LECTURE HANDOUT

CRIMINAL LAW

CRIMINAL LAW

PROFESSOR KIP CORNWELL

Copyright © 2018 by BARBRI, Inc.

 Criminal Law

NOTES
1 OVERVIEW OF CRIMINAL
LAW

1.1 SOURCES OF LAW FOR THE

MULTISTATE BAR EXAM
Common law
Majority statutory rules
Model Penal Code

1.2 OVERVIEW: CRIMINAL LAW TOPICS

Essential Elements of Crimes
Act requirement
Mental state
Causation
Concurrence

Specific Crimes
Crimes against the person
Property crimes

Parties to Crime and Liability for the Conduct of

Others
Accomplice liability
Enterprise liability

Inchoate (“Incomplete”) Offenses

Solicitation
Conspiracy

1
 Criminal Law

NOTES
Attempt

Defenses
Insanity
Voluntary intoxication
Infancy
Mistake
Self-defense
Necessity
Duress
Entrapment

1.3 PRELIMINARY MATTERS

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.

HYPO 1A
Dudley, in California, fills out a false insurance claim
and mails it to Connecticut. In which state(s) can
Dudley be prosecuted for insurance fraud?

Burden of Proof
Elements of the crime: In a criminal case, the prosecu-
tion must prove each element of the crime beyond a
reasonable doubt.

Therefore, juries cannot be instructed to presume that

2
 Criminal Law

NOTES
the required mental state for the crime exists if they
find that the defendant committed the acts necessary
to establish the offense.

Classification of Crimes
Felony: A crime that may be punished by death or
imprisonment for more than one year.
Misdemeanor: A crime punishable by a fine and/or
imprisonment for no more than one year.

3
 Criminal Law

NOTES
2 THE ESSENTIAL ELEMENTS
OF CRIME

2.1 THE ACT REQUIREMENT

Culpable acts can be either “commissions” (physi-
cal acts) or “omissions” (the failure to act). We will
address both.

Physical Acts (“Commissions”)

All bodily movements are physical acts that can be the
basis for criminal liability, provided they are voluntary.
Involuntary movements that are not considered crimi-
nal “acts”:
• one that is not the product of the actor’s volition
(e.g., being pushed)
• sleepwalking or otherwise unconscious conduct
• a reflex or convulsion

“Omissions”
A failure to act can also be the basis for criminal liabili-
ty, provided three requirements are satisfied. (Remem-
ber: You need all three.)
*First and foremost, you need a legal duty to act,
which can be created in five different ways:
• by statute

EXAMPLES
Filing tax returns, professionals reporting child abuse

• by contract

4
 Criminal Law

NOTES

EXAMPLES
Babysitter, doctor, lifeguard

• by the status relationship between the defendant

and the victim

EXAMPLES
Most important for the Bar:

Parent to child

Spouse to spouse

• by the voluntary assumption of care

EXAMPLE
If the defendant starts rescuing the victim, the defendant
has a duty to follow through; he or she cannot abandon
the effort unreasonably, if the rescue effort was undertak-
en voluntarily.

• by creation of the peril

EXAMPLE
If the defendant caused the problem initially, he or she
has a duty to help.

Second, you need knowledge of the facts giving rise

to the duty.
Third, you need the ability to help.

5
 Criminal Law

NOTES
2.2 MENTAL STATES
Common Law Mental States
There are four common law mental states.

Mental State #1: Specific Intent

Definition: When the crime requires not just the desire
to do the act, but also the desire to achieve a specific
result.
The 11 Major Specific Intent Crimes:
• Assault
• First degree premeditated murder (statutory
crime)
• Larceny
• Embezzlement
• False pretenses
• Robbery
• Forgery
• Burglary
• Solicitation
• Conspiracy
• Attempt
*Defenses: There are two defenses that are available
only for specific intent crimes. They are:
• voluntary intoxication; and
• an unreasonable mistake of fact.

6
 Criminal Law

NOTES
Mental State #2: Malice
Definition: When a defendant acts intentionally or with
reckless disregard of an obvious or known risk.
Malice Crimes:
• murder
• arson

Mental State #3: General Intent

Definition: The defendant need only be generally
aware of the factors constituting the crime; he need
not intend a specific result.
(Note: The jury can usually infer the general intent
simply from the doing of the act.)
General Intent Crimes:
• battery
• forcible rape
• false imprisonment
• kidnapping

Mental State #4: Strict Liability

Definition: When the crime requires simply doing the
proscribed act; no mental state is needed.
Two Types of Strict Liability Crimes
(1) Public welfare offenses: Regulatory offenses that
implicate public health or safety and typically carry
small penalties.

7
 Criminal Law

NOTES

EXAMPLES
(bold-italicized elements are strict liability)

• Transferring unregistered firearms

• Selling contaminated food

• Shipping adulterated drugs in interstate commerce

(2) Statutory rape: Having sex with someone who is

under the age of consent.

Model Penal Code (MPC) Mental States

The Model Penal Code no longer uses the common
law mental states; instead, it uses five mental states,
defined as follows:
• Purpose: The defendant acts purposely when it is
his conscious desire to achieve a particular result.
(In other words, that is what the defendant wants to
do.)
• Knowledge: The defendant acts knowingly when
he is aware of what he is doing. With respect to a
result, the defendant acts knowingly when he is
aware that it is practically certain that his conduct
will cause that result.
• Recklessness: The defendant acts recklessly when
he is aware of a substantial and unjustifiable risk,
and consciously disregards that risk.
• Negligence: The defendant acts negligently when
he should have been aware of a substantial and
unjustifiable risk.
• Strict Liability: No mental state required (similar to
the common law).

