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CRIMINAL LAW

I. GENERAL PRINCIPLES
Types of Crimes
A. Felony: A crime punishable by death or by imprisonment for more than one year.
B. Misdemeanor: A crime punishable for less than one year or by a fine only.
C. Malum Prohibitum: An act thats wrong only because it violates a statute.
D. Malum in Se: An act thats inherently wrong or evilan act that involves a general criminal intent or moral
turpitude.
E. Infamous: At common law, involves fraud or dishonesty. Modernly this has expanded to include most felonies.
II. Elements of Crimes
A. In General: The prosecution must prove the following elements beyond a reasonable doubt: (1) actus reus, (2)
mens rea, (3) concurrence in time between the act and the requisite mental state, and (4) occurrence of result for
crime completion (i.e. homicide crimes require that the victim die).
B. Actus ReusPhysical Act
1. Voluntary Act: Must be a volitional, conscious exercise of the will.
a. Reflex actions and sleepwalking not volitional.
b. Conditioned reactions or habitual responses volitional.
c. Acts performed under duress volitional, but duress may be a defense.
2. Omission to Act: Failure to act where theres (1) a legal duty to act, (2) had knowledge of facts giving
rise to the duty; and (3) can physically perform the act.
a. Legal Duty to Act: May arise by statute (i.e. failing to file a tax return); by K (i.e. failure of a lifeguard,
nurse, or guide on a hiking or river-rafting expedition to rescue); relationship between and the victim
(husband/wife; parent/child); voluntary assumption of care; creation of peril.
C. Mens Rea
1. Specific Intent1: Requires proof that intended to produce a specifically prohibited harm. Must always be
proven, never inferred.
a. Specific intent exists where wants/hopes/wishes that his conduct bring about a particular result or is
substantially certain his purposeful act will have a particular result.
b. Mistake of fact and voluntary intoxication are available defenses.
c. Crimes: Solicitation, attempt, conspiracy, 1st degree murder, assault, larceny/robbery, burglary, forgery,
false pretenses, embezzlement.
2. General Intent: must be aware of his actions and any attendant circumstances.
a. Crimes: Rape, battery, kidnapping, false imprisonment, involuntary manslaughter, DHM.
3. Malice: acts intentionally or w/ reckless disregard of an obvious or known risk that the particular harmful
result will occur. Not open to specific intent defenses. Applies to arson and common law murder.
4. Strict Liability: No mens rea required Act + Result = Guilt. Culpability imposed merely for doing the act
thats prohibited by statue.
a. Regulatory/Public Welfare Offenses: Implicate public health or safety; usually low penalty and dont
involve significant moral impropriety (i.e. traffic violations, administrative statutes, regulation of
firearms, food, and drugs).
b. Morality Crimes: Statutory rape and bigamy.
5. MPC Levels of Fault: Eliminates common law distinction between general and specific intent. Instead, it
proposes 4 categories into which the mental component of a crime can be characterized.
a. Purposely: Conscious objecting to achieve the offense. Common law = intentional.
b. Knowingly: knows the nature and/or result of his conduct.
c. Recklessly: Conscious disregard of a substantial and unjustifiable risk.
d. Negligently: Unaware of a substantial and unjustifiable risk, but shouldve been aware.
6. Other Statutory Categories of Mens Rea
a. Willful: Encompasses the concepts of intentionally and purposely, as opposed to accidentally or
negligently, and has been used to imply evil purpose in crimes involving moral turpitude.
b. Reckless: knew the risk but didnt care.
i. Conscious disregard of a substantial and unjustifiable risk that a material element exists or will result
from his conduct.
ii. Disregard involves a gross deviation from the standard of conduct that a law-abiding person would
observe in s situation.
c. Criminal Negligence: was unaware he created the risk, but shouldve been aware.
I.

1 Exam Tip: Whenever a crime includes the term w/ intent to, that is a specific intent element assault w/ intent to kill, w/ intent to
permanently deprive.

i.

Where s conduct creates a high degree of risk of death or serious injury w/o subjective awareness
he is doing so, but where a reasonable person wouldve been aware of the risk creation.
ii. Requires gross deviation from normal reasonable standard of care greater than that required for
civil negligence.
7. Transferred Intent: Preserves liability where intends criminal conduct against one party but instead harms
another party, so that his actions bring about an unintended, yet still criminal, result.
a. Only applies to homicide, battery and arson doesnt apply to attempt.
b. Defenses and mitigating circumstances may also be transferred.
c. will usually be charged w/ 2 crimes attempt and the actual resulting crime.
D. Concurrence: must have the intent necessary for the crime at the time he committed the act constituting the
crime mens rea & actus reus must exist simultaneously. In addition, the intent must have prompted the act.
E. Occurrence/Causation: s conduct must be both the A/C & P/C of the specified criminal result.
1. Actual Cause2: The result wouldnt have occurred but for s conduct.
a. Substantial Factor: When there are multiples causes or other parties responsible for the criminal result,
courts will still find a responsible if the s act was a substantial factor causing the criminal result.
2. Proximate Cause3: The actual result is the natural and probable consequence of s conduct. If the harm was
a foreseeable consequence of s conduct, is the proximate cause; if the harm was an unforeseeable result of
s conduct, is not the proximate cause.
a. Unforeseeable: Grossly negligent or reckless conduct that accelerates a death set in motion by .
b. Foreseeable: Unknown, special sensitivities or vulnerabilities of a victim; simple negligence
3. Direct Cause: When s actions alone cause the harm, hell probably be held responsible.
4. Indirect/Intervening Cause: Another force combines w/ s act to bring about harm. To relieve of liability,
the other force must be a superseding intervening cause to supersede, it must be unforeseeable.
a. Dependent: An intervening force thats a result of or response to s act. Will supersede only when its a
totally abnormal response to the s act.
b. Independent: Wouldve occurred regardless of s act. Will normally supersede s act, except when the
independent intervening force was foreseeable. A foreseeable coincidence doesnt relieve of liability.

I.

