BAR/BRI CLASS ONE CRIMINAL LAW JUNE 2, 2008 Crimes & Procedure 2 areas of law: o NY Crimes (Essay) Almost

st guaranteed to have an essay o Multistate Crimes (MBE) Tests Common Law of crimes 33 questions (out of 200) 20/33 are about crimes 13/33 are about criminal procedure Jurisdiction: o Territorial o Crime can be prosecuted wherever the crime took place (situs) o State can prosecute a crime if any act that was the crime took place in that state, OR if the result took place in that state o More than one state can prosecute a crime Essential Elements of Criminal Responsibility: o Physical Act: Voluntary bodily movement No act, no crime Voluntary means that you brain tells your muscles to move (willed muscular contraction) Involuntariness: When the act is not a product of your own volition When the actor is unconscious (sleep walking) Epileptic seizure or reflex Omissions: Limited circumstances Omission to act can be basis for responsibility 3 requirements: o Legal Duty to Act Ordinarily no duty 5 situations where there is a duty to act: When there is a statute (i.e. duty to report abuse, duty to pay taxes, etc.) Special relationship (parent-child, spouse-spouse, etc.) Contract (lifeguard, babysitter, doctor, etc.)

Voluntary assumption of care (starting to help someone) Creation of peril o Knowledge of the facts giving rise to the duty o Ability to help (law does not require you to put your own life at risk if you cant help) o Mental State: New York Organized along Model Penal Code (versus Common Law) 5 categories: o Intentionally Aka purposely Defendant meant to do something (conscious object) o Knowingly Aka wilfully Defendant was aware of what he was doing o Recklessly Knows about a substantial and unjustifiable risk and consciously disregards that risk Knowing of the risk, but not caring o Negligently Defendant should have known about a substantial and unjustifiable risk Aka being stupid o Strict Liability Statutory Rape Drug crimes as to the quantity of the narcotics Common law: 4 general categories: o Specific Intent: When the crime requires not just doing the act, but doing the act with a specific objective or specific intent Intent includes not just the intent to do the act, but the intent to cause a particular result Specific Intent crimes: Assault 1st degree premeditated murder

 Larceny Embezzlement False Pretenses Robbery Forgery Burglary Solicitation Conspiracy Attempt If the defendant lacks the specific intent, the defendant will not be guilty 2 defenses to specific intent crimes: Voluntary intoxication Unreasonable mistake of fact o General Intent: Defendant need only be generally aware of the factors constituting the crime Defendant has to know what they are doing, and the circumstances, but the defendant does not have to intend any specific result Can infer from the mere doing of the act General intent crimes: Battery Rape Kidnapping False imprisonment o Malice: To act intentionally or with reckless disregard of an obvious or known risk Malice Crimes: Common law murder Arson o Strict Liability: Defendants state of mind is irrelevant Two types: Public welfare offenses o Regulatory or morality offenses (i.e. selling liquor to a minor, etc.) o Small penalty Statutory rape o Large penalty Mistake of fact is no defense

o Causation: Applies to all result crimes 2 types: Actual: o Cause-in-fact o But for the defendants conduct, would the victim have died? o An accelerating cause is an actual cause Proximate: o Is the bad result the natural and probable consequence of the defendants conduct? o If the incidence is caused by an unforeseeable, intervening event, there will not be proximate causation o But, guns going off accidentally is foreseeable o Victims getting infected at the hospital are foreseeable o Eggshell rule in effect Year and a day rule At common law, a homicide could not be prosecuted unless the death occurred a year and a day after the homicidal act NY has abandoned this rule o Concurrence: Must have required mental state when you engage in the unlawful act But, continuing trespass: wrongful taking followed up by intent to deprive. If initial taking was not wrongful, no continuing trespass. Crimes: o Crimes Against the Person: New York: Murder o Divide into intentional and non-intentional killings o Intentional Killing: Generally, 2nd degree murder Unlike common law, no distinction for premeditation 1st degree murder is murder with special circumstances Usually how and who 4 major ones:

o Police officer in the line of duty o Part of witness intimidation o Murder for hire o Killing during a serious felony (but not felonymurder) Making it less serious Extreme emotional disturbance (2nd degree to 1st degree manslaughter) o Intentional killing committed under the influence of a reasonable extreme emotional disturbance (i.e. provocation) o This is an affirmative defense in New York (defense has the burden on a preponderance of evidence standard) (all other defenses, nonaffirmative defenses must be disproved BRD by the prosecution) o Unintentional Killings 4 kinds: Depraved indifference (extreme recklessness) o 2nd degree murder o Utter disregard for human life: Expose multiple people to the risk of death To kill in a particularly brutal way (i.e. accidental death after torture) First degree manslaughter o Intent to cause serious physical injury (i.e. intent to cause grievous bodily harm)

Second degree manslaughter o Basic Recklessness Criminal Negligent homicide o Should have been aware of substantial and unjustifiable risk o Aggravated Murders Killing a cop Can be aggravated manslaughter or aggravated homicide and you get extra jail time o Vehicular Homicide Drunk driving statutes If defendant has prior DUI, first degree First offense, regular vehicular homicide o Felony-Murder Rule 2nd degree murder 2 key differences from the common law: NY limits felony-murder to 6 specific crimes: o Burglary o Robbery o Arson o Kidnapping o Forcible Rape o Escape from Confinement Non-Slayer defense o Ordinarily all the co-felons are responsible for the actions of their co-felons, but NY allows for a limited defense to someone who didnt do the killing o Defendant must prove 4 things to get this affirmative defense: Did not participate in the homicidal act Defendant did not have a deadly weapon Defendant had no reason to believe that his co-felons

had a deadly weapon Defendant had no reason to believe that his co-felons would do anything likely to result in death Assault (covers both battery and assault): o Intentionally injuring another person o Different degrees: 3 factors that determine degrees: Weapon? Injury? o Two forms: Physical injury (something that really hurts) Serious physical injury (permanent or life threatening) Quantity? o Money or drugs o For each crime, try to memorize at least one degree (usually 2nd degree) o 2nd degree assault: intentionally causing serious physical injury 1st: add a weapon 3rd: reduce harm to physical injury o Unlike common law, you must have an injury (no offensive touching) o Attempted assault requires the specific intent to assault Mere threatening without intent to do anything = menacing False Imprisonment o Unlawful confinement of a person without their consent o Kidnapping Abducting someone 2 degrees: Basic = 2nd

1st = one of three of: ransom, restraint with intent to injure or the victim dies

Sex Offenses o 3 elements: Sex Without the victims consent (consent is a defense here) Accomplished by force or threat of force or when the victim is unconscious o Note that there is no marital immunity, and this crime is gender neutral now o Statutory Rape Having sex with a person under the age of consent Age is irrelevant Strict liability Consent is not a defense Age of consent is 17 Common Law: Homicide: o 3 different types: Murder Causing the death of another person with malice aforethought o Mental state = malice o Malice: Intent to kill Intent to inflict great bodily injury Extreme recklessness (depraved indifference) Felony-Murder o Notes about intentional murders: If you see a weapon, and someone dies, there will be intent to kill and murder CL definition of murder does not

have degrees, but 1st degree is planned and deliberate (specific intent), but 2nd degree is malice (general intent) Transferred intent applies to all crimes. If a person intends to kill one victim, but accidentally kills someone else, the intent will be transferred, and the person will be guilty of murder. o Notes about extreme recklessness: I.e. shooting into a crowd, speeding on a narrow road, etc. o Notes about felonymurder: Any death caused during the commission of or the attempt to commit a felony is felony-murder If the maximum punishment for a crime is more than a year is prison, its a felony Provides for vicarious liability (kind of like an agency theory) 6 limitations on this rule: defendant must in fact be guilty of the underlying felony, felony must be

