “felony?”
a. If no list: then rely on violent, C/L felonies (robbery, rape, arson etc.)
D. Manslaughter
1. Are homicides that would’ve been murders had there not been some mitigation or
something more involved. Are a kind of reduction in murder.
2. Voluntary manslaughter
a. Always the result of the mitigation of an intent to kill or to commit serious
bodily injury murder
b. Provocation:
1) To mitigate from murder to VM, provocation is almost always required
2) Requires:
A) D must actually have been provoked by V (ie a killing of passion)
B) V’s behavior which actually provoked D would’ve also provoked a
reasonable person
C) At the time D killed V, D must not have yet personally cooled from
the passion
D) At the time that D killed V, a reasonable person would also not yet
have cooled
c. Imperfect claim of self-defense: someone who killed honestly though
unreasonably believing that they must do so in self-defense (some
jurisdictions recognize this—normally unreasonable mistake of fact is not a
6

-What is involuntary
manslaughter?
-How does it differ from murder or
VM?
-What is the mens rea?
-What is criminal negligence?
-What is misdemeanor
manslaughter?
-What is 1st Degree Murder?
-What is the mens rea?
-What does kidnapping require?
-What constitutes rape?
-What are the defenses to rape?
-What is the mens rea?
-What is statutory rape?
-What are the possible defenses?
-What is not a defense to statutory
rape?
-What are the elements of larceny?
(5)
-What is the mens rea of larceny?
-Is mistake of law a defense to
larceny?
-Is mistake of fact a defense to
larceny?
-What are the elements of
embezzlement? (2)
-Does the embezzler need to have
personally benefitted?
CA Bar 2009: Crim Law/Crim Pro
defense to the malice crime of murder and reduces to the non-malice crime of
manslaughter)
d. Diminished capacity: excessive voluntary incapacitation
3. Involuntary manslaughter
a. Always the result of an unintentional homicide b/c no intent to harm or cause
serious bodily injury. (Depraved heart murders require gross recklessness and
tort std is much lower std of negligence)
b. Criminal negligence
1) Ex: falling asleep at the wheel or carelessly handling a gun
2) 2nd Degree Murder under DHM distinguished:
A) Outrageous recklessness
B) “Subjective awareness” of creating a high risk of death
c. Misdemeanor Manslaughter
1) Killing someone during the commission of either a misdemeanor or an
un-enumerated felony
2) Most F-M statutes will specifically enumerate the list of felonies. At
C/L, death during the commission of any felony would qualify as F-M,
but on the bar, if the death occurs during a crime that is not on a given
list, (be it felony or a misdemeanor) then trat it as a misdemeanor
(involuntary) manslaughter
3) Misdemeanor manslaughters are themselves typically felonies
E. 1st Degree Murder (usually premeditated)
1. C/L didn’t have degrees of murder
2. No universal def of 1st Degree murder  bar will:
a. Label the homicide as the 1st Degree Murder
b. Give you a set of statutes that define what constitutes 1st Degree Murder
Kidnapping
A. There must have been some movement of the victim, or
B. V are nonetheless concealed in what is referred to as a “secret place”
Sex Offenses
A. Rape
1. Slightest penetration completes the crime of rape.
2. Gen intent crime.
3. Mistake of fact is a defense to the accused but must be reasonable mistake of fact
B. Statutory Rape
1. Consent is not a defense.
2. Mistake of fact is not a defense
Part 3: Property Crimes
Larceny
A. Elements:
1. Wrongful taking (stealing, which can incl. obtaining possession by use of a
misrepresentation of fact.)
2. Carrying away (slightest movement of the property is good enough)
3. Personal property of another (this is a crime against rightful possession thus the
property need not be taken away from the rightful owner)
4. W/o consent (consent obtained by fear or fraud is not valid)
5. W/ intent to permanently deprive the rightful possessor
B. Intent
1. Intent to permanently deprive must exist at the time of the taking (if you borrow
and intend to return, that is not larceny. This is true even if the item is accidentally
destroyed or damaged before being returned.)
2. Taking property in the belief that it’s yours or that you have some right to it is not
C/L larceny. But a wrongful trespassory taking is a continued criminal offense.
a. Mistake of law is not a defense. D stole a dog believing that he was helping
his friend and that it’s not larceny. Mistake of fact is a defense but mistake of
law is not.
7