II. CRIMES AGAINST THE PERSON


Assault: An attempt to commit a battery or the intent to place another in fear of imminent injury.
A. Attempted Battery (specific intent): Requires intent to commit a battery. Intent to frighten, though accompanied
by some fear-producing act like point a gun, wont suffice.
1. So long as intended to commit the battery, its no defense that the victim was unaware of the assault or that
wasnt presently able to commit the battery.
B. Assault as a Threat (general intent): Intentional creation (by threatening conduct) of a reasonable apprehension of
imminent bodily harm.
1. Reasonable Apprehension: When a reasonable person would except imminent bodily harm. Connotes
expectation more than fear victim doesnt actually have to be afraid but rather simply and reasonably
anticipate or expect that s acts will result in immediate bodily harm.
2. Awareness: If the never intended to actually consummate the battery, the assault must be proved by the fear
theory, which requires the victim be aware of the threatened battery. Unlike attempted battery, fear or
apprehension is key no assault where victim is unaware of the threat of harm.
3. Merger: If feared battery is accomplished, assault and battery merge and is found guilty only of the battery.
C. Statutory Aggravated Assault: An assault may rise to aggravated assault under certain circumstances, including
(1) where commits an assault w/ a deadly weapon; (2) where acts w/ intent to seriously injure, rape, or murder
the victim; or (3) the victim is specially protected by statute.

II. Battery: Unlawful application of force to the person of another resulting in bodily injury or offensive touching.
A. General Intent: Established by proving that unlawfully applied force intentionally/recklessly/negligently; and
w/ no legal justification or excuse.
B. Force: May be direct or indirect. Where puts a force in motion, the force need not be applied directly by .
1.

Ex: Causing a dog to attack or by causing the victim to take poison.

C. Aggravated Battery: Common circumstances elevating batter to aggravated battery:


1. causing victim serious bodily injury
2. using a deadly weapon to commit the battery
3. battering a special category of persons (woman, child, or law enforcement officer)

2 Exam Tip: A/C is ALWAYS required; cant be a P/C unless hes first the A/C.
3 Exam Tip: Proximate cause analysis is required only when an intervening event comes between Ds actual cause and the criminal result.
If the facts so indicate, it is necessary to determine whether that intervening event (being by human or some other cause) supersedes Ds
responsibility. If the intervening event is foreseeable, it does not supersede; if it is unforeseeable, it normally will supersede.

D. Defenses
1. Consent: Always a defense where not coerced or obtained by fraud, not a defense to a breach of the peace.
2. Self-Defense/Defense of Others: Valid defenses to a battery charge, so long as uses proportional force.
3. Crime Prevention: Where commits an offensive touching to prevent someone from committing a crime,
this will be a defense to battery if uses proportional force.
III. False Imprisonment: Intentional, unlawful confinement of one person by another w/o consent.
A. Confinement: Victim compelled to go where he doesnt want to go or to remain where he doesnt want to remain.
Its not enough to prevent a person from going where he desires to go, as long as alternative routes are available to
him. May be accomplished by actual force, threats of force, or by a show of force.
B. Unlawful: Confinement is unlawful unless its specifically authorized by law or by consent. If is privileged to
confine, such as a police officer or private citizen making a valid citizens arrest no crime.
IV. Homicide: The unlawful taking of the life of another w/ criminal intent and w/o legal excuse or justification.
A. Common Law Murder: The unlawful killing of another person w/ malice aforethought. A killing is unlawful
when its w/o legal justification or excuse; or when its committed as the result of a criminal state of mind.
1. Actus Reus: May be a voluntary act, an involuntary act arising from a voluntary act, or an omission to act
where theres a legal duty to act.
a. Voluntary Act: Act is sufficient even if its itself lawful and/or inherently non-dangerous. If immediate
killing act was involuntary due to epileptic seizure or sudden unconsciousness, look to see whether the
last voluntary act by was done w/ awareness of possibility of loss of control.
b. Omission: Death caused by s failure to do an act he had a legal duty to do as the result of (1) special
statute, (2) contractual obligation, (3) special relationship of dependency, (4) voluntary undertaking (if
abandonment puts victim in worse position), or (5) s innocent act imperils victim.
c. Vicarious Liability: is responsible for homicidal acts of: (1) non-responsible agents put into motion by
, (2) accomplicesif act was reasonably foreseeable, and (3) co-conspiratorsif act was done in
furtherance of the conspiratorial goal.
2. Mens Rea: Malice Aforethought Express or Implied
a. Intent to Kill [express]: Desire/purpose to kill or knowledge to a substantial certainty death will
occur.
i. Deadly Weapons Doctrine: Intent to kill is normally inferred from s use of an instrument designed
to kill or used in a manner likely to kill or inflict GBH.
ii. Words alone may provide proof of intent to kill.
b. Intent to Cause Serious Bodily Harm [express]: Unintended killing resulting from an act done w/
purpose/knowledge that it cause serious protected injury or create a substantial risk of death.
i. Use of a deadly weapon in a way likely to cause serious injury provides evidence of intent to inflict
SBI.
ii. Includes any intentional wounding w/ a gun or knife, breaking of bones, clubbing, poisoning, or an
act designed to produce unconsciousness by drugs or violence.
c. Depraved Heard Murder [implied] (AKA Extreme Recklessness Murder): Unintentional killing
committed w/ reckless indifference to an unjustifiably high risk to human life.
i. More than mere recklessness act must reveal a wanton depraved indifference to human life.
ii. may knowingly create a very high risk of death or SBI for a logical and socially reasonable
purpose, in which case the conduct wouldnt be considered DHM.
d. Felony Murder [implied]: Unintentional killing proximately caused during the attempt or
commission or of an inherently dangerous felony. Malice is implied from the intent to commit the
underlying felony.
i. Felonies: Inherently dangerous felonies (i.e. burglary, arson, rape, robbery, kidnapping) & felonies
defined by statute. Also includes felonies that are committed in a dangerous manner.
ii. Collateral Felony Rule: A majority of states require that the underlying felony be collateral
(independent of homicide). If the primary felonious purpose is serious physical harm not
independent.
iii. Foreseeability of Death: Resulting death must be a foreseeable result of the felony.
1. Most courts have been willing to find most deaths foreseeable.
2. Only deaths that are totally unrelated to the felony and occur as a mere coincidence are
excluded.
iv. Timing: Death must occur during commission or perpetration of the felony. The felony starts when
has done enough to constitute attempt, and continues through the course and completion of the felony
until has reached a place of temporary safety. Includes fleeing from the scene.
v. Vicarious/Co-Felon Liability: Depends on jurisdiction.
3

1.

3.