8
 Criminal Law

NOTES
*Note: Because a number of states have adopted
these MPC mental state categories, you may encoun-
ter them in a hypothetical criminal statute on the MBE;
thus, it is useful to be familiar with them.

2.3 CAUSATION (TWO TYPES - YOU

NEED BOTH)
Actual (or “But For”) Causation
The Rule: A defendant is an actual cause (the “cause-
in-fact”) if the bad result would not have happened but
for the defendant’s conduct.

HYPO 2A
Victor is walking quickly down the street when
Dudley steps out of a doorway with a gun and
says “Stop right there! This is a stick-up.” Dudley
rummages through Victor’s pockets, takes Victor’s
wallet, and runs off. Victor is still standing in the
same spot moments later when he is struck by
lightning and killed.
Is Dudley an actual cause of Victor’s death?

Exception: An “accelerating” cause is an actual cause.

HYPO 2B
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 Victor’s death?

Proximate (or “Legal”) Causation

The Rule: A defendant is a proximate cause if the bad
result is a natural and probable consequence of the
defendant’s conduct.

9
 Criminal Law

NOTES
Special Applications:
• Intervening causes: The defendant will not be
considered a proximate cause if an unforeseeable
intervening event causes the bad result.
• Eggshell Victims: The defendant will be consid-
ered a proximate cause even if the victim’s pre-ex-
isting weakness contributed to the bad result.

HYPO 2C
Reconsider HYPO 2A, where Victor was killed by
lightning shortly after being robbed by Dudley.
Is Dudley a proximate cause of Victor’s death?
Is Dudley criminally liable for Victor’s death?

ACTIVITY
Dudley shoots Victor, but the wound is not fatal. Victor
is taken to the hospital, where a surgeon operates to
remove the bullet. As a result of a blood-clotting disor-
der, Victor dies on the operating table, due to exces-
sive blood loss.
Is Dudley a proximate cause of Victor’s death?

2.4 THE CONCURRENCE PRINCIPLE

The Rule: The defendant must have the required
mental state at the same time as he engages in the
culpable act.
Application: Concurrence issues arise most frequently
in two crimes:
• larceny; and
• burglary.
We will see how and why concurrence issues arise
when we discuss these crimes later in the lecture.

10
 Criminal Law

NOTES
3 HOMICIDE

3.1 MURDER (ALSO CALLED “COMMON

LAW MURDER”)
Definition
• causing the death
• of another person
• with malice aforethought

Mental State
The requirement of “malice aforethought” is satisfied
if the defendant has any of the following four mental
states:
• the intent to kill

EXAMPLE
Dudley points a gun at Victor, says: “I want to kill you.” He
then shoots and kills Victor.

• the intent to inflict serious bodily harm

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

• extreme recklessness, meaning reckless indiffer-

ence to human life (Many states call this type of
homicide “depraved heart murder.”)

11
 Criminal Law

NOTES

EXAMPLE
Dudley aims his pistol over Victor’s head and fires, intend-
ing to scare Victor. Unfortunately, the bullet hits Victor’s
head, killing him.

• the intent to commit an inherently dangerous felo-

ny (“felony murder”)

EXAMPLE
Dudley robs a bank. He points a gun at the teller. The gun
accidentally goes off, killing the teller.

“Intent to Kill” Murder: Special Rules

Deadly Weapon Rule
The intentional use of a deadly weapon permits the
inference of an intent to kill.
Note: A deadly weapon is typically defined as any in-
strument used in a manner likely to produce death or
serious bodily injury.

Transferred Intent (An MBE Favorite)

If a defendant intends to harm one victim, but acciden-
tally harms a different victim instead, the defendant’s
intent will transfer from the intended victim to the
actual victim.
Note: This rule applies most frequently to murder but
can also apply to other crimes, such as battery and
arson.

12
 Criminal Law

NOTES
HYPO 3A
Dudley shoots at Alex, intending to kill him. Alex
ducks, and Dudley’s bullet instead hits Victor, killing
him.
Is Dudley guilty of Victor’s murder?
Is Dudley guilty of any crime with respect to Alex?

The Exception: Transferred intent does not apply to

attempts, only to crimes with “completed harms.”

HYPO 3B
Dudley shoots at Alex, intending to kill him. Alex
ducks, and Dudley’s bullet instead hits Victor. Victor
is wounded, but does not die.
Is Dudley guilty of attempted murder of Alex?
Is Dudley guilty of attempted murder of Victor?

Statutory Variation - First Degree Murder

The homicide statutes of most states create two de-
grees of intentional murder, as follows:
• First Degree Murder: any intentional killing
committed with
• premeditation (the defendant thought about
it ahead of time), and
• deliberation (the defendant was cool, calm,
and collected)
• Second Degree Murder: All other intentional
murders (as well as depraved heart murder
and, where it still exists as a separate category
of homicide, intent-to-do-serious-bodily-harm
murder)

13
 Criminal Law

NOTES
Felony Murder
Definition: any killing caused during the commission
of or attempt to commit a felony.
Most common limitations on felony murder:
• The defendant must have committed the underly-
ing felony.
(If you have a defense to the felony, you have a
defense to felony murder.)
• The felony must be inherently dangerous.
(A number of states “enumerate” the felonies that
qualify for felony murder. In these states, the most
commonly included felonies are burglary, robbery,
rape, arson, and kidnapping.)
• The “merger” rule: The felony must be indepen-
dent of the killing.
(Therefore, for example, aggravated assault or bat-
tery cannot be the underlying crime.)
• “Res gestae” principles: The killing must take place
during the felony or during immediate flight from
the felony. Once the felon(s) reach a place of tem-
porary safety, the felony ends.
• The death must be foreseeable.
• The victim must not be a co-felon.
Vicarious Liability:
• “Proximate Cause” theory: In some states, if one
of the co-felons proximately causes the victim’s
death, all of the other co-felons will be guilty of fel-
ony murder, even if the actual killing is committed
by a third party (e.g., a police officer).

