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Criminal Law Checklist

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On the exam, write the answer like this:

Can D be liable as principal?
o Actus Rea: a voluntary act/omission that causes some harm
 Voluntariness
 Act (D’s existence makes a difference in the outcome)
 Thoughts alone not punishable – MPC 2.01(1)
 Discrepancy over time-framing
 Discrepancy over how many of the acts (if in a sequence) must be voluntary
 Omission (things go the way they would go if D wasn’t there)
 Is there a legal duty to act?
 Bad Samaritan Rule – MPC 2.01(3)
 Causation
 But-for cause – 2.03(1)(a)
 All causes (if there are multiple) can be held liable (think of 2-shooter case)
 Foreseeability – ordinary person would understand action would cause the result


Risk produced must be risk for which D negligent in the first place
Malleable:
 Describe risks broadly & they seem foreseeable.
 Describe risks narrowly & they don’t

Exceptions:
 Thin Skull– foreseeability not relevant to victim’s vulnerability
 Transferred Intent– intended harm to unintended victim - 2.03(2)(a)
 Bizarre Omission - extraordinary event preventing help does not
break chain of causation
Voluntary Intervening Human Actions – MPC does not address
 Unclear/controversial elements include:
 Suicide
 3rd party victims
 Impaired “voluntariness” (coercion, deception)
Mens Rea: D must have appropriate mental culpability
 Which culpability is necessary? – MPC 2.02
 Four Culpabilities:
 Purpose (Specific/General intent) – intends conduct to cause harm
 Conditional intent counts unless condition negates harm – 2.02(6)
 Knowledge – awareness that conduct will cause harm
 Recklessness – disregard for risk of harm
 Negligence - gross deviation from care of a reasonably prudent person
 If statute mentions culpability for 1 element, assume it applies throughout-2.02(4)
 No defense if D would have been guilty if circumstances were as he thought – 2.04(2)
 If statute silent, recklessness + is enough. – 2.02(3)
 If statute is ambiguous, the court has to guess. - 2.02(4)
 Mistake of Fact
 Common Law:
 Moral Wrong – if an act itself is morally wrong, MoF is no excuse
 Lesser Crime – D runs risk of committing bigger crime than he means to
 MPC: MoF is a defense when it negates culpability/constitutes a defense - 2.04(1)
 If statute requires purpose/knowledge: honest (reasonable/unreasonable)
mistake may negate MR
 If statute requires recklessness: MR negated by reasonable/negligent mistake
 If statute requires negligence: MR negated by reasonable mistake
 Common situations:
 Sexual Abuse
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o
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Employers & Employees
Parents
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o
Mistake of Law
 Not a defense unless it negates culpability or statute says it’s a defense - 2.02(9)
 Exceptions: 2.04(3)
 Reasonable Reliance – 2.04(3)(b)
 Collateral Civil Law Exception – 2.02(9)
 If D is unaware of a collateral civil law, it is treated like MoF
 Statutory Exception – 2.04(1)(b)
 Lack of Fair Notice – 2.04(3)(a)
Specific Defenses:
 Involuntariness – MPC 2.04(1)

Can D be liable as an accomplice? – doesn’t commit the felony, but aids/abets principal in crime - 2.06
o Actus Rea – Assists person for purpose of committing a crime; no causation necessary
 Physical conduct
 Psychological influence (encouragement)
 Omission (assuming the omitter has a duty to act)
o Mens Rea – specific intent; purpose generally required EXCEPT:
 Result crimes
 Felony-murder
 Strict liability crimes

Can D be liable as a conspirator?
o Mens Rea: Agreement to commit a crime as a group; purpose - 5.03(1)
o Actus Rea: Preparation for the crime
 Knowledge of all aspects of the crime is not necessary; just the essential nature
 Overt Act Requirement – 5.03(5)
o Pinkerton Doctrine - can be guilty of conspiracy & completed crime (MPC rejects this).
 Liability if criminal act:
 Falls within scope of conspiracy
 Is a foreseeable consequence of the unlawful agreement
 No overt act requirement; an agreement is all that is necessary
 Abandonment NOT a common law defense
o Specific Defense:
 Abandonment – must voluntarily renounce & negate– 5.03(6)

Is there Strict Liability?
o Violations (i.e., you owe a fine) – 2.05
o Statutorily-imposed strict liability - 2.05

