I.

GENERAL MATTERS – JURISDICTION AND MERGER

A. JURISDICTION
i. Rule – A state acquires jurisdiction over a crime if either the conduct or the
result happened in that state.
ii. Hypo – Jay, standing in CA, shoots a high-powered rifle across state lines into AZ
and kills someone. Which state has jurisdiction over the crime?
1. Answer: Both.
2. Reason: CA because the conduct took place there (D stood in CA when
he shot the high-powered rifle); AZ because the result occurred there (V
died in AZ after being shot)
B. CLASSIFICATION OF CRIMES
i. Two classes:
1. Felonies: punishable by death or imprisonment for more than 1 year
2. Misdemeanors: any crime that is not a felony
C. MERGER
i. Merger: If D commits 2 crimes, D can be properly charged for both crimes
because one crime does NOT merge into the other crime.
ii. Rule – There is no merger of crimes in American law.
1. Exception – solicitation and attempt DO merge into the substantive
offense. Thus, if D has completed a crime, D CANNOT be convicted of
attempting to commit that crime.

Note: Conspiracy does NOT merge into the substantive offense. Thus, D
CAN be convicted of conspiring to do something and doing it.
iii. Hypo – Rick asks Carl to break into Negan’s house to steal an expensive bat and
some hats. Carl agrees, and they set out to put their plans in place. With what
crimes can Rick be properly charged and convicted?
1. Answer: Conspiracy only.
2. Reason: Solicitation (i.e., asking someone to commit a crime) MERGES
into the crime of conspiracy once the other person agrees to commit
that crime.
iv. RULES AGAINST MULTIPLE CONVICTIONS FOR SAME TRANSACTION
1. Rule – Double jeopardy prohibits trial or conviction of a D for a lesser
included offense if he has been put in jeopardy for the greater offense.
a. Exception – A court can impose multiple punishments at a
single trial where the punishments are for 2+ statutorily defined
offenses specifically intended to carry separate punishments,
even though the offenses arise from the same transaction and
constitute the same crime.
II. ESSENTIAL ELEMENTS OF A CRIME
A. ELEMENTS OF CRIMES GENERALLY
i. Physical act (actus reus);
ii. Mental state (mens rea); AND
iii. Concurrence: the physical act and mental state existed at the same time.
 iv. Harmful result and causation: D’s act caused a harmful result
1. This last element may be required.
B. PHYSICAL ACT (ACTUS REUS)
i. Rule – D must have either performed a voluntary act or failed to act under
circumstances imposing a legal duty to act.
1. Act: any bodily movement
a. Involuntary Acts (that do not qualify for criminal liability)
i. Conduct which is NOT the product of D’s own volition
1. Reflexive or convulsive act (e.g., seizure)
ii. An act performed which D is unconscious or asleep
(e.g., sleep walking)
1. Exception – D may be criminally liable if he
knew he was likely to become unconscious and
commit the act.
ii. Hypo – Hank is standing waiting for a bus when someone pushes him into a 3P,
who then falls in front of the bus, is run over and killed. Would Hank be held
criminally liable?
1. Answer: No
2. Reason: There was no voluntary act on the part of Hank because he was
pushed into the 3P.
iii. OMISSION AS AN “ACT”
1. Rule – There is no legal duty to rescue (no matter how easy it would
have been to render help), but sometimes there is a legal duty to act. A
legal duty to act can arise in 1 of 5 circumstances:
a. By statute
i. Example – requirement to file your tax returns
b. By contract
i. Example – a lifeguard or nurse has a legal duty to act
1. Note: an “on-duty” employee has a legal duty
to act
c. Because of the relationship between the parties (status
relationship)
i. Example – a parent’s duty to protect children, or a
spouse’s duty to protect the other spouse.
d. Because you voluntarily assumed a duty of care and failed to
adequately perform it.
i. Hypo – Dwayne “The Rock” Johnson is having a
weightlifting party at his beach house when everyone
suddenly notices a man flailing in the ocean, as if the
man were about to drown. The Rock tells everyone that
he’ll save the man, and he dives into the water. The
Rock swims out to the man and sees that the drowning
man is Vin Diesel. Vin says, “I was driving like an idiot
and I crashed into the water, and no I’m drowning!
 Help, friend!” The Rock laughs and says, “I thought you
didn’t have friends!” The Rock then turns to swim back,
yelling, “Do you smell what The Rock’s cookin’,” leaving
Vin furiously flailing his arms in the water. If Vin Diesel
drowns, does The Rock have any criminal liability in this
situation?
1. Answer: Yes
2. Reason: Because The Rock voluntarily assumed
a duty of care and then failed to adequately
perform it.
e. Where your conduct created the peril
i. Hypo – Dr. Evil has a pool party and is showing off his
fancy new laser pointer. He flashes the laser pointer
into Austin’s eyes, and Austin falls into the pool. Austin
cannot swim, and Dr. Evil decides to laugh, rather than
do anything to save Austin. Will Dr. Evil face any
criminal liability in this situation?
1. Answer: Yes
2. Reason: Because his conduct created the peril
(i.e., flashing the laser pointer into Austin's
eyes, causing Austin to fall into the water) yet
he did not act. Dr. Evil must do something to
alleviate himself from criminal liability.
Note: Let's assume that Dr. Evil can't swim. The
law does not require Dr. Evil to risk his own life
by jumping into the pool to try and save Austin.
Rather, the law requires Dr. Evil to take "all the
reasonable measures" he can to try and save
Austin (e.g., call 911, find someone who can
swim, find a lifesaver).
C. MENTAL STATE (MENS REA)
i. COMMON LAW MENTAL STATES (Specific, Malice, General, Strict Liability)
1. Specific intent crimes: an act committed with a specific intent or
objective; intent cannot be inferred from the mere doing of the act. The
importance of specific intent crimes is that they will qualify for
additional defenses (voluntary intoxication and unreasonable mistake of
fact) not available for other types of crime. Specific intent crimes
(“Students Can Always Fake A Laugh, Even For Ridiculous Bar Facts”)
include:
a. Solicitation (inchoate offense) – intent to have the person
solicited commit the crime
b. Conspiracy (inchoate offense) – intent to have the crime
completed
c. Attempt (inchoate offense) – intent to complete the crime
 i. Exam Tip – Never forget that attempt is a specific intent
crime, even when the crime attempted is not.
1. Example – D intends to kill V but only wounds
him. D had the requisite specific intent (i.e., the
intent to kill) and is guilty of attempted murder.
2. Example – D intends to scare V by shooting V’s
hat off his head. If D’s shot kills V, D is guilty of
murder; but if V is merely wounded, D is not
guilty of attempted murder. (D may, of course,
be guilty of battery).
d. First-degree murder – premeditated intent to kill
e. Assault – intent to commit a battery
f. Larceny – intent to permanently deprive the other of his
interest in the property taken
g. Embezzlement – intent to defraud
h. False pretenses – intent to defraud
i. Robbery - intent to permanently deprive the other of his
interest in the property taken
j. Burglary – intent to commit a felony in the dwelling
k. Forgery – intent to defraud
2. Malice crimes: requisite intent is a reckless disregard of an obvious or
high risk that the particular harmful result will occur. Malice crimes
include:
a. Common Law Murder (second degree)
b. Arson
3. General intent crimes: general awareness of all factors constituting the
crime (i.e., D must be aware that she is acting in a manner that is or
highly likely to be prohibited by law); intent may be inferred from the
mere doing of the act– catch-all category where all crimes not so far
mentioned are general intent crimes unless they qualify for strict
liability.
a. Hypo – I want to kill the woman wearing the Barney the Dino
shirt. I pull out my gun, fire it at the woman in the Barney shirt,
but the shot misses her and instead hits and kills the woman in
the Dora the Explorer shirt sitting behind her. Am I guilty of any
degree of murder? Why or why not?
i. Answer: Yes
ii. Reason: Because of the doctrine of transferred intent
b. Hypo – Under the fact patter in the Hypo above, with what
crime(s) can I properly be charged and convicted for killing the
woman in the Dora the Explorer shirt?
i. Answer/Reason: Specific intent of first-degree murder
because there was a specific intent to kill someone
(under the doctrine of transferred intent) AND
 attempted murder with regard to the woman D tried to
killed but missed.
Note: there's always two crimes when dealing with
transferred intent hypos. Hypo indicators will be the
presence of two victims.
4. Strict liability crimes (AKA the No Intent Crimes): does not require
awareness of all the factors constituting the crime; D can be found guilty
from the mere fact that she committed the act – defenses that negate
intention (e.g., mistake of fact) ARE NOT AVAILABLE. Strict liability
crimes include:
a. Statutory rape
b. Selling liquor to minors

Exam Tip – If the crime is in the administrative, regulatory, or morality

area and you don’t see any adverbs in the statute such as knowingly,
willfully, or intentionally, then the statute is meant to be a no intent
crime of strict liability.