14
 Criminal Law

NOTES
• “Agency” theory: In other states, however, the
felony murder doctrine applies only if the killing is
committed by one of the co-felons.

ACTIVITY
Dumb and Dumber rob a bank. Dumber sits outside
in the getaway car, while Dumb goes into the bank,
points a gun at the teller, and says: “This is a stick up.”
In the following scenarios, indicate who, if anyone, is
guilty of felony murder.
(1) Dumb’s gun goes off accidentally and kills the teller.
(2) A security guard fires his weapon at Dumb, but the
bullet strikes and kills the teller instead.
“Proximate cause” theory:
“Agency” theory:
(3) The teller gives Dumb a bag of money, and Dumb
runs outside and jumps into the getaway car. As
Dumber speeds away, the getaway car collides with
a police car racing to the scene. Both Dumb and the
officer are pronounced dead at the scene from injuries
sustained in the accident.
With respect to the officer?
With respect to Dumb?
(4) One hour after arriving at their secret hideout, Dumb
drives to Starbucks for coffee. En route, he runs a red
light and kills a pedestrian lawfully crossing the street.

3.2 VOLUNTARY MANSLAUGHTER

Definition
• A killing that would otherwise be murder
• committed in the heat of passion
• upon adequate provocation

15
 Criminal Law

NOTES
Core Requirements
To qualify for voluntary manslaughter, the provocation
must satisfy four requirements:
• The provocation must be objectively adequate,
which means it would arouse a sudden and intense
passion in the mind of a reasonable person.

EXAMPLES
serious assault or battery

presently witnessed adultery

• The defendant was actually provoked.

• The defendant did not have time to cool off.
• The defendant did not actually cool off between
the provocation and the killing.

3.3 INVOLUNTARY MANSLAUGHTER

Common Law - Two types:
A killing committed during the commission of a crime
to which the felony murder doctrine does not apply.
(This is sometimes called “misdemeanor manslaugh-
ter” or “unlawful act manslaughter.”)
An unintentional killing committed:
• Common law: with criminal negligence (i.e., a
gross deviation from a reasonable standard of
care)
• MPC/Modern trend: recklessly (i.e., awareness and
conscious disregard of a substantial and unjustifi-
able risk of death)

16
 Criminal Law

NOTES
4 OTHER CRIMES AGAINST
THE PERSON

4.1 BATTERY
• The unlawful application of force to another,
• resulting in either
1) physical injury or
2) an offensive touching
Mental state: general intent

4.2 ASSAULT (TWO TYPES)

Version #1: attempted battery (a swing and a miss)
Version #2 (“reasonable apprehension”)
• The intentional creation
• other than by mere words
• of a reasonable apprehension in the mind of the
victim
• of imminent bodily harm (a fake punch).
Mental state: specific intent

4.3 FALSE IMPRISONMENT

• The unlawful confinement of a person
• without his or her consent
Mental state: general intent

17
 Criminal Law

NOTES
4.4 KIDNAPPING
• False imprisonment that involves either
(1) moving the victim, or
(2) secluding the victim in a secret place.
Mental state: general intent

4.5 FORCIBLE RAPE

• Sexual intercourse
• without the victim’s consent
• accomplished
(1) by force, or
(2) by threat of force, or
(3) when the victim is unconscious.
Mental state: general intent

4.6 STATUTORY RAPE

• Sexual intercourse
• with someone under the age of consent.
Mental state:
1) Majority rule: strict liability
2) MPC/Minority rule: a reasonable mistake of age is
a defense.

18
 Criminal Law

NOTES
5 OFFENSES AGAINST
PROPERTY AND THE
HABITATION
5.1 LARCENY
Definition
Mnemonic: “Thieves Took Carmen’s Purse And Isaac’s
Passport.”
• Trespassory
• taking and
• carrying away the
• personal property
• of another, with the
• intent to
• permanently retain the property.

“Trespassory”
wrongful or unlawful

“Taking and Carrying Away”

The property must be moved (the “asportation” re-
quirement).

“The Personal Property of Another”

Key question: Who had lawful custody at the time of
the taking?
If D has lawful custody of the property, he cannot be
guilty of larceny for taking it (even if D doesn’t own it).
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.

19
 Criminal Law

NOTES
“With the Intent to Permanently Retain the Property”
If the defendant intends to give the property back, the
taking lacks the intent to steal that is necessary for
larceny.

The Erroneous Takings Rule

A taking under a claim of right is never larceny, even if
the defendant erroneously believes the property is his.

HYPO 5A
Is Dudley guilty of larceny?
(1) Dudley takes Victor’s cell phone from Victor’s
bag without Victor’s permission, planning to return
the cell phone once he’s finished using it.
(2) Dudley leases his car to Victor for a one-year
term. Two months into the one-year lease, Dudley
has a change of heart and takes the car back
without Victor’s permission, intentionally violating
the lease agreement.
(3) Dudley takes Victor’s laptop, mistakenly
believing that the laptop is his.

“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 “contin-
ued” and he will be guilty of larceny.
Note: This doctrine creates an exception to the “con-
currence” principle.