-What is the crime of false
pretenses?
-What are the elements? (2)
-What does the falsity have to
concern?
-What are the elements of robbery?
-What is the mens rea?
-How is this diff from larceny?
-What’s the one tug rule?
-Does the threat of future harm
constitute a robbery?
-What are the elements of
extortion? (3)
-How is this diff from robbery?
-Do the threats need to be
imminent?
-Do the threats need to be
physical?
-What is arson?
-What are the elements? (2)
-How does C/L arson differ from
statutory arson?
-What are the elements of
burglary? (4)
-What is C/L burglary consist of?
-What is the mens rea of burglary?
CA Bar 2009: Crim Law/Crim Pro
Embezzlement
A. Takes property that he had lawful possession of (though not ownership) and
misappropriates it for his own purposes.
1. Ex: trustee takes steals or misappropriates by borrowing from the trust fund.
B. No carrying away is necessary.
C. Alleged embezzler need not have personally benefitted from the conversion.
D. Only involves possession. If title is acquired by the alleged perp, then the crime isn’t
larceny or embezzlement.
False Pretenses
A. This crime involves the perp persuading, by means of a false pretense (lies) or
misrepresentation, the owner to convey title.
B. False pretenses must be as to a present fact or past fact.
1. Ie, lying about criminal history, credit history, job history etc.
C. False promises to do something in the future are not enough to constitute the crime of
false pretenses.
Robbery
A. All the elements of larceny + assault
1. Wrongful taking from the person or his presence
2. Carrying away
3. The personal property of another
4. W/o consent
5. W/ intent to permanently deprive the rightful possessor
6. By means of physical harm or force or by putting in fear by threat of imminent
harm against the safety of the person (not just to the object)
a. Pickpocketing w/o the use of force = larceny
b. One tug rule: if V notices that pick pocketer is trying to pickpocket, and V
notices and tugs, and the thief tugs bag, that changes it from larceny to
robbery
B. NB: Threats of future harm do not create a robbery.
Extortion (blackmail)
A. Extortion: the corrupt collection of an unlawful fee by an officer under color of office.
1. Usually consists of obtaining property by means of threats to do harm or to expose
information.
2. Under some statutes, the crime is complete when threats are made w/ intent to
obtain the property and before it’s actually obtained.
B. Unlike the crime of robbery, an extortionist does not have to take anything from the
person or presence of his V.
C. Threats can be future rather than imminent, unlike robbery.
D. Threatened harm need not have to be to a person, unlike a robbery.
E. Threat does not have to be of physical harm, unlike robbery.
Part 4: Offenses against the Habitation
Arson
A. Malicious burning of the dwelling house of another
B. Elements:
1. Damage is required—usually some charring will be good enough; but damage
done as a result of smoke or water used to put the fire out is not sufficient for C/L
arson.
2. Dwelling house:
a. C/L arson requires a burning of a dwelling
b. Essay: discuss the dwelling requirement
c. But on the MBE, any structure will suffice for arson
3. Dwelling of another
Burglary
A. Breaking
1. Entry must be accomplished w/ some use of force, threats or fraud
2. Application
8

