Crim Law Outline
Funnel for Answers:
CARE
Course
Area
Rule
Exception
DO NOT TALK ABOUT ATTEMPTS IF THERE IS A COMPLETE CRIME
What is a Crime?
What is a common law crime?
A. Definition generally;
1.morally blame worthy behavior (act) against society;
2. made (adopted) by the legislature
3. Punishment
1. Negligence and failure to act can serve as a crime -Williams
2. Legislatures generally draw the line between Civil and Criminal -Hendricks (civil
detention does not violate due process, child molester)
3. Crimes and some civil equivalencies such as juvenile adjudications require proof beyond
a reasonable doubt of all of the elements of the crime. -Winship
Criminal Laws and Their Limits
1. Judicial Interpretation: by a judge about the law. Judges can interpret but cannot make the
law. (Keeler – feticide)
2. Common Law: Principal of Legality
3. Constitutional Limit (5 different doctrines but 2 apply here: void for vagueness, and
incorp. Doct., void for vagueness is not common law crime, only new law)  if you get
this kind of question “this falls within the limits of criminal law”
a. Types:
- No unreasonable laws – Due Process (DP)
- No unreasonably vague laws – DP Void for Vagueness = a law that is so
vague that (1) a reasonable person must necessarily guess as to the meaning
of the law, (2) the law invites arbitrary enforcement by police, and (3) the law
fails to provide fair notice or warning.
- No laws violating Procedural due process – DP
- No laws violating Substantive due process – Privacy – DP
- The fundamental rights in the Bill of Rights selectively apply to the states under
the Incorporation Doctrine of DP (DP)
- No Bills of Attainder
- No Double Jeopardy
- No Cruel and Unusual Punishment
- Confrontation of Witnesses Against Accused
- No Ex Post Facto laws (Fair Notice to RP)
- Equal Protection
b. The Void for Vagueness Doctrine of the Due Process Clauses, 14th or 5th
Amendment, will strike down a law as unconstitutional. (Papachristou- decided
by a judge- Florida vagrancy law)
c. You don’t do the incorporation when it is a state issue and it is not about the
bill of rights, 5th amendment only with federal cases
d. Constitutional Limit (Duncan, Bill of Rights (fundamental to the American
scheme of justice, incorporated through the 14th amendment of the Due Process
Clause)
4. Innocence/Not Guilty. The defendant did not commit the crime charged. (decided
generally by a jury)
5. Judicial Interpretation of Laws:
(1) Look at the text of the law  the actual words of the law, the surrounding
words and how its applied
(2) The intent of the lawmakers
(3) Public policy or fairness
5. Challenges by Defense Attorney
1. Interpretation – The law does not cover my client’s conduct
[2. Common Law – The law is not prospective or general under the Principle of Legality]
3. The Law violates the Constitutional rights of my client, especially due process of law.
4. My client is innocent / not guilty
Punishment
1. Theories of Punishment
2. Constitutional Limits, 8th amendment, Cruel and Unusual Punishment, Violates the 8th
amendment under the 14th Amendment Due Process Clause (can drop incorporation
doctrine)
3. Sentencing
4. The Death Penalty
5. Dudley & Stephens
6. Arguments:
a. Precedent:
i. Cases
ii. Statutes
iii. Constitution
iv. Administrative Regs
b. Policy
i. Morality
ii. Utility
iii. Competency
iv. Workability
Components of Crimes
A. Acts (Actus Reas  Requires Mind-Body connection): without an act we wouldn’t be
able to tell if someone was engaged in a morally blameworthy conduct; when does the act
occur  generally with mental state
a. Voluntary:
i. Robinson  continuing status or illness is not an act for the basis of a
crime
ii. Powell  appearing drunk in public is an act, you can convict someone
for being an addict but they have to be in a voluntary act
iii. Decina  seizure accident, knew of condition, here was foreseeable as
long as he went in the car, can commit DUI as long as sitting in the
parking lot
b. Legal Duty: (omission)
i. Jones  Child neglect, in the basement, must establish a legal duty to act
(SCRAP) Ex) employer required to act doors, fire alarms etc.