5. Hypo – Linda was 15 years old, but she appeared and acted older. When
asked, she always said she was 22, and she carried false identification
saying she was that old. She frequented taverns and drank heavily. One
evening in a bar she became acquainted with Duke. He believed her
when she told him her claimed age. They had several drinks and became
inebriated. Later, they drove in Duke’s car to a secluded spot. After they
necked for a while, Duke propositioned Linda and she consented. Before
Duke achieved penetration, Linda changed her mind, saying, “Stop!
Don’t touch me! I don’t want to do it.” When Duke did not desist, Linda
started to cry and said, “I am only 15.” Duke immediately jumped from
the car and ran away. Duke was indicted for, among other crimes,
contributing to the delinquency of a minor. The age of consent in the
jurisdiction is 16. If the indictment above were based on a statute
reading, “Whoever shall commit an act affecting the morals of a minor
under 16 years of age shall be deemed guilty of contributing to the
delinquency of a minor and shall be punished by imprisonment in a
state penitentiary for a period not to exceed five years,” Duke’s best
legal defense would be (A) the statute is unconstitutionally vague, (B)
Linda, the woman in question, consented to his actions, (C) he was
reasonable in his mistaken belief that she was not a minor, (D) he did
not intend to contribute to her delinquency. What is the best answer?
a. Answer: (A) The statute is unconstitutionally vague
b. Reason: Even though we don't know if the statute is in fact
unconstitutionally vague, (A) is the best answer choice since it is
a possible defense and because (B) - (D) cannot possibly be
correct.
 6. Hypo – Refer to the fact pattern above. With respect to contributing
charge under the statute set out above, proof by Duke that he was so
inebriated that he could not have formed a criminal intent would be a:
(A) Good defense, because the charge requires a specific intent, (B)
Good defense, because at least a general criminal intent is required for
every offense, (C) Poor defense, because intoxication can never be a
defense to any crime, (D) Poor defense, because the state of mind of
the defendant is irrelevant to this offense, so long as he was legally
sane. What is the best answer?
a. Answer: (D)
b. Reason: (A) is incorrect because no intent is required for strict
liability crimes. (B) is incorrect because no intent is required for
strict liability crimes. (C) is incorrect because voluntary
intoxication can be a defense BUT ONLY FOR specific intent
crimes. (D) is correct.

REQUISITE INTENT FOR MAJOR CRIMES

SPECIFIC INTENT MALICE GENERAL INTENT STRICT LIABILITY
Solicitation Battery Common Law Murder Statutory Rape
Attempt Rape Arson Selling Liquor to Minors
Conspiracy Kidnapping Bigamy (some
jurisdictions)
First Degree
Premediated Murder
Assault (Attempted
Battery)
Larceny
Robbery
Burglary
Forgery
False Pretenses
Embezzlement
ii. Note: Always defer to the common law mental states UNLESS specifically told
that the jurisdiction adopted the MPC mental states.
1. MPC MENTAL STATES (Purposely, Knowingly, Recklessly, Negligently) –
eliminated common law distinctions between general and specific
intent
a. Purposely: a person acts purposely when it is his conscious
objective to engage in certain conduct or cause a certain result
b. Knowingly: a person acts knowingly when he is aware that his
conduct will or is very likely to cause the result
i. A person cannot deliberately avoid learning the truth if
he is aware that his conduct is very likely to cause the
result
 c. Recklessly: a person acts recklessly when he consciously
disregards a substantial and unjustifiable risk, where such
disregard constitutes a gross deviation from the standard of
care that a reasonable person would exercise in that situation.

Exam Tip – a criminal law question often asks you to interpret a

statute. Check the language of the statute carefully for the mental
state required for each material element of the crime, because
whether D is guilty often turns on that mental state. Example – The
statute requires that D act “knowingly” (such as “knowingly selling
guns to a felon”). D will be guilty only if he had that knowledge (e.g.,
knew, or was aware of high probability and deliberately avoided the
truth, that the purchaser was a felon)

d. Negligently: a person acts negligently when he fails to be aware

of a substantial and unjustifiable risk, where such failure is a
substantial deviation from the standard of care (i.e., very
unreasonable risk)
e. Hypo – Trying to fit in with her new peers, Leslie Knope goes to
her weekly class “bar review” where she consumed several
beers during a three-hour period. During the night, Leslie lost
several bets with her classmates (forgetting things such as the
holding in Pennoyer), and she had to drink six shots of tequila.
Leslie didn’t plan on drinking so much, but she has a fear of
Uber and taxicabs. “Whatever,” she thinks to herself, “I only live
two miles from here, so I can probably make it home okay. I’ll
just drive very slowly on the backroads.” She gets in her car and
within four blocks, she crashes into someone else’s car. With
what MPC mental state did she act with respect to hitting the
other car?
i. Answer: Recklessly
ii. Reason: Because Leslie intended to drive very slowly on
the backroads which indicates that she knew there was
a risk but chose to disregard it.

