Criminal Law

Receiving Stolen Goods

Receiving stolen property is a statutory crime that requires: (i) Receiving control of stolen property; (ii) Knowledge that the property is stolen; and (iii) Intent to permanently deprive the owner of the property.

Parental Authority

The use of reasonable force in the exercise of parental authority (i.e., discipline) by a parent or by a person in charge of a child (e.g., a teacher) is justified if exercised for the benefit of the minor child.

Constructive Possession

"Constructive possession" means legal possession when factual possession does not exist. *An owner has constructive possession of property when actual possession - but not title - is taken from her by fraud. The crime is called "larceny by trick." **Low-level employees can only be guilty of larceny whereas high-level employees are typically guilty of embezzlement.

Knowingly/Willfully

"Knowingly" or "willfully" requires that the defendant be aware that his conduct is of the nature required by the crime or that circumstances required by the crime exist. In other words, the defendant must be aware or know that the result is practically certain to occur based on his conduct.

Recklessly

"Recklessly" requires the defendant to act with a conscious disregard of a substantial and unjustifiable risk that a material element of a crime exists or will result from his conduct. The risk must constitute a gross deviation from the standard of conduct of a law-abiding person. Mere realization of the risk is not enough.

Assault

(1) An attempt to commit a battery; or (2) Intentionally placing another in apprehension of imminent bodily harm. *Battery Distinguished: The defendant must cause bodily injury or actually touch the victim (or something attached to his person) for a battery to occur. An assault can occur only if the defendant does not touch the victim—once the victim has been touched, it's a battery. **The defendant must take a substantial step toward the commission of a battery. Like all attempt crimes, the defendant must have the specific intent to commit a battery.

Attempt

(i) A substantial step toward the commission of a crime; coupled with (ii) The specific intent to commit the crime. *If the crime is successfully completed, the attempt is merged into the completed crime.

Defense to Felony Murder

(i) A valid defense to the underlying felony; (ii) The felony was not distinct from or independent of the killing itself (e.g., aggravated battery); (iii) Death was not a foreseeable result or a natural and probable consequence of the felony (i.e., there was no proximate causation); or (iv) Death occurred after the commission of the felony and the ensuing flight from the scene of the crime.

Conspiracy

(i) An agreement; (ii) Between two or more persons; iii) To accomplish an unlawful purpose; (iv) With the intent to accomplish that purpose. *The majority rule and federal law, as well as the MPC, require the commission of an overt act (legal or illegal), in furtherance of the conspiracy to complete the formation of the conspiracy. **At common law, no overt act was required for the conspiracy to be complete. Default application = common-law conspiracy on the MBE. ***Contrast attempt: To constitute attempt, the defendant must have taken a substantial step toward commission of the crime. A mere preparatory act is insufficient for attempt.

Solicitation

(i) Enticing, encouraging, or commanding of another person; (ii) To commit a crime; (iii) With the intent that the other person commits the crime.

Robbery

(i) Larceny; (ii) From the person or presence of the victim; (iii) By force or intimidation. *All of the elements of larceny are necessary for robbery. Larceny is the (i) trespassory, (ii) taking and carrying away, (iii) of the personal property of another, (iv) with the intent to steal. **Larceny, assault, and battery all merge into robbery or attempted robbery.

Aggravated Battery

Battery may carry a greater penalty - by statute - when serious bodily injury is inflicted or bodily injury is caused by the use of a deadly weapon.

Rape

(i) Unlawful; (ii) Sexual intercourse; (iii) With a female; (iv) Against her will by force or threat of immediate force. *Most modern statutes have removed the force requirement. **At common law, a husband could not rape his wife (most states have either abolished this restriction or removed the immunity if the husband and wife have separated or filed for divorce). ***Traditionally, the victim of rape could only be a woman. Most states recognize homosexual rape as a crime labeled "sexual assault" rather than rape. Most states also have defined rape in a gender-neutral manner; under such statutes, a woman could be the perpetrator of a rape.

Negligently

A defendant acts "negligently" when that defendant should be aware of a substantial and unjustifiable risk that a material element of a crime exists or will result from his conduct. The risk must constitute a gross deviation from the standard of care of a reasonable person in the same situation.