20
 Criminal Law

NOTES
HYPO 5B
Dudley takes Victor’s cell phone from Victor’s bag
without Victor’s permission, planning to return the
cell phone once he’s finished with it. After using
it, however, Dudley decides that Victor’s phone is
so nice, he’s going to keep it. Is Dudley guilty of
larceny?

5.2 EMBEZZLEMENT
Definition
Conversion of the personal property of another by a
person already in lawful possession of that property,
with the intent to defraud

Mental State
The specific intent to defraud
Note: If the defendant intends to give the exact prop-
erty back in the exact form, he will not have the intent
to defraud.

Key Difference from Larceny

To constitute embezzlement, a D must have lawful
possession of the property that he misappropriates.

Possession vs. Custody

Possession involves more than mere custody. It re-
quires the authority to exercise some discretion over
the property.

21
 Criminal Law

NOTES
ACTIVITY
Have the following defendants committed larceny,
embezzlement, or neither?
(1) A trustee siphons off trust money and donates the
money to her favorite charity.
(2) A bank security guard wrongfully takes $1,000 from
the bank’s vault.
(3) The curator of an art museum sells a $50,000
painting entrusted to his care without asking the own-
er’s permission. The curator intends to buy the paint-
ing back, after doubling the $50,000 from the sale by
playing blackjack in Las Vegas. Unfortunately, he loses
all the money.

5.3 FALSE PRETENSES

Definition
Obtaining title to the personal property of another by
a false statement made knowingly, with the intent to
defraud.

Key Difference from Larceny

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

HYPO 5C
Is Dudley guilty of false pretenses?
Dudley says to Victor: “If you give me your cell
phone, I will write you a $100 check on my new
checking account, which has a balance of $1000
today.” Dudley knows that the checking account is
empty. Victor agrees to the deal and gives Dudley
the cell phone in return for a $100 check.

22
 Criminal Law

NOTES
5.4 LARCENY BY TRICK DISTINGUISHED
If the defendant obtains only custody (not title) as a
result of the false statement, the crime is “larceny by
trick,” not false pretenses.

HYPO 5D
Is Dudley guilty of larceny by trick or false
pretenses?
Dudley says to Victor: “If you give me unrestricted
use of your cell phone, I will write you a $500 check
on my new checking account.” Dudley knows that
the checking account is empty. Victor agrees to the
deal and Dudley writes him a check for $500.

5.5 ROBBERY (“LARCENY + 2”)

• a larceny
• from someone else’s person or presence
• by force or threat of immediate injury

Mental State
The specific intent to steal

“Presence”
Some location reasonably close to the victim, e.g.,
rooms in a house other than the room in which the
victim is located

“Force”
Any amount of force sufficient to overcome resistance
is sufficient.
Snatching a chain off the victim’s neck?
Snatching a handbag off a woman’s extended arm?
Picking a man’s pocket?

23
 Criminal Law

NOTES
Threats
Need immediate injury (”Your money or your life”)
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.

EXAMPLE
“Give me your money, or I’ll post those pictures of you on
the web!”

5.6 FORGERY
• Making or altering a writing
• so that it is false
Mental state: ...with the specific intent to defraud.

HYPO 5E
Needing $100 fast, Dudley takes Victor’s
checkbook, writes out a $100 check to himself, and
signs Victor’s name to the check.
Has Dudley committed forgery?
What if Dudley cashes the check?

5.7 MODERN STATUTORY APPROACHES

TO THEFT OFFENSES
Consolidation
The MPC and most states have consolidated the com-
mon law property crimes of larceny, embezzlement,
false pretenses, and larceny by trick into a single
offense typically known as theft.

24
 Criminal Law

NOTES
Grading
Under these statutory approaches, the seriousness
of the offense will be determined by the value of the
property taken.

5.8 BURGLARY
Common Law Burglary
Breaking and entering the dwelling of another at night
with the intent to commit a felony inside

“Breaking”
Creating or enlarging an opening by at least minimal
force
Includes: breaking a window, opening a window,
opening a door
Does not include: climbing through an already open
window, entering with permission
“Constructive” breaking: Entry is gained through
fraud, threats, or intimidation.

EXAMPLE
A woman obtains the 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 television, which she does.
Because she gained entry to the apartment by fraud, this
is a constructive breaking.

“Entry”
Some part of the defendant’s body must enter the
building.

25
 Criminal Law

NOTES
“Dwelling”
A structure where someone regularly sleeps

“Of Another”
You can’t burglarize your own house.

“At Night”
Self-explanatory. (Look for clues: “The sun having set
…”)

“Intent to Commit a Felony Inside”

Specific intent (intent to steal, rob, rape, assault, kill,
etc.)

Modern Statutory Changes

Many states have eliminated the technical require-
ments of common law burglary, especially the “break-
ing,” “dwelling” and “nighttime” elements.

HYPO 5F
Is Dudley guilty of common law burglary?
(1) Dudley covets the new flat-screen television
purchased by his neighbor, Victor. Knowing Victor is
a sound sleeper, Dudley breaks into Victor’s house
at midnight to steal the TV.
(2) Dudley is homeless. One frigid night in January,
he breaks into Victor’s home to get warm. As he
is leaving 30 minutes later, Dudley sees Victor’s
laptop and decides to steal it. He grabs the laptop
and hides it inside his jacket as he exits.

26
 Criminal Law

NOTES
5.9 ARSON
Common Law Arson
Definition
The malicious burning of the dwelling of another.