STATE OF MIND
MENS REA STATE OF MIND REQUIRED OBJECTIVE OR
SUBJECTIVE TEST?
[COMMON LAW]
Specific Intent Intent to engage in proscribed conduct Subjective
General Intent Awareness of acting in proscribed manner Subjective
Malice Reckless disregard of a known risk Subjective
Strict Liability Conscious commission of proscribed act Not Applicable
[MPC Fault Standards]
Purposely Conscious object to engage in proscribed conduct Subjective
Knowingly Awareness that conduct is of a particular nature or will Subjective
 cause a particular result
Recklessly Consciously disregarding a substantial and unjustifiable Subjective and Objective
risk
Negligently Failure to be aware of a substantial and unjustifiable risk Objective
iii. TRANSFERRED INTENT
1. D can be liable under the doctrine of transferred intent where he
intends the harm that is actually caused, but to a different V or object.
a. Applies to homicide, battery, and arson
2. Exam Tip – a person found guilty of a crime based on transferred intent
is usually guilty of 2 crimes: the completed crime against the actual V
and attempt against the intended V
a. Example – If D intends to shoot and kill X, but instead shoots
and kills V, D can be guilty of the murder of V (under the
transferred intent doctrine) and the attempted murder of X.
D. CONCURRENCE
i. Rule – D must have had the intent necessary for the crime at the time he
committed the act constituting the crime.
1. Example – If D is driving to V’s house to kill him, he will lack the
necessary concurrence for murder if he accidentally runs V over before
reaching the house.
E. CAUSATION
i. Some crimes (e.g., homicide) require a harmful result and causation.
1. Rule – Thus, when a crime is defined to require not merely conduct, but
also a specified result (e.g., death), D’s conduct must be both the cause-
in-fact and the proximate cause of the specified result.
III. ACCOMPLICE LIABILITY
A. PARTIES TO A CRIME
i. COMMON LAW – distinguishes 4 types of parties to a felony
1. Principals in the first degree: persons who actually engage in the act
that constitutes the criminal offense
2. Principals in the second degree: persons who aid, advise, or encourage
the principal and are present at the crime
3. Accessories before the fact: persons who aid, advise, or encourage the
principal but are not present at the crime
4. Accessories after the fact: persons who assist the principal after the
crime
a. Example – helping D evade the police after he committed a
crime)
ii. MODERN STATUTES – most jurisdictions have abolished the distinctions
between principals in the first degree, principals in the second degree, and
accessories before the fact (accessories after the fact are still treated
separately).
1. Principal: one who, with the requisite mental state, actually engages in
the act or omission that causes the criminal result.
 2. Accomplice: one who aids, advises, or encourages the principal in the
commission of the crime charged.
a. Example – bank robbery where D doesn’t participate but
i. Aids – gives the robbers (principals) a shovel to dig
under the bank
ii. Advises – informs the robbers of the bank’s security
cameras and where they’re located.
iii. Encourages – encourages one of the robbers to kill his
heist partner because he has a big mouth.
b. Hypo – Newman is standing outside of a bank chatting on his
cell phone. He sees a van screech to a halt, and five masked
men jump out and run past Newman into the bank. Newman
ends his phone call, pulls out a bag of popcorn, and watches as
one of the masked men shoots a gun into the air and yells, “This
is a robbery, everybody get down!” Newman laughs as he
watches the robbery take place, and then later waves to the
men as they leave the bank and speed away in the van.
Newman never called the police. Does Newman have any
criminal liability as an accomplice?
i. Answer: No
ii. Reason: Because there's not enough here for Newman
to be charged with aiding or encouraging. There must
be some sort of "active" participation on the part of
Newman.
c. Rule – all parties (principal and accomplices) to the crime can be
found guilty of the principal offense
i. Exception – a party’s punishment for being an accessory
after the fact usually bears no relationship to the
principal offense.
3. Accessory after the fact: one who receives, comforts or assists another
knowing that he has committed a felony, in order to help the felon
escape arrest, trial, or conviction.

MODERN ACCOMPLICE LIABILITY

DEFENDANT CONDUCT LIABILITY
Principal Person who commits the illegal Liable for principal crime
act or who causes an innocent
agent to do so
Accomplice (includes common Person who aids or encourages Liable for principal crime if
law accessory before the fact) principal to commit the illegal accomplice intended to aid or
conduct encourage crime
Accessory After the Fact Person who aids another to Liable for separate, less serious
escape knowing that he has crime of being an accessory
committed a felony after the fact
 B. REQUISITE MENTAL STATE (FOR AN ACCOMPLICE)
i. DUAL INTENT REQUIRED – To be convicted of a substantive crime as an
accomplice, the accomplice must have
1. The intent to assist the principal in the commission of the crime; AND
2. The intent that the principal commit the crime
C. SCOPE OF LIABILITY (FOR AN ACCOMPLICE)
i. An accomplice is responsible for
1. Crimes she committed;
2. Crimes she aided, advised, or encouraged; AND
3. Any other crimes committed in the course of committing the crime
contemplated, as long as those crimes were probable and foreseeable.
D. EXCLUSIONS FROM LIABILITY (FOR AN ACCOMPLICE)
i. A person who effectively withdraws from a crime BEFORE it is committed (or
becomes unstoppable) cannot be held guilty as an accomplice. There are 3 ways
to withdraw:
1. Repudiation – If the person encouraged the crime, the person must
repudiate the encourage.
2. Attempt to Neutralize – If the person aided by providing assistance to
the principal (such as giving materials), he must do everything possible
to neutralize this assistance (such as attempting to retrieve the
materials).
3. Notifying the Police

Note: mere withdrawal from involvement without taking any additional

action is insufficient

IV. INCHOATE (INCOMPLETE) OFFENSES

A. CONSPIRACY
i. Rule – Conspiracy is an agreement, with an intent to agree (agreement
requirement), and an intent to pursue an unlawful objective (overt act
requirement).
1. Example – Kramer buys a new “Super Spy Set” and wants to try it out.
He and George agree to break into Kramer’s house at midnight with
their new tools, grab some silverware and go pawn it. They dress in
black clothes and black ski masks, get a ladder, pop the latch on a
second floor window with a tool from the super spy set, and enter the
house. They then grab some of Kramer’s silverware from the kitchen
and pawn it at an all-night pawn shop. Can Kramer and George be prop-
erly convicted of conspiracy?
a. Answer: No
b. Reason: Because it’s not a crime for Kramer to break into his
own house and sell his own silverware to a pawn shop.
2. Agreement Requirement– No express agreement is needed. Intent can
be inferred from conduct.
 a. Bilateral approach (common law): the traditional rule required
2 guilty parties. Thus, under this approach, if one person (in a
two-party conspiracy) is merely feigning agreement, the other
person cannot be guilty of conspiracy.
i. Wharton Rule – Where 2 or more people are necessary
for the commission of the substantive offense (e.g.,
adultery, dueling), there is not crime of conspiracy
unless more parties participate in the agreement than
are necessary for the crime (e.g., because it takes 2
people to commit adultery, it takes 3 people to conspire
to commit adultery).
1. Exception – Wharton Rule does not apply to
agreements with “necessary parties not
provided for” by the substantive offense; both
parties may be guilty of conspiracy even though
both are necessary for commission of the
substantive offense. Example – a state statute
prohibits the sale of narcotics and imposes
criminal liability on the Seller but not the Buyer.
But, Seller and Buyer may be charged with
conspiracy to sell narcotics even though both
parties are in fact required for commission of
the offense.
ii. Effects of Acquittal – Acquittal of all persons with whom
D is alleged to have conspired precludes conviction of
the remaining D.
b. Unilateral approach (MPC): the modern trend requires that
only one person have a genuine criminal intent.
i. Example – If D conspires with one person only and that
person is a police officer working undercover, D is guilty
of conspiracy.
3. Overt Act Requirement
a. Majority Rule – to ground liability for conspiracy there must be
an agreement plus some overt act in furtherance of the
conspiracy.
i. Under the majority rule, conspiracy requires an
agreement + an overt act. Any little will do to be an
overt act in furtherance of conspiracy, even an act of
mere preparation.
b. Minority Rule (common law) – liability for conspiracy is
grounded by the agreement itself