Depraved Heart

A killing that results from reckless indifference to an unjustifiably high risk to human life is a depraved-heart murder. *Depraved-heart murder is an unintentional killing that results in death. There is a split among jurisdictions as to whether the requisite depravity exists when a defendant is unaware of the risk involved in the conduct, but even states that ordinarily follow a subjective standard allow a conviction if the reason the defendant failed to appreciate the risk was due to voluntary intoxication.

Heinous Murder

A murder resulting from an egregious act, such as ambush (i.e., lying in wait), torture, bombing, terrorism, or poisoning, may be classified as first-degree murder.

Defense of Property

A person in lawful possession of property that is threatened by the conduct of another, and who has no time to seek assistance from law enforcement, may take reasonable steps, including the use of nondeadly force, to protect the property. To use force, the defender must reasonably believe that the real property is in immediate danger of unlawful trespass or that personal property is in immediate danger of being carried away, and that the use of force is necessary to prevent either. The force cannot be unreasonably disproportionate to the perceived harm. There is no right to use deadly force in defending property, with one exception. Generally, a person may use deadly force to prevent or terminate forcible entry into a dwelling if the occupant reasonably believes that the intruder intends to commit a felony inside. The use of deadly force against an intruder exiting the dwelling is generally not permissible. A deadly mechanical device cannot be used to protect property, although *non-deadly mechanical devices (such as barbed wire) may be used.

Public Welfare Offense

A public welfare offense is a strict-liability crime for which no mens rea is required. Conduct that is subject to stringent public regulation includes that which could seriously threaten the public's health or safety or is inherently dangerous. *Examples: Typical examples include adulteration of food or drugs, regulation of waste disposal, and selling liquor to minors.

Strict Liability

A strict-liability crime does not require a mens rea, rather, proof of the actus reus is sufficient for a conviction. Examples of strict-liability crimes include statutory rape; bigamy; regulatory offenses for public welfare; regulation of food, drugs, and firearms; and selling liquor to minors.

Bigamy

A strict-liability offense, bigamy is the act of marrying someone while still legally married to someone else. Common law considered a defendant guilty even when the defendant incorrectly believed that an alleged divorce was valid or that his spouse was dead.

Substantial Step Test

A subjective test, applied to determine whether an attempt has occurred. Under this test, conduct does not constitute a substantial step if it is in mere preparation; the act must be conduct that tends to effect the commission of a crime.

Duress

A third party's unlawful threat that causes a defendant to reasonably believe that the only way to avoid death or serious bodily injury to himself or another is to violate the law, and that causes the defendant to do so, allows the defendant to claim the duress defense. *Duress is not a defense to intentional murder. A defendant charged with felony murder may claim duress as a defense to the underlying felony and avoid conviction for felony murder.

Adultery and Fornication

Adultery and fornication are considered misdemeanor offenses in some states. Adultery involves sexual intercourse or cohabitation with a person who is not a spouse. Fornication is open and notorious cohabitation or sexual intercourse between unmarried persons.

Accessory After the Fact

An accessory after the fact is a person who aids or assists a felon in avoiding apprehension or conviction after commission of the felony. An accessory after the fact must know that a felony was committed, act specifically to aid or assist the felon, and give the aid or assistance for the purpose of helping the felon avoid apprehension or conviction. *An accessory after the fact is not subject to punishment for the crime committed by the felon, but instead has committed a separate crime, frequently labeled "obstruction of justice" or "harboring a fugitive."

Accomplice Liability

An accomplice (i.e., an accessory before the fact or a principal in the second degree) is a person who, with intent that the crime be committed, aids or abets a principal prior to or during the commission of the crime. *The difference between an accessory before the fact and a principal in the second degree is presence. An accomplice who is physically or constructively present during the commission of the crime is a principal in the second degree. For example, a getaway driver some distance from the scene is deemed constructively present and will be considered a principal in the second degree. **An accomplice who is neither physically nor constructively present during the commission of the crime, but who possesses the requisite intent, is an accessory before the fact. ***Under the majority and MPC rule, a person is an accomplice in the commission of an offense if he acts with the purpose of promoting or facilitating the commission of the offense. Thus, the accomplice must intend that her acts will assist or encourage the criminal aim. ****A minority of states hold a person liable as an accomplice if he intentionally or knowingly aids, induces, or causes another person to commit an offense.