Can D be liable for an attempt (crime not completed)? – 5.05(1)
o Actus Rea – preparation; no clear line as to when an attempt becomes a complete crime – 5.01
 Last Act Test - did D do everything they could have done to achieve their goal?
 Dangerous Proximity Test – D goes some % of the way toward committing crime
 Unequivocal Act Test – D does everything possible to commit crime, but something happens
outside of D’s control so that crime doesn’t happen
o Mens Rea – purpose or knowledge – 5.01(1)(b)
o Specific Defenses:
 Abandonment – must be voluntary 5.01(4)
 Impossibility
 Factual – look at culpability from D’s perspective (need purpose)
 Legal – mistakes about law don’t get you into/out of trouble
 Inherent – so off the mark that you can’t be liable
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
Does D have a defense?
o Defensive Force – 3.04
 Must reasonably believe the threat is imminent
 If someone is acting in self-defense, you’re allowed to help them – 3.05
 Force not justified:
 To resist arrest
 To defend property (unless life/limb is in danger)
 If actor provoked danger
 If actor can avoid it
 Not obligated to retreat from home/work
 Police officers allowed to use force in duties
o Necessity- 3.02
 Harm to be avoided should be greater than harm caused
 If person is to blame for creating the scenario, they generally don’t get a defense – 3.02(2)
 Person who ends up acting in self-defense, but doesn’t know it does NOT have a defense
o Duress – 2.09
 Person is threatening you to force you to do something
 Must be reasonable in thinking you have to do what you do
 Limitations:
 Must be another person applying the force (not an animal/earthquake/etc)
 Must be an unlawful force (not a prison guard forcing prisoner back into cell)
o Insanity – 4.01
 D insane at time of crime  a defense
 D became insane after the crime, at time of trial  can’t hold a trial
 D became insane after trial, while on death row  can’t execute
o Intoxication - *not a defense. A way to disprove the mens rea* - 2.08
 Recklessness: if sober D would’ve been aware of risk that drunk D ignored, unawareness is
immaterial
 Intoxication involuntary or pathological: D’s inability to know right from wrong is a defense
o Entrapment – 2.13
 Subjective: was D inclined to commit crime anyways & government just exposed them?
 Objective: did government try to get D to commit a crime?
 Government actions constituting entrapment:
 Making knowingly false representations to make D believe conduct is permitted
 Persuading D so heavily that D commits crime he wouldn’t have committed otherwise
 D will be acquitted if they prove they only committed the crime as a response to entrapment.
 Limitations:
 Selective enforcement
 Voluntariness of D is questionable
 Political abuse
 Provocation doctrine
o Blackmail – 212.5; 223.4
 Actions that constitute extortion:
 Threats of personal & property injury
 Threats of accusation of crime
 Threats to make disclosure that would defame victim
 Limitations:
 Free speech/1st Amendment
 Statutory construction  what constitutes “wrongful” conduct
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What kind of homicide? – 210.1(1)
 Murder – purpose/knowledge or felony murder rule
o Premeditation/Deliberation – law is not clear as to how much time is needed (though MPC avoids this)
o Justification/Excuse: Provocation – 210.3(1)(b)
 CL spells out circumstances that constitute provocation (Girouard)
 Extreme assault or battery upon D
 Mutual combat
 D’s illegal arrest
 Injury/serious abuse of a close relative
 Sudden discovery of spouse’s adultery
 MPC uses a reasonableness standard for “extreme mental/emotional disturbance” – 210.3(b)
 Subjective: Level of provocation (How insulting was the insult?)
o D’s idiosyncrasies come into play to judge the gravity of the situation (ex. if a
hunchback is called a hunchback vs a normal person called a hunchback)
 Objective: Standard of behavior to be expected (Was the reaction reasonable?)
o How far did D deviate from the reasonable person standard?
o Unintentional murder? (Commonwealth v Malone) Must be a:
 Reckless act, committed
 Under circumstances manifesting extreme indifference to the value of human life, & a
 Gross deviation from societal standards
o CL: wicked, depraved, malicious (these are all difficult to define)

Manslaughter – reckless; committed under extreme mental/emotional disturbance
o Voluntary – heat of passion killings as a result of “adequate provocation”
o Involuntary – criminally negligent killings
o Felony-Murder – reckless & extreme indifference to value of human life – 210.2
 Inherently dangerous felony
 Is the crime the kind that cannot be committed without significant risk of death?
 Was this crime committed in a way that had a significant risk of death?
 Merger doctrine – if the felony is an integral part of the homicide, FMR cannot be used
 Basically: we don’t want to downgrade punishment for a death that results from armed
robbery to a FM because the FMR is a lesser punishment.
 Would this felony qualify as another level of homicide w/o FMR? If no, apply FMR.
 Sufficiently independent felonies include:
o Furnishing narcotics
o Driving under the influence of narcotics
o Armed robbery
o Kidnapping
o Felony child abuse by malnutrition & dehydration

Negligent homicide – Gross deviation from reasonable standard of care, but no awareness - 210.4
o Common Law manslaughter equivalent
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