1. Statute
2. Contract
3. Relationship
4. Assumption of Care and Seclusion
5. Peril created by D, generally wrongfully
B. Results: relationship actor and the harm
a. Actual: but-for the defendants conduct the harm would not have occurred when
and how it did
b. (Legal Cause) Proximate: when there’s a close enough relationship between the
actor and the harm that we hold the actor responsible; there will be 3rd parties,
time issues etc.
i. Ex) someone shoots someone they get paralyzed, get bedsores, then dies
can charge this person, this relationship is close enough, this is foreseeable
C. Mental States
a. Purpose = consciously desiring the result  Intent, Malice, General Intent
b. Knowing = consciously aware of a risk that is practically certain to occur 
Intent, Malice, General Intent
i. Willful blindness: a type of knowledge, US v. Jewell (pg. 170 & 172)
ii. Willful Blindness: (1) Consciously aware that must be highly probable
that a fact exists; (2) Unless they actually believed the fact did not
exist (aware of a high probability of its existence, unless he actually
believes that it does not exist)
c. Reckless = conscious disregard for a substantial and unjustifiable risk  Malice,
General Intent
d. Negligence = should have known of a substantial and unjustifiable risk 
General Intent
e. But: Intox, mistake in law, mistake in fact
f. What if there is no mental state in the law  it will be implied, what do they
fill in with common law?  they assume negligence (Morrisette, pg. 162)
D. Crimes that don’t have a mental state: strict liability (look for this section)
E. What Negates the Mental State:
a. Intoxication:
i. Voluntary: someone knows they are ingesting and intoxicate (Egelhoff: in
Montana excludes intoxication evidence from trial, defense can offer
evidence an processes that are fundamental to the American scheme and
principles of justice, Scalia says intoxication is not one of these; instead of
using this to mitigate the crime, it aggravates (they want to make
punishment worse))  only negates knowledge, normally just negligence
CAN ONLY NEGATE SPECIFIC INTENT SOMETIMES
ii. Involuntary: you can always raise this to negate the crime; did not know
they are ingesting the intoxicate ANY
iii. HYPO: get a prescription from a dr. and ask if you can drive on this
“you’ll probably be okay” could argue either way
b. Mistake in Fact:
i. If specific intent crime – an honest mistake in fact will negate MS
ii. If a malice or (general Intent) negligence crime, need both an honest
and reasonable mistake to negate the MS
c. Mistake in Law:
i. General Rule: Ignorance of the law is no defense (Baker; Hopkins)
ii. The legislature expressly or implicitly intends to include knowledge of
legal wrong as a part of the crime (Ratzlaf)
Crimes:
Burglary =
• 1. The Breaking &
• 2. Entering
• 3. The Dwelling House of Another
• 4. At Night-time (when you can’t see a person’s face in the natural light)
• 5. With the intent to commit a felony therein (at the time of the breaking + entering)
Possession =
• 1. The act of exercising dominion and control over a thing
• 2. Intentionally
• ***************
• 3. Types: Joint or Sole; Actual or Constructive
• 4. Sometimes, add having had the opportunity to dispossess
Burglary & Possession:
• Both - (Specific) Intent crimes
• Both - No result required crimes
• Both - Incomplete crimes (ultimate result is another crime)
• Both - Act + Mental State likely require inferences
Arson = the malicious burning of the dwelling house of another.
• charring (changing wood composition) YES
• Scorching (just coloring not enough) NO
Assault –
(a) the intentional creation of the imminent apprehension of a battery; OR
(b) attempted battery
Battery – the unlawful negligent harmful or offensive touching of another person (general
intent)
Robbery = larceny by force or fear from the person or presence of another
• (larceny + assault)
Larceny =
• The trespassory taking and carrying away the (all I have to do is movement with my control
for taking and carrying)
• personal property of another
• with the intent to deprive them of the property permanently
Homicide
Murder: unlawful killing of another with malice aforethought
Malice = Purpose, knowledge, or High Recklessness
A. Implied Malice = implies an intent to kill by one’s actions (even if no express intent)
(ex. Felony murder, depraved heart murder and intent to commit serious bodily
harm murder are generally implied malice)
B. Express Malice = intent to kill; Willful, Deliberate and Premeditated killing
1st Degree:
1. Willful, Deliberate and Premeditated
a. Mental State Intent to Kill
i. Opportunity to plan/calculate a killing and
ii. Actual Planning/calculating about killing
iii. Additional Lexicon: reflection, consideration, deliberate choice,
contemplation, prior design, considered and weighed, ruthless, coldblooded
2. Felony Murder (enumerated felonies= murder, robbery, manslaughter, rape,
larceny, arson, mayhem, and burglary)