Preparatory Act

Any of the following preparatory acts may constitute a substantial step if they corroborate the defendant's criminal purpose: (i) Lying in wait, searching for, or following the intended victim; (ii) Unlawful entry into the place contemplated for the commission of the crime; (iii) Enticing the intended victim to go to such place; (iv) Possession of materials specially designed for committing the crime; (v) Possession of materials to be used in the commission of the crime at or near the place of commission; and (vi) Soliciting an innocent agent to engage in criminal conduct.

Prevention of Crimes

Anyone can use deadly force to prevent the commission of a serious felony involving a risk to human life, and may use nondeadly force to prevent the commission of a felony or a breach-of-the-peace misdemeanor. A private citizen who makes a mistake, even a reasonable mistake, as to the commission of a serious felony by the victim is not entitled to rely on this defense.

Battery

Battery is the: (i) Unlawful; (ii) Application of force; (iii) To another person; (iv) That causes bodily harm to that person; or (v) Constitutes an offensive touching. *The touching, however slight, must result in bodily harm (e.g., a bruise) or an offensive touching (e.g., an unwanted kiss) **Consent may be explicit (e.g., a signed authorization for surgery) or implicit (e.g., participation in an athletic event).

Arson

Arson is the: (i) Malicious; (ii) Burning; (iii) Of the dwelling; (iv) Of another.

Immaturity/Infancy

At common law, a child under the age of seven could not be convicted of a crime. A child at least seven years old but less than 14 years old was rebuttably presumed to be incapable of committing a crime. A child at least 14 years old could be charged with a crime as an adult. Modern statutes have modified this rule and provide that no child can be convicted of a crime until a certain age is reached, usually between the ages of 11 and 14.

Extortion

At common law, extortion was the unlawful taking of money by a government officer. *Most jurisdictions have enacted statutes that more broadly define extortion as the taking of money or property from another BY THREAT. In most jurisdictions, it is the making of threats (rather than the obtaining of the property) that is the essence of the crime. In a minority of jurisdictions, however, the accused must actually obtain the property to be guilty. **Extortion differs from robbery in two respects: (1) The threats need not be of immediate harm, nor need they be of a physical nature (e.g., threatening to expose the victim's marital infidelity in the future is sufficient); and (2) The property intended to be taken need not be on the victim or in his presence.

Homicide

At common law, homicide was divided into three categories: (i) homicide justified by law, (ii) criminal homicide,* and (iii) excusable homicide. *Criminal homicides were divided into three offenses: murder, voluntary manslaughter, and involuntary manslaughter.

Abandonment

At common law, once the defendant has taken a substantial step toward the commission of the offense, the defendant MAY NOT legally abandon the attempt to commit the crime because of a change of heart. *Upon the completion of a substantial step, the crime of attempt is completed; there can be no abandonment or withdrawal. Some states do recognize voluntary abandonment as a defense to attempt. Even then, abandonment is not voluntary if it is motivated by a desire to avoid detection, a decision to delay commission of the crime until a more favorable time, or the selection of another similar objective or victim. Abandonment by the defendant does not constitute a defense for an accomplice who did not join in the abandonment or withdrawal.

Statutory Crimes of Murder

At common law, there were no degrees of murder. Under modern statutory rules, murder is generally divided into two degrees: first-degree and second-degree murder. *EXAM NOTE: Because degrees of murder do not exist at common law, the fact pattern on the MBE must supply a statute if you are to consider degrees of murder.

Withdrawal re Conspiracy

At common law, withdrawal was not a defense to conspiracy because the conspiracy is complete as soon as the parties enter into the agreement. Under the federal rule, which is also the majority rule, a conspiracy does not come into existence until an overt act has been committed. Consequently, after there has been an agreement but before an overt act has been committed, a person may avoid criminal liability for conspiracy by communicating notice of his intent not to participate to the other potential co-conspirators or by informing the police about the agreement. Upon completion of the overt act, the conspiracy is formed, and withdrawal is no longer possible. Under the MPC and the minority view, subsequent withdrawal is possible only if the defendant acts voluntarily to "thwart the success" of the conspiracy.