What is the exclusionary rule?
What are the exceptions to the ER?
Exclusion
What is the fruits of the poisonous
tree doctrine?
What are the requirements for an
FPT argument?
What cannot be excluded under
FPT?
CA Bar 2009: Crim Law/Crim Pro
a. If the trespasser enters the home through an already open door or window,
technically no breaking. But any little bit of movement of the structure =
breaking in.
b. Pushing through an interior door in order to enter a room = a breaking
B. Entering: sufficient if any part of the body crosses the threshold into the house
C. Dwelling house
D. At night: at C/L, burglary had to happen at night
E. Intent to commit a felony or theft inside—this intent to commit a felony once inside
the dwelling must have existed at the time of the breaking and entering
F. Tip: bar will have a loosedef in terms of nighttime etc. But it will always use B + E
and Intent
CRIMINAL PROCEDURE
A. Exclusionary rule: a constitutional remedy that allows people the right to exclude
govt evidence that has been unconstitutionally procured.
B. General Exception:
1. Only available in criminal cases, not civil or quasi-criminal.
2. Doesn’t apply to grand jury proceedings.
3. Inadmissible in P’s case-in-chief, but impeachment of D’s own testimony ok
using;
a. Improperly Mirandized statements
b. Pre or post-arrest unMirandized silence
c. Unconstitutionally seized evidence
1)
4. Exception doesn’t apply to:
a. Coerced confessions
b. Post Miranda silence (which is choice by D)
c. Massiah (6th right to counsel) violations
5. Good Faith Reliance exception to the requirements of exclusion:
C. Fruits of the Poisonous Tree
1. Wong Sun
a. Facts:
1) Without PC, LEO break into Toy’s apt and arrest him in bedroom but
don’t find any drugs. Toy makes a statement implicating Yee in sale of
drugs. [Illegal]
2) LEO go to Yee, who immediately surrenders and hands over drugs. Yee
makes a statement implicating Toy and Wong Sun; says they sold him the
drugs. [Legal]
3) LEO then illegally arrests Wong Sun. [Illegal]
4) Wong Sun and Toywere arraigned and released pending trial. Toy gave an
unsigned confession.
5) Several days later, Wong Sun came back to the police station, was
Mirandized, and gave an unsigned confession.
b. Holding:
1) Toy:
A) Toy’s statement in the bedroom: is excluded b/c entry/search into
home was illegal
B) Yee’s drugs: Toy’s statement are the proximate cause of finding
drugs, so the drugs are the illegal fruits and are excluded; drugs can’t
be used against Toy
C) Toy’s unsigned confession: ?
D) Criminal confessions and admissions of guilt require corroboration.
WS’ statement did not mention Toy so it looks like the confession
can’t get in.
2) Wong Sun:
9

What’s the attenuation rule to FPT?
What is the inevitable discovery
rule?
What’s the independent source
rule?
What’s happens to the fruits of
improper Miranda statements?
What’s the knock and announce
rule?
When is an AW required?
What constitutes a proper AW?
Arrest Warrants
A. AW: are not required for arrests made in public places, as long as there is PC to justify
Who has standing to sue for 4th A
violations?
B. AW are required for non-emergency arrests, if the arrestee:
What’s the open fields doctrine?
Search and Seizure Model
A. 4thA violations for improper search and seizure do not apply if conducted by a non-govt
B. Standing
Who gets automatic standing to sue
for 4A violations?
Do you have a privacy interest in
illegal materials?
What can car passengers object to?
CA Bar 2009: Crim Law/Crim Pro
A) The drugs surrendered by Yee can be used against Wong Sun; WS
has no standing to object b/c he has no claim of privacy to Toy’s apt
(this is Carter) that led to Yee’s drugs
B) WS’ confession cannot be excluded; b/c WS voluntarily came back
to the police station to give a statement and was properly warned
about his right to silence/counsel, the confession was not “tainted”
by the earlier illegal search of Toy’s apt.
C) Since crim confessions require corroboration and Toy’s statement
doesn’t implicate WS, the confession isn’t really useful. Thus the
only source of corroboration is the drugs.
D) Since it’s not clear that the drugs could be enough corroboration, Sun
gets a new trial.
2. FPT Rule: D can successfully challenge tainted derivative evidence only if he has
standing to challenge the original (and illegal) search.
3. Attenuation Rule: independent acts by the accused that break the chain of taint b/t
the original unconstitutional violation and the evidence derived from it can make
the evidence admissible:
a. Wong Sun’s confession: voluntarily went back to the police station and
confessed—too attenuated so can be admitted
b. Toy’s statement in the bedroom: is inadmissible b/c it’s the product of an
unconstitutional entry/search into his home
4. Inevitable Discovery Rule: (incl. Independent Source Rule)-if, by the
preponderance of the evidence, the govt can prove that such evidence would’ve
been discovered anyway or from independent sources, then no constitutional
violation and it can be admitted.
5. Miranda Violations Rule: real or physical evidence cannot be excluded even if
there’s a Miranda violation but the improperly Mirandized statements are
inadmissible
6. Knock and Announce Rule: even if police do not obey the knock and announce
rule for executing warrants, there’s no FPT exclusion for evidence subsequently
discovered in a residence
the arrest. PC to arrest is needed before the police may take a suspect to the station for
interrogation or fingerprinting etc.
1. Is in his home
2. Is spending the night there
actor. For the bar, cops are on duty all the time. There’s no such thing as an off-duty
cop.
1. Did D have a reasonable expectation of privacy?
a. If items seized were already exposed to the public, then no privacy to be
invaded by cops
b. SC has held that no 4th A violations when:
1) Undercover cop talks to D and other cops are eavesdropping
2) Scrape paint off the exterior of a vehicle
3) Monitor vehicles in public streets (stopping for traffic violations are not
“pretextual stops” if monitoring for other reasons.)
c. Open Fields Doctrine: open fields beyond curtilage can be searched w/o
warrant even w/ “No trespassing” signs.
d. Observations conducted by fly-over in public airspaces
e. Search through trash cans put out for collection
f. Using search techniques that could only find contraband (ie, drug sniffing
dogs) b/c no 4th A right to possess contraband, thus it’s not an unconstitutional
‘search’
1) But can’t use technology to search the home, ie heat-sensing devices
10

