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Big Picture a. Test Taking Tips i. Not Rubics Cubes or Math Equations 1. No single solution, demonstrate that the exam is hard and why it is hard ii. Analysis is what matters, not the final answer 1. Ratio should be 1:2 or 1:3 Law/Analysis iii. Good Analysis 1. Exploits facts a. Facts will support the argument and explain why b. Facts will hurt the argument and you say on the other hand c. Some facts will go both ways d. Some facts will not be given i. If a rule of law turns on a fact and it has been omitted make a reasonable assumption either way and explore both possibilities 1. Guy shoots a gun a. Assume he knew it was loaded b. Assume he didnt 2. Seek balance iv. Clarity Matters 1. Use paragraphs 2. Use headers b. Theories of Punishment i. Utilitarianism 1. Criminal law should be used to help maximize social welfare a. We only punish to the extent that we make society happier i. General Deterrence ii. Specific Deterrence iii. Incapacitation if a person cant be deterred they will be committed and they cant hurt anybody ii. Retributivism 1. We punish wrongdoing because it is the morally right thing to do a. Everyone is treated as a human being and they get what they deserve b. Proportionality the punishment should fit the crime i. The evil is repaid, society is made whole again c. Constitutional Constraints on Punishment i. Due Process 1. Voids unduly vague criminal laws a. Laws that fail to give fair notice b. Laws that permit arbitrary and discriminatory enforcement ii. Ex Post Facto 1. Laws that impose criminal liability after the fact a. Conduct that was lawful when it was committed


If it makes a crime greater than when it was committed Inflicts greater punishment than when it was committed If a law reduces the amount of evidence required to convict The 8th Amendment prohibiting cruel and unusual punishment a. Grossly disproportionate to the crime b. Punishment doesnt measurably enhance deterrence or retribution d. Sources of Criminal Law i. Common Law ii. Statutory Law iii. MPC Elements of Crime a. Actus Reus i. The physical or external elements of a crime 1. Prohibited conduct a. Speeding 2. Prohibited Result a. Killing a human being 3. Attendant circumstance a. Facts that have to present for the crime to be satisfied i. Statutory Rape age of the victim is am attendant circumstance ii. Voluntary Act that brings about a prohibited result iii. Omission to act, where there is a legal duty to act 1. Statute might impose a legal duty a. File taxe 2. Contracts 3. Status Relationships a. Parent/child 4. Assumption of care 5. Creation of risk/peril b. Mens Rea i. Purposful conscious object 1. To engage in conduct 2. To bring about a prohibited result ii. Knowledge awareness 1. Awareness that you are engaging in prohibited conduct a. Not awareness that the conduct is criminal 2. Aware of the result that your conduct is causing iii. Recklessly gross deviation from the norm in consciously disregarding a substantial and unjustifiable risk iv. Negligently gross deviation and failing to be aware of a substantial and unjustifiable risk 1. The difference b/w recklessness and negligence is not a matter of degree, but awareness of the risk a. Subjective vs. Objective test

2. 3. 4. 5.


v. Common Law 1. Negligent and reckless mean the same thing 2. Intent = knowingly and purposely 3. Maliciously = at the very least recklessly or intentionally 4. Willfully = either intentionally or any culpable state of mind c. Causation i. Result crimes must have causation conduct must cause the prohibited result 1. Actual Cause = but/for cause 2. Proximate Cause a. Requires more foreseeability (natural and probable consequence) than tort law, because the consequences are much more severe Crimes Against Person a. Homicide i. Common Law 1. Murder a. Elements i. Actus reus unlawful killing of another human being ii. Mens rea malice aforethought 1. Intent to kill 2. Intent to inflict serious bodily injury 3. Depraved Heart conduct demonstrating extreme indifference to the value of human life, gross recklessness 4. Felony Murder b. Degrees of Murder (Not the common law) i. First degree 1. Premeditation and deliberation 2. Felony murder ii. Second Degree 1. Any murder that is not First Degree a. Merely intentionally killing someone w/o premeditation 2. Felony Murder a. Elements i. Actus Reus a killing during the course of a felony ii. Mens Rea none, strict liability 1. Mens rea transfers from the underlying crime iii. Causation b. What constitutes the killing i. Common Law if anyone (ie a cop) kills somebody ii. Modern Only a party to the crime can do the killing

c. What constitutes during? i. Going to and leaving the felony d. What Felony? i. Common Law Felonies ii. Inherently Dangerous iii. Dangerous in fact iv. Malum per se 1. Only the violent common law felonies v. Must not merge with the underlying crime 3. Manslaughter = murder + heat of passion a. Adequate provocation i. Words are not enough ii. Ordinary person under the circumstances 1. Look for facts to support the argument b. In fact provoked c. No cooling off period d. Not in fact cooled off 4. Involuntary Manslaughter a. Actus Reus killing b. Mens Rea Negligent or reckless 5. Misdemeanor manslaughter a. Like felony murder but for manslaughter ii. Model Penal Code 1. Murder a. No Degrees b. Mens Rea i. Purpose ii. Knowingly iii. Recklessly w/ extreme indifference to human life 2. Manslaughter a. No voluntary/involuntary distinction i. Extreme Mental Emotional Distress, for which there is a reasonable explanation or excuse from the actors situation under the circumstances as he believes them to be ii. Plain recklessness + killing 3. Negligent Homicide a. Basically the equivalent to common law involuntary manslaughter b. Rape i. Common Law 1. Actuse Reus a. Sexual intercourse b. By force c. W/o consent 2. Mens rea any culpable or blameworthy state of mind regarding