Burglary

Common-law burglary is the: (i) Breaking and; (ii) Entering; (iii) Of the dwelling; (iv) Of another; (v) At nighttime; (vi) With the specific intent to commit a felony therein.

Murder

Common-law murder is the: (1) Unlawful (i.e., without a legal excuse); (2) Killing; (3) Of another human being; (4) Committed with malice aforethought. *A person who intends to do serious bodily injury or "grievous bodily harm" but actually succeeds in killing is guilty of murder despite the lack of intention to kill.

Criminal Negligence

Criminal negligence is grossly negligent action (or inaction when there is a duty to act) that puts another person at a significant risk of serious bodily injury or death. *It requires more than ordinary negligence for tort liability and something less than the extremely negligent conduct required for depraved-heart murder. For example, the failure of a parent, under a duty of care, to provide medical care to a sick minor child constitutes criminal negligence. **Under the MPC, the defendant must have acted recklessly, which is a "gross deviation from the standard of conduct that a law-abiding person would observe in the actor's situation." The defendant must have been actually aware of the risk his conduct posed.

Killing by a Felony Victim or the Police

Death of a bystander -- When a third party is killed by a police officer or dies as a result of resistance by the victim of the felony, the felon's liability for that death will depend on whether an agency theory or proximate-cause theory is applied. *Under an agency theory (majority/default rule), the felon will not be liable for the death of a bystander caused by a felony victim or police officer because neither person is the felon's agent. **Under the proximate-cause theory, liability for the bystander's death may attach to the felon because the death is a direct consequence of the felony.

Embezzlement

Embezzlement is the: (i) Fraudulent; (ii) Conversion; (iii) Of the property; (iv) Of another; (v) By a person who is in lawful possession of the property.

Entrapment

Entrapment is the conception and planning of an offense by a law-enforcement officer, and his procurement of its commission by a defendant who would not have committed that offense except for the trickery, persuasion, or fraud of the officer. If an officer merely offers an already-predisposed person the opportunity to commit a crime, it is not entrapment (i.e. the defendant must lack any predisposition to commit the crime). Entrapment can occur through the use of an undercover agent but not by a private citizen. The modern trend allows a defendant to deny participation in an event, yet still raise the defense of entrapment. Traditionally, the defendant was precluded from using the entrapment defense if he denied his participation in the event.

Impossibility re: Conspiracy

Factual impossibility (that it was factually impossible to complete the intended crime) is not a defense to conspiracy. Legal impossibility (that the intended act is not criminal in nature) may be a defense if the object of the agreement is not a crime.

False Imprisonment

False imprisonment is the: (i) Unlawful; (ii) Confinement of a person; (iii) Without consent.

Felony Murder

Felony murder is an unintended killing proximately caused by and during the commission or attempted commission of an inherently dangerous felony. The felonies traditionally considered inherently dangerous are: Burglary, Arson, Rape, Robbery, and Kidnapping. [Mnemonic: BARRK]. (Common-law felonies also include murder, manslaughter, mayhem, and sodomy, but the BARRK crimes are most commonly tested in the context of felony murder; neither murder nor manslaughter can be the basis for a felony-murder charge.) To convict a defendant of felony murder, the prosecution must establish the underlying felony and that the defendant committed that felony. In addition, in most states, any aggravated felony committed with the use of a dangerous weapon is subject to the felony-murder rule. *The underlying felony will generally "merge" into the crime of felony murder for the purposes of Double Jeopardy.

First-Degree Murder

First-degree murder is generally defined as a deliberate and premeditated murder. In addition, felony murder is frequently classified as first-degree murder. *The distinguishing element of first-degree murder is premeditation, meaning the defendant reflected on the idea of killing or planned the killing. The amount of time needed for premeditation may be brief, as long as, after forming the intent to kill, the defendant had sufficient time to become fully conscious of the intent and to consider the killing (i.e., had time for reflection). This requirement does not apply to felony murder.