What is needed for a valid SW?
What can an SW rely on when
using tipsters?
What must the issuing judge do?
Elements of proper SW execution?
When don’t you need a valid SW?
(8)
What is a search incident to lawful
arrest?
What is it limited to?
What parts of a car can be searched
under SITA?
What’s the recent occupant rule?
What’s necessary to search for
evidence?
What’s a protective sweep?
What areas does it cover?
What’s necessary to search in non-
adjacent areas?
What is necessary to trigger the
auto exception?
What can e searched under the auto
exception?
Can traffic stops be pretextual?
Can PC arise after vehicle has been
stopped?
What do border searches require?
CA Bar 2009: Crim Law/Crim Pro
2. Automatic standing:
a. Owns the premises searched
b. Lives on the premises searched
c. Is an overnight guest at the premises searched
3. Usually standing:
a. Legitimately present during a search
b. Owned the property seized at the time it was seized
4. Tip: bar likes to test-
a. Overnight guests do have standing to object
b. Drug dealers in an apt w/ purpose to deal drugs, then no standing to object
c. Passengers in a car have standing to object to areas where she has a
reasonable expectation of privacy; but passenger cannot object to the general
search of the car.
1) Ex: if LEO search and seize a suitcase in the trunk, then the passenger
can object to the search and seizure if the suitcase and its contents belong
to the passenger.
2) Ex: evidence that comes out at the Search and Seizure hearing that the
suitcase and its contents belonged to the passenger can’t get in at trial.
C. SW
1. PC to search (remember the good faith reliance rule)
2.PC can be based on an anonymous tipster using the “totality of circumstances” test
which can include credibility of the informant + basis for knowledge +
corroboration
3. Issuing judge:
a. Was issuing magistrate given enough info to make a “commonsense
evaluation” based upon the “totality of the circumstances.”
b. Did a neutral and detached magistrate issue the warrant?
4. Execution:
a. Was the warrant properly executed? Served and executed w/in a reasonable
time or did PC become stale by the time SW was executed?
b. Warrant must state w/ particularity the thing and place to be searched.
c. Reasonable mistakes as to execution won’t render the execution
unconstitutional.
D. Exceptions to the SW
1. If there was no SW or if it was invalid, is there some other way to justify the
search and seizure w/o a warrant?
2. Searches Incident to Lawful Arrest
a. Arrest must be lawful and precede the search.
b. Search must be made contemporaneously in time and place to the arrest.
c. Scope: limited to the lungible area
d. SITA’s as to Cars:
1) Entire cabin can be searched, incl glove compartment or any closed
containers in cabin
2) Trunk cannot be searched per SITA
3) Gant: homes and cars are now consistent: can’t situate someone in the
police car and then go and search his car if there’s no reasonable risk that
detainee(s) can get to their car and get a weapon
a. If LEO have reasonable belief that there’s evidence in the car for the
crime that suspect has been arrested for, then LEO can then enter the
car and search for that evidence
4) Recent occupant rule: doesn’t matter that the LEO pull the car over or
not. LEO can arrest occupant after he stops and gets out as long as
events are occurring quickly
e. Protective Sweeps
1) LEO, pursuant to an arrest in a residence, can automatically look in areas
“immediately adjacent” to the place of the arrest to look for persons who
might attack the police.
2) LEO can look in farther away areas, such as downstairs or back areas w/
reasonable suspicion that someone is there
3. Automobile Exception
a. PC to search is required, no W required b/c of the exigency of vehicle’s
11