State of Mind
Malice

“Burning”
Requires material wasting (“scorching” is not enough,
but “charring” is); and
It must be the building itself that burns (not the carpet,
for example).

Modern Statutory Changes

Arson has been extended in most states and under
the Model Penal Code to structures other than dwell-
ings and to damage caused by explosion (not merely
fire).

5.10 POSSESSION OF CONTRABAND

Required Act
When a statute criminalizes the possession of contra-
band (e.g., drugs, stolen property, child pornography),
“possession” means control for a period of time long
enough to have an opportunity to terminate posses-
sion.
“Constructive Possession”: The contraband need not
be in the defendant’s actual possession, so long as
it is close enough for him to exercise dominion and
control over it.

27
 Criminal Law

NOTES

EXAMPLE
“Middleman” in drug trafficking ring who never touches
the contraband

Mental State
Knowledge (of the possession and of the character the
item possessed)

5.11 RECEIPT OF STOLEN PROPERTY

Required Acts
• Receiving possession and control
• of stolen personal property.
Note: Stolen property recovered by the police and
used in an undercover sting operation is not “stolen”
property for purposes of this crime; the property must
have “stolen” status at the time it is received by the
defendant.

Mental State
• Knowing that the property has been obtained crim-
inally by another party; and
• with the intent to permanently deprive the owner
of his interest in the property.

28
 Criminal Law

NOTES
6 ACCOMPLICE LIABILITY

6.1 PARTIES TO A CRIME: PRINCIPALS

AND THEIR ACCOMPLICES
The person who commits the crime is called the prin-
cipal.
The person who helps is called the accomplice.

What Does an Accomplice Do?

Aids or encourages the principal

Mental State
The intent to assist the principal and the intent that the
underlying crime be committed.

Recklessness and Negligence Crimes

If the principal’s crime requires a mental state of
recklessness or criminal (i.e., gross) negligence, most
jurisdictions hold an accomplice liable for intention-
al conduct that aids the principal and manifests the
required recklessness or negligence.

EXAMPLE
Mary gives Bill her car keys to drive home, knowing that
Bill is intoxicated. On his way home, Bill causes an ac-
cident that kills the driver of the other vehicle. If Bill is
found guilty of involuntary manslaughter in a jurisdiction
that requires criminal negligence, Mary would also be li-
able if the jury found that her intentional act of giving Bill
her car keys, knowing that he was drunk, demonstrated
criminal negligence because she should have been aware
that doing so created a substantial risk of death to others.

29
 Criminal Law

NOTES
6.2 SCOPE OF ACCOMPLICE LIABILITY
The Rule
The accomplice is guilty of:
• all crimes that he aided or encouraged ( just as if
he did it), and
• all other foreseeable crimes committed along with
the aided crime.

When a Person is NOT an Accomplice

Two important principles:
Mere presence at the scene of the crime does not
make someone an accomplice; he or she must actively
aid or encourage the principal.
Mere knowledge of the crime does not make some-
one an accomplice; he must intend to aid or encour-
age the principal.

ACTIVITY
Frank, Brendan, and Tom were sitting in a parked car
behind a liquor store in Collegetown. They were drink-
ing beer and talking when Frank decided to break
into the store to replenish their supplies. Although
Brendan and Tom did not take Frank seriously when
he announced his intention and left the car, they be-
came suspicious when Frank called Brendan to “come
quick.” When Brendan approached Frank, Frank asked
him for a boost so he (Frank) could reach a plate-glass
window 8 feet above the ground. Brendan complied.
Once elevated by Brendan, Frank broke the window
with a large rock. He then climbed through it and
entered the store. Frank emerged minutes later with a
case of beer, which they all shared. Was Tom an ac-
complice to burglary?

30
 Criminal Law

NOTES
Withdrawal
Common Law: An accomplice can avoid criminal
liability by withdrawing before the crime is committed.
What he must do to withdraw depends on how he
assisted the principal:

Encourager
An accomplice who only “encouraged” the principal
may withdraw simply by repudiating the encourage-
ment before the crime is committed.

HYPO 6A
Penny complains to her friend Dudley that she is
short on money. Dudley responds, “I know just the
opportunity for you. The drug dealer who used
to operate at the corner of Center and Main was
arrested yesterday. Why don’t you set up shop
there and start selling drugs?” If Penny takes his
advice and starts selling drugs, Dudley will be guilty
as Penny’s accomplice.
What must Dudley do to avoid criminal liability?

Aider
An accomplice who actually helped the principal must
either neutralize the assistance or otherwise prevent
the crime from happening (by notifying the authorities,
for example).

HYPO 6B
What if, in addition to advising Penny to sell drugs,
Dudley also gave her a supply of small plastic
baggies, a stamp to brand the baggies with a
trademark, and an untraceable cell phone?
What must Dudley do now to avoid liability as an
accomplice to drug dealing?

31
 Criminal Law

NOTES
6.3 ACCESSORY AFTER THE FACT
The Common Law Approach
To commit the separate common law offense of being
an “accessory after the fact,” a defendant must:
• help a principal who has committed a felony
• with knowledge that the crime has been commit-
ted, and
• with the intent to help the principal avoid arrest or
conviction.

Modern Approaches
In many jurisdictions, common law accessories after
the fact commit separate statutory crimes, e.g., “ob-
struction of justice,” “harboring a fugitive,” or “hinder-
ing prosecution.”

6.4 ENTERPRISE LIABILITY:

CORPORATIONS AND THEIR AGENTS
General Rule
When a corporate agent engages in criminal conduct,
the corporation and the agent may be held criminally
liable, provided the agent is acting:
• on behalf of the corporation; and
• within the scope of his or her office.