Forgery

Forgery is the: i) Fraudulent (wrongful use); ii) Making; iii) Of a false writing; iv) With apparent legal significance; and v) With the intent to defraud (i.e., make wrongful use of the forged document).

General Intent Crimes

General intent crimes require only the intent to perform an act that is unlawful. Examples include battery, rape, kidnapping, and false imprisonment.

Necessity

If the forces of nature (e.g. storm, fire) cause the defendant to commit what would otherwise be a crime, the defendant may be justified in doing so based upon necessity. The law prefers that the defendant, when faced with two evils, avoids the greater evil by choosing the lesser evil (e.g., the destruction of property to prevent the spread of a fire). *The defendant is not entitled to assert necessity if he set the natural forces in motion (e.g., set the fire) or if there is a noncriminal alternative. **Economic necessity does not justify theft (e.g. an unemployed worker may not steal food from the grocery store). ***Necessity is a result of natural forces; duress results from human actions. EXAM NOTE: While the defendant may escape criminal liability, the defendant may be compelled by tort law to reimburse the victim for any losses.

Imperfect Right of Self-Defense

Imperfect self-defense occurs when the person claiming self-defense unjustifiably kills the attacker. Purpose = to reduce the charge from murder to voluntary manslaughter. The rule is applied when, for some reason, the defendant cannot claim perfect self-defense. For example, a defendant honestly, but unreasonably, believes that deadly force is required to prevent death or serious bodily injury.

Impossibility re: Attempt

Impossibility is NOT a defense to attempt if the crime attempted is factually impossible to commit due to circumstances UNKNOWN to the defendant. But if the act intended is not a crime (i.e. a legal impossibility), then the defendant is not guilty of attempt. In such a case, even when statutes purport to have done away with the impossibility defense, there is always a provision that allows for legal impossibility. Example: D shoots V, believing that V is sleeping. V actually was already dead. D is guilty of attempted murder, but not murder.

Incest

In most jurisdictions, incest is marriage or sexual acts between persons that are too closely related. However, there is no uniformity in classifying the degree of relationship. While some states restrict incest to blood relatives, many other states extend the felony to non blood relatives as well.

Involuntary Manslaughter

Involuntary manslaughter is an unintentional homicide committed with criminal negligence or during an unlawful act.

Kidnapping

Kidnapping is the: (i) Unlawful; (ii) Confinement of a person; (iii) Against that person's will; (iv) Coupled with either: (a) The movement; or (b) The hiding of that person.

Larceny

Larceny is the: (1) Trespassory; (2) Taking and; (3) Carrying away; (4) Of the personal property; (5) Of another; (6) With the intent to permanently deprive that person of the property (i.e., intent to steal).

Mayhem

Mayhem is a common-law felony battery that causes the dismemberment or permanent disfigurement of a person. *It is the equivalent of modern statutory aggravated battery.

Mistake of Fact

Mistake of fact may negate criminal intent but it must be an "honest mistake." *A mistake of fact must be reasonable in order to be a defense to a general-intent or malice crime. **A mistake of fact is a defense to a specific-intent crime, EVEN IF the mistake is UNREASONABLE. ***Never a defense to a strict-liability crime because strict-liability offenses do not have a mens rea. ****MPC approach -- Under the Model Penal Code, a mistake of fact that negates the required state of mind for a material element of a crime is a defense.

Mistake of Law

Mistake or ignorance of the law generally is not a valid defense, except when: i) There is reliance on the decision of a court, administrative order, or official interpretation of the law determined to be erroneous after the conduct; ii) A statute defining a malum prohibitum crime (i.e., a crime for engaging in conduct not obviously wrong, such as a failure to obtain a license) was not reasonably made available prior to the conduct; or iii) An honestly held mistake of law negates the required intent (e.g., specific intent) or mental state (e.g., purposefully) for a material element of the crime.