3. Also killing by lying in wait, starvation, poison, etc.
Intent to commit serious bodily harm  mental state is the actual intent to commit serious bodily
harm  Malice is for the overall category
Premeditated, willful, deliberate
Mes rea, intent to kill + the opportunity to calculate + the actual calculation
Unlawful killing with malice aforethought = murder
2nd Degree:
1. Intent to Kill (express malice) OR (implied malice)
2. Intent to commit serious bodily harm (Geiger driving his wife around with no
hospital)
a. Intent to seriously harm V (+act and result)
b. Unlawful killing of another person with the ___.
3. Depraved Heart Murder (Gross or High Recklessness) Malone, Knoller
a. Unlawful killing of another with conscious disregard for human life
b. D is aware their acts endanger the life of another
c. Mental State: High (gross) recklessness
4. Felony Murder (inherently dangerous)
Felony Murder: the killing of another person during (before safe repose) a felony or an
attempted felony with limits.
 Limits:
1. Felon (Or Felony)
2. Directly Causes Death by
3. Inherently Dangerous &
4. Independent Felony
 PerDiDi
 Person Killing or Killed



 Direct Cause
 Inherently Dangerous Felony/Enumerated Felony
 Independent Felony
Limits on Person who kills or is killed:
 Agency: ∆ or co-∆s will be held liable
 Proximate Cause: if felony is the proximate cause of death, then ∆ or co-∆s will be held
liable
 Limited Proximate Cause: If felony is the proximate cause of death, then ∆ or co-∆s will
be held liable, UNLESS a felon is killed
Inherently Dangerous (Burroughs/Patterson Test)
1. Substantial risk someone will be killed?
2. Offense carrying a high probability that a death will occur.
The Merger Doctrine= The felony must be independent of murder, meaning not a lesser
included offense
 Test: if felony is an integral part of the homicide, with no elements independent of the
homicide, the felony does not qualify
Manslaughter: unlawful killing of another person
1. Voluntary = Mental State = intentional
a. Imperfect defense
i. Defendant actually but unreasonably believes a defense (usually selfdefense) is necessary
ii. An act in self-defense but they were wrong
iii. They think it’s a gun but its not etc.
iv. The intentional infliction of serious bodily harm or death is
considered manslaughter not murder?
b. Provocation
i. Sometimes called “heat of passion” manslaughter
ii. It is a partially excused intentional killing
iii. HAVE TO FIND THEM TOGETHER IN BED CANNOT BE
DELAYED
iv. Common Law Provocation:
1. D was Actually and Reasonably provoked
2. Legally adequate grounds (mere words are not enough)
Adultery
Mutual combat
Assault and batter
3. Without actual and reasonable time to cool off
2. Involuntary = Mental State = Unintentional
a. Misdemeanor Manslaughter = functional equivalent of felony murder,
there’s a misdemeanor or bad act
b. Reckless-negligence Manslaughter = unlawful killing committed with the
reckless/negligent mental state  if this becomes high can become depraved
heart
Provocation Manslaughter
1. You must be provoked (actually and reasonable, words are not enough it has to be legally
adequate)
2. What is legally adequate: extreme assault of battery, Etc. FILL IN
How to analyze Homicide:
1. Is the killing possibly murder?
A. Need Purpose, Knowledge or Gross Recklessness, (or Felony + killing)
B. If yes, which type or types most likely?
2. If not murder, is the killing possibly manslaughter?
A. Need purpose or knowledge (with partial excuse) or recklessness or negligence.
B. If yes, which type or types most likely?
F. Affirmative Defenses (during homicide portion of the class)
Defenses
Justification:
Self-Defense
1. non-aggressor (did not produce an afrey) AND
2. actually, and reasonably belief of
3. imminent harm AND
4. Acts to repel that harm are proportional
5. Minority Rule: D could not retreat in complete safety (castle doctrine)
6. For mistaken self-defense must be honest and reasonable
Aggressor Regains Self-Defense Rights
1. D attempts to withdraw in good faith AND
2. Provides notice of that withdraw
3. OR V suddenly escalates the attack AND
4. D defends against escalation
Defense of Others
Tests: Defendant has burden of proof
1. Family Rule: can defend member of immediate family
2. Alter Ego: place yourself in the victims’ shoes
3. Reasonable Belief: must be reasonable
Defense of Habitation
1. Immediate danger of entry existed
2. The entry was being attempted in order to kill or inflict serious bodily harm on the
occupant; and
3. Deadly force was required to prevent the entry
Necessity (Dudley)
1. Committed the offense to prevent significant evil
2. That there was no adequate, reasonably available alternative to committing the offense,
and
3. Harm caused by the charged offense was not disproportionate to harm avoided
Excuse:
Duress
1. Immediate threat of serious bodily harm or injury to D or family
2. D fears harm
3. No reasonable escape
4. D turns self into authorities when safe
Insanity
Rules:
1. M’Naghten: as result of a serious mental disease or defect ∆ does not know right from
wrong or the nature of their actions


2. Irresistible Impulse: because of a serious mental disease or defect the defendant cannot
control their impulses that violate the law
3. Am. Law Institute: a person is not responsible for criminal conduct if at time of conduct
as a result of mental disease lacks substantial capacity either to appreciate the criminality
of his conduct or to conform
Insanity defense: waivable affirmative defense measured at the time of the crime
Competency to proceed (stand trial): nonwaivable, proceedings before during and after trial
Entrapment
1. Police must initiate the crime (D’s burden)
2. The D must not have been pre-disposed to committing the crime
3. Prosecution’s burden: proving the D was predisposed
Theft Offenses
Larceny
1. Trespassory
2. Taking and (control)
3. Carrying away
4. The personal property of another
5. With the intent to deprive permanently (substantial risk of permanent loss)
Larceny Rules:
 Lost and Mislaid Property = still in possession of another, not abandoned
 Continuing Trespass Doctrine = trespass after taking (taking and umbrella accidentally and
deciding to keep it later when you know it is not yours, still larceny)
 Claim of Right = no intent to steal
Larceny By Trick
1. Obtaining unlawful possession of the property of another by an
2. Intentional
3. False statement of fact and then
4. Converting that property unlawfully
Robbery
1. Larceny by
2. Force or fear from
3. The person or their presence
Embezzlement
1. Lawful possession of the property of another, which then is
2. Fraudulently converted
False Pretenses
1. Obtaining title to the property of another by an
2. Intentional
3. False statement of fact
Possession:
1. Act of exercising dominion and control
2. Intentionally
 Essentially unrestricted control over personal property
Custody:
 Limited possession in scope and time
 Valet = custody= bailment
 Ex. Silverware at a dinner party
Case
Stands for
Focus
Larceny
(can be of personal
property of real estate)
(continuing offense)
Davis
Brown
Refund
Bike
Trespass/Intent
Davis: Intent = (sounds like high recklessness)
Substantial Risk of Permanent Loss (knowingly
create a substantial risk of permanent loss)
Brown: there has to be intent to permanently
deprive, not temporarily.
Robbery
(aggravated larceny)
(continuing offense)
Gomez
Restaurant
Caption/Asp.
Asportation
(carrying away)
Larceny By Trespass
Thompson
Car
Fraud in
Acquiring
Conditional
Sales Contract
Payments
(1) Is there fraud
(2) What did the ∆ get
False Pretense
Whight
ATM
Fraud in
Acquiring
Embezzlement
Stahl
$100 Register
Lawful
Possession
(1) Is there fraud
(2) What did the ∆ get
(3) Reliance (Causation, fraud cause the transfer
of property)
Possession = entrusted with it, control of it
Entrusted with register not drop box
Theft Crime analysis:
1. What did the defendant get?
a. Limited in time and scope of control (custody)
b. Temporary possession (bailment) or
c. Title (ownership)
2. How did the defendant get it?
a. Fraud (larceny by trick (obtain possession)/ false pretenses (obtain title))
b. Stealing (larceny/ robbery)
c. Lawfully (embezzlement (look for bailments))
3. Defense:
a. The innocent instrumentality
i. One is used by another to commit the crime without knowing they
were doing something unlawful.