Agency Theory (Modern/Majority): Killing must be committed by a co-felon; no liability when


a non-felon kills a felon or a bystander.
2. Proximate Cause (Common Law/Minority): All felons liable for any death that occurred during
the perpetration of the felony. Broadest application.
(a) Redline Limitation: Dead person must not be a felon exempts killings at the hand of a
non-felon when the killing is a justifiable or excusable homicide (i.e. police or victim shoots
felon).
(b) Nonviolent Exception: Affirmative defense for nonviolent co-felons who were unarmed,
unaware that violence would occur, and didnt encourage the violence.
vi. Fleeing Felon: An officer can use deadly force against a fleeing felon if: (1) the use of deadly force
is necessary to prevent felons escape; (2) the fleeing felon threatened the officer w/ a weapon or
officer has probable cause to believe that felon has committed a crime involving infliction of serious
physical harm; and (3) officer gives felon some warning of imminent use of deadly force, if feasible.
Causation: s conduct must be both the actual and proximate cause of victims death.
a. Actual Cause: But for s act, the victim wouldve lived longer.
i. Acceleration: Where victim is already dying, if s actions bring about the victims death more
quickly than if had not acted, s actions would be an actual cause of the killing.
b. Proximate Cause: Where victims death was a natural and probable consequence of s conduct, may
be guilty of murder, even where he didnt foresee the exact chain of events that resulted in victims death.
i. Year-and-a-day Rule: At common law, the victim must die w/in a year and a day of the injury
inflicted by . Most states have eliminated this rule or extended the period to 3 years.
ii. Intervening Acts: Can sever the chain of causation if the intervening act was (1) independently
sufficient to cause the death, (2) unforeseeable, and (3) and independent act of god or another
person not directly and logically flowing from s act.
iii. Pre-Existing Conditions: takes the victim as he finds him unknown and unforeseeable preexisting conditions which contribute to the victims death do not intervene.
c. Born Alive: Common law requirement for a living person was one born alive (though a state may
extend criminal liability to include a fetus after the 1st trimester).
d. Suicide Homicide: Death must be caused by someone other than the victim. Persuading or aiding
anothers suicide is sufficient basis for murder in some jurisdictions.

B. Voluntary Manslaughter: An intentional killing mitigated by adequate provocation or other circumstances


negating malice.
1. Heat of Passion/Adequate Provocation: Murder can be reduced to voluntary manslaughter if the killed in
the heat of passion.
a. Requirements: (1) Provocation would cause a sudden and intense passion in a reasonable person,
causing him to lose self control; (2) was in fact provoked; (3) insufficient time for a reasonable person
to cool off; and (4) in fact did not cool off.
b. Adequate: Measured objectively. Most frequently recognized in cases of being subjected to serious
battery or a threat of deadly force; discovering ones spouse in bed w/ another person; or witnessing
serious physical injury of a close family member. Mere words not enough.
c. No Cooling Off Time: There was insufficient time for a reasonable person to cool off between the
provocation and the killing (very subjective and fact-based). If a person does actually cool off, even
where a reasonable person might not have, its murder and not voluntary manslaughter.
2. Imperfect Self-Defense: Murder may be reduced to manslaughter even though (a) was at fault in starting
the altercation, or (b) unreasonably but honestly believed in the necessity of responding w/ deadly force.
a. Such mistaken justification has been applied to self-defense, defense of others, crime prevention,
coercion, and necessity.
3. Diminished Capacity: A minority of states allow diminished mental capacity short of insanity to negate
malice aforethought and reduce the charge to voluntary manslaughter.
C. Involuntary Manslaughter: An unintentional killing caused either by recklessness, criminal negligence, or
during the attempt or commission of an unlawful act.
1. Gross Negligence: Wanton disregard of the risk of death or SBI.
a. Requires more than ordinary negligence; doesnt have to be consciously aware of the risk created.
b. Normally deals w/ mishandling of an inherently dangerous instrumentality (i.e. guns, explosives, cars),
product, or situation (i.e. risk of fire in a public place).
c. An unintended death which occurs as a result of a battery that is not an attempt to inflict SBI is
considered involuntary manslaughter.

2.

Misdemeanor Manslaughter: Unintentional killing that occurs during the attempt or commission of a
misdemeanor that is malum in se, or a felony thats not under FMR.
a. Death resulting from a malum prohibitum crime is sufficient to impose liability or involuntary
manslaughter only when the killing is either a foreseeable consequence of the unlawful conduct or
amounts to criminal negligence.

D. Murder by Degrees
1. 1st-Degree Murder
a. Deliberate & Premeditated Killing: Where acted in a cool and dispassionate manner (deliberate) and
had time to reflect upon the idea of killing, even if only for a moment (premeditated).
i. Typically includes lying in wait, murder by poison, terrorism, torture, or murder of a special victim.
b. Felony Murder: 1st degree murder if the felony is enumerated.
2. 2nd-Degree Murder: Any murder that doesnt rise to the level of 1st-degree. Examples include:
a. Where s malice is intent to inflict serious bodily injury
b. Where acted w/ wanton and willful misconduct
c. FMR, where the underlying felony isnt specifically listed under the statute.
V. Kidnapping
A. Common Law: Forcible abduction or stealing away of a person from his own country and sending him to another.
B. Modernly: Confinement of a person that involves either some movement (asportation) of the victim; OR
concealment of the victim in a secret place.
C. Aggravated Kidnapping: Separate offense in some states. Usually includes kidnapping for ransom, for purpose
of commission of other crimes, or child stealing.
D. Asportation/Movement: Majority of jurisdictions require some movement of the victim. If the victim is restrained
but is not moved, it is not kidnapping. In a minority of jurisdictions, unlawful restraint alone can prove
kidnapping.
VI. Mayhem
A. Common Law: Required an intent to maim or do bodily injury accompanied by either (1) dismemberment; or (2)
disabled the use of a victims body part that was useful for fighting.
B. Modern Rule: The permanent dismemberment or disablement of a bodily part. In jurisdictions that dont retain
the crime of mayhem, this offense will normally qualify as an aggravated battery.
VII.Rape
A. Common Law: Carnal knowledge of a woman by a man, not her husband, by force and w/o her effective consent.
1. A man could not rape his wife or a man.
2. Force or threat of force was required for rape to occur, and a victim had to physically resist to the utmost in
such a manner that demonstrates lack of consent and causes perpetrator to use violence in order to overcome
her will.
B. Modernly: The unlawful sexual intercourse of a female w/o her consent
1. Force requirement eliminated. Its enough that there was verbal resistance or absence of affirmative consent.
Force is met by the degree of force required to achieve penetration.
2. Lack of effective consent exists if: (a) intercourse is accomplished by force or threat of immediate SBI; (b)
victim is incapable of consenting due to lack of capacity (i.e. unconscious, intoxicated); or (c) victim
fraudulently caused to believe the act is not intercourse.
C. Actus Reus: Penetration. The slightest penetration is sufficient to constitute rape. Other nonconsensual sexual
contact is generally covered under a separate crime of sexual assault, sexual contact, or sexual battery.
D. Statutory Rape: Where a female is under the statutorily prescribed age of consent, an act of intercourse
constitutes rape despite her apparent consent. s mistake as to age is no defense.