consent a. In some jurisdictions, a reasonable mistake will get you off the hook ii. Statutory rape = sex + minor 1. No mens rea, strict liability c. Assault i. Attempted battery ii. Placing another in fear of a battery Crimes against property Actus Reus Taking away anothers property by trespass or trick w/o valid consent Conversion of property held in trust Taking title to property by misrepresentation Mens Rea Intent to permanently deprive Intent to defraud Intent to defraud

Crime Larceny Embezzlement False Pretenses


a. Burglary i. Common law 1. Breaking and entering the dwelling of another at night with the intent to commit a felony therein ii. Modern 1. Breaking and entering the building of another with intent to commit a felony therein b. Robbery basically larceny by force or threat of force. Trespassory taking and carrying away of property of another with intent to steal, from the person or in the presence, through violence or intimidation. i. Actus Reus taking anothers property from his/her presence by force or threat of force ii. Mens Rea Intent to permanently deprive that person Inchoate Offenses - Specific intent crimes with the purpose of engaging in a crime a. Solicitation i. Actus Reus asking or encouraging someone to commit a crime ii. Mens Rea Intent iii. Liability Wrinkles 1. Complete once the asking/encouraging occurs 2. Solicitation merges into the target offense 3. Impossibility is no defense b. Conspiracy i. Elements 1. Actus Reus agreement to commit an unlawful act or series of acts a. Some states require an overt act as well 2. Mens Rea Intent to achieve the object of the agreement 3. Approaches a. Unilateral (MPC/Minority) only one party needs to be serious



i. Ex, where one party is a cop/narc b. Bilateral require two parties with intent ii. Liability Wrinkles 1. Conspiracy does not merge with the target offense 2. Pinkerton Liability a. Under common law (but not MPC) also liable for foreseeable crimes in furtherance of the conspiracy 3. Impossibility is no defense c. Attempt i. Actus Reus - Dangerous Proximity (CL) or Substantial Step (MPC) toward the completion of the target offense ii. Mens rea intent to commit the target crime iii. Liability Wrinkles 1. Attempt merges with the target offense 2. Impossibility a. Factual impossibility not a defense b. Legal impossibility is a defense Accomplice Liability a. Common Law Approach i. Parties 1. Principal in the first degree - present at the scene and commits one element of the crime 2. Principal in the second degree present at the scene of the crime, helps, but does not actually commit an element of the crime a. lookout 3. Accessory before the fact not present but provides assistance beforehand 4. Accessory after the fact not present but provide assistance after the crime is committed ii. Liability 1. Principals and ABTF liable for target crime and any foreseeable crimes 2. AATF separate crime, only liable for providing aid after the crime b. Modern Approach i. Parties 1. Principal any who aid and abet with the purpose of furthering the crime Defenses a. Self-defense i. Non-deadly force 1. Must reasonably believe that non-deadly force was necessary to defend against imminent unlawful force 2. No duty to retreat Stand your ground ii. Deadly force 1. Must reasonably believe deadly force was necessary to defend

against imminent unlawful deadly force 2. Retreat a. Majority i. No retreat b. Minority i. Must retreat unless 1. Retreat cannot be accomplished safely 2. It is in your home a. Minority of retreat jurisdictions require retreat when it is a cooccupant 3. It is deadly force a rape or robbery 3. Agressor No right to deadly force unless: a. Aggressor withdrawls b. There is escalation from non-deadly to deadly force iii. MPC 1. No imminence requirement a. Force was immediately necessary on the present occasion to protect against unlawful force 2. Liability Wrinkles a. If the person was wrong about the need for SD, the mistake about whether it was immediately necessary will be the mens rea for the crime i. Negligence ii. Reckless b. Necessity choice of evils i. Crimes, excluding first degree murder, reasonably believe it was necessary ii. Necessity must be from natural forces iii. No killing is allowed to protect property, maybe to protect more lives c. Duress i. Reasonably believe you are under threat by another person ii. of imminent death of bodily injury iii. or of family member iv. No reasonable way out v. No fault in bringing about the situation d. Insanity i. Elements 1. MNaughten Test (Common Law/Majority) a. Mental illness that precludes i. Knowing right from wrong ii. Not understanding the nature and quality of your act iii. Some Jurisdictions irresistible impulse 2. MPC a. Mental illness resulting in lack of substantial capacity to: i. Appreciate the wrongfulness of conduct ii. Conform your conduct to the law

e. Intoxication i. Involuntary 1. W/o knowledge or against your will you were intoxicated 2. Defense to all crimes if the intoxication made you temporarily insane ii. Voluntary 1. Not a defense to any crimes 2. Some jurisdictions, it is a defense if it negates the mens rea for specific intent crimes 3. Never a defense for recklessness or negligence