ii. Instrument not guilty, but person who asked is
Inchoate Crimes PK= Intent
Possession
1. An act exercising dominion and control
2. Intentionally
3. Sole v. Joint
4. Actual v. Constructive
5. With opportunity to dispossess
Solicitation
1. Intent (PK = intent) to commit a crime AND
2. Asking, cajoling, requestion, enticing, encouraging another to commit a crime as the
principal
3. If you did not tell the other person they were committing a crime it would not be
solicitation (innocent instrumentality)
4. This merges into larger crimes
 Cannot commit the crime with the person who is asked
 Innocent Instrumentality is not solicitation = you ask someone to commit a crime but they
don’t know it is a crime (if they start to realize could be willful blindness)
 A TYPE of accomplice liability
Attempt
1. Intent to commit a crime; AND
2. An OVERT ACT toward the commission of the crime
 If I tell someone to rob a bank and they make a plan I am no longer a solicitor I am an
accomplice and guilty of attempt too
 The act must suggest criminal purpose
 Model penal code looks at how close to the beginning of the crimes to the acts
 Defenses:
 Impossibility: not common
 Abandonment:
1. Defendant completely and voluntarily withdraws from committing the crime and
2. Thwarts it if necessary (takes a brick out then puts it back) (the withdraw cannot be
strategic)
 OVERT ACT = SUBSTANTIAL STEP (ex. Staking out place, buying stuff specifically for
the crime) (not ex. Buying shoes in general you may wear, saying yes to crime, thinking
about crime)
 We are using Model Penal Code for this crime, this looks at how close to the beginning of the
crime the acts are
Conspiracy
 Contracts/Relationships
1. Two “intents”
a. Intent to agree and
b. Intent to commit the crime
2. Two acts








a. Agreement
b. OVERT ACT = ANY ACT IN FURTHERENCE OF THE CONSPIRACY
(buying gloves for the crime)
Defining Conspiracy:
 Only 1 conspiracy per agreement
 If you make the same plans to rob but decide to change the date later, that is 2
conspiracies, if want to avoid don’t put a date on it
 There is no merger with conspiracy, the one conspiracy covers all the crimes because it is
continuous conspiracy
Scope of liability:
 Vicarious liability for:
1. The object crime and
2. Crimes in furtherance of the object crime (furtherance= reasonably forseeable)
When supplying goods for illegal activity the supplier needs:
1. knowledge and
2. intent to further unlawful use (these can be inferred if they start ordering large quantities,
you have a stake in the venture)
a. defendant says to the seller “you know the cocaine stuff” not enough there has to
be more than just knowledge
3. UNLESS they are a seller of dangerous instruments (ex. Dr. selling fentanyl) it is enough
to know it is being used unlawfully
Defenses:
 Impossibility of furthering the conspiracy (law enforcement intervenes) doesn’t mean
there is no conspiracy (interception of a drug operation but allows continuance to arrest
defendants connected)
 Still morally culpable and dangerous (could say let’s rob this place, realize its closed and
go across the street and rob)
Bilaterial Conspiracy: Majority Rule = need two or more who intend to agree and commit
crime
Unilateral Conspiracy: Minority: = one is enough who agrees and intends to commit the
crime (undercover police officer hypo)
Types of Conspiracies:
 Wheel and Spoke = Lots of people involved with one in the middle (ex. Supply cocaine
to 8 different dealers for 40 weeks, 1 conspiracy)
 Ladder = somebody selling, growing, coordinating, goes up the ladder
 Partners
Differences From Accomplice Liability: Need Agreement, don’t need to assit in
vicarious liability
Accomplice Liability
 Scope of liability:
1. Object crime and
2. Reasonably foreseeable crimes

Differences from conspiracy: No Agreement needed, only must intentionally assist, no
agreement in vicarious liability but must assist
Defenses:
Impossibility Defense = doesn’t work
 Rule: legal impossibility is a defense to attempt crimes, factual impossibility is not
Abandonment of Attempts
1. Defendant completely and voluntarily withdraws from committing the crime and
a. It is not voluntary if the withdraw is strategic (hear sirens then decide to leave)
2. Thwarts it if necessary (model penal code) (must stop crime, or “put the brick back”)
Withdrawal= Partial Defense (relieves you of everything that happens after)
1. Need an affirmative act (a text, “I’m out”)
 Just disappearing is not enough
2. Not simply abandonment
 Under Model Penal Code
1. Thwart and
2. Complete a voluntary renunciation (higher standard, have to stop them doing the
crime)
How Friedland Would Approach a Burglary Problem
Burglary
1. Burg is a common law felony
2. Here this is a Instrumentality Burglary situation
3. Rule Elements
4. Analysis of rules