I.

III. CRIMES AGAINST PROPERTY


General Principles
A. Theft crimes involve taking of property from the victim by . The key to analyzing thefts is to examine 3 criteria:
1. How the obtained the property: trespass, delivery, or trick;
2. Whether the acquired custody, possession, or title to the property; and
3. Whether the formed the intent to permanently deprive (steal) the property at some time while still in
unlawful possession of the property.
B. Intent: Intent to permanently deprive (or steal) is the sine qua non of all theft offenses. If never forms the intent
to permanently deprive before the property is restored the rightful possessor, cant be guilty of any form of theft
offense. An unlawful taking, even w/ intent to temporarily deprive, is never theft.
5

C. Forms of Control
1. Title = legal ownership, and implies possession.
2. Possession = full dominion and control over the property, but doesnt require title.
3. Custody = physical control of property in someone elses possession w/o full dominion over the propertythe
possessor places strict limits on permissible use of the property.
II. Larceny: The trespassory taking and carrying away of personal property of another w/o consent and w/ intent to
permanently deprive the owner thereof.
A. Taking: Assertion of dominion and control over the property by a who doesnt have lawful possession, generally
through trespass (w/o consent).
1. When taking is accomplished by trickery larceny by trick.
2. If already has possession embezzlement.
B. Asportation: The slightest movement will suffice (i.e. 6 in.). Must concur in time w/ intent to permanently
deprive.
C. Personal Property: must take personal property at common law, but most states have special statutes for theft
of services and other intangibles (i.e. gas and electrical power and written instruments that represent property
rights).
1. Abandoned/Lost/Mislaid Property: Abandoned property cant be the subject of larceny. Lost or mislaid
property is regarded as constructively in the possession of the owner; thus, to be guilty of larceny, the finder
must (a) intend to permanently deprive the owner of it; and (b) either know who the owner is or have reason
to believe (from earmarkings on the property or from circumstances of the finding) that he can find out the
owners identity.
D. Of Another: Property must be taken from someone who has a possessory interest superior to that of . Any bona
fide claim of right is a complete defense.
1. Employees: Only have custody over employers property. They can have possession if a 3P gives property
directly to an employee for the benefit of employer, or the employee is in a high-level position.
2. Bailees: Generally have possession. When a bailee opens closed containers and then misappropriates property
under the breaking bulk doctrine, constructive possession is said to exist in the bailor, and the baileehave
only custody of the propertyis guilty of larceny.
E. Intent to Permanently Deprive: Specific intent to permanently dispossess must exist at the time of taking.
1. Sufficient Intent: There is larceny if : (a) intends to pay for or replace the property at a later time, (b)
intends to return only if a reward is paid, or (c) recklessly exposes property to loss.
2. Insufficient Intent: There is no larceny if: (a) intends to return the property w/in a reasonable time and he
has substantial ability to do so (not conclusive); (b) honestly believes hes entitled to the property as
repayment for a debt goods cant be worth more than amount of debt; or (c) pawns property intending to
get it back.
3. Continuing Trespass: When on borrows property w/ the intent to return it, but later keeps it larceny arises
at the moment decides not to return the property.
a. Initial taking must be wrongful if it was, trespass continues until the time intent to steal is formed.
4. Mistake: Where has a good-faith belief that hes entitled to possession, theres no intent to permanently
deprive, even if that belief is wrong and unreasonable.
III. Embezzlement: The fraudulent conversion or misappropriation of property of another by one who is already in lawful
possession of that property.
A. Fraudulent: must intend to defraud for a conversion to become embezzlement.
1. Specific fraudulent intent to steal may be negated by an honest belief that has a right to the property or
intends to restore the exact property.
B. Conversion: uses property in a manner inconsistent w/ the trust arrangement pursuant to which he holds it.
1. Some action toward property (i.e. selling, consuming, pledging, donating, discarding, heavily damaging, or
claiming title to it), which seriously interferes w/ the rights of the owner.
C. One in Lawful Possession: must have lawful possession at the time of conversion.
1. Some states require that the property by entrusted to . Such statutes have been construed as not applicable
to s who come into lawful possession of property by finding it or by mistaken delivery.
2. Fraudulent conversion by a co-owner of property is not embezzlement.
IV. False Pretenses: Obtaining title to anothers property using false statements of past or present fact, w/ intent to
defraud.
A. False Representation: There must be a misrepresentation of a present or past fact false promise not enough;
must relate to a material fact, not opinion.

1.

Its not misrepresentation to fail to correct what is known to be a mistaken belief that victim holds, if wasnt
responsible for creating that belief or has no fiduciary duty to aggrieved party.
B. Obtaining Title: Victims reliance upon representation must cause him to pass title.
1. If only custody is obtained larceny by trick. If title is obtained false pretenses.
2. Where money is delivered to in a sale or trade situation by the person defrauded, title generally passes
false pretenses. If is tricked into giving up possession larceny by trick because no title has passed.
C. Intent to Defraud: mustve known statement was false when he made it.
V. Larceny By Trick: Obtaining possession of anothers personal property through fraudulent misrepresentation.
A. Convey Possession: s fraud is used to cause the victim to convey possession, not title (as in false pretenses).
1. In some states, there must be an intent to steal at the time of the induced delivery; a who has some lesser
(but still wrongful) intent and then subsequently converts the property to his own use may be guilty of
embezzlement.
2. In other states, the fraud will be construed as a trespass, which continues until the time of the taking and,
therefore, a later misappropriation would still be considered larceny by trick.
B. Fraud: Factual misrepresentations and false promises are typically sufficient.
VI. Robbery4: Larceny accomplished by force or threat of force.
A. Taking from Person or Presence of Victim: Property must be taken from some location reasonably close to the
victim, but it neednt be taken from her person.
1. Property is in victims presence if its in her vicinity.
2. Property in other rooms of the house in which the victim is located is in her presence.
B. Force/Threats of Force: Must precede or accompany the taking. Victim must give up property because she feels
threatened or harmed.
1. Slight force may be enough, but must be something more than whats required to just move the property.
2. Threats of future are insufficient.
VII. Extortion: Obtaining property of another by use of threats of future harm or exposing information to deprive an owner
of his property blackmail.
A. Threats: Essence of extortion, and includes threats to expose a person or his family to disgrace and threats to
accuse the victim of a crime.
1. Some statutes consider the crime complete upon the making of the threats w/ the specific intent to obtain
money or property, while other statutes require the threats to actually cause the victim to part w/ his property.
B. Robbery vs. Extortion
1. Extortion threats of future harm. Robbery threat of immediate harm.
2. Extortion property need not be obtained from victims person or presence. Robbery property must be in
victims presence or vicinity.
VIII. Bad Checks: All jurisdictions have enacted bad check legislation to deal w/ no-account or insufficient-funds
checks given w/ intent to defraud. The giving of the check is an implied representation of sufficient funds, absent
postdating or some other means of notification of inadequate credit by the drawer. The requisite mental state of the
drawer is often required to be that of knowledge of the insufficient funds and intent to defraud.
IX. Receiving Stolen Property: Receiving possession and control of stolen property known to be stolen w/ intent to
permanently deprive the owner.
A. Possession: Receiving physical possession, while the most common situation, isnt required as long as exercises
control over the goods.
B. Stolen Property: Property must have stolen status at the time its received. If stolen goods have been recovered
by the police and are used in an undercover operation w/ the owners permission, the goods arent stolen and
cant be guilty of receipt of stolen property (though he can be guilty of attempt to receive stolen goods).
C. Known to be Stolen: must either know or actually believe that the property is stolen. An honest but
unreasonable belief that property is not stolen would likely prevent a conviction.
D. Intent to Permanently Deprive: At the time receives stolen property, he must have the specific intent to
permanently deprive the owner of that property. Conditionally offering to return the propertysuch as upon
payment of a rewardmay evidence an intent to permanently deprive.
X. Forgery: Fraudulent making/altering a written document w/ purported legal significance to be false, w/ intent to
defraud.