“Public Welfare” Offenses

When a corporation commits a regulatory offense
involving public health or safety, its agents can also
be held criminally liable, provided the agents stand in
“responsible relation to the situation” that created a
public danger.

32
 Criminal Law

NOTES

EXAMPLE
Where unsanitary conditions persisted at the warehouse
of a national food store chain, it was appropriate to find
both the corporation (Acme Markets, Inc.) and its Presi-
dent criminally responsible for violations of the Federal
Food, Drug and Cosmetic Act. The company President,
by virtue of his position, had the authority to address
the “situation,” i.e., unsanitary conditions that exposed
warehoused food to rodent infestation and other health
hazards.

33
 Criminal Law

NOTES
7 INCHOATE OFFENSES

7.1 SOLICITATION
Definition: Asking someone to commit a crime, with
the intent that the crime be committed.
Mental State: Specific intent
Completion Unnecessary: The crime is in the asking.
(Note: It doesn’t matter whether the other person
agrees or whether the crime is actually committed.)

7.2 CONSPIRACY
Required Acts
An agreement between two or more people to commit
a crime, plus an overt act in furtherance of the crime.

Agreement
Need not be “express”; can be proved by conduct—
that is, a “concert of action” towards a common goal.

Overt Act
Any act, even if merely preparatory, is sufficient, and
it may be performed by any of the co-conspirators.
(Traditionally, the common law did not require an overt
act, but most states now do.)

Mental State
The specific intent to do two things:
• enter into an agreement; and
• accomplish the objective(s) of the conspiracy.

34
 Criminal Law

NOTES
Completion Unnecessary
The “essence” of the crime of conspiracy is the agree-
ment; completion of the conspiratorial objective is
unnecessary for conviction.

Can You Have a One-Person Conspiracy?

Common Law Rule: NO
The “Bilateral” Approach: There must be at least two
guilty minds, both of whom actually agree to accom-
plish the conspiracy’s objectives.
Related Rule: If all other parties to the agreement are
acquitted, the last remaining defendant cannot be
convicted.

Model Penal Code Rule: YES

Under the “unilateral” approach, a defendant may be
guilty of conspiracy even if the other parties are ac-
quitted or were just pretending to agree.

HYPO 7A
Dudley and Donnie agree to kill Victor, Dudley’s
business partner. Unbeknownst to Dudley, Donnie
is actually an undercover police agent. Dudley
is arrested while he is preparing to kill Victor. Is
Dudley guilty of conspiracy to commit murder?
Common law rule?
Model Penal Code rule?

Wharton Rule
When two or more people are necessary for the com-
mission of the substantive offense, there is no conspir-
acy unless more parties participate in the agreement
than are necessary for the crime.

35
 Criminal Law

NOTES
HYPO 7B
Dudley and Alex agree to meet at dawn to engage
in a duel, which is unlawful in this jurisdiction.
Officer Victor finds out about the plan and arrives
the next morning just after Dudley and Alex have
begun the duel. They are charged with dueling and
conspiracy to engage in a duel. Do they have a
defense to the conspiracy charge?

Vicarious (“Pinkerton”) Liability

In addition to conspiracy, a defendant will be liable for
other crimes committed by his co-conspirators, so long
as those crimes:
• were committed in furtherance of the conspiracy’s
objective(s), and
• were foreseeable.

HYPO 7C
Dudley and Alex agree to rob a bank. As they are
making their preparations, Alex says, “I’ll go steal a
gun that we can use when we rob the bank.” That
night, Alex breaks into Victor’s house and steals
Victor’s gun. Dudley and Alex later use the gun
to rob the bank. Of what crimes may Dudley be
convicted?

Impossibility
Impossibility is not a defense to a charge of conspiracy.

EXAMPLE
Dudley and Alex agree to kill Victor. When they arrive at
Victor’s house, they find that he is already dead. Dudley
and Alex can still be convicted of conspiracy to commit
murder.

36
 Criminal Law

NOTES
7.3 ATTEMPT
Required Acts
General Requirement
Unlike conspiracy, attempt requires an overt act be-
yond mere preparation.

Common Law “Proximity” Test (better for defendant)

The defendant must engage in conduct that gets dan-
gerously close to the commission of the crime.

Majority/MPC “Substantial Step” Test (better for

prosecution)
The defendant must engage in conduct that consti-
tutes a substantial step towards the commission of the
crime, provided that conduct strongly corroborates the
actor’s criminal purpose.

HYPO 7D
Dudley wants to kill Victor. His plan is to shoot
Victor as Victor is walking home from work. At what
point has Dudley engaged in enough conduct to be
guilty of attempted murder?
(1) Dudley buys an untraceable gun from an illegal
gun dealer ….
Common Law:
Majority/MPC:
(2) Dudley takes the loaded gun and drives along
the route that Victor typically uses when he walks
home from work, but he can’t find Victor ….
Common Law:
Majority/MPC:

37
 Criminal Law

NOTES
(3) Two days later, Dudley tries again. This time,
he sees Victor walking down the street. As Dudley
raises the gun, Officer Alex tackles him, which
causes Dudley to lose hold of the gun.
Common Law:
Majority/MPC:

Mental State
The Rule
Attempt requires the specific intent to commit the un-
derlying crime.

Unintentional Crimes
You cannot attempt unintentional crimes, since you
cannot intend to do something unintentional. Practi-
cally speaking, this means that there are no attempt
versions of:
• recklessness crimes, or
• negligence crimes, or
• felony murder.