Exam Tip – On the MBE, apply the majority rule UNLESS specifically
told otherwise.
 ii. NO MERGER
1. Conspiracy does NOT merge with the substantive offense. D can be
convicted of conspiring to do something and doing it.
a. Example – robbery and conspiracy to commit robbery.
iii. DEFENSES
1. Withdrawal may be used only as a defense against liability for the other
conspirators’ subsequent crimes.
a. To withdraw, a conspirator must perform an affirmative act that
notifies all members of the conspiracy of her withdrawal.
2. Exam Tip – A conspiracy is complete upon the agreement with the
requisite intent and an overt act. Since the overt act can be a
preparatory acct, the conspiracy is usually complete very soon after the
agreement. If the crime is complete, D is guilty of conspiracy, even if the
facts show that she had second thoughts, told her co-conspirators that
she was backing out, warned the police, hid the weapons, etc. These
actions come too late; D is guilty of conspiracy. Such actions may relieve
D of criminal liability for her co-conspirators’ acts after withdrawal, but
they have no effect on the crime of conspiracy.
iv. NON-DEFENSES
1. Factual impossibility
2. Withdrawal, even if adequate, can never relieve D from liability for the
conspiracy itself.
B. SOLICITATION
i. Rule – Solicitation is asking someone to commit a crime. The crime of
solicitation ends when the person has been asked.
1. Note: Under the common law, it is not necessary that the person
solicited respond affirmatively (agree) to commit the crime.
ii. MERGER
1. Solicitation merges into
a. The crime solicited if the person solicited successfully commits
it.
b. Attempt if the person solicited tries but is unsuccessful at
committing the crime solicited.
c. Conspiracy if the person solicited agrees to commit the crime
iii. DEFENSES
1. Solicitor could not be found guilty of the completed crime because of a
legislative intent to exempt her (e.g., a minor female cannot be guilty of
solicitation of statutory rape by urging an adult male to have sex with
her, because she could not be guilty of the completed crime)
iv. NON-DEFENSES
1. Factual impossibility – the offense solicited could not in fact have been
successful
v. Hypo – Derek and Hansel agreed to break into Matilda’s house in order to get
money for their School for Kids Who Can’t Read Good. They were arrested
 shortly after they pried open Matilda’s back door and entered the house. Both
were charged with conspiracy to commit larceny, among other crimes. Derek
testified that he had long suspected Hansel of being a thief, and that he agreed
to the plan in order to catch Hansel, and that he had made an anonymous
telephone call to the police alerting them to the crime, enabling the police to
arrest them “in the act.” Derek also testified that he did not intend to keep the
money. Hansel did not testify. The jurisdiction follows common law conspiracy
rules. As to the charge of conspiracy to commit larceny, if the jury believes
Derek, it should find him: (A) Not guilty, because he did not intend to steal, (B)
Not guilty, because he prevented the theft from occurring, (C) Guilty, because
there was an agreement, and the prying open of the back door was sufficient for
the overt act, (D) Guilty, because he is not a police officer, and thus cannot claim
any privilege of apprehending criminals. What is the best answer?
1. Answer: (A)
2. Reason: Because under the bilateral approach, Derek was feigning an
agreement to catch Hansel. Additionally, Derek did not have the
requisite intent to pursue an unlawful objective since he did not intend
to steal from Matilda's.
C. ATTEMPT
i. Rule – Attempt requires (1) specific intent (i.e., the specific intent to commit the
crime) AND (2) overt act in furtherance of the crime
1. Specific Intent Requirement – D must intend to perform an act and
obtain a result that, if achieved, would constitute a crime.
a. Example – To be guilty of attempted murder, D must have had
specific intent to kill another person, even though the mens rea
for murder itself does not necessarily require a specific intent to
kill.
b. Exam Tip – Attempt to commit a crime defined as the negligent
production of a result (e.g., negligent homicide) is logically
impossible because a person cannot intend to be negligent.
Thus, there can be no attempted negligent homicide. The same
holds true for crimes that require recklessness.
2. Overt Act Requirement – the act must be a substantial step in
furtherance of the commission of the crime. An act of mere preparation
is insufficient.
ii. MERGER– a person who attempts and completes a crime may not be convicted
of both the attempt and the completed crime. The attempted crime merges into
the completed crime.
iii. DEFENSES AND NON-DEFENSES
1. Abandonment
a. Majority Rule – once D has taken a substantial step toward
committing the crime, abandonment is never a defense.
b. Minority Rule – MPC allows for this defense only if it is fully
voluntary and a complete renunciation of criminal purpose.
 2. Impossibility
a. Legal impossibility is a defense
i. Legal impossibility: if D, having completed all acts that
he had intended, would have committed no crime, he
cannot be guilty of an attempt to do the same if he fails
to complete all intended acts.
b. Factual impossibility is not a defense
i. Factual impossibility: the substantive crime is incapable
of completion due to some physical or factual
condition, unknown to D.
c. Exam Tip – If you get stumped on a question that asks you to
decide whether impossibility is a defense, ask yourself: “If D
were able to complete all of the acts that he intended to do,
and if all of the attendant circumstances actually were as D
believe them to be, would D have committed a crime?” The
answer usually will be yes, in which case the impossibility is
factual and not a defense. In the unusual case where the
answer is no, D most likely has a legal impossibility defense.
d. Hypo – Snooki and J-Wow agree to rob an armored car to pay
off their tanning salon debt. They purchase the necessary
equipment and weapons, and rush the armored car when it
comes to a stop in front of a bank. However, after throwing the
guards out of the armored car, they discover that there is no
money in the armored car. Can Snooki and J-Wow be convicted
of attempted armed robbery?
i. Answer: Yes
ii. Reason: This hypo is an example of factual impossibility
because Snooki and J-Wow couldn't rob the armored
car since there was no money actual in the car. Factual
impossibility is NEVER a defense to attempt.

INCHOATE CRIMES
Solicitation Conspiracy Attempt
Culpable Conduct Solicitation of another Agreement between 2 Performance of an act
to commit a crime or more people to that would be a crime
commit a crime if successful
Mental State Specific intent that Specific intent to: (i) Specific intent to
person solicited the enter into agreement; commit the particular
crime and (ii) achieve crime attempted
objective
Overt Act No act (other than the Act in furtherance of  MPC—substantial
solicitation) the conspiracy (no act step test
was required under  Traditional Rule –
common law) proximity test: act
dangerously close
 to success
Merger into Yes No Yes
Substantive Offense?
Withdrawal a Generally no No, except for further Generally no
Defense? crimes of co-
conspirators

V. OFFENSES AGAINST THE PERSON

A. HOMICIDE
i. COMMON LAW
1. MURDER
a. Rule – unlawful killing of a human being with malice
aforethought
i. Malice Aforethought Requirement – exists if
1. there are no facts reducing the killing to
voluntary manslaughter OR excusing it (i.e.,
giving rise to a defense); AND
2. it was committed with
a. intent to kill;
i. Note: this intent may be
inferred from the intentional
use of a deadly weapon
b. intent to commit a felony (felony
murder)
c. intent to inflict great bodily injury; OR
d. reckless indifference to an unjustifiably
high risk to human life (“abandoned
and malignant heart”)
b. Exam Tip – Even where the facts go out of their way to paint D
as a completely despicable human being, you cannot convict
him of murder some element of murder is missing. More
troublesome is the mercy killing case. If D intends to kill, even as
an act of love, he is guilty of murder.
2. VOLUNTARY MANSLAUGHTER
a. Rule – a heat of passion killing resulting from adequate
provocation by V. Provocation is adequate only if:
i. It would arouse sudden and intense passion in the
mind of an ordinary person such to cause him
(reasonable person) to lose self-control (e.g., exposure
to a threat of deadly force, finding your spouse in bed
with another, or being a victim of a serious battery);
1. Sudden and Intense Passion Requirement –
passion must be reasonable under the
circumstances
 2. Lose Self-Control Requirement – even if a
reasonable person would have been provoked,
if D was not, there is no reduction to
manslaughter
ii. There was not sufficient time between provocation
and killing for passions of a reasonable person to cool;
AND
1. Insufficient Time Requirement – the more time
that has passed, the more likely it is that a
reasonable person would have cooled off.
iii. D in fact did not cool off between provocation and
killing
1. D Did Not Cool Off Requirement – if the facts
show that D calmed down, there is no reduction
to manslaughter
b. Hypo – Jordan takes his girlfriend JoJo out to dinner. At dinner,
another patron, Emily, comes over and says hello to Jordan,
whom she recognizes from a previous date. In a fit of passionate
rage and jealousy, JoJo takes out a gun and kills Emily. Should
JoJo be convicted of the lesser charge of voluntary
manslaughter?
i. Answer: No
ii. Reason: JoJo’s response is not the type of passion that
would be aroused in the mind of an ordinary person.
c. Exam Tip – adequacy of provocation is a key issue in homicide
questions. Note the interplay between the reasonable person
standard and what actually happened to D.
d. Exam Tip – “heat of passion” is no defense to a killing, although
it may reduce the killing from murder to manslaughter
i. Imperfect Self-Defense: murder may be reduced to
manslaughter even though
1. D was at fault in starting the altercation; OR
2. D unreasonably but honestly believed in the
necessity of responding with deadly force (i.e.,
D’s actions do not qualify for self-defense)
Note: recognized only in some states
3. INVOLUNTARY MANSLAUGHTER
a. Rule – a killing committed
i. With criminal negligence (or by “recklessness” under
MPC); OR
ii. During the commission of a misdemeanor or an
unenumerated felony (i.e., misdemeanor manslaughter)
1. Unenumerated felony: a felony that does not
qualify under felony murder.
 Note: foreseeability of death may also be required
b. Note:

DISTINGUISHING “ABANDONED AND MALIGNANT HEART” MURDER

FROM INVOLUNTARY MANSLAUGHTER
Elements “Abandoned and Involuntary
Malignant Heart” Manslaughter
Murder
Degree of Risk of High risk Substantial risk
Death
c. Exam Tip – some questions refer specifically to the type of
manslaughter (voluntary or involuntary), while others just say
“manslaughter.” If the question does not specify the type, be
sure to consider both, although on the MBE voluntary
manslaughter is more often involved.
ii. STATUTORY MODIFICATION OF COMMON LAW CLASSIFICATION – some
jurisdictions divide murder into degrees by statute
1. FIRST DEGREE MURDER
a. Premeditated killing
i. Rule – D made the decision to kill (the human V) in a
cool and dispassionate manner and actually reflected on
the idea of killing, even if only for a very brief period.
1. Decision to Kill Requirement – D must have
acted with intent or knowledge that his conduct
would cause death.
ii. Exam Tip – first degree murder based on premeditation
requires a specific intent, which may be negated by the
defense of voluntary intoxication. If D was so
intoxicated that he was unable to premediate, he can
be convicted only of second degree or common law
murder, which requires only reckless indifference to
human life (and for which voluntary intoxication is not a
defense).
b. Felony Murder (discussed below) – many states classify a killing
committed during the commission of an enumerated felony as
felony murder and first-degree murder.
c. Homicide of a Police Officer
i. Rule – D must know V is a law enforcement officer AND
V must be acting in the line of duty.
ii. Example – A robbery occurs at a bank where a police
officer, who is off-duty, is depositing a check. The officer
identifies herself as such, and is shot and killed. In this
case, the officer was acting in the line of duty. As such,
D would be charged with first-degree murder.
2. SECOND DEGREE MURDER (similar to common law murder)
 a. Rule – Known in many states as a “depraved heart” killing
(done with reckless indifference to an unjustifiably high risk to
human life) OR any murder not classified as first-degree
murder.
iii. FELONY MURDER
1. Rule – any death caused—even if accidental—in the commission of, or
in an attempt to commit, a felony.
a. Felony Requirement – at common law, and in most
jurisdictions, the felony must be “inherently dangerous.”
Inherently dangerous felonies (“BARRK”) include:
i. Burglary, Arson, Rape, Robbery, Kidnapping.
2. DEFENSES
a. D has a defense to the underlying felony and therefore has a
defense to felony murder.
i. Hypo – Angelina and Brad hold up a convenience store.
Angelina is drunk. During the hold up, Brad accidentally
shoots and kills the convenience store owner. Is Ange-
lina guilty of felony murder?
1. Answer: No
2. Reason: Angelina has a defense (voluntary
intoxication) to the underlying felony (robbery)
and therefore has a defense to felony murder.
b. The felony was not distinct from the killing itself
i. Example – Aggravated battery that results in V’s death
does not qualify as an underlying felony for felony
murder.
c. Deaths were not a foreseeable result of the felony.
d. Deaths were caused after D reached a point of temporary
safety and therefore are NOT felony murders.
i. Note: deaths caused while fleeing from a felony are
felony murders.
e. At common law under most jurisdictions, D is NOT liable for the
death of a co-felon (V) as a result of resistance from V or the
police.
f. Hypo – Simon and Paula go in to rob a convenience store with
guns drawn. The store owner shoots at Simon and hits and kills
a bystander. Would Simon and Paula be guilty of felony
murder?
i. Answer: Yes
ii. Reason: The shooting occurred during the commission
of the robbery, which is a felony.
g. Hypo – In desperate need of money for more plastic surgery,
Heidi and Spencer hold up a convenience store with guns
 drawn. The store owner pulls out a gun and shoots and kills
Spencer. Is Heidi guilty of felony murder?
i. Answer: No
ii. Reason: Heidi is not liable for the death of her co-felon,
Spencer, at the hand of the store owner (V).
iv. CAUSATION
1. Rule – D’s conduct must be both the cause-in-fact and the proximate
cause of V’s death.
a. Cause-in-Fact Requirement – V’s death would not have
occurred but for D’s conduct.
b. Proximate Cause Requirement – D is responsible for all results
that occur as a natural and probable consequence of his
conduct, even if he did not anticipate the exact manner in which
they occur. Superseding factors break the chain of proximate
causation.
 B. ASSAULT AND BATTERY
i. BATTERY
1. Rule – unlawful application of force to the person resulting in either
bodily injury or offensive touching
a. Unlawful Application Requirement – the conduct need not be
intentional
b. Force Requirement – need not be applied directly
i. Example – D and V are eating dinner together. V goes to
the bathroom. While V is in the bathroom, D puts
poison into V's food. V ingests the poison but doesn't
die from it.
ii. Example – D caused his dog to attack V
c. Intent Requirement – battery is a general intent crime
d. Note: simple battery is a misdemeanor
ii. ASSAULT
1. Rule – an attempt to commit a battery OR the intentional creation
(other than by mere words) of a reasonable apprehension of imminent
bodily harm.
2. Note:

DISTINGUISHING ASSAULT FROM BATTERY

Elements Assault Battery
Actual Touching? No Yes
iii. AGGRAVATED ASSAULT
1. Rule – Assault AND either
a. The use of a deadly or dangerous weapon; OR
b. With the intent to rape, maim, or murder
C. FALSE IMPRISONMENT
i. Rule – unlawful confinement of a person without his valid consent
1. Confinement Requirement – if a known alternate route is available, the
confinement element will not be met.
2. Consent Requirement – one’s consent to the confinement precludes it
from constituting false imprisonment. Consent is invalidated by
coercion, threats, deception, or incapacity due to mental illness,
substantial cognitive impairment, or youth.
D. KIDNAPPING
i. Rule – unlawful confinement of a person with either some movement of the
victim OR concealment of the victim in a secret place.
VI. SEX OFFENSES
A. RAPE
i. Rule – unlawful carnal knowledge of a woman by a man, not her husband,
without her effective consent.
1. Note: state statutes renamed “rape” as gender-neutral “sexual assault”
2. Unlawful Carnal Knowledge Requirement – slightest penetration is
sufficient.
 3. Without Her Effective Consent – lack of effective consent exists where
a. Intercourse is accomplished by
i. Actual force; OR
ii. Threats of great and immediate bodily harm
b. OR, the victim is
i. Incapable of consenting due to unconsciousness,
intoxication, or mental condition; OR
ii. Fraudulently caused to believe that the act is not sex
1. Note: consent by other types of fraud (e.g.,
perpetrator persuading V that he is her husband
or that he will marry her) is effective.
B. STATUTORY RAPE
i. Rule – carnal knowledge of a person under the age of consent
ii. Defense – D’s reasonable mistake as to V’s age is generally NOT a defense since
statutory rape is a strict liability crime.
1. Exam Tip – if “strict liability” is not an answer choice given on the MBE,
then the second best answer is that a reasonable mistake as to age will
prevent conviction if D reasonably believed V was old enough to give
an effective consent.
VII. PROPERTY OFFENSES
A. COMMON LAW LARCENY
i. Rule – a wrongful taking and carrying away of tangible personal property of
another by trespass with intent to permanently deprive.
1. Taking Requirement – obtaining control
2. Carrying Away (asportation) Requirement – the slightest movement of
the property is sufficient.
3. Tangible Personal Property – excludes realty, services, and intangibles,
but includes written instruments embodying intangible rights such as
stock certificates.
4. By Trespass Requirement – without consent or by consent induced by
fraud
5. Intent to Permanently Deprive Requirement – the intent must exist at
the time of the taking (i.e., when D took the property).
a. Insufficient intent
i. Where D believes the property she is taking is hers; OR
ii. Where D intends only to borrow the property or to keep
it as repayment of a debt
b. Continuing Trespass: if a person takes property not intending to
steal it, but then later decides to keep the property, she can be
guilty of larceny under the theory of continuing trespass
ii. Hypo – Cersei and Daenerys are neighbors and best of friends. Cersei decides
that she wants to borrow Daenerys’s dress for a night, but she is afraid
Daenerys will say no. So Cersei sneaks into Daenerys’s closet, takes the dress,
and plans to return it to the closet the next day. After sneaking into the house
 and grabbing the dress, Cersei is stopped by a police officer upon leaving
Daenerys’s house and she is arrested. Is Cersei guilty of common law larceny?
1. Answer: No
2. Reason: Cersei has no intent to permanently deprive Daenerys of her
dress.
iii. Hypo – In which of the following situations would Defendant be guilty of
common law larceny? (A) Defendant took Sue’s television set, with the intention
of returning it the next day. However, he dropped it and damaged it beyond
repair, (B) Defendant went into Tom’s house and took $100 in the belief that
Tom had damaged Defendant’s car in that amount, (C) Mistakenly believing that
larceny does not include the taking of a dog, Defendant took his neighbor’s dog
and sold it, (D) Unreasonably mistaking George’s car for his own, Defendant got
into George’s car in a parking lot and drove it home. What is the best answer?
1. Answer: (C)
2. Reason: (A) is incorrect because D did not have the intent to
permanently deprive Sue of her TV at the time of the taking. (B) is
incorrect because D had a genuine belief that he was owed the $100. (C)
is correct because mistaken belief is not a defense to larceny. (D) is
incorrect because larceny is a specific intent crime and therefore a
permissible defense is reasonable mistake.
B. EMBEZZLEMENT
i. Rule – fraudulent conversion of personal property of another by a person in
lawful possession of that property.
1. Conversion Requirement – occurs when D deals with the property in a
manner inconsistent with the arrangement by which D has possession
2. Person in Lawful Possession of that Property Requirement – a trustee
is often the MBE embezzler.
a. Note: embezzler doesn’t have to receive a benefit in order to
commit embezzlement.
3. Intent Requirement – D must intend to defraud
a. Intent to Restore – if D intends to restore the exact property
taken, it is not embezzlement. But, if D intends to restore
similar or substantially identical property, it is embezzlement
(e.g., D took money and intended to return it with other money
of identical value).
ii. Hypo – A trustee takes money from the trust for the purpose of donating it
to charity. The trust, however, is not set up as a charitable trust. The trustee
donates all the money to charity. Is the trustee guilty of embezzlement?
1. Answer: Yes
2. Reason: The embezzler does not have to benefit from the
embezzlement.
iii. Note:

DISTINGUISHING EMBEZZLEMENT FROM LARCENY

Elements Embezzlement Larceny
 Misappropriated Yes No
property was in
D’s lawful
possession?
Carrying away No Yes
required?

C. FALSE PRETENSES
i. Rule – D, with the intent to defraud, uses false pretenses (false representation)
to persuade the owner of property to convey title.
1. False Pretenses Requirement – false representation could be to either a
past or present fact. A false promise to do something in the future is
insufficient.
2. Intent to Defraud Requirement – D either knew the statement was
false or intended for V to rely on the misrepresentation.
ii. Note:
DISTINGUISHING FALSE PRETENSES FROM “LARCENY BY TRICK”
Elements False Pretenses Larceny by Trick
Conveyance of Yes No – owner is tricked
Title? into giving up custody
of property
D. ROBBERY
i. Rule – The taking of personal property of another from the other person’s
presence, by force or threat with the intent to permanently deprive him of it.
1. Presence Requirement – construed very broadly to include anywhere
within V’s vicinity. Example – Covers a farmer tied up in his barn while
taking things from his house.
2. Taking Requirement – Example – ripping a necklace from a person’s
neck is sufficient.
3. By Force or Threat Requirement – threat must be of imminent harm
ii. Exam Tip – For D to be guilty of robbery, V must give up her property because
she feels threatened. If V gives up her property for another (e.g., she feels sorry
for D, or she wants D to go away), D will not be guilty of robbery. D may,
however, be guilty of attempted robbery.
1. Note:

DISTINGUISHING ROBBERY FROM LARCENY

Elements Robbery Larceny
Force or Threat of Yes No
Harm Used?
Example – Pickpocketing generally would be larceny, but if V notices the
attempt and resists, the taking would be robbery.
iii. Hypo – Lumbergh goes into Milton’s office and says, “Yeah … I’m gonna need
you to come into the office this weekend to finish those reports.” Milton replies
by saying, “Yes, but … I want my stapler back. And also, if you don’t give me
 $500 by next Monday I will beat you up and burn your office to the ground.”
With what crimes can Milton be properly charged and convicted? (A) Robbery,
(B) Attempted Robbery, (C) Both Attempted Robbery and Robbery, (D) Neither
Attempted Robbery nor Robbery. What is the best answer?
1. Answer: (D)
2. Reason: (A) and (B) are incorrect because of the same reasoning
provided in (D). (C) is incorrect. Under the concept of merger, D can
never be charged for both the attempt of committing a crime and
actually committing a crime. The crime of attempt merges into the
crime actually committed. (D) is correct because there was no imminent
harm. As such, there was no robbery or attempt thereof. Note: Milton
could properly be charged and convicted of extortion.
i. Hypo – Chuckster needs money to support his gambling habit. While riding
the subway to the dog track, Chuckster intentionally picks the pocket of Rex,
taking Rex’s wallet. Chuckster later uses the money in the wallet to bet on
the dog races. Is Chuckster guilty of robbery?
1. Answer: No
2. Reason: Because Chuckster did not take Rex’s wallet by threat or force
ii. Hypo – Carl is walking down the street with his hand in a paper bag. As Lenny
approaches from the opposite direction, Carl stops Lenny and pushes the
paper bag into Lenny’s ribs. “I’ve got a gun in here. Give me all of your
money or I’ll shoot you.” Carl grabs the money and is arrested two blocks
later by a nearby officer, who discovers that Carl did not have a gun in the
paper sack, but was using his finger to poke Lenny in the ribs. Is Carl guilty of
armed robbery?
1. Answer: Yes
2. Reason: Because Carl simulated a deadly weapon to rob Lenny

PROPERTY CRIMES
Crime Activity Method Intent Title
Larceny Taking and asportation Without consent With intent to Title does not
of property from or with consent steal pass
possession of another obtained by fraud
person
Embezzlemen Conversion of Use of property in With intent to Title does not
t property held a way inconsistent defraud pass
pursuant to a trust with terms of
agreement trust
False Obtaining title to By consent With intent to Title passes
Pretenses property induced by defraud
fraudulent
misrepresentation
Robbery Taking of property By force of threat With intent to Title does not
from another’s of force steal pass
presence
 E. EXTORTION
i. Rule – knowingly seeking to obtain property OR services by means of a future
threat (e.g., to harm or to expose information)
1. Note:

DISTINGUISHING EXTORTION FROM ROBBERY

Elements Extortion Robbery
Taking property in No Yes
the presence of V?
Threats of Harm Threats are of future Threats are of
harm imminent harm