Larceny, assault, and battery are lesser-included offenses of robbery.

A. Fraudulent Making: Satisfied by creation of a new document, altering an existing document (including
improperly filling in a form), or by inducing someone to sign a document knowing that the person is unaware of its
significance.
1. Completion of the making element completes the crime; doesnt have to actually use the forged document
to be found guilty of forgery.
2. An alteration must be material (change the legal meaning or effect of the document) to qualify the action as an
element of forgery, such as signing a false signature to a will.
B. False Writing: Any writing that has an apparent legal significance is a potential subject of forgery.
1. To have apparent legal significance, the writing must have some purpose or value beyond the documents own
existence, such as a K, will, negotiable instrument, deed, or mortgage.
C. Intent to Defraud: must have specific intent to defraud; not necessary that intended to do pecuniary harm.
Actually defrauding someone is not required; intent to defraud is sufficient.
XI. Crimes Against the Habitation
A. Burglary: Breaking and entering of the dwelling of another at night w/ intent to commit a felony therein.
1. Breaking: Can be actual or constructive.
a. Actual: Requires some use of force to gain entry; minimal force is sufficient (i.e. slight enlargement of an
existing opening). Traditionally, pushing a door or window that was already left open breaking.
b. Constructive: Satisfied where gains entry by fraud, deception, or threat of force.
2. Entering: Achieved by placing any portion of the body inside the structure, even momentarily.
a. At common law, a tool was not enough. Today, any tool invading the property is sufficient if its used to
achieve the criminal purpose (as opposed to using it to gain entry).
b. Breaking to exit rather than to enter is not burglary breaking must be to gain entry.
c. Entry through an open door where later opens an inside closet door is sufficient.
3. Dwelling: Must be a place where one normally sleeps; modern statutes extend to all enclosed structures.
a. Includes curtilage structures immediately surrounding the dwelling and physically connecting
buildings.
4. Night: At common law, burglary had to be done at night. Modern statutes eliminated requirement.
5. Intent to Commit Felony: Breaking and entering must be accompanied by a simultaneous felonious intent.
Its not necessary that the felony be carried out.
a. Under some modern statutes, an intent to commit a misdemeanor will suffice.
b. An intent formed after entry is insufficient, absent an additional entry once inside.
B. Arson: The malicious burning of the dwelling of another.
1. Malice: No specific intent to burn is required; only that intentionally took an action that involved a
substantial risk of burning. Its not sufficient that the burning was accidental, even if was negligent.
2. Burning: Dwelling doesnt have to be substantially or totally damaged; must be at least charring (slight
burning). Blackening or scorching not enough; neither is burning the contents of a house w/o damaging the
structure.
3. Dwelling: Expanded to include any structure.
IV. INCHOATE OFFENSES: ATTEMPT, SOLICITATION, AND CONSPIRACY
I.

Attempt: (1) A specific intent to bring about a criminal result and (2) a significant overt act in furtherance of that intent,
beyond mere preparation.
A. Mens Rea: Specific intent always required, even if the target offense is a general intent offense.
1. Attempt to commit strict liability crimes also requires specific intent.
B. Actus ReusOvert Act: Must be an act beyond an act of mere preparation.
1. Common Law: was required to have performed the last act necessary to achieve the intended result.
2. Proximity Test: Requires an act that is dangerously close to success. Focuses on how close in time and
physical distance was to the time and place the target crime was to be committed.
3. Equivocality Test: Requires that s conduct unequivocally manifests criminal intent he has no other
purpose than the commission of the crime attempted.
4. MPC: Requires that an act that constitutes a substantial step toward the commission of the offense that
corroborates the criminal intent required, such as scouting out the scene of the intended crime.
C. Defenses
1. Abandonment: Not a defense at common law. Modernly/MPC permits abandonment if (a) voluntarily
abandons the criminal act (b) prior to completion of the crime (c) under circumstances manifesting a
complete renunciation of criminal intent.
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a.
2.
3.

II.

Voluntary = true change of heart, not simply giving up in the face of difficulties or an increased likelihood
of being caught.
b. Complete = is not merely postponing commission of the crime.
Legal Impossibility: Valid defense cant be guilty of attempting to do something that is not a crime.
Factual Impossibility: Its no defense that the substantive crime is incapable of completion due to some
physical or factual condition, unknown to .
a. Ex: mistakes sugar for poison; attempts to pick an empty pocket, or kill a person already dead.

Solicitation (Attempted Conspiracy): Inciting, counseling, advising, inducing, urging or commanding another to commit
a crime w/ the specific intent that the person solicited commit the crime.
A. Actus Reus: Inviting, requesting, commanding, hiring, encouraging, etc. (any synonyms).
1. Once communicated, solicitation is complete. Completion of the offense solicited is unnecessary.
2. Agreement by the solicited party is not required. A person solicited to do a crime may not even respond, but
the solicitor will still be guilty of solicitation. If the solicitee does agree, it gives rise to conspiracy.
B. Mens Rea: Specific intent that the solicitee perform criminal acts.
C. Merger: Unlike conspiracy, solicitation merges into the target crime upon completion.
1. Solicitor is treated as an accessory before the fact, and will be guilty of any solicited crime (whether attempted
or completed) by the solicitee.
2. A solicitor may not be guilty of the offense if he could not be convicted of the underlying crimei.e. where
the solicitor is a member of a class of persons the law seeks to protect (minor).
D. Defenses: At common law, there were no defenses. Modernly, specific intent defenses are legitimate.
1. Factual Impossibility: No defense. The culpability of the solicitor is measured by the circumstances as she
believed them to be, not what they actually are.
a.