What is the “border?”
What is the plain view doctrine?
What’s a stop and frisk?
What level of knowledge is
necessary?
What is the frisk limited to?
What will trigger a 4A search?
What’s the plain feel doctrine?
What comprises valid consent to
search?
What are the (2) 3rd Party consent
issues?
What are valid evanescent
circumstances?
How is search under evanescent
circumstances limited?
What is hot pursuit?
When using hot pursuit, where can
the LEO go?
What must LEO have before
wiretapping?
What’s the consent issue w/
wiretapping?
What is not protected under
wiretapping?
What is double jeopardy?
When does it attach?
What exceptions permit retrial?
CA Bar 2009: Crim Law/Crim Pro
mobility and lessened expectation of privacy
b. Warrantless search can be of whole vehicle, incl trunk and any closed
containers for which there’s PC to search as well
c. PC to search can arise after the vehicle has been stopped, assuming that the
stop itself is lawful
d. NB: pretextual stops are ok as long as the stop can be objectively justified
4. Border Searches
a. Do not require a warrant, PC or even reasonable suspicion
b. But searches away from the point of entry or customs are governed by the
normal rules and can require PC or even a warrant (incl mail)
5. Plain View Doctrine
a. Are the LEO, at the time they make their observation, in a place where they
have a constitutional right to be?
b. If so, then they can seize items in plain view if there’s PC to connect the item
seized to a crime.
6. Stop and Frisk
a. Rule: Brief detentions can be founded on reasonable suspicion,which is less
than PC. Includes stopping someone on the street or in a car.
b. Rule: But searches cannot be based on RS—the initial stop and frisk needs to
change to PC in order to search.
c. Rule: if there’s reasonable suspicionto believe that the suspect is armed, then
you can do a pat down to look for weapons. Does not extend to pat downs to
find contraband.
1) If, during the pat down, contraband is retrieved, then it’s admissibility
will depend on how much it reasonably seemed like a weapon.
2) Ex: RS to search for weapons, feel something like a bag of drugs but
can’t tell, though it’s not weapons. Before there’s PC and after tactile
manipulation, LEO determine it’s drugs  unconstitutional.
d. Plain Feel Doctrine: how much like contraband did it seem like from a “plain
feel” of the suspect? There must be probable cause to believe it’s contraband
in order to retrieve it from the suspect’s clothing.
7. Consent
a. Rule: must be intelligent and voluntary
b. Rule: LEO need not inform suspects that they have a right to refuse consent.
c. 3rd Party Consent:
1) If LEO reasonably believe that 2+ have an equal right to use or occupy
property, then either one can consent and bind the other, when only 1 co-
occupant is present.
2) If both co-occupants are present, one person consents and the other
objects, then the refusal trumps the consent (provided there’s no
exigencies to justify entry w/o a warrant.)
8. Evanescent
a. If evidence would significantly disappear in the time needed to get a W, then
can search w/o one. (Ie, extraction of blood for an alcohol test.)
b. Any bodily intrusion must be reasonable to get the substances out of the body
w/o a warrant. If the method used is too intrusive, painful or dangerous, then
the intrusion itself can be said to have violated the DPC and such evidence
can be excluded.
9. Hot Pursuit
a. Tip: has to very hot! Entry should occur moments after suspect has entered.
b. Tip: hot pursuit is often combined w/ the plain view doctrine
c. When in hot pursuit, LEO can pursue a suspect into the dwelling of a non-
suspect
Wiretapping and Eavesdropping
A. Rule: all wiretapping and eavesdropping require a warrant w/ PC
B. Exception:
1. If one party has consented to let the govt eavesdrop or wiretap on his conversation
w/ another, then that party has “given up” the other person’s right to privacy
2. 4th does not protect pin-register numbers and the like (ie phone numbers dialed, as
listed on a phone bill, b/c such numbers themselves have no “content.”)
12