inherently dangerous, felony must be separate from the killing itself (independent felonious purpose rule i.e. battery cannot be the basis of murder), killing must be during the felony or during immediate flight from the felony, death must be foreseeable, and the dead person cannot be one of the felons. NOTE: the felon need not necessarily be the cause of the murder (i.e. security guard shoots someone at the scene, but not one of the felons) Voluntary manslaughter: Intentional killing committed after adequate provocation Provocation here is a partial defense o 4 elements (subjective + objective): Provocation would arouse a sudden and intense passion in the mind of an ordinary person (usually adultery or assault on defendant) Defendant must actually be provoked Defendant must not have time to cool off

Defendant must not have actually cooled off Involuntary manslaughter Killing committed with criminal negligence or a killing committed during a crime (felony-murder is an exception) Sometimes referred to as misdemeanor manslaughter Battery (different from Torts): o Common Law: unlawful application of force to another resulting in either bodily injury or an offensive touching o General intent required only Assault (different from Torts): o Attempt to commit a battery o Intentional creation, other than by mere words, of a reasonable apprehension in the mind of the victim of imminent bodily harm o Specific intent crime False Imprisonment o Unlawful confinement of a person without their consent o Kidnapping A false imprisonment that involves moving the victim or concealing the victim in a secret place o Property Crimes New York: Larceny (not a felony) o Anything that would be theft at common law is larceny in New York o Favorite form in New York is passing a bad check o Degrees of larceny will depend on value of goods stolen o 5 degrees: $0 = Petit larceny $1,000 = 4th $3,000 = 3rd $50,000 = 2nd $1,000,000 = 1st

Robbery (any degree will be sufficient for felonymurder, and for 1st or 2nd, then 1st degree murder) o Forcibly stealing property o 3 degrees: 3rd = basic crime 2nd = add one of the following: Defendant is aided by another actually present If the victim is injured If property stolen is a car 1st = victim is also seriously injured or the defendant uses a firearm. However, if the defendant can prove that the gun was unloaded or inoperable, then it goes to 2nd degree. Burglary: o 3rd = entering or remaining unlawfully in a building with the intent to commit a crime inside Do not need to break Doesnt need to be at night Doesnt need to be a dwelling Can be any crime (not just a felony) Remaining addresses the concurrence problem o 2nd = someone gets injured, or a weapon is used, or if it is a dwelling (strict liability) o 1st = defendant must know they are burglarizing a dwelling and someone gets injured or the defendant is carrying a weapon o If someone dies, think felony-murder and 1st degree murder (if intentional), or 2nd degree (if unintentional) Arson o 4th = reckless burning of a structure o 3rd = intentional burning of a structure o 2nd = intentional burning when the defendant knew or should have known that someone was inside o 1st = 2nd degree plus an explosive or incendiary device o If someone dies, think murder Common Law Theft (Larceny, Embezzlement, False Pretenses) o Larceny

Trespassory taking and carrying away of the personal property of another with the intent to permanently deprive the owner of the property Trespassory: technical term; means without permission Carrying away: must move away Personal property: lawful possession Intent to permanently deprive: if you intend to give it back, its not larceny, of if you make a mistake, its not larceny A taking under a claim of right will not be larceny o Embezzlement Fraudulent conversion of the personal property of another by a person already in lawful possession of that property Lawful possession = control and discretion (usually excludes low level employees) Mental state (specific intent) = intent to defraud. So, if you intend to deprive, no intent to defraud. o False Pretenses: Obtaining title to the personal property of another by an intentional false statement with the intent to defraud False statement must be of a past or present event, not a future event Thing to focus on here is title. Title passes (not just possession). If all you get is possession, then you only have larceny by trick. Violent Theft (Robbery and Extortion) o Robbery: Larceny from anothers person or presence by force or threat of immediate injury Also a crime against the person Picking a pocket is larceny, snatching a chain is robbery Must have a threat of immediate injury (not future injury)