2.

III.

Ex: A person can be guilty of soliciting an undercover agent.

Withdrawal: Once solicitation is complete, its no defense that the solicitor changed her mind. Where the
solicitor changes her mind, the change of heart may be a defense to the underlying crime, but not to the
solicitation.
a. MPC recognizes renunciation as a defense if prevents the commission of the crime, such as by
persuading the person solicited not to commit the crime.

Conspiracy: (1) An implied or express agreement (2) between 2 or more persons (3) who have the specific intent to
either commit the crime or pursue an unlawful objective and (4) make an overt act in furtherance of the target crime.
A. Actus ReusAgreement: At common law, the agreement itself is the only act required to complete the crime;
Today, states require some additional overt act in furtherance of the conspiracy.
1. Agreement: Actual agreement is required. There doesnt need to be a meeting of the minds, but merely a
shared intent to pursue a mutual goal.
a. False Agreement: Secret police agent or other false agreement situations are not conspiracies there
must be true actual intent to carry out unlawful objective by at least 2 parties. (MPC is contra; party w/
true intent is still liable).
b. Proof: May be proved circumstantially or inferred from concert of action look for mutual adoption of a
common purpose.
c. Single or Multiple Conspiracy: The agreement is the essence of conspiracy; thus, theres only one
conspiracy even if agreement encompasses several diverse criminal acts and even if agreement entails a
continuous course of criminal conduct.
d. Chain Relationship: Where several crimes are committed under one large scheme in which each member
explicitly or implicitly knows of each other parties participation and a community of interest exists, one
single conspiracy results and all the links in the chain are liable for each others crimes.
e. Hub-and-Spoke Relationship: Where one common member enters into agreements to commit a series of
independent crimes w/ different individuals, multiple conspiracies exist. The common member is the
hub of the wheel, and each sub-agreement is a spoke and a separate conspiracy.
2. Overt Act: Majority rule is that an overt act in furtherance of the conspiracy is also required.
a. Different from common law, where the agreement itself constituted the crime.
B. Two or More Persons
1. Common Law (Bilateral): Conspiracy required 2 guilty minds; there could be no unilateral conspiracy. If one
person is feigning agreement, the other party couldnt be convicted of conspiracy.
2. Modernly (Unilateral): Follows MPC approach, which requires that only one party have genuine criminal
intent.
3. Wharton Rule: Where 2+ people are necessary for the commission of the crime, there is no conspiracy
unless more parties participate in the agreement than are necessary for the crime.
a.

Ex: If A and B engage in a duel, theyre guilty of the crime of dueling, but not of conspiracy to duel.

b. Crimes: Dueling, gambling, bigamy, adultery, incest, giving and receiving of bribes.
c. Compare: Wharton doesnt apply to agreements w/ necessary parties not provided for. Thus, where a
statute prohibiting the sale of narcotics imposes criminal liability only on the seller and not on the buyer,
both buyer and seller may be guilty of conspiracy to sell narcotics (even though both parties are necessary
for commission of the substantive offense).
4. Acquittal on Merits: An acquittal of one co-conspirator traditionally results in the acquittal of a single
remaining co-conspirator because at least 2 guilty parties are required for a conspiracy conviction. However,
its not necessary to try more than one conspirator. A single conspirator could be tried and convicted of
conspiracy if his co-conspirators were missing or dead.
5. Members of a Protected Class: If members of a conspiracy agree to commit an act that violates a statute that
was designed to protect persons w/in a given class, a person w/in that class CANNOT be guilty of the crime
itself (i.e. a minor female cant conspire w/ a male to commit statutory rape).
C. Mens ReaDual Intent: Specific intent to combine w/ others & specific intent to achieve the objective of the
agreement. Mere knowledge is insufficient to establish the intent necessary to commit the unlawful act.
1. Intent to Facilitate Conspiracy: One who acts w/ intent to facility can become a member of the conspiracy.
But intent cant be inferred from mere knowledge. For example, a merchant who sells a good he knows will be
used to further a conspiracy doesnt thereby join the conspiracy. On the other hand, a merchant may be held to
have joined the conspiracy if the good sold is a specialty item that cant be easily obtained elsewhere or if the
merchant otherwise has a stake in the criminal venture.
2. Corrupt Motive: Some states require an evil motive flow implicitly from the conspiracy. Operates as an
exception to the general rule that ignorance of the law is not an excuse parties to a conspiracy mustve
known that their objective was criminal.
D. Co-Conspirator Liability (Pinkerton): When a conspirator doesnt have the sufficient mens rea for liability as an
accomplice, Pinkerton provides that each conspirator may be liable for the crimes of co-conspirators if the crimes
were (1) committed in furtherance of the objective, and (2) were reasonably foreseeable.
1. Withdrawal: Pinkerton ONLY applies if the conspirator has not made a legally effective withdrawal from the
conspiracy before the commission of the crime. Withdrawal from Pinkerton crimes may occur where a
conspirator: (a) notifies all other members of the conspiracy, and (b) such notice is timely, giving other
members the opportunity to abort their plans. (If he also gave assistance, he must attempt to neutralize
assistance).
E. Defenses
1. Withdrawal: Generally not a valid defense because the conspiracy is complete as soon as agreement is made
and overt act is committed.
a. Voluntary Withdrawal: At common law and MPC, a complete and voluntary withdrawal from the
conspiracy severs from liability for future crimes of former co-conspirators, but is NOT a defense to the
conspiracy itself. Requires timely notice to all co-conspirators.
b. MPCRenunciation: If the co-conspirator withdraws and performs an affirmative act to thwart the
success of the conspiracy, he can use this renunciation as an affirmative defense to the conspiracy itself.
2. Impossibility: Neither factual nor legal impossibility is a defense.

I.