Merger

Modern law applies this doctrine with respect to solicitation and attempt and the solicited or completed crime. A defendant may be tried - but NOT PUNISHED - for solicitation and the completed crime or for attempt and the completed crime. Solicitation and attempt are said to "merge" into the completed crime. *Contrast conspiracy: Unlike a solicitation and attempt conviction, a conviction for conspiracy does not merge into a conviction for the completed crime. In addition, a defendant may be concurrently prosecuted, but not punished, for more than one inchoate offense (i.e., solicitation, conspiracy, and attempt) based on conduct designed to culminate in the commission of the same crime. MPC 5.05(3). Note: The Double Jeopardy Clause generally prohibits a defendant from being convicted of both a crime and a lesser-included offense (i.e., an offense all the elements of which are also elements of the more-significant crime), such as robbery and larceny. Many jurisdictions characterize this prohibition as a "merger" of the lesser-included offense into the greater. For further discussion of double jeopardy, please refer to the Themis Criminal Procedure outline.

Imperfect Defense

Murder may be reduced to voluntary manslaughter even if the defendant started the altercation or the defendant unreasonably but truly believed in the necessity of using deadly force in defense of himself or others. While an intentional killing committed when resisting arrest is generally murder, an intentional killing can be manslaughter if the arrest is unlawful and the defendant acts in the "heat of passion."

Self-Defense

One who is not the aggressor is justified in using reasonable force against another person to prevent immediate unlawful harm to himself. The harm to the defendant must be imminent, not a threat of future harm. The defendant can use only as much force as is required to repel the attack.

Larceny by Trick

One who obtains possession of, but not title to, property owned by another through fraud or deceit who has the intent to unlawfully convert and who later does so convert is guilty of larceny by trick. Larceny by trick occurs when the defendant fraudulently induces the victim to deliver possession of the property to the defendant.

Perjury

Perjury involves the willful act of falsely promising to tell the truth, either verbally or in writing, about material matters that affect the outcome of a case. A witness cannot be prosecuted for making two contradictory statements if they are made during the same proceeding and the witness admits - prior to the end of the proceeding - that one of the statements is false. *All witnesses are absolutely immune from civil liability based on their alleged perjured testimony in litigation brought under the Civil Rights Act, 42 U.S.C. § 1983.

Chain Relationship

Persons who do not know each other can be members of the same conspiracy if there is a community of interest in the achievement of the object of the conspiracy. A community of interest is usually found when the activities of each person resemble links of a chain, such as a scheme to acquire and distribute drugs. In such a conspiracy, all of the members of the community of interest are liable for the acts of the others in furtherance of the conspiracy.

Mercy Killing

Providing a person with the means by which that person can commit suicide generally does not make the provider guilty of murder as an accomplice but instead guilty of a lesser crime, such as assisting a suicide. *Note, however, that consent is not a defense to homicide, so a "mercy killing" (i.e.,euthanasia) can be a criminal homicide even if the person was willing to die because of a painful terminal illness.

Second-Degree Murder

Second-degree murder is a homicide committed with the necessary malicious intent: the intent to kill, the intent to do great bodily injury, or a depraved-heart murder. In addition, a murder that occurs during the commission of a felony other than the felonies that trigger first-degree murder may statutorily be treated as second-degree murder. EXAM NOTE: Be sure to differentiate between second-degree murder and first-degree murder when answering exam questions. First-degree murder is a specific-intent crime, whereas second-degree murder, like common-law murder, is a malice crime.

Seduction

Seduction occurs when a man induces a woman to have sexual intercourse with him on the false promise of marriage. Subsequent marriage may be a defense in some jurisdictions.

Statutory Rape

Sexual intercourse with a person under the age of consent. It is a strict-liability crime. Consent by the underage victim is not a defense. A defendant's reasonable mistake of fact concerning the victim's age is not a defense.

"Dangerous proximity" Test

Some states continue to apply the traditional "dangerous proximity" test. Under this test, an attempt does not occur until the defendant's acts result in a dangerous proximity to completion of the crime.

Specific Intent Crimes

Specific intent crimes require that the defendant possess a subjective desire, specific objective, or knowledge to accomplish a prohibited result. The specific intent crimes include: (1) First-degree murder; (2) Inchoate offenses (attempt, solicitation, conspiracy); (3) Assault with intent to commit a battery; and (4) Theft offenses (larceny, larceny by trick, false pretenses, embezzlement, forgery, burglary, robbery). *EXAM NOTE: Use the mnemonic "FIAT." Whenever a fact pattern defines the crime as requiring "the intent to...," the crime is a specific intent crime.