HYPO 7E
In need of money, Dudley takes Alice’s checkbook
out of her purse when she is not looking. He writes
a check for $100, payable to “cash,” and has just
begun signing Alice’s name to the check when he is
arrested. Is Dudley guilty of attempted forgery?

38
 Criminal Law

NOTES
HYPO 7F
Wanting to scare Victor, Dudley fires a bullet in his
direction, aiming at a trash can six feet away from
Victor. A poor shot, Dudley misses the target and
the bullet strikes Victor’s shoulder, leaving him
permanently disabled. Is Dudley guilty of attempted
involuntary manslaughter?

7.4 INCHOATE OFFENSE DOCTRINES

Withdrawal/Renunciation/Abandonment
What happens when a solicitor, co-conspirator, or at-
tempter changes his mind?

General Rule
Withdrawal is not a defense.

*Exception
Once a defendant withdraws from a conspiracy he will
no longer be vicariously liable for crimes committed by
his co-conspirators after he left the conspiracy.
However, the defendant is still guilty of conspiracy
and of all foreseeable crimes committed by his co-con-
spirators prior to his withdrawal.

HYPO 7G
On January 1, Dudley conspires with Victor and
Alex to sell drugs to students at Setonia University.
On January 8, Victor sells drugs to Alice, a Setonia
student. On January 12, Dudley withdraws from
the conspiracy. On January 14, Alex sells drugs to
another Setonia student, Connie. Dudley is arrested
on January 21.
For what crimes is Dudley criminally responsible?

39
 Criminal Law

NOTES
Model Penal Code: Abandonment is a defense to
attempt, provided it is complete and voluntary. This
means that the defendant’s change of heart cannot
be motivated by the risk of apprehension, difficulty
in completing the crime, or postponement to a more
advantageous time.

Merger Rules for Inchoate Offenses

Solicitation and attempt merge with the completed
crime.
*Conspiracy does not merge. (A Bar favorite!)

7.5 INCHOATE OFFENSES: REVIEW

ACTIVITY
Dudley wants to kill Victor but thinks he needs some
help. He decides, therefore, to recruit a partner in
crime.
(1) Is Dudley guilty of a crime?
Dudley asks his friend Alex to help him kill Victor.
(2) Dudley is now guilty of:
Alex says, “Sure.” Dudley then shows Alex a photo of
the gun he wants to use in the killing. Alex takes the
photo and agrees to procure the weapon for Dudley.
(3) Dudley is now guilty of:
Armed with the gun Alex has given him, Dudley hides
in the bushes outside Victor’s house waiting for Victor
to come home from work. When Victor arrives, how-
ever, he is accompanied by a bodyguard, so Dudley
decides to wait.
(4) Dudley is now guilty of:
Dudley returns the next day and kills Victor.

40
 Criminal Law

NOTES
(5) Dudley is now guilty of:
(6) Is Dudley still guilty of solicitation?
(7) Is Dudley still guilty of attempt?
(8) Is Dudley still guilty of conspiracy?

41
 Criminal Law

NOTES
8 DEFENSES

8.1 CAPACITY DEFENSES

Insanity
The first requirement for the insanity defense is that
the defendant must have a mental disease or defect.
Most jurisdictions use one of two major tests to de-
termine whether the mental disease or defect renders
the defendant legally insane:
M’Naghten Test (majority test - purely cognitive)
The defendant must prove that he either:
• did not know that his conduct was wrong, or
• did not understand the nature of his conduct.
MPC Test (used in roughly 25% of the states - cogni-
tive or volitional)
Defendant must establish that he lacked substantial
capacity to either:
• appreciate the criminality of his conduct, or
• conform his conduct to the requirements of law.

Distinguishing Insanity from Incompetency

Insanity: The issue is whether the D was insane at the
time of the crime. If he was, the D is not guilty by rea-
son of insanity.
Incompetency: The issue is whether, at the time of
trial, the D cannot either:
• understand the nature of the proceedings
against him; or

42
 Criminal Law

NOTES
• assist his lawyer in the preparation of his de-
fense.
If either is established, trial is postponed until the D
regains competency.

Voluntary Intoxication (self-induced)

(commonly tested on MBE)
Common law approach:
Can be a defense to specific intent crimes only.
Cannot, therefore, be a defense to malice, general
intent, or strict liability crimes.
The defense of intoxication generally requires such
severe “prostration of the faculties” that the defendant
cannot form the requisite specific intent.

HYPO 8A
Dudley and his friend, Pyro, are sitting around
drinking beer one night at Dudley’s house. After
polishing off their fifth six-pack, they decide that
it would be fun to create a big bonfire by torching
the empty barn next door. They grab some lighter
fluid and matches from the garage and stumble
out the door. One hour later, the duo is arrested as
they stare transfixed at the towering inferno they
created.
Can Dudley and Pyro plead intoxication as a
defense to the following crimes?
(1) Conspiracy to commit arson?
(2) Arson?

43
 Criminal Law

NOTES
Infancy
Common law (“Rule of Sevens”)
If, at the time of crime, the D’s age is less than seven,
prosecution is not allowed.
If, at the time of crime, the D’s age is less than four-
teen, there is a rebuttable presumption against prose-
cution.
If, at the time of crime, the D’s age is fourteen or older,
prosecution is allowed.