V. ACCOMPLICE LIABILITY
Rule: An individual is criminally liable as an accomplice if he gives assistance or encouragement or fails to act where he
has a legal duty to oppose the crime of another and purposefully intends to effectuate commission of the crime.
A. Common Law: Traditionally distinguished between accessories before and after the fact and principals in the 1 st
and 2nd degree; i.e. an accessory couldnt be convicted unless the principal had already been convicted, although
both could be convicted in a joint trial if the jury determined the principals guilt first. All were guilty as if they
had actually committed the crime.
1. Principal in the 1st Degree: Primary perpetrator who performs the criminal act w/ the requisite mental state.
2. Principal in the 2nd Degree: Present at the scene and aids, abets, or otherwise encourages commission of the
crime w/ the requisite intent. Mere presence or knowledge w/o assistance or assistance w/o intent are
insufficient.
3. Accessory Before the Fact: One who aids, abets, or otherwise encourages but is not present at the scene.
4. Accessory After the Fact: One who aids/abets a principal after commission of the crime; requires proof of:
(a) completed felony committed; (b) accessory mustve known of the commission of the felony; and (c)
accessory mustve personally given aid to the felon to hinder the felons apprehension, conviction, or
punishment.
B. Modern Approach: Distinguishes only between accomplices and accessories after the fact. An accomplice to a
crime is fully liable for the committed crime. One who meets the requirements to be a common law accessory
after the fact is charged w/ a distinct crime, such as hindering apprehension or obstruction of justice, not w/ the
crimes committed by the principal.
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1.

II.

III.

IV.

V.

I.

Accomplice: An individual is an accomplice if (1) he gives assistance or encourages the commission of a


crime (2) w/ the purpose of bringing about commission of the crime.
Actus ReusAssistance: Slight encouragement is sufficient, but must actually assist or encourage.
A. Assistance need not be the actual cause of the commission of the crime.
B. Mere presence doesnt make one an accomplice.
C. Words alone may be sufficient if they assisted or encouraged.
D. MPC recognizes liability for one who attempts to aid or encourage but actually doesnt.
Mens ReaDual Intent: (1) Intent to assist the principal and (2) intent that the principal commit the offense.
A. A minority of modern statutes create accomplice liability w/ a lower mental statethat of knowingly assisting or
encouraging a crime, such as in cases where a seller, known of the buyers intent to commit arson, sells him an
explosive devise.
Scope of Liability
A. Rule: An accomplice is responsible for the crimes he purposefully facilitated and for all other crimes committed
by the principal that are reasonably foreseeable outgrowths of the primary crime.
1. MPC: Limits accomplice liability to only the crime assisted or encouraged.
B. Foreseeability: Objective test its no defense that the accomplice didnt expect the principal to commit the
secondary offense.
Defenses
A. Withdrawal: One who has rendered encouragement or aid to another may avoid liability as an accomplice if he
voluntarily withdraws from the crime before its actually committed.
1. If the person encouraged withdrawal requires that he repudiate encouragement.
2. If the person assisted by providing some material withdrawal requires some attempt to neutralize this
assistance, but he doesnt have to try to thwart commission of the crime.
B. Protected Class: If the statute is intended to protect members of a limited class from exploitation or overbearing,
members of that class are presumed to be immune from liability, even if they participate in the crime in a manner
that would otherwise make them liable.
C. Necessary Parties Not Provided For: If a statute defines a crime in a way that necessarily involves more than one
participant and provides for the liability of only one participant, its presumed that the legislative intent was to
immunize the other participant from liability as an accomplices. Usually applies to statutes making the sale of
certain items a criminal offense.
VI. DEFENSES
Excuse Defenses: An excuse forgives the for committing an unjustified crime because of some disturbance of the
s mental process, and thereby nullifies the culpability for the crime.
A. Insanity: Exempts certain s because of the existence of an abnormal condition at the time of the crime.
Depending on the jurisdiction, there are various tests for insanity.
1. MNaghten Rule: Focuses on s reasoning abilities.
a. Test: A is relieved of criminal responsibility upon proof that at the time of the offense:
i. was laboring from a severe mental disease of the mind5/defect of reason;
ii. disease caused a defect of reason;
iii. as a result; was unable to know either
(1) the nature/quality of his act, or
(2) he didnt know the act was wrong.
b. Application: Some jurisdictions will find that a is not insane where, even though believes the act was
not morally wrong, he knows it to be illegal. Others will find s who do not know an act was morally
wrong to be insane regardless of their belief as to the acts legality.
2. Irresistible Impulse Test: is not criminally responsible if at the time of the offense: (a) he was unable to
control his conduct (b) as a result of mental disease.
3. Durham (New Hampshire) Test: is not criminally responsible if his unlawful act was the product of mental
disease (i.e. wouldnt have been committed but-for the defect or disease).
4. MPC/ALI Test6: is not criminally responsible if at the time of the offense:
a. suffered from a mental disease/defect;
b. lacked substantial capacity as a result to either
i. appreciate the criminality of his conduct, or
ii. conform his conduct to the requirements of law.
5. Procedural Issues
a. A is presumed sane until such time as he goes forward by raising evidence as to his sanity.