State Authority

State authority to create crimes is based on the states' broad, inherent police power, which is implicitly recognized by the Tenth Amendment.

Model Penal Code

The Model Penal Code combines the M'Naghten and irresistible-impulse tests. The defendant is not guilty if, at the time of the conduct, he, AS A RESULT OF a mental disease or defect, did not have substantial capacity to appreciate the wrongfulness of the act or to conform his conduct to the law.

False Pretenses

The crime of false pretenses is a false representation of a past or present material fact made by the defendant with the intent to cause the victim to pass title to the defendant, and title is passed. False pretenses requires: (i) Obtaining title to the property; (ii) Of another person; (iii) Through the reliance of that person; (iv) On a known false representation of a material past or present fact; and (v) The representation is made with the intent to defraud.

Malice Crimes

The crimes of common-law murder and arson require MALICE, a reckless disregard of a high risk of harm. Although these two crimes appear to have an "intent" requirement (e.g., intent to kill), malice requires only a criminal act without excuse, justification, or mitigation. Intent can be inferred from the accomplishment of the act.

"Heat of Passion"

The defendant acts in the heat of passion if she was provoked by a situation that would inflame the passion of a reasonable person to the extent that it would cause that person to momentarily act out of passion rather than reason. The defendant cannot have been set off by something that would not bother most people. EXAM NOTE: Remember that "heat of passion" is NOT A DEFENSE; it merely reduces murder to voluntary manslaughter. *Sufficient Provocation -- A serious battery, a threat of deadly force, or discovery of adultery by a spouse constitutes sufficient provocation. Usually words, such as taunts, do not. **Second provocation: Even when the defendant has "cooled off," a second encounter with the victim may give rise to another situation in which the defendant acts in the "heat of passion."

Misprison

The defendant must have (i) had full knowledge that the principal committed and completed the felony alleged, (ii) failed to notify the authorities, and (iii) taken an affirmative step to conceal the crime.

Subjective Approach re Entrapment

The majority of states and the U.S. Supreme Court have adopted the subjective test for entrapment. Under this approach, the focus is on the defendant. Entrapment occurs when (i) the crime is induced by a government official or agent, and (ii) the defendant was not predisposed (i.e. ready and willing) to commit the crime. *If a defendant is predisposed to committing the crime, then the entrapment defense is not available, even if the government agent has engaged in misconduct, such as by supplying contraband.

Common-Law Murder

The unlawful killing of another living human being with malice aforethought. Malice can be shown by any one of the following states of mind: (i) intent to kill, (ii) intent to do serious bodily injury, (iii) reckless indifference to human life (depraved-heart murder), and (iv)intent to commit a felony (felony murder). *At common law, a fetus is not a living person.

Crimes Against Nature

There are two crimes under this category: sodomy and bestiality. Both are considered common-law felonies. It is most improbable that a defendant could be successfully prosecuted for the crime of sodomy. Because the majority in Lawrence held that intimate consensual sexual conduct was part of the liberty protected by the Fourteenth Amendment, Lawrence effectually invalidated similar laws that purport to criminalize sodomy. Bestiality (sexual intercourse with an animal by a human) continues to survive.

Retreat

There is never an obligation to retreat before employing nondeadly force. *Under the majority view, retreat is not required even when deadly force is used in self-defense. **Under the minority view (states that follow the so-called "retreat doctrine"), retreat is required if it can be safely accomplished. ***Even under the minority view, however, retreat is never required when the person employing deadly force is in his own home (i.e., the "castle doctrine").

Withdrawal

To legally withdraw (and therefore avoid liability for the substantive crime), the accomplice must (i) repudiate prior aid, (ii) do all that is possible to countermand prior assistance, and (iii) do so before the chain of events is in motion and unstoppable.