8.2 OTHER DEFENSES

Mistake
Mistake of Fact
Common Law Approach: Whether a defendant’s
mistake of fact will be a defense depends upon the
mental state for the crime and whether the mistake is
reasonable or unreasonable.
Accordingly, if the mental state for the crime is:
• specific intent, any mistake of fact (even an
unreasonable one) will be a defense.
• malice or general intent, only a reasonable mis-
take of fact will be a defense.
• strict liability, mistake of fact will never be a
defense.
Common Law redux: Therefore:
• A reasonable mistake of fact will be a defense
to any crime, except a crime of strict liability.
• An unreasonable mistake of fact will be a de-
fense only to specific intent crimes.

44
 Criminal Law

NOTES
Mistake of Law
Common Law Rule: Mistake of law is generally not a
defense.
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”).

Self-Defense (Justification)
Deadly vs. Nondeadly Force
Common examples of nondeadly force: shoves and
punches
Common examples of deadly force: guns and knives

The Rule for Use of Nondeadly Force

An individual may use nondeadly force in self-defense
if he is without fault and
• reasonably believes that doing so is necessary
• to protect himself from the imminent use
• of unlawful force upon himself.

The Rule for Use of Deadly Force

An individual can use deadly force in self-defense only
if he is confronted with unlawful force, is without fault,
and reasonably believes he is facing an imminent
threat of death or serious bodily harm.

Two Complications for the Use of Force in Self-

Defense
The “Initial Aggressor” Rule: A defendant may not
use force in self-defense if he is the initial aggressor –
that is, the person who started the fight. But, the initial
aggressor can “regain” his right to use force in self-de-
fense if:

45
 Criminal Law

NOTES
• he withdraws from the fight and communicates
that withdrawal to the other person; or
• the victim suddenly escalates a nondeadly fight
into a deadly one.

HYPO 8B
Dudley punches Victor in the nose. In response,
Victor pulls out a knife and runs at Dudley. Just
before Victor is able to stab Dudley, Dudley pulls
out a gun and shoots Victor, killing him. Will Dudley
be able to plead self-defense under these facts?

The Retreat Rule: In some states, a defendant is re-

quired to retreat before using deadly force in self-de-
fense.
• Majority rule: Retreat is not required.
• Minority rule: Retreat is required unless:
D cannot retreat in complete safety, or
D is in his home (the “castle exception”).

Reasonableness and Mistake

What happens if D is mistaken about the need to use
unlawful force in self-defense?
Reasonable mistake: complete defense
Unreasonable mistake:
• Majority rule: no defense at all
• Minority/MPC rule: mitigates, but does not
exonerate
“Imperfect Self-Defense”: An unreasonable
belief in the need to use deadly force in self-de-
fense will mitigate murder to (voluntary) man-
slaughter.

46
 Criminal Law

NOTES
ACTIVITY
Dudley is walking down a dark street, late at night,
by himself. Suddenly, Victor appears out of a door-
way and walks quickly toward Dudley. Dudley starts
to get nervous and asks Victor what he wants. Victor
doesn’t respond but, instead, reaches for his waist-
band. Dudley is afraid that Victor is about to pull out a
gun; therefore, Dudley pulls out his own gun and fires,
killing Victor. It turns out that Victor was just reaching
for his wallet.
Is Dudley guilty of a homicide offense?

Use of Force to Prevent a Crime

Nondeadly force may be used, if reasonably neces-
sary, to prevent any serious breach of the peace.
Deadly force may only be used to prevent a felony
risking human life.

Defense of Others
A defendant may use force, even deadly force, to pro-
tect others just the same as he could use it to defend
himself.

Defense of Property
General Rule: Deadly force may not be used to de-
fend property.

Use of Deadly Force by Law Enforcement

An officer may use deadly force only when doing so is
reasonable under the circumstances.

47
 Criminal Law

NOTES
Compare:
It was unreasonable for an officer 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. (Tennessee v.
Garner, 471 U.S. 1 (1985))
Because the suspect’s 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 suspect’s vehicle
and thereby causing the suspect’s car to crash. (Scott
v. Harris, 550 U.S. 372 (2007))

Necessity (Justification)
The Rule: Conduct that is otherwise criminal is justi-
fiable if the defendant reasonably believed that the
conduct was necessary to prevent a greater harm.

EXAMPLE
Dudley creates a firewall to prevent rapidly approaching
wildfires from consuming an apartment building that
houses physically disabled persons. In so doing, he redi-
rects the fire to an empty warehouse, which burns to the
ground. Necessity provides a complete defense to Dudley’s
criminal responsibility for the destruction of property that
resulted from his actions.

Limitations
The defense of necessity is unavailable if:
• D causes the death of another person to pro-
tect property, or
• D is at fault in creating the situation that creates
a choice of evils.

48
 Criminal Law

NOTES
Duress
The Rule: It is a defense to criminal conduct if the de-
fendant was coerced to commit a crime because of a
threat, from another person, of imminent death or seri-
ous bodily injury to himself or a close family member.

EXAMPLE
Dudley jumps into Alice’s car, points a gun at her head
and tells her that he will kill her unless she helps him rob
the bank across the street. If Alice helps Dudley rob the
bank, duress provides a complete defense to any robbery
charges filed against her.

Limitation
Duress cannot be a defense to intentional homicide.

Entrapment (very narrow defense)

If a defendant believes that the government unfairly
tempted him to commit a crime, he may claim entrapment.

Majority Test (Subjective)

To prevail on the defense, the defendant must prove
that:
• the criminal design originated with the govern-
ment, and
• *he was not predisposed to commit the crime
prior to initial contact by the government.

Minority Test (Objective)

To prevail on the defense, the defendant must prove
that police activity was reasonably likely to cause an
innocent person to commit the crime in question.
Under this approach, the predisposition of the defen-
dant is irrelevant.

49