5 Includes all mental abnormalities, but not a psychopathic personality.


6 Combination of MNaghten & Irresistible Impulse.
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II.

b. Insanity is an affirmative defense, but once introduces evidence of insanity, the burden of proof shifts to
the prosecutor to show is not insane.
c. A not guilty plea at arraignment doesnt waive the right to raise the insanity defense at a later time.
B. CompetencyMental Condition During Criminal Proceedings
1. Rule: DPC states that a may not be tried, convicted or punished if, as a result of mental disease/defect, is
unable to: (a) understand the nature of the proceedings being brought against him; or (b) assist his lawyer in
preparing his defense.
2. Procedure: Theres usually a jury determination of competence. If is found incompetent, he can later be
tried and punished if competency is restored.
3. Insanity vs. Competence: Insanity concerns the s mental state at the time the offense is committed;
competency is assessed at any time during the pendency of the criminal case in court.
C. Diminished Capacity: Some jurisdictions allow this defense, which is short of insanity, to prove that as a result of
a mental defect, didnt have a state of mind that is an element of the offense. When pleading diminished
capacity, the defense is used to negate a specific mental state required for the particular crime.
D. Intoxication
1. Voluntary Intoxication: chose to consume an intoxicant. Defense to specific intent crimes if it negates the
requisite mental state, and may negate a purposeful or knowing mental state (i.e. 1st-degree murder, assault,
incomplete crimes, property crimes)..
a. Not a defense to strict liability crimes or crimes requiring malice, recklessness, or negligence.
2. Involuntary Intoxication: Treated as mental illness and may be a defense to all crimes. Arises when was
given an intoxicant w/o knowledge or forced to consume an intoxicant.
E. Infancy: At common law, infancy was a complete defense for children under 7. Children 7-14 were rebuttably
presumed to lack criminal capacity, and children 14+ were held responsible as adults.
Justification Defenses: A justification establishes that what is normally unlawful was not unlawful under the particular
facts of the case, and thereby nullifies the reus of crime. Justifications include self-defense, defense of others, defense
of property, and necessity.
A. Self-Defense: If has a reasonable belief that hes in imminent danger of unlawful bodily harm, he may use that
amount of force in self-defense that is reasonably necessary to prevent such harm, unless he is the initial aggressor.
1. Non-Deadly Force: (Only threatens bodily harm) May be used if is not the initial aggressor and if
reasonably believes it necessary to protect himself from imminent unlawful force.
a. Necessary Force: Short of deadly force, may use that amount of force that is reasonably necessary to
prevent the threatened harm. If uses excessive force, he becomes an aggressor and he loses the right of
self-defense. Force must be proportional to the initial attack.
2. Deadly Force: Threatens death or serious bodily harm. May only be used in response to deadly force or to
counter a threat of SBI.
a. Duty to Retreat (minority): may not use deadly force if he actually knew he couldve prevented the
harm by retreating. Retreat required if feasible and can be done in safety before using deadly force.
Retreat not required where the attack occurs at home.
b. If non-deadly force would stop a deadly attack, responding w/ deadly force is not reasonable.
c. Never self-defense to kill in order to retaliate or seek revenge for a wrongful attack one the attack is over.
3. Aggressors: Can regain the right of self-defense if (a) he abandons aggression completely and victim
perceives the abandonment, or (b) victim uses excessive force/sudden escalation of force by the victim.
B. Defense of Others: is justified in using only the amount of force which the 3P could use in his own defense.
1. Majority: Focuses on the reasonableness of s belief that the 3P was being unlawfully attacked. If the 3P is
also the aggressor or a felon resisting lawful arrest, and reasonably but mistakenly uses lethal force against
the victim to protect that 3P, may still claim this defense.
2. Minority: One may only defend another if the person being defended was justified in using self-defense.
has no more right to use deadly force that 3P ostensibly being protected. ( steps into the shoes of the 3P).
C. Defense of Property: Reasonable, non-deadly force is justified in defending ones property from theft,
destruction, or trespass where has a reasonable belief that the property is immediate danger and no greater force
than necessary is used.
1. Non-Deadly Force: May be used to prevent unlawful interference w/ possession or trespass. Non-deadly
force is improper where a request to desist would suffice.
2. Deadly Force: May never be used to defend property UNLESS the defender reasonably believes an entry will
be made or attempted in his dwelling by one intending to commit a felony therein.
D. Necessity: General defense that justifies the commission of conduct that is otherwise criminal when: (1) its
necessary to avoid an immediate threat of greater harm to persons or property; (2) theres no reasonable alternative
to breaking the law and avoiding greater harm; and (3) isnt responsible for causing the harm.
1. Objective test commission of the crime must be reasonably necessary; good faith alone is insufficient.

12

2.

III.

IV.

V.
VI.

Exceptions necessity not available if the crime committed results in the death of another or where
originally caused the circumstances giving rise to the necessity.
E. Duress7: A person is not guilty of an offense (other than homicide) if he performs an otherwise criminal act under
the threat of imminent infliction of death or serious bodily harm.
1. must reasonably believe that death or serious bodily harm will be inflicted on himself or a member of his
family if he doesnt perform such conduct.
2. Threats to property not sufficient; MPC allows defense where threat to property outweighs the harm to society
by commission of the crim.
F. Law Enforcement Defenses
1. Police: An officer may use that amount of non-deadly force that he reasonably believes necessary to effect a
lawful arrest or prevent the escape of the arrestee. An officer may use deadly force only to prevent the
commission of a dangerous felony or to effectuate an arrest of a person reasonably believed to have
committed a felony where it reasonably appears necessary to the officer.
a. Officers who mistakenly use deadly force in fleeing felon situations may be justified.
2. Private Citizens: Privileged to use amount of non-deadly force that reasonably appears necessary to prevent
the commission of a felony or a breach of the peace misdemeanor.
a. May use the same amount of deadly force as a police officer only if a dangerous felony is involved and
the person harmed was actually guilty of the crime.
b. A private-citizen who mistakenly used deadly force to prevent escape of a fleeing felon is not justified.
3. Resisting Unlawful Arrest
a. An individual may lawfully repel, w/ deadly force if necessary, an attack made y a police officer trying to
arrest if doesnt know that the person is a police officer.
b. Non-deadly force may be used to resist an improper arrest even if a known officer is making that arrest.
c. A minority dont permit even non-deadly force in order to resist an unlawful arrest.
Entrapment: An available defense to criminal liability if a law enforcement agent has induced to commit a crime.
A. Elements: (1) The criminal design must have originated w/ law enforcement officers; and (2) wasnt been
predisposed to commit the crime prior to the initial contact by the government.
1. Criminal design = idea or plan for the crime.
2. must have no criminal disposition.
3. Law enforcement providing an opportunity for a person to commit a crime is not, by itself, entrapment.
B. Private Inducement: A person cant be entrapped by a private citizen. Inducement constitutes entrapment only if
performed by an officer of the government or one working for him or under his control.
Mistake
A. Mistake of Fact: A defense where it negates the existence of a mental state required to establish a material
element of the crime. There would be no crime if the facts were such as thought them to be.
1. Specific Intent Crimes: Any mistake, reasonable or unreasonable, is a defense as long as it was honest.
2. General Intent Crimes & Malice: Mistake of fact must be reasonable.
3. Strict Liability Crimes: Not a defense because it requires no mental state.
B. Mistake of Law: is unaware that his acts are criminally proscribed, such ignorance of law is not a defense.
1. Exceptions:
a. Statute proscribing s conduct hasnt been reasonably made available;
b. reasonably relied on a statute or judicial decision thats later overruled or declared unconstitutional;
c. relies in good faith upon an erroneous official statement of law contained in an administrative order or
in an official interpretation by a public officer or department;
d. Where some element of a crime involves knowledge or awareness of the law by .
Consent: Consent of the victim is not a defense to a crime except when it negates a specific element of the offense, such
as in rape or kidnapping. Whenever consent may be a defense, it must be (1) voluntarily and freely given; (2) by a party
who was legally capable of consenting; and (3) no fraud was involved in obtaining consent.
Condonation: Subsequent forgiveness by the victim is generally not a defense, unless a statute establishes such a
defense.

7 Unlike necessity, duress always involves a human threat.


13