o Extortion Future injury o Blackmail Threat of embarrassment Other Theft Crimes o Receipt of Stolen Property Mental state is knowledge. You have to know that the property is stolen. o Possession of Stolen Property You have to know that you possess it, and know that its stolen o Forgery Making a false writing or altering an existing writing with the intent to defraud o Uttering Crime of offering a forged instrument with the intent to defraud Crimes Against Habitation (Burglary and Arson) o Burglary: Important Breaking and entering the dwelling of another at night with the intent to commit a felony inside Breaking: creating or enlarging an opening by at least minimal force (includes opening a door, but not climbing through an open window) Entry: Some part of your body or a tool must cross the plane of the structure Dwelling: somewhere someone lives (other than your own house) (i.e. not a store or barn) Specific intent: intent to commit a felony at the time of the entry (i.e. must be the purpose rape, robbery, assault, etc.) Not burglary to take something under a claim of right o Arson: The malicious burning of the dwelling of another Burning = material wasting of the structure

Dwelling = extends to any structure Of another = cant burn your own house Must have malice (acts intentionally or with reckless disregard) Vicarious Liability & Inchoate Crimes: o Vicarious Liability: Someone who doesnt commit the act can still be liable Accomplice liability Accomplice = someone who aids or encourages another person (the principal) who commits a crime with the intent to encourage the crime People who are not accomplices: Mere presence Mere knowledge (person selling an ordinary good at an ordinary price) Victim/Members of a protected class You are guilty as if you committed the crime itself Accomplices liability does not depend on the principals liability Unprosecuted principal is a favorite of the bar examiners Withdrawal: Common Law: o If all you did was encourage, then all you need to do is renounce o If you help, then you have to make an affirmative effort to prevent the crime from happening (i.e. stop them, or call the police) New York: o Make a substantial effort to stop the crime from happening Accomplice witness rule: In New York, a defendant cannot be convicted of a crime based upon the uncorroborated testimony of an accomplice o Inchoate (Incomplete): When you can be guilty of a crime, even when it doesnt happen Solicitation: Asking someone to commit a crime with the intent that they do it Specific intent crime Solicitation is a separate crime (it is the asking)

Conspiracy: Agreement between 2 or more people to commit a crime, plus an overt act in furtherance of the crime Overt act is a minimal requirement Specific intent (intend to agree, intend to achieve the object of the conspiracy) Separate offense Agreement: o Can have an implied agreement o Common Law Actual meeting of two guilty minds You cant agree with someone who is just pretending or with someone who is an undercover police officer If all the co-conspirators are acquitted of the crime, then the last conspirator cant be convicted Can be vicariously liable for other crimes committed in the furtherance of the conspiracy if the crimes were foreseeable o New York Follows the unilateral approach can be guilty even if the other person is just pretending Can be prosecuted of conspiracy even if co-conspirators acquitted No vicarious liability for co-conspirators Attempt Model Penal Code o Act: substantial step towards the commission of the crime New York o Act: conduct that gets dangerously close to the commission of the crime (dangerous proximity) o Mental: specific intent to commit the crime Note: cant attempt a reckless or negligent crime. You must specifically intend to commit the crime. Impossibility: o Factual

o Legal This is a defense When what the defendant thought he was doing was not even illegal Withdrawal: Common Law: o No withdrawal o But, if you do withdraw, no vicarious liability New York: o Allows withdrawal (renunciation) o Must: Voluntarily and completely renounces Must be motivated by a guilty conscience Cant be motivated by a fear of failure or a fear of detection Prevents the crime from happening o Affirmative defense Merger: When certain crimes will merge together so the defendant will only be liable for one crime, and not multiple crimes Common Law: o Inchoate offenses: Solicitation and attempt merge together, and with the completed crime Conspiracy does not merge New York: o Lesser included offenses: Lesser included offense will merge with the greater offense If every element of the lesser offense is also an element of the greater offense o Inchoate offenses: Attempt merges, but solicitation and conspiracy do not