Bribery

Under common law, bribery was a misdemeanor involving the corrupt payment of something of value for the purpose of influencing the action of an official in the discharge of his public or legal duties. Under modern law, bribery can be a felony and may extend to persons who are not public officials. Mutuality is not required. Further, the offering or taking of a bribe may constitute a felony as well. In some jurisdictions, failure to report a bribe constitutes a misdemeanor.

Durham Rule

Under the Durham rule, a defendant is not guilty if the unlawful act was the product of the defendant's mental disease or defect and would not have been committed but for the disease or defect. This is the "but-for" test.

M'Naghten Test

Under the M'Naghten test, the defendant is not guilty if, because of a defect of reason due to a mental disease, the defendant did not know either (i) the nature and quality of the act or (ii) the wrongfulness of the act. *"Right from wrong" test

Death of a Co-Felon

Under the Redline doctrine, a defendant is generally not guilty of felony murder when a victim or a police officer, acting in self-defense or trying to prevent the escape of the defendant or his co-felon, kills the co-felon. Instead, the killing by the victim or the police officer is considered justifiable homicide.

Transferred Provocation

When - because of a reasonable mistake of fact - the defendant erroneously identifies her provoker or accidentally kills the wrong person, she will be guilty of voluntary manslaughter IF that would have been her crime if she had killed the provoker. However, if the defendant, in her passion, intentionally kills another person KNOWN to her to be an innocent bystander, then = no mitigation, and murder (rather than voluntary manslaughter) will apply.

Irresistible Impulse Test

Under the irresistible-impulse test, the defendant is not guilty if he lacked the capacity for self-control and free choice because mental disease or defect prevented him from being able to conform his conduct to the law. *The loss of control need not be sudden. This is an impulse that the defendant cannot resist.

Objective Approach re Entrapment

Under the objective approach, which has been advanced by the MPC and adopted by a few states, the focus is on the government's action and the effect those actions would have on a hypothetical innocent person. This approach requires the government official or agent to have induced or encouraged the defendant to commit a crime by employing methods of persuasion or inducement that create a substantial risk that the crime will be committed by an otherwise law-abiding citizen.

Pinkerton Rule

Under this rule, a conspirator can be convicted of both the offense of conspiracy and all substantive crimes committed by any other co-conspirators acting in furtherance of the conspiracy. *Under the MPC, the minority view, a member of the conspiracy is not criminally liable for such crimes unless that member aids and abets in the commission of the crimes.

Wharton Rule

Under this rule, if a crime requires two or more participants (e.g., adultery) there is no conspiracy unless more parties than are necessary to complete the crime agree to commit the crime. Although there is no conspiracy, the participants may be found guilty of the underlying crime itself.

Vicarious Liability

Vicarious liability crimes do not require an actus reus, but they do retain a mens rea requirement. *Vicarious liability differs from strict liability in that strict-liability crimes require a personal act on the part of the defendant (actus reus) but not mental fault (mens rea).

Voluntary Intoxication

Voluntary intoxication is a defense to specific-intent crimes if the intoxication prevents the formation of the required intent. *For example, intoxication may prevent the formation of the premeditation required for first-degree murder but not second-degree murder. Under the MPC, voluntary intoxication is a defense to crimes for a mental state that is purposely or knowingly and the intoxication prevents the formation of that mental state. **Voluntary intoxication is not a defense when the intent was formed before intoxication or when the defendant becomes intoxicated for the purpose of establishing the defense of voluntary intoxication. Voluntary intoxication is not a defense to crimes involving malice, recklessness, or negligence, or for strict-liability crimes.

Voluntary Manslaughter

Voluntary manslaughter is murder committed in response to adequate provocation (i.e., in the "heat of passion").

Purposely

When a defendant acts "purposely," his conscious objective is to engage in the conduct or to cause a certain result.

Feigned Agreement

When only one conspirator has the intent to agree, such as when the other conspirator is a governmental agent or pretends to go along with the crime to warn police, there is a conspiracy under the "unilateral" approach but there is no conspiracy at common law unless another participant is involved. *Common law did not consider husband and wife as co-conspirators because the law viewed them as a single entity. However, they could, as an entity, conspire with a third person. Nearly every jurisdiction has abolished this common-law concept.