Double Jeopardy
When are 2 similar crimes
elementally distinctive?
What are the “same sovereigns”
that DJ applies to?
What is collateral estoppels and res
judicata?
What is a “custodial
interrogation?”
What does the Miranda warning
require?
What is effective waiver of
Miranda?
Confessions
What are the exceptions to
Miranda? (6)
Can the right to silence be waived?
Can LEO question suspect after he
invokes silence?
How can LEO question suspects
after invocation of counsel?
Can LEO question suspect about
diff crimes?
CA Bar 2009: Crim Law/Crim Pro
A. Rule: once jeopardy attaches, a D cannot be re-tried for the same offense by the same
sovereign after a dismissal, acquittal or conviction
B. Rule: jeopardy attaches when the D pleads guilty or a jury is sworn in, or in the case of
the judge trial, when the first W takes the stand and is sworn to tell the truth
C. Exceptions permitting re-trial:
1. Jury is unable to reach a verdict (ie hung jury)
2. Mistrial is granted after having been requested by the D or even over D objection
for manifest necessity (ie if D becomes seriously ill during the trial or if it’s
discovered that the jury was bribed by the D)
3. Successful defense appeals
a. Exception: if grounds of reversal b/c of insufficiency of evidence at trial 
then that case cannot be retried
4. Failure of the D to keep an agreed-upon plea bargain
D. Two crimes do not constitute the same offense if a conviction if each crime requires
proof of an element that the other does not, ie robbery and burglary have at least
element that the other does not.
1. Example:
a. Crime A: xxxy
b. Crime B: xxx
c. Then cannot try and convict for both b/c proving A would also prove B,
making them essentially the same offense.
2. Example:
a. Crime A: xxxy
b. Crime B: zxxx
c. Then can try and convict for both.
3. If a D is tried for the battery of a V and the V later dies, then the D can be re-tried
for homicide.
E. Only applies to trials by the same sovereign. There are 3 sovereigns: states, federal
courts and tribal courts of Native American Courts
F. Collateral Estoppel and Res Judicata
1. Rule: cannot re-litigate a factual issue to a D’s detriment—is barred by double
jeopardy
2. Prohibition against re-litigation factual issues applies only to acquittals and not
convictions.
A. Miranda Warnings
1. Requirements:
a. Custody (not free to leave; would not include: probation interviews, tax
interviews and the period early in routine traffic stops.)
b. Interrogation: any conduct that the LEO knew or should have known would
obtain an incriminating statement (ie Christian burial speech)
2. In order for such answers to be constitutionally admissible, the police must have
given the Miranda warnings and obtained a waiver.
a. Burden is on suspect to clearly exercise his Mirandarights. LEO need not
seek to clarify ambiguities nor stop attempting to obtain a waiver unless the
suspect unambiguously exercises his Miranda rights.
b. After Miranda warnings are given, LEO must prove that suspect
unambiguously waived his Miranda rights.
c. Effective waiver: knowing, voluntary and intelligent waiver
3. Exceptions to Miranda
a. Waiver
b. Spontaneous statements—not in response to interrogations, is ok
c. Use for impeachment
d. No FPT exclusions for Miranda violations for non-testimonial evidence
e. Substantial compliance w/ Miranda language is constitutionally ok
f. Public Safety Exception: LEO can ask q’s for “public safety” reasons (as
distinguished w/ investigatory q’s) w/o Mirandizing first
13