When it is impossible to commit the crime because of some circumstances beyond the defendants control Not a defense

Defenses: o Capacity: Insanity: Must suffer from a mental defect or disease

MNaughten Rule: o Defendant not responsible if as a result of a mental disease or defect, the defendant did not know the act was wrong or did not understand the nature and quality of his actions Irresistible Impulse Test: o If defendant is unable to conform his conduct to law, as a result of a mental disease/defect Durham Test/Product Test: o Criminal act is the product of a mental disease or defect o Not the law anywhere o Usually a wrong answer Model Penal Code: o Defendant lacked the substantial capacity to either appreciate the criminality of his conduct or conform his conduct to the requirements of law New York: o Defendant must lack the substantial capacity to know or appreciate either the nature and consequences of his conduct or that his conduct was wrong (no irresistible impulse prong) o Insanity is an affirmative defense Note: Insanity is different than incompetence. Incompetence is a criminal procedure issue. Intoxication: Involuntary Intoxication: o It is a defense to all crimes (treated like insanity) o Intoxicated against your will or without your knowledge o Addiction and peer pressure are excluded Voluntary Intoxication: o Can be a defense to specific intent crimes if the intoxication prevents the defendant from forming the specific intent o No defense to general intent crimes o Doesnt work for arson, but does work for larceny, burglary, etc. o New York Rule: Can be a defense to crimes of intent or knowledge if the intoxication negates the required intent or knowledge

Cannot be a defense to crimes of negligence or recklessness

Infancy: Too young Common Law Rule: o If the defendant is under the age of 7, no criminal responsibility o If the defendant is under the age of 14, there is a rebuttable presumption against criminal prosecution New York: o 13 year olds can be prosecuted for 2nd degree murder (18 for 1st degree) o 14 and 15 year olds for serious crimes against persons or property o 16 year olds, anything o Justification: Self-defense: Usually homicide 3 things to focus on: o Degree of force used by the defendant (i.e. deadly or non-deadly) Non-deadly if reasonably necessary to protect against an immediate use of unlawful force Deadly force: Imminent threat must be a threat of death or serious injury Defendant must be without fault (i.e. cant start the fight) o Will have to withdraw first and communicate that withdrawal to the other side Defendant not required to retreat (common law, true man rule), although if you are going to use deadly force, you must attempt a retreat if safe or if your own home and are not the initial aggressor (New York) o Immediacy of the threat o Defendants status as an aggressor Mistake of threat

o Depends on whether the belief of the threat was reasonable Deadly force to prevent a crime: o Common law: Non-deadly force can be used to prevent a felony Deadly force can only be used to prevent a felony dangerous to human life o New York: Deadly force can be used to prevent a kidnapping, rape, burglary or robbery (even the least serious of those) Burden of proof: regular defense Duress: Defendant forced to commit a crime under a threat of imminent death or serious bodily injury New York: o Affirmative defense o Duress can be used as a defense to homicide (not at common law) Entrapment: Defense to unfair temptation Only works if the criminal design originated with the police, and if the defendant was not predisposed to commit the crime Mistake of Law: Not a defense unless the statute explicitly makes knowledge of the law an element of the offense (i.e. selling a gun to a known felon) Usually ignorance of the law is no excuse Mistake of Fact: Can sometimes be a defense Lacked mental capacity Common Law: o Whether mistake was reasonable or not o A reasonable mistake will be a defense to any crime except a crime of strict liability o An unreasonable mistake will be a defense only to a specific intent crime New York: o It is a defense if it negates the required mental state

o Mistakes reasonable and unreasonable will be a defense to crimes of intent, or knowledge, or recklessness o Unreasonable mistake will not be a defense to negligence