F. FORGERY
i. Rule – the making OR altering of a false writing with intent to defraud
ii. Note: any writing that has apparent legal significance can be subject to the
crime of forgery
VIII. OFFENSES AGAINST HABITATION
A. COMMON LAW BURGLARY
i. Rule – Breaking and entering of a dwelling of another at night with the intent to
commit a felony therein.
1. Breaking Requirement – can be actual (involving some force, however
slight) or constructive
a. Actual breakings – it is not an actual breaking for someone to
come uninvited through a wide-open door or window. If wide
open, there is no breaking. BUT if someone pushes open an
interior door to the bedroom or living room then a breaking
exists.
i. Example – D enters into a wealthy neighborhood, and
sees that the back door is wide open at one of the
homes. D, without touching the door, slides into the
home, steals a bunch of valuable items, and slides
right back out. Moments later, D is caught by the
cops. D is not guilty of burglary.
ii. Example – D enters into a wealthy neighborhood, and
sees that the back door is wide open at one of the
homes. D, without touching the door, slides into the
home, opens the door to master bedroom to take the
valuable artwork hanging above the bed. Moments
later, D is caught by the cops. D became guilty of
burglary the moment he opened the door to the
master bedroom.
b. Constructive breakings: a breaking by fraud or threat
i. Hypo – Marcia gives a house key to her maid, Alice, so
that Alice can come to the house and clean once a
 week. Alice uses the key to come to the house at 2 a.m.
with friends to party. Is this a breaking for purposes of
common law burglary?
1. Answer: Yes
2. Reason: Alice was given the key for the purpose
of cleaning the home but used that key for
another purpose.
2. Entering Requirement – occurs when any part of the body or any
instrument used to commit the crime crosses into the house
3. Dwelling of Another Requirement – dwelling means a house, or any
other structure used with regularity for sleeping purposes, even if used
for other purposes such as conducting a business. Cannot be a barn or a
commercial structure.
4. At Night Requirement – act had to occur at night.
5. Intent Requirement – intent to commit the felony must exist at the
time of breaking and entering or it is not common law burglary. Also,
felony need not be carried out to constitute burglary.
ii. Hypo – Will breaks into Sue’s house because he wants a place to sleep. A few
hours later, Will decides to steal a bunch of expensive trophies he sees inside. Is
Will guilty of common law burglary?
1. Answer: No
2. Reason: Because Will did not have the intent to commit a felony at the
time of breaking and entering.
iii. Hypo – Will breaks into Sue’s house at night because he wants to commit a
sexual assault on her. Sue, however, is not home at the time. Will leaves the
house without taking anything. Can Will be properly charged and convicted of
burglary?
1. Answer: Yes
2. Reason: Because Will had the intent to commit the felony of sexual
assault at the time of breaking and entering.
B. COMMON LAW ARSON
i. Rule – malicious burning of the dwelling of another
1. Malice Requirement – intentional or reckless disregard of an obvious
risk (that the structure would burn); no specific intent required.
2. Burning Requirement – requires damage from burning fire (e.g.,
charring); smoke damage is insufficient (e.g., scorching).
3. Dwelling Requirement – common law required the burned building to
be a dwelling (e.g., house); barn or commercial structure insufficient.
4. Of Another Requirement – common law required the burned building
to belong to someone else (one could not be guilty of burning her own
house).
ii. Hypo – Beavis and Bee-head are setting fire to tall grass outside of Mr.
Anderson’s house. The grass fire spreads quickly and catches Mr. Anderson’s
shed on fire, and it burns to the ground. The fire then spreads to Mr. Anderson’s
 house and it eventually burns the house to the ground. Beavis and Bee-head
watch the fire the entire time, laughing. Are Beavis and Bee-head guilty of
common law arson?
1. Answer: Yes
2. Reason: Beavis and Bee-head engaged in reckless conduct when they lit
the tall grass outside of Mr. Anderson's home.
IX. DEFENSES
A. INSANITY
i. Rule – insanity is a defense to all crimes (including strict liability crimes) that
entitles D to acquittal.
ii. 4 Tests
1. M’Naghten Rule (“Right-Wrong” Test)– at the time of his conduct, D
lacked the ability to know the wrongfulness of his actions OR
understand the nature and quality of his actions.
a. Exam Tip – shorthand to remember this test – D does not know
right from wrong or does not understand his actions
2. Irresistible Impulse (“Self-Control” Test) – D lacked the capacity for self-
control and free choice
a. Exam Tip – shorthand to remember this test – an impulse that
D cannot resist
3. Durham Rule (“Product” Test) – D’s conduct was a product of mental
illness
a. Exam Tip – shorthand to remember this test – but for the
mental illness, D would not have done the act
4. MPC – D lacked the ability to conform his conduct to the requirements
of the law.
a. Exam Tip – shorthand to remember this test – combination of
M’Naghten and irresistible impulse
B. INTOXICATION – intoxication may be caused by any substance (e.g., drugs, alcohol,
medicine)
i. Voluntary Intoxication
1. Rule – intoxication is voluntary if it is the result of the intentional take
without duress of a substance known to be intoxicating (i.e., self-
induced)
a. Defense to Specific Intent Crimes ONLY
i. Exam Tip – for crimes that require recklessness (i.e.,
conscious disregard of a substantial and unjustifiable
risk), a person who would have been aware of the risk
had he not been intoxicated acts reckless with regard to
the risk. Also, defense is unavailable if D purposely
becomes intoxicated to establish the defense.
b. Exam Tip – for purposes of the bar exam, addicts and alcoholics
are always considered voluntarily intoxicated.
 2. Hypo – After drinking heavily, Barney breaks into Homer’s house at
night to steal Homer’s TV. Homer sees this and rushes toward Barney.
Barney then punches Homer, knocking him out. Barney takes Homer’s
TV, gets in his car, speeds away, and is pulled over for speeding a few
blocks away. With what crimes can Barney be properly charged and
convicted? (A) Battery, (B) Burglary, (C) Both battery and burglary, (D)
Neither battery nor burglary. What is the best answer?
a. Answer: (A)
b. Reason: (A) is correct because battery is a general intent crime
and therefore voluntary intoxication is not a viable defense. (B)
is incorrect because burglary is a specific intent crime and
therefore voluntary intoxication is a viable defense
ii. Involuntary Intoxication
1. Rule – involuntary intoxication results from unknowingly becoming
intoxicated OR becoming intoxicated under duress.
a. Note: “unknowingly Becoming Intoxicated” – occurs if D took
an intoxicating substance either without knowledge of its
nature OR pursuant to medical advice while unaware of the
substance’s intoxicating effect.
2. Note: involuntary intoxication may be treated as a mental illness, and D
is entitled acquittal if he meets the jurisdiction’s insanity test.