What constitutes a voluntary
confession?
When does the 6A right to counsel
attach?
What does it protect against?
What can LEO do after 6A is
invoked?
CA Bar 2009: Crim Law/Crim Pro
B. Edwards
1. Right to Silence
a. If a suspect has exercises his Miranda rights to remain silent, then LEO
cannot attempt to obtain a waiver w/ respect to the same crime.
b. If suspect has exercised his right to remain silent (and not his right to
counsel), LEO can attempt to obtain waiver w/ respect to “other” crimes
about which they may wish to interrogate him.
2. Right to Counsel
a. If suspect invokes his right to counsel, then under the 5th, he cannot be
interrogated again w/o his attorney unless the questioning relates to a
completely diff offense.
b. NB: this is the only time that there’s a “5th A right to counsel”
C. Voluntary Confession
1. No coercion
D. Massiah
1. Applies when D is both: represented by counsel and formal proceedings have
commenced
2. 6th A right to counsel is offense specific.
a. If suspect has an attorney and formal proceedings have begun, nothing stops
the cops or undercover cops about a diff case (under 5th A right to counsel,
undercover cops can question suspect)
b. Holds even if D isn’t in custody at the time
c. LEO can question the suspect about this crime, albeit w/ his counsel

Pre-Trial Identification
A. A D is entitled to counsel under the 6th Right to Counsel at post-indictment or post-
arraignment (ie charges) in person line-ups
1. Not needed for a photo line-up
2. Not needed for the taking of a handwriting sample
B. It’s a denial of DPC if a line-up or show-up is so unnecessarily suggestive as to create
a substantial likelihood that it will produce a misidentification.
C. If line-up is unconstitutional for either reason then:
1. Line-up ID is inadmissible
2. The in-court ID will also be inadmissible unless the govt can prove by clear and
convincing evidence that there was an independent source for the W’s in court
identification. The independent source can be established by showing for
example, that the W knew the D before the crime or obtained a particularly good
look at him during the commission of the crime.

Right to Counsel During Judicial Proceedings

A. Retained vs appointed: an indigent is only entitled to appointment of counsel for
crimes where jail time could be imposed. If no jail time, then no appointment. But if
he can afford to hire a lawyer, he can.
B. The right to effective assistance of counsel: includes the right to appointment of
necessary experts in felonies to help defend his case
C. The constitutional right to counsel only guarantees a lawyer up to the first level of
appeal. It’s not guaranteed in habeas corpus cases or appeals to a 2nd level appellate
court after a first appeal has already been heard.
D. To prove ineffective assistance of counsel, D must show:
1. His attorney’s performance was unreasonably deficient, ie lower than the accepted
std of care
2. But for this defective performance, the results in court would be diff
a. Tip: on the bar, but for the malpractice, the D would’ve been found not guilty
or acquitted

Grand Jury
A. Only a fed requirement, not imposed on the states.
B. Exclusionary rule doesn’t apply
C. Neither D nor his attorney has the right to be present or call/question witnesses

14
 CA Bar 2009: Crim Law/Crim Pro
Speedy Trial
Only applies to post-arrest delays. Pre-arrest delays are unconstitutional only if they violate the
D’s due process rights.

Bail
A. May be immediately appealed.
B. Preventative detention can be constitutional if there’s no way that release and safety of
the community could be preserved. As long as there’s a hearing on the preventative
detention, no procedural due process probs.

Jury
A. Size
1. Jury of 12 need not be unanimous. 9-3 is sufficient for conviction/appeal.
2. Jury of 6 must be unanimous.
B. Right to jury attaches for all non-petty offenses (ie, 6 month + sentence is possible)
C. Right to venire: jury pool must represent a fair cross section of the community.
1. Finite number of peremptory challenges w/o explanation (except can’t do it for
race or gender)
2. Unlimited challenges for cause
3. DP jury selection: P can’t kick people off just b/c they don’t like the DP unless
their disagreement w/ the DP is so intense that it would interfere w/ their ability to
be fair and follow ct’s instructions

Guilty Pleas
A.

15