DEFENSES NEGATING CRIMINAL CAPACITY

Defense Elements Applicable Crimes
Insanity Meet applicable insanity test (M’Naghten, Defense to all crimes
irresistible impulse, Durham, or MPC)
Intoxication
Voluntary Voluntary, intentional taking of a Defense to specific intent crime
substance known to be intoxicating if intoxication prevents
formation of required intent
Involuntary Taking intoxicating substance without Treated as mental illness (i.e.,
knowledge of its nature, under duress, or apply appropriate insanity test);
pursuant to medical advice may be a defense to all crimes
C. JUSTIFICATION – justification defenses arise when society has deemed that although D
committed a proscribed act, she should not be punished because the circumstance
justify the action.
i. SELF-DEFENSE
1. Nondeadly Force
a. Rule – V, who is without fault, may use nondeadly force in self-
defense any time he reasonably believes that force is about to
be (imminent) used on him.
i. Without Fault Requirement – a person who has
initiated an assault or provoked the other party will be
considered the aggressor.
 1. Rule – the original aggressor (D) may use force
in self-defense only if:
a. He withdraws from the confrontation
AND communicates that withdrawal to
the other; OR
b. The other party (i.e., V of the initial
aggression) suddenly escalates the
minor fight into a deadly altercation
without giving D a chance to withdraw.
Note: here deadly force may be used, if
reasonable.
2. Deadly Force
a. Majority Rule – V, who is without fault, may use deadly force in
self-defense any time he reasonably believes that deadly force
is about to be used (imminent death or great bodily harm) on
him.
b. Minority Rule – V is required to retreat if it is safe to do so (duty
to retreat)
i. Exceptions – V has no duty to retreat
1. From her home;
2. If she is the victim of a rape or a robbery; OR
3. If she is a police officer making a lawful arrest
c. Exam Tip – If D kills in self-defense but not all 3 requirements
for the use of deadly force are met, some states would find D
guilty of manslaughter rather than murder under the “imperfect
self-defense” doctrine.
3. Hypo – Defendant, a worker in a metal working shop, had long been
teasing Vincent, a young colleague, by calling him insulting names and
ridiculing him. One day, Vincent responded to the teasing by picking up
a metal bar and attacking Defendant. Defendant could have escaped
from the shop, but instead he picked up his own metal bar and struck
Vincent in the head. Vincent later died from this blow to the head. What
is the most serious offense of which Defendant could be properly
convicted? (A) Involuntary manslaughter, (B) Voluntary manslaughter,
(C) Murder, (D) None of the above. What is the best answer?
a. Answer: D
b. Reason: (D) is correct because self-defense is a valid defense
here. D may use deadly force because he could have reasonably
believed that V would have used deadly force against him with
the metal bar.
ii. DEFENSE OF OTHERS
1. Rule – D has the right to defend others if he reasonably believes that
the person assisted has the legal right to use force in his own defense.
 a. Reasonably Believed Requirement – only need reasonable
appearance of the right to use force.
b. Parties Relationship Requirement
i. Majority Rule – no special relationship required
between D and the person in whose defense he acted.
iii. DEFENSE OF A DWELLING
1. Rule – deadly force may never be used to solely defend property.
2. Hypo – Dwight is going on vacation, and he is worried about someone
breaking into his house. Accordingly, he loads up a spring gun at his
front door so that if someone tries to open the door, the gun will be
triggered and shoot the intruder. In dire need of a beet fix, Michael
breaks into Dwight’s house, the gun goes off and kills Michael. Does
Dwight have a viable defense based on the defense of his dwelling?
a. Answer: No.
b. Reason: Deadly force may never be used solely to defend
property.
iv. NECESSITY
1. Rule – Conduct that would otherwise be criminal is justifiable if, as a
result of pressure from natural forces, D reasonably believes that his
conduct was necessary to avoid a greater societal harm.
a. Reasonably Believed Requirement – the test is objective; a
good faith believe is not sufficient.
v. Exam Tip – the right to justification defenses depends on the immediacy of the
threat; a threat of future harm is not sufficient. Thus, if someone threatens D
by saying, “Tomorrow I’m going to kill you,” D is not justified in killing the
person to “protect” himself.
vi. Exam Tip – it is crucial to determine the level of force that D used in committing
the proscribed act. As a result of thumb, nondeadly force is justified where it
appears necessary to avoid imminent injury or to retain property; deadly force
is justified only to prevent death or serious bodily injury.

JUSTIFICATION DEFENSES
Defense Amount of Force Allowed
Nondeadly Force Deadly Force
Self-Defense If person reasonably believes force Only if personal reasonably believes
is necessary to protect self that he is threatened with death or
great bodily harm
Defense of Dwelling If person reasonably believes force Only if person inside reasonably
is necessary to prevent or end believes he is threatened or to prevent
unlawful entry felony inside
Necessity If reasonably necessary to avoid Never
greater harm
D. DURESS
i. Rule – Duress is a defense to a criminal act (other than intentional homicide) if:
 1. The person acts under the threat of imminent infliction of death or
great bodily harm upon him or a family member; AND
2. That belief is reasonable.
ii. Note:

DISTINGUISHING DURESS FROM NECESSITY

Elements Duress Necessity
Threat Threat is always made Threat is made by
by a human natural forces
E. MISTAKE OF FACT
i. Rule – mistake of fact is a defense only when the mistake negates the requisite
intent of the crime. (Therefore, mistake of fact is NEVER a defense to a strict
liability crime)
1. Intent Requirement
a. The mistake must be reasonable to be a defense to a malice or
general intent crime
b. Any mistake (no matter how ridiculous/unreasonable) is a
defense to a specific intent crime
ii. Hypo – Exhausted from hours of studying the rule of dragon perpetuities at a
local coffee shop, Daenerys leaves the shop and takes someone else’s laptop.
Daenerys is later arrested and charged with larceny. At trial, she claims that she
truly thought she was taking her laptop. If the jury believes Daenerys, she
should be found: (A) Guilty of larceny because the laptop did not belong to her,
(B) Not guilty of larceny, but only if her belief was reasonable, (C) Not guilty of
larceny, regardless of whether her belief was reasonable or unreasonable, (D)
Not guilty of larceny because she has the defense of insanity, as studying the
rule of perpetuities for hours is enough to drive anyone insane in the
membrane. What is the best answer?
1. Answer: (C)
2. Reason: (C) is correct because larceny is specific intent crime. Therefore,
regardless of whether Daenerys' belief was reasonable or unreasonable,
mistake fact is a viable defense.
i. Note:

DISTINGUISHING MISTAKE OF FACT FROM FACTUAL IMPOSSIBILITY

Mistake of Fact Factual Impossibility
Applicability Negates the intent D fails to complete the
required for the crime (i.e., attempt)
completed crime because of his
mistaken belief of
facts
Defense? Yes No
F. MISTAKE (IGNORANCE) OF THE LAW
i. Rule – it is not a defense to a crime that D was unaware that her acts were
prohibited by law OR that she mistakenly believed (even if reasonable) that her
acts were not prohibited.
 1. Exception – D has a defense if
a. The statute proscribing her conduct was not published or made
reasonably available prior to the conduct; OR
b. There was reasonable reliance on a statute or judicial decision.
G. ENTRAPMENT
i. Rule – entrapment is a valid defense only if:
1. The criminal design originated with law enforcement officers; AND
2. D must not have been predisposed to commit the crime.
Note: merely providing the opportunity for a predisposed person to commit
a crime is not entrapment.
ii. Exam Tip – entrapment is a difficult defense to establish in court and so too on
the MBE. On the exam, D is usually predisposed to commit the crime and thus
entrapment usually is a wrong choice.

EXCULPATORY DEFENSES
Defense Applicable To When Available
Justification (self- Usually crimes of force (e.g., Nondeadly force may usually be used if
defense, defense battery, homicide) reasonably necessary to avoid imminent
of others, defense injury or to retain property; deadly force
of property, may be used only to prevent serious
necessity, etc.) bodily harm.
Duress All crimes except intentional D reasonably believed that another
homicide would imminently harm him or a family
member if he did not commit the crime
Mistake of Fact Crimes with a mental state For specific intent crimes, any mistake
element (i.e., all crimes that negates intent; for other crimes,
except strict liability) only reasonable mistakes.
Mistake Crimes with a mental state Mistake must negate awareness of
(Ignorance) of Law element and statutory some aspect of law regarding the
crimes elements of the crime required OR
must be due to: statute not being
reasonably available, reasonable
reliance on statute or judicial
interpretation, or (in some states
(reasonable reliance on official advice.
Consent Crimes requiring lack of Applicable only if: consent is freely
consent (e.g., rape) and given, the party is capable of consenting,
minor assaults and batteries AND no fraud was used to obtain
consent.
Entrapment Most crimes, but not Criminal design originated with the
available if the police merely police AND D was not predisposed to
provide the opportunity to commit the crime before contact with
commit the crime police.

X. GENERAL EXAM TIPS

A. TRIGGER WORDS
 Crime Trigger Words
False imprisonment Trapped; confined
Battery V is “touched” in some way
Assault fearful
Burglary breaking into house
B. DEFENSES
i. “Reasonable belief” defenses: defenses were “reasonable belief” is needed for
such defenses to apply. Reasonable belief defenses include:
1. Self-defense
2. Duress
3. Necessity
4. Mistake of fact with regard to general and malice intent crimes
ii. Where a valid defense applies, D cannot be properly charged and convicted of
the crime.